
    (73 Hun, 265.)
    HUMES v. PROCTOR et al.
    (Supreme Court, General Term, Fourth Department.
    December 8, 1893.)
    1. Trespass—Cutting Timber—Damages.
    In trespass for cutting trees, forming part of plaintiff’s sugar bush, the proper measure of damages is the difference between the value of plaintiff’s land before the trees were cut and its value afterwards, and not the value of the trees themselves.'
    2. Witness—Impeachment by Statements Out op Court.
    Evidence as to declarations made by a witness as to the location of a boundary line is admissible to contradict his testimony at the trial, though such declarations may not be competent evidence of the true location.
    8. Evidence Made Competent by Adverse Party.
    In trespass for cutting timber, where the issue is as to the title of the land, and defendant has introduced evidence that plaintiff, with knowledge of defendant’s trespasses, made no protest against his cutting the timber, evidence is properly admitted for - plaintiff showing that he did not submit to defendant’s acts in silence, but asserted at the time that defendant’s employes had greatly damaged his land.
    4. Trespass—Cutting Timber—Treble Damages.
    In trespass for cutting timber on another’s land, treble damages are a legal consequence of the finding of damages by the jury, unless there is an affirmative finding by it, as provided in Code Civil Proc. § 1668, that the injury was casual or involuntary, or that defendant had probable cause to believe the land his own, or that the timber was taken to repair a public road by authority of the road officers; and it is immaterial that either of these facts appear from the evidence, if they are not affirmatively found by the jury.
    Appeal from circuit court, Lewis county.
    Action by Aaron Humes against Thomas E. Proctor and George Mead for cutting timber on plaintiff’s land. From a judgment for plaintiff, and from an order denying defendants’ motion for new trial made on the minutes, and from an order trebling the awarded on the trial, defendants appeal.
    Affirmed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Watson M. Rogers, for appellants.
    Kilby & Kellogg, for respondent.
   MARTIN, J.

This action was for trespass in cutting and removing trees growing upon the plaintiff’s land, without his consent. Treble damages were demanded in the complaint. The defense was a general denial, and a license by the plaintiff to do the acts complained of. The chief question litigated was whether the land upon which the trees in question stood was the land of the plaintiff, or belonged to one of the defendants. The proof on the part of the plaintiff tended to show that it was the plaintiff’s, while the defendants’ evidence was that it belonged to the defendant Proctor. The evidence of the plaintiff was sufficient to justify the jury in finding in his favor; hence the judgment should not be disturbed on the ground of the insufficiency of the plaintiff’s evidence, and it also follows that a nonsuit was properly refused. ,

The defendants contend that the court erred in certain rulings made on the trial, and for that reason the judgment should be reversed. The trespass complained of was the cutting out the trees where a plank road was built through premises claimed by the plaintiff. The proof showed that a portion, at least, of the lot •over which this road was built, was used by the plaintiff as a sugar bush. This particular lot originally contained about 130 acres. Subsequently the plaintiff gave his brother 50 acres of it; so that there remained about 80 acres in what was known as the “sap-bush lot.” On the trial the plaintiff, as a witness, was asked the value •of the 80 acres before the cutting was done, and its value afterwards. This evidence the defendants objected to, “as incompetent, immaterial, and not the proper basis for estimating damages; no evidence having been given which justifies proof of damages.” These •objections were overruled, and the defendants excepted. In this ruling we find no error. The proper measure of damages was the -difference between the value of this lot before the timber was cut ■and its value after the cutting and destruction of the timber complained of. Argotsinger v. Vines, 82 N. Y. 308, 313; Dwight v. Railroad Co., 132 N. Y. 199, 202, 30 N. E. 398.

The plaintiff’s witness Norman J. Hosmer gave his opinion that the 80-acre lot was worth $1,200 before the timber was cut, and $800 •afterwards. On his cross-examination he was asked by the court if he thought the value of the trees that stood there was $500, to which he replied:

“No, sir. I think the loss to the sap bush might have been that. My estimate was that the cutting of these trees, the loss to the sap bush,—that is the way we estimate; so that the trees might have been worth to the sap bush $400.”

The defendants’ counsel subsequently moved to strike out the ■estimate of the witness as to the value of the property before the building of the plank road and subsequently, as being incompetent, it not being based upon any market value, and that his estimate was based solely upon the value of the property for sugar purposes. This motion was denied. We think the court was justified in denying it. Moreover, it is manifest that the defendants were not injured by this ruling, as the jury awarded the plaintiff only the value of the trees cut.

Eusset Harris was called as a witness by the plaintiff, and, under the defendants’ objection that the evidence was incompetent, “but not on ground question was not put to Hoy,” was permitted to testify that Nathan Hoy said that the “stone corner” ’ was the northwest corner of Humes’ sugar-bush lot. This ruling was excepted to by the defendants, and they now insist that the court •erred in admitting the evidence. It appears from the appeal book that Hoy had been called as a witness by the defendants, and had given evidence which tended to show that the stone corner was not the northwest corner of the plaintiff’s sugar-bush lot, and on his cross-examination had testified that he did not tell Eusset Harris that it was. That this evidence was admitted for the sole purpose •of contradicting the witness Hoy is made manifest by the charge of the court. The defendants’ counsel asked the court to charge “that the declarations of Hoy (if they shall find any were made) to Mr. Harris are no evidence of where the north corner of the one hundred and thirty acre lot is;” to which the court replied: “That is true. They were not given as evidence of the fact, but as contradicting other statements made by him.” In this ruling we find nothing-that would justify us in reversing the judgment.

Nor do we find any error in the court’s permitting the plaintiff, as a witness, to testify that when he and Pahud established the-east corner, and put a stake there, the location of the northeast corner of the 29-acre lot was the subject of conversation. This was at most proving that, at the time when the.corners of the 130-acre-lot were established, attention was called to the northeast comer of his 29-acre lot. The conversation between them was not admitted, but only proof of the fact that a conversation was had.

The plaintiff testified that along in the winter he saw Mr. Flynn,, and told him that Doucey had done a lot of damage on his land. This was objected to generally, without stating any grounds of objection. The objection was overruled, and the defendants excepted-On the plaintiff’s cross-examination, he had testified that he knew of Flynn and Connell, employes of the defendant Proctor, peeling bark down to the line southwesterly of the plank road. The manifest purpose of calling out this evidence was to show that the plaintiff had not had undisputed possession of the strip of land in question, and that his permitting them to thus cut and peel the timber-thereon, without claim of ownership, was an admission of title in the defendant Proctor. To answer these claims, it was proper to prove by the witness that he did not submit to these acts in silence, but that at the time he asserted that he had been damaged by the acts of Doucey, who was in their employ. Moreover, the evidence-was within the principle that the declarations of a person in possession of land as to the extent of his claim or boundary are admissible to show the extent of the actual occupation by him. Abeel v. Van Gelder, 36 N. Y. 513; Donahue v. Case, 61 N. Y. 631. The court committed no error in admitting this evidence.

We have also examined the exceptions to the charge of the court to which our attention has been called by the defendants, but have found none that requires a reversal. The charge was an eminently fair one, and properly presented the case to the jury in a clear and; impartial manner. It was as favorable to the defendants as they could properly ask. In it we find nothing improper which could have in any way prejudiced the defendants.

Having now considered all the exceptions to which our attention has been called, the only question left for consideration is as to the-propriety of the order trebling the plaintiff’s damages. The complaint was obviously one for treble damages, under Code Civil Proc. § 1668. Section 1667 of the Code provides:

“If any person cuts down and carries off any wood, underwood, tree, or timber, or girdles or otherwise despoils a tree on the land of another, without the owner’s leave, * * * an action may be maintained against him, by the owner. * * *”

Section 1668 then declares:

“In an action brought as prescribed in the last section, the plaintiff may state in his complaint the amount of his damages, and demand judgment for treble the sum, so stated. Thereupon, if, * * * where issues of fact are tried, the verdict * * * awards him any damages, he is entitled to judgment for treble the sum so awarded, except that in either of the following cases, judgment must be rendered for single damages only: (1) Where the verdict * * * finds affirmatively that the injury, for which the action was brought, was casual and involuntary; or that the defendant, when he committed the injury, had probable cause to believe that the land was his own. (2) Where the defendant has pleaded, and the verdict * * * finds affirmatively, that the injury for which the action was brought, was committed by tailing timber, for the purpose of making or repairing a public road, or public bridge, * * * by authority of a commissioner or overseer of highways.”

It is quite possible that if the defendants had asked the jury to find affirmatively that the defendants, when they committed the injury complained of, had probable cause to believe that the land belonged to the defendant Proctor, it would have so found. But no such request was made, and the jury did not thus find. The provisions of the Code are in some respects unlike those of the Be-vised Statutes. While the latter provided that if, upon the trial, it should appear that the trespass was casual and involuntary, or that the defendant had probable cause to believe that the land on which the trespass was committed was his own, only single damages could be recovered, yet it did not' contain the provision that the plaintiff is entitled to judgment for treble the sum awarded, unless the verdict finds affirmatively that the injury was casual and involuntary, or that the defendant, when he committed the injury, had probable cause to believe that the land was his own. The purpose of the change is said by Mr. Throop, in his' note to that section, to have been to expressly require the defendant to establish, and the verdict to state, the facts which entitle the plaintiff to a judgment for single damages only. Thus, it would seem that, under the statute as it now stands, treble damages are a legal consequence of the finding of damages by a jury in such an action, where there is no affirmative finding by it of any of the facts mentioned in the last-two subdivisions of section 1668; hence we see no reason to disturb this order. Judgment and orders affirmed, with costs. All concur.  