Miller v. Wykoff

346 Mich. 24 (1956) 77 N.W.2d 264

MILLER
v.
WYKOFF.

Docket No. 53, Calendar No. 46,655.

Supreme Court of Michigan.

Decided June 4, 1956.

Martin J. Lavan, for plaintiffs.

Clark, Klein, Brucker & Waples, for defendant.

KELLY, J.

Plaintiffs commenced an action for treble damages under the provisions of Rev Stat 1846, ch 111, as amended by PA 1915, No 111 (CL 1948, § 692.451 [Stat Ann § 27.2161]), claiming defendant wilfully and wantonly trespassed upon their land and destroyed and removed timber therefrom. The jury found the trespass to be wilful and assessed damages at $1,500. The court tripled the verdict of $1,500, and entered judgment of $4,500. A motion for new trial was denied, and defendant appeals.

Defendant admitted the trespass, but submits that the clear weight of the evidence supported his contention that the trespass was casual and involuntary and that the court erred in not so instructing the jury. The record discloses that the court properly submitted this question to the jury and that there was evidence to support the jury's verdict.

The main question presented is whether the court erred in trebling the damages. Appellant in his brief states:

"In seeking to prove their damages, appellees produced 2 witnesses of importance. W.C. Randall testified as to the amount of timber cut, and its value. With this testimony, appellant has no quarrel. Laurence Kuehn then testified that in his estimate it would cost $1,000 to clean up the tree tops and debris left on appellees' property, and to fill stump holes."

Appellant contends that the trebling of damages should have been confined to the value of the timber cut and should not have included the $1,000 cleaning-up cost.

This Court has held that damages in cases of this kind should be measured by the loss of the value of the freehold interests of the owner as the result of the cutting and carrying away of the timber. See Achey v. Hull, 7 Mich. 423; Bockes v. McAfee & Son Co., 165 Mich. 7; Connor v. McRae, 193 Mich. 682.

Defendant cites Achey v. Hull, supra, where this Court stated (p 429):

"The statute in question is not framed to protect possessory rights, but was made to give to the owners of the fee a right to sue, in the form of trespass, for enumerated injuries to their inheritance."

Defendant then argues that the cost of cleaning up the premises "affects the enjoyment and use of the possessor." In Achey v. Hull, supra, the Court further said (pp 430, 431):

"The statute, fairly construed, would include not merely the value of the timber or wood cut, but such damages as accrued to the freehold by their destruction."

We cannot agree with appellant that the court erred in trebling damages.

Defendant called L. Harold Crandall as an expert witness. When it was disclosed that Crandall had not inspected the property prior to the cutting of the timber, the court did not allow him to testify as to the value of appellees' property prior to the trespass, but did not prohibit him from testifying as to the value of the property following the trespass. This did not constitute reversible error, especially in view of the fact that defendant did call to the stand an expert witness, a lifelong resident of the county, who, in addition to being engaged in the timber business, also owned a large amount of farm land in the same township. This witness had previously been over the property in question before the timber was cut and he was allowed to testify as to the damage done by the trespass. We do not believe that the trial court's refusal to permit Crandall's testimony as to the loss of value to the freehold constituted the reversible error complained of.

Judgment affirmed. Costs to appellees.

DETHMERS, C.J., and SHARPE, SMITH, BOYLES, CARR, and BLACK, JJ., concurred.

The late Justice REID took no part in the decision of this case.