74 CIVIL TIMBER TRESPASS 



the value of the timber removed. It has been held that 

 the diminished value of the land is not the measure of the 

 damage where the land is wild and more valuable for its 

 timber than for its soil, 1 and where it is shown that the 

 land is valuable only for its timber, the value of the timber 

 may be held the measure of the damage to the land. 2 It 

 has also been held that in an action in the form of trespass 

 upon realty, if the value of the timber, together with any 

 incidental damage to the land, resulting from the cutting, 

 exceeds the diminution in the market value of the land 

 the larger amount should be allowed in damages. 3 In a 

 New York case in which the timber was not removed and 

 it was shown that it was as valuable cut as it was standing, 

 only nominal damages were allowed. 4 



If the trees cut are non- timber trees or immature trees 

 of the timber species, the market value of the trees after 

 they are severed would evidently not be a proper measure 

 of the damage done the owner, and in such a case suit should 

 ordinarily be brought for damage to the land. In de- 

 termining the damage the fact that the land may be of 

 little value, or of no value, without the trees will be consid- 

 ered and evidence will be received as to the value of the 

 trees while standing. 5 This rule has been applied in the 

 case of trees in a sugar bush, 6 fruit trees, 7 trees which 



1. Meehan v. Edwards, 92 Ky. 574, 18 S. W. 519, 13 Ky. L. Rep. 803, 19 S. W. 179; 



Cf. Koonz v. Hempy, 142 lo. 337, 120 N. W. 976. 



2. Gates v. Comstock, 113 Mich. 127, 7 N. W. 515. 



3. Milltown Lbr. Co. v. Carter, 5 Ga. App. 344, 63 S. E. 270. 



4. DeCamp v. Wallace, 45 Misc, (N. Y.) 436, 92 N. Y. Suppl. 746. 



See Disbrow v. Westchester Hardwood Co. (N. Y.) 59 N. E. 519 (Mature timber, 

 Damages value of wood.) 



5. chi pn i an v. Hibberd, 6 Cal. 162; Wallace v. Goodall, 18 N. H. 439, 456; Oilman 



v. Brown, 115 Wis. 1, 91 N. W. 227; United States v. Chicago, Mil. & St. P. R-l 

 Co. 207 Fed. 164, (Aff'd in 218 Fed. 288.) ; Doak v. Mammoth Copper Min. Co- 

 192 Fed. 748 (1911) Trees injured by smelter fumes. In U. S. v. Bailey, Receiver 

 Mo. R. & N. W. Ry. Co. etc. (unreported) the damages awarded by the jury 

 were equal to the estimated cost of restocking the area burned over and of caring 

 for the young trees until they reached the age of those destroyed.) 



6. Humes v. Proctor, 73 Hun. (N. Y.) 265, 26 N. Y. Suppl. 315, (Aff'd. in 151 N. Y. 



520, 45 N. E. 948.) 



7. Ala. Mitchell v. Billingsley, 17 Ala. 391. 



Cal. Montgomery v. Locke, 72 Cal. 75. > 13 Pac. 401. 



111. Louisville E. & S. L. C. R. R. v. Spencer, 149 111. 97, 36 N. E. 91 (Fire, Act 



Mar. 29, 1869, places upon R. R. presumption of carelessness.) 

 Iowa. See Hamilton v. Des Moines & K. C. Ry., 84 la. 131, SON. W. 567. (Dam. 



to trees, not cost of restoration. Only partially injured.) 

 Kan. Kansas Zinc Mining & Smelting Co. v. Brown, 8 Kan. App. 802, 57 Pac. 



304 (Gases.) 



(Footnote 7 continues on next page) 



