I dissent.
The record in this case shows that the tree was taken by the city, along with others, to provide employment and wood for the unemployed. The destruction of the tree was a taking and hence a damaging to the owner of abutting property on the street. Simonsv. Wilson, 61 Wn. 574, 112 P. 653. That being the case it was, as alleged in the complaint of respondent, a violation of her constitutional right to damages for the taking or injuring of her real estate. Kincaid v. Seattle, 74 Wn. 617,134 P. 504; 135 P. 820; Wong Kee Jun v. Seattle, 143 Wn. 479,255 P. 645, 52 A.L.R. 625.
Under those cases and several others cited therein, the city could not go upon the real estate in question as a trespasser, or tort-feasor, if it would. See, also, Great Northern R. Co. v.State, 102 Wn. 348, 173 P. 40, L.R.A. 1918 E 987. Therefore, no claim was necessary to be filed by respondent to support her action for the taking or damaging of her real estate without condemnation.
By the same legal principle, however, it is inconceivable that a municipality could be held for punitive or exemplary damages. The allowance of treble damages, of course, is only upon the theory of exemplary damages.
The statute, Rem. Rev. Stat., § 939 [P.C. § 8557], authorizing treble damages in case of cutting down trees on another's real estate is, so far as material, as follows:
"Whenever any person shall cut down . . . any tree, . . . on the land of another person, . . . without lawful authority, in an action by such person, . . . against the person committing such trespasses,. *Page 207 . . if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed. . . ."
In an early case, Gardner v. Lovgren, 27 Wn. 356,67 P. 615, we held that this statute, being of a penal nature, must be construed strictly, and that there must be the intent to commit the trespass as a necessary element, in order to justify the imposition of treble damages. See, also, Skamania Boom Co. v.Youmans, 64 Wn. 94, 116 P. 645. The rule of the Gardner case, supra, was reaffirmed in Bailey v. Hayden, 65 Wn. 57,117 P. 720.
Although the agents of the city may have been trespassers and tort-feasors in this case, they were absolved by the trial court, from which action respondent did not appeal. They may have been liable for treble damages had they been held liable, under the case of Simons v. Wilson, supra. However, they are not here.
The actual damages having been found by the court to amount to one hundred dollars, although it seems rather large for the nature of the injury, should be allowed as compensatory damages.
The judgment allowing treble damages should be reversed, and the cause remanded with instructions to enter judgment for actual damages in the sum of one hundred dollars.
MITCHELL and STEINERT, JJ., concur with HOLCOMB, J. *Page 208