Ferguson v. Buckell

Smith, J.:

The only witness sworn by the plaintiff as to- damage was the husband of the plaintiff. Upon an objection as" to his competency to give evidence- upon that subject, he was allowed to swear that, the value of the premises liad been Tvninished in the amount of $2,500; In swearing to his qualification!*'; testify to value he says: I have *215been acquainted with the value of real estate * * * only since I went there and bought this property. My acquaintance began when I commenced negotiations for this property. I am acquainted with the value of real estate in that vicinity. The holding price of Knowlton’s property is $10,000.. I cannot say that I know the value of similar property in that vicinity along the lake shore beyond Ifnowlton’s property and mine. Q. State what, in your opinion, the market value of your property was with these trees in there as they were in 1901, and also without the trees as it was in 1902 \ [Objected to as incompetent, the witness not qualified, not shown that he knows the values, and as speculative. Overruled. Exception.] A. With the trees as it was, I should say it was worth $10,000, and without the trees not over .$7,500.” The objection taken to the evidence of value given by plaintiff’s husband should have been sustained. There is nothing in the evidence to show that this place has a market value as a summer residence. Ordinarily, the measure of damage to forest land by the cutting of merchantable timber is the market value of the timber cut. Where there is a market for summer homes the market value of such a home may bé impaired beyond the' market value of the timber cut by the impairment of a shaded approach through the cutting of shade trees. Until such ■a market is shown, evidence of injury through destruction of shade along a public road is at least' of doubtful competency. If such ■evidence be competent, the plaintiff was not shown competent to give it. His only qualification was the knowledge of the value of his wife’s place and one other. This knowledge comes far short of qualifying him to swear to the difference in the value of her place with and without the shade. This evidence has been largely disregarded by the referee, who found the damage at $200 instead of $2,500, as sworn to by the witness. But this is the only evidence upon which that finding can rest. Under any other evidence of damage the referee could' not have found more than $15 damage.

The evidence, if competent, in my judgment, offers frail support for the finding. It is quite clear that not all of the trees that were taken within 500 feet of the roadway, and which are claimed to have been unlawfully taken, were taken by the defendant’s servants. J. W. Holcomb was the caretaker of the plaintiff as well as the servant of the defendant, and while the referee may have fóund as *216against Ms evidence that what'-cutting lie did of trees'neAr-the liighr . ■way xyas without plaintiff’s authority, nevertheless, :a considerable part of the wood was cut by Holcomb and sold for firewood,- for which he accounted to plaintiff. For thatthe defendant could not be held'liable. . • " •

The judgment must,' therefore, on the law and the facts be reversed-and a new trial.granted, with costs to ap.pe'llimt to abide ■ the event. . ( ,

All concurred.; Parker, P. J., and Chase, J.s in' result.

Judgment reversed on law and facts and new trial granted, with costs-to-appellant to abide event. -