No fixed rule for measuring the damage done by fire to the “ wild forest lands ” of the State has ever been adopted. In the absence of any recognized measure of damages in such cases, the plaintiff in this case undertook to prove its damages by the rule applicable between private individuals. In view of the ownership of these lands, the uses to which they are put, and the constitutional prohibitions concerning them, their value can only be fixed by an arbitrary standard. No natural standard, that is, no market standard, can be employed. The value of these Forest Preserve lands is entirely a matter of opinion, not of computation. How much they are worth for the purpose of conserving the water supply, how much they are worth as a rendezvous for consumptives, as a haunt for wild animals, as a Mecca for hunters, as a wilderness for recreation, must *328necessarily depend upon the different tastes and views of those whose opinions are sought. There would be such a wide fluctuation in these views and tastes as to render opinions on the subject wholly impracticable in measuring damages. Therefore, in fixing the value of these lands, in case of damage by fire, the courts must hit upon and establish some arbitrary rule. The rule in this case, that is, the rule employed when private parties come into court, is, in my judgment, as accurate and fair as any rule which can be thought of, provided that it is correctly applied and allowed to operate in all directions as it would operate between individuals. But in this case, as I view it, the rule was incorrectly and most unfairly applied.
When the State comes into court as a litigant it is entitled to no more than a private suitor; to no different measure of damages. (People v. Stephens, 71 N. Y. 527.) But in this case it got more than a private suitor and the defendant labored at a disadvantage in having the State as an opponent. The State attempted to prove the damages by swearing witnesses as to the value of the property before, and then as to its value after, the fire; the difference being the damages. The defendant by cross-examination and otherwise attempted to show that much of the burned timber could have been cut off and sold and the damages greatly lessened in this manner. This evidence was rejected on the theory that section 7 of article 7 the Constitution forbids the removal or sale of these dead trees. Of course, between private litigants this evidence would have been entirely competent, because the Constitution would not have been in the way, and it was competent here forthe reason that a rule, inapplicable to the circumstances and arbitrarily applied, was being employed.
The Constitution surely prohibits the sale of live timber, and yet in each question of the plaintiff it was assumed that the live timber could be sold. This assumption was proper because the ordinary rule of damages would have been unworkable without this assumption; but it was a lopsided application of the rule — amounting to its complete subversion — to assume that the live timber could be sold in violation of the Constitution and that the dead timber could not be sold. This was the employment of that part of the rule which favored the State; *329a rejection of that part which favored the defendant. This distortion of the rule worked great harm to the defendant. It was an invocation of the Constitution to the profit of the State and to the detriment of the defendant. It denied to the defendant the “ equal protection of the laws.” The measure of damages employed was manifestly improperly employed. The error worked great havoc to the rights of the defendant. It was wholly unreasonable, wholly unfair. The judgment should be reversed. '
Smith, P. J., concurred.
Judgment and order affirmed, with costs.