Opinion by
Mr. Chief Justice Moore.After the plaintiff had introduced his evidence in chief and rested, a motion for a directed verdict for the defendant, on account of an alleged failure to establish the averments of the first or second cause of action, was interposed and denied. When the cause was submitted the defendant’s counsel again moved for a directed verdict for his client, on the grounds: (1) That the complaint did not state facts sufficient to constitute the first cause of action; (2) that no evidence had been received to establish the avermentsthereof; (3) that the complaint did not state facts sufficient to constitute the second cause of action; (4) that the uncontradicted testimony shows the plaintiff had never been evicted, and hence he was entitled to nominal damages only by reason of the existence of the» road, or by the house being partly thereon; (5) that the testimony conclusively shows that plaintiff received and now holds possession of the granted premises, and had not been damaged in any stun whatever; and (6) that the land so conveyed contains more than 120 acres. *330This motion was also denied, and it is contended that errors were thereby committed.
1-3. It is argued by defendant’s counsel that it was incumbent upon the plaintiff to allege, in the first cause of action, that the trees were taken willfully and without lawful. authority, and to have offered competent testimony to substantiate such averments, but, having failed to do so, the motions referred to should have been granted. Section 346, L. O. L., as far as involved herein, reads:
“Whenever any person shall cut down * * or carry off any tree * * on the land of another person * * without lawful authority, in an action by such person * * against the person committing such trespasses, * * if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed, or assessed therefor, as the case may be.”
In construing this enactment it was held that a special finding by a jury that the defendant took and carried away wood and timber unlawfully entitled the plaintiffs to treble damages, though a further finding was made that the defendants had reasonable cause to believe, and did believe, they had authority from the plaintiffs so to take and remove the wood and timber: Loewenberg v. Rosenthal, 18 Or. 178 (22 Pac. 601). A later decision has modified that harsh rule, and it is now settled that, when the cutting on or the removal from the land of another is accidental or independent of volition, the actual damage inflicted is the measure of the recovery, but when such trespass is willful treble damages may be obtained by an action at law: Oregon etc. R. Co. v. Jackson, 21 Or. 360 (28 Pac. 74). The adverbs “wrongfully and unlawfully” are the only limiting words employed in the complaint herein to qualify the act of cutting and removing the *331trees. It is believed that the expression “willfully” or the word “intentionally,” as indicated in the second case cited, should have been used in the complaint to restrict such cutting and removal in order to be entitled to recover treble damages.
As the sufficiency of the complaint was not challenged by a demurrer, the initiatory pleading should be liberally construed, and, though a verdict will not supply a material averment, it will cure a defective statement: Davis v. Mitchell, 72 Or. 165, 175 (142 Pac. 788), and cases there cited. The complaint as to the first cause of action is sufficient under the circumstances mentioned.
4, 5. In discussing the subject of trespass and the remedy given by statute to recover treble damages for an injury to real property, an author remarks:
“The burden of proof is on plaintiff to prove the elements of the trespass, including his title, the willfulness of the act, and that it was without his consent ’ ’: 38 Cyc. 1170.
Evidence was received at the trial in the Circuit Court tending to show that the defendant cut and caused to be removed the two trees, and to substantiate the reasonable value thereof; but the plaintiff offered no testimony whatever to establish the willfulness of the trespass, or that it was committed without his consent. The plaintiff’s counsel insists that the first motion for a directed verdict did not sufficiently specify the grounds upon which it was predicated, and, this being so, no error was committed in denying the application. This motion will be treated as an application for a judgment of nonsuit. In Hammer v. Campbell Gas Burner Co., 74 Or. 126 (144 Pac. 396), it was maintained that an error was committed in refusing to grant a judgment of nonsuit. The bill of exceptions there *332showed that plaintiff rested, and “thereupon defendant moved for judgment, which motion was overruled, and defendant allowed an exception. ’ ’
It was held in that case that as the motion did not ask for a nonsuit, or specify the grounds upon which the application was based, it was insufficient, and raised no question for review. In the case at bar the first motion interposed specified that the ruling desired was based upon the alleged failure of the plaintiff to introduce evidence sufficient to constitute the first or second cause of action. The controverted averments of the complaint showed what facts the plaintiff was required to prove, and when the first motion pointed out that there had been a failure to substantiate such issues the attention of the court was called to the particular defect relied upon.
Treble damages, given by statute for a willful trespass upon realty, are punitive in character. The value of the property injured or destroyed affords indemnity. Whatever additional sum is imposed is in the nature of a penalty, and before it is inflicted in a civil action, the preponderance of the evidence should show that all sums in excess of the actual damages inflicted were properly recoverable under the terms of the enactment. In the case at bar, it will be remembered that the jury found the value of the trees so cut and removed to be $3.62. The judgment rendered on this special verdict was for the recovery of $10.86, or $7.24 more than the actual value of the timber taken. No testimony was offered by the defendant tending to show that any license had been granted him to cut or remove the trees, nor was there any proof of a trespass, except so far as it might be inferred from the plaintiff’s ownership of the premises and the cutting and removal of the logs. The burden of proof being *333on the plaintiff to establish the elements of the trespass, the willfulness of the act, and that it was without his consent, he signally failed to make ont a case sufficient in these particulars to be submitted to the jury. The defect in the testimony was called to the attention of the court in such a manner as to make a denial of the first motion erroneous, so far as it related to the first cause of action. The judgment for the penalty is for a small sum; but as the trespass alleged to have been committed in cutting and removing the trees has not been established with that degree of proof required to authorize the recovery of treble damages, the excess of $7.24 must be remitted.
6. A presumption of an unintentional trespass ought to arise from a vendor’s cutting and removing timber after he has conveyed, without reservation, the land upon which the trees grew. If he desires to rebut such deduction, it is incumbent upon him, when charged in a complaint in a civil action with a commission of the act, to allege in his answer and to prove at the trial some license or authority in the exercise of which he is exempt from liability: 38 Cyc. 1170. Not having done so, the defendant is properly chargeable with the sum of $3.62, the actual value of the trees as found by the special verdict.
7-9. The defendant’s prior conveyance to J. A. Bus-sell of a strip of land, though such narrow tract was dedicated to and appropriated by Union Connty as a public highway, diminished the area of the premises described in the deed delivered to the plaintiff, whereby he was damaged in the sum of $30.14, as found by the jury. That such strip was being used as a public road when the plaintiff examined the premises with a view of securing a title thereto is of no consequence, for only *334an easement was obtained by the county, the fee remaining in Russell, and if tbe highway be abandoned he, or'his heirs or assigns, will be restored to the original estate: Lankin v. Terwilliger, 22 Or. 97 (29 Pac. 268); Huddleston v. Eugene, 34 Or. 343 (55 Pac. 868, 43 L. R. A. 444); John P. Sharkey Co. v. City of Portland, 58 Or. 353 (106 Pac. 331, 114 Pac. 933).
Not having reserved such strip when the warranty deed was executed for the entire tract, the defendant is liable for a breach of the covenant of general warranty, for the plaintiff never secured possession of any of the highway, except that part which was encroached upon by the dwelling. Where a substantial loss has been sustained, other than an outstanding paramount title, such detriment is sufficient to authorize a recovery of more than nominal damages: Webb v. Wheeler, 80 Neb. 438 (114 N. W. 636, 17 L. R. A. (N. S.) 1178, and note at page 1185). The fee conveyed to Russell was a substantial loss to a part of the premises attempted to be conveyed to the plaintiff, and it is unimportant whether or not the land described in his deed actually contained more or less than 120 acres. Except for the premises embraced in the Russell deed’, the plaintiff took title to the entire tract described in his deed, as laid out by authority of the surveyor general. The area of such realty is to be determined in the manner prescribed for ascertaining the contents of sections like that in the case at bar, which do not border on the north or west lines of a township.
The plaintiff has not been evicted from the dwelling, bnt he has sustained substantial loss by its encroachment upon the highway, and for that reason is entitled to the damages awarded on account of the road and the house.
*335The judgment will therefore he modified, by eliminating from the total award $7.24, the amount of the treble damages, and in all other respects affirmed.
Modified.
Me. Justice Bean and Mr. Justice McBride concur. Me. Justice Harris concurs in the result.