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Any person who cuts down, deadens,
girdles, boxes, destroys or takes away, if already cut down or fallen
fence is an outstanding symbol of possession which, regardless of property descriptions,
may become a boundary if it is recognized as such for a certain length of
•Actions under this section may be
joined with actions for trespass, for cutting, injuring or removing
•The issue regarding an unlawful double assessment of
punitive damages was raised for the first time in the Wilsons’ post-judgment
motion. Because the error, if any, now
alleged was not preserved below, it is not subject to appellate review.
•Long been regarded as penal in nature,
they are subject to a strict construction,
and the requisite intent must be clearly shown before liability may be
•The existence of a reasonable belief that the cutting is
authorized or that the trees are on one’s own property constitutes a defense
to the action.
•Such a belief, even if unreasonable, will preclude
liability under these statutes unless the belief is “so patently unreasonable
as to constitute a reckless disregard for the ownership of the trees.”
held not answerable for willful wrong of his agent, in which he did not
participate, in knowingly and willfully cutting defendant’s trees.
Not a single case citing this statute
could be found in a search of Westlaw or Lexis even though the statute has
been in the Code since 1939.
•The correct measure of damages for
trespass on land is the difference between the value of the land immediately
before the trespass and the value immediately after it.
worth of such trees is not the proper measure of damages in a civil action for
trespass to land.
•The trial court was authorized to consider the cutting
and damaging of the 441 trees and saplings, the photographs which were
introduced, the cleanup costs, the nature of the land and its use, and all
other competent evidence.
•The assessment of damages, where the
damages are shown by competent evidence, is within the sound discretion of the
jury, and those damages, once assessed, are presumed correct. Particularly is this true where the jury, by
way of a special verdict, based its award of damages on the trespass and
conversion claim and not on the statutory penalty claim.
trial court’s findings need only be supported by evidence which is credible
and that its determination will not be disturbed on appeal unless it is clearly
erroneous and palpably wrong or unjust.
•The method of computation of the
verdict amount based on the evidence will not be questioned on review, either
by the trial court on post-judgment motion or by this Court (Supreme Court) on
When a trespass is perpetrated in a
rude, wanton, reckless, or insulting manner, or is accompanied by
circumstances of fraud, malice, oppression, or aggravation, or even with gross
negligence, the party injured is entitled to recover punitive damages.
purpose of punitive damages in not to compensate the plaintiff but to punish
the wrongdoer and to deter the wrongdoer and others from committing similar
wrongs in the future.
When considering punitive damages, however, the
defendant’s right to fair punishment must be considered above the plaintiff’s
right to recover the fullest amount of punitive damages.
Court has recognized that it is possible for a verdict to be excessive even when
it is the result of a properly functioning jury.
For example, in assessing punitive damages,
the jury is not allowed to consider the financial position of the
Other civil actions against the same defendant, based on
the same conduct, should also be taken into account in mitigation of the
punitive damages award.