THIRD DEPARTMENT, JANUARY TERM, 1897. [Vol. 12. owner has no longer the right to keep it, and from which he must remove it to reduce it to his own possession, and avail himself of his right of property in it. "When the property so in place can no longer be there used by the owner, and he is subject to summary removal, its value will be estimated in case of conversion with reference to those facts; it will be estimated with reference to the condition in which the property will be when removed, or as subject to the obligation or necessity of removal." (3 Suth. on Dam. § 1114; Moore v. Wood, 12 Abb. Pr. 393.) I think, therefore, that the court erred in refusing to charge the jury that the value of the property on the 12th of March, 1892, was the value as it then existed "when taken out from these premises, and in declining to charge that that value is to be determined without reference to what its value would be if it was to be left in these premises, and to be used upon the premises," and in declining to charge that, under the circumstances of this case, the value of this property is to be determined without reference to what its value would be if it was used in or left upon the premises. The fact of these refusals to charge, coupled with what the court did charge, it seems to me gave the jury to understand that they had the right, as the measure of damages to be given to the plaintiff, to award the value of such property as it was then and there in use by the defendants. And it would appear, from the verdict that was rendered, that the charge was probably so construed by the jury, and that they measured their verdict accordingly, and I do not think that the error was cured by the reduction of the verdict made by the court, but am of the opinion that for such error the judgment should be reversed. Having arrived at this conclusion, it is unnecessary to discuss the other questions upon this appeal. The judgment and order should be reversed, and a new trial granted, costs to abide the event. All concurred, except LANDON, J., not sitting. Judgment and order reversed, and a new trial granted, costs to abide the event. App. Div.] THIRD DEPARTMENT, JANUARY TERM, 1897. MARY S. CLARK and Others, Respondents, v. MARTIN L. HOLDRIDGE and JOHN WEST, Appellants. A grant from the State-proof of its possession not required — measure of damages where trees are cut through mistake. A grant from the State, as sovereign proprietor, is sufficient evidence of its title, in the absence of proof that the title of the State had in some way been divested prior to the grant. Where the cutting down of trees on another person's land is the result of inadvertence or mistake, and the wrong was not intentional, the value of the trees as standing trees, and not the value of the logs, is the true measure of damages. APPEAL by the defendants, Martin L. Holdridge and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Greene on the 27th day of January, 1896, upon the report of a referee. The action was brought to recover treble damages for trees cut by the defendants and for an injunction. The judgment was for single damages and for an injunction. Edward J. Meegan, for the appellants. James B. Olney, for the respondents. LANDON, J.: Unless the tax title to the thirty acres, upon which the defendants rely, is good, the plaintiffs established title in themselves to the whole of lot 63, containing 589 acres and not subdivided. It includes the 30 acres in question upon which the defendants cut down the trees and removed 400 logs cut therefrom. The plaintiffs deduce their title by successive conveyances, beginning with a grant from the State in 1816. The land is mountain woodland, in Greene county, and has never been inclosed. It is objected that title was not shown to be in the State in 1816. The grant from the State as sovereign proprietor is sufficient evidence of its title in the absence of evidence that, prior to the grant, the title of the State had in some way been divested. (Wendell v. Jackson ex dem. The People, 8 Wend. 183; People v. Denison, 17 id. 312; People v. The Rector, etc., of Trinity Church, 22 N. Y. 44.) No such evidence was given, and thus plaintiffs showed title in themselves. 12 613 22ap361 34 THIRD DEPARTMENT, JANUARY TERM, 1897. [Vol. 12. The defendants claim title under the sale by the Comptroller of the State of the thirty acres in question for unpaid taxes to M. Henderson, who assigned to Maurice E. Viele. The Comptroller's deed was never recorded and is lost. The defendants produced the certificate of the Comptroller, dated November 28, 1859, showing that on that day, pursuant to the statutes in relation to the assessment and collection of taxes, "M. Henderson has purchased the following lot of land situate in the county of Greene, S. E., thirty acres to be laid out at the expense of the purchaser, namely: State Land Tract, Lot 63, 134 a., for which he has paid the sum of two and dollars," and further stating that the purchaser would be entitled to a deed of the land if it was not redeemed within two years. An assignment by M. Henderson of the certificate to Maurice E. Viele was shown. Also, an extract from "the book of tax sales of lands of non-residents, made by the Comptroller in the year 1859,” which states that for the unpaid tax of one dollar and four cents for the year 1855 upon lot 63, State land tract, 134 acres in the town of Hunter, Greene county, the southeast part, containing thirty acres, was sold to M. Henderson and conveyed September 15, 1863, to Maurice E. Viele. Also, deed from Viele to Peck in 1893, and from Peck to the defendant Holdridge, of all the right, title and interest which Viele acquired by virtue of the deed from the Comptroller to him. Holdridge obtained the deed from Peck in June, 1893. In September of that year he caused thirty acres in the southeast corner of this tract to be surveyed, and then he conveyed it by metes and bounds to the defendant West. Then the defendants went upon the premises, erected a shanty and began to fell the timber. In December following, the plaintiffs, upon discovering the acts of the defendants, brought this action. If we assume, as I think we may, from the Comptroller's certificate and entry, that the Comptroller gave a deed in 1863 to Maurice E. Viele, we must assume that it was of the land sold (Chap. 427, Laws of 1855, § 63; R. S. [9th ed.] 2151), namely," the following lot of land situate in the county of Greene, S. E., thirty acres, to be laid out at the expense of the purchaser, namely, State Land Tract, Lot 63, 134 a." Lot 63 contained 589 acres. Where were the 134 acres of which the southeast thirty were sold? We may assume, I think, from the official entry in the Comptroller's App. Div.] THIRD DEPARTMENT, JANUARY TERM, 1897. book of non-resident tax sales (Van Bergen v. Bradley, 36 N. Y. 318) that the Comptroller's deed gave the further particulars contained in the assessment roll, reciting that the sale was for the unpaid tax of one dollar and four cents for the year 1855, upon 134 acres in the town of Hunter, Greene county, lot 63, State land tract, the southeast part. It appears that, in 1855, lot 63 lay partly in the town of Hunter and partly in the town of Jewett, but how much lay in one town and how much in the other, or where the town boundary passed through the lot, is not shown. The sides of the southeast corner of lot 63, as shown by the map in evidence, form an obtuse angle of 125 degrees. If thirty acres should be laid out as near to that corner as possible, it would be done by drawing a curved line, by means of a radius from the corner, of sufficient length to include that area, and it would, of course, extend an equal distance upon the two sides which form the corner. This would be in great part a different parcel from that laid out and claimed by the defendants, the greater part of which lies along the southerly side of the lot. Perhaps the defendants laid it out with respect to the boundary line between the two towns, but this is not shown. The assessment roll of the town of Hunter for 1855 of non-resident lands is, in the proper columns and under the proper captions, as follows: "State Land Tract, Lot No. 63, 134 acres, 134 (dollars), 99 (cents)." The statute requires that the Comptroller's certificate of sale "shall describe the lands purchased." (Chap. 427, Laws of 1855, § 66, subd. 3; R. S. [9th ed.] 2152.) "When the line between * divides a farm or lot, * if unoccupied, each part shall be assessed in the town in which the same shall lie." (1 R. S. 389, § 4; practically unchanged in this respect, R. S. [9th ed.] 1681.) And where a part only of the whole tract is liable to taxation, "that part or the part not liable must be particularly described." (1 R. S. 391, § 13, subd. 3; R. S. [9th ed.] 1684.) two towns * * The assessment did not particularly describe the part of lot 63 liable to be taxed in the town of Hunter. (Zink v. McManus, 121 N. Y. 259, and cases cited.) The description in the Comptroller's certificate is still more vague, for it is an imperfectly described part of an imperfectly described part of lot 63. The additional particulars in the deed from the Comptroller do not supply the particulars necessary to locate the thirty acres. The defendants, therefore, THIRD DEPARTMENT, JANUARY TERM, 1897. [Vol. 12. acquired no title by virtue of the deed. (Oakley v. Healey, 38 Hun, 244.) To hold that a title, illegal in its inception, becomes valid by the neglect for thirty years to record or assert it, seems opposed to sound principles. But, without inquiring what effect, as evidence of the Comptroller's right to sell the thirty acres, the unrecorded deed of the Comptroller and his certificate of sale should receive, when, for more than thirty years after they were given, no rights were claimed under them, we must hold that on their face they do not purport to convey the thirty acres here in question. The defendants, having no title or right to possession, were, therefore, trespassers as against the plaintiffs, who had the valid title. (Randall v. Sanders, 87 N. Y. 578.) The Code (§ 1667) gives to the owner of land an action against any person who cuts down or carries off any tree or timber on such land without the owner's leave. The referee allowed the plaintiffs forty-five cents each for 400 logs which the defendants carried away, that being, as he found, their value as they lay upon the premises. He found that, apart from the value of the logs, the damages to the premises were nominal. He also found that the defendants had probable cause to believe that the land belonged to them. The defendants claim that this recovery embraces the additional value which the defendants by cutting and other labor imparted to the logs -- about ten cents each log-and that the true measure of damages, where the defendants have acted in good faith, is the value of the trees standing on the land, or the difference in the value of the land before and after the cutting, as the one or the other measure under the circumstances best affords the plaintiffs full compensation. As, apart from the value of the trees cut, no damage was done to the freehold, and as the defendants acted in good faith, we think the true measure of damages is the value of the trees as standing trees, and not their value as logs. (Dwight v. Elmira, C. & N. R. R. Co., 132 N. Y. 199.) The rule is thus stated in Wooden Ware Co. v. United States (106 U. S. 434): "Where the trespass is the result of inadvertence or mistake, and the wrong was not intentional, the value of the property, when first taken, must govern; or, if the conversion sued for was after value had been added to it by the work of the defendant, he should be credited with this addition." Forty dollars should be deducted from the recovery. |