Opinion
March 11, 1930.
April 18, 1930.
Real estate — Boundary line — Trees — Contribution for planting — Removal of — Action for — Evidence — Measure of damages.
The plaintiff brought an action in trespass for the permanent injury done to his land by the defendant in cutting down a row of hedge trees planted on the boundary line between their properties and claimed as his damages the difference in value of his property before and after the cutting down of the hedge. The evidence established that the trees were planted wholly on defendant's land.
Held: That as the case was presented and tried the defendant was entitled to binding instructions.
Where adjoining property owners contribute equally to the cost of planting hedge trees on the boundary line between them, and one of them, in violation of the agreement, places them wholly on his own ground, the other has an immediate cause of action for breach of the agreement, but it is not in the nature of trespass quare clausum fregit, and his damages are measured by his interest in the value of the trees.
Appeal No. 19, March T., 1930, by defendants from judgment of C.P., Snyder County, October T., 1928, No. 24, in the case of George W. Mease v. C.W. Dinius and John W. Bingaman.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and GRAFF, JJ. Reversed.
Trespass to recover for diminution of the market value of property. Before POTTER, P.J.
The facts are stated in the opinion of the Superior Court.
Verdict for the plaintiff in the sum of $291 and judgment entered thereon. Defendants appealed.
Error assigned, was the refusal of the defendant's motion for judgment non obstante veredicto.
J.P. Carpenter, and with him J.G. Weiser, for appellant.
A. Francis Gilbert, for appellee.
Argued March 11, 1930.
This action was founded on the allegation that the defendants had unlawfully cut down some arbor vitae trees which had been planted at the joint expense of plaintiff and the defendant Dinius on the dividing line between their properties; and damages were claimed for the diminution in market value of the plaintiff's property caused by such illegal and permanent injury to his real estate. Bingaman was only an employe of the other, and real, defendant.
The evidence on the trial failed to support the action declared on. The most that plaintiff would swear to was that it had been agreed between the parties that the tree plants should be placed on the boundary line; he did not know whether this had been done. The defendant testified that they were planted wholly on his land, and the uncontradicted evidence of the surveyor sustained his contention.
The court below was of opinion that it made no difference on whose land the trees were planted and so instructed the jury. We cannot agree with this conclusion. If the parties had agreed that the young trees or slips were to be planted on the boundary line, and defendant, in violation of this agreement, had placed them wholly on his own land, the plaintiff would have had an immediate cause of action, but it would not have been trespass in the nature of trespass quare clausum fregit, and the damages would not have been measured on the basis of a permanent injury to plaintiff's land but by his interest in the value of the trees. In such case plaintiff would have been injured by the defendant's breach of his agreement, not by his subsequent cutting down of the trees. The plaintiff acquired no title to defendant's soil by reason of the defendant's planting the trees on his own land, even though both contributed equally to their cost. The doctrine of estoppel cannot be applied so as to pass title to lands: Washabaugh v. Entriken, 36 Pa. 513; Miranville v. Silverthorn, 48 Pa. 147. On the other hand, if the parties had agreed to plant the trees on defendant's land, the plaintiff's interest in them would have been by way of a license, (McFerren v. Deardorff, 69 Pa. Super. 154) and would not support the claim of the plaintiff in this action; and no evidence of damage other than diminution in value of plaintiff's real estate was given.
We are of opinion that as the case was presented and tried the court below should have affirmed defendant's fifth point, requesting binding instructions in his favor.
The first assignment of error, modified so as to be limited to that point, (See Superior Court Rule 22), is sustained and the judgment is reversed.