McCOBB v. PIONEER LUMBER CO., 143 Me. 400 (1947)

56 A.2d 73

WILLIAM P. McCOBB vs. PIONEER LUMBER COMPANY

Supreme Judicial Court of Maine. Waldo.
Opinion, December 15, 1947.

PER CURIAM.

This action of trespass comes forward for review on the defendant’s general motion and exceptions.

The plaintiff is the owner of a cutover wood lot lying on the northerly side of Colman Pond in Lincolnville across which for many years there has been an unused wood road now grown up to bushes and small hardwood trees. In the Spring and Summer of 1946 employees of the defendant corporation which was lumbering on the land of an adjoining owner, without license or authority, cut the bushes and

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trees on part of the plaintiff’s wood road, did some corduroying and grading and used the road to haul logs out to the main highway. About a cord of small birch trees were cut and none were carried away. There was no entry outside the limits of the wood road.

In the court below the jury were instructed that the action was based on R. S. 1944, Chap. 111, Sec. 9, and, it being admitted that there was a trespass, were directed to return a verdict for the plaintiff for the actual damages to the land and the trees cut in the wood road but not for injury to the rest of the plaintiff’s property or because of any intended use for cottage or house lots. The jury reported specially that the trespass was willful and awarded damages of $400 in their verdict. Double damages of $800 were allowed by the trial judge. The motion for a new trial is argued only on the ground that the damages are excessive.

An examination of the record leaves no doubt that the jury either misunderstood or entirely disregarded the instructions given them as to the elements and measure of damages to be considered. Small, indeed, was the worth of the trees cut in the wood road and the injury to the land cleared there could have been little more. The jury award far exceeded the actual damages caused by the trespass and the verdict is clearly wrong.

As the motion for a new trial must be granted consideration of the exceptions reserved is not necessary and they are dismissed without decision.

Motion sustained.
New trial granted.
Allowance of double damages set aside.
Exceptions dismissed.

Charles A. Perry, for plaintiff.

Charles T. Smalley, for defendant.

SITTING: STURGIS, C. J., THAXTER, MURCHIE, TOMPKINS, FELLOWS, JJ.

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