Opinion of the Court, per BROWN, J.

Very obviously it would not. Treating it as we must in the light of the fact now determined, that the only representation was that plaintiff had conveyed to his niece one-third of the surface of the ground only a ruling by the court that the deed conveyed one-third of the mine, would have shown that the plaintiff's statement was untrue. Beyond that it would have had no effect on the case. It would not have shown that it was fraudulent. That fact remained to be proven by independent evidence, and I find none in the case that would justify such a conclusion.

The deed is not free from ambiguity. The rulings of the trial court and the General Term show that the plaintiff's construction has support in the language of the instrument. Of course, if he so believed and honestly stated his belief, there would be no basis for a finding that he intended deceit.

There is no evidence in the case as to the claim made by the grantee under the deed. She did not appear to be in possession, nor was it shown that she had ever asserted any rights in the property antagonistic to or inconsistent with the plaintiff's representations. It did appear that the corporation to which the property was conveyed by defendants, failed to get a title from the government for the one-third described in the deed and we may assume that that was because of the existence of the deed, but it nowhere appears that it was because of any claim made by Hannah McIntyre.

For aught that appears in the evidence, Hannah McIntyre may have claimed no greater right in the property than the plaintiff said he had conveyed to her, and if such was the fact, there was, of course, no false representation and no deceit.

Innocence, therefore, is entirely consistent with the case made by the evidence, and under such circumstances, guilt cannot be found. Fraud must be proven and cannot be presumed, and we think that the evidence before us would not support any other conclusion than that plaintiff was entirely honest when he asserted that the rights that he had conveyed to his niece were in the surface of the ground only. We think it unnecessary to determine the proper construction of the

Statement of case.

deed, and that assuming for the purposes of this appeal that
the trial court's construction was not the correct one, the error
was not one which permits a reversal of the judgment.
The judgment should be affirmed.

All concur, except PARKER, J., not voting.
Judgment affirmed.

IRA DWIGHT, Respondent, v. THE ELMIRA, CORTLAND AND

NORTHERN RAILROAD COMPANY, Appellant.

In actions to recover damages for injuries to real estate caused by the unlawful separation and removal of something therefrom, the courts recognize two elements of damage. 1. The value of the thing taken, after separation from the freehold, if it have any. 2. The damage to the realty, if any, occasioned by the removal.

Where plaintiff asserts his right to go beyond the value of the thing taken

or destroyed, after severance from the freehold, so as to secure compensation for the damage done to his land, the measure of damages is the difference in value of the land before and after the injury.

In an action to recover damages for alleged negligence, resulting in setting on fire and destroying certain bearing fruit trees upon plaintiff's premises, plaintiff's witnesses were asked what the trees were worth at the time they were killed, and were permitted to answer under objection and exception. Held, error; that the evidence tended to show, not the value of the trees severed from the soil, but their value as bearing fruit trees connected with and dependent upon the soil; that this was not a proper measure of damages.

Whitbeck v. N. Y. C. R. R. Co. (36 Barb. 644), distinguished.

The distinction pointed out between this case and where forest trees fully grown or nursery trees are unlawfully severed from the soil and carried away, or where coal or minerals are removed therefrom.

(Argued February 2, 1892; decided March 15, 1892.)

APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 29, 1890, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.

This action was brought to recover damages for alleged negligence.

The facts, so far as material, are stated in the opinion.

Opinion of the Court, per PARKER, J.

James Armstrong for appellant. The referee adopted an erroneous rule as to the measure of damages. The rule as to the measure of damages when an injury is done to the inheritance is the difference in its value before and after the injury or trespass. (Argotsinger v. Vines, 82 N. Y. 308; Van Deusen v. Young, 29 id. 9; Bevier v. D. & H. C. Co., 13 Hun, 254.)

Raymond L. Smith for respondent. The evidence of plaintiff as to value was proper and competent. (Whitbeck v. N. Y. C. R. R. Co., 36 Barb. 644; Argotsinger v. Vines, 82 N. Y. 308-314.) The old rule of requiring a witness to state two values, one before and the other after, in case of an injury to real estate, in order to measure the damage, is not sound. Especially when as applied to trees and timber lands, for in modern times the value of timber is measured by the stumpage, which is equivalent to stating the value of the trees irrespective of the soil. (36 Barb. 644; 66 id. 88; 13 Hun, 260; 52 id. 353.)

PARKER, J. The judgment awards to the plaintiff five hundred and three dollars for damages occasioned by the defendant's negligence, in setting on fire and destroying twenty-one apple trees, two cherry trees, and two and one-half tons of standing grass, and also injuring seven apple trees, the property of plaintiff.

The only question presented on this appeal, is whether the proper measure of damages was adopted on the trial.

A witness called by the plaintiff was asked: Q. What were those twenty-one trees worth at the time they were killed? Objection was made that the evidence did not tend to prove the proper measure of damages, but the objection was overruled and the answer was: A. "I should say they were worth fifty dollars apiece." Similar questions were propounded as to the other trees; a like objection interposed; the same ruling made; answers to the same effect, except as to value, given; and appropriate exceptions taken.

Testimony was also given, tending to prove that the land

Opinion of the Court, per PARKER, J.

burned over by the fire was depreciated in value thirty dollars per acre.

The only evidence offered by the plaintiff touching the question of damages, was of the character already alluded to. Fruit trees like those which are the subject of this controversy, have little if any value after being detached from the soil, as the wood cannot be made use of for any practical purpose, but while connected with the land they have a producing capacity which adds to the value of the realty.

Necessarily the testimony adduced tended to show not the value of the trees, severed from the freehold, but their value as bearing trees, connected with and depending on the soil for the nourishment essential to the growth of fruit.

How much was the realty, of which the trees formed a part, damaged, was the result aimed at by the questions, and attempted to be secured by the answers.

Can the owner of an injured freehold, because the trees taken or destroyed happen to be fruit instead of timber trees, have his damages measured in that manner, is the question presented now for the first time in this court so far as we have observed.

The learned referee followed the decision in Whitbeck v. N. Y. C. R. R. (36 Barb. 644), in which the proposition is asserted that while fruit trees form a part of the land, the true rule is that if the thing destroyed has a value which can be accurately measured without reference to the value of the soil in which it stands, or out of which it grows, the recovery must be for the value of the thing destroyed, and not for the difference in the value of the land before and after such destruction. The court cited no authority for the conclusion reached, and our attention has not been called to any prior decision justifying its position. Nor has the Whitbeck case been approved in this court, although cited and distinguished in Argotsinger v. Vines (82 N. Y. 309). While the rule is undoubtedly as stated by the learned judge in the Whitbeck case, that a recovery may be had for the value of the thing destroyed, where it has a value which may be accurately measSICKELS-VOL. LXXXVII.

26

Opinion of the Court, per PARKER, J.

ured without reference to the soil in which it stands, he apparently overlooked the fact that fruit trees do not have such a value and the rule was, therefore, as we think wrongly applied.

Cases are not wanting to illustrate a proper application of that rule. Where timber, forming part of a forest, is fully grown, the value of the trees taken or destroyed can be recovered.

In nearly all jurisdictions this is all that may be recovered, and the reason assigned for it is that the realty has not been damaged, because the trees having been brought to maturity, the owner is advantaged by their being cut and sold, to the end that the soil may again be put to productive uses. (Sutherland on Damages, vol. 3, p. 374; Sedgwick on Damages [8th ed.], vol. 3, p. 45; Single v. Schneider, 30 Wis. 570; Webster v. Moe, 35 id. 75; Webber v. Quaw, 46 id. 118; Haseltine v. Mosher, 51 id. 443; Tuttle v. Wilson, 52 id. 643; W. W. Co. v. U. S., 106 U. S. 432; Graessle v. Carpenter, 70 Iowa, 166; Ward v. Carson R. W. Co., 13 Nev. 44; Tilden v. Johnson, 52 Vt. 628; Adams v. Blodgett, 47 N. H. 219; Cushing v. Longfellow, 26 Me. 306.)

In this state it is settled that even where full-grown timber is cut or destroyed, the damage to the land may also be recovered, and in such cases the measure of damages is the difference in the value of the land before and after the cutting, or destruction complained of. (Argotsinger v. Vines, 82 N. Y. 308; Van Deusen v. Young, 29 id. 36; Easterbrook v. Erie R. Co., 51 Barb. 94.)

The rule is also applicable to nursery trees grown for market, because they have a value for transplanting; the soil is not damaged by their removal, and their market value necessarily furnishes the true rule of damages. (Sedgwick on Damages [8th ed.], vol. 3, p. 48; Birket v. Williams, 30 Ill. App. 451.)

Coal furnishes another illustration of the rule making the value of the thing separated from the realty, although once a part of it, the measure of damages where it has a value after removal, and the land has sustained no injury because of it.