Werner, J.
The unanimous affirmance below, of the judgment under review, obviates the necessity of examining the facts further than is essential to the proper disposition of the exceptions upon which the appellant relies.
Appellant’s first challenge to the validity of this judgment is based up'on exceptions taken to the rule of damages laid down by the court. It is urged that it was error for the court to adopt the rule that the plaintiff was entitled to recover the difference between the value of the land with the wood cut off the two lots, as per contract, and the value of the land after all the cutting, including that which was unauthorized by the contract. In support of this contention the learned .counsel for the appellant cites many cases in other jurisdictions which lay down the rule that, for trespass 'in cutting full-grown timber, the market value of the wood is the measure of damages. This is undoubtedly the rule which still obtains in this state, and there is nothing to the contrary in
Dwight
v.
E., C. & N. R. R. Co.
(132 N. Y. 199), and the cases there cited. The reason for the rule that the value of the wood is the measure of damages in the wrongful cutting of mature timber, is that usually, in such cases, no injury is done to the land. When there is no such injury the value of-the wood is the accurate
and complete measurer of compensation. But this rule like all others has its exceptions. One need not wander very far outside of the record before us for an illustration of injury to a freehold in denuding it of timber, whether it be young or mature, or both. In such a case the boasted efficacy of the law to right every wrong would fall far short of its promise if the injured owner of the freehold were limited to a recovery of the naked value of the wood. It is this distinction between a case where the complaining owner may, or must be, satisfied with the mere value of the wood taken, and one where the loss of the wood taken is merely incidental to the greater injury done to the freehold, that is emphasized by the decision in
Dwight
v.
E., C. & N. R. R. Co. (supra).
In the cases before us the application of this distinction is made obvious by the terms of the contract. All trees upwards of six inches in diameter, except a few which were specifically reserved, were treated as mature and fit for cutting; while all below those dimensions were regarded as growing timber not to be interfered with further" than was necessary in the felling of the mature trees. W ithont further elaboration of the theory upon which the distinction above adverted to is founded, we conclude that if the learned trial court had consistently applied and adhered to the rule of damages challenged by the appellant it would not be disturbed by this court.
This leads us to the consideration of appellant’s next contention, which is that this rule, although once adopted, was not adhered to throughout the inquiry upon the subject of damages. The exceptions taken under this head raise one of the serious questions in the case. The first witness who testified upon the subject of damages was the plaintiff himself. Under proper objections and exceptions he was interrogated as to the value of his property before the execution of the contract of January 9, 1895, with the defendant, and then as to its value after all the cutting of timber. This inquiry was pursued with variations in the form of the questions until the court announced that “ all the rulings and proceedings in
respect to
the measure of damages in this action ” are stricken out. Thereupon the plaintiff was recalled and the following questions were put to him: “ What was the value of your property with the trees cut off over
6"
in diameter at the butt, and with such smaller trees cut and destroyed, also as were necessarily felled or destroyed in cutting and felling those over 6" in diameter at the butt, upon those two wood lots which were sold under the contract ? ” After answering this question the plaintiff was asked: “ What was the value of your property when the defendant finished felling trees thereon ? ” These same questions, with slight changes, were put to the same witness at different points in his examination. These latter- questions, as will be observed, were in exact accordance with the rule of damages above referred to as applicable to the facts of this case. Since the defendant had the right by virtue of its contract to cut a certain portion of plaintiff’s timber, the proper inquiry was: First, the value of the land after taking off and destroying the timber which the defendant was entitled to take and destroy, and, second, the value of the lands after all the cutting, both lawful and wrongful. But this adherence to the correct rule was of short duration and, when one Archer was called as a witness for the plaintiff, he was permitted, under objection and exception, to testify to the difference between the value of the land on January 1, 1895, and after the cutting. The same course was pursued in the examination of the witness Bard for the plaintiff. The vice of this method of examination is apparent in the fact that it utterly ignored the. right of the defendant to cut the timber specified in his contract. As we have said, the inquiry should have been as to the difference in the value of the land after defendant had cut and felled the timber it was entitled to cut and fell under the contract, and then the value of the land after all the unauthorized cutting. This was a matter, not merely of form, but of real substance. It may be, as urged by respondent’s counsel, that the court arrived at a just and accurate measure of damages. We cannot say,
however, that it was not influenced by the failure to eliminate from the inquiry that portion of the injury to the freehold which was authorized by the contract. It is suggested that, probably, the court deducted the contract price from the damages proven; but this is obviously answered by the reflection that the contract price and the value of the contract may be entirely different things. It was not the contract price that was to be considered, but the value of the timber taken under the contract. Ho allowance was made for this essential factor in the inquiry, and this we think was substantial error.
Again, it said that the court erred in applying two separate rules of damages by awarding to the plaintiff the damages to his freehold, and also the value of the mature wood and timber cut and taken from the lands not embraced in the contract. We can see no objection to the application of both rules in ■cases where the evidence clearly differentiates the facts which make the basis of each rule. If, for instance, it had been ■clearly shown that the cutting of the mature timber not within the terms of the contract was not an injury to the freehold, and had not been considered as a part of the general denudation of the woodland, there would be no difficulty in awarding for this item of loss its exact equivalent in damages, which would he the value of the wood and timber. It would be equally practicable to award damages for any injury to the freehold which is definitely shown to have no relation to the mere cutting and taking of mature wood and timber. It is not apparent, however, that this distinction was observed in the admeasurement of damages.
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Werner, J.
The unanimous affirmance below, of the judgment under review, obviates the necessity of examining the facts further than is essential to the proper disposition of the exceptions upon which the appellant relies.
Appellant’s first challenge to the validity of this judgment is based up'on exceptions taken to the rule of damages laid down by the court. It is urged that it was error for the court to adopt the rule that the plaintiff was entitled to recover the difference between the value of the land with the wood cut off the two lots, as per contract, and the value of the land after all the cutting, including that which was unauthorized by the contract. In support of this contention the learned .counsel for the appellant cites many cases in other jurisdictions which lay down the rule that, for trespass 'in cutting full-grown timber, the market value of the wood is the measure of damages. This is undoubtedly the rule which still obtains in this state, and there is nothing to the contrary in
Dwight
v.
E., C. & N. R. R. Co.
(132 N. Y. 199), and the cases there cited. The reason for the rule that the value of the wood is the measure of damages in the wrongful cutting of mature timber, is that usually, in such cases, no injury is done to the land. When there is no such injury the value of-the wood is the accurate
and complete measurer of compensation. But this rule like all others has its exceptions. One need not wander very far outside of the record before us for an illustration of injury to a freehold in denuding it of timber, whether it be young or mature, or both. In such a case the boasted efficacy of the law to right every wrong would fall far short of its promise if the injured owner of the freehold were limited to a recovery of the naked value of the wood. It is this distinction between a case where the complaining owner may, or must be, satisfied with the mere value of the wood taken, and one where the loss of the wood taken is merely incidental to the greater injury done to the freehold, that is emphasized by the decision in
Dwight
v.
E., C. & N. R. R. Co. (supra).
In the cases before us the application of this distinction is made obvious by the terms of the contract. All trees upwards of six inches in diameter, except a few which were specifically reserved, were treated as mature and fit for cutting; while all below those dimensions were regarded as growing timber not to be interfered with further" than was necessary in the felling of the mature trees. W ithont further elaboration of the theory upon which the distinction above adverted to is founded, we conclude that if the learned trial court had consistently applied and adhered to the rule of damages challenged by the appellant it would not be disturbed by this court.
This leads us to the consideration of appellant’s next contention, which is that this rule, although once adopted, was not adhered to throughout the inquiry upon the subject of damages. The exceptions taken under this head raise one of the serious questions in the case. The first witness who testified upon the subject of damages was the plaintiff himself. Under proper objections and exceptions he was interrogated as to the value of his property before the execution of the contract of January 9, 1895, with the defendant, and then as to its value after all the cutting of timber. This inquiry was pursued with variations in the form of the questions until the court announced that “ all the rulings and proceedings in
respect to
the measure of damages in this action ” are stricken out. Thereupon the plaintiff was recalled and the following questions were put to him: “ What was the value of your property with the trees cut off over
6"
in diameter at the butt, and with such smaller trees cut and destroyed, also as were necessarily felled or destroyed in cutting and felling those over 6" in diameter at the butt, upon those two wood lots which were sold under the contract ? ” After answering this question the plaintiff was asked: “ What was the value of your property when the defendant finished felling trees thereon ? ” These same questions, with slight changes, were put to the same witness at different points in his examination. These latter- questions, as will be observed, were in exact accordance with the rule of damages above referred to as applicable to the facts of this case. Since the defendant had the right by virtue of its contract to cut a certain portion of plaintiff’s timber, the proper inquiry was: First, the value of the land after taking off and destroying the timber which the defendant was entitled to take and destroy, and, second, the value of the lands after all the cutting, both lawful and wrongful. But this adherence to the correct rule was of short duration and, when one Archer was called as a witness for the plaintiff, he was permitted, under objection and exception, to testify to the difference between the value of the land on January 1, 1895, and after the cutting. The same course was pursued in the examination of the witness Bard for the plaintiff. The vice of this method of examination is apparent in the fact that it utterly ignored the. right of the defendant to cut the timber specified in his contract. As we have said, the inquiry should have been as to the difference in the value of the land after defendant had cut and felled the timber it was entitled to cut and fell under the contract, and then the value of the land after all the unauthorized cutting. This was a matter, not merely of form, but of real substance. It may be, as urged by respondent’s counsel, that the court arrived at a just and accurate measure of damages. We cannot say,
however, that it was not influenced by the failure to eliminate from the inquiry that portion of the injury to the freehold which was authorized by the contract. It is suggested that, probably, the court deducted the contract price from the damages proven; but this is obviously answered by the reflection that the contract price and the value of the contract may be entirely different things. It was not the contract price that was to be considered, but the value of the timber taken under the contract. Ho allowance was made for this essential factor in the inquiry, and this we think was substantial error.
Again, it said that the court erred in applying two separate rules of damages by awarding to the plaintiff the damages to his freehold, and also the value of the mature wood and timber cut and taken from the lands not embraced in the contract. We can see no objection to the application of both rules in ■cases where the evidence clearly differentiates the facts which make the basis of each rule. If, for instance, it had been ■clearly shown that the cutting of the mature timber not within the terms of the contract was not an injury to the freehold, and had not been considered as a part of the general denudation of the woodland, there would be no difficulty in awarding for this item of loss its exact equivalent in damages, which would he the value of the wood and timber. It would be equally practicable to award damages for any injury to the freehold which is definitely shown to have no relation to the mere cutting and taking of mature wood and timber. It is not apparent, however, that this distinction was observed in the admeasurement of damages. On the contrary, the ■context of the court’s decision seems to justify the argument that the plaintiff has recovered for the loss of his mature wood and timber not embraced in the contract, in addition to the damages for injury to the freehold. In this condition of the record the judgment cannot be upheld.
There is another phase of this question of damages, so far as it relates to the cord wood, sawed logs and mature timber not within the contract, which bears upon the scope of
the injunction to which the plaintiff claims to be entitled. In its fifth conclusion of law the court finds, among other things, that the plaintiff is entitled to judgment restraining the defendant from removing any of the timber trees, sawed logs or cord wood cut therefrom upon the two lots not spec-. ified in the contract. This conclusion was duly excepted to by the defendant. It must be assumed, we think, that this conclusion refers to the mature timber, sawed logs and cord wood, for the cutting of which the plaintiff was awarded the sum of $224 damages. It goes without saying that the plaintiff could not recover for the value of the wood wrongfully taken and still retain title thereto so as to entitle him to prevent its removal by the defendant. By electing to sue and recover for its value the plaintiff must be held to have waived the tort, and he must rely upon the contract of sale which, in such a case, the law implies.
(Terry
v.
Munger,
121 N. Y. 161.) That part of the judgment which restrained the defendant from removing the’ wood, the value of which the plaintiff had elected to recover, was, therefore, inconsistent with the relief already granted.
We have reviewed this case at greater length than is usual when a single exception is sufficient to require a reversal of the judgment in the hope that upon another trial the plaintiff may avoid the errors which have rendered the first one fruitless of substantial results.
The judgment of the court below should he reversed and a new trial granted, with costs to abide the event.
Parker, Ch. J., Gray, O’Brien, Haight and Landon, JJ., concur; Cullen, J., not sitting.
Judgment reversed, etc.