Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—The plaintiff in this case seeks to recover from the defendant damages alleged to have been caused by the unlawful cutting of about eight maple trees and one pear tree on her lands and premises, situated in Mill Creek Hundred in this county, on the fourteenth day of June, 1907. The plaintiff claims that the saidmaple trees which stood in front of her lawn were of much value for shading and ornamental purposes, and that the pear tree was valuable and profitable on account of the fruit it bore; that the defendant company, without legal justification or necessity, and against the will and consent of the plaintiff, by its agents, servants and employees, at the time aforesaid, carelessly, negligently and unskillfully did cut and clip the said trees, and did remove the tops thereof, by means whereof the said maple trees were marred, injured and damaged, and rendered almost useless for shading and ornamental purposes, and the plaintiff was deprived of great gain and profit by reason of the injury and damage to the pear tree, and that the lands and premises of the plaintiff were and are greatly depreciated and reduced in value.
The plaintiff claims also that the cutting of said trees was done wilfully and with gross negligence, and that she is, therefore, entitled to recover what are known as exemplary, vindictive or punitive damages.
The defendant company denies that the cutting of the plaintiff’s trees was done unlawfully or without necessity, and contends that it was done with proper care and with the acquiescence of the plaintiff, and that the trees were not injured in any way by the acts of the defendant, and that the lands and premises of the plaintiff were not thereby depreciated in value.
The defendant claims that the trimming or cutting it did to the trees was necessary for the proper use and operation of its wires and telephone system along the highway, that no more cutting was done than was necessary for that purpose, and that the cutting or trimming was permitted in consideration of the company’s putting a telephone in the house of the plaintiff.
It is not denied by the company that the plaintiff, being owner of the fee, had a right to the trees growing on the land upon her side of the road or highway, for all purposes not incompatible with the proper and lawful use of the highway.
But if the owner of such fee by an agreement made or assented to by such owner, or made by some one else acting under the authority of such owner, gives a telephone company the right to construct a telephone line upon or across his lands, such company has the right to cut or trim trees standing upon the land over which the right of way is given, so far, and to such extent, as may be reasonably necessary for the proper construction and operation of such line.
We may say to you that the trimming or cutting of shade trees along the public highway, without the knowledge or con sent of the abutting owner of the fee in such highway, or without having obtained a right of way from such abutting owner, constitutes an unlawful act for which damages may be allowed the party aggrieved.
A telephone company may acquire the right to trim trees of individuals by agreement entered into with the owner of the land or one who has the right to manage and control it to that extent. And a wife may adopt or ratify acts done or contracts made by her husband in respect to her separate estate without authority, and in case of such ratification she is as fully bound as if her husband had been her duly authorized agent in the first instance; and such ratification may be shown or effected by acquiescence on the part of the wife.
The jury are the exclusive judges of the evidence, and should carefully consider all the facts and circumstances surrounding the case, as shown by the testimony.
If, after such careful consideration of the evidence, you are satisfied by the weight of the testimony that the plaintiff did not ratify or acquiesce in any agreement made by her husband, or any one else, granting to the defendant a right of way over her lands for the construction and operation of a telephone line, or that the trees might be cut, your verdict should be in favor of the plaintiff, provided you think she sustained some injury or damage on account of the cutting of the trees. If the trees were not in any wise, injured, or the lands of the plaintiff at all depreciated in value by reason of the acts of the defendant in the cutting, or trimming of the trees, you could not, of course, return a verdict for the plaintiff, because she must show that she has sustained some damage before she can recover in this action.
The plaintiff in this case claims not only compensatory damages, but also exemplary or punitive damages. It is the law that in actions of this character the jury may, if they are satisfied from the testimony they should do so, award what are known in the law as exemplary or punitive damages. But it is for the jury in every case to determine from the testimony, first, whether they shall award to the plaintiff compensatory damages; and, second, whether in addition to such damages ,if given, they should award also exemplary or punitive damages. To justify you in giving exemplary or punitive damages you must be satisfied from fhe testimony that the injury complained of was not only committed by the defendant and was wrongful and unlawful, but that it was also malicious, or wilful and wanton in its character.
If you should find for the plaintiff and for compensatory damages only, the measure of such damages would be the difference between the value of the land before and after the cutting of the trees, as shown by the testimony.
Verdict for plaintiff for $250.