Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
In this action for trespass to plaintiffs' real property in Rahway, New Jersey, resulting from the wrongful erection of a fence thereon, the jury in the Union County Court awarded plaintiffs $900 as compensatory damages against all defendants. In addition, the jury allowed punitive damages totalling $4,300. The sum of $300 was assessed against the defendants Smith, plaintiffs' neighbors, who ordered the fence erected; $1,000 against the defendant Cohill, the contractor who erected the fence; and $3,000 against the defendant Lawrence, a local surveyor, whose erroneous staking of the boundary line between the Smith and La Bruno properties caused the Smiths' fence to be erected on the La Bruno property.
The trespass, the award of compensatory damages therefor, and the quantum thereof are not disputed on this appeal. No argument has been made that the amount of the respective punitive damages is excessive. The appeal is concerned solely with the propriety of the award of punitive damages.
The defendant property owners, the Smiths, and the defendant contractor, Cohill, contend that punitive damages against them are not justified, because the erection of the trespassing fence was in reliance upon and the result of a
surveyor's mistake. The defendant surveyor, Lawrence, argues that punitive damages do not lie against a surveyor for improperly locating a common boundary line upon which a fence was mistakenly placed.
The complaint, which specifically demanded compensatory and punitive damages, charged that the plaintiffs had called upon the defendants, before the fence was erected, to desist from the proposed construction and endeavored to have the defendants inspect a survey previously made by Lawrence. It is then alleged in paragraph 4 of the complaint:
"Nevertheless the defendants persisted in the threatened trespass and intentionally, willfully and therefore maliciously and also recklessly and wantonly did enter upon the land and property of the plaintiffs and construct a fence on plaintiffs' property and damaged and destroyed a masonry patio, sidewalks, a flower bed and other plantings and other property of the plaintiffs." (Emphasis supplied)
Obviously, if the trespass by the defendants was in the aggravated form, as characterized by the above descriptive language, the jury was justified in awarding punitive damages, in addition to those necessary to compensate plaintiffs for their actual damages sustained. The concept of punitive damages for a willful and wanton disregard of another's rights, or for a malicious trespass or other wrong, has long been established in our law.
In Winter v. Peterson , 24 N.J.L. 524 (Sup. Ct. 1854), an overseer who had maliciously, without authority, cut down a tree, was held liable for punitive damages. See 15 Am. Jur., Damages , §§ 279 to 282; 52 Am. Jur., Trespass , § 67; and 87 C.J.S. Trespass § 112, indicating that, in the domain of trespass upon real property, upon a showing of an intention bordering on malice, punitive damages are recoverable. In Trainer v. Wolff , 58 N.J.L. 381 (E. & A. 1895), defendant was required to pay punitive damages when he removed weather boards from plaintiff's house, without plaintiff's permission, in order effectively to raise his
own house another story. The court there said that "the finding of the jury established the fact that the act was done with a wanton and reckless disregard" of plaintiff's rights. In Dreimuller v. Rogow , 93 N.J.L. 1, 3 (Sup. Ct. 1919), the court referred to the right to award exemplary damages in "all trespasses committed against the property of another, which involves malice or a wanton and reckless disregard of the rights of the person against whom the tortious act is committed." Also see Eatley v. Mayer , 9 N.J. Misc. 918, 154 A. 10 (Cir. Ct. 1931), not a trespass case, in which it was said that "gross negligence does not support a charge for punitive damages, while a charge of willful and wanton disregard does support such a charge. The test is the intent with which the act is committed."
The cases would thus seem to indicate that one or the other of two factors must be found before punitive damages can be awarded in a suit for trespass to real property, viz.: (1) actual malice, which is nothing more or less than intentional wrongdoing -- an evil-minded act; or (2) an act accompanied by a wanton and willful disregard of the rights of another. Clearly, each case must be governed by its own peculiar facts. Accordingly, we must examine the facts ...