delivered the opinion of the court.

The appellee is the owner of a lot of land in the city of Brookhaven, upon which were two shade and ornamental trees *670growing upon the line between the sidewalk and street. The tops of these trees were cut out, one of them some eight feet, and the other something less, by the appellant telephone company, because they were in the way of its telephone line. The appellee was applied to by the servants of the appellant for permission to top his trees, and he refused such permission and forbade them from cutting his trees. The appellant had the authority of the city council and the direction of the city marshal, and relied upon that as its justification. The actual damages were small. The jury gave punitive damages, and from a judgment therefor the telephone company appeals.

The main question in the case is whether the appellant company is liable for punitive damages. The rule in this state is that a wrongful act purposely done, evincing malice, fraud, oppression or wilful wrong, will entitle the injured party to punitive damages. If the servants of the telephone company, in the presence of the appellee, had, in disregard of his protest, cut and mutilated his trees, we think such a wilful wrong had been inflicted upon him as would have justified exemplary damages; that they refrained from so doing in his presence, but returned in his absence and committed the injury forbidden, is and was a fraud upon his rights that equally authorized the finding of punitive damages.

That the appellant had the right of eminent domain, which it might have invoked against the appellee, is no excuse for the acts complained of. Not having resorted to that authority, all its acts were wrongful db initio, and constituted it a naked and wilful trespasser. Exemplary damages are allowable in actions of trespass to real property. Sutherland on Damages, sec. 1031; Railroad Co. v. Fink, 18 Neb., 82; Railroad Co. v. Kernodle, 54 Ind., 314; Best v. Allen, 30 Ill., 30; Storm v. Green, 51 Miss., 103. The verdict of the jury'is excessive, and indicates passion or partiality on their part, and unless the excess over five hundred dollars be remitted, the judgment will be reversed and a new trial awarded.