27 Wash. 63 | Wash. | 1901
The opinion of the court was delivered by
This action was brought for the value of 1,000 cords of wood, alleged to have been wrongfully taken from plaintiff’s land by one Thomas Diffley, and by Diffley shipped to Everett and sold to the defendant. Plaintiff claims the value of the wood at Everett, which is $2.32-| per cord, while defendant maintains, as the lower court held, that plaintiff was entitled to the value of the timber standing on the premises, which is ten cents per cord. The undisputed facts in the case are as follows: On June 24, 1897, Stephen Parr and wife were the owners and in possession of 160 acres of timber land in Snohomish county. On that date they sold, and, by a contract in writing, in consideration of $600, conveyed, all the timber upon the tract of land to a copartnership composed of L. H. Cyphers and Ulmer Stinson, under the name of Cyphers & Stinson. In this contract of sale it was agreed that the timber should be removed from the land within two years after the date of the contract. A right of way over the
There is no contention in this case that there were any special damages to the land, or any wilful or malicious trespass. The complaint alleges a wrongful entry upon the premises, and the conversion of 1,000 cords of wood, of the value of $2,600. The undisputed facts do not show any wilful or malicious trespass. It is true, the time expressed in the contract for removing the timber expired on June 24, 1899, and that in April or May of 1900, Diffley was notified by plaintiff not to remove any more timber ; but these facts do not make Diffley a wilful or malicious trespasser in taking the timber, because he had purchased it, and supposed in good faith that he was still the owner of it. If the action had been brought under the statute which provides for treble damages in case of wilful or malicious trespass, the bona ftdes of Diffley would have been a question for the jury, under §§ 5656 and 5657, Bal. Code. But since the action is one merely for damages in taking and converting the wood alleged in the complaint, the question of mala fides is not for the jury. It
The great weight of authority in the United States in regard to the measure of damages in cases of this character is as expressed in Wooden-ware Co. v. United States, 106 U. S. 432 (1 Sup. Ct. 398), where it is held that where the defendant was an unintentional or mistaken trespasser, or his innocent vendee, the measure of damages is the value at the time of conversion, less what the labor and expenses of his vendor have added to its value. In Ayres v. Hubbard, 57 Mich. 322 (23 N. W. 829, 58 Am. Rep. 361), the court in a case similar to the one at bar, says:
“The general rule of damages is the value of the property lost under such circumstances at the time and place of conversion,” and “Complete indemnity for the actual loss sustained in this ease by the plaintiff is what he was entitled to recover.”
In Cushing v. Longfellow, 26 Me. 306, it was held that the plaintiffs have no right to select any other place than that where the injury was originally done, to enhance the value of the article taken. The value of the property severed from the freehold is that which it has immediately after being severed. In Carroll v. More, 30 Wis. 574, it was held that where no circumstances of fraud, malice, or wanton injury are done by the trespass, the value of the logs cut, or, as it is sometimes called, the value of the stumpage, would seem to be the measure of just compensation. This rule in Wisconsin has since been modified by statute. In Coxe v. England, 65 Pa. St. 212, the court said:
“This was an action of trespass for cutting standing timber. Its value was therefore to be ascertained by the*68 price of such timber in. the vicinity, and not by the net value of the logs cut from it, in a distant market. The evidence shows that the timber had a price where it stood, the value of stumpage, as it is termed, being proved by numerous witnesses.”
To the same effect see Tilden v. Johnson, 52 Vt. 628 (36 Am. Rep. 769); Ward v. Carson River Wood Co., 13 Nev. 44; Gardere v. Blanton, 35 La. An. 811; Railway Co. v. Hutchins, 32 Ohio St. 571 (30 Am. Rep. 629) ; Railway Co. v. Hutchins, 37 Ohio St. 296; White v. Yawkey, 108 Ala. 270 (19 South. 360, 32 L. R. A. 199, 54 Am. St. Rep. 159); Bailey v. Chicago, etc., Ry. Co., 19 L. R. A. 653, and note (3 S. Dak. 531, 54 N. W. 596).
In the case of Beede v. Lamprey, 64 N. H. 510 (15 Atl. 133, 10 Am. St. Rep. 426), the court, after reviewing very many cases, says:
“The weight of authority, however, in this country is in favor of the rule which gives compensation for the loss, that is, the value of the property at the time and place of conversion with interest after, allowing nothing for value subsequently added by the defendant, when the conversion does not proceed from wilful trespass, but from the wrongdoer’s mistake or from his honest belief of ownership in the property, and there are no circumstances showing a special and peculiar value to the owner, or a contemplated special use of the property by him.”
In the case of King v. Merriman, 38 Minn. 47 (35 N. W. 570), which is very much the same as the case under consideration, the court lays down the rule for the measure of damages substantially as follows: “Where defendant is an unintentional or mistaken trespasser, or where he honestly and reasonably believed that his conduct was rightful, the value of the property at the time it was taken, that is, the value of the timber standing.” See, also, Sedgwick, Damages (8th ed.), §§ 933, 934, 503; 3 Sutherland, Damages (2d ed.), §§ 1019 and 1020.
In the trial of the cause in chief plaintiff called Thom
Finding no error in the record, the cause will be affirmed.
Reavis, C. J., and Dunbar, Fullerton, Hadley, White and Anders, JJ., concur.