delivered the opinion of the Court.
The question here concerns the measure of damages to be allowed the landowner for standing timber cut and sawed into lumber by one who honestly believed he had a right to so do.
The trial court rendered judgment for the landowner based on stumpage value or in other words the market value of the standing timber at the time it was cut. The Court of Civil Appeals reversed and rendered, holding that the landowner was entitled to be compensated for the value of the lumber sawed from his trees.
The facts may be summarized rather briefly. Cummer-Gra-ham Company, petitioner here, acquired title to certain soft wood timber from the owner, Jones, of a large tract of land. Thereafter Jones conveyed the land to Maddox, the respondent.
Acting in good faith under a claim of right petitioner, through its agent and contractor, felled and sawed into lumber certain elm and gum timber not included in its timber deed, but in fact belonging to respondents. The following stipulation was filed.
“It is stipulated and agreed between Plaintiffs and Defendant that the gum timber was 10,991 feet and elm lumber 35,147 feet. It is stipulated that the value in the stump of elm was $4.00 per thousand board feet and the gum $5.00 per thous- and board feet and that the manufactured value of both in Red River County at the time it was sawed into lumber as testified to by witness, John Crain, was $40.00 per thousand feet.”
The Court of Civil Appeals in allowing the landowner the value of the manufactured timber did so on the theory that petitioner was a trespasser “as a matter of law,” presumably guilty of a willful and intentional trespass. But the testimony as to the oral agreement between petitioner and Jones was admissible for the reason that it bore upon the good faith belief on the part of the petitioner that he was entitled to cut the timber and it was so limited by the trial judge. In fact respondents concede petitioner’s good faith. Much has been written on this subject and the authorities are not at all uniform.
*287
In Arkansas the landowner whose timber has been cut and sawed into lumber by someone acting under an honest but mistaken belief of ownership is entitled to recover the lumber or its value less processing costs. Eaton v. Langley,
In Burbridge v. Bradley Lumber Co.,
We are of the opinion that in Texas the question is ruled by Kirby Lumber Co. v. Temple Lumber Co.,
“[It] does seem to hold that the ‘innocent’ trespasser is liable only for the value of the article at the time it was taken. The fact is, however, that the question now presented was not raised in the Kirby Lumber Company case, nor is the question foreclosed by that decision, * * * .”
In the trial court Kirby Lumber Company obtained a judgment for the value of the finished lumber cut from trees by Temple Lumber Company. That judgment was reversed and rendered by the Court of Civil Appeals. This court set aside both judgments below and allowed Kirby Lumber Company to recover only the stumpage value instead of the manufactured value for the reason that the Temple Lumber Company acted in good faith and without malice, actual or implied. It is true in that case that the parties were cotenants, but we think what the court has said applies with equal force here though the petitioner is denominated an innocent “trespasser” instead of a “cotenant.” Judge Critz cites with approval Louis Werner Stave Co. v. Pickering, 55 Texas Civ. App., 632,
*288 The analogy is further borne out by the similarity recognized by Judge Critz between the facts of that case and the one here under consideration, for he says:
“* * * In other words, the authorities seem to recognize the fact that the issue of trespass may be involved where one co-tenant ousts another cotenant, and claims adversely to him. It seems to us that in such instances the cotenant ousting his co-tenant should be classed as a trespasser. * * * .” [Kirby L. Co. v. Temple Lbr. Co.,125 Texas 284 ,83 S.W. 2d. 638 .]
The Court of Civil Appeals in Martin v. J. S. Hunt Lumber Co., Texas Civ. App.,
In Yol. 3, Sedgwick on Damages, at p. 1927, the rule is stated to be:
“But where the defendant acted in good faith the plaintiff, according to the doctrine now prevailing, is entitled to recover only the value of the trees in situs, that is the stumpage, together with compensation for any injury to the land.”
The text cites the argument made for this rule in Foote v. Merrill,
“Had the defendant set fire to plaintiff’s trees and destroyed them the measure of damages would have been their .value as they stood on the land; and we cannot say that he justly ought to pay any more for cutting and removing them than destroying them, nor that the plaintiff ought to receive any more in one case than in the other,”
This rule is followed in J. F. Ball & Brother Lumber Co. v. Simms Lumber Co.,
The holdings of our Texas courts seem to be uniform in respect to this rule. Pettit v. Frothingham, 48 Texas Civ. App. 105,
In White v. Smyth,
For yet another reason the Smyth case does not seem to be controlling here. The landowner is not given the right of an accounting against the innocent trespasser. As said in United States v. Bitter Root Development Co.,
At any rate we see no reason to disturb the well settled rule in our jurisdiction that stumpage value is the proper measure of damages in a case of this kind.
Respondent relies on Right of Way Oil Co. et al v. Gladys City Oil, Gas & Mfg. Co.,
In Bender v. Brooks Judge Brown quoted the following rule ás being applicable to those facts:
“ ‘It is the prevailing rule that in an action for unlawfully *290 working a mine and extracting coal or ore therefrom, if the taking was not a willful trespass, but was the result of an honest mistake as to the true ownership of the mine, the measure of damages is the value of the coal or ore as it was in the mine before it was disturbed. The recovery in such case is limited first by the value of what is taken, and second by the cost of mining, extraction, and hoisting to the surface or delivering at the pit’s mouth.’ ”
And what Judge Brown means to say, we think, is that the value of the oil in the ground is to be determined by the value when hoisted to the surface less the cost of the hoisting. We think therein lies the distinction between the latter two cases and the Kirby Lumber Company case. As respondent observes, these two eases were not cited by the author of Kirby Lumber Company though written 25 years earlier.
By counter point respondent urges that at any rate he is entitled to a judgment based on the verdict of the jury fixing his damages at $5.00 per acre. Considerable testimony was admitted on this feature of the case and reviewed somewhat in detail in respondent’s brief. The jury found that elm and gum were cut off of 300 acres of respondent’s land which was thereby damaged to the extent of $5.00 an acre.
Respondent says that he was entitled to choose either measure of damages and that in any event he should be allowed a judgment based on the verdict, citing Shell Pipe Line Co. v. Svrcek, Texas Civ. App.,
As said in Pacific Express Co. v. Lasker Real Estate Ass’n.,
Judgment was rendered “non obstante veredicto” by the trial court. We think the Court of Civil Appeals [
The rule generally is, we think, as stated in Grell v. Lums-den,
“* * * ‘If the thing destroyed or removed from real property, although a part thereof, has a value which can be accurately measured or ascertained without reference to the soil on which it stands, the recovery is the value of the thing thus destroyed or removed, and not the difference in the value of the land. * :jí * f 99
On the other hand if the trees have only a value with reference the land such as for the purpose of shade or ornamentation or if they be fruit trees or young growth which has no market value, then the proper measure of damage would be the difference in the value of the land before and after. Hall v. Seaboard Air Line R. Co.,
The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed in all things. .
Opinion delivered January 18, 1956.
Associate Justice Smith dissenting.