63 Ind. App. 8 | Ind. Ct. App. | 1916
Appellee brought this action against appellants George C. Tanner, Gordon B. Tanner and Charles Lewis, and.also certain other individual and corporate defendants as joint tort-feasors, to recover damages for trespass on lands. A trial resulted in a verdict and judgment against the Tanners and Lewis for $900, the cause having been dismissed as to the other defendants at the close of the evidence. The errors relied on for reversal are based on the overruling of appellants’ joint and several motion for a new trial.
The substance of the first paragraph of complaint is as follows: Since 1907 appellee has been the owner of 120 acres of land in Owen county.- Prior to the grievances complained of, it was covered by a growth of young timber of a number of varieties. The Tanners were the owners of timber lands adjoining appellee’s land on the west and south, upon which Lewis resided as superintendent and manager for the Tanners. Lewis acted with the Tanners as coprincipal in committing the wrongs complained of. The three appellants in 1911, 1912, and 1913 wrongfully and unlawfully sold certain varieties of young and growing timber on appellee’s lands to the persons and corporations originally sued' also as defendants, and procured them to cut and remove the same, and in so doing to destroy certain other young timber growing on appellee’s land. Prior to
The second paragraph of complaint differs from the first, in that by the former it is alleged that appellants did not know the location of the line between the two tracts, and that they negligently failed to ascertain its location, and that as a result the injury was inflicted. In addition to general denials filed by each appellant, Gordon B. Tanner answered specially in effect that he sold to one Clark certain timber to be cut and removed from Gordon’s lands adjoining appellee’s lands; that he caused the line between the two tracts to be surveyed and ascertained; that he and Lewis, who was Gordon’s employe; directed Clark not to encroach upon appellee’s lands, but that Clark disregarded his instructions, and without Gordon’s knowledge, cut and removed from appellee’s lands about fifty-five sawlogs of the value of $95^ and also certain logs from Gordon’s lands, all of which were sold by Clark, the purchaser crediting Gordon and Clark with the amount of the selling price. That the purchaser paid Gordon on the account $71.29; that $40.01 of the selling price was held by the purchaser on appellee’s order; that Clark left on appellee’s lands logs cut by him, which were subsequently sold for $20.79, and the money was paid to and retained by appellee; that the logs cut from both tracts by Clark were of the total value of $132.09; that Gordon sold no saw timber to any one other than Clark. The answer denies all allegations of the complaint not specifically met thereby. The special answer is silent respecting the sale of timber other than saw timber.
There was substantial evidence that the diminution in the value of appellee’s lands caused by the trespass thereon, and the cutting, destroying and removing of the timber was at least equal to the amount of the verdict. The evidence disclosed, however, that when appellee intervened and stopped the cutting and removing of the timber, there remained on the land several cords of excelsior wood that had been cut by purchasers from Lewis- and Gordon, and that appellee took possession of and sold the same. It is urged by appellants that appellee realized from the sale of such excelsior timber a sum in excess of its value in the tree, and that as the evidence indicated that the trespass was unintentional and the result of mistake, appellants should have received the benefit of such excess value created by purchasers as their representatives, and that the verdict is, for this reason, excessive.
It is true, as argued by appellants, that under some circumstances, and in some forms of action, where the trespass is innocently or mistakenly committed, the value added to the severed or removed product by the labor of the trespasser, is not recoverable as a part of the damages, the rule in such cases being that full, compensation limits the recovery. We do not find it necessary to determine whether such principle is applicable to any phase of the ease here, but see the following and cases cited: Sunnyside v. Reitz, supra; American Sand, etc., Co. v. Spencer, supra.
Appellee by his complaint predicated the damages alleged to have been suffered upon the following elements": Entering on the land and cutting timber for the most part immature, the removal of such timber and the destruction of other young and growing timber in felling and hauling the
The court instructed the jury that the action was brought not to recover the value of timber cut and removed and sold, but rather to recover damages to the land occasioned by cutting, removing and destroying .young and growing timber. It is true that damage to land occasioned by cutting timber therefrom is complete when the timber is severed' and reduced to personal property. It is apparent, however, that in a case of unlawful cutting of timber, which has a value as such, and independent of its connection with the land, the landowner’s damages in fact are greater where the timber is removed and appropriated by the wrongdoer than where the timber is left on the land, and the landowner possesses himself' of it. In the latter case, the timber, after it is severed, may be as valuable as when it was a part of the land, in which ease the landowner’s damages would be merely nominal. Decamp v. Wallace (1904), 45 Misc. Rep. 436, 92 N. Y. Supp. 746.
In the -case at bar, witnesses testified to all the facts about cutting and removing the timber, and that certain timber that bad been cut was left on the land, and passed into the appellee’s possession, and from such viewpoint were permitted to testify to the value of appellee’s lands before the timber was cut and removed therefrom, and also after such cutting and removing of the timber, as a basis for the measure of damages. Thus the facts respecting the entire injury were submitted to the jury and from their consideration the verdict was returned under the guidance of comprehensive instructions given by the court. It appears to us, therefore, that the verdict accomplished substantial justice.
The judgment is affirmed as to Gordon B. Tanner and Charles Lewis, and reversed as to George C. Tanner, with instructions to sustain the motion for a new trial as to him, costs to he taxed one-third against appellee, and two-thirds against appellants Gordon B. Tanner and Charles Lewis.
Note. — Reported in 113 N. E. 769. Damages, measure of, in trespass for cutting, removing or injuring timber, 1 Am. St. 497 ; 38 Cyc 1131; 15 Ann. Cas. 917; Ann. Cas. 1912A 920.