212 P. 294 | Mont. | 1923
delivered the opinion of the court.
This action was instituted for the recovery of damages for the alleged trespass of the defendant in cutting and removing timber from plaintiff’s land. Recovery of $600 was sought as the value of the trees cut and removed, and $1,000 for the resulting injury to the premises. The cause was tried to a
It appears that one Wilfred G. Rousselle, on August 7, 1918, was the owner in fee of lots 4 and 5, located at Yellow Bay on Flathead Lake, Flathead county. On August 28, 1918, Wilfred G. Rousselle, by way of adjustment of property rights with his wife, the plaintiff herein, in an action for a divorce then pending between them, transferred and assigned to the plaintiff, by warranty deed, all of lot 4, without restriction or reservation. This deed was duly filed for record on September 24, 1918. Lot 4 comprises 15.60 acres, and lot 5 consists of 60 acres.
On August 7, 1918, Wilfred G. Rousselle, by an instrument in writing, regularly sold “all timber fit for railroad ties, together with pine, fir and tamarack sawlogs” upon lot 5; and it is contended by the defendant that thereafter, by oral agreement made on or about August 11, 1918, Mr. Rousselle agreed that the defendant could have the timber on lot 4 upon the same terms expressed in the written contract regarding the timber on lot 5.
The plaintiff in her complaint, supported by evidence upon the trial, made claim that the defendant had, without her knowledge or consent, willfully and unlawfully cut and removed from lot 4, the tract belonging to her, a total of 400 trees. Evidence offered in support of plaintiff’s case fully establishes the allegations of her complaint as to the number of trees so cut and removed from this land, and the defendant in his answer admits the cutting and removal from such premises of 385 ties. Plaintiff’s witnesses estimate the number of board feet in the timber so removed at from 90,070 to 138,910 feet; and the defendant fixes the number of trees by him removed at 296, and says that they contained in all 23,616 board feet.
In his answer defendant admits an indebtedness for the timber cut and removed from the lot in question of $313.85,
The only question presented on this appeal is the sufficiency of the evidence to justify the verdict.
Fred J. Wyman and Gus DeStaffeney, expert timber cruisers and scalers, as witnesses for the plaintiff, testified that they had visited the premises in question in the months of June and August, respectively, in the year 1919, and had cruised the land and made estimates of the timber removed therefrom. Each of these witnesses gave as their expert opinion that the timber had been cut in the winter months of 1918 and 1919, basing their opinion upon the appearance of the foliage and the looks and condition of the stumps on the ground. This testimony was properly admitted, but standing alone might have left the jury in doubt as to the time the timber was actually cut. However, supplementary to, and in support of, these expert witnesses, is the testimony of E. E. Taylor and Wilfred G. Rousselle.
E. E. Taylor, the plaintiff’s father, and agent for her in negotiating a settlement of the controversy between the plaintiff and defendant, testified as follows respecting a conversation had with the defendant in the summer of 1919, wherein the defendant admitted that the timber had been cut from lot 4 in the winter of 1918 and 1919. He testified: “The first conversation I had with Mr. Cramer personally was, I think, the 8th or 9th of July. I had written him before in regard to it. On the twenty-second day of June, when I went down there, I saw the situation, although I did not go on the 22d to the further end of lot 4, but—I mean on the 15th. But on the 22d, I went with Mr. Casey and the surveyor; I think his name is Hoidal. We went down and run these lines, and I
And Mr. Rousselle testified: “Q. I say, do you recall being at Yellow Bay last summer about the 20th of July? A. I do. Q. And do you recall the defendant, Mr. Cramer, was present? A. I do. Q. Mr. Taylor? A. I do. Q. Mr. Wyman? A. I do. Q. I will get you to state if you heard the defendant, Ben Cramer, make any remarks that day as to when the' timber on lot 4 was cut? A. Yes. Q. If so, you may state what he said. A. Mr. Cramer made the statement on the road. He said the timber—Mr. Cramer made the statement that the timber was cut while he was in Missoula. Q. Did he say when, what time of the year? A. No, he didn’t. He said it was while he was at Missoula. Q. Do you know when he was at Missoula? A. Well, I heard that he was there, but I never seen him. Q. When? A. Well, it was—I couldn’t say exactly as to the date. Q. Well, substantially? A. I should judge it was some time in the latter part of November.”
The defendant himself fixes the time that he was in Missoula by the following testimony given by him on the trial: “I was there. I went over there on the 8th of October, and came back on the 9th of October. Then I went over on the—I stayed at home just a week, and about the 16th of October, and stayed until—I am mistaken about that. It was November I went to Missoula. I went over in November, on the 8th of November, and came back just a week later. Then I went over about the 16th and came home about the 16th of January. I stayed in Missoula from the 15th of November until the 15th of January.”
Mr. Rousselle acknowledges the execution of the agreement with the defendant covering the timber growing on lot 5, but denies there was any agreement entered into with the defendant respecting the timber on lot 4. It was developed as a part of the plaintiff’s case that the land in question is most valuable for summer homes, and that its desirability for such purpose was much lessened by virtue of the removal of the
It is the well-established and long-settled rule in this state that where the evidence is conflicting a new trial will not be granted, the jury being the triers of issues of fact. (Bateman v. Raymond, 15 Mont. 439, 39 Pac. 520; McIntyre v. McCabe, 19 Mont. 333, 48 Pac. 390; Dempster v. Oregon Short L. R. R. Co., 37 Mont. 335, 96 Pac. 717; Fearon v. Mullins, 38 Mont. 45, 98 Pac. 650; Murphy v. Cooper, 41 Mont. 72, 108 Pac. 576; Albertini v. Linden, 45 Mont. 398, 123 Pac. 400; Previsich v. Butte Elec. Co., 47 Mont. 170, 131 Pac. 25; Mattison v. Connerly, 46 Mont. 103, 126 Pac. 851; State v. Dumphy, 57 Mont. 229, 187 Pac. 897; Harrington v. Mutual Life Ins. Co., 59 Mont. 261, 195 Pac. 1107.)
It is only in instances of manifest abuse of discretion on the part of the trial court in refusing a new trial that its action will be reversed on appeal. (Stettheimer v. City of Butte, 60 Mont. 111, 198 Pac. 455.)
The jury being the exclusive judges of the credibility of the witnesses and having seen and heard them testify, as did likewise the trial judge, we see no reason to interfere with the ver
The judgment and order are affirmed.
’Affirmed.