57 Mich. 350 | Mich. | 1885
This action was brought to recover damages claimed to have been sustained by the plaintiff in consequence of certain trespasses committed by the defendant on lands belonging to plaintiff, in the county of Muskegon, on and subsequent to May 1, 1882. The declaration contained two counts. One was the ordinary count in trespass, and the other a count under the statute, and upon which the plaintiff recovered.
The plaintiff’s evidence tended to show that he was the owner of the land in question; that the defendant entered upon the lands, and in 1882 cut down trees, converted them into saw-logs, and took from the lands logs to the amount of 33,712 feet, and in 1883, 33,519 feet; that he also cut and left on the ground logs to the amount of 29,810 feet. The evidence also tended to show that to obtain these logs the best timber was selected from some fourteen or sixteen acres of land, the stumpage value of which was variously estimated at from four and a half to fifteen dollars per thousand. The defendant denied the trespass of 1882; admitted that he cut timber on the plaintiff’s lands in 1883, but says “ he had a legal right to do so because the timber belonged to him by virtue of a written contract of sale executed by plaintiff to him, August 22, 1882.”
On the 8th day of May, 1882, the plaintiff made a written contract with Smith & Field, by which he agreed to sell, cut and deliver afloat in "White river, during the winter of 1SS2-83, all the merchantable pine timber then standing on certain lands, including the lands in question, providing there should be a sufficient amount of snow. In August following, the parties, Skeels and Starrett, made a contract, which the plaintiff claims was verbal, and by which he sold to defendant all the refuse pine timber on the land mentioned in the Smith & Field contract, after it had been stripped according to that contract, and with the distinct understanding that whatever the Smith & Field contract called for, Starrett was not to have, whether Smith & Field took it or not. The defendant claims the contract was in writing, and that by its terms he became the owner of all the pine tim
It appears that Skeels delivered to Smith & Field, under his contract with them, all the pine from one lot of eighty acres; but that, on account of there being too much snow, he only cnt from about forty acres of the particular lot in question, leaving in the spring of 1883 some forty acres uncut, and which was estimated to contain from 700,000 to 1,000,000 feet of merchantable pine timber. The jury assessed the plaintiff’s damages at $672.91, and found specially that the trespass for which they assessed damages was voluntary and without the leave of the plaintiff. Whereupon the court trebled the damages, and entered judgment in favor of the plaintiff and against the defendant in the sum of $2017.83.
The written contract entered into between the parties must control their rights; and all evidence of contemporaneous oral agreement upon the same subject-matter, varying, modifying or contradicting the written agreement, was inadmissible. The defendant relied upon this written agreement as (1) conveying to him the timber in question; and (2) if he was mistaken in his construction of the agreement, as evidence tending to prove that the trespass was committed under a claim of ownership, and as bearing upon the question whether the damages could lawfully be trebled by the court. We do not think the written agreement conveyed to defendant the timber in question, under the facts disclosed in the record ; and as the only significance it can otherwise have is its bearing upon the action of the court in trebling the damages found by the jury, we do not think, in the disposition we shall make of that question, a new trial should be ordered on account of the error in admitting the testimony of the oral agreement.
The first and second assignments of error were based upon objections made to questions asked the witness' Joseph Stevens. The witness had testified that he saw- defendant on the land taking off the pine; that he had been upon the land since to ascertain how many trees had been cut; had made a scale of what was on the ground in 1882, and what
•Counsel for defendant claims that, before the witness testified respecting the scale of the logs, he had a right to cross-examine him thereon, and that he was denied that right. The -record discloses that it was the counsel for plaintiff who denied him that right, and not the court, and no exception was taken thereto.
Charles Serfling, another witness for plaintiff, testified as to his experience in scaling logs, and as to his having made ■a measurement and scale of the logs taken off of the land in •question by the defendant, and of the manner in which they had been taken therefrom. He was asked; “ How would the value of the timber be affected that was left, by these 149-trees being taken out, cut, and taken away ?” Objection was made by defendant’s counsel an the ground that there
The question objected to, as well as similar questions put to this and other witnesses, is clearly within the rule above laid down, and was unexceptionable. The declaration not only alleged the cutting and carrying away of timber, but also injury to the timber remaining on the land, and was a sufficient allegation of injury to the freehold or inheritance to permit proof of damage to such freehold. In this respect the declaration followed the approved form found in' Humphrey’s Precedents, framed under a statute of which ours is a substantial copy.
The witness Proctor was interrogated relative to the value of certain lumber which the evidence tended to show had been cut upon plaintiff’s land and taken to the mill where witness worked, and there sawed into lumber. He knew nothing of the value of lumber, except what they charged for it at the mill, which-was in the vicinity of the plaintiff’s land.' .An objection was.interposed as to the competency of
And this leads us to the consideration of the errors alleged upon the evidence admitted to prove the plaintiff’s damage. The plaintiff claimed, in addition to the damage caused by the injury to the remaining timber upon the land described, that he was entitled to damage on account of the timber cut and removed, and that such damage was measured by the value of the timber standing, or “ stumpage,” as it is called. To prove this value he introduced evidence, against defendant’s objection, of the value of the logs and lumber made from the timber taken from this land at the mill, and also the cost and expense intermediate the timber standing and lumber at the mill, which deducted from the value at the mill, he claimed would show the real value of the stumpage. The defendant, on the other hand, claims that this result gives too high value of stumpage, inasmuch as it includes all the profits and increased value which attach to the change in the commodity and location, which represents the capital invested and the hazard of the enterprize, and which is not measured simply by the actual cost of cutting, transportation and manufacture, but includes besides the element termed “profit.”
It was said in Gilbert v. Kennedy 22 Mich. 117, which was an action of trespass, that “ To deny the injured party the right to recover any actual damages in such cases, because they are of a nature whiclreannot be thus certainly, measured, would be to enable parties to profit by and speculate upon their own wrongs, encourage violence, and invite depredation. * * And * * where, from the nature of the case, adequate damages cannot be measured with certainty by a
The record before us shows that- the value of the stumpage was proved in various ways, from the bare opinion of its value to that which was deduced from the value of the manufactured lumber; thus affording the jury ample evidence from which to arrive at a just conclusion as to the amount of damage the plaintiff was entitled to be awarded as a compensation for the injury sustained.
The court permitted the plaintiff’s counsel, on cross-examination of defendant, to ask him if he ever made Mr. Skeels an offer for the pine that stood on that particular. eighty; and this constitutes defendant’s twenty-first allegation of error. The question was proper, as bearing upon the value of the pine before it had been cut by defendant. Dorrity v. Russell 7 Bosw. 539.
We have now commented upon the principal allegations of error, and all that require discussion, except the last, which relates to the error of the court in trebling the plaintiff’s damages; This exception we think well taken. The record does not disclose a case for trebling the damages under the statute; but as the trial was fair, and the verdict of the
Affirm the judgment for single damages in the amount found by the jury.