132 F. 92 (D.N.H. 1904), 467, Trustees of Dartmouth College v. International Paper Co.

Docket Nº:467.
Citation:132 F. 92
Case Date:August 05, 1904
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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132 F. 92 (D.N.H. 1904)




No. 467.

United States Circuit Court, D. New Hampshire.

August 5, 1904

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Streeter & Hollis, for plaintiff.

Drew, Jordan & Buckley, O. D. Baker, and D. W. Snow, for defendant.

LOWELL, District Judge.

This is an action of trover. The declaration alleges the conversion of spruce, fir, and hemlock timber, and of pulp made therefrom. The defendant has suffered default, and the court has only to assess damages. To ascertain their amount the case has been submitted to a master. His findings concerning the amount of timber cut are not in dispute. By its default, therefore, the defendant has admitted conversion, and liability for the damage caused thereby. By the undisputed findings of the master the amount of timber cut has been ascertained, and it remains only to put the proper value thereon. The rule or measure of damages by which this value should be estimated has received so much discussion in various courts, federal, state, and English, and their decisions differ so greatly, that it is best to recur to general principles before stating the facts of this particular case.

Trespass is an action 'sounding in damages,' and the compensation for damage recoverable therein is, as the words imply, to be measured by the plaintiff's damage or loss arising from the defendant's trespass or wrongful act set out in the plaintiff's declaration. This is true alike of all forms of the action of trespass from assault to the latest development of the action of trespass on the case. In theory the statement just made includes all damages recoverable in any action of trespass. In fact, an addition has been made thereto by statute or the practice of some courts. Sometimes the plaintiff may expressly allege and prove as the result of the tort mental suffering or mortification, and may call on a jury to assess compensation therefor, as for damage done to limb or chattel. These cases are within the general statement above made. This right to recover has been enlarged into a right to recover enhanced damages in some cases where the plaintiff's material harm alleged in the declaration is accompanied by mental suffering or mortification. See Webb's Pollock on Torts, 219. By further development has arisen the doctrine of damages exemplary or punitive.

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These are unknown to the common law, and, whatever be their form are, in effect, recovered, not as damages suffered by the plaintiff, but as a penalty for the defendant's wrongful act analogous to that recovered by the plaintiff in a qui tam action. Though the measure of damages recoverable in all forms of the action of trespass is fixed by the plaintiff's damages arising from the trespass complained of, yet the amount of recovery arising from a given series of wrongful acts is not always the same, irrespective of the form of action. The same succession of events may be the basis of any one of several different forms of the action of trespass, and, as the legal effect of these events may be stated differently according to the plaintiff's point of view, the measure of damages in the different forms of action may differ. A common example of the plaintiff's right to elect between two forms of the action of trespass upon the happening of the same series of events is found where the plaintiff's goods are converted and afterwards sold by the wrongdoer. The plaintiff may sue in an action of trespass on the case sur trover, and will then recover the value of the goods converted at the time of conversion; or he may sue in an action of trespass on the case sur assumpsit, and will then recover the price received for the goods by the wrongdoer. The damages recoverable in the two actions may be quite different, and those recoverable in trover may be more or less than those recoverable in assumpsit. Ordinarily, the election between the two forms of action is at the plaintiff's discretion.

Where standing timber on the plaintiff's land is wrongfully cut, the plaintiff's choice of remedies is more extensive. (1) He may bring an action of trespass quare clausum, wherein he will recover the damage done to the real estate; that is to say, the diminution in the value of the real estate caused by the cutting. If he alleges, by way of aggravation, a trespass upon his personal property, viz., the logs, after severance from the realty, he may recover for that also, thus joining his two causes of complaint in one action. (2) He may bring trespass de bonis asportatis, wherein he will recover the damage done by carrying off the logs wrongfully cut. (3) He may bring trover, in which case he will recover the value of the personal property-- the logs-- at the time and place of conversion. As to the three forms of action just mentioned, see Warner v. Abbey, 112 Mass. 355. (4) He may bring replevin. By this action he will, in some jurisdictions, recover the logs themselves, and in others will recover their value variously estimated. In some jurisdictions the action of replevin sounds altogether in damages, and differs but little from the action of trover. (5) He may physically retake his severed property. By this act he will recover the property itself. Indeed, though he commit a breach of the peace in the recovery, yet he will still recover his property. His civil or criminal liability for his violence will not divest his title. See Pabst Brewing Co. v. Greenberg, 117 F. 135, 55 C.C.A. 151. Other forms of actions, such as detinue, or a bill in equity, may be employed in some jurisdictions and under some circumstances; and the injured man may sometimes pursue more than one remedy at once. It is plain that in some instances the damages recovered in an action of trespass quare clausum will be greater than those recovered in

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trover. In other instances the damages in trover will be the larger.

This is an action of trover, the gist of which is the conversion by the defendant of goods to which the plaintiff has the right of possession. 'The plaintiff is bound to prove a right of possession in himself at the time of the conversion. ' U.S. v. Loughrey, 172 U.S. 206, 212, 19 Sup.Ct. 153, 43 L.Ed. 420. Mere refusal to deliver upon the plaintiff's demand is sufficient evidence of conversion; a fortiori, any positive act of the defendant which substantially deprives the plaintiff of that possession of the goods to which he is entitled. The declaration in this case alleges a conversion of timber and pulp. If at any time the plaintiff had an unqualified right to possess that timber or pulp, and the defendant refused to deliver the same upon proper demand, or otherwise deprived the plaintiff of his lawful possession, these facts are sufficient evidence of a conversion. See U.S. v. Loughrey, 172 U.S. 206, 216, 19 Sup.Ct. 153, 43 L.Ed. 420. The plaintiff will recover as damages the value of the property at the time and place of the conversion. Here the standing timber was the plaintiff's. Before severance it was a part of the plaintiff's real estate. When severed by the plaintiff or defendant or a third person, the logs were chattels of which the plaintiff had the right of possession. Woodenware Co. v. U.S., 106 U.S. 432, 1 Sup.Ct. 398, 27 L.Ed. 230; Northern Pacific R.R. v. Lewis, 162 U.S. 366, 16 Sup.Ct. 831, 40 L.Ed. 1002; Phillips v. Bowers, 7 Gray, 21; Whiting v. Adams, 66 Vt. 679, 30 A. 32, 25 L.R.A. 598, 44 Am.St.Rep. 875. By their removal from the plaintiff's land the plaintiff's right of possession was not divested, and the plaintiff here contends that even the conversion of the logs into pulp left the plaintiff with a right of possession to the product manufactured exclusively from its own logs. It is true that many dicta and some decisions may be found to the effect that the one and only conversion is that which occurs when the plaintiff's right of possession is first set at naught by the defendant; but without discussing these cases in detail, it may be said generally that they are opposed, not only to the weight of authority, but to fundamental principles of law.

But in Pine River Logging Co. v. U.S., 186 U.S. 279, 22 Sup.Ct. 920, 46 L.Ed. 1164, at page 293, 186 U.S.,page 926, 22 Sup.Ct., 46 L.Ed. 1164, the Supreme Court, in substantial accord with most other courts, has said:

'Where the trespass is the result of inadvertence or mistake, and the wrong was not intentional, the value of the property when first taken must govern. Or if the conversion sued for was after value had been added to it by the work of the defendant, he should be credited with this addition. Upon the other hand, if the trespass be willfully committed, the trespasser can obtain no credit for the labor expended upon it, and is liable for its full value when seized.'

As here applicable, the rule thus laid down comes to this: If the defendant's admitted conversion was the result of inadvertence or mistake, it is liable only for stumpage, or at most for the value of the logs immediately after their cutting. If the conversion was

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willful, the defendant is liable for the value of the goods, however improved. This rule, or one closely resembling it, is generally recognized, though courts are not unanimous. See Baker v. Wheeler, 8 Wend. 505, 24 Am.Dec. 66; Powers v. Tilley, 87 Me. 34, 32 A. 714, 47 Am.St.Rep. 304; Wing v. Milliken, 91 Me. 387, 40 A. 138, 64 Am.St.Rep. 238; Glaspy v. Cabot, 135 Mass. 435; Peterson v. Polk, 67 Miss. 163, 6 South, 615; Bly v. U.S., 4 Dill. 464, Fed.Cas.No. 1,581.

To decide the case at bar it is important to know not only the general rule thus declared, but its basis in our system of law. The distinction between the two measures of damages is spoken of in some opinions as one between damages compensatory and damages exemplary. The second measure is sometimes...

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