Bailey v. Hayden

• Citation: 65 Wash. 57,117 P. 720
• Parties: BAILEY v. HAYDEN et al.
• Decision Date: 14 September 1911
• Court: Washington Supreme Court

117 P. 720

65 Wash. 57

BAILEY v. HAYDEN et al.

Supreme Court of Washington

September 14, 1911

Department 2. Appeal from Superior Court, Jefferson County; Lester R. Still, Judge.

Action by E. O. Bailey against H. T. Hayden and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

A. W. Buddress and J. M. Ralston, for appellants.

Thomas B. MacMahon and Winter S. Martin (Roy D. Robinson, of counsel), for respondent.

ELLIS J.

Action to recover treble damages for cutting and removing timber from respondent's land, adjoining the waters of Scow Bay in Jefferson county. The jury found specially: (1) That the appellants cut and removed from respondent's land 45,000 feet of cedar timber; (2) that it was of a market value of $8 per thousand; (3) that it was taken without lawful authority (4) that appellants by the exercise of ordinary care could have ascertained that the land from which the timber was taken belonged to respondent. A verdict was returned in favor of respondent for the sum of $360. The court entered judgment for treble that sum and for costs. From that judgment this appeal is prosecuted.

We find it unnecessary to review the evidence further than to say that the special findings of the jury were amply supported by it under the court's instructions. The taking was without authority. Appellants had ample means of knowledge that the timber belonged to respondent. The value of $8 per thousand found by the jury was in accord with the lowest value in the waters of Scow Bay fixed by any witness. There was no claim for damage to the land itself by reason of the trespass. The sole claim was for the cutting and removal of the trees.

The dominant question presented by this appeal is, what measure of damages is to be applied where timber is taken from the land of another without authority and without excuse? The appellants contend that the single damages contemplated by the statute should be determined by the stumpage value of the timber cut and removed; that is, by the value of the timber as standing trees. The respondent urges that the damages should be measured by that value as enhanced by the labor of cutting and removal; that is, in this case, by the value of the logs in the waters of Scow Bay. The court instructed to the effect that if the jury found that the appellants took the timber with knowledge, or under circumstances which should charge them with knowledge, that it was respondent's timber, the jury should find the value to be the market value of cedar timber in the waters of Scow Bay at the time of the cutting but that, if it was found that appellants neither had nor could be charged with such knowledge, then the jury should find the value to be the above value less the reasonable cost of cutting and placing the logs in the water.

In the absence of a statute imposing a penalty for willful or inexcusable trespass, there can be no doubt that this instruction states the correct measure of damages both for willful and for unintentional cutting and removal of timber from the land of another. If the taking was inadvertent, the owner is entitled to such damages, and only such, as are compensatory; that is to say, he is entitled to what the trees would be worth on a sale in the condition in which they were at the time of the taking, unenhanced by the labor of making into logs and placing in the water. But, if the taking was by willful trespass, then he is entitled to recover in damages the enhanced value of the timber without any deduction for labor and expense bestowed upon it. In the latter case the damages are not merely compensatory, but punitive. In an action of trover, in the absence of the statute, the one or the other of these would be the measure of damages, and which of these would be dependent upon turpitude or lack of turpitude in the taker. This is the rule according to the decided weight of authority both in this country and in England, in cases where no damage to the land itself is claimed. Wooden-ware Co. v. United States, 106 U.S. 432, 1 S.Ct. 398, 27 L.Ed. 230; Pine River Logging Co. v. United States, 186 U.S. 279, 22 S.Ct 920, 46 L.Ed. 1164; Beede v. Lamprey, 64 N.H. 510, 15 A. 133, 10 Am. St. Rep. 426; Parker v. Waycross & Fla. R. Co., 81 Ga. 387-395, 8 S.E. 871; Heard v. James, 49 Miss. 236; Winchester v. Craig, 33 Mich. 205; Forsyth v. Wells, 41 Pa. 291, 80 Am. Dec. 617; White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L. R. A. 199, 54 Am. St. Rep. 159; Livingstone v. Rawyards Coal Co., 5 App. Cas. 25; 4 Sutherland on Damages (3d Ed.) § 1020. In all of these authorities the punitive character of the larger measure of damages is distinctly recognized. It is said in Beede v. Lamprey, 64 N.H. 514, 15 A. 135, 10 Am. St. Rep. 430: 'In cases of conversion by willful act or fraud, the value added by the wrongdoer after the conversion is sometimes given as exemplary or vindictive damages, or because the defendant is precluded from showing an...