Davenport v. Haskell

• Decision Date: 24 February 1936
• Parties: EDWARD R. DAVENPORT v. CLAYTON A. HASKELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 454

EDWARD R. DAVENPORT v. CLAYTON A. HASKELL.

Supreme Judicial Court of Massachusetts, Worcester.

February 24, 1936

January 9, 1936.

Present: RUGG, C.

J., CROSBY, FIELD LUMMUS, & QUA, JJ.

Evidence, Of value Opinion: expert. The owner of timber might testify as to his opinion of its value.

An expert lumberman familiar with a tract of woodland might give an opinion as to the amount of timber cut from the entire tract, based upon his measurement of the stumpage of representative cross sections.

An expert lumberman might base his opinion of the value of timber upon market reports and his knowledge of local appraisals.

TORT. Writ dated April 26, 1932. The action was tried in the Superior Court before Collins, J. Upon the answers to special questions to the jury, the judge ordered a verdict for the plaintiff in the sum of $6,534.77. The defendant alleged exceptions.

C. Fairhurst, for the defendant. O. A. Hoban, for the plaintiff.

CROSBY, J. This is an action of tort to recover damages for cutting and carrying away wood and timber from the plaintiff's land.

The plaintiff's declaration is in two counts. The first in substance alleges that on or about June 1, 1928, the defendant entered upon the plaintiff's land, and cut down and carried away the plaintiff's trees and converted them to his own use. The second count alleges that the defendant with force and arms entered the plaintiff's close, described in the first count, and wilfully and without license cut down, damaged and destroyed the plaintiff's trees and underwood, and carried the same away, and the plaintiff says that he is entitled to recover three times the amount of the damages in accordance with the provisions of G.L. (Ter. Ed.) c. 242, Section 7.

The evidence showed that in 1928 the defendant purchased approximately one hundred sixty acres situated in the towns of Athol and Petersham in this Commonwealth. The land described in the plaintiff's declaration consisted of approximately sixteen acres, and was included in the defendant's deeds. When the defendant was negotiating for the purchase of this one hundred sixty acres "the plaintiff standing on his own land pointed out what he claimed was his line, and warned the defendant that if he cut the timber on it he would do so at his peril and protested to the defendant the inclusion of the disputed sixteen-acre piece. Lula D. Pratt claiming ownership of such tract included it, however, in a warranty deed to the defendant" and thereafter he cut and removed the timber standing thereon. Later the plaintiff, by contested proceedings in the Land Court, obtained a decree of registration of the sixteen-acre tract in his name and thereupon this action was instituted. It was admitted by the defendant at the trial "that the plaintiff was the owner of the land described in the declaration; that the defendant entered upon it, cut and removed the timber standing thereon and that the plaintiff was entitled to recover damages in this action." The trial then proceeded on the issue of damages. Special questions were submitted to the jury who found that there was a wilful cutting within the meaning of the treble damage statute, that the defendant did not have good reason to believe that the land on which the trespass was committed was his own, and assessed single damages at $2,090 with interest from the date of the writ at $264.77 and, the damages being trebled under G.L. (Ter. Ed.) c. 242 Section 7, returned a verdict for the plaintiff in the sum of $6,534.77.

The plaintiff offered the testimony of two witnesses, who were experienced lumber dealers and estimators of timber, who qualified as experts on the stumpage value of the various kinds of timber which were cut and removed by the defendant from the plaintiff's land during the summer of 1928. Their testimony was admitted without objection. The plaintiff testified that he lived in Petersham and had lived there practically all the time since 1909; that he owned a farm there which had been in the Davenport family since 1801; that the sixteen-acre tract had been a part of the farm since 1882; that he was familiar with it; that he was not an expert timber man; that before any timber had been cut the lot was worth $2,500; that after the timber had been cut off the land was worth $5 an acre. There was no objection to the admission of this testimony of the plaintiff when it was offered, but at the close of the entire testimony the defendant moved that it be struck out so far as it related to the value of the lot and the timber on it. This motion was denied subject to the defendant's exception. The plaintiff, as the owner of the land and timber on it, was entitled to testify as to such values. Wooley v. Fall River, 220 Mass. 584 . Menici v. Orton Crane & Shovel Co. 285 Mass. 499 , 504. The motion was rightly denied.

Neal W. Hosley called by the plaintiff, testified that he lives in Petersham and is connected with the Harvard University Forestry Department as an instructor; that "they have two thousand acres practically all timber land"; that he was educated at Syracuse University and took postgraduate work at Harvard, specializing at Syracuse in forest management which includes measurement of "forest areas, and growing of forest crops, and measurements of forests, meaning measurements of both standing and down timber"; that he had experience at Syracuse and Harvard and on Harvard land in Petersham in measuring and estimating both standing and down...