Earl v. Fordice
| Decision Date | 20 September 1962 |
| Docket Number | No. 9029,9029 |
| Citation | 84 Idaho 542,374 P.2d 713 |
| Parties | Oliver EARL, Plaintiff-Appellant, v. Harold FORDICE, Calvin A. Lang, Oscar Carpenter and Oscar Carpenter Lumber Co., an Idaho corporation, Defendants-Respondents. |
| Court | Idaho Supreme Court |
Cox, Ware, Stellmon & O'Connell, Lewiston, for appellant.
Blake & Givens, Lewiston, for respondents Harold Fordice and Calvin A. lang.
Thomas Madden, Lewiston, for respondents Oscar Carpenter and Oscar Carpenter Lumber Co.
Plaintiff brought this action under the provisions of I. C. § 6-202 to recover treble damages for the cutting of timber on his property, claimed to have been done by defendants.
The applicable parts of I.C. § 6-202 reads:
'Any person who cuts down or carries off any wood * * * tree, or timber, or girdles, or otherwise injures any tree or timber on the land of another person, * * * without lawful authority, is liable to the owner of such land, * * * for treble the amount of damages which may be assessed therefor in a civil action, in any court having jurisdiction.'
Plaintiff owned all timber rights to an eighty acre tract immediately west of a larger tract on which defendants Fordice and Lang owned the timber rights. Defendant Oscar Carpenter was a sawmill operator, his business being incorporated under the name of Oscar Carpenter Lumber Co.
The trial court found that timber was cut and removed by defendants Fordice and Lang, from plaintiff's timber holdings of the value of $722.21, basing this figure on the reasonable stumpage value of pine at $18.00 per thousand board feet and mixed species at $5.00 per thousand. Judgment for $722.21 as the value of lumber cut was entered, without costs. The trial court further found that neither Oscar Carpenter, nor the company of the same name were responsible for the trespass committed, and dismissed the action as to these defendants. From this judgment the plaintiff appeals.
While there is no requirement in I.C. § 6-202 that the act of cutting or removing timber must be done wilfully or intentionally as a condition to the assessment of multiple damages thereof, this court in the case of Menasha Woodenware Company v. Spokane International Railway Company, 19 Idaho 586, 115 P. 22, adopted the rule that for a plaintiff to be entitled to recover statutory treble damages, instead of merely his actual damages, it is necessary to establish the trespass was wilful and intentionally committed. This rule was also recognized and applied in United States v. Chamberlain, (D.C.Idaho) 51 F.Supp. 54. This interpretation of the statute is in accord with the holdings of most courts. Annotation, 111 A.L.R. 79, at page 85 and cases therein cited.
As to whether this alleged trespass was done wilfully and intentionally, the record discloses that prior to the time there was any cutting of timber Mr. Fordice first established what he believed to be the true line between the tracts of the respective parties. Fordice had considerable experience in establishing lines in timber areas and cutting timber. He had, and used, a copy of the field notes of the governmental surveyor that surveyed the area. The points of a line established by him on his survey coincided very closely to the starting and finishing points of the lines as established by plaintiff's witness Mr. Grow, a licensed engineer. All the witnesses who testified as to establishing the line referred to a local magnetic attraction that deflected compass readings while traversing this line between the tracts. The record clearly reflects the ruggedness of the terrain, and the local magnetic attraction. Even with these problems, the starting point to the north of the line, and the finishing point on the south of the dividing line were located by all witnesses within a very close area, although there is substantial disagreement as to the location of the line on the ground.
The timber was cut and removed from a 'thumb', extending from the property line between the two tracts, westerly into the plaintiff's holdings. Mr. Fordice on direct examination testified that one of his sawyers misinterpreted his instructions and the sawyer cut a pocket of timber of Mr. Earl's property. The sawyer had been directed to go back to a landing on the defendant's holdings almost on the dividing line, and start cutting on standing timber left due to machinery being operated. Instead, the sawyer went onto the plaintiff's property and cut the timber situate in the 'thumb'. The record fails to indicate, nor did the trial court find that there was any wilfulness and intent on the part of the defendants sufficient to subject them to the provision of the statute for treble damages.
There is sharp conflict in the record as to the amount of timber removed from plaintiff's ground, and its value. Nothing, however, appears in the record as to the total acreage or size of the area claimed to be involved from which the timber was removed. Plaintiff's witness Harlan, an experienced timber cruiser testified, that after establishing the dividing line, he estimated 86,420 board feet of pine and 42,300 board feet of mixed timber had been cut. This estimate was based on the witness's measurement of the butt stumpage, and then estimating the height of the trees cut by comparison with growing trees still standing in the area. Defendant Fordice, however, testified that as soon as he became aware of the sawyer having cut on the plaintiff's holdings, he had the logs cut from the trespassed area kept separate and so hauled out and that he received slips regularly from each load. He testified that there were 20,820 board feet of pine and 21,450 feet of mixed timber cut from the area. Such conflict in the record on the issue of fact is for resolution by the trial court. Here the trial court did not definitely establish the footage of timber removed, but did fix its value on a board foot basis, and also its total value. There being competent and substantial evidence to sustain the court's findings, they will not be disturbed. Melton v. Amar, 83 Idaho 99, 358 P.2d 855; Angleton v. Angleton, 84 Idaho ----, 370 P.2d 788.
By plaintiff's complaint all the defendants, including Oscar Carpenter and Oscar...
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Weitz v. Green, 33696.
...586, 593, 115 P. 22, 24 (1911) (quoting Barnes v. Jones, 51 Cal. 303, 305, 1876 WL 1630 (Cal.1876)). See also Earl v. Fordice, 84 Idaho 542, 545, 374 P.2d 713, 714 (1962) (restating the standard established in Menasha that “it is necessary to establish the trespass was willful and intention......
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...in the statute, I.C. § 6-202 applies only where the alleged trespass is shown to have been wilful and intentional. Earl v. Fordice, 84 Idaho 542, 545, 374 P.2d 713, 714 (1962); Menasha Woodenware Co. v. Spokane Int'l Railway Co., 19 Idaho 586, 594, 115 P. 22, 24 (1911). Thus, where the defe......
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