Jones v. Bard

• Decision Date: 31 July 1952
• Docket Number: No. 31886,31886
• Citation: 40 Wn.2d 877,246 P.2d 831
• Court: Washington Supreme Court
• Parties: JONES, v. BARD.

Page 877

40 Wn.2d 877

246 P.2d 831

JONES, v. BARD.

No. 31886.

Supreme Court of Washington, Department 2.

July 31, 1952.

Charles H.

Law, Charles J. Law, Vashon, for appellant.

Mark M. Litchman, Seattle, for respondent.

HAMLEY, Justice.

C. M. Jones brought this action, pursuant to RCW 64.12.030, Rem.Rev.Stat. § 939, to recover treble damages for the unauthorized removal of timber from his premises.

Jones is the owner of the easterly twenty-nine acres of the southeast quarter of the southwest quarter of section 19, township 23 north, range 3, east W.M., on Vashon Island, in King county. The forty-acre tract adjoining on the east is owned by Otto Jacobson. Defendant S. C. Bard had both of these tracts and other adjacent lands cruised for the purpose of offering to buy the standing timber. His cruise of Jacobson's property showed twenty-one old-growth Douglas firs, totaling fifty thousand feet gross. In the summer of 1949, Bard offered Jacobson five hundred dollars for this timber, it being understood that for this price Bard could remove all first-growth trees (except certain marked ones), even though the total exceeded fifty thousand feet.

Bard's cruise of the Jones property showed nineteen old-growth Douglas firs, having a total of fifty-five thousand feet gross, and eleven red cedars, having a total of four thousand feet gross. Bard attempted to purchase this timber from Jones, who was living in Idaho. However, Bard apparently had the wrong address, and his attempts to contact Jones were unsuccessful.

Bard then employed loggers to remove the timber from Jacobson's land. It is Jones' contention that these loggers trespassed upon his twenty-nine-acre tract and cut and removed eleven old-growth Douglas firs and one red cedar. In this action he sought damages in the sum of nine thousand dollars, consisting of two thousand dollars for removal of timber, one thousand dollars for damage to property, and the trebling of both of these items.

It is Bard's position that Jones misapprehends the location of the north-south boundary line between the Jones and Jacobson tracts. Bard contends that the trees in question were actually upon Jacobson's tract, and that they were included within the five-hundred-dollar lump sum price Bard paid to Jacobson.

The trial court found that Bard trespassed upon plaintiff's land and, without authority, cut, felled and removed first-growth trees; that such trespass was not willful; that the cutting, felling and removal of the trees damaged plaintiff in the sum of $1,008; and that no damage of any consequence was done to the soil. Judgment was accordingly entered for plaintiff in the sum of $1,008. Defendant appeals and plaintiff cross-appeals.

We will first consider the assignments of error which, if meritorious, would call for reversal with directions to enter judgment of dismissal.

Appellant's first assignment of error and a portion of his seventh assignment of error challenge the sufficiency of the evidence to support the judgment. This is, in effect, an attack upon the findings of fact. Appellant, however, has not pointed out, by number and description, the findings of fact upon which he predicates error. We must therefore accept the findings of fact as the 'established facts in the case.' Rule 43, Rules on Appeal, 34A Wash.2d 47, as amended; Lopeman v. Gee. Wash., 245 P.2d 183.

The second assignment of error relates to the failure of the trial court to grant appellant's motion for dismissal when plaintiff rested. After the motion was denied, appellant elected to continue with the trial, and produced evidence in his own behalf. Where the appellant has made such an election, he cannot predicate error upon the denial of a motion for nonsuit or dismissal. Brown v. Wolfe, 185 Wash. 641, 56 P.2d 681; Blair v. McKinnon, Wash., 244 P.2d 250.

Several of the assignments of error would if meritorious, require a new trial. The one of these which we will first consider is appellant's seventh assignment of error: 'That the findings of fact are too vague and not supported by the preponderance of the evidence.' The latter part of this assignment, relating to the sufficiency of the evidence to support the findings, has already been discussed. We will regard the statement that the 'findings of fact are too vague' as raising the further question of whether the findings of fact support the judgment.

In arguing this assignment, appellant confines himself to the contention that the findings as to damages are inadequate, no question being raised as to the adequacy of the findings in other respects. We will similarly limit our consideration of this assignment. Hawkins v. Casey, 38 Wash. 625, 80 P. 792; Union State Bank of Wapato v. Warner, 140 Wash. 220, 248 P. 394.

In the course of the trial court's oral opinion, it was stated that appellants trespass upon respondent's land was unintentional, and that there was no damage in the nature of general waste other than the removal of trees. The court stated that appellant had cut and removed eleven of respondent's trees. The court further stated that the amount of two thousand dollars alleged in the complaint as damages for the removing of the trees is less than the amount that the evidence shows should be paid for the timber. The court, in its oral opinion, therefore concluded that the judgment should be for two thousand dollars.

Counsel for appellant then asked the court to indicate the basis on which it arrived at the figure of two thousand dollars. The court did not, in response, reveal the measure of damages or method of computation that had been employed. The court stated, however, that, while the evidence...