Koelling v. Ralph Anderson Lumber Co., 51285

• Court: United States State Supreme Court of Missouri
• Writing for the Court: HYDE; All concur and STONE
• Citation: 392 S.W.2d 393
• Parties: Viola M. KOELLING, Fay L. Schlueter, Lola L. Vogt and Junia H. Mueller, (Plaintiffs) Respondents, v. RALPH ANDERSON LUMBER COMPANY, Inc., a Corporation, (Defendant and Third-Party Plaintiff) Appellant, v. The LEIWEKE ESTATE, INC., a Missouri Corporation, N. J. Boyd, Jr., Administrator of Estate of N. J. Boyd, Sr., Deceased, Leo Muscovalley, N. J. Boyd, Jr., etc., (Third-Party Defendants), Appellants.
• Docket Number: No. 51285,51285
• Decision Date: 12 July 1965

Page 393

392 S.W.2d 393 Viola M. KOELLING, Fay L. Schlueter, Lola L. Vogt and Junia
H. Mueller, (Plaintiffs) Respondents,
v.
RALPH ANDERSON LUMBER COMPANY, Inc., a Corporation,
(Defendant and Third-Party Plaintiff) Appellant,
v.
The LEIWEKE ESTATE, INC., a Missouri Corporation, N. J.
Boyd, Jr., Administrator of Estate of N. J. Boyd,
Sr., Deceased, Leo Muscovalley, N. J.
Boyd, Jr., etc., (Third-Party
Defendants), Appellants. No. 51285. Supreme Court of Missouri, En Banc. July 12, 1965.

Harold D. Jones, Bock & Jones, New Madrid, for defendant and third-party plaintiff-appellant, Ralph Anderson Lumber Co.

Hal E. Hunter, Jr., New Madrid, for third-party defendant-appellant N. J. Boyd, Jr., Adm'r of Estate of N. J. Boyd, Sr., deceased.

Joseph B. Wentker, Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondents.

HYDE, Judge.

Action for conversion of logs cut from growing timber, on an island owned by plaintiffs, tried by the court without a jury. Plaintiffs had judgment for $7,250.00, from which defendnat has appealed. Defendant (Ralph Anderson Lumber Company, Inc.) hereinafter called Anderson, as third party plaintiff, also asked judgment (if required to pay plaintiffs) against third party defendants, The Leiweke Estate, Inc., hereinafter called Leiweke, which sold the standing timber and Boyd, who as Leiweke's vendee, cut the timber and sold the logs to Anderson. Judgment was entered for Anderson on its third party petition for $2,000.00 against Lieweke and for Anderson for $5,250.00 against Boyd, from which Boyd has appealed. Leiweke defended in the trial court but has not appealed. Anderson claims the right to a judgment against Boyd and Leiweke for the full amount of any judgment awarded plaintiffs.

We ordered the case transferred from the St. Louis Court of Appeals after it reversed the judgment ans ordered judgment entered for plaintiff against Anderson for $2,000.00 and for Anderson against Leiweke for that amount but in favor of Boyd and against Anderson on Anderson's third party claim. The principal issue is whether plaintiffs are entitled to recover from Anderson the value of the logs at the time Anderson took

Page 393

them from the island which was $7,250.00 or whether they can only recover their value as standing timber which was $2,000.00.

The timber involved was on an island in the Missouri River. Plaintiffs claimed under Henry J. Mades who had a patent (in 1923) from St. Charles County for an island containing 176.29 acres. Some of this island as washed away when the river channel changed but by accretion other land was added to it until it was joined to another larger island downstream called Howell Island owned by Leiweke. There was a steep bank all along the upper end of Howell Island between it and the accretion to Mades Island, with a depression there 10 to 30 feet wide. It was stipulated by all parties that 250,000 board feet, cut after January 1, 1956, was removed from land owned by plaintiffs by Anderson, after having been cut by Boyd under his contract with Leiweke and delivered to Anderson on the river bank. Anderson made the logs into rafts and had them floated to New Madrid by its towboats.

Anderson and Boyd claim estoppel and laches against plaintiffs but we agree with the trial court's finding against

Page 394

that claim for the reasons hereinafter stated. Anderson and Boyd rely on Sligo Furnace Co. v. Hobart-Lee Tie Co., 153 Mo.App. 442, 446, 134 S.W. 585; Poole v. Roloff, Mo.App., 361 S.W.2d 340, 346; H. D. Williams Cooperage Co. v. United States, CCA 8th, 221 F. 234, 236; see also 34 Am.Jur. 577-579, Logs and Timber, Secs. 133-135, annotations; 161 A.L.R. 564-578; 69 A.L.R.2d 1344-1361. The rule stated by these authorities is that in an action for conversion, where trees are cut and removed by inadvertence or mistake, the proper measure of damages is the value of the timber in the trees cut and removed, technically known as stumpage value. However, if there was intentional or...