Milltown Lumber Co. v. Carter
| Docket Number | 1,372. |
| Decision Date | 22 December 1908 |
| Citation | 63 S.E. 270,5 Ga.App. 344 |
| Parties | MILLTOWN LUMBER CO. v. CARTER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where timber is wrongfully cut from land and carried away, the owner has an election of remedies. He may treat the transaction as an injury to the realty and sue in trespass quare clausum fregit; or, since the trees so soon as severed become personalty, he may maintain trover, or any other form of action appropriate to the recovering of the possession of personalty, recovery of damages for the injury to or conversion of that class of property, or he may waive the tort, and sue in implied assumpsit for the value of the timber.
(a) To cut timber, take it away, and manufacture it into lumber is a continuing conversion.
(b) Where a petition alleges ownership of timber in the plaintiff, a conversion of it by the defendant, and measure of damages peculiarly appropriate to a trover case, the plaintiff's suit will be construed to be an action of trover.
[Ed Note.-For other cases, see Trespass, Cent. Dig. § 13; Dec Dig. § 16; [*] Logs and Logging, Cent. Dig. §§ 113-115; Dec. Dig. § 35. [*]]
Where timber is wrongfully cut from the land and carried away, the measure of damage varies according to the nature of the remedy employed to redress the injury.
(a) If the owner sues upon the theory of a trespass to the realty the measure of damage is the diminution in the market value of the real estate, unless the value of the trees at the time and place of their being felled, plus any incidental damage to the land itself, exceeds the diminution in the market value of the realty, in which event the higher measure is allowable.
(b) If the owner elects to sue in trover for the conversion of the severed logs or of the product into which they have been manufactured, he may recover the specific property (if it is still in the defendant's possession) or may recover damages for its conversion at his election.
(c) An owner does not lose title to a crude article by reason of the fact that a wrongdoer who has taken it from his possession has improved, refined, or manufactured it, unless such a radical mutation has taken place that title by accession has arisen. However, if the owner brings trover to recover an article which was taken from him in a crude state and improved by labor and expense placed upon it by the person taking it, the defendant is entitled to plead as a set-off and to recover, ex aequo et bono, the value of his labor and expense by which the property has been enhanced, provided he makes it appear that his trespass in taking the property was innocent or inadvertent, and was not committed willfully or in bad faith.
(d) The owner may trace his property so taken into the hands of others who have purchased it from the original trespasser and may treat the dominion exercised by the purchaser over the property as a conversion. If he brings trover against a third person holding under the initial wrongdoer, he may recover, but the defendant may set off, against the recovery, any sum which he (if his possession be innocent) has expended in enhancing the value of the property, also any sum which his predecessor in title likewise has expended if his predecessor's trespass was also innocent.
(e) Section 3918 of the Civil Code of 1895, which relates to the measure of damages "where plaintiff recovers for timber cut and carried away," is but a codification of a particular phase of the general principles announced above. It is not applicable to actions of trespass to realty. It relates solely to trover suits brought for timber or products manufactured from it, though it incidentally states the correct measure of damages where the plaintiff brings his action, not in trover, but in some other form of trespass to personalty.
[*]]
In actions of trespass to realty, the fact that the trespass was willful is material only for the purpose of obtaining punitive damages, and the burden of proving the willfulness is on the plaintiff; but, where the plaintiff brings trover for the recovery of an article severed from the realty and converted by the defendant, he is entitled to recover the article or its full value as damages, even though it has been greatly improved at the expense of the defendant, unless the latter shows that the trespass was not willful so as to entitle him to a set-off under the principles stated in the foregoing headnotes.
Ed. Note.-For other cases, see Trespass, Cent. Dig. § 3; Dec. Dig. § 2. (FN*)]
In trover for timber cut from the plaintiff's land and carried away, the gist of the action is the wrongful conversion. The plaintiff is not required to allege whether the trespass was willful or innocent. If he alleges a willful trespass, his suit does not fail if it develops that the trespass was inadvertent or in good faith, though this fact may give the defendant the right of set-off.
(a) If the defendant claims a reduction of the damages by reason of his good faith in committing the conversion, the burden is on him to show the facts necessary to the establishment of this defense, including proof as to the value that has been added to the property by the expenditure of labor and money put upon it by him.
(b) Until some other basis for recovery appears, the plaintiff whose property has been converted by the defendant is entitled to a verdict for the full value of the property at the date of the conversion with interest, or, at his election, for "the highest amount he can prove between the time of the conversion and the trial" without the addition of interest.
In the light of the facts appearing in the case, none of the errors complained of were prejudicial to the excepting party.
Error from City Court of Nashville; H. B. Peeples, Judge.
Action by J. B. Carter against the Milltown Lumber Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Where an owner of personalty brings trover against a third person holding under the initial wrongdoer, he may recover, but such third person, if his possession is innocent, may set off any sum he has expended in enhancing the value of the property, also any sum which his predecessor in title has expended if his possession was also innocent.
Carter sued the lumber company, alleging that he was the owner of certain lots of land in Lowndes county; that he sold to one Gress all the pine timber suitable for sawmill purposes and measuring 15 inches or more in diameter at a point two feet above the ground; that Gress transferred this lease to the defendant, and that under this authority, and no other, the defendant entered upon the land and cut the timber, and, in violation of the terms of the lease, cut and carried away and manufactured into lumber a specified number of trees of less size than that designated in the contract; that the lumber manufactured from these trees amounted to 100,000 feet of the market value of $15 per 1,000; that the trespass upon the timber was willful; that they were therefore liable to the plaintiff in the sum of $1,500, the market value of the lumber so willfully cut from petitioner's land. The defendant admitted the nature of the lease by which it cut the trees from the land in question and the fact that all the trees it cut from the land were manufactured into lumber, but denied that it had cut any trees of less size than that specified in the lease. It further set up that the plaintiff was indebted to it in a named sum, because he had pending the lease willfully and intentionally cut a number of trees more than 15 inches in diameter, and had made them into cross-ties, and it prayed set-off and judgment against him for the value of the cross-ties. The plaintiff's testimony went to show that the defendant's servants had cut and had continued to cut over his protest trees less than the size specified. He also presented definite proof as to how many of these trees there were, and as to the value of the lumber manufactured from them. The defendant, on the other hand, introduced testimony to controvert that of the plaintiff, also to show that, if any trees were cut under size, it was by inadvertence; also to show that the plaintiff had cut and manufactured into cross-ties a certain number of the trees which belonged to the defendant under the lease. The defendant, in turn, introduced testimony to show that he had not cut any trees over size, and that, if he did so, it was by inadvertence.
The jury found for the plaintiff $700. The defendant brings the case to this court for review on a number of exceptions.
Cranford & Wilcox, for plaintiff in error.
G. A. Whitaker and Denmark & Griffin, for defendant in error.
1. A landowner whose standing timber has been cut and carried away by a trespasser has his election among a number of remedies for the redressing of the injury. There is, of course, the basis for an action of trespass quare clausum fregit, a remedy that redresses the wrong as an injury to the realty. However, the trees so soon as severed become personalty. The landowner does not lose title to them by their being cut and carried away or by their being sold by the trespasser to third persons. Not only the trees and the logs cut therefrom are his, but they remain so although they are manufactured into cross-ties, lumber, boxes, or even toothpicks. Hence the act of the wrongdoer may also be considered as a trespass upon personalty. The cutting and removing of the trees and...
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