Paepcke-Leicht Lumber Company v. Collins

• Court: Supreme Court of Arkansas
• Writing for the Court: BATTLE, J.
• Citation: 108 S.W. 511,85 Ark. 414
• Parties: PAEPCKE-LEICHT LUMBER COMPANY v. COLLINS
• Decision Date: 02 March 1908

108 S.W. 511

85 Ark. 414

PAEPCKE-LEICHT LUMBER COMPANY
v.
COLLINS

Supreme Court of Arkansas

March 2, 1908

Appeal from Chicot Chancery Court; James C. Norman, Chancellor; reversed.

Decree reversed and cause remanded.

F. M. Rogers, for appellant.

When this case was reversed on a former appeal, the order of this court was to ascertain the damages sustained by plaintiffs in cutting the timber on the land involved since the 4th June, 1901. 82 Ark. 1. An appeal in chancery is a trial de novo. 13 Ark. 344. And this has been followed to the present time. See Crawford's Dig. 150; 2 Id. 70. The exceptions filed to the report of the master appointed to ascertain the damages sustained by the plaintiff by the cutting of timber on the land involved should have been overruled. The master heard the witnesses testify, and was in a position to pass on their credibility. The measure of damages, when the trespass was in good faith upon a supposed right or claim or by error, is the value of the property of the time it is taken. 49 Miss. 236; 106 U.S. 432. The measure of damages for trespass in cutting timber is the value of trees as they stood before the trespass. 36 Barb. 644; 58 Penn. 246; 43 N.C. 60; 17 A. & E. Ency. (2d Ed.), 696.

F. M. Rogers, Wm. C. Gilbert, and Rose, Hemingway, Cantrell & Loughborough, for appellant.

Where a master is appointed by consent, his findings are as binding as those of a jury. 74 Ark. 338; 155 U.S. 636; 144 U.S. 585; 145 Id. 132; 129 Id. 512. In so far there is any testimony consistent with his finding, it must be treated as unassailable. 3 Dall. 321; 12 How. 60; 9 Wall. 125; 18 Id. 237; 98 U.S. 440. A tenant in common has a right to improve the joint estate, even against the will of his co-tenant. 21 Ark. 540. In an action by one tenant in common to restrain his co-tenant from cutting timber on land held by them jointly, the defendant should only be restrained from cutting more than one half of the trees. 37 So. 1018; 8 Term R. 145; Freeman on Cotenancy and Part., sec. 251; 63 Ark. 11. When a case is once decided by this court, its decision becomes the law of the case.10 Ark. 187; 29 Id. 185; 52 Id. 480; 81 Id. 440; 20 Cal. 388.

In trespass the measure of damages is dependent upon the motive of the trespasser. If he acted in good faith, the plaintiff is restricted to compensatory damages. 39 Ark. 387; 53 Id. 10; 66 Id. 562; 50 Id. 177; 67 Id. 371; 106 U.S. 434; 101 Id. 51; 117 F. 481; 22 S.C. 87; 43 N.Y.S. 115; 47 A. 269; 41 Penn. 296; 6 Hill, 425; 21 Barb, 92; 23 Conn. 523; 38 Me. 174; 60 A. 643; 3 Ad. & Ell. (N. S.), 440; 13 Nev. 62. Since the chancery court of Chicot County had decreed that the land in controversy belonged to appellant, it is fair to presume that it acted in good faith in cutting the timber thereon. See Kirby's Digest, § 7795. When any party shall cut trees on the land of another, the party injured shall recover treble damages (Kirby's Digest, § 7976); but if at the trial it shall appear that the party cutting the timber had reason to believe that the land on which the trespass is alleged to have been made belonged to him, then the injured party shall recover single damages only. Id. § 7978.

W. G. Streett, H. E. Cook and Baldy Vinson, for appellees.

Appellee's measure of the timber cut from the land was correct. 69 Ark. 304. They used the measure provided by law for such purpose. Kirby's Digest, § 8009. Appellees are entitled to one-half the profits on the timber taken from the lands owned by them jointly with appellants. This principle was adopted in 10 C. E. Gr. 173; 12 Id. 82; 37 N.J.Eq. 114; 25 Conn. 137; 55 Penn. 407; 1 Tiffany on Mod. Law Real Prop. sec. 169; Kirby's Digest, § 6295. One co-tenant is a trustee for the other in making profits out of the joint estate. 22 Ga. 131; 68 Amer. D. 484. He should therefore pay his co-tenant the actual profits made. 2 Mylne & K. 655; Story, Eq. 445, 465. See, also, 33 N.C. 391; 53 Am. Dec. 416. Appellee's ownership in the trees could not be divested by their co-tenant cutting them and converting them into lumber. 56 S.W. 969; 49 L. R. A. 416. Until an allotment has been made, a co-tenant has no right to sell the product of the estate and appropriate the profits entirely to himself. 112 Ia. 210; 83 N.W. 963. When he does, the co-tenant may maintain an action for an accounting. 170 N.Y. 120; 62 N.E. 1074. Appellees are not restricted to actual damages to the freehold. Damages include profits. 59 P. 857; 47 L. R. A. 540. The term "rents and profits" is equivalent to "damages." 5 Greenl. 199. If one tenant cuts timber on the land, and sells it, the co-tenants are entitled to their share of the money so received. 28 L. R. A. 829.

OPINION [108 S.W. 512]

[85 Ark. 417] BATTLE, J.

The history of this litigation is summed up in Collins v. Paepcke-Leicht Lumber Company, 82 Ark. 1, 100 S.W. 86, as follows: "On the 7th day of March, 1901, James E. Collins and others instituted an action against Paepcke-Leicht Lumber Company in the Chicot Chancery Court to recover certain lands and for $ 10,000 as damages for timber cut. On the 4th day of June, 1901, upon final hearing, the court dismissed the complaint for want of equity, and plaintiffs appealed to this court. On the 28th of January, 1905, this court reversed the decree of the chancery court as to half interest in the lands, and affirmed as to the other, and the cause was 'remanded to said chancery court with directions to enter a decree for appellants for an undivided half of the lands in controversy and for further proceedings to be therein had in accordance with the opinion herein delivered.' On the 15th of April, 1905, plaintiffs filed a motion in the chancery court, in which they stated that the defendant had before and since the institution of this action wrongfully cut and removed timber from the lands in controversy, of great value, and asked that a master be appointed to ascertain the amount and value of such timber, and for other relief; but it did not state that any of the timber was cut after the 4th day of June,...