Paepcke-Leicht Lumber Company v. Collins

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

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

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, 1901, When the final decree was rendered by the chancery court. Upon motion the chancery court rendered a decree in accordance with the mandate of this court, and ordered that plaintiffs be taxed with one-half the costs in the case, and the defendant with the other half. The plaintiffs then asked this court to issue the writ of mandamus, requiring the chancellor to take cognizance of plaintiff's motion, and to appoint a master to take an account of the timber cut. This court denied the writ. Plaintiffs then appealed from the refusal of the chancery court to appoint a master as required by their motion, and from the judgment for costs."

Upon the last appeal this court rendered the following judgment: "The decree of the court as to costs is reversed; and the cause is, therefore, remanded with directions to the court to allow plaintiffs to amend their motion or supplemental complaint, if they are so advised, and, when properly amended, to take such proceedings as may be proper to ascertain the damages sustained by them from the cutting of timber on the land involved in this action since the 4th of June, 1901, and for judgment therefor, and to render a decree in favor of the plaintiffs against the defendant for costs already incurred, and for further proceedings appropriate and necessary and not inconsistent with the opinion of this court in this case."

We omit to mention so much of the proceedings had in the Chicot Chancery Court after the cause was remanded the last time as is not in controversy on this appeal.

After the cause was remanded, the plaintiffs amended their motion or supplemental complaint by alleging that, subsequent to the 4th day of June, 1901, Paepcke-Leicht Lumber Company had cut and converted to its own use 23,675,114 feet of timber; and that the market value thereof, after paying cost of manufacture, was $ 7 per thousand or $ 165,729.79; and asked judgment for one-half thereof, $ 82,862.88, with interest from the date Of the removal of the timber.

Paepcke-Leicht Lumber Company, answering, denied it had cut and removed 23,675,114 feet subsequent to the 4th day of June, 1901, but admitted that it had cut and removed in 1902 3,704,599 feet of the value of $ 1.00 per thousand; in 1903, 1,566,275 feet of the value of $ 1.25 per thousand; in 1904, 1,143,-481 feet of the value of $ 1.50 per thousand. It alleged that it and its predecessors in title had paid all taxes on the land from 1882 to 1906, and asked for a judgment for one-half thereof and interest thereon, and that it be offset against its indebtedness for timber, and for partition of the land.

At the November (1906) term the chancery court, by consent of all parties in open court, appointed R. D. Chotard master to ascertain, among other things, the amount and value of timber cut and removed from the land involved in this cause "by Paepcke-Leicht Lumber Company from and after the 7th day of March, 1901, to present date, and to compute interest thereon at the rate of six per cent. per annum from the date of removal of each lot of timber to the date of filing of report." (This order was made prior to the last order of this court in this cause, which was made on the 11th of February, 1907.)

The master examined eighteen witnesses, and filed their depositions and his report. He shows by his report that the Paepcke-Leicht Lumber Company, after the 4th of June, 1901, cut and removed from the land 6,310,133 feet, and that the value of the timber cut in 1901 was one dollar and fifty cents a thousand, and that cut in 1902 was two dollars a thousand, and that cut in 1903 and 1904 was two dollars and fifty cents a thousand; and the aggregate value of the timber so cut was $ 13,487.63.

Plaintiffs excepted to the report, which the court...