Parker v. Harris Pine Mills

• Decision Date: 30 December 1955
• Citation: 291 P.2d 709,56 A.L.R.2d 382,206 Or. 187
• Parties: , 56 A.L.R.2d 382 Laura Johnson PARKER, Respondent, v. HARRIS PINE MILLS, Inc., Appellant.
• Court: Oregon Supreme Court

Page 709

291 P.2d 709

206 Or. 187, 56 A.L.R.2d 382

Laura Johnson PARKER, Respondent, v. HARRIS PINE MILLS, Inc., Appellant.

Supreme Court of Oregon.

Argued and Submitted Nov. 1, 1955.

Decided Dec. 30, 1955.

John F. Kilkenny, Pendleton, for appellant. On the briefs were Kilkenny & Fabre, Pendleton.

Robert L. Dressler, Portland, for respondent. On the brief was Willis A. West, Portland.

Before WARNER, C. J., and TOOZE, BRAND and LATOURETTE, JJ.

TOOZE, Justice.

This is an action to recover damages for alleged breaches of certain provisions of a timber deed, brought by Laura Johnson Parker, as plaintiff, against Harris Pine Mills, Inc., as defendant. A verdict in favor of plaintiff and against defendant in the sum of $26,860 was returned by the jury, and judgment was entered accordingly. Defendant appeals.

Defendant is an Oregon corporation engaged in the timber business. Plaintiff is the owner of approximately 9,000 acres of land located in townships 2 and 3 south, range 32 east, of the Willamette meridian, Umatilla county, Oregon, and is engaged in the livestock business thereon, herding and grazing cattle and sheep.

On or about July 23, 1943, plaintiff executed and delivered to defendant a timber deed conveying all the merchantable timber on her ranch to defendant. The instrument of conveyance was in the form of a warranty deed and gave the grantee the right to remove the timber at its pleasure at any time within the succeeding 20 years and to construct necessary roads to accomplish its purposes. The deed also imposed certain obligations upon the grantee which are stated in the conveyance as follows:

'Since the lands above described are to be used by the grantor or her assigns during the said twenty (20) year period for the purpose of running and grazing livestock, provision is hereby made that the logging operations of the grantee shall be so conducted as to interfere as little as possible with the use of the said premises for grazing livestock thereon.

'Provision is further made that in the event the grantee finds its [sic] necessary to cut or go through the line fences around said premises, the grantee shall, at its own expense, construct cattle guards at such places or shall, at its own expense, construct gates and keep the said gates closed at all times except when passing through and to keep and maintain padlocks thereon and upon the request of the grantor or her assigns to furnish to her or them a key to such padlock or padlocks. This provision being made so as to prevent so far as possible the escape of livestock from the premises herein described.

* * *

* * * 'The grantee shall properly dispose of by burning or otherwise at the proper season of the year and in accordance with the rules and regulations of the State of Oregon and of the United States of America, all tops, slashings, limbs and other debris deposited on the said premises as a result of the said logging operations. The said grantee to indemnify and hold harmless the grantor from any loss or possible damage resulting or to result from the failure of the grantee to comply with the terms and conditions of this paragraph with reference to the burning or other disposition of the said tops, slashings, limbs and other debris.'

During 1952 and 1953 the defendant entered a portion of the premises known as the Stanley Creek range, which contains approximately 3,600 acres in all, and cut timber and removed logs therefrom. Although the timber deed describes thousands of acres of land, yet the evidence shows that the timber in this area grows in the canyons or along the creeks. The cut-over area was approximately 1,000 acres, while the land affected by treetops, limbs, and other debris incident to the logging operations would be 400 acres.

The evidence on behalf of plaintiff shows that large sections of the line fences were destroyed by defendant during the logging operations, and that neither gates nor cattle guards were constructed to prevent the escape from the premises of plaintiff's livestock. The evidence also discloses that the streams were filled with debris and the roads damaged by defendant. Furthermore, up to the commencement of this action and even as late as the date of the second amended complaint, November 30, 1953, defendant had failed to remove any of the slashings which had accumulated upon the ground in the logged-off area, with the result that about 400 acres of the Stanley Creek range were covered with debris.

The allegations of the complaint respecting damages are as follows:

'VII.

'That in going onto said real properties and logging and removing said timber as aforesaid, the defendant conducted its logging operation in complete disregard of plaintiff's livestock operations and did fail to interfere as little as possible with the use of the said premises for grazing livestock thereon by unnecessarily tearing, mutilating and destroying many parts and sections of plaintiff's permanent fences and corrals by driving and operating its logging trucks, bulldozers and equipment over and upon said fences and corrals. That by reason of said destruction of said corrals and fences, plaintiff's livestock were and now are permitted to stray from said premises and portions of the grazing areas thereof.

'VIII.

'That the defendant transported logs in said logging operation through the line fences around said premises without constructing adequate cattle guards or gates and maintaining the same at the openings of said line fences to prevent as far as possible the escape of livestock from said premises. That as a result of the failure of the defendant to construct said cattle guards and gates and maintain the same, as aforesaid, plaintiff was and is now unable to prevent plaintiff's livestock from going astray from said premises; by reason of the matters alleged in Paragraph VII and VIII plaintiff has suffered damage in the sum of $7200.00.

'IX.

'That in cutting, logging, and removing said timber as aforesaid, the defendant caused great quantities of tops, slashings, limbs and other debris to be deposited on the said premises and defendant has failed, neglected and refused to properly, or at all, dispose of said tops, slashings, limbs, and other debris by burning or otherwise at the proper or any season of the year. That by reason of the said failure, neglect and refusal of the defendant, great areas of plaintiff's lands have been and are now rendered worthless for grazing and livestock operations and will remain worthless unless said tops, slashings, limbs and other debris are burned or removed from said premises, and by reason thereof, the value of plaintiff's property has been thereby greatly diminished, to plaintiff's damage in the sum of $17500.00.

'X.

'That defendant has further interfered with plaintiff's livestock operation by impairing and destroying plaintiff's roadways, streams and fields in the operation of defendant's logging equipment over and upon the same by cutting, ditching and filling the said roadways, streams and fields with soil, trees, limbs, slashings and debris. That in so doing the defendant failed to interfere as little as possible with the use of said premises for grazing livestock thereon. That said destruction and impairment of said property as aforesaid has created hazardous crossings of roads, fields and streams in the movement of plaintiff's livestock, to the diminishing of the value of plaintiff's property, to plaintiff's damage in the sum of $2160.00.'

The jury awarded damages in a lump sum in the full amount claimed in the complaint. From the complaint, the instructions of the court, and the course which the entire trial followed, it is clear that of the total amount awarded as damages, $17,500 represented the cost of disposal of the slashings, and $9,360, the value of loss of use of the premises. The total amount of the verdict, $26,860, is the sum reached by adding together the several specific amounts alleged in paragraphs VIII, IX, and X of the complaint, supra.

The award for loss of use was arrived at by computing the reasonable rental value of the 3,600 acres as a cattle ranch for two years which, according to evidence produced, gave a figure of $7,200, and the remaining $2,160 was the value placed on its use in the sheep operation for the same length of time. This verdict was reached under plaintiff's theory that the destruction of the fences, roads, and the regular flow of streams on the 1,000 acres actually logged over, and the covering of 400 acres of this with slashings and other debris resulted in depriving her of the use of the entire Stanley Creek range.

The $17,500 allowed for cost of disposal of the slashings was based upon testimony by plaintiff's witness Schroeder that six to seven million board feet of timber were taken by defendant from plaintiff's lands, and that the reasonable cost of hand piling and burning the slashings therefrom would be between $2 to $2.50 per thousand feet of timber cut. The jury apparently adopted the largest of these figures in both instances, allowing plaintiff $2.50 per thousand feet on a total of seven million feet. Defendant's office records showed a total of $4,080,435 board feet cut and removed from the property.

Defendant objected to the testimony of the witness as the basis of allowing damages for cost of removal of the slashings upon the ground that it was speculative and mere guess work. Obviously, the figures 'six to seven million feet', and '$2.00 to $2.50 per thousand feet' are not definite and certain; they are speculative. The jury was left to speculate whether the actual amount removed was six million feet or any other amount in excess of that up to seven million feet, and also as to the true cost of removal. The purely speculative character of Schroeder's testimony is well illustrated by the following quotations from the record.

On direct examination the witness was asked:

'Q. Could you, Mr. Schroeder, make some estimate...