Siuslaw Timber Co. v. Russell

• Decision Date: 04 February 1919
• Citation: 91 Or. 6,178 P. 214
• Parties: SIUSLAW TIMBER CO. v. RUSSELL.
• Court: Oregon Supreme Court

178 P. 214

91 Or. 6

SIUSLAW TIMBER CO. v. RUSSELL.

Supreme Court of Oregon

February 4, 1919

Department 1.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by the Siuslaw Timber Company against Elmer Russell. From judgment for plaintiff for less than claimed, with judgment for defendant for costs, plaintiff appeals. Affirmed.

This is an action brought to recover damages for willful trespass in cutting timber upon the lands of another. The complaint after alleging the corporate character of plaintiff and its ownership of certain lands described therein, which contained merchantable timber growing thereon, avers that the defendant went upon the lands and cut and hauled away certain timber therefrom of the value of $163.04. It is then alleged:

"That the said defendant entered upon the said lands willfully and knowingly and cut the said timber and hauled a large portion thereof away for the purpose of cheating and defrauding this plaintiff."

These allegations are followed by a prayer for treble damages in the sum of $489.12.

The answer admits the trespass, but asserts that the defendant had purchased the timber growing upon an adjacent tract of land, and that the party from whom he had purchased showed him where the boundary lines were, and that he acted in good faith, believing that he was cutting his own timber. Defendant admits the cutting and removal of timber to the value of $35.75, for which amount he tenders judgment. A reply having been filed, there was a trial to a jury, which resulted in a verdict for the plaintiff in the sum of $46.95. This verdict was returned on October 20, 1916, and the court made an order directing the clerk not to enter the judgment until the further order of the court. On October 26, 1916 defendant filed his cost bill, and on April 4, 1917, judgment was entered in the following form:

"This matter coming on to be heard this 4th day of April, 1917 upon the motion of the plaintiff herein for judgment on the verdict in said cause, and it appearing from the record and files herein that the jury in said cause rendered the verdict on the 20th day of October, 1916, in favor of the plaintiff and against the defendant for the sum of $46.95 and it further appearing to the court that on October 26 1916, the defendant herein filed his cost bill against the plaintiff for the sum of $96.20, and the court at the time of receiving said verdict, having by order deferred the entry of judgment upon said verdict pending a determination of the rights of the parties pursuant thereto, and the court, after argument, now being fully advised in the matter, does find that the plaintiff is entitled to judgment against the defendant for the sum of $46.95, the amount found by the jury, and that the defendant is entitled to a judgment against the plaintiff for the amount of his costs as taxed in the sum of $96.20.

"Now, therefore, it is hereby ordered, adjudged, and decreed that the plaintiff do have and is hereby awarded a judgment against the defendant for the sum of $46.95.

"And it is further ordered, adjudged, and decreed that the defendant do have and is hereby awarded judgment against the plaintiff for his costs herein in the sum of $96.20."

Plaintiff appeals.

John M. Williams, of Eugene (Williams & Bean, of Eugene, on the brief), for appellant.

O. H. Foster, of Eugene, for respondent.

BENSON, J. (after stating the facts as above).

Counsel for plaintiff presents two propositions upon the basis of which it is urged that the judgment of the trial court should be reversed. The first of these challenges the propriety of an instruction given to the jury by the court in the following language:

"The terms 'willfully' and 'knowingly' as used in this connection mean that the defendant at the time of the trespass must have known where the true boundary line of the plaintiff's lands was and must have entered upon the lands of plaintiff and cut the timber therefrom with such knowledge, and with the intention of cutting the timber from plaintiff's lands."

The complaint herein is based upon the provisions of sections 346 and 347, L. O. L., which read thus:

"Whenever any person shall cut down, girdle, or otherwise injure, or

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