Sligo Furnace Co. v. Hobart-Lee Tie Co.

• Citation: 153 Mo. App. 442,134 S.W. 585
• Parties: SLIGO FURNACE CO. v. HOBART-LEE TIE CO.
• Decision Date: 20 February 1911
• Court: Court of Appeal of Missouri (US)

134 S.W. 585

153 Mo. A. 442

SLIGO FURNACE CO. v. HOBART-LEE TIE CO.

Springfield Court of Appeals. Missouri.

February 20, 1911.

On Appellant's Motion to Modify Judgment, February 20, 1911.

1. TRESPASS (§ 52)—CUTTING AND REMOVING TIMBER—MEASURE OF DAMAGES.

The measure of damages for cutting and taking a person's timber under an honest mistake is the value of the timber before it was cut, but where the cutting and taking was by a willful trespasser, the measure of damages is the value of the timber in its improved condition without reduction for labor bestowed or expenses incurred by the trespasser.

2. ACCESSION (§ 2)—RIGHT TO RETAKE PROPERTY IN HANDS OF TRESPASSER.

An owner may follow and retake property in the hands of a willful trespasser, though it has been largely increased in value by the labor of the trespasser.

3. TRESPASS (§ 46) — HONEST MISTAKE—WILLFULNESS.

In an action for cutting and removing timber, evidence held to show a willful trespass by defendant and not an act in good faith under an honest mistake.

4. TRESPASS (§ 40)—WILLFULNESS—PLEADING.

An allegation that one "unlawfully and without right" trespassed on land and cut and removed timber thereon does not charge willfulness.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by the Sligo Furnace Company against the Hobart-Lee Tie Company. From a judgment granting partial relief, plaintiff appeals. Reversed and remanded.

Wm. P. Elmer, A. H. Harrison, G. E. Woodside, and G. C. Dalton, for appellant. Harry Clymer and Frank H. Farris, for respondent.

COX, J.

Action for conversion of railroad cross-ties; trial by court; judgment for plaintiff for $476 as value of the property, and $57.12 interest; and plaintiff has appealed.

The petition alleged plaintiff to be the owner of certain timber lands in Dent county, and that defendant unlawfully and without right trespassed thereon and cut the timber and made it into railroad cross-ties, and converted the ties to its own use. The answer was a general denial. A specific finding of facts was asked, and the court found that the agents of defendant were not willful trespassers, but had cut the timber by mistake, believing it to be located on land from which they had bought the timber and for that reason the court assessed the value of the ties at their value as they stood in the trees.

Appellant insists, first, that the measure of damages was the value of the ties regardless of the question of good faith in cutting them from plaintiff's land; second, that if the court adopted the correct measure of damages, his finding that the timber was cut by honest mistake is not supported by the testimony.

In our judgment the true rule for fixing the measure of damages is that if the timber was taken by honest mistake, then the value of the timber before being cut is the measure of damages, but if the party taking the timber knew he had no right to it, and thus became a willful trespasser in the first instance, then in a suit against him the measure of damages is the value of the timber in its improved condition without reduction for labor bestowed, or expense incurred by the wrongdoer. U. S. v. Ute Coal & Coke Co., 158 Fed. 20, 85 C. C. A. 302; Ayers v. Hobbs, 41 Ind. App. 576, 84 N. E. 554; Central Coal Co. v. John Henry Shoe Co., 69 Ark. 302, 63 S. W. 49; Everson v. Seller, 105 Ind. 266, 4 N. E. 854; Witliff v. Spreen, 51 Tex. Civ. App. 544, 112 S. W. 98; Kentucky Stave Co. v. Page (Ky.) 125 S. W. 170; Young v. Pine Ridge Lumber Co. (Tex. Civ. App.) 100 S. W. 784; Thompson v. Carter, 6 Ga. App. 604, 65 S. E. 599; E. E. Bolles Woodenware Co. v. United States, 106 U. S. 432, 1 Sup. Ct. 398, 27 L. Ed. 230. In the Bolles Case last cited, after stating the rule as above outlined, it is said that "This is now the generally accepted rule both in England and in this country." The law is not only careful to compensate the owner for the loss of his property, but it is also careful to see that a willful wrongdoer shall not profit by his own wrong, and by requiring him to respond in damages for the value of the property in its improved state both these purposes are accomplished. To fix the measure of damages at the value of the property in its improved condition when the party had taken it by honest mistake would be as harsh as to fix it at the value in the tree when taken by a willful trespasser would be unjust. In the former case the owner would be profiting by the labor of an honest man mistakenly bestowed upon his property, and in the latter case a willful trespasser would be profiting by his own wrong. The rule adopted in the cases above cited, and which was followed by the trial court in this case is just and fair to both parties, and, therefore, right.

We do not find that this precise question has been heretofore passed upon in this state, but we do think that the principle involved has been recognized. Thus in Gray v. Parker et al., 38 Mo. 160, an action in replevin, the court, in discussing the general question of the rights of the parties, uses this language: "if property is taken from the rightful owner by a willful trespasser and manufactured or converted by him into a different article, nevertheless, the title to the property will not be changed, and it will still belong to the owner of the original material if he can identify it. But this is not the law when the chattel is converted by the innocent holder or purchaser into a different specific article. The law makes a distinction in acquiring title to property by accession between a willful trespasser and an involuntary...