Smith v. Shiflett, 37371
| Decision Date | 17 June 1965 |
| Docket Number | No. 37371,37371 |
| Citation | 66 Wn.2d 462,403 P.2d 364 |
| Court | Washington Supreme Court |
| Parties | Catherine SMITH, Warren Olson and Edith Olson, Respondents, v. Earl E. SHIFLETT, Philip A. Cook, George A. Brown, d/b/a Kettle River Lumber Co., and Deer Park Pine Industry, Inc., Appellants. |
Witherspoon, Kelley, Davenport & Toole, E. Glenn Harmon, Spokane, Hancock & Kohls, B. E. Kohls, Omak, for appellants.
Richard A. Perry, Republic, for respondents.
This is another case of trespassing loggers cutting timber and seeking to avoid the statutory treble damages 1 by urging that they did not know they were trespassing. It also involves the issue of the measure of damages to be paid by the mill which bought the timber from the loggers and thereby became responsible in conversion.
The purposes for which our treble damage statute was enacted are stated in Guay v. Washington Natural Gas Co. (1963), 62 Wash.2d 473, 476, 383 P.2d 296, one of them being:
In short, that there should be no self-created right of eminent domain.
The findings of the trial court--that the timber cut (38,320 board feet of Ponderosa Pine and 1070 board feet of Douglas Fir) by the defendant Earl E. Shiflett (as the agent of the defendants, Philip A. Cook and George A. Brown) belonged to the plaintiffs--are supported by substantial evidence. It is undisputed that it was ultimately delivered to the defendant Deer Park Pine Industry, Inc. (hereinafter called Deer Park), at a place where Deer Park took possession of the timber for shipment to its mill, and thereby became an innocent converter.
The hotly controverted issue, in both the trespass and conversion phases of this case, is not whether the plaintiffs should be paid for their timber, but how much.
The net stumpage market value of the timber cut was found to be $12.50 per thousand board feet for the Pine and $6.00 per thousand board feet for the Fir; a total of $485.42. The issue between the plaintiffs and the loggers was whether the stumpage value should be trebled ($1,456.26).
The trial court found, and there was substantial evidence to sustain the finding, that the value of the timber when delivered to defendant Deer Park was $32.50 per thousand board feet, or a value at the time of its conversion by Deer Park of $1,251.82. 2 The issue between the plaintiffs and Deer Park was whether the recovery should be the stumpage value ($485.42), or the value after it had been skidded, loaded, and hauled to the railroad.
The difference of the maximum amount claimed by the plaintiffs against the loggers ($1,456.26) and the maximum amount claimed against Deer Park for the conversion ($1,251.82) accounts for the form of the judgment, I.e., a judgment against all defendants for the smaller amount $1,251.82, and against the loggers for an additional amount of $204.44 to bring it, as against them, to $1,456.26. (The loggers were primarily liable, and Deer Park was to have subrogation against them, if it paid the part of the judgment for which it was liable.)
It is clear that treble damages will be imposed upon trespassers cutting timber under RCW 64.12.030, unless those trespassing exculpate themselves under the provisions of RCW 64.12.040. It must be made to appear that the trespass was casual or involuntary, or that
'* * * the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, * * *' RCW 64.12.040.
Frederickson v. Snohomish County (1937), 190 Wash. 323, 67 P.2d 886, 111 A.L.R. 75. If the defendants come within the protection of RCW 64.12.040, the judgment shall be for single damages.
On the other hand, Deer Park stands in the position of being an innocent purchaser from the loggers who cut and converted the timber of the plaintiffs to their own use. Whether Deer Park is liable to the plaintiffs for the value of the timber at the time of the conversion by the loggers, I.e., stumpage value, or the value of the timber at the time of Deer Park's conversion, I.e., when it acquired the timber from the loggers, depends on whether the original conversion by the loggers was willful. Grays Harbor County v. Bay City Lbr. Co. (1955), 47 Wash.2d 879, 289 P.2d 975; Watkins v. Siler Logging Co. (1941), 9 Wash.2d 703, 116 P.2d 315. The rule, as stated in the former case, is as follows: In an action for conversion, a subsequent converter does not have the right to deduct the value added by the labor and expenditure of the original converter, when the original conversion was willful, and this rule applies even though the subsequent converter is an innocent purchaser for value.
Thus, in logging cases, if the willful conversion by the logger is established, the mill would be liable for the value of the timber at the time it acquired possession, and the logger would be liable for treble damages. 3
In the present case, the trespass having been established the trier of the facts was clearly convinced that the trespass was neither casual nor involuntary.
The defendant Shiflett, who actually cut the timber while operating in several different sections, never made any pretense of making a survey; nor did he attempt to find out who owned the land where he was cutting. Shiflett said that the one person (an ostensible owner) who gave him instructions where to cut, told him to cut everything beyond a certain gate. The first tree he cut was a quarter of a mile beyond the gate, and he was immediately advised by one of the plaintiffs (Warren Olson) that the tree belonged to the plaintiffs and that they owned land in that area. This was adequate to put defendant Shiflett on notice that the ostensible owner, who had given him his only instructions (and who never testified and was never proved to be an owner) did not know where the property lines were, and that he (Shiflett) would be proceeding at his own risk in cutting any timber without further investigation. (It is true that the plaintiff Olson did not at that time know the property lines of the plaintiffs with any degree of exactness, but he certainly was not telling Shiflett where he could cut.) Shiflett just moved a half or three-quarters of a mile east and cut 30 more trees without any further investigation.
The best that can be said for Shiflett is that he didn't deliberately cut the trees, knowing them to belong to the plaintiffs; but he proceeded without making any survey, or any adequate investigation, and without probable cause to believe that the trees being cut were on land where he had authority to be.
We have had occasion to hold that obviously inadequate surveys were not evidence of good faith. Blake v. Grant (1964), 65 Wash.Dec.2d 393, 397 P.2d 843; Heybrook v. Index Lbr. Co. (1908), 49 Wash. 378, 95 P. 324; and that evidence of willfulness may be established by circumstantial evidence. Fredericksen v. Snohomish County, supra; Harold v. Toomey (1916), 92 Wash. 297, 158 P. 986.
The trespass being neither casual nor involuntary, Shiflett did not bring himself within the letter or the spirit of RCW 64.12.040; and we are satisfied that the trial court was correct in concluding that the trespass was within the terms of RCW...
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Table of Cases
...80 Wash. 273, 141 P. 695 (1914): 3.6, 3.11, 3.12(2)(a)(ii) Smith v. Nechanicky, 123 Wash. 8, 211 P. 880 (1923): 11.4(2) Smith v. Shiflett, 66 Wn.2d 462, 403 P.2d 364 (1965): 19.4(3) Smith v. State, 184 Wash. 58, 50 P.2d 32 (1935): 12.2(5)(a)(ii) Smith Tug & Barge Co. v. Colum.-Pac. Towing C......
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§ 19.4 - Trespass
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