Southern Oregon Co. v. Kight

• Court: Oregon Supreme Court
• Writing for the Court: BEAN, J.
• Citation: Southern Oregon Co. v. Kight, 112 Or. 66, 228 P. 132 (Or. 1924)
• Decision Date: 22 July 1924
• Parties: SOUTHERN OREGON CO. v. KIGHT ET AL. [*]

228 P. 132

112 Or. 66

SOUTHERN OREGON CO. v. KIGHT ET AL. ^[*]

Supreme Court of Oregon

July 22, 1924

Department 2.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by the Southern Oregon Company against W. W. Kight and another, copartners doing business as Kight & Train. From a judgment setting aside verdict and granting plaintiff's motion for a new trial, defendants appeal. Affirmed.

John D. Goss, of Marshfield (Goss, Kendall & Murphy of Marshfield, and S.D. Pulford, of Coquille, on the brief) for appellants.

John G Mullen, of North Bend, and A. J. Sherwood, of Coquille, for respondent.

BEAN J.

This is an action to recover treble damages for the alleged cutting of timber by defendants on the lands of plaintiff. After the testimony in the case was closed and the jury instructed, the court on its own motion submitted to the jury this question "Did defendants trespass upon plaintiff's land?" The jury answered this question in the negative and brought in a general verdict for defendants. Plaintiff filed its motion for a new trial which was granted by the court, using the following language:

"That the third amended answer admits, in effect, that a trespass was committed upon plaintiff's land as alleged in complaint; that the fact that such trespass was committed is shown and established by the evidence adduced at the trial of said cause and that a palpable and gross failure of justice under the law will be effected unless said verdict and the judgment thereon are vacated and set aside."

Defendants appeal. The plaintiff contends that the verdict was contrary to all the evidence of both plaintiff and defendants, and contrary to the admissions of defendants in their answer and in their testimony.

Preceding a reference to the evidence in the case, it is necessary to notice the issues raised by the pleadings. After the appropriate allegations of the corporate character of the plaintiff and the partnership of the defendants, it is alleged in the complaint that plaintiff at the time mentioned was the owner of the following described lands: North half (N. 1/2) of the northwest quarter (N.W. 1/4) of section eleven (11) and the southeast quarter (S. E. 1/4) of the southeast quarter (S. E. 1/4) of section three, all in township twenty-seven (27) south, range fourteen (14) west of the Willamette meridian in Coos county, Or., in fee simple.

That between the first day of April, 1918, and the 12th day of November that year, the defendants, without the plaintiff's permission and without authority, willfully and intentionally cut, destroyed, and removed from plaintiff's land, timber of the reasonable value of $2,981.63 and by reason thereof plaintiff became and is entitled to recover treble damages from the defendants, to wit, $8,944.89.

Defendants in their answer, after admitting the partnership of defendants, "deny each and every allegation in said complaint not herein admitted, qualified or specifically denied." For a further answer defendants allege in substance that in May, 1918, the defendants entered into a contract with the owners of the lands adjoining, and immediately north of part and east of part of the lands described in the complaint-- "whereby the defendants were granted the right to cut and remove timber from said lands and thereafter entered upon said lands pursuant to said contract and engaged in cutting and removing rived aeroplane lumber therefrom.

"That if any trespass whatever was committed upon any lands belonging to the plaintiff herein and if any timber was cut, at all, or removed by defendants from the lands described in the complaint, the same was done casually and involuntarily if at all, by the employés of the defendants, and in the honest belief on the part of the defendants that said timber belonged to the parties from whom defendants had purchased the timber upon said adjoining lands and that defendants had a perfect right and authority to cut and remove the same and the defendants had at all times good and reasonable cause to believe that they had the right to cut and remove said timber.

"That a large portion of the timber felled by the defendants was not removed from said lands, but remains thereon and is the property of and in the possession of the plaintiff: That said land was valuable only for the timber thereon and the timber cut and left there by the defendants is more valuable than it was when standing, and that the plaintiff has suffered no damages by reason of the cutting thereof."

That if any timber was cut or removed from the lands described, the same did not exceed 72,000 feet, nor is the value of the stumpage of said timber in excess of $515.

The last paragraph of the answer quoted above admits, in effect, that timber was felled upon plaintiff's lands and a trespass committed thereon, as alleged in the complaint. The whole trend of the answer of defendants is to show that the timber on the plaintiff's land was not willfully or intentionally cut or removed from said lands, in order to avoid the payment of treble damages under the statute, and to minimize the amount and value thereof. The statement in the answer "that a large portion of the timber felled by defendants was not removed from said lands, but remains thereon and is the property and in the possession of the plaintiff," is susceptible of no other construction.

Or. L. 346, provides in part:

"Whenever any person shall cut down, girdle or otherwise injure, or carry off any tree, timber or shrub on the land of another person, * * * without lawful authority, in an action, * * * if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed, or assessed therefor, as the case may be; provided, that in any such action, upon plaintiff's proof of his ownership of the premises and the commission by the defendant of any of the aforesaid mentioned acts, it shall be prima facie evidence that such acts were done and committed by defendant willfully, intentionally and without plaintiff's consent."

Section 347, Or. L., is in part as follows:

"If, upon the trial of such action, it shall 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 * * * judgment shall only be given for single damages."

The following map shows the location of the different tracts of land involved:

(Image Omitted)

The testimony, on the part of the defendants, as we construe it, is substantially to the same effect as the answer of defendants as to the admissions. Robert Train, one of the defendants, testified in answer to the question, on cross-examination:

"Q. Did you cut timber on the north half of the northwest quarter of section 11? A. I guess we did; yes, sir. * * *

"Q. How many trees did you and Kight cut? A. Twenty-seven trees.

"Juryman: Were these trees on section 11? A. According to the McCulloch survey. * * *

"Q. Let us get the number of trees right; how many trees altogether, according to the claims of plaintiff, or claimed to be their line, which you understand were cut over this line by Kight & Train? A. They claim more than that.

"Q. How many do you claim? A. I claim there is 27 cedar trees and 8 spruce trees.

"Q. Altogether on both pieces? A. Yes, sir; altogether on both pieces. * * *

"Q. Now this alleged trespass was committed, these trees that have all been testified to having been cut, were cut by whom? A. By the Lewis brothers.

"Q. Did anybody else cut them? A. They were all cut by the Lewis brothers except 2. These 2 we cut west. * * *

"Q. How many were cut on the southeast quarter of 3? A. Four.

"Q. Eight altogether? A. Yes; 8 altogether."

C. W. Upton, a scaler, a witness for plaintiff, testified in effect that he made a scale of the timber alleged to have been cut on sections 11 and 3 and gave the total estimate as 253,718 feet. Mr. Kight, one of defendants, stated on his cross-examination in answer to a question, as follows:

"Q. You are interested in keeping this judgment down as low as possible? A. That is what I am here for."

Evidently the court, after mature deliberaion, decided that the submission to the jury of the question as to whether or not the defendants trespassed on plaintiff's land was an error; that the same was one of the causes which prevented the plaintiff from having a fair trial; and that the court should have instructed the jurors as to what the issues raised by the pleadings were.

It is shown by the evidence of Charles McCulloch, county surveyor of Coos county, who was a witness for plaintiff, that he found the true corner stake at the northeast corner of said section 11 and ran a line west to the northwest corner of that section, but did not find the government corner or stake at the latter corner of the section, but that he established the corner. Afterwards the true northwest corner of this section was found by D. L. Buckingham, a civil engineer, accompanied by S. B. Cathcart, showing that the northwest corner established by McCulloch was 19 feet east and 16.4 north of the true corner. The difference in the location of the McCulloch line and the true north line of section 11, as indicated by the testimony, would only involve 2 trees which were claimed to be cut on plaintiff's land which were between the McCulloch line and a line drawn from the northeast corner of section 11 to the true northwest corner of that section. The testimony tends to show that the defendants cut aeroplane timber some 600 or 800 feet south of either of the two lines mentioned; that is, over the line on plaintiff's land.

As between the qualified denial of the fact alleged...