Williams v. Elm City Lumber Co.

• Citation: 70 S.E. 631,154 N.C. 306
• Parties: WILLIAMS et ux. v. ELM CITY LUMBER CO.
• Decision Date: 15 March 1911
• Court: North Carolina Supreme Court

70 S.E. 631

154 N.C. 306

WILLIAMS et ux. v. ELM CITY LUMBER CO.

Supreme Court of North Carolina

March 15, 1911

Appeal from Superior Court, Craven County; G. W. Ward, Judge.

Action by J. D. Williams and wife against the Elm City Lumber Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Where a purchaser of standing timber of a specified measure cut timber of smaller size and destroyed the under-growth on the land, the owner could not recover the prospective value of the trees wrongfully cut, but the jury could consider their value in determining the injury to the land, and they could consider the species of the trees, whether of rapid or slow growth, whether merchantable after attaining their size, and the nature of the soil and the nearness to market.

The measure of damages for wrongfully cutting ornamental trees is the difference in the value of the land before and after cutting.

Guion & Guion, for appellant.

Moore & Dunn, for appellees.

ALLEN J.

It is admitted that the plaintiff Laura E. Williams is the owner of the land described in the complaint, and that on the 20th day of March, 1903, she conveyed to the defendant, for value "all the pine timber that is now or may be standing lying or growing thereon during the term of this lease (five years), 15 inches in diameter at a point 2 feet above the ground." It was also provided in said conveyance that the timber should not be cut over more than one time. The plaintiff alleges that the defendant, while exercising its rights under said conveyance, cut timber less in size than that conveyed, and destroyed undergrowth on the land to her damage $5,000. This was denied by defendant in its answer, but at the trial it was admitted that some trees under size were cut. There are 14 exceptions in the record, but all of them are dependent on the determination of two questions.

1. There are several exceptions to evidence and to refusal to give instructions which involve the competency of evidence as to the prospective value of small trees cut on the land, and the right to consider such evidence in estimating the damage. One witness testified that he estimated the value of the timber cut under size at $4,000, and that in reaching this conclusion he considered the value of the timber if left there up to this time. Another answered the question "What would have been its value if it had had its ordinary growth? The lumbermen say 6 per cent. interest on their investment what they paid. Taking that in consideration, I should think the growth would be about making it about 10 per cent. for the whole." Another "Q. That small timber has a greater value to the owner of the land in its future growth than it has as timber trees? A. Older timber only has a timber value. Q. Ten and fifteen inch stuff has a greater value in its growth to the land than it has as to timber value? A. In its growth." Another: "Q. As a man owning young timber, you value your young timber more than at stumpage value? A. No, sir. Q. It has an intrinsic value in its prospective growth? A. Yes, sir." We do not commend the form of these questions, but when the answers are read in connection with the other parts of the record, and particularly with the charge of his honor, we do not think there is error. The evidence was directed to the growth of the trees and their increased value by growth as a fact to be taken into consideration in fixing the value of the trees when cut, and his honor so limited it in his charge. He said: "The court charges you that the measure of damages is the value of the trees which were unlawfully cut, with the incidental damages therefrom to the undergrowth. Now, you will have to get at that from the facts and circumstances of the case, and find what the trees would be worth, not necessarily confined to board measure, but you can consider the evidence as to the value of the trees as piling, and all evidence that tends to show whether they would grow, or whether they would not, and, if they would grow, how much will they grow. The figures and estimates have been given you by the witnesses. You will remember what they were." The plaintiff was not entitled to recover the prospective value of the tree, but the jury could consider this value in determining the injury to the land. It would be competent for the jury to consider the species of the tree, whether of rapid or slow growth, whether it would be merchantable when it attained its size, the nature of the soil, whether drained or not, nearness to or remoteness from market, the difficulties of marketing, and any other relevant facts to enable them to determine its value at the time of cutting and the effect of cutting on the value of the land. We not only do not think the defendant suffered any injustice by the admission of the evidence and the refusal to give the instructions requested, but we are of the opinion that the rule for the measure of damage adopted by his honor was more favorable...