No. 13544 

IN THE SUPREME COURT OF TIE STATE OF I4ONTANA 

1977 

ELLEN J. RICKL, 

Plaintiff and Xespondent, 

BRAND S. LUMBER COMPANY, 

a corporation, 

Defendant and Appellant: 

Appeal from: District Court of the Tenth Judicial District, 

Honorable LeRoy L. McKinnon, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert L. Kelleher argued, B illings, Montana 

For Respondent : 

Leonard H. McKinney argued, Lewistown, Montana 

Submitted: January 21, 1977 

Decided: CEfi 16 ?Qn -.-+ 

Filed: -'k[3i:.k 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an award of damages by the district 

court, Fergus County, sitting without a jury. Plaintiff Ellen 

J. Rick1 owned a piece of land adjacent to land on which defendant 

Brand S. Lumber Company had secured consent to cut timber. The 

lumber company admitted by stipulation that it had gone upon the 

real property belonging to plaintiff and cut 208,000 board feet 

of timber. 

The sole issue at trial and on appeal is the measure and 

amount of damages. 

The district court found these facts: 

1) Plaintiff did not enter into any contract to sell timber 

and did not want the timber disturbed. 

2) The trespass was not willful nor malicious but there 

was indication of lack of due care. 

3) The land was damaged as a result of the logging. 

4) The fair value of the timber taken was $25 per thousand 

board feet stumpage or $75 per thousand board feet at the mill. 

The court's conclusions of law held: 

1) Plaintiff suffered loss 05 the timber removed and detriment to the real property not easily translatable to money damages. 

2) A damage award based on stumpage value would give 

defendant the benefit of its own wrong. 

3) Plaintiff should recover damages in the amount of $75 

per thousand board feet, together with costs. 

In the district court plaintiff argued section 17-503, 

R.C.M. 1947, which grants treble damages for injury to trees where 
the trespass was other than casual or involuntary was the applicable statute. The district court granted damages based on actual 

detriment only and not treble damages, Plaintiff abandoned argument that section 17-503, R.C.M. 1947, was the proper statute 

during oral argument to this Court. 

The lumber company cited texts and cases from other 

states holding that the general measure of damages is the value 

at the time of conversion. Section 17-404, R.C.M. states: 

"The detriment caused by the wrongful conversion of 

personal property is presumed to be: 

1. The value of the property at the time of its 

conversion, with the interest from that time; or 

where the action has been prosecuted with reasonable 

diligence, the highest market value of the property 

at any time between the conversion and the verdict, 

without interest, at the option of the injured party; 

and, 

2. A fair compensation for the time and money properly 

expended in pursuit of the property." 

The highest value of the lumber in the hands of the party 

that converted it is the market value at the mill. It i's clear 

the district court felt that stumpage value alone would give the 

lumber company the benefit of its own wrong and encourage trespass 

and conversion, especially where there is better timber on 

adjoining land where the owner will not sell. Since the district 

court did not grant interest it is obvious that highest value was 

used. 

We find no error. The judgment of the district court 

is affirmed. ,? 
We Concur: 

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chief Just ce