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: 

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### Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court. This isan appeal from an award of damages by the district court, Fergus County, sittingwithout 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 admittedby stipulation that ithad gone upon the realproperty belonging toplaintiff and cut 208,000 board feet of timber. The sole issue attrialand on appeal 

### is the measure and amount of damages. The district court found these facts: 1) Plaintiff didnot enter into any contract to selltimber and did not want the timber disturbed. 2) The trespass was notwillfulnor malicious but there
was indication of lack of due care. 3) The land was damaged as a result of the logging. 

### 4) The fairvalue of the timber taken was $25 per thousand board feet stumpage or $75 per thousand board feet atthe mill. The court's conclusions of law held: 1) Plaintiff suffered loss 05the timber removed and detriment to the realproperty not easily translatable tomoney 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 treeswherethe trespass was other than casual or involuntarywas 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 oralargument to this Court. The lumber company cited texts and cases from other statesholding that the general measure of damages 

### is the value atthe time of conversion. Section 17-404, R.C.M. states: "The detriment caused by thewrongful conversion of personal property 

### ispresumed tobe: 

### 1. The value of the property atthe time of 

### its conversion, with the interest from that time; or where the actionhas been prosecuted with reasonable diligence, the highest market value of the property atany time between the conversion and the verdict, without interest, atthe option of the injured party; and, 

### 2. A faircompensation for the time and money properly expended inpursuit of the property." The highest value of the lumber inthe hands of the party that converted it 

### is the market value atthe mill. It i'sclear the districtcourt felt that stumpage value alone would give the lumber company thebenefit of 

### itsown wrong and encourage trespass and conversion, especiallywhere there isbetter timber on adjoining land where the owner 

### willnot sell. Since the district court did not grant interest it is obvious that highest value was used. We findno error. The judgment of the district court isaffirmed. 

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