#### CUMMER-GRAHAM CO., Petitioner, v. W. A. MADDOX et al., Respondents.

No. A-5321.

Supreme Court of Texas.

Jan. 18, 1956.

B. F. Edwards, Clarksville, O. B. Fisher, Paris, for petitioner.

Austin Guest, Clarksville, Hardy Moore, Paris, for respondents.

CULVER, Justice.

The question here concerns the measure of damages to be allowed the landowner *933for standing timber cut and sawed into lumber by one who honestly believed he had a right to so do.

The trial court rendered judgment for the landowner based on stumpage value or in other words the market value of the standing timber at the time it was cut. The Court of Civil Appeals .reversed and rendered, holding that the landowner was entitled to be compensated for the value of the lumber sawed from his trees. 277 S.W.2d 774, 776.

The facts may be summarized rather briefly., Cummer-Graham. Company, petitioner here, acquired title to certain soft wood timber from the owner, Jones, of a large tract of land. Thereafter Jones conveyed the land to Maddox,-the respondent.

Acting in good faith under a claim of-right petitioner, through its agent and con-, tractor, felled and sawed into lumber certain elm and gum timber not included in its timber deed, but in .fact .belonging to respondents. The following stipulation was filed:

> “It is stipulated and agreed between Plaintiffs and Defendant that the gum timber was 10,991 feet and elm lumber 35,147 feet. It is stipulated that the value in the stump of elm was $4.00 per thousand board feet and the gum $5.00 per thousand board feet and that the manufactured value of both in Red River County at the time it was sawed into lumber as testified to by witness, John Crain, was $40.00 per thousand feet.”

The Court of Civil Appeals in allowing the landowner the value of the manufactured timber did so on the theory .that petitioner was a trespasser “as a matter of law,” presumably guilty of a willful and intentional trespass. But the testimony as to the oral agreement between petitioner and Jones was admissible for the reason that it bore upon the good faith belief on the part of petitioner that he was entitled to cut the timber and it was so limited' by the trial judge. In fact respondents concede petitioner’s good faith. Much has been written on this subject and the authorities are not at all uniform. ■

In Arkansas the landowner whose timber has been cut and sawed into lumber-by someone acting.under an honest but mistaken belief-of ownership is entitled to recover the lumber or its value; less processing costs. Eaton v. Langley, 65 Ark. 448, 47 S.W. 123, 42 L.R.A. 474.

In Burbridge v. Bradley Lumber Co., 218 Ark. 897, 239 S.W.2d 285, the court' follows the rule announced by ’the Eaton case and discusses fully Other Arkansas cases, some expressing a contrary view.

We are of the opinion that in Texas the question is ruled by Kirby Lumber Co. v. Temple Lumber Co., 125 Tex. 284, 83 S.W.2d 638. There Judge C.ritz reviewed at length many of the leading authorities. The respondent says of that case:

> “[It] does seem to hold that the ‘innocent’ trespasser is liable only for the value of the article at the time it was taken. The fact is, however, that the question now presented was not raised in the Kirby Lumber Company case, nor is the question foreclosed by that decision, * *

In the trial court Kirby Lumber-Company obtained a judgment for -the value of the finished lumber cut front trees by Temple Lumber Company. That judgment was reversed and rendered by the Court of Civil Appeals. This court set aside both judgments -below and allowed Kirby' Lumber Company to recover only the stumpage value instead of the manufactured value for the reason that the Temple Lumber Company acted, in good faith-and without malice, actual or implied. It is true in that-case that the parties were cotenants, but we think what the court hás skid applies with equal force here though the petitioner is denominated an innocent “trespasser” instead of a “cotenant”. Judge Critz cites with approval Louis Werner Stave Co. v. Pickering, 55 Tex.Civ.App. 632, 119 S.W. 333, quoting at length -from the opinion by Judge Pleasants. In that case, as in this, the cutting of the trees resulted from an *934innocent and unintentional trespass. The felled timber had been processed into staves. The landowner was relegated to the value of the timber when first appropriated. Other cases to the same general effect are cited and analyzed in the Kirby Lumber Company opinion, namely, Young v. Pine Ridge Lumber Co., Tex.Civ.App., 100 S.W. 784; Texas & N. O. R. Co. v. Jones’ Ex’rs, 34 Tex.Civ.App. 94, 77 S.W. 955; De Witz v. Saner-Whiteman Lumber Co., Tex.Civ.App., 155 S.W. 980, as well as decisions from other jurisdictions.

The analogy is further borne out by the similarity recognized by Judge Critz between the facts of that case and the one here under consideration, for he says [125 Tex. 284, 83 S.W.2d 646] :

> “ * * * In other words, the authorities seem to recognize the fact that the issue of trespass may be in- . volved where one cotenant ousts another cotenant, and claims adversely to him. It seems to us that in such instances the cotenant ousting his co-tenant should be classed as a trespasser. # * **»*

The Court of Civil Appeals in Martin v. J. S. Hunt Lumber Co., Tex.Civ.App., 180 S.W.2d 956, under facts very similar, cited and followed Kirby Lumber Co. v. Temple Lumber Co., supra, holding that where one in good faith, believing he has a right so to do, cuts timber upon the land of another, he can be held in damages to no more than the value of the timber at the time it was cut and will not be awarded the value of the manufactured lumber. To the same effect is Martin v. Grogan-Cochran Lumber Co., Tex.Civ.App., 176 S.W.2d 780.

In Vol. 3, Sedgwick on Damages, at p. 1927, the rule is stated to be:

> “But where the defendant acted in good faith the plaintiff, according to the doctrine now prevailing, is entitled to recover only the value of the trees in situs, that is the stumpage, together with compensation for any injury to the land.”

The text cites the argument made for this rule in Foote v. Merrill, 54 N.H. 490, 491:

> “Had the defendant set fire to plaintiff’s trees and destroyed them the measure of damages would have been their value as they stood on the land; and we cannot say that he justly ought to pay any more for cutting and removing them than destroying them, nor that the plaintiff ought to receive any more in one case than in the other.”

This rule is followed in J. F. Ball & Brother Lumber Co. v. Simms Lumber Co., 121 La. 627, 46 So. 674, 18 L.R.A.,N.S., 244.

The holdings of our Texas courts seem to be uniform in respect to this rule. Pettit v. Frothingham, 48 Tex.Civ.App. 105, 106 S.W. 907, no writ; Bayle v. Norris, Tex.Civ.App., 134 S.W. 767, writ ref., and De Witz v. Saner-Whiteman Lumber Co., Tex.Civ.App., 155 S.W. 980.

In White v. Smyth, 147 Tex. 272, 214 S.W.2d 967, 5 A.L.R.2d 1348, a cotenant, even though he had not appropriated more than his undivided interest in the asphalt rock in place, was held to be liable to the other cotenants for their percentage of the profits in the manufactured road material. It could well be argued that no heavier legal obligation should be imposed on a co-tenant than on an innocent trespasser and that the holding in the Smyth case inferentially conflicted with and overruled that of Kirby Lumber and this view was strongly urged in the dissenting opinion of Justice Simpson, joined by three other members of the court. However, the majority does make what is called the “important distinction” between the two cases in that the timber over the land in Kirby Lumber was generally of uniform value and subject to partition in kind, whereas in the Smyth case the rock asphalt was not.

For yet another reason the Smyth case does not seem to be controlling here. The landowner is not given the right of an accounting against the innocent trespasser. As said in United States v. Bitter Root Development Co., 200 U.S. 451, 478, 26 *935S.Ct. 318, 327, 50 L.Ed. 550, 563, a case involving the value of certain timber alleged to have been wrongfully cut and appropriated, “we do not think that this is any such case as gives a court of equity jurisdiction because of an accounting being necessary. There are no accounts between the parties.' The cause. of action is one arising in tort, and cannot be converted into one for an account. The case made is a plain trespass, for which the defendants are Háble in damages.”

At any rate we see no reason to disturb the well settled rule in our jurisdiction that stumpage value is the proper measure of damages in a case of this kind.

Respondent relies on Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A.,N.S., 268; Bender v. Brooks, 103 Tex. 329, 127 S.W. 168, 170. Both of these cases had to do with the production of oil by persons who operated under the mistaken though good faith belief of right.

In Bender v. Brooks, Judge Brown quoted the following rule as being applicable to those facts:

> “ ‘It is the prevailing rule that in an action for unlawfully working a mine and extracting coal or ore therefrom, if the taking was not a willful trespass, but was the result of an honest mistake as to the true ownership of the mine, the measure of damages is the value of the coal or ore as it was in the mine before it was disturbed. The recovery in such case is limited first by the value of what is taken, and second by the cost of mining, extraction, and hoisting to the surface or delivering at the pit’s mouth.’ ”

And what Judge Brown means to say, we think, is that the value of the oil in the ground is to be determined by the value when hoisted to the surface less the cost of the hoisting. We think therein lies the distinction between the latter two cases and the Kirby Lumber Company case. As respondent obsérves; these two cases were not cited by the author of Kirby Lumber 'Company though written 25 years earlier.

By counter point respondent urges that at any rate he is entitled to a judgment based on the verdict of the jury fixing his damages at $5 per acre. Considerable testimony was admitted on this feature of the case and reviewed somewhat in detail in respondent’s brief. The jury found that elm and gum were cut off of 300 acres of respondent’s land which was thereby damaged to the extent of $5 an acre.

Respondent' says that he was entitled to choose either measure of damages and that in any event he should be allowed a judgment based on the verdict, citing Shell Pipe Line Corp. v. Svrcek, Tex.Civ.App., 37 S.W.2d 297; Stephenville, N. & S. T. Ry. Co. v. Baker, Tex.Civ.App., 203 S.W. 385.

As said in Pacific Express Co. v. Lasker Real-Estate Ass’n, 81 Tex. 81, 16 S.W. 792, 793, “The purpose, in every case, is to compensate the owner for the injury received, and the measure of damages which will accomplish this in a given case- ought to be adopted.” This is not to say that under some circumstances the landowner’s damage in a tree-cutting case would not be measured by depreciation in market value of the land, but under the facts here it would seem that respondent is amply compensated for his damage when he is paid the market value of the timber before it is cut.

Judgment was rendered “non ob-stante veredicto” by the trial court. We think the Court of Civil Appeals [277 S.W.2d 775] correctly held that “There was no admissible evidence of any probative force to justify the submission of damages to the value of the land.” This is so for the reason that in addition to the severed timber the only other damage to the land alleged was the destruction'of some fences. The value of. -the fencing destroyed was found by the jury to be in the sum of $250 and this amount was included in the judgment.

The rule generally is, we think, as stated in Grell v. Lumsden, 206 Iowa 166, 220 N.W. 123, 125:

> *936«* * * jf the thing destroyed or removed from real property, although a part thereof, has a value which can be accurately, measured or ascertained without reference to the soil on which it stands, the recovery is the value of the thing thus destroyed or removed, and not the difference in the value of the land. * * * ”

On the other hand if the trees have only a value with reference to the land such as for the purpose of shade or ornamentation ■ or if they be fruit trees or young growth which has no market value, then the proper measure of damage would be the difference in the value of the land before and after. Hall v. Seaboard Air Line R. Co., 126 S.C. 330, 119 S.E. 910, 33 A.L.R. 292; Norfolk & W. R. Co. v. Richmond Cedar Works, 160 Va. 790, 170 S.E. 5; Miniard v. Napier, 167 Ky. 208, 180 S.W. 363; Coody v. Gress Lumber Co., 82 Ga. 793, 10 S.E. 218. See generally 161 A.L.R. page 549 et seq.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed in all things.

SMITH, J., dissenting.