What causes us more concern is the measure of damages. Appellee, after introducing evidence only as to the value of the cut timber at the mill, argues to this court that the correct gauge is the "value on the stump and not when sold" citing Allen v. Ferguson, Ky., 253 S.W.2d 8 (1952). Kentucky adheres to the general statement appearing in 52 Am.Jur.2d Logs and Timber ยง 128 (1970) that:
Under Kentucky law, the proper measure of damages for timber that is improperly removed is either: (1) "the reasonable market value of the timber on the stump" or (2) "the gross sale price at the point of delivery." Gum v. Coyle, 665 S.W.2d 929, 930-31 (Ky. App. 1984) citingAllen v. Ferguson, 253 S.W.2d 8 (Ky. 1952); Morris v. Thomas Forman Co., 266 S.W. 873 (Ky. App. 1924). The Plaintiffs must prove facts "which afford a basis for measuring or computing damages with reasonable certainty."
For that reason, we are remanding the case for a new trial but note in doing so that appellees' cause of action is one for breach of the contract and appellees should only be allowed to recover for those acts which are not specifically or implicitly allowed by the contract. If there were trees cut off the right of way that could not be reasonably expected to interfere with the transmission line, then appellant must respond in damages. See Barron v. Phelps, Ky., 238 S.W.2d 1016 and Allen v. Ferguson, Ky., 253 S.W.2d 8. The other damages complained of seem minimal to us and of a temporary nature for proper instruction. See 1 Stanley's Instructions to Juries, 512 Damage, ยง 325. Appellees should be given reasonable opportunity to amend the complaint as allowed by C.R. 15.02 and plead the contract.
However, in the instant action there was evidence that at the time Metcalf sold this timber he went upon the disputed area with the vendee and pointed out the boundaries within which timber should be cut and removed. When the vendor actively encourages the commission of a trespass he may be held liable for it. Allen v. Ferguson, Ky., 253 S.W.2d 8; 34 Am.Jur., Logs and Timber, Section 116. It is next contended this action was barred by the five-year statute of limitations (KRS 413.120(4)) because there was evidence that the cause of action had accrued more than five years before the Jacksons filed their complaint.
The rule heretofore adopted by this court is that where timber is cut and removed by an innocent trespasser, the measure of damages is the reasonable market value of the timber on the stump. Allen v. Ferguson, Ky., 253 S.W.2d 8. If the trespass is willful, a different measure is applied. In that event the measure of damages is the gross sale price at the point of delivery.