Robertson v. Welch

Full title: ROBERTSON v. WELCH

Court: Kansas City Court of Appeals, Missouri

Date published: Mar 3, 1952

246 S.W.2d 828 (Mo. Ct. App. 1952)

Opinion

No. 21732.

March 3, 1952.

Wilbur F. Daniels, Fayette, for appellant.

Scott O. Wright, Wm. H. Becker, John L. Hearne, E. Massey Watson, all of Columbia, for respondent.

BROADDUS, Presiding Judge.

This is an action for trespass brought by plaintiff, Virginia Hunt Robertson, against defendant, Arthur Welch, for the unlawful cutting of timber under R.S. 1949, § 537.340, V.A.M.S. That section provides that: "If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or woods standing, being or growing on the land of any other person, * * * the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed or carried away, with costs."

The case was tried to the court without a jury and plaintiff, Mrs. Robertson, was awarded actual damages in the amount of $324, which was trebled in accordance with the statute, and judgment entered for her in the total sum of $972. From this judgment defendant appeals. Plaintiff crossappeals, claiming that the amount of her actual damages should have been $720, and trebled under the statute, or a total of $2,160.

From prior to May 14, 1946, and up to the date of the trial, plaintiff owned and was in possession of a 557 acre farm in Boone County, Missouri, which included a 200 acre tract known as the "Prowell" farm. During this time plaintiff's husband, J. J. Robertson, was manager of this farm.

In the year 1946 defendant, Arthur Welch, was a "locator" for Thurman Smith and would go out and "spot" timber for Smith to buy in Randolph, Howard and Boone Counties. After defendant had located the timber he would "cruise" it to see what it was worth and then contact Smith. Smith would in turn sell the timber and any profit made off of it he would divide with defendant. Defendant "spotted" the timber located on plaintiff's farm and informed Smith, and on May 14, 1946, Smith purchased from plaintiff by timber deed all of the white oak timber measuring over 15 inches in diameter for the sum of $2,100. Smith in turn sold the same tract of timber on the same date to the Crawford Distilling Company for $4,160. Thus there was a profit of $2,060 on the transaction and defendant received fifty per cent. of it, or $1,030.

According to the joint statements of C. P. Pickel and Albert L. Nelson, Jr. (which by agreement were introduced in evidence in lieu of their depositions) the Meadville Distilling Company became the lawful successor of all properties of the Crawford Distilling Company, including the "Prowell" tract of timber. Thereafter, on February 7, 1947, the Meadville Distilling Company made an assignment of the "Prowell" tract of timber to the Five-Counties Lumber Corporation. During the years 1946 and 1947, C. P. Pickel, as General Superintendent and Albert L. Nelson, Jr., as Managing Officer of the St. Louis Cooperage Division of Five-Counties Lumber Corporation, were employed by the Crawford Distilling Company and its successor, the Meadville Distilling Company, under what is known in the Cooperage business as a "management agreement" to purchase timber, cut timber, operate stave mills and to manufacture the timber so purchased into cooperage for the Crawford Distilling Company and its successor, Meadville Distilling Company. In accordance with this "management agreement", the St. Louis Cooperage Division of the Five-Counties Lumber Corporation cut all of the timber it wanted on plaintiff's tract in 1947.

In October, 1947, J. J. Robertson, acting as agent for plaintiff, his wife, made inquiry of Mr. Pickel, superintendent of the St. Louis Cooperage Division of Five-Counties Lumber Corporation, as to whether it had finished cutting timber on plaintiff's land. Mr. Pickel informed Mr. Robertson orally that the company "had finished cutting timber on the Prowell farm and had abandoned possession thereof." This oral conversation was confirmed by letter dated November 4, 1947, signed by Mr. Pickel, entered into the record as plaintiff's Exhibit 1.

Defendant went onto plaintiff's land in the spring and early summer of 1948 with two employees, Jimmy Perkins and Sam Nichols, and cut some timber. By defendant's own admission, he did not at any time have any right, title or interest in plaintiff's tract of timber, nor was he ever given any license or permission by plaintiff, or any one acting in her behalf, to enter upon the tract and cut timber thereon. Defendant testified that they cut timber on plaintiff's land for three or four days. L. O. Tilton, tenant on plaintiff's farm, testified that he counted the freshly cut trees on the "Prowell" tract shortly after defendant was caught by Mr. Robertson cutting timber on the tract and that there were 72 trees cut averaging 24 inches in diameter.

Louis Hummel, expert witness called by plaintiff, testified that the trees on plaintiff's tract averaged 24 inches in diameter and 40 feet in height and standing in the forest were worth $10 per tree, market value, in the spring of 1948.

Defendant testified that there were 35 trees cut on the "Prowell" tract by his agent, Jimmy Perkins; that the trees as they stood in the forest were worth $2.70 to $3.00 per tree for stave bolt purposes and about twice that much for dimension lumber purposes. He further testified that he had received $50 per thousand board feet for finished dimension lumber in the summer of 1948.

Defendant's first contention is that the trial court erred in awarding damages to plaintiff because she had no right, title or interest in and to the timber cut by defendant. It is based upon the fact that plaintiff on May 14, 1946, sold the timber on her tract of land to Thurman Smith, who in turn executed a deed to the Crawford Distilling Company, and that both of said deeds provided that the grantee should have until May 14, 1949, to remove the trees. In other words, defendant says that title to the timber was vested absolutely in the Crawford Distilling Company until May 14, 1949, and that the only way that title could be revested in plaintiff would be by appropriate deed. Defendant, in his brief, cites and quotes from a number of Missouri cases wherein it is stated that in order to convey title to standing timber, it is necessary to do so by deed. In our opinion, it is not necessary or material in this case to determine where title to the timber was, since the Missouri cases uniformly hold that an action in trespass can be maintained against a trespasser by a party in possession. Here the evidence shows, beyond dispute, that plaintiff was in possession of the land in question at the time of defendant's trespass. And by defendant's own admission, he did not have any interest whatsoever in the tract of timber on plaintiff's farm, nor did plaintiff or anyone else ever give him any authority to make this second cutting of timber.

In the case of Reed v. Price, 30 Mo. 442, it is stated: "The law has been too long well settled to render it necessary to cite authorities in support of the position that possession is sufficient to maintain an action of trespass."

The late case of Hoelmer v. Heiskell, 359 Mo. 236, 221 S.W.2d 142, cites the Reed case and supports the proposition that possession is sufficient to maintain an action in trespass.

The case of Watts v. Loomis, 81 Mo. 236, citing the Reed case, stated: "It has been settled, that possession alone, is sufficient to maintain an action of trespass as against a stranger. Any possession is legal possession, as against a wrongdoer." We rule this point against defendant.

Defendant's second contention that the trial court erred in overruling his motion to dismiss because plaintiff was not the real party in interest is answered by the above authorities. Since possession alone, under those cases, is sufficient to bring an action of trespass, and since plaintiff was in possession at the time of the trespass it certainly follows that she was the real party in interest, and rightfully brought this action in her name under Mo.R.S. 1949, § 507.010, V.A.M.S.

Defendant's next complaint is that: "The court erred in admitting in evidence plaintiff's `Exhibit 1', and the `Statement of C.F. Pickel and Albert L. Nelson, Jr.,' and in holding that said `Exhibit' and `Statement' revested any right, title or interest in said timber in plaintiff." Exhibit 1, as we have stated, was the letter from Mr. Pickel to plaintiff's husband, in which it was stated "we have finished cutting your tract of timber and it will be agreeable with us for you to use the balance of the tree tops or any other timber that we left, in any manner you see fit."

As we view it, it was entirely immaterial whether the trial court admitted or rejected the "Exhibit" and "Statement." It was not necessary for plaintiff to show that the Crawford Distilling Company and its successors abandoned their interest in the timber. Defendant did not have any right or interest in the land or timber whatsoever. The only way a defendant in trespass may dispute a plaintiff's possessory right is by showing title and possessory right in himself. This, defendant could not do. He was an intruder.

Defendant's final contention is that: The court erred in trebling the damages for the timber which he cut. The cases in Missouri uniformly hold that defendant has the burden of showing probable cause or good faith in going onto land of another and cutting timber, in the belief that the land was his own. Walther v. Warner, 26 Mo. 143; Sample v. Reinhard, Mo.App., 253 S.W. 180; Chilton v. Missouri Lumber Mining Co., 144 Mo. App. 315, 127 S.W. 941; Curlee v. Donaldson, Mo.App., 233 S.W.2d 746.

Numerous cases in Missouri hold that, where a defendant goes on the land of another under color of title, or where he was holding the land adversely, he had probable cause to believe it was his own property. The defendant in these cases was only assessed single damages, as provided by statute. There are no cases in Missouri holding that a defendant, who admittedly did not have any interest in the land, had probable cause or reasonable belief that the timber which he was cutting was his own.

Defendant cites the case of Pitt v. Daniel, 82 Mo.App. 168, in support of his proposition that he had probable cause and was acting in good faith in cutting the timber. In the first place, any discussion in the Pitt case about probable cause and good faith is only dictum as the case was disposed of on the ground that the plaintiff did not make proper allegations in his petition to come under statutory trespass, allowing treble damages. Assuming, however, that the point of probable cause was in issue in the Pitt case, it can be distinguished from this case in that the defendant here admittedly did not have any interest in the land or the trees which he cut; that by his own testimony he located the tract of timber belonging to the plaintiff and arranged for Thurman Smith to buy the timber from plaintiff, and that Smith, thereafter, purchased the timber by deed. Therefore, the record shows that defendant was familiar with this particular tract of timber, he knew the land on which the timber was located belonged to plaintiff, he admitted that he did not have any right, title, or interest to the tract of timber, yet in spite of this, defendant, through his agent, Jimmy Perkins, went onto the land of plaintiff and cut timber growing thereon. It is inconceivable how this defendant who knew that the land and timber belonged to someone else, and who admittedly did not have any interest whatsoever in the timber, could have been acting in good faith in going upon the land and cutting the timber thereon of plaintiff, or that he had probable cause or reasonable grounds to believe that the timber belonged to him.

In a recent St. Louis Court of Appeals decision, Curlee v. Donaldson, 233 S.W.2d 746, the matter of probable cause came directly into issue. The plaintiff brought suit against a logging corporation and its general manager, to recover treble damages under the statute, for timber carried away after the trespass. The employees of the defendant company cut some timber off of the plaintiff's land, which adjoined the tract where the defendants were cutting. The defendants offered evidence that they thought they were cutting on their own tract.

The court sitting without a jury, held that the defendants were liable for treble damages because there was evidence that a fence separated plaintiff's land and the tract where the timber was being cut by the defendants, and that this fence had been pointed out to the defendant cutters as the boundary line. Yet in spite of this, they went onto the land of the plaintiff and cut timber thereon. The court, 233 S.W.2d at page 755, stated:

"Considering the whole record we conclude that Donaldson and the company's subordinate employees had every reason to know that the company had no right whatever to cut where the plaintiff's timber was felled. His careless and reckless indifference for the rights of adjoining land owners, a fact which permeates this record, convicts him, and his principal, as `reckless trespassers who would despoil the property of another.'"

This contention of defendant's has no merit.

Plaintiff claims that the amount of actual damages awarded her by the trial court was not adequate. Under the evidence, we cannot say that the finding in this respect was "clearly erroneous." Thus, under the statute, R.S. 1949, § 510.310, V.A.M.S., we should not disturb it.

The judgment is affirmed.

All concur.