Quitman Naval Stores Co. v. Conway

Whitfield, C. J. — An action of trover was brought in May, 1911, by Conway to recover damages for the alleged unlawful conversion on January 1st, 1911, of sixty barrels of crude turpentine taken from pine trees on lands claimed by the plaintiff. The case was tried before a referee who gave judgment for a conversion of “25 barrels of crude turpentine - of the value in spirits of turpentine and rosin‘of $375.00” with interest. On writ of error the defendants below contend, among other matters, that the proper measure of damages was not applied. Crude turpentine that is collected in cavities or boxes [255] .cut in the pine trees which supply it is personal property for the unlawful conversion of which trover may be mainiained. Melrose Mfg. Co. v. Kennedy, 59 Fla. 312, 51 South. Rep. 595; 38 Cyc. 2016. In an action of trover the owner may recover the value of his personal chattels that have been wrongfully converted by another to his own use. Where there is a taking of chattels with intent to exercise over them an ownership inconsistent with the real owner’s right of possession, there is a conversion. Any act of a person in asserting a right of dominion over chattels which is inconsistent with the right of the owner, may amount in law to a conversion. 9 Bacon’s Abr. 629; 21 Ency. Pl. & Pr. 1012. For definitions of conversion see Fouldes v. Willoughby, 8 M. & W. (Exch.) pp. 538, 546, 547 and 549; 2 Words & Phrases, 1562 et seq.; Trustees v. Int. Paper Co., 132 Fed 92. The common law forms of action have not been abolished but are recognized and used iñ this State; and when a particular action is brought the parties are held to the legal consequences of the action. The actions of trespass and replevin have their peculiar purposes and results in redressing wrongs relating to property. Trover is used to recover the value of chattels unlawfully converted to another’s use. In this action the trespass preceding or attending the conversion is disregarded, and the object is the recovery of the value of the chattel at the time and place of its conversion. Where trees are unlawfully but not wilfully cut, and the cut timber, .a chattel, is converted, the measure of recovery in trover is the value of the timber at the time of conversion, with interest; and this conversion takes place when the trespasser at the place where it lay when the tree is cut or elsewhere [256] assumes dominion over the timber that is inconsistent with the rights of the true owner. See White v. Yawkey, 108 Ala. 270, 19 South. Rep. 360, 54 Am. St. Rep. 159, 32 L. R. A. 199; Beede v. Pamprey, 64 N. H. 510, 15 Atl. Rep. 133, 10 Am. St. Rep. 426; 38 Cyc. 2099. This view is not inconsistent with the decision on the facts in the cases of Moody v. Caulk, 14 Fla. 50; Skinner v. Pinney, 19 Fla. 42; Wright v. Skinner, 34 Fla. 453, 16 South. Rep. 335; Peacock v. Feaster, 51 Fla. 269, 40 South. Rep. 74; Robinson v. Hartridge, 13 Fla. 501. In this case the crude turpentine was hauled about 3 miles and ma.de into spirits and rosin by the defendants. The trees were cut without knowledge of a trespass, but the defendants knew of the plaintiff’s claim before the product was removed from the land, and suggested a settlement. The judgment is for a conversion of 25 barrels of “crude turpentine---of the value in spirits of turpentine and rosin of $375.00 with interest.” The conversion was of crude turpentine, and the recovery should be its value at the time and place of conversion with inte? est. It was converted when it was unlawfully taken from the boxes of the trees on the plaintiff’s land. There is in the record no evidence of the value of the crude turpentine at the time and place of its conversion. The evidence is that “one barrel of crude turpentine would yield spirits and rosin to the value of about $15.00 gross,” and that “it would cost in the neighborhood of $3.50 per barrel, crude turpentine” to haul it “about three miles and manufacture same into spirits and rosin.” The damages awarded do not appear to be justified by the facts of the case, as there is no evidence that the amount of the judgment is the value of the crude turpén [257] tine at the time and place of its conversion when it was taken from the trees on the plaintiff’s land. The judgment is reversed. Taylor, Shackleford, Cockrell . and Hocker, J. J., concur.