Siuslaw Timber Co. v. Russell

BENSON, J. 1. Counsel for plaintiff presents two propositions upon the basis of which it is urged that the judgment of the trial court should be reversed. The first of these challenges the propriety of an instruction given to the jury by the court in the following language: "The terms ‘willfully’ and ‘knowingly’ as used in this connection mean, that the defendant at the time [9] of the trespass must have known where the true boundary line of the plaintiffs’ lands was and must have entered upon the lands of plaintiff and cut the timber therefrom with such knowledge, and with the intention of cutting the timber from plaintiff’s lands.” The complaint herein is based upon the provisions of Sections 346 and 347, L. O. L., which read thus : “Whenever any person shall cut down, girdle, or otherwise, injure, or carry off, any tree, timber, or shrub on the land of another person, or on the street or highway in front of any person’s house, village, town, or city lot, or cultivated grounds, or on the commons or public grounds of any village, town, or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town, or city, against the person committing such trespasses, or any of them, if judgment be given for the plaintiff it shall be given for treble the amount of damages claimed, or assessed therefor, as the case may be. “If, upon the trial of such action, it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from uninclosed woodland for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages.” The interpretation of these sections, by this court, will be found in the case of McHargue v. Calchina, 78 Or. 326 (153 Pac. 99), wherein it is held that in order to justify a judgment for treble damages the plaintiff must plead and prove that the acts of which he complains were willfully committed. In statutes of this nature, the word “willfully” is synonymous with “knowingly”: Fry v. Hubner, 35 Or. 184 (57 Pac. [10] 420); 8 Words & Phrases, 7474. It would therefore seem be quite clear that the instruction is in harmony with the views expressed by Mr. Justice Moore in McHargue v. Calchina, 78 Or. 326 (153 Pac. 99). Counsel for plaintiff insists that it places too great a burden upon the moving party, and calls our attention to some cases decided by the Supreme Courts of Illinois and Mississippi which, in a measure, appear to support his view. This view is not sustained, however, when we learn that in neither of the states from which the citations come is there any provision in the statute similar to that of Section 347, L. O. L., and therefore those courts were treating of matters in mitigation of penalties, and matters of defense. Whatever may be the conclusion in other jurisdictions, it is settled in this state that the burden is upon the plaintiff to establish the trespass, and that it was committed by the defendant with knowledge that he was trespassing, before there can be a recovery of the penalty of treble damages. We conclude that the instruction is not erroneous. 2. The second point urged is, that since the defendant’s cost bill was filed before the judgment was entered, it was prematurely filed, and cannot be the basis of a judgment for costs and disbursements. We have not been able to find any authorities directly in point upon this question, nor has our attention been called to any; but we think that the reasoning in Macleay Estate Co. v. Miller, 85 Or. 623 (167 Pac. 575), is applicable here. In that case, the court having dismissed the suit for want of equitable jurisdiction, the defendants served upon the plaintiff a cost bill and the next day it filed its objections thereto. Several days later the defendants filed their cost bill which had been pre [11] viously served. Upon this subject the opinion in that case says: “The service of the cost-bill was a notice to the plaintiff of the amount to be claimed by the defendants. It then had five days after the filing of this statement within which to file its objections. Although they were filed before the cost bill itself was filed, yet the objections were in fact before the court as well as the bill itself. If the defendants considered them improvidently filed, their remedy was by motion to strike them out the same as though they had not been properly verified or there was some other objection to the form of the pleading rather than to the substance.” Finding no error, the judgment is affirmed. Affirmed. McBride, C. J., and Burnett and Harris, JJ., concur.