Pettingill v. Goulet

Siebeckee, T. It is claimed that the court erred in restricting the damages caused by the felling and the removal of the trees, which were cut into cordwood, to their stumpage value, and in not holding that the value of the product of these trees, in the form of cordwood at the time it was re-plevied, was the true measure of damages. No exemplary damages are claimed, but it is urged that plaintiffs are entitled to have their damages assessed under the statutory rule declared in see. 4269, Stats. (1898). This section provides that: “In all actions to recover the possession or value of logs, timber or lumber wrongfully cut upon the land of the plaintiff or to recover damages for such trespass the highest market value of such logs, timber or lumber,” etc., shall be awarded the plaintiff. The words “logs, timber or lumber” must be understood as the legislature intended to apply them in view of the mischief sought to be remedied. This court in Single v. Schneider, 30 Wis. 670, held that, in replevin to recover the value of logs wrongfully cut and taken from plaintiff’s land, the measure of recovery was the value of the properly before it was improved by the defendant’s labor and skill, unless the taking was accompanied by circumstances which justified the imposition of exemplary damages. At the next session of the legislature after the decision an act was passed which is substantially embodied in the present sec. 4269, Stats. 1898 (Tuttle v. Wilson, 52 Wis. 643, 9 N. W. 822), and which radically changed the [287] measure of damages in actions to recover the possession or value of logs, timber, or lumber wrongfully cut upon plaintiff’s land or for the recovery of damages for such trespass. In the instant case the trial court held that plaintiffs were not entitled to the measure of damages provided by this statute for the trees converted into cordwood, and therefore awarded recovery only for the stumpage value of the trees so felled and converted into cordwood. The evidence discloses that the trees so felled and cut into cordwood bad attained the size of trees which, in the use of forest products, are commonly regarded as timber suitable for manufacture into a marketable product. We are persuaded that the legislature intended that such trees, when wrongfully cut and removed, should he deemed within sec. 4269, Stats. (1898), and also intended by this section to grant the owner of them the right to recover the measure of damages provided therein, regardless of the condition into which they might have been converted by the trespasser. We perceive no good reason why the cordwood made from such trees should not he embraced within the statute. This application of the statute operates to accomplish the purposes of the law, and affords no more than a just relief to persons whose timber has been wrongfully felled and removed from their lands. Upon these considerations we are of opinion that plaintiffs were entitled, under the facts of this case, to recover the highest market value of the cordwood so cut out of such timber. This the jury found to he $140.50. Such measure of damages was applied in the following eases: Brewster v. Carmichael, 39 Wis. 456; Haseltine v. Mosher, 51 Wis. 443, 8 N. W. 273; Gerhardt v. Swaty, 57 Wis. 24, 14 N. W. 851. The verdict of the jury specially finds the amount plaintiffs are entitled to recover under this statutory rule, hence no retrial of the action need be had. Judgment for the amount so found should have been awarded plaintiffs instead [288] of the lesser sum found, by the jury to be the stumpage value of the trees so converted. By ithe Gourf. — The judgment is reversed, and the cause remanded to the trial court with directions to enter judgment in accordance with this opinion.