Where the plaintiff, in an action for timber cut and carried
away from his land, recovers damages, the rule for assessing them
against the defendant is
1. Where he is a willful trespasser, the full value of the
property at the time and place of demand, or of suit brought, with
no deduction for his labor and expense.
2. Where he is an unintentional or mistaken trespasser, or an
innocent vendee from such trespasser, the value at the time of
conversion, less the amount which he and his vendor have added to
its value.
3. Where he is a purchaser without notice of wrong from a
willful trespasser, the value at the time of such purchase.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is a writ of error, founded on a certificate of division of
opinion between the judges of the circuit court.
Page 106 U. S. 433
The facts, as certified, out of which this difference of opinion
arose appear in an action in the nature of trover, brought by the
United States for the value of two hundred and forty-two cords of
ash timber, or wood suitable for manufacturing purposes, cut and
removed from that part of the public lands known as the reservation
of the Oneida Tribe of Indians, in the State of Wisconsin. This
timber was knowingly and wrongfully taken from the land by Indians,
and carried by them some distance to the Town of Depere, and there
sold to the defendant, which was not chargeable with any
intentional wrong or misconduct or bad faith in the purchase.
The timber on the ground, after it was felled, was worth
twenty-five cents per cord, or $60.71 for the whole, and at the
Town of Depere, where defendant bought and received it, three
dollars and fifty cents per cord, or $850 for the whole quantity.
The question on which the judges divided was whether the liability
of the defendant should be measured by the first or the last of
these valuations.
It was the opinion of the circuit judge that the latter was the
proper rule of damages, and judgment was rendered against the
defendant for that sum.
We cannot follow counsel for the plaintiff in error through the
examination of all the cases, both in England and this country,
which his commendable research has enabled him to place upon the
brief. In the English courts, the decisions have in the main grown
out of coal taken from the mine, and in such cases the principle
seems to be established in those courts that when suit is brought
for the value of the coal so taken, and it has been the result of
an honest mistake as to the true ownership of the mine, and the
taking was not a willful trespass, the rule of damages is the value
of the coal as it was in the mine before it was disturbed, and not
its value when dug out and delivered at the mouth of the mine.
Martin v. Porter, 5 Mee. & W. 351;
Morgan v.
Powell, 3 Ad. & E. (N.S.) 278;
Wood v. Morewood,
3 Ad. & E. 440;
Hilton v. Woods, L.R. 4 Eq. 432;
Jegon v. Vivian, L.R. 6 Ch.App. 742.
The doctrine of the English courts on this subject is probably
as well stated by Lord Hatherly in the House of Lords, in
Page 106 U. S. 434
the case of
Livingstone v. Rawyards Coal Co., App.Cas.
33, as anywhere else. He said:
"There is no doubt that if a man furtively and in bad faith robs
his neighbor of his property, and because it is underground is
probably for some little time not detected, the court of equity in
this country will struggle, or I would rather say, will assert its
authority, to punish the fraud by fixing the person with the value
of the whole of the property which he has so furtively taken, and
making him no allowance in respect of what he has so done, as would
have been justly made to him if the parties had been working by
agreement."
But
"when once we arrive at the fact that an inadvertence has been
the cause of the misfortune, then the simple course is to make
every just allowance for outlay on the part of the person who has
so acquired the property, and to give back to the owner, so far as
is possible under the circumstances of the case, the full value of
that which cannot be restored to him
in specie."
There seems to us to be no doubt that in the case of a willful
trespass the rule as stated above is the law of damages both in
England and in this country, though in some of the state courts the
milder rule has been applied even to this class of cases. Such are
some that are cited from Wisconsin.
Weymouth v. Chicago &
Northwestern Railway Co., 17 Wis. 550.
Single v.
Schneider, 24 Wis. 299.
On the other hand, the weight of authority in this country as
well as in England favors the doctrine that where the trespass is
the result of inadvertence or mistake and the wrong was not
intentional, the value of the property when first taken must
govern, or if the conversion sued for was after value had been
added to it by the work of the defendant, he should be credited
with this addition.
Winchester v. Craig, 33 Mich. 205, contains a full
examination of the authorities on the point.
Heard v.
James, 49 Miss. 236;
Baker v. Wheeler, 8 Wend. (N.Y.)
505;
Baldwin v. Porter, 12 Conn. 484.
While these principles are sufficient to enable us to fix a
measure of damages in both classes of torts where the original
trespasser is defendant, there remains a third class where a
purchaser from him is sued, as in this case, for the conversion
Page 106 U. S. 435
of the property to his own use. In such case, if the first taker
of the property were guilty of no willful wrong, the rule can in no
case be more stringent against the defendant who purchased of him
than against his vendor.
But the case before us is one where, by reason of the willful
wrong of the party who committed the trespass, he was liable, under
the rule we have supposed to be established, for the value of the
timber at Depere the moment before he old it, and the question to
be decided is whether the defendant who purchased it then with no
notice that the property belonged to the United States, and with no
intention to do wrong, must respond by the same rule of damages as
his vendor should if he had been sued.
It seems to us that he must. The timber at all stages of the
conversion was the property of plaintiff. Its purchase by defendant
did not divest the title nor the right of possession. The recovery
of any sum whatever is based upon that proposition. This right at
the moment preceding the purchase by defendant at Depere, was
perfect, with no right in anyone to set up a claim for work and
labor bestowed on it by the wrongdoer. It is also plain that by
purchase from the wrongdoer defendant did not acquire any better
title to the property than his vendor had. It is not a case where
an innocent purchaser can defend himself under that plea. If it
were, he would be liable to no damages at all, and no recovery
could be had. On the contrary, it is a case to which the doctrine
of
caveat emptor applies, and hence the right of recovery
in plaintiff.
On what ground, then, can it be maintained that the right to
recover against him should not be just what it was against his
vendor the moment before he interfered and acquired possession? If
the case were one which concerned additional value placed upon the
property by the work or labor of the defendant after he had
purchased, the same rule might be applied as in case of the
inadvertent trespasser.
But here he has added nothing to its value. He acquired
possession of property of the United States at Depere, which at
that place, and in its then condition, is worth $850, and he wants
to satisfy the claim of the government by the payment of $60. He
founds his right to do this, not on the ground that anything he has
added to the property has increased its value
Page 106 U. S. 436
by the amount of the difference between these two sums, but on
the proposition that in purchasing the property, he purchased of
the wrongdoer a right to deduct what the labor of the latter had
added to its value.
If, as in the case of an unintentional trespasser, such right
existed, of course, defendant would have bought it and stood in his
shoes; but, as in the present case, of an intentional trespasser,
who had no such right to sell, the defendant could purchase
none.
Such is the distinction taken in the Roman law as stated in the
Institutes of Justinian, Lib. II, Tit. I, sec. 34.
After speaking of a painting by one man on the tablet of
another, and holding it to be absurd that the work of an Apelles or
Parrhasius should go without compensation to the owner of a
worthless tablet if the painter had possession fairly, he says, as
translated by Dr. Cooper: "But if he, or any other, shall have
taken away the tablet feloniously, it is evident the owner may
prosecute by action of theft."
The case of
Nesbitt v. St. Paul Lumber Co., 21 Minn.
491, is directly in point here. The Supreme Court of Minnesota
says:
"The defendant claims that because they [the logs] were enhanced
in value by the labor of the original wrongdoer in cutting them,
and the expense of transporting them to Anoka, the plaintiff is not
entitled to recover the enhanced value -- that is, that he is not
entitled to recover the full value at the time and place of
conversion."
That was a case, like this, where the defendant was the innocent
purchaser of the logs from the willful wrongdoer, and where, as in
this case, the transportation of them to a market was the largest
item in their value at the time of conversion by defendant; but the
court overruled the proposition and affirmed a judgment for the
value at Anoka, the place of sale.
To establish any other principle in such a case as this would be
very disastrous to the interest of the public in the immense forest
lands of the government. It has long been a matter of complaint
that the depredations upon these lands are rapidly destroying the
finest forests in the world. Unlike the individual owner, who, by
fencing and vigilant attention, can protect his valuable trees, the
government has no adequate defense
Page 106 U. S. 437
against this great evil. Its liberality in allowing trees to be
cut on its land for mining, agricultural, and other specified uses,
has been used to screen the lawless depredator who destroys and
sells for profit.
To hold that when the government finds its own property in hands
but one remove from these willful trespassers, and asserts its
right to such property by the slow processes of the law, the holder
can set up a claim for the value which has been added to the
property by the guilty party in the act of cutting down the trees
and removing the timber, is to given encouragement and reward to
the wrongdoer, by providing a safe market for what he has stolen
and compensation for the labor he has been compelled to do to make
his theft effectual and profitable.
We concur with the circuit judge in this case, and the judgment
of the circuit court is
Affirmed.