Bradley Lumber Co. v. Hamilton , 117 Ark. 127 ( 1915 )

Hart, J.,

(after stating the facts). In St. Louis, I. M. & S. Ry. Co. v. Ayres, 67 Ark. 371, an action for the recovery of damages for the negligent burning of young oak trees, the damages were held to be the difference in the value of the land before and after the fire which destroyed the trees. In that case the trees were young and were not ready for the market. Therefore, the destruction of the trees was a depreciation of the value of the land of which they were a part.

In the present case the timber was ready for the market and no damages were sought for any depreciation in the value of the land. It will also be noted that the court -found that the defendant, Bradley Lumber -Company, cut timber from the land while it had color of title and under the mistaken belief that it was the true owner thereof. We do not deem it necessary to fully abstract the testimony on that point for it supports the finding of the court.

(1) The -effect of our decisions in the cases of Eaton v. Langley, 65 Ark. 448, and the Central Coal & Coke Co. v. John Henry Shoe Co., 69 Ark. 302, is that the measure of damages for the -conversion of standing timber is the value of the timber at the time and place -of the conversion if the -cutting was done in good faith, but if the cutting was done in bad faith the enhanced value of the timber might be recovered.

To the .same effect see United States v. Flint Lumber Co., 87 Ark. 80.

(2) In the case before us testimony was introduced tending to show the value of the timber at the nearest shipping point and the cost of cutting the same and transporting it there. This testimony was competent to -show the value of the timber at the time and place where it was converted by the defendant. We do not think it necessary to abstract the testimony or to comment upon it in detail. We deem it sufficient to say that the testimony abundantly .supports the finding of the master and of the chancellor that the market value of the timber at the time and place it wais -converted by the defendant was $3.20 per thousand.

It can be readily seen that timber at one place on account of its accessibility to the market might be worth much more than if it were situated at a more remote place where it would be more .difficult to employ hands to cut it and would cost more to convey it to the market.

The court made a deduction in the value of the oak timber as found by the master but the defendant is not in a position to complain of that because, if an error, it was in defendant’s favor.

(3) The timber was cut by the defendant in the year 1909 and before November of that year and there was no error in charging interest from November 1 of that year. See Nunn v. Lynch, 89 Ark. 41.

In Nunn v. Lynch, supra, the court cited with approval the discussion in tbe ease of Laycock v. Parker, 103 Wis. 161. In that case the court held that where damages were capable of ascertainment by reference to reasonably certain market values and the various items of damage have been duly and adequately presented, and its payment demanded before suit is commenced, the claimant is entitled to interest from the time of such demand.

The claim of the plaintiffs in this case was capable of ascertainment by the defendant after its presentation by reference to the reasonably certain market value of the timber out and removed by the defendant. Therefore, the plaintiff was entitled to interest, and no error prejudicial to the defendant was committed in the allowance made by the court.

It follows that the decree must be affirmed.