Sweet v. Erickson

PEEK, Acting P. J.

Defendants appeal from an adverse judgment entered pursuant to a verdict of the jury in favor of plaintiffs in the sum of $10,000 as damages for the alleged taking by defendants of logs situated on plaintiffs’ property.

During the Summer of 1953 defendants’ predecessor, Bear River Lumber Company, sent a fuller onto the property involved and cut and bucked out, but did not log out the trees thereon. At this time Bear River was conducting logging operations on land adjacent to plaintiffs’ property, but it had no interest therein or to the timber which it had cut. In April of 1954 plaintiffs acquired title to the 40 acres involved. In September of 1954 Bear River sold to defendants certain land and timber rights described as including “. . . all felled and/or bucked timber and logs as same presently lie within the logging operations of the seller. ...” In the Spring of 1955 defendants removed the cut timber from what was then plaintiffs’ property.

It is defendants’ contention that the court erred in overruling their objections to testimony by the county timber cruiser from books in his custody relative to the amount of timber assessed on the property for the years 1954 and 1955; that the court erred in sustaining objections to questions asked

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of plaintiff McKenzie concerning a price paid by plaintiffs for the 40 acres, and that the court also erred in submitting the issue of treble damages to the jury.

The specific testimony attacked by defendants in their first contention was given by the witness McCutcheon, the official timber cruiser for Humboldt County, who stated that it was his duty to verify the accuracy of timberland assessments or make cruises upon which such assessments were made; that he was familiar with the particular tract involved, as it was recorded in the timber cruise book; that it had been recorded in the ordinary and regular course of operation of the Humboldt County assessor’s office by one Stamm who had preceded him in office. These records reveal that the volume of timber assessed upon the 40 acres for the years 1954 and 1955 was 600,000 feet. Defendants’ objection to his testimony was that it was incompetent, irrelevant and immaterial; that no proper foundation had been made; that the particular record was a self-serving document and hearsay; and that the same had not been prepared by the witness. The report was prepared by a county official as a part of his official duties and was introduced as evidence of the footage of timber on the land and obviously relevant to the issue then before the court. There can be no question that the entries in the cruise book, being public writing, were properly received in evidence. (Code Civ. Proc., § 1920.) We find no merit in defendants’ further argument that the issues were confused since the timber, having been severed as of the date of the report, was hence personalty and the report itself spoke in terms of realty.