Crofoot Lumber, Inc. v. Lewis

DRAPER, P. J.—

This is an action for damages for wrongful removal of timber from plaintiff's land. It has a long history. In 1949, plaintiff’s predecessor in interest contracted to sell to defendant Thompson and one Edsell, timber on the predecessor’s land. In 1954, plaintiff brought an action to declare rescission of the contract for breach by Thompson and Edsell. Appellant Lewis acquired Edsell’s interest, and transferred a share thereof to appellant Rawles. In 1956, Lewis, Rawles and Thompson, hereinafter called the Lewis group, transferred their rights to Moores, Smith and others, hereinafter called the Moores group, who commenced logging off the timber, and the present action was filed. Judgment declaring rescission of the Thompson-Edsell contract was entered, and was affirmed on appeal

(Crofoot Lumber, Inc.

v.

Thompson,

163 Cal.App.2d 324 [329 P.2d 302]). Thereafter the present action was tried, and resulted in judgment for plaintiff for the “stumpage value” of timber removed, in the sum of $105,945. On appeal by plaintiff, it was held that an inadequate measure of damages had been applied, the judgment was reversed and the case remanded for trial of the issue of damages. On retrial judgment was entered for $169,863, with interest to August 21, 1961, in the sum of $62,127.44. Only defendants Lewis and Rawles now appeal from that judgment.

Appellants contend that the excess of the present judgment over the former one is the “profit” made in milling of the timber logged from plaintiff’s land. They argue that only the Moores group, which realized this profit, should be thus penalized. Appellants, they say, are properly chargeable only with the stumpage, i. e., “the value of the timber as it stands uncut in the woods” (Webster’s 3rd New Int’l. Dictionary).

This argument is based on some phrases of the opinion on the earlier appeal in this ease (191 Cal.App.2d 238 [12 Cal. Rptr. 639]). That court did say that “damages should be measured by the amount of money received by the defendants for the property” (p. 247); referred to plaintiff’s contention “that the (defendants) should not be allowed to keep their profit which was the result of their wrongful marketing of the trees as lumber” (p. 248) ; and said that limitation of recovery to stumpage “would permit the trespassers to profit from their wrong” (p. 250).

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