(Civil Code 1895, § 3918; Civil Code 1910, § 4515; Code 1933, § 105-2013; Ga. L. 2014, p. 695, § 7/HB 790.)
Law reviews.- For comment on Rowland v. Gardner, 79 Ga. App. 153, 53 S.E.2d 198 (1949), see 12 Ga. B. J. 79 (1949).
JUDICIAL DECISIONSANALYSIS
This section is applicable in trover action. Folds v. Reese, 140 Ga. App. 291, 231 S.E.2d 808 (1976).
This section applies to trover cases and paragraph (1) does not limit plaintiff to recovery of lesser measure of damage than that provided for in trover cases generally; accordingly, when willful trespass is shown a jury is authorized to find for the plaintiff the highest proven value between the time of the conversion and the trial when the action is in trover, for damages and amounts to an election for such a recovery. Rowland v. Gardner, 79 Ga. App. 153, 53 S.E.2d 198 (1949).
Section 105-2013 primarily relates only to trover suits, and until some other basis for recovery appears in the evidence, the plaintiff is entitled to recover at his election either the full value of the property at the date of the conversion or "the highest amount which he can prove between the time of the conversion and the trial." Rowland v. Gardner, 79 Ga. App. 153, 53 S.E.2d 198 (1949).
This section is not applicable to action of trespass to realty. Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 63 S.E. 270 (1908); McConnell Bros. v. Slappey, 134 Ga. 95, 67 S.E. 440 (1910).
This section is not applicable for trespass quare clausum fregit. Folds v. Reese, 140 Ga. App. 291, 231 S.E.2d 808 (1976).
Whether in trover or trespass, measure of damages applicable thereto is fixed by this section. Minor v. Fincher, 206 Ga. 721, 58 S.E.2d 389 (1950).
Measure of damages for timber conversion.
- In an action by the plaintiff for the recovery of timber cut from the plaintiff's lands and carried away, the measure of damage is the full value of the property at the time and place of demand or suit, without deduction for labor or expense, if the defendant is a willful trespasser; if the defendant is an unintentional or innocent trespasser, or innocent purchaser from such trespasser, it is the value at the time of conversion, less the value one or one's vendor added to the property. West Lumber Co. v. Castleberry, 76 Ga. App. 9, 45 S.E.2d 67 (1947).
When trees are wrongfully cut and manufactured into lumber and a trover action has been instituted by the owner for damages therefor in the amount of the value of the lumber or manufactured product and the case is in default, the defendant may only contest the amount of such damages, that is, the value of the lumber in question at the time and place of the demand or the filing of the suit, and one is not entitled to introduce evidence as to the value of the trees in question, while they were standing in the woods, or as to the stumpage value of these trees. Cooper v. Brock, 77 Ga. App. 152, 48 S.E.2d 156 (1948).
Damage rule not applicable when suit based on trespass to land.
- When timber is wrongfully cut and carried away from land, and the owner sues upon the theory of a trespass to the realty, the measure of damage when not willfully done is the diminution, if any, in the market value of the real estate by reason of the cutting of the timber, when done willfully, exemplary, or punitive damages in addition thereto; accordingly, it was erroneous to charge the jury, on the subject of damages, the provisions of this section. Holcombe v. Jones, 197 Ga. 825, 30 S.E.2d 903 (1944).
It was error to include the cost of clearing and replanting in addition to the market value as a measure of damages for the timber cut and carried away. Henderson v. Easters, 178 Ga. App. 867, 345 S.E.2d 42 (1986).
Punitive damages not permitted.
- When an action has been instituted to recover the full value of timber cut from the plaintiff's premises, without deduction for the added value because of labor and expense incurred in its subsequent manufacture, a plaintiff is not entitled, in addition to such damages, to recover punitive damages and attorney's fees. Taylor v. Hammack, 61 Ga. App. 640, 7 S.E.2d 200 (1940).
While it is true enough that a trespasser who has innocently misjudged the strength of one's own title cannot exculpate oneself from the penalty of the actual damages merely because one thought one was right when one was in fact wrong, the maxim that everyone is presumed to know the law does not say or suggest that if one misjudges the law one necessarily does so willfully and in bad faith, and should be mulcted in punitive damages as for willful misconduct. Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386, 18 S.E.2d 758 (1942).
Former Code 1933, § 105-2013 (see now O.C.G.A. § 51-12-50) fixed special measure of damages in such actions for willful misconduct, which was exclusive and not inconsistent with former Code 1933, § 105-2002 (see now O.C.G.A. § 51-12-5). DeBardelaben v. Coleman, 74 Ga. App. 261, 39 S.E.2d 589 (1946); Sims v. Majors, 178 Ga. App. 679, 344 S.E.2d 501 (1986).
Willful trespass has been characterized as wanton trespass and as one made in bad faith. This cannot be true if the premises are honestly claimed in good faith. Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386, 18 S.E.2d 758 (1942).
"Willful" and "bad faith" have same meaning and effect insofar as "willful" is used in this section. Zugar v. Tennessee, A. & G. R. Co., 65 Ga. App. 658, 16 S.E.2d 149 (1941), rev'd on other grounds, 193 Ga. 386, 18 S.E.2d 758 (1942).
"Willful trespasser" can be defined in general terms as one who knows that one is wrong, while an "innocent trespasser" is one who believes that one is right. Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386, 18 S.E.2d 758 (1942).
Willful trespass in exercising rights of ownership. Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386, 18 S.E.2d 758 (1942).
Second paragraph authorizes recovery of actual damages when the defendant proves the defendant has acted in good faith. Yahoola River & Cane Creek Hydraulic Hose Mining Co. v. Irby, 40 Ga. 479 (1869); Shealy v. Wilder, 33 Ga. App. 745, 127 S.E. 805 (1925).
Cited in Singer v. Shellhouse, 175 Ga. 136, 165 S.E. 73 (1932); Lawson v. Branch, 191 Ga. 311, 12 S.E.2d 641 (1940); Swinson v. Jones, 74 Ga. App. 109, 38 S.E.2d 878 (1946); Neidlinger v. Mobley, 76 Ga. App. 595, 46 S.E.2d 747 (1948); Mooney v. Shelfer, 205 Ga. 766, 55 S.E.2d 212 (1949); Union Bag & Paper Corp. v. Mitchell, 177 F.2d 909 (5th Cir. 1949); Abernathy v. Rylee, 209 Ga. 317, 72 S.E.2d 300 (1952); Sudderth v. National Lead Co., 272 F.2d 259 (5th Cir. 1959); Jones v. Hudgins, 218 Ga. 43, 126 S.E.2d 414 (1962); Campion v. McLeod, 108 Ga. App. 261, 132 S.E.2d 848 (1963); King v. Baker, 109 Ga. App. 235, 136 S.E.2d 8 (1964); Newman Mfg. Co. v. Young, 109 Ga. App. 763, 137 S.E.2d 367 (1964); Walker v. Greene, 128 Ga. App. 794, 197 S.E.2d 867 (1973).
Pleading and Practice
Plaintiff not required to allege whether trespass willful.
- In trover for timber cut from the plaintiff's land and carried away, the gist of the action is the wrongful conversion, and the plaintiff is not required to allege whether the trespass was willful or innocent; if the plaintiff alleges a willful trespass, the plaintiff's suit does not fail, if it develops that the trespass was inadvertent or in good faith, though this fact may give the defendant the right of setoff. Taylor v. Hammack, 61 Ga. App. 640, 7 S.E.2d 200 (1940).
Burden on defendant to show good faith when taking established.
- When a trespass and removal of timber are shown and a suit is instituted for the full manufactured value of the lumber, the burden is on the defendant, when a taking is shown, to establish that the taking was unintentional or in good faith, and also the value that has been added to the property by the expenditure of labor and money on it. Taylor v. Hammack, 61 Ga. App. 640, 7 S.E.2d 200 (1940); Coleman v. Garrison, 80 Ga. App. 328, 56 S.E.2d 144 (1949).
Upon proof of title in the plaintiff, conversion by the defendant and value as herein outlined, the burden of proof to show bad faith, or that the defendant was a willful trespasser, is not on the plaintiff, but is on the defendant to show that the defendant was an unintentional or innocent trespasser acting in good faith. West Lumber Co. v. Castleberry, 76 Ga. App. 9, 45 S.E.2d 67 (1947).
Evidence required to support recovery by plaintiff.
- In order to entitle the plaintiff to recover in an action based on this section, evidence must be produced sufficient to authorize the jury to find: (a) that the plaintiff owned the land on which timber was growing; (b) that the defendant converted a specific quantity of this timber; and (c) what the full value thereof was at the time and place of demand or suit. West Lumber Co. v. Castleberry, 76 Ga. App. 9, 45 S.E.2d 67 (1947).
Burden is on plaintiff to show value of trees, as they lie felled. Smith v. Gonder, 22 Ga. 353 (1857).
Suit by plaintiff as trustee.
- When one sues in trover for the cutting of timber as trustee for one's minor children and the defendant denies willful trespass and alleges that the defendant acted in good faith under a contract of purchase with the plaintiff, the defendant is not estopped to demand strict proof of the plaintiff's right to recover as trustee, in the event of a finding of willful trespass, by claiming to have acted in good faith under a contract. Moore v. Bowen, 73 Ga. App. 192, 35 S.E.2d 924 (1945).
Application
One evicted from land, claiming for improvements placed thereon, will not be entitled thereto unless one was bona fide occupant, and that to be such bona fide occupant it must appear that one not only believed one had good title, and made the improvements in good faith under that belief, but it must be further shown that one at the time had reasonable grounds to believe one's title good. If the title under which one claimed appeared upon its face to be defective upon a proper application of legal principles thereto, one could not be held to be acting in good faith. Zugar v. Tennessee, A. & G. R. Co., 65 Ga. App. 658, 16 S.E.2d 149 (1941), rev'd on other grounds, 193 Ga. 386, 18 S.E.2d 758 (1942).
Plaintiff cannot recover damages against defendant for willful trespass for trees that plaintiff cut or helped to cut personally. Davis v. Price, 72 Ga. App. 565, 34 S.E.2d 565 (1945).
Setoff for improvement of property.
- Since the evidence of record was insufficient to enable the court to calculate what value, if any, an adverse possessor may have added to the property by removing timber, the judgment of the trial court was reversed, and the case was remanded for a reassessment of the damages owed by the possessor for the removal of the timber, to be calculated in accordance with paragraph (2) (now (a)(2) of O.C.G.A. § 51-12-50). Penn v. McElheney, 191 Ga. App. 465, 382 S.E.2d 185 (1989).
Even innocent trespasser is liable for stumpage value of timber unlawfully cut and removed by the trespasser. Pickron v. Garrett, 73 Ga. App. 61, 35 S.E.2d 540 (1945).
Setoff when purchaser of manufactured article is sued.
- In an action by the owner of timber against a purchaser of an article manufactured therefrom, the latter may show that the possession is innocent and set off damages by an enhancement of value by one's labor, and if the trespass was innocent, one may set off the labor of the trespasser. Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 63 S.E. 270 (1908).
Evidence sufficient to prove conversion.
- After the plaintiff introduces uncontradicted testimony as to the estimated quantity of the timber received by the defendants, and as to the estimated highest market value thereof, in an action of trover for the conversion of lumber cut from timber wrongfully taken from the plaintiff's land, such evidence would be sufficient to authorize a verdict in some amount for the plaintiff, and when the undisputed evidence shows that the defendants received the lumber and exercised dominion over it in a manner inconsistent with the owner's rights, a conversion is shown although no demand and refusal are proved. Sullivan v. Dixon, 72 Ga. App. 507, 34 S.E.2d 318 (1945).
Verdict for the plaintiffs in suit for damages for cutting and conversion of timber and trespass, was authorized by the evidence. Porter v. Rucker, 88 Ga. App. 486, 76 S.E.2d 842 (1953).
Evidence that there were old fences on lines dividing parties' lands, the plaintiff's side of the lines was much larger than the timber owned by the defendant, and that a part of the timber was cut after the plaintiff had personally pointed out to the defendant the location of at least one of the lines, authorized a finding that the defendant committed a willful trespass so as to be liable, under paragraph (1) (now paragraph (a)(1)) of this section for the full value of the property at the time of the demand or suit, without deduction for the defendant's labor or expense. Manis v. Bing, 98 Ga. App. 232, 105 S.E.2d 463 (1958).
Finding of conversion unauthorized when no adequate evidence of property lines produced.
- Since there was no competent evidence from which a dividing line between the adjacent landowners could be determined, a finding that defendant vendees of timber cut timber belonging to the plaintiff was unauthorized. Strother v. Myers, 89 Ga. App. 814, 81 S.E.2d 534 (1954).
Insufficient evidence for recovery.
- As a neighbor was liable for a third party's cutting some, but not all, of the property owners' timber, and there was no evidence from which the trial court could determine the value of the converted timber attributable to the neighbor, it properly refused to award the owners any damages. Page v. Braddy, 255 Ga. App. 124, 564 S.E.2d 538 (2002).
Jury
Question as to whether trespass was willfully or innocently done is generally for jury to determine, except when the trespasser acts with such entire want of care and reckless indifference as would clearly amount to a disregard of the rights of the other party. Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386, 18 S.E.2d 758 (1942); Coleman v. Garrison, 80 Ga. App. 328, 56 S.E.2d 144 (1949).
Whether the defendant was a willful trespasser, or an unintentional or innocent trespasser, if either, may be a question for the jury. West Lumber Co. v. Castleberry, 76 Ga. App. 9, 45 S.E.2d 67 (1947).
Jury not bound to find willful trespass if evidence conflicting.
- Under this section, it has been held that if the evidence is conflicting the jury is not bound to find that the trespass was willful. Smith v. Ingram, 135 Ga. 523, 68 S.E. 94 (1910).
Unnecessary instructions.
- In an action based upon an alleged conversion of timber, the trial court charged that the defendants would be liable to the plaintiff if it was shown that they cut and removed the timber from the plaintiff's land, requested charges that under Georgia law the word "trespass" comprehends any misfeasance, transgression, or offense which damages another's health, reputation or property; that a wilful trespasser can be defined in general terms as one who knows that one is wrong, while an innocent trespasser is one who believes one is right; and that a wilful trespass may be characterized as a wanton trespass and as one made in bad faith, were unnecessary. Union Camp Corp. v. Guinn, 180 Ga. App. 391, 349 S.E.2d 221 (1986).
Verdict exonerating defendant who actually committed trespass while holding assistants liable null and void.
- A verdict, exonerating the defendant in a trespass suit seeking damages for timber cut who actually committed the alleged trespass, and relieving the defendant of all liability, and assessing damages against the other defendants who participated in the alleged actual trespass only through the acts of the defendant relieved, is inconsistent and repugnant and must be set aside as null and void. Pickron v. Garrett, 73 Ga. App. 61, 35 S.E.2d 540 (1945).
Section charged in equitable proceeding.
- This section should be charged in an equitable proceeding to recover the proceeds of timber that had been cut by the defendant, under a bona fide belief that the defendant owned the land upon which the timber was cut. Towson v. Horn, 160 Ga. 697, 128 S.E. 801 (1925).
When trespass is not denied, but is claimed to be unintentional, first two paragraphs should be given in charge. Crockett Bros. v. Sibley, 3 Ga. App. 554, 60 S.E. 326 (1908).
RESEARCH REFERENCES
Am. Jur. 2d.
- 52 Am. Jur. 2d, Logs and Timber, § 112 et seq.
17 Am. Jur. Pleading and Practice Forms, Logs and Timber, § 50 et seq.
C.J.S.- 87 C.J.S., Trespass, §§ 140, 141.
ALR.
- Allowance as damages for conversion of commodities or chattels of fluctuating value, of increase in market value after the time of conversion, 40 A.L.R. 1282; 87 A.L.R. 817.
Rights and remedies in case of encroachment of trees, shrubbery, or other vegetation across boundary line, 76 A.L.R. 1111; 128 A.L.R. 1221.
Liability of owner of standing timber or timber rights for damages to the owner of the land in connection with the cutting removal of the timber by the former or his servant, or by an independent contractor, 151 A.L.R. 636.
Measure of damage for destruction of or injury to trees and shrubbery, 161 A.L.R. 549; 69 A.L.R.2d 1335.
Rights as between purchaser of timber and subsequent vendee of land, 18 A.L.R.2d 1150.
Revocation of license to cut and remove timber as affecting rights in respect of timber cut but not removed, 26 A.L.R.2d 1194.
Liability of public utility to abutting owner for destruction or injury of trees in or near highway or street, 64 A.L.R.2d 866.
Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.
Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.
Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.