Opinion
04-30-1888
DAWSON v. AMEY et al.
John W. Taylor, for complainant. J. F. Dumont, for defendants.
On cross-bill.
John W. Taylor, for complainant. J. F. Dumont, for defendants.
BIRD, V. C. The application to amend the cross-bill in this case should be allowed. The defendants are not here of choice; they were brought here by Dawson, the complainant in the original suit. That suit was begun by Dawson to restrain the defendant from cutting timber on his lands, and from the disposition of timber already cut, manufactured into merchantable lumber, and in the possession of the railroad company for shipment. The defendants purchased the timber upon a tract of land, and, in cutting and removing the timber therefrom, inadvertently cut and removed a considerable quantity of timber from the adjoining tract owned by Dawson, who filed his bill for the objects stated. The allegation of the Ameys is that this trespass was not willful or in any wise intended. They also insist that their labor upon the timber in converting it into merchantable lumber greatly enhanced its value, and that the value thereof so enhanced they are entitled to. In other words, they say that Dawson is only entitled to the value of the timber standing, and that all increased value by reason of their labor the law gives to them; and that Dawson, having sold the lumber so manufactured for its full value, is not entitled to retain the whole consideration therefor. They also insist that they could only have adequate redress in this court. After the complainant's bill had been answered, and answered by way of cross-bill under the rules, and the cause had been set down for hearing, the complainant asked, and obtained leave, to dismiss his bill upon payment of costs. This leave was granted, but upon the insistment of the defendants Ameys their cross-bill was retained. It is this cross-bill which the Ameys seeks now to amend by showing fully the facts respecting the case as above indicated.
1. It seems to be the law in such case that the owner can only recover for the value of the thing at the time it was severed, when it appears that the act or trespass was inadvertently done. At least I think the great weight of authority is to this effect. See 24 Amer. Dec, notes to Baker v. Wheeler, 70-88, in which a faithful presentation of the authorities is given. See, also, Wooden-Ware Co. v. U. S., 106 U. S. 432, 1 Sup. Ct. Rep. 398.
2. I am inclined to the conviction that the Ameys could only have adequate redress in equity. Dawson had the title to the standing timber. He was by the law entitled to compensation therefor; but in addition to that he has sold the manufactured article at a greatly increased price. Now, while in an action at law Dawson could only recover the actual value of the standing timber, were the Ameys to bring an action for the increased value of such timber received by Dawson on sale of it, because of their labor upon it, and manufacturing it into merchantable lumber, they would be met with the allegation, not only that they were trespassers, but that the title was really in Dawson, and that fact had been recognized by this court in granting to Dawson an injunction against the disposition of such timber by the Ameys. Therefore it would seem that if Dawson has recovered a judgment at law for the value of the timber cut, or should hereafter recover a judgment at law, this court would be justified in requiring him to account for the moneys in hand, over and above the amount of such judgment. It seems to me, therefore, that this is one of the cases in which it is proper for the court to aid one party in preventing another from making an unjust use of his legal rights. Some of the cases referred to in the above-mentioned note were in equity. 1 will advise accordingly.