84 CIVIL TIMBER TRESPASS 



courts regard technical rules of the common law and from 

 a loose use of the word "stumpage." Thus the amount 

 to which the owner of the timber is entitled when the tres- 

 pass was innocent has been stated, either directly or by 

 analogy, to be the value of the trees while standing; x 

 their value while standing plus the defendant's profit; 2 

 the profit received by defendant; 3 their value immediately 

 after severance; 4 their value after severance, less de- 

 fendant's expense of severing; 5 then* value after sever- 

 ance less what it would have cost the plaintiff to sever 

 them; 6 their value when removed from plaintiff's land; 7 

 their value at the time of the bringing of the action, less the 

 value added to them by the defendant; 8 their value at the 

 time of the bringing of an action, or at the time of demand 

 after severance, less the expense of improvement. 9 



It is impossible to completely harmonize these diver- 

 gent holdings, but the cases specifically referring to timber 

 fall mainly into two general classes: those which, following 

 the analogy of some of the mineral cases, hold the measure 

 of damages to be value of the trees in pla3e b3fore any labor 

 was expended on them; and those which, resting upon the 

 fundamental principle of the common law that there can 

 be no conversion of realty, hold that the trees are not sus- 

 ceptible to conversion until they are severed and make the 

 trespasser liable for the value which the severed trees have 

 as chattels. 



The theory that the measure of damages for intentional 

 trespass in the cutting and carrying away of trees should 

 be the value of the standing trees not only ignores the com- 

 mon law principle that there can be no conversion of realty, 

 but it is neither logical nor equitable when applied to trees 



1. U. S. v. Northern Pac. R. Co., 67 Fed. 890; Ross v. Scott, 83 Tenn. (15 Lea) 479. 



2. Anderson v. Besser, 131 Mich. 481, 91 N. W. 737; Winchester v. Craig, 33 Mich. 



205; Skeels v. Starrett, 57 Mich. 350, 24 N. W. 98. 



3. Colorado Min. Co. v. Turck, 70 Fed. 294, 17 C. C. A. 128, (Silver Ore). 



4. U. S. v. Van Winkle, 113 Fed. 903, 51 C. C. A. 533.; Beede v. Lamprey, 64 N. H. 



510. 



5. Durant Mining Co. v. Percy Min. Co., 93 Fed. 166, 35 C. C. A. 252 (Ore.) 



6. Morgan v. Powell, 3 Q. B. 278; See, Dunbar Furnace Co. v. Fairchild, 121 Pa. 



St. 563. 



7. Wright v. Skinner, 34 Fla. 453, 16 So. 335. 



8. Peters Co. v. Lesh, 119 Ind. 98, 20 N. E. 291, 12 Am. St. Rep. 367. 



9. Powers v. U. S., 119 Fed. 562, 56 C. C. A. 128; Herdic v. Young, 55 Pa. St. 176, 93 



Am. Dec. 739. 



