CONVERSION BY AN INNOCENT TRESPASSER 85 



that are valuable principally for the wood or timber in them. 

 This rule enables a wrongdoer to avoid full responsibility 

 for the consequences of his unlawful act. By its applica- 

 tion the owner of growing trees is forced, through the mis- 

 take or blunder of another, to forego the money profit or 

 personal satisfaction which he might have gained from 

 leaving the trees standing for a time. If the cutting of the 

 trees is to be made at once, the owner should have the op- 

 portunity of cutting them himself with an attendant profit, 

 or he should be compensated for the deprivation of such 

 property right by a reasonable sum in addition to the value 

 of the standing trees in lieu of such profit. The limitation 

 of the recovery to the value of the trees on the stump un- 

 doubtedly tends to encourage an unlawful interference with 

 the property of another on the part of the unscrupulous in 

 the hope of deriving pecuniary gain through a feigned inno- 

 cence. The value of the trees while standing may be a 

 just compensation for fruit or shade trees, provided proper 

 consideration is given to the productivity of the fruit trees 

 or to the additional value which fruit trees or shade trees 

 give to realty. Where actions have been brought for tres- 

 pass qua re clausum freyit, the faithful application of this 

 rule has afforded satisfactory results as to fruit trees, shade 

 trees and immature trees of timber species. Confusion has 

 arisen through an application of the same rules to actions 

 under trover as to those under trespass, and from a failure of 

 the courts to recognize the essential difference between 

 actions for the destruction of fruit, shade 1 or immature 

 timber trees, which have little or no value because of the 

 wood or timber therein, and actions for the cutting of timber 

 trees which have value chieily because of the suitability of 

 their wood for commercial uses. 



In an effort to follow precedents the courts have applied 

 the special rules developed in decisions regarding fruit, 

 shade and ornamental trees to cases involving the cutting 

 and carrying away of merchantable timber; and on the 

 other hand, many decisions have sought to measure the 

 damage sustained through the destruction of fruit or shade 

 trees by an ascertainment of the value of such trees for wood 

 or timber purposes. Much uncertainty and conflict of 



