90 CIVIL TIMBER TRESPASS 



same court said in the later case of the United States v. the 

 Saint Anthony Railroad Company. * 



The double meaning in which the word "stumpage" has 

 been used as designating either the value of timber while 

 standing or its value directly after severance has also re- 

 sulted in a diversity of holdings even where one court in- 

 tended to follow the principles announced in an earlier case. 2 



It is well settled that whether an action be brought for 

 damages to the land or for the value of the trees themselves, 

 the measure of damages, in cases of innocent trespass, will 

 not be the value of the severed logs at some place to which 

 they have been transported away from the land on which 

 they were cut. 3 



80. The Rule in Wisconsin Regarding Innocent Tim- 

 ber Trespass. The early Wisconsin decisions held that the 

 measure of damages in cases of innocent trespass was the val- 

 ue of the severed trees at the time and place of the cutting. 4 

 A later case held that this was the rule even though the 

 cutting and carrying away were done knowingly and wil- 

 fully. 5 At the first session of the Wisconsin legislature 

 following the announcement of this doctrine, an act 6 was 

 passed providing th'Bt where trees were unlawfully cut the 



'! 



1. (a) See United States decisions cited under Note 1, page 87. 



Bunker Hill & Sullivan Min. & Con. Co., 226 U. S. 548, affm. 178 Fed. 914 

 (Case as reported does not show finding of jury, but court specifically instruct- 

 ed jury that measure of damages for innocent trespass was value of trees after 

 they were cut down.) 



(6) John W. Henderson case, 40 L. D. 518 (decided April 1, 1912). This decision 

 was recalled and vacated on February 16, 1914, 43 L. D. 106, and new instruc- 

 tions given field agents on Feb. 25, 1914, to demand the value of standing trees; 

 but on June 22, 1915, 44 L. D. p. 112, chiefs of field divisions of the General 

 Land Office were again directed to demand the severed value in cases of inno- 

 cent trespass, in instructions which indicated that both the Solicitor of the 

 Treasury and the Attorney General considered the value of the severed trees the 

 true measure of damages in cases of innocent trespass. 



(c) Opin. Sol. Dep. Agr., Vol. 1, p. 298. The abandonment of this position in in- 

 structions effective October 1, 1915 (p. 7. Trespass Division, National Forest 

 Manual) is not in accord with the latest holdings of the other Executive De- 

 partments. 



2. See notes 9 and 10 of page 18. 



3. Cf. Wright v. Skinner, 34 Fla. 453, 16 So. 335; Gushing v. Longfellow, 26 Me. 306; 



Ayres v. Hubbard, X Mich. 322, 23 N. W. 829, 58 Am. Rep. 361; Gaskins v. 

 Davis, 115 N C. 85, 20 S. E. 188, 44 Am. St. Rep. 439, 25 L. R. A. 813; Coxe v. 

 England. 65 Pa. St. 212; Weymouth v. Chicago & N. W. R. Co., 17 Wis. 550, 

 84 Am. Dec. 763. 



4. Weymouth v. Chicago and N. W. R. Co., 17 Wis. 550, 84 Am. Dec. 763; Single v. 



Schneider, 24 Wis. 299; Hungerford v. Redford, 29 Wis. 345. 



5. Single v. Schneider, 30 Wis. 570 (decided in 1872). 



6. Chap. 263, Laws of 1873, Wis. St. (1898) Sec. 4269. 



