December 22, 1919. The opinion of the Court was delivered by Plaintiff recovered judgment against defendant for malicious trespass upon her land and cutting and removing timber therefrom. Defendant admitted the trespass, but denied that it was wilful or malicious, and contended that it was done under the honest belief that the timber was on its own lands; therefore defendant denied liability for anything more than the actual damages, which it offered to pay.
There was evidence that defendant's agents continued to cut and remove the timber from plaintiff's land after they had been told that they were cutting on her land, and that she would not sell the timber, but wanted to keep it for plantation uses and as a windbreak to her place.
Defendant is wrong in its contention that the measure of the actual damages was the stumpage value of the timber cut. That might be so in a case where the timber had only a commercial value, but not necessarily so even in such a case, for the owner might not want to sell it at all. But in this case the proof showed that plaintiff had refused to sell the timber, and was keeping it for plantation uses, and that its destruction damaged the value of her plantation. Therefore, the Court properly refused to limit plaintiff's evidence of damage to the stumpage value of the timber cut.
Defendant is also wrong in its contention that section 4069, vol. I, Civil Code 1912, is applicable to this case. That section is applicable only in cases of forcible entry and detainer.
There was no error in the charge that, if defendant's agents continued to cut and remove plaintiff's timber after notice that they were cutting on her land against her objection, defendant would be liable for punitive damages.
Judgment affirmed. *Page 112