dissenting: Tully Gatlin wrongfully cut timber trees on the lands of the plaintiff, and sold them to the defendant. The trees were worth $24.02 on the land after they were severed, and $84.07 at the time of sale to the defendant. The Court is of opinion that the plaintiffs can recover $24.02, while I think they ought to recover $84.07.
The amount involved is small, but the precedent to be established is important 'and may affect many transactions. It is for this reason I feel justified in stating the grounds of my dissent.
*280Four impositions are announced in tbe opinion of tbe Court:
(1) That in an action for conversion against tbe original trespasser, wbo bas cut timber on tbe land of another, tbe measure of damage is tbe value of tbe trees on tbe land after they have been severed.
(2) That tbe owner of tbe land is not compelled to sue in conversion, but may follow tbe property and may reclaim tbe trees wherever be finds them, and although in tbe bands of a purchaser without notice.
(3) That if tbe owner elects to take tbe trees, be is not chargeable with any expense of cutting or transporting tbe trees, nor with any enhancement in value.
(4) That tbe usual rule for tbe admeasurement of damages in actions for conversion is tbe value of tbe property at tbe time of tbe conversion.
These principles seem to be well established, and are sustained by tbe authorities in this and other States; but, with great respect, I think they have been misapplied to tbe facts.
No authority is referred to in tbe opinion of tbe Court which deals with tbe rights of tbe owner as against tbe jrar-chaser.
Tbe plaintiffs here are not suing tbe original trespasser, but the purchaser from him, and there is no suggestion in tbe record that they bad elected to sue for damages prior to tbe purchase by tbe defendant, or that they bad abandoned their property in tbe trees.
They are demanding damages of tbe defendant for bis conversion, and if we fix tbe time of tbe conversion, they are entitled to recover tbe value of tbe property as of that time.
Under tbe opinion of tbe Court, tbe plaintiffs were tbe owners of and entitled to tbe possession of tbe trees at tbe time tbe defendant bought them. If so, tbe defendant bought tbe trees of tbe plaintiffs, and, by buying, converted them; and if it be conceded that there can be but one conversion, and tbe plaintiffs bad done no act prior to tbe purchase by tbe defendants indicating an election to recover damages, and they bad *281the right to recover the trees at the tim'e of the purchase, the conversion then took place, and by the defendant.
The person who sold the trees had committed a trespass, but it was with the plaintiffs to elect whether they would follow the trees or treat them as converted; and until they exercised this right, no conversion had, in law, taken place.
In other words, the theory upon which the law is administered in actions like this, as I understand it, is that the trespasser has wrongfully taken away the property of the owner, and that the owner may follow the property and reclaim it, or he may sue the trespasser for damages. If he sues the trespasser for damages and recovers, the title passes to the trespasser and he may do with it as he pleases.
If, however, the owner does not sue the trespasser, but elects to demand the property in specie, he may do so, and can recover it in the hands of an innocent purchaser.
In both cases, that of the trespasser and the purchaser, there is an act of conversion, but the property has not been converted until the owner waives his right to the property itself by demanding its value in damages.
In the present case the owner had the right to demand of the defendant the trees taken from his land. If he had done so, and there had been a refusal to surrender possession, can there be any doubt of the right of the owner to recover their value at the time of the refusal? If it should be held otherwise, and that he could only recover the value at the time of the severance of the trees on the land, the right of the owner of property would be dependent on the act of a wrongdoer, and not on his own consent.
In the estimation of the law, the rule for which I contend can work no hardship, as the purchaser, if required to pay the value of the property, can recover the same amount from his vendor upon the implied warranty of title, which obtains in sales of personal property.
On the contrary, to what results may the rule adopted by the Court lead ?
It may enable a wrongdoer to go upon the land of another and cut timber without the consent of the owner, and sell it *282for $84, and tbe purchaser gets a good title upon paying $24. That is tbe judgment of tbe Court between the parties to tbis record.
It may also do a great injustice to the purchaser. Suppose tbe trespasser cuts timber, worth $100 on the land after it is severed, and it deteriorates in value, and it is taken to market and is sold to a purchaser for its value at that time, $50.
It is an old saying and true, that “It is a poor rule that does not work both ways,” and under tbe rule adopted by tbe Court tbe innocent purchaser must pay $100, tbe value of tbe trees when severed, for property worth $50.
There is eminent authority for tbe views I entertain.
In Woodenware Co. v. United States, 106 U. S., 432, timber trees were cut on tbe lands of tbe Government by a willful trespasser and sold to tbe "VVoodenware Company, “which was not chargeable with any intentional wrong or misconduct or bad faith in tbe purchase.” Tbe trees were worth $60.71 on tbe land after they were severed, and $850 at the time and place they were sold to tbe "Woodenware Company. ' It was held that tbe Government was entitled to recover $850, and tbe Court says: “Tbe timber at all stages of the conversion was tbe property of tbe plaintiff. Its purchase by defendant did not divest tbe title nor tbe right of possession. Tbe recovery of any sum whatever is based upon that proposition. Tbis right, at tbe moment preceding tbe purchase by defendant at Depere, was perfect, with no right in any one to set up a claim for work and labor bestowed on it by tbe wrongdoer. It is also plain that by purchase from tbe wrongdoer, defendant did not acquire any better title to tbe property than bis vendor bad. It is. not a case where an innocent purchaser can defend himself under that plea. If it were, be would be liable to no damages at all, and no recovery could be bad. On tbe contrary, it is a case to which tbe doctrine of caveat emptor applies, and hence tbe right of recovery in plaintiff.”
I would not be candid if I did not say that tbe Court lays much stress on tbe fact that tbe original trespass was willful, and suggests that tbe rule might be different if it were not for *283tbis fact; but in dealing witb one who buys in good faitb, I cannot see bow tbe undisclosed motive of bis vendor can affect liim.
In Wright v. Skinner, 60 So. R., 338, tbe Supreme Court of Florida says: “If tbe defendants are innocent vendees, without notice, of a willful trespasser, tben tbe measure of damage against them would be tbe value of tbe logs at tbe time and place of tbeir purchase thereof from such willful trespasser.”
In Nesbitt v. L. Co., 21 Minn., 491, tbe trees were cut on tbe land of the plaintiff without bis permission, and sold to tbe defendant. Tbe trees were worth $2.50 per thousand on tbe land, and $6 per thousand when sold to tbe defendant at Anoka. It was held that tbe plaintiff could recover $6 per thousand, tbe Court saying: “That plaintiff did not lose bis property in tbe logs by tbe wrongful removal of them is admitted. He was as much tbe owner of them' at Anoka, where they were converted, as on bis land, where they were wrongfully taken from him. Tbis being so, bis right to recover tbe logs themselves, or tbeir value at tbe time and place of conversion, would seem to follow of course.”
Tbe same principle is laid down in Tuttle v. White, 46' Mich., 487.
, For tbe reasons presented, and upon authority, I think tbe judgment should be affirjned. 1
Justice Waleer concurs in tbis opinion.