after.making the foregoing statement, delivered the opinion of the court.
The assignment of error in this case involves only one question, but that is the very important question, of—
What is the proper measure of damages in a case of wrongful cutting of timber?
This question, although adverted to in the case of Quigley Furniture Co. v. Rhea,, 114 Va. 271, 76 S. E. 330, was not therein involved or decided, and seems of first impression in this State. It is well settled, however, in England, in the federal courts of the United States and in many of our State courts.
*2581. Every trespass consisting in the cutting of standing trees is in its nature an injury to real estate and the owner besides his remedies in equity in proper cases, has the election to so treat the trespass and bring his action for damages to the market value of the land (where he is the owner of the land) or to the market value of the standing trees, if he owns only the latter. 3 Sedg. on Dam. (9th ed.) sections 931-2-3. In such case the common law action of trespass quare clausum fregit, or (under statute, section 2901, Code of Virginia) the same action on the case, is an appropriate remedy at law.
The damages to the real estate may, however, be waived by the owner by his election to bring an action at law for the trees themselves, severed from the land, or for their value, as having been converted into some form of personal property. In this State, in the former case, detinue is the proper remedy and, in the latter case, trover (the gist of which is the conversion), or a like action of trespass on the case for the conversion of the trees.
2. In both of the actions last named (which the several counts in the declaration on which the instant case was tried covered) the measure of compensatory damages, as it was at one time thought and held (and is yet in some of the jurisdictions, because of the supposed nature of the action) was the value of the trees after they were severed, including the value added thereto by the labor expended in their severance from the land (2 Sedg. on Dam., sections 500, 501, 502; 3 Idem., section 934; 15 Am. & Eng. Anno. Cas. 916 to 924) ; but it is now generally held that the stumpage value of the trees, i. e., the value of the trees as they stood immediately before they were severed from the land, is the measure of compensatory damages in such an action.
3. Such measure of damages — compensatory damages only — is applied in all cases where the trespass is not willful, notwithstanding that it may be that there has been *259value added to the chattel — the material in the trees in the instant case — by the labor of the trespasser expended thereon such as the manufacture of the trees into lumber. The owner of the chattel is not allowed in such case to recover the added value due to the labor of the non-willful trespasser, because of the recognition, even in courts of law, of an equitable and quasi-property right acquired by one who adds value to property by his labor, although the property upon which it is expended may be the property of another, the labor being bestowed in a bona fide belief of a right to bestow it. (2 Sedg. on Dam., sections 499, 500, 501, 502, 503; 3 Idem,., section 934.) The same principle underlay the common law doctrine of recoupment (Waterman Set-Off, Recoupment and Counter Claim, sections 417, 421, 422, 428, 486.) This principle was firmly established in the civil law also. (Inst, of Justinian, lib. 11, title 1, section 34.) As translated by Dr. Cooper, it is said in the civil law, “to be absurd that the work of an Apelles or Parrhasius should go without compensation to the owner of a worthless tablet, if the painter has possession fairly, but if he, or any other, shall have taken away the tablet feloniously, it is evident the owner may prosecute by action of theft.”
The defendant, therefore, in such cases of value added to the chattel by his labor, may, even at law, in an action against him by the owner of the chattel for the conversion of it, adduce proof of such added value in mitigation of damages.
4. Not so, however, of a defendant in such case, who is a willful trespasser. . His mala fides deprives him of the benefit of such defense. The law will not give ear to it.
In the latter case the plaintiff in his recovery of damages obtains indeed the benefit of the value to the chattel by the labor of the wrong-doer, but not, however, upon the principle upon which punitive or exemplary damages *260are imposed (as is pointed, out in the case of Trustees of Dartmouth College v. International Paper Co. [C. C.], 132 Fed. 92), but as the necessary, result of the defendant’s having deprived himself, by his wrong doing, of the right to interpose the defense under consideration in mitigation of damages. (See Bailey v. Haynes, 65 Wash. 57, 117 Pac. 720.)
5. In the instant case it is urged that the burden of proof was on the defendant to show that the trespass was not willful. This is a correct statement of the law — a trespass by the defendant having been proved by the evidence.
Every trespass is prima facie willful, and, the trespass being conceded or proven, the burden of proof is on the defendant, unless it appear from the evidence for the plaintiff, to show that the trespass was not willful. (United States v. Home Stake Min. Co., 117 Fed. 481, 54 C. C. A. 303; Trustees of Dartmouth College v. International Paper Co., supra; United States v. Ute., &c., Co., 158 Fed. 20; 85 C. C. A. 302; Mississippi, &c., Co. v. Page, 68 Minn. 269, 71 N. W. 4; Young v. Pine Ridge Lumber Co. (Tex. Civ. App.), 100 S. W. 784; Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 63 S. E. 270; Kahle v. Crown Oil Co., 180 Ind. 131, 100 N. E. 681.
In the instant case the facts, noted above in the statement of facts bearing on the question of whether the trespass was willful or the contrary, appeared from the evidence for plaintiffs.
6. On the question as to when a trespass is willful, the decisions are almost innumerable. They develop, however, certain well settled conclusions. Willful, in this connection, is not confined in its meaning to the act of trespass itself, in the sense that such act itself is intentionally or knowingly done. In that sense every trespass would be willful. The legal meaning of the word willful in this connection is a technical one, which the courts and text writers have *261found it impossible to define in set terms which will fit every case. To be willful the act of trespass itself must be intentional, to be sure, for if done accidentally or by inadvertence or by mistake not induced by gross negligence, it will not be willful. (Livingston v. Rawyards Coal Co., L. R. 5 App. Cas. 33; Bolles Wooden ware Co. v. U. S., 106 U. S. 432, 1 Sup. Ct. 398, 27 L. Ed. 230; Anderson v. Besser, 131 Mich. 481, 91 N. W. 737; U. S. v. McKee (D. C.), 128 Fed. 1002; Sligo Furnace Co. v. Hobart-Lee Tie Co., 153 Mo. App. 442, 134 S. W. 585; Holt, &c., v. Hayes, 110 Tenn. 42, 73 S. W. 111.) On the other hand the act may be felonious, or fall short of that and be a theft, or short of that "and, be a fraud, and yet short of that and be “in bad faith” or “not in good faith,” and still short of that and be grossly negligent of the property rights of others, with respect to exercising proper diligence to ascertain the true identity, location or title to property — as when the act is wanton, or reckless — and in all these-degrees of disregard of the rights of others the act will be willful. But a criminal intent is not essential, nor even a fraudulent intent The act need not rise above the degree of gross negligence of the property rights of others to constitute the trespass a willful trespass. Trustees of Dartmouth College v. International Paper Co., supra, so holds in effect; Farris v. Am. Tel. & Tel. Co., 84 S. C. 102, 65 S. E. 1017; Durant Min. Co. v. Percy, etc., Co., 93 Fed. 166, 35 C. C. A. 252; American Sand & Gravel Co. v. Spencer, 55 Ind. App. 523, 103 N. E. 426. Mere negligence Of the trespasser with respect to ascertaining the true location of property, or the title to it, will not render the trespass willful (Powers v. U. S., 119 Fed. 562, 56 C. C. A. 128; U. S. v. Eccles (C. C.), 111 Fed. 490; Beede v. Lamprey, 64 N. H. 510, 15 Atl. 133, 10 Am. St. Rep. 426; Durant Min. Co. v. Percy, etc., Co., supra). There is some conflict in the authorities however. See Donoven v. Consol. Coal Co., 187 Ill. 28, 58 N. E. 290, 79 *262Am. St. Rep. 206; Mississippi, etc., Co. v. Page, supra, and the Texas case of Young v. Pine Ridge Lumber Co. (Tex. Civ. App), 100 S. W. 784, and other Texas cases. This last named case goes beyond the true rule, to the extreme of holding that if the trespasser, by the exercise of reasonr able care and diligence, would have known that he had no title to the timber cut he was a willful trespasser; which, in effect, holds that if he was guilty of negligence the trespass was willful. To the same effect Messer v. Walton, 42 Tex. Civ. App. 488, 92 S. W. 1037; Ripy v. Less, 55 Tex. Civ. App. 492, 118 S. W. 1084. The great weight of authority, however, is as above stated.
In short, the act which constitutes a willful trespass may be anywhere in the domain of the law which extends from the region of felonies down to gross negligence, but is never found below the border line of the latter in the region of mere negligence.
- To be more specific. The trespass must be committed under a bona fide claim of right, or title, not induced by gross negligence in failure of the trespasser to ascertain the correct location of the property, or the title to it, otherwise it is willful; and, conversely, if it be in truth committed under such claim of right or title, not induced as aforesaid, it is not willful. Bolles Woodenware Co. v. U. S., supra; Nesbitt Lumber Co., 21 Minn. 491; U. S. V. Homestake Min. Co., supra; State of Minn. v. ShevlinCarpenter Co., 62 Minn. 99, 64 N. W. 81; Bond v. Grifin, 74 Miss. 599, 22 So. 187; Ill., &c., R. Co. v. La Blanc, 74 Miss. 626, 21 So. 748, where the trespass was committed pending suit involving the title; Clark v. Holdridge, 12 App. Div. 613, 43 N. Y. Supp. 115; Lewis v. Va.-Carolina, etc., Co., 69 S. C. 364, 48 S. E. 280, 140 Am. St. Rep. 806; Chappelle v. Puget Sound Reduction Co., 27 Wash. 63, 67 Pac. 391, 91 Am. St. Rep. 820; U. S. v. Northern, etc. R. Co. (C. C.), 67 Fed. 890; Whitney v. Huntington, 37 Minn. 197, 33 N. W. 561 ;Gentry v. 17. S., 101 Fed. 51, 41 C. C. A. *263185; U. S. v. Van Winkle, 113 Fed. 903, 51 C. C. A. 533; U. S. v. Eccles, supra; Powers v. U. S., 119 Fed. 562, 56 C. C. A. 128; Anderson v. Besser, 131 Mich. 481, 91 N. W. 737; Fisher v. Brown, 70 Fed. 570, 17 C. C. A. 225; Dewitt V. Saner-Whiteman Lumber Go. (Tex. Civ. App.), 155 S. W. 980; Cullen v. Collins, 56 Tex. Civ. App. 620, 120 S. W. 546; Guarantee Trust & Safe Dep. Co. V. Drew, 107 La. 251, 31 So. 736; Central Coal & Coke Co. V. John Henry Shoe Co., 69 Ark. 302, 63 S. W. 49. This rule is not changed by the fact that the trespasser has notice at the time of the trespass that another asserts a bona fide title to the same property. Ill., etc., R. Co. v. LaBlanc, supra, and many of the other authorities above cited.
This may affect the degree of care and diligence, with respect to ascertaining who holds the true right or title, the trespasser must exercise in order not to subject himself to the imputation of being a willful trespasser, because of his gross negligence in the premises, but it does not change such rule.
As noted in the statement of facts above, the instant case is one of a non-willful trespass committed in the cutting of standing trees. Therefore, under the well settled rule shown by the above cited authorities, the plaintiffs were entitled to recover only compensatory damages, unaugmented by the added value due to the labor of the defendant in manufacturing the trees into lumber — that is to say, in such case, the stumpage value of the trees, or $276.00 was the correct measure of the plaintiff’s damages.
7. As we have seen, in the “Statement of the case and facts,” above, on submitting the case to the jury, the instruction, given at the instance of the plaintiff, on the subject of the measure of damages, was erroneous, in that it instructed the jury, in effect, that if the defendant cut the standing trees under a bona fide claim of title, the *264plaintiffs were not confined to compensatory damages, but were entitled to recover also the value added to the trees by the labor of defendant in manufacturing them into lumber. The trial court, therefore, on the motion of the defendant to set aside the verdict as excessive and as contrary to the law and the evidence, properly corrected the error it had committed at the instance of plaintiff, in so erroneously instructing the jury as manifestly to cause them to find the excessive verdict, by reducing the amount of the latter to the amount which the jury should have found as damages upon a correct instruction on the measure of damages. This action of the court was just and right.
Therefore, for the reasons given above we find no error in the judgment complained of and it will be affirmed.
Affirmed.