(dissenting).
I dissent. The controlling question in this case is one of fact, namely: Did the defendants wilfully cut and remove the timber in question? The trial court found as a fact that they did so cut and remove the timber. The majority opinion holds that “it conclusively appears” from the evidence “that the trespass was inadvertently committed in good faith, upon the supposition that authority of the state had been granted.” If this be true, then the finding of the learned *480trial judge was made without any evidence whatsoever to support it. It is not a question of the preponderance of the evidence, but whether the record discloses any evidence fairly tending to support the finding.
The conclusion which I draw from the record is that the evidence not only supports the finding within the rule, but that it is difficult to see how the trial judge, upon the evidence, could come to any other conclusion than the one reached by him. In considering the question whether the evidence supports the finding, we must assume that the representative of the defendant was informed by the state auditor to the effect that neither he nor the timber board had any power to extend the permit; for the credibility of the witnesses was a question for the trial judge, and his memorandum shows that he accepted the testimony of the auditor as true. It was not necessary to make a special finding of such evidentiary fact, for only the ultimate facts found are to be stated in the findings.
The permit under which the defendant attempts to excuse its acts expressly provided that there could be no extension of the time limit of the permit, except as provided in section 24, c. 163, p. 362, Laws 1895, which, in language so terse and so clear that no intelligent man could fail to understand it, forbade the extension of the permit, under any circumstances, for more than one year, and then only for good and sufficient reasons. It is an admitted fact in this case that there was one extension of this permit, which had expired before the trespass was committed. We have, then, a case where the defendant’s permit, and the statute therein referred to, showed on its face that it could not then be extended under any circumstances, and, further, that the defendant was told by the state auditor that no state official or board had any power tó extend the permit; and yet, with knowledge that the permit had expired and that the law forbade its renewal, the defendant deliberately went upon the land of the state and cut and carried away its timber thereon. Defendant seeks to mitigate this act, and to establish that the trespass was not wilful, within the meaning of the statute, by evidence tending to show that the state officers having charge of its public lands had granted extensions of permits for a longer time than one year to other parties; that they permitted the defendant to go upon the land and cut and remove the timber, caused it to be scaled, and received from the defendant the purchase *481price therefor, with interest, during the year for which they understood the permit had been extended. If this were a case between private parties, the facts which such evidence tends to prove could be invoked as an estoppel against any claim of damages for a wilful trespass. They are, however, of no avail against the state.' The evidence in this case, tending to show either a violation of the law or a lax enforcement of it by public officers, does not, in my opinion, establish the good faith of the defendant in the premises.
On January 24, 1908, the following opinions were filed:
PER CTJRTAB1.This case having been reargued and fully considered, the former decision is adhered to.
ELLIOTT, J.I am of the opinion that the former decision should be adhered to, and merely add the statement that the case rests upon its own particular facts. It is not held that the state auditor or timber board can expressly or by implication waive the rights of the state or protect a trespasser from the penalty imposed by the statute.