dissenting.
Although I agree with the majority decision insofar as it affirms the award of compensatory damages and the denial of attorney fees to plaintiff, I dissent with respect to the imposition of treble damages against Baxter.
The majority erroneously relies upon Wright v. Reuss (1st Dist.1982) Ind.App., 434 N.E.2d 925. Wright involved timber which was not covered by the contract between Wright and the Schwabs but was located on adjoining land owned by Reuss. The timber was mistakenly cut by Wright thinking that it was on Schwabs’ real estate. The timber in controversy in Wright had never been purchased and was therefore not within the “previously purchased” exception of I.C. 25-36.5-1-17. The First District in the Wright case did, however, observe that the tenor of treble damage provisions in timber cutting statutes of other jurisdictions and the case law of those states indicates a design to deter malicious or intentional poaching and not to punish good faith cutting of timber.
The First District chose not to implement an apparent deterrent purpose of the statute but rather chose to interpret it according to “the ordinary and plain meaning of the words used.” Wright v. Reuss, supra, 434 N.E.2d at 929.
The majority decision today, not only ignores the underlying historical deterrent purpose of the treble damage provision but also ignores the basic premise of statutory construction which compelled the First District to permit treble damages in Wright.
The treble damage provision is punitive in nature. Such provisions must be strictly construed and may not be enlarged by implication or intendment beyond the letter of the language used. Evansville & Ohio Valley Railway Co., Inc. v. Southern Indiana Rural Electric Corp., Inc. (1953) 231 Ind. 648, 109 N.E.2d 901; Meade Electric Co., Inc. v. Hagberg (1959) 129 Ind. App. 631, 159 N.E.2d 408.
The language of our statute is clear and unambiguous. It precludes treble damages if the timber has been previously purchased. It does not require that the timber be purchased and severed from the real estate; it does not require that the timber be purchased and severed and removed from the real estate and it does not say that the protection against treble damages is valid only as against the person from whom the timber was purchased. If the legislature had intended that the treble damage provision be so extended the statute would contain language to that effect.
I.C. 25-36.5-1-17 clearly demonstrates that the purchase of timber which precludes the recovery of treble damages must necessarily take place before severance of the timber from the real estate. Therefore, for purposes of this provision the legal premise that purchase of standing timber is merely a contract to sell and does not pass title to the timber, is not supportive of the majority’s position.
The rule enunciated in today’s decision would impose treble damage liability upon *203one who on Monday purchases the right to cut timber from the owner of the underlying real estate but who delays entry and cutting until Wednesday, if in the interim the seller of the timber has conveyed the real estate to a third party. Such result was obviously not the intent of the statute.
Baxter readily concedes, as he must, that he could have recorded his timber cutting contract and thus give notice to the world and afford himself protection against a subsequent purchaser of the real estate. That concession necessarily leads him to the further concession that he is liable to Lyttle for the stumpage value of the timber which was cut. Baxter’s failure to record the contract, however, does not lead to the conclusion that he is liable for treble damages.
I would reverse and order judgment be entered for Lyttle for compensatory damages of $6,600 and costs.