(dissenting) — In the case of Grays Harbor Cy. v. Bay City Lbr. Co., 47 Wn.2d 879, 289 P.2d 975, cited by the majority, we pointed out very clearly that treble damages are punitive damages and are not favored *468by the courts, and said that the rule allowing a higher measure of damages in cases of willful conversion should be strictly limited to those situations in which the mala fides of the defendant’s act is shown by a preponderance of the evidence. We also observed that the fact that a survey is not made is not in itself conclusive evidence of mala fides.
The evidence in this case disclosed that the employers of the defendant loggers pointed out the boundaries of the property to be logged. While they were in thé process of cutting trees, they were approached by Olson, who told them they had just cut a tree on his property and stated that his property ran a mile north from that point. The loggers withdrew from that area and did no further logging beyond the boundary which he had indicated.
The trees, the cutting of which was the trespass giving rise to this action, were not located beyond that boundary but were in an area which Olson made no claim to at the time he talked to the loggers. In fact, he did not know at that time that he was the owner of this isolated- piece of land. The trial court held, however, that the fact that Olson had notified the defendant loggers that he owned other designated land in the area was sufficient to put them on notice that he owned additional land, although he did not claim it at the time.
I do not believe this evidence is sufficient to support a finding of bad faith on the part of the loggers. I do not think that notice of a claim to “Tract A” can be said to be notice of a claim to “Tract B.” The evidence was that the loggers acted in good faith and did not attempt to cut any trees within the area which Olson had told them was his property, but carefully avoided that area. It certainly cannot be said that Olson gave them notice that he claimed property which, at that time, he himself did not know that he owned.
In my opinion, this case is very much like the Grays Harbor case. While the defendants may have been negligent in not having a survey made, they were not willful trespassers; and they did not have knowledge of facts sufficient *469to put them on notice of an adverse claim to the trees which are the subject matter of this law suit.
In my opinion the only reasonable inference to be drawn from the evidence is that the cutting of the trees was done with probable cause to believe that they were the property of the defendants’ employers.
I would reverse the finding of willful trespass and order the awarding of compensatory damages only.
August 20, 1965. Petition for rehearing denied.