Young Et Al. v. Faulkner Et Al., 228 Ga. App. 587, 492 S.E.2d 331 (1997)

Summary

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Judgment affirmed. McMurray, P. J., and Beasley, J., concur.

Summary

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Judgment affirmed. McMurray, P. J., and Beasley, J., concur.

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John T. Croley, Jr., for appellants.

This is the second appearance in this Court of this suit for damages for trespass on real property by wrongful cutting and conversion of timber. In Young v. Faulkner, 217 Ga. App. 321 (457 SE2d 584) (1995) (Young I), we affirmed the trial court's grant of partial summary judgment to the plaintiffs, Esbon Faulkner and Mary Young, on the issue of ownership of the land in issue. After remittitur, Faulkner and Young moved for partial summary judgment on the issue of the wilfulness of the trespass by the defendants W. D. Young, the adjoining landowner, Mark Lott d/b/a Lott Timber Company of Irwin County, Georgia, who cut the timber, and Southern Timber Products, Inc., to whom it was sold. The trial court again granted the plaintiffs' motion for partial summary judgment, and the defendants again appeal. The issue of wilfulness is important because the measure of damages for the trespass (which was established in Young I) is different when the trespass is wilful from that when it is unintentional. [1] We conclude, as did the trial court, that the trespass was wilful as a matter of law, and we therefore affirm.

W. D. Young does not deny that he cut the timber on property that the trial court and this Court have determined belonged to the plaintiffs. He denies, however, that he did so wilfully. He states in his affidavit submitted in opposition to the second motion for partial summary judgment that he cut the timber only after discussing "the property with a surveyor familiar with the land and with an adjoining landowner," and after further reviewing the tax records for the property and concluding that he owned it. He contends that he cut the timber in an honest belief that he owned the property. Defendant Young does not specifically so state in his affidavit, but this belief appears to be based upon an error in the security deed of a predecessor in title referring to Young's property as four acres, when the tract was apparently only two and one-half acres.

The burden was on defendant Young to show that his trespass was innocent. Taylor v. Hammack, 51-12-50 provides that "[e)xcept as provided in Code Section 51-12-51, where plaintiff recovers for timber cut and carried away, the measure of damage: (1) Where defendant is a willful trespasser, is the full value of the property at the time and place of demand or when an action is brought without deduction for his labor or expense; (2) Where defendant is an unintentional or innocent trespasser or an innocent purchaser from such trespasser, is the value at the time of conversion less the value he or his vender added to the property; and (3) Where defendant is a purchaser without notice from a willful trespasser, is the value at the time of his purchase."

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