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Savelich Logging Co. v. Preston Mill Co.

May 17, 1973

SAVELICH LOGGING COMPANY, APPELLANT,
v.
PRESTON MILL COMPANY ET AL, RESPONDENTS, CROSS-APPELLANTS



Appeal from Circuit Court, Lane County. F. Gordon Cottrell, Judge.

David A. Vinson of Sahlstrom, Starr & Vinson, Eugene, argued the cause and filed briefs for appellant.

Richard W. Butler of Thwing, Atherly & Butler, Eugene, argued the cause and filed a brief for respondents, cross-appellants.

In Banc. McAllister, J.

Mcallister

This action for indemnity was tried by the court, which found for defendants. Plaintiff appeals. We are bound by the findings of the trial court if they are supported by any competent evidence.*fn1

Although the court made only general findings, there was evidence from which it could have found the following facts, many of which were stipulated. In July 1969 plaintiff contracted to purchase all the merchantable timber on a tract of land in Douglas County owned by defendants. Defendants erred in pointing out the boundaries of their property to plaintiff. Plaintiff relied on the erroneous boundaries pointed out by defendants and as a consequence cut timber on adjoining land owned by the State of Oregon and so incurred liability for damages for timber trespass. See ORS 105.810, 105.815.

On January 30, 1970, plaintiff and the State Forester, acting for the state, executed an agreement reciting that plaintiff had cut about 327,000 board feet of merchantable timber on state land of the agreed value of $14,464 and plaintiff agreed to pay the state

double that amount, or $28,928, with payment in full to be made prior to September 1, 1970. The agreement provided that plaintiff could remove and sell the severed timber after first paying $7,232 and a like sum upon removal of each 80,000 board feet until the total amount of $28,928 was paid.*fn2 Plaintiff could not find a buyer for the logs and never paid either the initial payment of $7,232 or any part whatever of the $28,928.

Plaintiff's theory of recovery is that defendants were primarily liable to the state for the trespass,

and that plaintiff, although also liable, acted reasonably in relying on defendants' representations as to the boundary lines and was not in pari delicto. See Gordon Creek Tree Farms v. Layne et al, 230 Or 204, 221-229, 358 P2d 1062, 368 P2d 737 (1962) and Kennedy v. Colt, 216 Or 647, 339 P2d 450 (1959). While defendants do not concede their liability to the state, we may assume for ...


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