This suit was filed by A. W. Saulsberry, whom we will refer to as plaintiff, against D. B. Frampton & Company, hereafter called Frampton, to recover damages for the taking of timber from a 50-acre tract of land claimed by plaintiff. Frampton made its answer a cross-petition against the Saulsberry Land Company. It was stated in the cross-petition that Frampton had bought the merchantable timber on the land from the Saulsberry Land Company by general warranty deed and that if Frampton's title to the timber was defective then it was entitled to be indemnified against loss by its grantor, the Saulsberry Land Company. The case was tried by the judge without the intervention of a jury. He found that plaintiff was the owner of the 50-acre tract and awarded him $1,174.86 as damages against Frampton. The judgment also directed that Frampton recover a like amount on its cross claim against the Saulsberry Land Company.
All the parties have appealed. Frampton contends its grantor, the Saulsberry Land Company, is the owner of the property. The Land Company claims title by conveyance and by adverse possession. Plaintiff contends the lower court used the wrong measure of damages in computing the amount of his recovery.
The Land Company is the undisputed owner of a 900-acre tract of land which encircles the 50 acres in controversy. Plaintiff bases his claim to the 50-acre tract upon an unbroken chain of title connecting with the original land patent in 1839. However, we need not concern ourselves with conveyances prior to 1875. In that year Elizabeth Saulsberry, under whom all the parties claim, became the owner of the 50 acres.
In 1896 William Saulsberry, Elizabeth's husband, conveyed the 900-acre tract to Raymond H. and Harry Saulsberry, predecessors in title to the Saulsberry Land Company. The deed conveying the 900 acres included the 50-acre tract owned by Elizabeth Saulsberry. The Land Company claims under that deed. But Elizabeth Saulsberry did not sign the deed. Obviously, therefore, she conveyed nothing by this instrument. Moreover, Elizabeth Saulsberry some 20 years later, in 1915, conveyed the 50-acre tract to her son, William Saulsberry, Jr., plaintiff's predecessor in title. It is apparent, we think, that plaintiff established record title to the land.
Frampton and the Land Company also rely on adverse possession. The Land Company and its precedessors have claimed the whole 900 acres and have had constructive possession of the entire boundary. There is proof that John Saulsberry, under whom the Land Company claims, cut some timber off the 50 acres between 1911 and 1913, and there is also evidence that a small portion of this tract was farmed in 1916 and 1917.
These sporadic acts are not sufficient to establish title by adverse possession. It has been repeatedly held in this state that a possession, which, if continued for the statutory period of 15 years will ripen into title, must in the first instance be an actual possession. If the adverse possessor enters under a deed or other written instrument evidencing title, with the intention to possess the land to the extent of the boundaries described in his deed or writing, he ordinarily will be considered to be in actual possession to the extent of his boundary lines. But the rule does not apply where the boundary described in the instrument constituting his color of title overlaps a senior grant. In that event the possessor is not considered to have the actual possession of the land embraced in the conflict unless he actually enters upon that part. The adverse possession cannot be rested upon claim alone, but must be evidenced by such physical acts as will give the true owner constant notice of the claimant's possession. The mere occasional entry of the junior patentee upon the land within the conflict to cut timber is not sufficient possession to establish title. Tennis Coal v. Sackett, 172 Ky. 729, 190 S.W. 130; Federal Gas, Oil & Coal Co. v. Harmon, 254 Ky. 255, 71 S.W.2d 630; Combs v. Algoma Block Coal Co., 283 Ky. 160, 138 S.W.2d 1033.
Appellants seek to avoid the application of these general principles by contending they do not apply where the land in the junior patent encircles that covered by the senior patent. But we see no valid basis for distinction. The principle of law remains the same in either event and is applicable so long as there is a conflict between the title muniments.
It was also alleged by appellants that any conveyance of the 50-acre plot after the 1896 conveyance of the 900-acre tract is champertous. But since we have held the 1896 deed did not convey the 50 acres, and since appellants have not acquired title by adverse possession, this, in effect, disposes of the plea of champerty. The possession of appellants and those under whom they claim was not sufficient to make the conveyances of Elizabeth Saulsberry and her successors champertous.
Finally, appellants rely upon a judgment entered in the Carter Circuit Court in 1907 which declared that plaintiff's predecessor, Elizabeth Saulsberry, had no interest in the 900 acres as against one George Saulsberry. It is claimed by appellants that the 1907 judgment is res judicata to this action. That judgment was entered in an action brought by George Saulsberry to enforce a lien on the 900 acres as well as to determine the validity of a restrictive covenant in the deed which prohibited sale of the land before 1950. Raymond and Harry Saulsberry, the Land Company's predecessors in title, and Elizabeth Saulsberry were codefendants. The restrictive covenant was declared void and a small portion of the 900 acres was sold to satisfy the lien. Elizabeth Saulsberry's title to this land was not in issue.
We do not regard the 1907 judgment as res judicata. Ordinarily, parties to a judgment are not bound by it in subsequent controversies between each other where they were not adversaries in the action in which the judgment was rendered. Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165; Hargis v. Hargis, 207 Ky. 366, 269 S.W. 297. In the 1907 action certain predecessors in title of all the parties to this suit were codefendants and there was no issue between them. Therefore, that judgment is not res judicata as between their successors on the point now in issue.
We conclude that the trial judge was correct in finding plaintiff, A. W. Saulsberry, to be the owner of the 50 acres in controversy.
We look now to the proper measure of plaintiff's damages. It is argued with considerable vigor that the trespass by Frampton was willful and, therefore, the measure of damages is the market value of the lumber without deducting the expense of manufacture. The trial court fixed the damages as the value of the timber on the stump.
The rule heretofore adopted by this court is that where timber is cut and removed by an innocent trespasser, the measure of damages is the reasonable market value of the timber on the stump. Allen v. Ferguson, Ky., 253 S.W.2d 8. If the trespass is willful, a different measure is applied. In that event the measure of damages is the gross sale price at the point of delivery. Morris v. Thomas Forman Co., 206 Ky. 191, 266 S.W. 873.
It has been said that the difference between a willful and an innocent trespasser is the one knows he is wrong, and the other believes he is right. Hughett v. Caldwell County, 313 Ky. 85, 230 S.W.2d 92, 21 A.L.R.2d 373. Using this definition as a criterion, the chancellor properly found that Frampton was an innocent trespasser. There was substantial basis for its claim of title. On the other hand, it is not denied that Frampton had legal notice of plaintiff's claim. Its attorney received written notice of the claim before any of the timber was cut. After about 60% of the timber had been cut, Frampton again was notified that plaintiff claimed title to the 50-acre tract. Both notices were ignored. Thus, there was a deliberate cutting and removal of timber by one with knowledge of an adverse claim, later proved to be superior. Yet, if we follow the rule heretofore applied in this state, plaintiff is entitled only to the market value of the timber in the tree. This would result, in effect, to a retroactive sale of plaintiff's property at the market price at the time of taking, although he had given legal notice that he did not want to sell. In a number of cases involving the removal of mineral by one not the owner we have recognized the inequity of this rule and have searched for a more equitable solution. In Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037, each of the claimants to the oil in controversy was an operating company in position to market the oil. Each had knowledge of the other's claim. The oil was removed under claim of title later shown to be defective. It was held that the measure of damages was the market value of the oil, less the expense of production. In Hughett v. Caldwell County, 313 Ky. 85, 230 S.W.2d 92, 21 A.L.R.2d 373, the same measure was applied to ...