THE TROUBLE WITH TREBLES
Most states have statutes on the books that increase the damages due for wrongful cutting of trees when that cutting is intentional. As we have seen in Johnson v. Tyler, statutory treble damages are intended to be applied instead of punitive damages. The treble damages are meant to punish a wrongdoer and deter misconduct.
But rare is the case where Charlie Chainsaw runs amok in your backyard, cutting down trees just for the thrill of watching them fall on your house. Now that would be “willful.” Usually, things are not – forgive the pun – that clear cut.
That’s the trouble with “treble.” The statute seems so limited in its coverage. Fortunately (that is, unless you’re the malefactor), courts have defined “willful” expansively. You might think that “willful” means “intentional.” But you would be wrong. While “willful” is probably more than “negligent,” certainly more than mere “inadvertence” – it undoubtedly is “reckless.”
Whew! The whole concept’s kind of squishy. Listen to the Court of Appeals in today’s case: It said “willfulness” under Iowa’s treble damage statute is “under conditions that may be said to indicate something more than mere carelessness or recklessness. Of course there was no personal malice against the owner. But there was a loose disregard for the rights of others … Certainly there was something more than mere inadvertence.”
Got it? Good for you, because we don’t. More than “mere inadvertence” could be “gross negligence.” But what is “loose disregard for the rights of others?” Generally, the law follows a continuum from strict liability – that is, liability without any fault at all – through negligence, gross negligence, recklessness, and intentional misconduct.
We’re tempted to suspect that the Court of Appeals found Lionberger’s and Norton’s conduct sufficiently outrageous that it was unwilling to let them off for a mere $1,500.00. Perhaps it believed the legislature intended that even negligence in the identification of boundaries should give rise to punitive damages. Whatever the Court’s rationale, it provided guidance to the definition of “willful” that shows a “loose disregard” precision.
Drew v. Lionberger, 508 N.W.2d 83 (Iowa App. 1993). Drew owned land that was surrounded by property owned by Lionberger. Codefendant Norton Lumber Company is in the logging business. In the fall of 1989 Lionberger hired Norton to log some trees on his land. Lionberger helped Norton in determining the boundaries of his land, but Lionberger never contacted Drew about the proper boundaries between the respective properties. As the result of improperly marked boundaries, Norton logged twenty-eight trees from Drew’s land. The trees were mature, some of them being as old as 150 years.
During trial, Drew testified he and his family used the land for hunting and hiking. He also produced testimony from an arborist that the trees were worth $17,053. Lionberger said the trees were worth between $535 and $1,500. The defendant’s expert based these figures upon the market value of the lumber cut from the trees.
The trial court determined that Lionberger and Norton were jointly and severally liable for the market value of the lumber produced from the trees in the amount of $1,473.
Drew appealed, claiming the trial court erred by using the market value of the lumber produced from the trees to measure damages, by not awarding treble damages for the willful cutting of the trees, and by failing to find that codefendant Norton Lumber Company trespassed on Drew’s land and wrongfully logged trees.
Held: The district court was correct that the current market value of the lumber produced from the trees is the correct measure of damages. However, the trial court was wrong to conclude that treble damages were not warranted.
The Court of Appeals, relying on Laube v. Thomas, held that because Drew’s trees had no special use, the measure of damages was the commercial market value of the trees at the time of taking. The Court of Appeals found the district court’s finding that Drew was entitled to the market value of the trees, or $1,472.62, was right.
Drew also argued that Iowa Code § 658.4, applying treble damages, should have been applied. That statute provides that “[f]or willfully injuring any timber, tree, or shrub on the land of another, or in the street or highway in front of another’s cultivated ground, yard, or city lot, or on the public grounds of any city, or any land held by the state for any purpose whatever, the perpetrator shall pay treble damages at the suit of any person entitled to protect or enjoy the property.”
The Court of Appeals agreed. It found no substantial evidence to support the district court’s conclusion that Lionberger’s and Norton’s actions were not willful. The Court held that the trees were cut and removed “under conditions that may be said to indicate something more than mere carelessness or recklessness. Of course there was no personal malice against the owner. But there was a loose disregard for the rights of others … Certainly there was something more than mere inadvertence.”
Lionberger and Norton, on their own, had measured and marked what they thought was the Drew property. Because no boundary markers existed at the time the measurements were taken, they knew a question existed as to the boundaries of Drew’s property. Despite knowing this, the defendants never contacted Drew to determine whether or not the boundaries they measured were acceptable to him. Furthermore, neither Lionberger nor Norton communicated any intention to cut trees from the area in question to Drew prior to logging the trees.
Their failure to contact Drew or to obtain his input as to the existing boundaries before logging the trees, the Court concluded, was “clearly intentional. This conclusion is further supported by the fact that the defendants did their own measuring and then proceeded to cut the biggest and oldest trees from the area in question. Because we find the cutting of Drew’s trees to be willful in accordance with § 658.4, we conclude Drew is entitled to treble damages under the statute.”
Drew’s damage award thus went up from $1,472.62 to $4,417.86.