Case of the Day – Tuesday, November 8, 2016

THE ODD COUPLE

odd150925What is it with some neighbors? These folks — an “odd couple” of neighbors if ever there were such — lived next to each other in a pretty good Iowa City neighborhood for over 20 years. And they were always at each other’s throats.

Ironically, it was the Felix Ungar neighbors who were the victims. Apparently the Oscar Madisons were unhappy with two trees that stood entirely in the Felix property, but had branches overhanging the Oscars. So what, you wonder, and for good reason. The Oscar property was such a mess that a couple leaves and twigs hardly mattered. However, all of you loyal readers know the answer: under the Massachusetts rule, the Oscars can trim the trees’ branches back to their property line. In fact, borrowing from Virginia and Hawaii, maybe the Oscars could sue the Felixes, alleging that the trees were a nuisance.

Nothing that subtle for our heroes. Instead, the Oscars came onto the Felix property and simply cut the trees down. There. That settled that!

Well, not really.

The Felixes sued. The trial court was clearly appalled at the brazenness of the Oscars. It observed with some amazement that in order to cut down the trees, the Oscars “had to intentionally trespass on [Felixes’] property to cut down the trees and that is exactly what they did.”

The Court rendered its opinion accordingly. What the Oscars did was a trespass, pure and simple, and the damages in a trespass are the costs to restore the property. Those costs were the cost to replant trees about as mature as the two 50-foot tall trees that were removed. On top of that, the Court imposed treble damages under Iowa Statute 658.4 for “willfully injuring any timber, tree, or shrub on the land of another.” The Court held it applied because the Oscars “willfully trespassed” in order to cut down the trees.

They're after your trees ...

They’re after your trees …

We don’t want to be critical, because the Oscars clearly were bad actors here and deserved what befell them. However, courts need to be careful not to get out in front of their statutes. The trial court, in its ire, focused on the wrong “willfully.” Treble damages applied when the Oscars “willfully injured” the trees, not when they “willfully” trespassed. Under the court’s mangled standard, the treble damage statute would have applied if the Oscars willfully sneaked onto the Felixes’ property to smash a jack-o-lantern, but accidentally trampled on Mrs. Felix’s prize rose bushes in their haste to run home. It’s not the willful trespass, it’s the willful chain saw that matters.

Luckily for the Felixes, the error made no difference. Any way you apply the “willfully” here, the Oscars are liable. They willfully trespassed, willfully fired up their chainsaws, and willfully undertook arboreal mayhem. Game, set, match.

Wunder v Jorgensen, Not Reported in N.W.2d, 2004 WL 3569694 (Iowa Dist., 2004) (unpublished). The Wunders and the Jorgensens lived next to each other in a wooded neighborhood on Iowa City’s west side for over 20 years. During this period, their relationship was acrimonious, with the Wunders continually upset about the debris, both natural and manufactured, which the Jorgensens allowed to build up on or over their common boundary. Among other complaints, the Wunders complained that the Jorgensens erected a lean-to next to an outbuilding, essentially on the property line, which the Jorgensens used to keep garden tools.

Two trees stood on the Wunders’ property, scotch pines or Canadian hemlocks, with branches that extended over the Jorgensen property. The Jorgensens knew the trees were on Wunders’ lot because they had built the lean-to roof around one of the trees. The trees disappeared one day, setting the Wunders to wondering. Suspecting the Jorgensens, the Wunders sued. And small wonder.

pos150925Held: The Jorgensens were liable. The Court found that the Jorgensens had knowingly and willfully cut down two mature trees which they knew to be on Wunders’ property. The Court found the conduct to be inexcusable, noting that the “Jorgensens had to intentionally trespass on Wunders’ property to cut down the trees and that is exactly what they did.”

The Court found that the replacement cost for the trees was $4,061.40. The measure of damages for trespass is replacement cost, and treble damages — awarded if trees are willfully cut down on another’s property — apply in this case, the Court said, because, Jorgensen willfully trespassed on Wunders’ property to cut down the Wunders’ trees.

The Court threw in an observation for the Jorgensens: if trees are replanted, the Jorgensens ought to be informed that the general rule is that an adjoining landowner may cut off growth which intrudes on his or her property … but not more.

TNLBGray

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