Case of the Day – Wednesday, November 9, 2016

THE GRASSHOPPER AND THE ANT

grasshopper140314Today, with a new President-elect promising to make our lives better by oppressing someone else (Wall Streets, Mexicans, you name it), we consider someone else who expected something for nothing.

It’s a Vermont case, Stanley v. Stanley, a modern take on the grasshopper and the ant. About 50 years ago, two brothers partnered up to buy some woodland. But only industrious brother George, a busy little worker ant, ponied up the cash for the place, paid the taxes, paid the rent, and managed the affairs of the woodland. Grasshopper John was too busy doing whatever grasshoppers do.

After about 45 years of this, ant George started getting tired of grasshopper John never paying his fair share. Ant George was out a lot of investment, and he decided it was time to pay it back. So he sold the timber on the land for about $46,000.

Suddenly, grasshopper John was very interested in the goings-on, and he sued ant George. But he didn’t just want half of the proceeds. Surely that would be unfair. Instead grasshopper John hires three wise old owls as expert witnesses, and they opine that the timber was really worth anywhere from $60,000 to $80,000. Plus, he retained the services of a foxy old lawyer, who told him he could get treble damages for ant George’s wrongful cutting of the timber (plus a legal fee for the fox).

foxylawyer140314The trial court suspected that John was more snake than grasshopper, but it nevertheless didn’t have much choice but award him half the value of the timber. The court selected the lowest of the various estimates given by the several owls who testified as experts, still awarding the grasshopper one half of the $61,785 value of the timber. The court refused treble damages.

The grasshopper was furious! He had been denied what was fair, namely all of it! He wanted the timber valued at $80,000, with his one-half share trebled to $120,000. Fortunately, the wise Supreme Court upheld the trial court, finding that treble damages for wrongful cutting don’t apply where one owner of the land — even if he’s an industrious ant — gives permission. Still, the ant lost $31,000 of his $46,000 to his brother, the grasshopper, whose investment had never amounted to a farthing.

grasshopperb140314The moral, boys and girls, is that a slothful existence and a good lawyer beats hard work and careful investment any day.

Stanley v. Stanley, 928 A.2d 1194 (Sup.Ct. Vt., 2007). Some 50 years ago, brothers John and George Stanley bought a perpetual lease of a 100 acre wooded lot in Victory, Vermont. Defendant George paid the entire purchase price, but the brothers owned the lot as tenants-in-common. From the beginning of their ownership, George paid the annual rent as well as property taxes when they were assessed.

In 1965, he received money from Portland Pipe Company for the right to lay pipe across the property. In the spring of 2002, he hired a logging contractor to harvest and sell the trees from the lot. The logging operations were completed that summer. George didn’t discuss the logging operation with plaintiff John until after it was completed. George figured that “since he had been paying all the expenses relating to the property, he should be able to make the decisions relating to the land.” George got $45,803.32 for the timber removed from the lot. When John learned that timber was being cut, he took pictures of the operation and tried to reach George — who had neither an iPhone nor broadband — without success.

John didn’t try to stop the logging, but after it was over, he sued his brother, seeking an accounting, partition, treble damages under 13 V.S.A. §3606, costs of the action and attorney’s fees. While he couldn’t afford to share the expense of the land with his brother, John apparently found his checkbook when it came time to hire expert witnesses. He presented testimony from three experts on the value of the timber cut. Thomas Hahn, a private consulting forester, presented two different methods of determining the value of the timber cut from the property, the prevailing market price of a unit of wood in the summer of 2002 based on trade publications (using which he concluded that the value of the timber was $61,785.79), and the “timber cruising” or “sampling” method that would support a finding that the fair market value of the timber was $82,000. Stanley Robinson reviewed the logging contractor’s summary of mill slips and trip tickets, and Alan Bouthelier on his observations from visiting the property prior to the logging. The testimony of these two experts supported a finding that the fair market value of the timber cut was approximately $80,000.

woodpile140314The trial court refused to rely on Hahn’s “sampling” method, dismissing it as too speculative. Instead, it found that the fair market value of the timber cut was $61,785.79, and that plaintiff was entitled to half of this amount. It also ruled that the treble damage statute does not apply to actions between tenants-in-common for the sale of common property, and granted a request for partition. Following the hearing, George gave John $22,901.66, half of what he had been paid for the timber.

None of this was good enough for the rapacious John. So he appealed.

Held: The trial court was affirmed. The Supreme Court held that Vermont’s timber trespass statute — which reads in part that if a person cuts down trees belonging to another person “without leave from the owner,” the injured party can recover treble damages — is plain and unambiguous. The Court said that the statute’s language presupposed that the injured party had ownership rights to the exclusion of the party from whom treble damages are being sought.

The statute is a punitive one, intending to deter intentional trespass and wrongful taking of another’s timber. Because George had an undivided ownership interest in the trees at the time of the logging, the treble damages statute simply does not apply. He simply was not among the intended targets of the statute, those “‘tree pirates’ and ‘arboreal rustlers’ who trespass on another’s property and remove timber to which they have no right.”

John also argued that the trial court erred when it held that the “timber cruising” or “sampling” method of determining the quality and quantity was too speculative. The Supreme Court held that because the trial court, after evaluating several different methods, relied on testimony of the expert as to one of the methods to determine the fair market value of the timber cut and sold, the Supreme Court would not second-guess it on whether it could have used an alternative method.

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