Case of the Day – Friday, March 17, 2017

ILLEGAL CONTACT

RefHere it is only a few weeks before opening day of baseball season, and we’re talking football. Why? In order to cover one of the cardinal rules of trespass – illegal contact.

Usually illegal contact, that is, trespass to trees — where someone enters someone else’s land and cuts down trees without any right to do so — are pretty cut and dried. But not all trespasses are clear-cut (to turn a pun).

In today’s case from Louisiana, a party bought a piece of land from the tree owner’s sister, but conditioned the purchase on being able to get rid of some trees on the boundary line with the tree owner. The owner – no doubt a Patriot – signed a contract entitling the buyer to cut down trees on the boundary. The problem was that the contract was imprecise as to how many, or where exactly the trees were. The only thing that was clear was that the parties agreed that wild Broncos couldn’t pull him over to cut down the tree owner’s prize old live oak.

Too bad the owner didn’t watch the tree-cutting crew like a Seahawk. The buyer’s contractor was kind of a Buccaneer. He cut down 12 trees and, although he was told not to, he trimmed the live oak pretty aggressively. The owner cried “Deciduous foul!” and lawsuits flew like yellow hankies. He sued the buyer, Raven that he hadn’t given permission to do anything like that. He wanted treble damages for the wrongful cutting.

The court awarded about $5,000 in damage for the cut branches on the live oak, but it disagreed on the treble damages. The Court said that the ambiguous contract seemed to contemplate that the 12 trees would be cut down, and there was no basis for any recovery on those. As for the injured live oak, it was damaged but still standing. The statute awarded treble damages for cutting down trees, and the trimming — although a violation of the contract — wasn’t something for which treble damages could be awarded.

The plaintiff felt deflated over the whole episode.

Distefano v. Berrytown Produce, LLC, 973 So.2d 182 (La.App. 1 Cir., 2007). Distefano owned a 2-acre vacant tract of land along Church Street. Berrytown Produce, LLC sought to buy a piece of land next to the Distefano tract to operate a produce business. That land was owned by Rose Millican, DiStefano’s sister.

A line of trees on Distefano’s land blocked the view of the Millican tract approaching it from the highway. Berrytown conditioned its purchase on obtaining Mr. Distefano’s permission to remove trees from his property. So Distefano authorized Berrytown in a written agreement to remove all trees on the property line dividing the Distefano and Millican tracts, except for a live oak tree. Berrytown hired Kemp Richardson to perform the clearing work. Richardson cut and removed 12 trees from the Distefano and Millican tracts, and he cut a significant number of branches from the live oak tree on Mr. Distefano’s tract.

Eisfeld should have gotten this sign with special wording, "And don't cut down my trees, Martin!"

     This means you, Berrytown!  Trespassing – kind of like the real property version of off sides.

Distefano filed a timber trespass action against Berrytown and Richardson, saying the defendants cut and removed five trees from his property and cut branches off the live oak tree without his permission. Distefano tried to recover damages under Louisiana Revised Statute 3:4278.1, commonly referred to as the “timber trespass” statute, that imposes a penalty of three times the fair market value of trees on people who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property. Distefano also claimed restoration damages and damages due to the decrease in the value of his land, and further urged that defendants’ cutting activities caused him to suffer non-pecuniary damages.

At the conclusion of a bench trial, the court found that the agreement between Distefano and Berrytown contemplated the cutting and removal of all trees on the Distefano property that had been actually cut down. The court found that the parties clearly understood that the live oak tree was not to be cut, and awarded Distefano $6,045.00 for the unlawful removal of branches from his live oak tree, accepting expert testimony setting the fair market value of the live oak tree at that amount. The court declined to award treble damages, finding the treble damage provision inapplicable because the tree itself had not been cut down and removed, and because there was insufficient evidence of the fair market value of the limbs removed from the tree.

Distefano appealed, challenging the court’s finding that he consented to the cutting down of five trees from his property and the denial of his treble damage claim.

Held: The trial court’s decision was upheld. The Court found that the contract called for the cutting of “all trees on the dividing property line” between the Distefano and Millican tracts, “with the exception of the live oak tree located on or near the property line.” A witness attested there were no trees on the property line itself, but there were trees close to the property line that hung over the property line, and those were the trees Berrytown wished to have removed. Distefano contended that the parties never contemplated the removal of any trees not located exactly on the common property line, but other witnesses disagreed, and the trial court’s findings of fact were found to be reasonable.

Distefano contended that the trial court should have ordered the defendants to pay treble damages. Louisiana Revised Statute 3:4278.1 imposes a penalty of three times the fair market value of the trees on those persons who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property without the landowner’s consent. But, the Court said, no tree was cut down without permission. Instead, the oak tree was trimmed without permission, and the cut trees were taken pursuant to the agreement. Although contrary to the contract, the Court ruled, because the oak tree was not cut down, the statute did not authorize treble damages under the facts of this case.

– Tom Root

TNLBGray

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