Case of the Day – Monday, October 3, 2022


It’s hard to muster up a lot of sympathy for hard-nosed businessman Henry Tyler. When he wanted to build a commercial building, but his neighbors rightly refused to let him cut down some of their trees, Hank just yanked the trees anyway.

But the neighbors, the Johnsons, were not a couple of patsies who would roll over and play dead. They got a lawyer, who cranked on Hank big time. By the time the dust settled, Hank owed the Johnsons for the trees he cut down, for additional damages his trespass caused, for treble damages under the statute, and for punitive damages. The $1,400 worth of Johnson trees that Hank butchered ended up costing him over $11,500.

But there’s truth to the maxim that little pigs go back to the trough, but big pigs get slaughtered. (Mark Cuban is credited with the most common variation on this old saw, but I recall my securities law professor, the late Morgan Shipman, using the line often back in the 70s. Like Abraham Lincoln famously said, you just can’t trust the Internet).

Treble damages are intended to punish the malefactor by providing a simple statutory punitive remedy for a wronged party. Common-law punitive damages likewise are intended to punish the malefactor, but without a set formula (thereby permitting a jury to make a symbolic gesture or run wild, as it wishes.

In today’s case, the plaintiffs’ silver-tongued lawyer talked the jury into awarding both treble damages and common-law punitive damages. When the trial judge wisely struck one, reasoning that a defendant could be punished once but not twice, the plaintiffs – who were big piggies by this time – appealed.

The Johnsons should have accepted the court’s offer when it first made it. The Iowa Supreme Court tanked their punitive damage award and sent the whole case back to be retried.

Johnson v. Tyler, 277 N.W.2d 617 (Supreme Court, Iowa, 1979). The Johnsons, who bought their home in 1952, planted trees and shrubs around the premises, particularly along the west line of their property. Genco Distributors, Inc., bought the property next to the Johnsons’ land to the west, intending to put a commercial building there. Genco’s president, Henry E. Tyler, asked the Johnsons for permission to remove the trees along the west boundary in preparation for the construction work. They refused. Hank nevertheless instructed the contractor to bulldoze the trees.

The Johnsons sued under Iowa Code § 658.4 for damages resulting from Hank’s deliberate and willful removal of a number of trees and shrubs from their property. The jury found for the Johnsons, fixing the value of the destroyed trees and shrubs at $1,400.00, which were trebled to $4,200.00, adding other sundry damages of $2,100.00, and assessing punitive damages of $5,250.00. That was too much for the trial court, which set aside the verdict for punitive damages.

The Johnsons refused their adjusted judgment of $6,300.00, which still was more than double the total amount of damage they suffered. They appealed the trial court’s striking of punitive damages, and the case ended up in the Iowa Supreme Court.

Held:  Punitive damages cannot be assessed.

The Supreme Court said that the paramount issue here was the question of whether the Johnsons could have both treble damages under the statute and punitive damages at common law.

The relevant statute provides that “[f]or willfully injuring any timber, tree, or shrub on the land of another… the perpetrator shall pay treble damages at the suit of any person entitled to protect or enjoy the property.” The Court held that by bringing the action under Iowa Code § 658.4, the Johnsons chose the remedy afforded by that statute, which is itself punitive.

The Johnsons argued that the statute did not abrogate their right to punitive damages, but instead just provided an additional statutory remedy. The Court disagreed, holding that letting a plaintiff have both treble damages under the statute and punitive damages under common law “would violate the basic prohibition against double recovery.” The Supreme Court ordered that the case be retried, with the jury being instructed that it should only find compensatory damages.

Not all the news was bad for the Johnsons, however. The Supreme Court clarified one question, whether “loss of enjoyment resulting from destruction of the trees and shrubs” was part of the damages that could be tripled under the statute. The trial court said they were not.

The Supreme Court held that the treble damage statute “allows treble damages for loss resulting from willfully injuring any timber, trees, or shrubs. It does not limit recovery to damage to the trees or shrubs themselves. Loss of enjoyment resulting from such conduct is an element of damage. If properly proved, this item, too, comes within the treble damage provision of § 658.4.

Tom Root


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