Case of the Day – Wednesday, November 2, 2022

ERR IN HASTE … 

“Haste makes waste,” the old saw goes, and did it ever for the Warrens of Iron County, Missouri.

They finally realized their dream, buying land they had rented for years as cattle pasture for their dream home. First, logically enough, they wanted to mark the boundaries of the land. The Warrens asked their neighbors, the Hales, to pay for half of the survey, but the Hales declined. Why should they pay? They knew where their boundaries lay.

So the Warrens went ahead on their own. Their surveyor couldn’t find the section corner marker, which had been described in some 19th century surveys as laying certain distances on certain radials from streams and trees that weren’t there anymore. So he made his best guess, but didn’t use the technique provided for in Missouri law.

Hard to believe, but the surveyor blew it big time, marking a boundary that was way off the traditional boundaries used by the parties. In fact, his boundary included big chunks of the Hales’ land, such as their entire driveway, landscaping and front lawn and nearly their house. The day after the surveyor placed his little pink flags, Mrs. Hale complained to the Warrens that their surveyor was nuts, and she’d get another surveyor to straighten it all out. She even showed them some old 19th century abstracts, which clearly showed her ancestors had owned some of the land the Warrens now thought was theirs.

Here’s where the Warrens blundered. Mrs. Hale might have been wrong, but her complaints, her intention to get another surveyor, and the Hales’ historical use and occupancy of the land the Warrens now thought was theirs was enough information to give a reasonable person some pause — at least for a few days while the issues were sorted out. But the Warrens weren’t the waitin’ type. They had a family member show up the next day with his bulldozer and start tearing up the Hales’ front yard and landscaping.

The Hales got an injunction, litigation ensued and another surveyor took a whack at the boundary. Oops. The Warrens’ surveyor screwed it up, the court said, failing to use the  prescribed method for finding a corner where the original corner was lost. The disputed land really was the Hales, and the Warrens — who had torn up things too quickly — were socked with treble damages under a Missouri statute applying where one destroyed trees or landscaping of another without probable cause to believe the land was his. The unseemly haste of the Warrens to bulldoze the disputed tract, where there seemed to be no need for such fast-track excavation, evidently played a role in the Court’s determination.

Err in haste, repent in leisure.

Hale v. Warren, 236 S.W.3d 687 (Mo.App. 2007). The Warrens bought 64 acres in Iron County, Missouri, they had rented for the previous nine years, intending to build a home on the land and to continue to graze their cattle there. The Hales owned 80 acres or so next to the Warrens, land that had been in their family for over 150 years.

After buying the property, the Warrens wanted to have their property surveyed before beginning on the house, so they asked the Hales to share the cost of a survey. When the Hales refused, the Warrens went ahead on their own. Their surveyor determined that part of the Hales’ yard and their entire driveway lay on the Warrens’ property, as well as other areas. The surveyor marked the boundary with pink flags.

The next day, Mrs. Hale contacted Mrs. Warren about the pink flags, telling her that she disagreed with the survey, especially with one of the section corners from which measurements were taken. Nevertheless, the Warrens began bulldozing and clearing the land the next day, including right in front of the Hales’ home and along the western border of their property, within the area set out by the pink flags. By the next day, the Hales had obtained a temporary retraining order against the Warrens barring them from “further bulldozing or other acts of destruction and possession …” The Hales then hired their own surveyor, who found that a section corner used in old surveys had been lost, and — applying Missouri law — calculated a starting point by a procedure known as “double proportional measurement.” At the same time, they sued the Warrens to quiet title and for trespass.

The trial court found the Hales owned Tracts 1, 2, and 3 by adverse possession, that the Warrens’ survey “is not accurate and correct” but that the Hales’ survey was correct. The trial court entered a permanent injunction against the Warrens prohibiting them from entering on the land in question, and assessing treble damages in favor of Hales under V.M.S.A. § 537.340 for $6,300.00. The Warrens appealed.

Held: The trial court was upheld. Much of the decision related to the appropriate use of the “double proportional measurement” system under Missouri law, an interesting if technical discussion. However, the Court’s treatment of the treble damages award in favor of Hales is relevant to arboriculture law. The Court agreed with the trial court that the Warrens lacked probable cause to believe that the property being bulldozed was their own.

Section 537.340 of the Missouri Code imposes treble damages for the wrongful cutting down of trees, without any showing of negligence or intent required. The Court observed that §537.340 “is a penal statute which must be strictly construed.” It is tempered by § 537.360, which holds that if defendant had probable cause to believe land was his own, plaintiff shall receive only single damages, with costs.”

A party would have ‘probable cause’ under the statute if there was such cause as would induce a reasonable person to believe he had the right to remove trees from another’s land. Here, the evidence showed the Hales’ driveway had always been at its present location, that the Hales had maintained the area since 1966 as part of their yard, planting trees and shrubbery in that area as well. The tracts had been owned by the Hales and their predecessors since 1855, and fencing had marked the boundary until the Warrens wrongfully removed it. The Hales had harvested timber and cut firewood on the disputed land since they purchased the property from their family in 1966. After the pink flags were placed by the Warrens’ surveyor, Mrs. Hale had showed Mr. Warren a land abstract in which her grandfather had deeded off a portion of the disputed land for a school building. She showed him the abstract to “show them that obviously this had been in our possession since the 1880’s. This particular tract of land that’s in dispute.” She told the Warrens that she disputed their survey and that she would speak to a surveyor herself.

The Court found there was sufficient evidence to rebut the Warrens’ assertions they removed the trees and landscaping at issue because they had probable cause to believe they owned the property. First, for all the years the Warrens had possessed the land as owners or renters, the Court said, it was only reasonable to conclude they should have became familiar with Hales’ general use of their property. Richard Warren admitted that when he purchased his property he was aware that the Hales stored cars and maintained a large scrap metal pile on the land. Further, when they purchased the property, the Warrens were aware of the location of Hales’ driveway and yard and their generalized use of the land. Second, the Hales disputed the Warrens’ survey as soon as it was surveyed. Mrs. Hale informed the Warrens that she was contacting Smith & Company about the survey because she believed it was incorrect, and she showed them an old abstract relating to the prior use of the property. When the Warrens began bulldozing right away after their survey was done, it was clear that the Warrens knew of the Hales’ open and actual possession and use of the property, and knew that the Hales had issues with the survey lines at the time the bulldozing began.

The Court said it was “difficult… to believe that ‘a reasonable person’ would ‘believe he had the right to remove trees from another’s land,’ where he was faced with: a mowed yard and maintained driveway; areas that were clearly used by the landowner for storing scrap metal and other items; open protests and disputes by the landowner; and a survey which obviously did not comport with historically used property lines.” The Warrens did not meet their burden of proving they had probable cause to believe they owned the land in question at the time they bulldozed the trees and shrubs at issue.

 – Tom Root