“WHOSE WOODS THESE ARE…
I do not know,” wrote Robert Frost in Stopping in the Woods on a Snowy Evening. That seems to have been precisely the problem for neighboring rural landowners in Kentucky: one held the title to the pasture, and the other owned a large glade of trees.
The neighbors, Marv and Gene, had a common boundary on the edge of the forest, populated by some pretty nice hardwood specimens. When Gene decided he wanted to cut down and sell some of the timber, he asked Marv for permission to come onto his land to cut down the first of some eight trees he wanted to sell. Marv thought the trees all straddled the boundary, and so belonged to both of them. He let Gene cut them down and haul them away, naturally believing that Gene would come back around to hand Marv a share of the cash.
Marv may have been the kind of guy who went through junior high school with a “kick me” sign taped to his back. It turned out, of course, that while there may be a Santa Claus, it wasn’t Gene. Gene came back from selling the trees and asked permission to come onto Marv’s to cut down some more trees, all without offering Marv a farthing. Still, Gene cut down four more trees before Marv gave him the heave-ho.
Unwilling to be fooled again and unwilling to let Gene get away with selling commonly-owned trees as his own, Marv sued. And here’s where he let his fury get ahead of his common sense (which was his lawyer’s job, by the way, to talk his client off the ledge when prudence dictated he get his facts straight first).
It turned out that the first four trees Gene cut down were, in fact, completely on Gene’s property, but the second four were not. After the dust settled and Marv had a definitive survey done, Gene had to pay Marv $7,168.15. That wasn’t a lot of money in 2008, at least for all the litigation that ensued. The legal bills alone were probably bigger than that.
Gene’s attorney, however, might have been worth it. He was pretty crafty, throwing plenty of legal roadblocks in the courts’ way. The appellate panel, sad to say for Gene, swept them all away, and – rather piqued at Gene’s attempts to limit his liability after selling trees that only half belonged to him – said treble damages were only Gene’s due for selling the neighbor’s trees, especially when he had just been told not to cut them.
Smith v. Unger, Case No. 2007-CA-000318-MR (Ct.App. Kentucky, June 6, 2008). Marv Unger and Gene Smith owned adjacent properties in Lincoln County, Kentucky. Unger bought his place in 1997, and Smith purchased his in 2003. Marv’s property was primarily pastureland, while Gene owned some prime woodland.
Gene removed eight trees from the area along the common boundary line, where Marv asserted partial ownership. Gene said he believed the trees were on his land when he cut them down. Marv sued Gene for trespass and demanded treble damages for wrongful cutting under KRS 364.130.
Much of the dispute arose from a fence running along the boundary between the properties. Gene and Marv agreed the fence had been there as long as Marv owned his land, but they disagreed about how many years before that the fence had been there. Everyone agreed neither Marv’s nor Gene’s deed referenced the fence. Gene admitted he did not have the boundary line surveyed before cutting, but he said Marv told him the fence was the boundary. Marv says he never told Gene any such thing, and that he always determined the boundary line by some stakes that had been there at least since Gene bought his place.
Just before Marv purchased his property in 1997, the former owner had a survey of what became the Unger property performed. The surveyor placed stakes in the ground to mark the boundaries, and those stakes his property extended beyond the fence.
Gene never questioned the boundary’s location from the time he bought his land in 2003. However, Marv said that about a month after Gene bought his wooded tract, the two men discussed the trees located near the fence line between the properties. Marv said he understood the true boundary line between the properties to run according to the stakes, not the fence. Gene disagreed, believing the fence to be the boundary line between the properties.
Marv testified that before the trees were cut, he told Gene they were “line trees” and, as such, he deserved a portion of any money made from their sale. Marv admitted that after the conversation, he allowed Gene and his assistant onto his property to remove the first four of the eight trees. After the first four trees were removed, Marv waited for Gene to share the wealth. When Gene offered nothing, but instead tried to come back onto the property to cut more trees, Marv told him to leave, and Gene did, but not before cutting four more trees.
Marv then had the property resurveyed. The survey showed that the prior survey was somewhat off and that Gene owned four of the eight trees that had been cut.
A master logger valued the four trees that were not Gene’s “on the stump” and “at the market,” which was twice the stumpage value. The trial court entered a judgment for Marv for $4,614.90 plus, consisting of $1,538.40 in compensatory damages (representing the stump value of the trees) trebled (as set forth in KRS 364.130(1) and (2)), costs in the amount of $1,399.25, and attorneys’ fees in the amount of $1,154.00, for a total of $7,168.15.
Gene appealed.
Held: Judgment in favor of Marv was upheld.
Gene argued that KRS 372.070(1) declared Marv’s deed void to the extent that it purported to convey land within Gene’s boundary, including the timber upon it. That statute provided that any conveyance of any land of which any other person has adverse possession at the time of the sale or conveyance is void. Here, the Court said, Gene never disputed Marv’s proof of the boundary and never sought to quiet title. It was too late for Gene to argue that he had all along been claiming to hold the land up to the fence by adverse possession.
Under Kentucky law, land held by adverse possession only ripens into title when it has been held for 15 years openly, hostilely and notoriously to a well-defined boundary, giving others who may claim an interest notice of the adverse claim. The adverse holder’s intent at the time the possession begins is key: where one, through ignorance, inadvertence, or mistake as to the true location of his boundary line, enters into neighboring land up to a certain line in the belief that it is the true line, the occupancy is deemed amicable, mistaken perhaps, but not hostile.
In this case, Gene did not intend to possess land beyond his true boundary. He never formally disputed or questioned the boundaries as they existed, and he never approached Marv to request that the survey stakes be moved to establish what Gene believed was the correct boundary between the two properties. The Court said it was clear Gene did not intend to establish actual adverse possession.
Gene also complained about the treble-damages award. The Court disagreed.
KRS 364.130 governs damages for cutting timber from another person’s land. The statute provides that a person is liable for treble damages for cutting the timber from another person’s land only if the person cutting the timber did not have at least “color of title” to the land. So, in order for Marv to receive treble damages, the evidence must show that Gene did not have color of title to the disputed property from which the timber was cut. Color of title is “that which gives the semblance or appearance of title, but which is not title….” It is color of title in appearance only and not title in fact.
Any deed or instrument that purports to convey land and shows the extent of the grantee’s claim may afford color of title. Thus, even a defective or invalid deed or instrument of conveyance is sufficient to afford color of title. But in this case, Gene conceded that his deed made no mention of the fence as the appropriate boundary line, and the survey stakes marking Marv’s boundary were in place when Gene purchased the land.
Ultimately, the Court said, the question was whether the jury determined that the trees themselves were on the boundary, rather than whether the trees were entirely on one property or the other. If the jury decided that the trees were boundary line trees and that notice had been given to both parties that they were boundary line trees, then the taking of the trees by either party would be against the basic title held by either property owner and constitute the unlawful taking of timber from “the land of another”.
Here, the jury found that at least four of the trees at issue were boundary line trees taken by Gene without color of title. Accordingly, the statute entitled Marv to treble damages.
The Court said the jury’s function was to determine whether Gene damaged Marv’s land and, if so, what amount of money would compensate Marv up to the stump value. After that determination, the trial court had to enter a judgment for triple the amount assessed by the jury.
The jury did not award Marv the entire value of the trees. The trees were worth twice the stump value. The jury award of “stump value” actually amounted to only half the value of the standing trees. However, the Court reasoned that the jury awarded a sum of money to Marv, and that award implicitly found Gene a tortfeasor and Marv to be in the right. Gene removed the trees and, thereby, the physical evidence of the location of the trunk, the limbs, the shade the tree produced and any other benefit the tree would have had to the landowners that were provable by the physical presence of each individual tree. Certainly, there is no dispute that where each of these trees once stood, only stumps remain.
The Court said Gene was trying to benefit from the trees’ value both as the landowner and as a tortfeasor, but he could not have it both ways. Based on the logger’s testimony, it is customary that one who cuts and removes trees is paid one-half the value of the trees, which equals the stump value. Gene was seeking to acquire half the value of the trees on the basis of his tortious conduct, namely, cutting and removing the trees without permission. Further, as a landowner, Gene argues that he is entitled to a proportional share of the stump value. As a matter of policy, a tortfeasor should not be allowed to benefit from his wrong at the injured party’s expense.
– Tom Root
