Case of the Day – Tuesday, March 21, 2017

THE CAMEL’S NOSE

camelnose150209Prescriptive easements – easements across someone’s land acquired, usually by public utilities, because of a lapse of time – are fairly common. That’s usually because no one thinks twice about utility poles and overhead lines, or buried gas lines, until an issue arises and the landowner discovers to his or her chagrin that the utility never obtained an easement for the overhead or underground facilities, but too much time has passed to do anything about it.

In today’s case, a prickly landowner with the unlikely name of Lindburgh Jackson didn’t much like the overhead power lines and the utility pole on the land he bought in 1978. But somehow, for all of his complaining, he never bothered to check to see that Alabama Power had an easement to be there. It didn’t.

Unfortunately, for Unlucky Lindy, it took him nearly 25 years to challenge APCo, and only then because – as is increasingly common in our wired world – some new fiber optic system named Lightwave wanted to use the APCo poles and easement for its cable.

APCo easily proved that it had a prescriptive easement over Jackson’s land. After all, it had been trespassing with its poles for over 21 years. But the Alabama Supreme Court held that just because APCo had snagged an easement from Jackson for free to maintain electric lines didn’t mean Lightwave could cross the land with impunity, even on the APCo poles. The camel’s nose might be in the tent, but that didn’t mean that the whole camel could necessarily follow. APCo could use the easement for electricity transmission, but not for anything else it cared to.

The Supreme Court’s ruling suggests that Alabama at least takes a very strict view of how much a landowner has given up when he or she loses an easement by prescription — and that’s probably a good thing.

powerlines150209Ex parte Lightwave Technologies, L.L.C., 971 So.2d 712 (Sup.Ct. Ala. Apr. 27, 2007). Lindburgh Jackson owned property in Auburn, Alabama. Alabama Power Company has maintained power lines across his land and a utility pole on the property since he bought the place in 1978. Mr. Jackson never much cared for APCo, and has complained continually about APCo’s use and maintenance of the lines and the pole, but he did nothing about them.

Sometime in 2001, Lightwave Technologies – pursuant to a “pole-sharing” agreement with APCo – installed fiber-optic cable on the utility pole on the Jackson property. The City of Auburn had authorized Lightwave to install its cable and had established the route for such placement. Jackson sued everyone, APCo, Lightwave, and the City of Auburn, alleging among other claims that APCo had conspired with Lightwave to commit trespass on his property. The trial court entered a summary judgment in favor of all the defendants.

The Court of Civil Appeals concluded that because APCo had maintained the power lines in opposition to Jackson’s objections from April 1983 until September 2003, it had obtained an easement by prescription over his the portion of his land it used. The Court of Civil Appeals upheld judgment for APCo with respect to the trespass claim against it, and found for APCo and Lightwave on the conspiracy claim.

Undaunted, Jackson appealed to the Supreme Court of Alabama.

Held: APCo could not give Lightwave the right to use its prescriptive easement over Jackson’s land.

In order to determine whether APCo had the right to permit Lightwave to use the easement, the Court considered first whether APCo has the right to apportion its prescriptive easement and whether its apportionment to Lightwave was within the scope of the prescriptive easement. The Court said that the term “apportionability” in reference to easements refers to the easement owner’s right to divide the easement to produce independent uses or operations.

In general, the Court observed, an exclusive easement in gross is apportionable to the extent the additional use is authorized by the manner or terms of the easement’s creation. An easement in gross is an easement that benefits an easement holder personally whether rather than the benefit of the easement accruing to another piece of land. An exclusive easement grants unfettered rights to the owner of the easement to use the easement for purposes specified in the grant to the exclusion of all others, including the servient owner. Here, the Court held, APCo’s prescriptive easement was an exclusive easement in gross because it permits APCo to use the easement for the construction and maintenance of power lines and precludes, by its nature, Jackson and Matthews from using the easement for that purpose.

Just because a utility pole on a prescriptive carries one wire doesn't mean that it may carry more than one ...

Just because a utility pole on a prescriptive carries one wire doesn’t mean that it may carry more than one …

Prior decisions held that easements and easements acquired by condemnation may be apportioned, when the language in the document or condemnation order creating the easement indicates an intention to convey or to grant the right to apportion and when the apportionment does not constitute an additional servitude. But, the Court said, the decisions cannot stand for the proposition that a prescriptive easement – like the one in this case – is apportionable as a matter of law. Although the Court agreed that APCo’s prescriptive easement could be apportioned, the question to be resolved is exactly what rights APCo possessed that it could apportion.

In Alabama, the scope of an easement established by prescription is determined by the extent of the use. An easement holder is not entitled to materially alter the scope of its easement. Here, Jackson allowed APCo to gain a prescriptive easement over the disputed property. However, while Lightwave may have affixed its line to the power pole nearly 3 years before Jackson filed this action, one can hardly conclude that a relatively short 3-year delay amounts to acquiescence by Jackson of the apportionment. The Supreme Court ruled that APCo acquired the right to string power lines across the disputed property, but it did not acquire a right to string any line or cable providing something other than, or related to, electrical power over the easement.

Because APCo’s prescriptive easement is limited in scope to the extent of the use that created it, APCo’s apportionment of the prescriptive easement does not serve to insulate it from the conspiracy claim, nor does APCo’s attempt to apportion its prescriptive easement insulate Lightwave from either the trespass claim or the conspiracy claim against Lightwave.

– Tom Root

TNLBGray140407

Case of the Day – Monday, March 20, 2017

MEAN WHAT YOU SAY

clinton140912Back when George Stephanopoulos was a mere flack for President Bill Clinton, and not yet a respected television commentator for ABC, he defended his boss to a skeptical Larry King as having “kept all of the promises he intended to keep.” The malefactors in today’s case apparently intended the same.

In order to get a zoning variance to add on to their newly-purchased estate in the tres chic village of Centre Island, New York (once home to Billy Joel and his $32.5 million shanty), the Comacks promised not to let the shrubs and trees obstruct anyone’s view of Oyster Bay. Believing their sincere pledge, the Village OK’d the proposal.

A few years later, the bushes were high and the trees were leafy, and the Comacks said something to the effect of, “Promise? What promise? Oh, that promise… It’s… uh… kind of unclear what we really intended to promise. Let’s just forget the whole thing.” Or something like that.

Sometimes, as nice as the trees may be, the view without them is even better.

Sometimes, as nice as the trees may be, the view without them is even better. (Editor’s note: this photo was not taken at the Comack’s – it is illustrative only)

The Village elders didn’t forget it, soreheads that they apparently were, and sued the Comacks. The trial court found for the Comacks, but the court of appeals reversed and required the Comacks to keep their word. The appellate judges apparently could figure out what the meaning of “is” was.

Incorporated Village of Centre Island v. Comack, 39 A.D.3d 712, 834 N.Y.S.2d 288 (N.Y.A.D. 2 Dept., 2007). In 1999 the Comacks purchased property in the village of Centre Island and sought a variance to maintain and enlarge the pre-existing, nonconforming home on the lot. Specifically, they sought to build a second story addition over the existing garage and to change the roof line. The proposed expansion and changes would have necessarily affected the neighboring properties’ existing views of the waters of Oyster Bay. And, Centre Island being a ghetto of the fabulously well-to-do, unobstructed views of all that their wealth had enabled them to accumulate were rather important to the residents.

word160208In consideration for the granting of the variance, the Comacks signed a “Declaration” that provided “[a]ll open views from points off the premises to Oyster Bay shall remain in their present unobstructed state … [n]o trees or major shrubs shall be planted on lots 85 and 86 with the exception of minor shrubs and bushes which if allowed to grow to full height would not impede the aforesaid open views. Any shrubs or plants which if allowed to grow to maturity would exceed three feet in height will require the approval of the village building inspector for compliance with the intent of the declaration …”

Remember Johnny Nash? Are you really that old? Johnny obviously didn't live near the Comacks, or he would never have written the song.

Remember Johnny Nash? Are you really that old? Johnny obviously didn’t live near the Comacks, or he would never have written the song.

The variance was granted, but a few years later, shrubs and trees planted by the Comacks began obstructing neighbors’ views of the Bay. The Village sued. The trial court agreed with the Comacks that the “Declaration” was vague, and the case should be dismissed. The Village appealed.

Held: The trial court was wrong. It was the Village’s complaint that should be granted, not the Comack’s request that it be dismissed. Contrary to the trial court’s determination, the language of the “Declaration” and, in particular, the first provision thereof, was not “imprecise and vague” so as to render it unenforceable. Instead, the “Declaration” — read as a whole to determine its purpose and intent — is clear that the Comacks made a deal. In consideration for the granting of the variance, the Comacks agreed to maintain “[a]ll open views from points off the premises to Oyster Bay … in their present unobstructed state.”

Because there is no ambiguity, the “Declaration” must be enforced according to the plain meaning of its terms. The Court held that to the extent that certain shrubs and trees planted by the Comacks obstructed “open views from points off the premises to Oyster Bay,” these violate the “Declaration.” The Court sent the case back to the trial court to determine whether the Village was entitled to damages, and whether the Comacks should be ordered to cut down certain shrubs and trees from the subject property that obstructed “open views from points off the premises to Oyster Bay.”

– Tom Root

TNLBGray140407

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

Case of the Day – Thursday, March 16, 2017

WHERE’D THE TREES GO?

The Sanders were promised this ...

The Sanders were promised this …

Don and Susan Sanders loved the beautiful wooded subdivision in Grapevine, Texas, where they had bought their new house. The helpful salesperson had assured them that developer Weekley Homes intended for the subdivision to have a wooded, country atmosphere and “would take ordinary care” to preserve existing trees. After all, the sales flack with treacly sincerity, Weekley planned that the amenities for the subdivision would include wooded home sites. Not to worry, the syrupy agent smarmed them, because even if this weren’t so, everyone knew that the City of Grapevine, Texas, had a very tough tree ordinance which would be enforced strongly against Weekley.

Well, apparently not. The ordinance had teeth like a crocodile, but that’s not much solace unless the city enforces its terms. Here, as soon as the Sanders moved in, the trees started moving out. They complained that Weekley apparently had no intention of complying with the promises to keep the trees standing – they were tipped off by the shriek of the chainsaws – and the City seemed to have no intention of enforcing the tree ordinance. The Sanders tried to resolve the problem by writing a few letters and attending City Council meetings, but all that bought them was harassment by the City and the developer.

... but they ended up with this.

… but they ended up with this.

So they sued, going after the developer for misrepresentation and after the city and a gaggle of city officials for not enforcing the tough tree preservation law they had heard so much about. There’s nothing that’ll wake up a developer and city officials like the robust aroma of a freshly filed lawsuit.

Weekley apparently responded rather weakly, but the City took strong expection to the suit. Grapevine claimed it was immune from liability to its citizens for the City’s failure to enforce its tree laws. In other words, if city officials chose to look the other way when Weekley cut trees down daily, the Sanders had just better get used to the unfiltered Texas sun.

The Court of Appeals agreed, insofar as money damages were concerned. The Texas Tort Claims Act protected Grapevine officials. But the Sanders had asked for a declaratory judgment, too. Although their filings were not all that clear, the Court surmised that the Sanders wanted a judicial finding as to what rights they had, if any, under the City’s tree law.

Grapevine was not immune from a declaratory judgment action, the Court held. And while there are no money damages awarded for a declaratory judgment, a clear judicial finding that that the City fell down on the job of enforcing its ordinances could have substantial political effects. What mayor wants a judicial finding that he or she hasn’t enforced a law that most citizens fully support?

killer150116Sanders v. City of Grapevine, 218 S.W.3d 772 (Ct.App. Tex., 2007). Don and Susan Sanders sued the City of Grapevine, Texas, and a number of individuals over the City’s alleged failure to enforce its tree preservation ordinance. They had bought a home constructed by David Weekley Homes in the Silverlake Estates Subdivision, primarily due to its “wooded” and “country atmosphere.” The Sanders claimed that a sales consultant for Weekley Homes had assured them that Weekley Homes intended for the subdivision to have a wooded, country atmosphere, that Weekley Homes “would take ordinary care” to preserve existing trees, that the City of Grapevine had “an extremely tough tree ordinance,” and that the amenities for the subdivision would include wooded home sites.

But after they moved into their new home, it became clear to them that Weekley Homes had no intention of complying with, and the City had no intention of enforcing, the tree ordinance, after Weekly Homes cut down numerous trees within the subdivision. The Sanders brought claims for breach of contract and local tree preservation act violations against Weekley Homes — and for fraud, negligence, and negligent misrepresentation against all of the defendants — due to Weekley Homes’s failure to comply with, and the City’s failure to enforce, the City’s tree ordinance. They alleged the City was liable under §101.0215 of the civil practice and remedies code for damages arising from its governmental function of enforcing the tree ordinance. The Sanders also asked for a declaratory judgment.

The City argued that the Sanders’ claims against it should be dismissed because the City is entitled to governmental immunity. The individual defendants filed a motion to dismiss the claims against them with prejudice under the election of remedies section of the Texas Tort Claims Act. The trial court agreed, and the Sanders appealed.

Held: The Court of Appeals held that the city was immune from liability to the Sanders for negligence and fraud claims under the Texas Tort Claims Act, but it was not immune to a declaratory judgment action.

lawsuit150116The Court observed that in determining whether a city is subject to suit and liability under the Texas Tort Claims Act, the Court of Appeals must first determine whether the alleged conduct falls within the list of governmental functions listed in the Act, and if it does, the Court must then look to see whether the conduct falls within one of the other provisions of the Act that waives immunity. Here, the Court said, the City’s alleged conduct in failing to enforce a tree preservation ordinance clearly did not fall within the area of conduct for which governmental immunity was waived under the Texas Tort Claims Act. Waivers of immunity for negligence referred to conduct involving property damage, personal injury, or death, not alleged negligence in enforcing a statute on tree preservation. What’s more, the Act did not waive immunity for intentional torts, precluding an immunity waiver as to the fraud claim.

The Sanders also sued for a declaratory judgment determining what rights they had as homeowners under the City’s tree preservation statute. The Court agreed with them that the City was not immune from such an action, holding that a party does not need legislative permission to sue a governmental entity to determine its rights under a statute or ordinance, because the declaratory judgments action did not seek to impose damages or other liability on the city.

– Tom Root
TNLBGray

Case of the Day – Wednesday, March 15, 2017

SO WAS MARY ANNE AN EMPLOYEE?

mmma160129Every red-blooded American boy (and girl, for that matter) knows the story of Mike Mulligan and Mary Anne. Work had dried up for the pipe-smoking Mike and his redoubtable steam shovel, they took a job in Popperville digging the basement for the new town hall. The selectmen — especially one named Henry B. Swap — were dubious of Mike’s claim that Mary Anne could dig the basement in one day, so they made a deal with Mike that he wouldn’t get paid unless he completed the work in the time allotted.

Mike didn’t make the deadline, but the story had a happy ending anyway. Such was not the case for Terry W. Henry. Terry, an experienced timber harvester, needed work. He asked Bobby Hubbard, who ran a timber company working several tracts of leased land, for a job. Now Bobby appears to be one of those kinds of employers, you know, the kind of guy who “tries out” people and then finds them deficient, not hiring them and, for that matter, not paying them for the “try out” period. On top of that, Hubbard made everyone an independent contractor, paying them in cash without any withholding and without any tax reporting whatsoever.

While Terry Henry was on his one-day “tryout” — the deal being that he would get paid if Hubbard found his work acceptable —  a tree branch fell on him. Of course, Bobby “Captain All-heart” Hubbard refused to pay him for the day’s work and fought Henry’s workers’ compensation claim. The Board found that under the law, Henry was an employee, despite the conditional promise of payment. Hubbard argued that Henry would have become, at best, an independent contractor and been ineligible for workers’ comp. But he abandoned his argument at the Workers’ Comp board level, and the Supreme Court wouldn’t let his lawyer resurrect the argument when the Court of Appeals hadn’t heard it. If he had made the independent contractor argument, he might have been off the hook, but it’s hard to see the “independent contractor” argument as anything more than a tax and responsibility dodge.

work160129Still, Hubbard’s lawyer flubbed the case procedurally by not keeping the issue alive. Maybe Hubbard had his mouthpiece working under a “tryout” deal, too, and he won’t have to pay his solicitor.

Hubbard v. Henry, 231 S.W.3d 124 (Sup.Ct. Ky., Aug. 23, 2007). Henry had operated a bulldozer and cut timber for about ten years. He responded to an ad that Hubbard, a licensed master logger who leased the right to harvest timber from landowners, had placed. Hubbard usually employed four workers to operate a bulldozer and cut and load the timber under written employment contracts. The workers were independent contractors and supplied their own saws, chaps, and safety equipment, while he provided the bulldozer, skidder, gasoline, chains, and files.  Hubbard  paid them weekly in cash for days worked, and he did not withhold taxes or issue a Form 1099 for their pay.

Henry B. Swap

     Henry B. Swap had nothing on Bobby Hubbard …

Because Hubbard wanted to be certain that Henry could do the job, Henry agreed to work on a trial basis for a couple of days and to receive no pay unless Hubbard was satisfied with his work. Henry recalled that they discussed pay of either $10.00 per hour or $100.00 per day (which Hubbard disputed) and said Hubbard never told him he would be hired as an independent contractor. Henry cut a number of poplars, one of which fell into a sycamore tree. Another worker then showed Henry how to do a hinge cut, and a branch from the sycamore struck him on the head, injuring him severely.

Henry later asked Hubbard to pay him for the day that he worked, but Hubbard refused, but gave him some money later but did not say that it was payment for the work. Henry filed for workers compensation payments, asserting he had been hired and was working as an employee when he was injured.  Hubbard countered that Henry had not been hired and was working on a trial basis only or — even if he had been hired — he was an independent contractor rather than as an employee. The ALJ found Henry was working on a trial basis when he was injured. Nothing that state law premised employee status on the existence of a contract for hire, the ALJ also found that Henry failed to show a meeting of the minds sufficient to impute an implied contract for hire or to show that he expected to be paid for the work that he performed on the date of his injury.

Henry asserted to the Board that the ALJ erred by concluding that there was no implied contract for hire, by concluding that he worked on a trial basis but was not hired, and by failing to determine that he worked as an employee. The Board held as a matter of law that Henry was Hubbard’s employee, noting the undisputed evidence that Hubbard’s outfit was a logging company in the business of harvesting lumber for profit and that, at the time of Henry’s injury, he was harvesting timber at a job site that Hubbard controlled.

The Court of Appeals affirmed, and Hubbard appealed.

pinno160129Held: Workers compensation benefits were awarded. The workers’ compensation statute defines “employee,” for coverage purposes, to include every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury. It is intended to protects workers who are injured while performing work in the course of an employer’s business by considering them to be “employees,” despite the lack of a formal contract for hire, unless the circumstances indicate that the work was performed with no expectation of payment.

Under the statute, Henry was an “employee” when he was injured during his tryout for employment as a timber cutter, despite the fact Hubbard would owe Henry nothing if Hubbard was dissatisfied with the work. There was a contract of sorts, one which held that Henry would be hired and paid for work unless Hubbard was dissatisfied with his work. A co-worker did not state that he would have discouraged Hubbard from hiring Henry, and Hubbard did not indicate that he was dissatisfied with Henry’s work or would not have hired him had he not been injured.

The issue of whether Henry was an independent contractor in the course of an employer’s trade, business, profession, or occupation — who by law had effectively elected not to be covered by the Workers’ Compensation Act — was not properly preserved by Hubbard from the decisions below.

– Tom Root
TNLBGray

Case of the Day – Tuesday, March 14, 2017

EXPERT TESTIMONY

expert150115

Mark Twain once said, “An expert is just somebody from out of town.” In the eyes of the law, it’s a little more than that. Certified arborists, operators of tree trimming services, even just guys from out of town – just about anyone can be qualified by courts as expert witnesses.

And what good is an expert witness? Primarily, experts testify not to facts, but rather to opinions. Juries like opinions. Opinions sway juries.

In a tree case like today’s from Arkansas, a frolicking bulldozer operator wiped out a bunch of a neighbor’s trees. Clearly, she was entitled to damages. But how much would the damages be? She hired the county extension agent to testify as to the value of the trees that had been cut down. The defendant complained that the expert relied on timber sales reports written by others, but the Court of Appeals accepted his opinion, and in the process explained what type of research process it wanted to see as a basis for an expert opinion.

Of course, the state’s treble damages statute, which multiplied the value of the lost timber by threefold, made the expert’s opinion all that more important to both sides. Incidentally, the defendant tried to argue that there was no proof that the bulldozer operator was his agent, but that was a mere sideshow: the evidence was overwhelming on that point.

Expert150116Jackson v. Pitts, 93 Ark.App. 466, 220 S.W.3d 265 (Ct.App. Ark. 2005). Richard Jackson owns land just north of land owned by Nora Pitts. Pitts claimed that Jackson or people acting for him bulldozed trees on her land where it borders that of the Jackson. Lloyd Pitts,

Nora’s son, saw John Moore operating a bulldozer in the area of the destroyed timber, which was located on Pitts’s property line with Jackson’s land. Lloyd said he walked along his mother’s land shortly afterward and saw holes where trees had been removed from the bulldozed ground. Another witness saw the bulldozer activity on Pitts’ property, and said that the bulldozer operator told him that he had been directed by Jackson to perform the work. The trial court found that the Jackson and Moore trespassed Pitts’ land and destroyed marketable timber, setting the value of the destroyed timber at $1,157.20. Treble damages allowed under §18-60-102 of the Arkansas Code increased the judgment of $3,471.60. Jackson appealed.

Held: The trial court judgment was upheld. Jackson claimed that treble damages were unjustified, but the Court disagreed. The imposition of treble damages in a trespass action for trees damaged, broken, destroyed, or carried away requires a showing of intentional wrongdoing, although intent may be inferred from the carelessness, recklessness, or negligence of the offending party.

Here, the Court said, the evidence was sufficient to support a finding that an agency relationship existed between Jackson and the bulldozer operator such that Jackson was liable for the operator’s damage to Pitts’ timber. Lloyd Pitts saw the bulldozer on his mother’s property operating in the area of the damaged timber, and saw Moore operating it. Another witness said Moore said he was working for Jackson. Jackson admitted he had hired Moore to work on his property with a bulldozer, and that if any trees had been removed from Pitts’ property, it would have been done by Moore.

Mark Twain says there are none of these ...

Mark Twain says there are none of these …

As for the amount of damages, the Court said, the evidence in each trespass case determines what measure of damages should to be used to value trees damaged, broken, destroyed, or carried away. Timber is generally valued according to its “stumpage value,” which is the value of the timber standing in the tree. Here, Pitts’ expert witness gave testimony of the estimated number of trees destroyed by Moore, and their market value at the time. The evidence was admissible, the Court said, even though the opinion relied in part on hearsay. The expert described the methodology he used to compute timber value within a specified area, which included diameter measurements of randomly-selected trees, an estimate of the timber volume multiplied by the number of trees within a specified area, and the use of a university timber market report to obtain an estimated market value.

What’s more, the Court observed, the expert testified he personally walked the area to conduct his measurements and testified he walked off the area that was bulldozed, and then went into the woods next to that area to measure a similar amount of land and counted the trees within it. The Court said an expert witness may base an opinion on facts or data otherwise inadmissible, as long as the facts or data are of the type reasonably relied on by experts in that particular field.

– Tom Root

TNLBGray