Treble damages

Case of the Day – Wednesday, October 2, 2024

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HANK YANKED, JOHNSONS CRANKED, SUPREME COURT TANKED

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 had cut down, for additional damages his trespass had 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 wonderful 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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Case of the Day – Wednesday, September 25, 2024

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“WHOSE WOODS THESE ARE…

I do not know,” wrote Robert Frost in Stopping in the Woods on a Snowy Evening. That appears to have been precisely the problem for neighboring rural landowners in Kentucky, one the titleholder to pasture and the other owning 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 the 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, asking for 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 was not a lot of money in 2008, at least for all of 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 way of the courts. 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 of the common boundary line, in which Marv asserted part 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.

A lot of the dispute arose from the presence of a fence running along the boundary between the properties. Gene and Marv agreed the fence in question had been there as long as Marv had owned his land, but they disagreed as to how many years prior to that time 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 location of the boundary 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, and not according to the fence. Gene disagreed, believing the fence to be the boundary line between the properties.

Marv testified he told Gene before the trees were cut 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 for the purpose of removing 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 at no time did he approach Marv to request the survey stakes be moved to establish what Gene believed to be 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 award of treble damages. 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 deed or instrument of conveyance that is defective or invalid is sufficient to afford color of title. But in this case, Gene conceded that his deed makes no mention of the fence as the appropriate boundary line, and the survey stakes marking Marv’s boundary were in place at the time Gene purchased the land.

Ultimately, the question, the Court said, was whether the jury determined that the trees themselves were on the boundary, as opposed to whether or not 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. This being the case, it is clear that the statute entitled Marv to treble damages.

The Court said the jury’s function was to determine whether or not Gene damaged Marv’s land, and, if so, what amount of money would compensate Marv up to the amount of the stump value. After that determination was made, the duty fell to the trial court 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 value of the trees was 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, the jury awarded a sum of money to Marv, and implicit in that award was the finding that Gene was a tortfeasor while Marv was 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.

Gene, the Court said, was trying to benefit from the value of the trees both as the landowner and as tortfeasor but he could not have it both ways. Based on the testimony of the logger, it is customary that one who cuts and removes trees is paid at the rate of one-half the value of the trees, which is equal to 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 attempts to assert 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 to the detriment of the injured party.

– Tom RootTNLBGray

Case of the Day – Friday, September 13, 2024

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TREE TRESPASS LOTTERY

There are a lot of moving parts to today’s case. First, we have the classic setup for treble damages. A neighbor is told repeatedly that his beliefs as to his property boundaries were wrong, but he pigheadedly ignores the news he does not want to hear. After the inevitable trespass results in the butchering of hundreds of trees, the unhappy victims – who don’t want justice as much as a pound of flesh – decide to pile on with multiple experts, each describing the loss a little differently. Finally, we have a plaintiff’s lawyer who screws up on a minor and rather technical rule of pleading, costing his clients some money in the process.

In any fair contest, the Linebargers should have gotten treble damages from their neighbor George. How many times do you have to be put on notice that your purported property lines place you at risk of committing a whopper of a timber trespass before you check your figures, just to be safe?

Still, the punishment ought to fit the crime. Like the Alaska case we considered a few months ago, compensation for loss is one thing. But a lottery ticket that would score you two-thirds of the fair market value of your 30-acre spread for the loss of 4 acres of trees just seems wrong.

No one should quibble with the Linebargers getting treble damages. Pigheaded George had it coming. But their lawyer somehow forgot to ask for treble damages in his complaint, or even at trial. A basic tenet of procedural due process is that a defendant should get notice of what the plaintiff wants to stick him or her with, and an opportunity to put on as good a defense as the defendant can muster and the law allows.

In today’s litigious world, the Linebargers would have gone after their lawyer’s malpractice policy the day after the appeals court ruled.

Linebarger v. Owenby, 79 Ark.App. 61, 83 S.W.3d 435 (Ark.App. 2002). George Owenby’s property lies south of a heavily wooded, 30-acre tract owned by Jerry and Margaret Linebarger. The Linebargers bought the northern 20 acres of their property in 1976, where they built a weekend cabin. They bought the southern 10 acres in 1993 to serve as a buffer between their cabin and neighboring lands.

In 1998, George sold the timber on his tract to Canal Wood Corporation. Canal Wood began cutting in the fall of 1998 and, in the process, cut 329 trees from the southern 10 acres of the Linebargers’ land. Jerry complained that he had tried to tell George for years that a 1987 survey George used to establish his boundary was wrong, and that there was a more recent survey available.

As late as December 1997, when George told Jerry he was thinking of selling his timber, Jerry reminded George of the boundary problem and asked George to call him before proceeding. Heedless of this good advice, George made his deal with Canal, and, when Canal noticed some evidence of a boundary different than the one George had indicated, George provided Canal with the 1987 survey. In reliance on the wrong survey, Canal marked the acreage in such a manner that some of the Linebargers’ trees were cut.

Jerry and Marge finally got George’s attention by suing him and Canal for trespass and destruction of trees “that had been used for shade and beauty.” They asked for damages that would allow them to replace the lost trees, for attorney fees and costs, and for anything else to which they might be entitled. At trial, the Linebargers offered the testimony of three experts as to the amount of damages they had suffered. One expert, Bill Kelly, said the stumpage value of the cut trees was $1,081.60 and that it would cost $643.50 to prepare the site for re-planting. Another expert, real estate appraiser Wayne Coates, testified the market value of appellants’ property was $68,000 before the cutting and $62,000 afterward (which included $3,000 in clean-up costs). A third expert, Al Einert, placed a value on every tree that had been cut and determined the total value of the trees to be $44,702. Naturally, the Linebargers liked Al’s number the best.

The trial judge found that Canal had failed to obtain a survey prior to cutting the trees and had trespassed on the Linebarger’s land as the result of George’s intentional failure to disclose the correct survey. However, the judge found that the $44,702 damage figure testified to by Al was disproportionate in relation to the fair market value of the land. He awarded the Linebargers $5,000 for the reduction in value of their land, based on Wayne Coates’s testimony, plus $1,081.60 stumpage value and $643.50 in clean-up costs, based on Bill Kelly’s testimony.

The Linebargers appealed.

Held: The replacement value of the trees was grossly disproportionate to the diminution of the land value, and would be a windfall for the Linebargers.

The Linebargers complained that the trial court should have awarded them the $44,702 replacement value of the trees. Arkansas courts have recognized that when ornamental or shade trees are injured, the use made of the land should be considered, and the owner should be compensated for the cost of replacing the trees. However, fact situations may arise in which recovery of the replacement cost of trees would yield a result grossly disproportionate to the fair market value of the land and thus would be an inappropriate measure of damages. The evidence in each case determines what measure of damages is to be used.

Here, the trial judge acknowledged the Linebargers had used their trees for screening and shade, and he gave due consideration to the replacement measure of damages. However, he found that most of the trees cut were behind and over the crest of a hill from Jerry and Marge’s cabin, which tended to reduce the harm they suffered. After all, you can’t derive shade from trees you can’t see. He also found that the replacement cost of the trees would be disproportionate in relation to the fair market value of the land.

The Court of Appeals agreed. “We cannot say that the trial judge abused his discretion in making the damage award,” the Court wrote. “Although he recognized that an award of replacement value might be possible, he declined to use that measure of damages because 1) the cut trees were behind and over a crest from the cabin, and 2) the replacement value would be disproportionate to the land value. The location of the cut trees in relation to the cabin is a legitimate factor to consider. The trees provided only minimal shade, ornamental, or landscaping value to the appellants’ residence.”

It was obviously meaningful to the appellate court that if George paid the Linebargers the full replacement value of $44,702 for trees cut on 4.29 acres, Jerry and Marge would have received 67% of the value of the entire 30 acres as a whole (including the cabin). Such an award would exceed the stumpage value of the cut trees by over $43,000.

The Linebargers cited Ark. Code Ann. § 18-60-102 (a), which provides that if a person cuts down another’s tree, he may be liable for treble damages. Here, the Court replied, the trial judge found that the wrongful cutting in this case occurred through George’s intentional conduct. In cases of intentional wrongdoing involving the cutting of trees, the victim may recover treble damages. But despite his finding of intentional conduct, the judge declined to award treble damages in this case, based on the idea that a court of equity cannot award treble damages.

The judge was right, the appellate court said, but for the wrong reason. Jerry and Marge did not include a request for treble damages in their pleading, nor does the record reveal that they notified George and Canal at trial that they would be seeking exemplary (punitive) damages. A defendant is entitled to be given adequate notice of the remedy he or she will be confronting. An award of treble damages would have been inappropriate in the absence of the Linebargers pleading for them or the issue being tried with the express or implied consent of the parties.

– Tom Root

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Case of the Day – Tuesday, September 10, 2024

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WASHINGTON STATE – GREAT COFFEE, GREAT VISTAS… AND GREAT CONFUSION

I have to confess that, although I am a proud Midwesterner, I love the State of Washington. Temperate rain forests, soaring mountains, beautiful lakes, great coffee, greater beer, and Seattle in the sunlight.

OK, not so much about the sunlight. But for that, Washington is two fantastic states, the first being a lush and moist paradise west of the crest of the Cascades, and the other being a sprawling, sunny and semi-arid plain east of the mountains.

Despite my love of the place, I was unstinting in my criticism yesterday about how the Mustoe court had sanctioned an “anything goes” culture in Washington, in which a landowner could misuse the Massachusetts Rule to kill a neighbor’s tree by the indiscriminate cutting of roots and branches, regardless of effect. As long as you stay on your own property, you can trim branches and roots with a backhoe bucket, if you so choose.

Today’s case is every bit as puzzling as is Mustoe, but in quite the opposite direction. One set of neighbors hacked branches off a boundary tree to the point that the other set legitimately feared that it was so unstable it would fall. The second set of neighbors then retaliated, taking the rest of the branches off the tree. That stabilized the tree trunk but had the unfortunate side effect of killing the tree.

Neighbor One, who lacked not for chutzpah, sued Neighbor Two for timber trespass. The courts found Neighbor Two liable for treble damages under the State’s timber trespass statute, regardless of the fact that Neighbor One’s reckless trimming created a hazard tree and the need for the drastic remedy that killed the tree.

The Court, in today’s case, candidly “acknowledge[s] that under Mustoe and our holding here, it would appear that a property owner has greater rights with respect to trimming a neighboring tree than a tree standing on a common property line with a neighboring property. This outcome is the result of applying a statute to a situation that was not likely contemplated upon the statute’s drafting. Our legislature may clarify the statute’s applicability to boundary trees in future legislation.”

Of course, part of the problem may be that the lawyer for the Pelayos (Neighbor Two) failed to remember that the best defense is often a good offense. He did not file a timber trespass claim against the Herrings (Neighbor One), which would have placed their misconduct into play. To be sure, in any fair world, the Herrings’ conduct in removing all the branches overhanging their property also violated RCW 64.12.030 and should have mitigated, if not outright excused, the Pelayos’ cutting in response.

Herring v. Pelayo, 397 P.3d 125 (Wash.App. Div. 2, 2017). The Herrings and Pelayos are neighbors. In December 2011, the Herrings hired a tree trimmer to remove some branches from a tree located on the common property line. The Herrings did not discuss their plan to remove branches from the tree with the Pelayos prior to the work. When they discovered the trimming, the Pelayos believed that the work had caused the tree to become unbalanced, constituting a danger to their home. Three weeks after the Herring trimming, the Pelayos had a tree trimmer remove all the remaining branches from the boundary tree, causing the boundary tree to die. Like the Herrings, the Pelayos did not discuss their plans with the neighbors before the work was done.

The Herrings sued, claiming a timber trespass in violation of RCW 64.12.030 or, in the alternative, regular garden-variety trespass in violation of RCW 4.24.630. At trial, Jose testified that he knew the tree at issue was on the common property line, he told the tree trimmer to remove all of the remaining branches from the tree, he did not discuss his plan with the Herrings, (4) the tree was alive prior to the removal of the remaining branches, and (5) he believed that removing the remaining branches would kill the tree, which it did.

The Pelayos’ tree trimmer, Tim Jones, testified that he believed the tree was a danger to the Pelayos, and he had recommended that they remove the entire tree or, at least cut off all the remaining branches. But Tim also told the Pelayos that they could remove a top portion of the tree to balance it, and Tim admitted that he might have been able to remove some of the remaining branches to render the tree safer without killing it.

The trial court held that the Pelayos committed timber trespass under RCW 64.12.030, and their defense of mitigating circumstances, allowed by RCW 64.12.040, did not apply.

Held: The Pelayos had to pay.

Jose and Blanca Pelayo argued that the trial court failed to find that their conduct in removing the branches from the boundary tree was both (1) willful and (2) without lawful authority. Without those findings, they contended, they could not have violated RCW 64.12.030.

RCW 64.12.030 provides that “whenever any person shall cut down, girdle, or otherwise injure, or carry off any tree… on the land of another person… without lawful authority, in an action by the person… against the person committing the trespasses… any judgment for the plaintiff shall be for treble the amount of damages claimed or assessed.” Washington law is clear that there must be an element of willfulness on the part of the trespasser to support treble damages under RCW 64.12.030. In this context, the Court said, “willful” simply means that the trespass was “not casual or involuntary.” The burden of proving that a trespass was casual or involuntary is upon the defendant once the fact of trespass and the damages caused thereby have been shown by the plaintiff.

Here, the Court said, the Pelayos never argued and no evidence ever suggested that the trespass was casual or involuntary. Under those circumstances, it was not necessary for the Herrings to prove willfulness.

Jose admitted at trial that he knew the Herrings had an ownership interest in the boundary tree and that he had ordered the remaining branches to be removed from the tree knowing that such removal of branches would kill the tree. The Court said his testimony “was tantamount to a concession” that the conduct in removing the branches was willful. No other evidence would have let the trial court infer that this conduct was casual or involuntary. Therefore, no specific finding as to willfulness was required.

Next, the Pelayos argued that they were lawfully authorized to remove branches from the boundary tree that were overhanging their property. The Court made short work of that argument as well.

RCW 64.12.030 applies only to people acting without lawful authority. A landowner has the legal authority to engage in self-help and trim the branches and roots of encroaching onto his or her property. On the other hand, a landowner does not have the legal authority to cut down an encroaching tree. But here, the issue was whether a landowner may trim the branches of a tree standing on a common property line in a manner that a defendant knows will kill the tree.

The Court began by holding that trees standing directly on the property line of adjoining landowners are the common property of both landowners. The Pelayos contended that landowners had an unfettered right to trim branches that overhang their property regardless of whether the tree is situated entirely on a neighboring property or, instead, is situated on a shared property line.

Despite Washington State’s rather cavalier treatment of a tree owner’s rights vis-à-vis the neighbor in the Mustoe decision, the Court concluded that where the tree stood on a common property line, both the Pelayos and the Herrings had undivided property interests in the tree. This was consistent with the only other relevant decision on the matter, a Washington appellate decision in Happy Bunch LLC. Because the Pelayos have a property interest in the tree at issue, the Court reasoned, portions of the tree overhanging their property could not be said to be “encroaching” in the same way that the branches and roots were encroaching in Mustoe.

The Pelayos and Herrings owned the tree as tenants in common, and thus each couple was entitled to use, maintain, and possess the boundary tree, but not in a manner that “interfered with the coequal rights of the other cotenants.” Unlike a landowner engaging in self-help to trim branches overhanging his or her property from a tree situated entirely on the property of another, the Court ruled, a cotenant owning a boundary tree had a duty not to destroy the common property and thereby interfere with the rights of the other cotenants.

After all, the Court argued, if landowners had an unfettered right to cut away the portions of a common boundary tree that stand on their property, without any regard for whether such cutting would injure or destroy the tree, the timber trespass statute could become inapplicable to neighbors sharing a property interest in a boundary tree. Under the Pelayos’ argument, the Court complained, a neighbor sharing a property interest in a boundary tree could effectively destroy the tree and escape liability under the timber trespass statute if the neighbor destroys the tree in a manner that does not physically trespass on the portion of the tree situated on the neighboring property. “This result cannot withstand the plain language of RCW 64.12.030,” the Court said, “which imposes liability on ‘any person… [who] cut[s] down … or otherwise injure[s] … any tree… on the land of another person’.”

The Court observed that it also had to “give effect to language in the statute shielding from liability conduct that is taken with ‘lawful authority’… In recognition of the long-recognized lawful authority to trim overhanging vegetation, the lawful authority to use and maintain property held in common with a cotenant, and the plain language of the timber trespass statute, we hold that where a tree stands on a common property line, the common owners of the tree may lawfully trim vegetation overhanging their property but not in a manner that the common owner knows will kill the tree.”

Because the Pelayos admitted they directed the removal of the remaining branches of the boundary tree, knowing that the removal would kill the tree, they were liable under RCW 64.12.030.

The Pelayos tried to avoid being hit with treble damages under RCW 64.12.040 by arguing that mitigating circumstances applied to their conduct. They said that because they cut the tree branches while standing on their property, they had probable cause to believe that they owned the land where such conduct took place.

The Court rejected that argument, too, holding that RCW 64.12.030 violations involve direct trespass to a tree, not trespass to the land on which the tree grows. The timber trespass statute applies when a defendant commits a direct trespass that causes immediate, not collateral, injury to a plaintiff’s timber, trees, or shrubs, even if the defendant is not physically present on a plaintiff’s property.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, July 25, 2024

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IT TAKES A THIEF

It was perhaps the last of the 60s-era TV spy genre series: It Takes a Thief featured the adventures of cat burglar, pickpocket, and thief Alexander Mundy, suavely played by Robert Wagner, who stole to finance his life as a polished playboy and sophisticate. He ends up in prison, which is where the story begins. A U.S. spy agency proposes a deal to Mundy: steal for the government in exchange for his freedom.

Real life thieves are not so accomplished, and seldom so handsome and cosmopolitan. Which brings us to Logan County, Ohio, and Lowman Lumber Company.

We’re not calling company owner Sturgil Lowman a thief. The courts of Logan County have already done that for us. Sturgil was in the timber harvesting business. Over 40 years, he seems to have developed what the criminal justice people call a modus operandi: Cut a few corners, cross a few boundary lines, and wherever possible, take some timber from the neighbor’s land as well as the tract you’ve bought the right to harvest.

Sometimes you get caught. Then, you affect your most self-deprecating head shake and chuckle, admit you made a dumb mistake, and compensate the victim for the trees you unlawfully took. When you balance the books at the end of the year, the timber you got away with is enough to make the timber you got caught taking worthwhile. Cost-benefit, baby.

The problem is that word spreads – especially at the courthouse, where every lawsuit record is preserved. After awhile, the “oops, I goofed” schtick gets old. That’s what happened to Sturgil.

He finally crossed someone who filed a criminal complaint, and he was convicted of receiving stolen property (the trees). He paid restitution and did a little probation for the misdemeanor. But at the same time, another timber trespass case was playing out across the hall in a different courtroom.

Sturgil was logging Dale’s place under contract. While doing so, he busted the boundaries with the Shanklin’s wooded tract, and proceeded to butcher 15 of the prettiest acres in Logan County (which is a rather pretty place to begin with). This time, the owners pursued him with a vengeance, and Sturgil’s history of being private property-challenged – as well as the grossness of his violation of the Shanklin land – was enough for the jury to inflict real pain on him. Sturgil was ordered to not just pay for the damage to the Shanklins, but to pay treble damages for recklessness and punitive damages on top of that for malice.

Sturgil especially contested the trial court’s award of punitive damages on top of treble damages, and frankly, it is rare for a Court to approve both. But this case, if any, proves the old maxim that “hard cases make bad law.” The jury and the courts knew a bad actor when they saw one, and they used the tools at hand to dissuade him from continuing his malefaction. The final ticket was $45,000 in compensatory damages, increased by another $90,000 under ORC § 901.51, and an additional $33,500 in punitive damages, and $35,600 in the Shanklins’ attorney fees. A bill of $204,100 for $30,600 in stolen timber.

How’s that cost-benefit analysis looking now, Sturgil?

Shanklin v. Lowman, 2011-Ohio-255 (Ct.App. Logan Co., Jan. 24, 2011). Sturgil Lowman, a lumber company owner, harvested some timber for landowner Dale Kauffman. Dale identified the fence line that marked the boundary between his land and that of the Shanklin family, next door.

The Shanklins were retirees living in Florida, who used the wooded tract they owned solely for recreational purposes. The man who looked after the land for them, Tom Stacey, said that it was an “old growth area” with a beautiful high canopy, completely shading when leaves were present, and with tall, straight trees. He described it as having “the most lush undergrowth” he had seen anywhere in Ohio, and that the east edge of the back parcel had a dramatic, deep, narrow ravine that was about forty or fifty feet deep, with rich wildlife.

In the spring of 2006, Tom was cleaning up the Shanklin property due to an ice storm. As he walked the back of the property near the ravine, he discovered a road and bulldozer tracks. About twelve to fifteen acres of the property had been clear-cut, except for some stumps, and a logging road had been cut nearly a quarter mile into the property from the Kauffman property line. There two points of entry into the property, with the main logging road going through the fence line, with the fence cut off and rolled up. In addition to the removed trees, Tom found damage to trees that were not taken, including scars and “chunks” resulting from equipment being moved through the area.

It did not take long to connect it to Sturgil. Sheepishly, he admitted that Dale had shown him the property line, that he never hired a surveyor to confirm the property lines, that he never consulted any maps or real estate records to determine the property lines, but instead had an employee “mark the lines with ribbons,” and that neither he nor his employees kept any documentation about how many trees or what types of trees were cut.

This was not Sturgil’s first rodeo. He had been sued perhaps five times in his 40 years of operation for trespass to timber, and he was convicted of the felony of receiving stolen timber, for which he paid restitution and was sentenced to probation. Even more troubling, Tom reported that a Lowman employee had approached him a year earlier to learn who owned the Shanklin land. Tom walked the man through the property, whereupon the man offered him $10,000 if he could convince the Shanklins to let Lowman cut the timber. Tom refused and told the man that if the Shanklins were interested, they would contact Sturgil’s company directly.

James Bartlett, a consulting forester, performed a stump count for the Shanklins, identifying species and estimating the value of the wrongfully cut trees at the time they were cut. He found 282 stumps, and – using a United States Forest Service formula – found the aggregate value of the timber to be at least $30,671. He said he could not put a value on the “loss of beauty” to the property or the loss of enjoyment of the property.

A professional registered surveyor testified that he had examined the property line, and it “seemed very straightforward to him where the property line was.” He said that if Sturgil had hired a surveyor prior to the cutting, the line between the properties would have been easily determined.

A licensed realtor who had lived in Logan County his entire life testified that the property was unique because it was directly across from the highest point of Ohio, and was the most scenic ground in Logan County. He estimated that the value of the area that had been harvested, prior to the cut, would have been about $6,000 an acre, or $90,000 for the 15 acres affected. He estimated the value after cutting was about $3,300 an acre.

The jury returned a verdict awarding the Shanklins compensatory damages of $45,000, resulting in trebled damages of $135,000, and punitive damages of $33,750.

Sturgil appealed.

Held: The $168,750 damages award was upheld.

The Court found that the compensatory damages were amply justified by the testimony that the 15 acres fell in value from $90,000 to about $49,000. Additionally, the evidence showed that the timber was worth at least $30,671, but possibly more, because the Shanklins could have put the timber out for competitive bidding. Thus, the Court ruled, the record contained “competent, credible evidence supporting the jury award of compensatory damages.”

Sturgil complained that the evidence did not show that the timber trespass had been reckless, which is necessary under ORC § 901.51 in order for treble damages to be assessed. The Court of Appeals made mincemeat of this argument:

Evidence showed that a man identifying himself as representing Lowman Lumber approached Tom Stacey and inquired about harvesting the timber on the Shanklin property. The man offered Tom $10,000 if he could convince the Shanklins to let his company harvest the timber, but Tom declined the offer and gave no indication that the Shanklins were willing to sell timber to Lowman. Tom eventually discovered that twelve to fifteen acres of the Shanklin property had been cut, that a logging road had been cut nearly a quarter of a mile into the Shanklin property from Dale Kauffman’s property line, and that there were two points of entry into the Shanklin property with about twenty branches off the main logging road. A fence marked the property line between the Shanklin property and Dale’s property, but the main logging road went through the fence line, with the fence itself cut off and rolled up.

A professional surveyor identified the property line between the Kauffman and Shanklin properties and observed that cutting had taken place across the line onto the Shanklin property. The cutting extended five or six hundred feet across the property line.  Lowman did not hire a surveyor before cutting on the property, but Dale had showed him the corners of the property. Sturgil Lowman admitted he had previously been convicted of receiving stolen property and criminal damaging involving tree trespass in August 2007, and that there had been several judgments in civil cases against him for cutting onto neighboring property without authorization.

The foregoing litany, the Court ruled, was “credible evidence that Lowman perversely disregarded a known risk with heedless indifference to the consequences.”

Sturgil argued that the trial court should not have awarded both punitive damages and treble damages.

The Court disagreed. “An award of punitive damages in a tort case may be made only upon a finding of actual malice on the part of the defendant,” the Court said. “‘Actual malice’ for these purposes is ‘(1) that state of mind under which a person’s conduct is characterized by causing substantial harm’… When ordering punitive damages, the trier of fact is to make a “reasoned  determination… of an amount that fairly punishes the tortfeasor for his malicious or malevolent acts and that will deter others from similar conduct.”

The Court held that an award of punitive damages “will not be overturned unless it bears no rational relationship or is grossly disproportionate to the award of compensatory damages.”

The Court easily found that the long list of horribles that supported a finding of recklessness also rose “to the level required to demonstrate ‘a conscious disregard for the rights… of other persons that has a great probability of causing substantial harm’.” There can be little doubt that the jury, and later the Court of Appeals, saw Sturgil as a serial trespasser who had long ago concluded that the cost-benefit analysis of stealing timber was such that it was worth getting caught now and then, passing it off as a “mistake,” given all the times he could get away with it.

– Tom Root

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Case of the Day -Wednesday, July 24, 2024

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ACT IN HASTE, REPENT IN LEISURE

Many years later, we can still see Mom shaking her head at us kids over some blunder or another, asking us, “What were you thinking?”

The answer, of course, is that we were kids, so of course, we weren’t thinking at all.

But you wonder how a guy who has been in the timber business for 30 years, has been shown the property boundaries and has a clear visual cue – a line of trees – to remind him, can nonetheless overshoot by three acres, and commit an expensive timber trespass on someone else’s land. So what was he thinking?

The issue was whether Cameron Klinck (no known relation to Colonel Wilhelm Klinck) was merely negligent or instead forged on heedless of the consequences (which is the very essence of recklessness). The difference is crucial because mere negligence would cost Klinck about what he sold the Shanghai’ed trees for, and thus leave his wallet smarting only a bit. Recklessness, on the other hand, will trigger ORC § 901.51, and entitle aggrieved tree owner Ishan Judeh to three times the compensatory damages – in this case, the stumpage value of the trees – what we call “treble damages.”

Judeh v. Mahoning Valley Timber & Land Co., Case No. 03-MA-138, 2004-Ohio-4819 (Ct. App. Mahoning Co., Aug. 31, 2004), 2004 Ohio App. LEXIS 4353, 2004 WL 2029136 (2004). Ishan Judeh owned land next to acreage owned by Gene Pyle, portions of which were wooded. Cameron Klinck, a logger who owned Mahoning Valley Timber & Land Co., contracted to remove timber from Pyles’ land. Pyles described the location of the boundary dividing his and Judeh’s property.

Klinck removed trees from Pyles’s land as arranged, but also removed trees from about three acres of Judeh’s land. Judeh sued Mahoning Valley Timber for trespass, conversion, and wrongful taking of timber from his land. The trial court awarded Judeh $6,000, representing the stumpage value of the wrongfully cut trees, and trebled the damage to $18,000 under ORC § 901.51, finding that Klinck had been reckless in harvesting the trees from Judeh’s property.

Klinck appealed.

Held: The record showed Klinck had been reckless.

The Court of Appeals reviewed the decision with a deferential standard. It “indulge[d] every reasonable presumption in favor of the lower court’s judgment and finding of facts” and “[i]n the event the evidence is susceptible to more than one interpretation, [the court] construe[d] it consistently with the lower court’s judgment.”

In this case, evidence showed that Klinck knew where the property boundaries lay. The line was clearly visible by virtue of a tree line that extended 416 feet from south to north between the two parcels. Klinck admitted he knew where the boundary line was located, had maps and had walked the boundary line. Although he did not have the land surveyed, Klinck admitted that it was good business to survey the area of the property to be logged and that he used a surveyor 98% of the time. He had been in the timber business for over thirty years and was aware of the risks of failing to survey the property. In addition, the Court said, the magnitude of the trespass – being two to three acres – suggested recklessness.

– Tom Root

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Case of the Day – Monday, July 8, 2024

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IT DOESN’T TAKE THAT MUCH TO BE RECKLESS

Today, my bride of 45 years and I are climbing up an ash-covered glacier (in Iceland, where else?), doing things with an ice axe and crampons that seem kind of reckless for grandparents of 4.66 grandchildren to be doing. It’s a great segue into today’s topic.

We all have some sense of what kind of conduct is reckless. At least, to channel the late Justice Potter Stewart, we’re pretty good at knowing it when we see it. Riding a motorcycle into a wall at 100 mph while drunk? Yeah, probably reckless. Standing on a ledge at the top of a skyscraper for a selfie? You bet. Lying between railroad tracks while a train passes? We’ll give you that one, too.

But when the law uses the term “reckless,” in fact when the law adopts any standard, the term has to have a specific definition. If not, laws punishing conduct that did not meet the standard would be arbitrary (as well as falling short of their goal of causing people not to be reckless in the conduct of their affairs).

I’m sorry, Justice Stewart. ” Knowing it when [you] see it” is trenchant, but it’s not a good way to regulate conduct.

In today’s case, a Buckeye State classic, a car repair business trespassed on a neighboring business’s land to hack away at some spruce trees. The car repair manager thought the trees belonged to his company, but his belief – which flew in the face of the facts – was so heedless of the consequences that the court found him reckless.

We have seen worse cases that were considered to be  mere negligence, and we cannot discount that the trial court in this case was influenced by the extent of the damage to the “visual barrier” between the professional building (populated with the offices of lawyers, doctors and engineers) and the seamy oil-change-and-lube joint next door.

“Recklessness” let the trial court grant treble damages under Ohio law to the office building owner. Unsurprisingly, recklessness is what the trial court found. Maybe cynicism is creeping into our analyses as we age (we prefer the expression “as we get wiser”), but if the real estate owner had made the same unsupported surmise about the grease monkey’s trees, we suspect his misfeasance would be found to fall somewhere short of “reckless.”  Just sayin’.

ALH Properties, P.L.L. v. Procare Automotive Service Solutions, LLC, Case No. 20991, 2002-Ohio-4246 (Ct.App. Summit Co., Aug. 21, 2002) 2002 Ohio App. LEXIS 4412. ProCare and ALH were adjoining landowners. ALH had an office building on its property, and ProCare operated an auto repair facility. Between the two properties stood a row of large Norway spruce trees, providing a visual buffer between the two businesses. The trees are on ALH’s property, although some of the branches extend over ProCare’s property. ProCare cut branches off of the lower ten feet of the spruce trees, destroying the visual buffer. The branches will not grow back.

ALH sued, alleging reckless injuring of the trees under Ohio Revised Code 901.51. The trial court entered judgment against ProCare for $34,200.

ProCare appealed.

Held: ProCare was liable to ALH.

Do you see any recklessness here?

Section 901.51 of the Ohio Revised Code provides that “[n]o person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another… “In addition to a criminal, the statutes subject a violator to treble damages for the injury caused.”

The Court held that as used in the statute, the term “recklessly” has the same meaning in a civil claim for treble damages as it does in a criminal proceeding for violation of the statute. A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

The Court acknowledged that a privilege exists at common law for a landowner to cut off branches of an adjoining landowner’s tree that encroached on his land. But here, ProCare trimmed not just branches of the trees that faced its property, but also branches facing ALH’s property as well. ALH’s president testified he had not given anyone permission to trim the trees, and that he had previously trimmed branches that hung over his parking area and had removed one of the trees entirely because it died.

ALH offered a videotape its president had made on the day ProCare trimmed the trees, which included his running commentary on the damage done to the Norways.  All the while, the property line marker – a large post – was clearly visible. Pictures taken both before and after ProCare trimmed the branches were admitted into evidence. ProCare stores old tires, oil cans, and a dumpster in the area near the trees, and the photos showed how the trees had created a visual buffer from ProCare’s property and alleviated some traffic noise.

Martin Long, a ProCare manager, testified he thought the spruce trees were on ProCare’s property and that he assumed the trees were ProCare’s because “nobody ever took care of them.” He said he trimmed other branches hanging over ProCare’s property on two previous occasions with no negative consequences. He admitted that on one occasion, one of the Norways — which was dying — had been removed by someone other than a ProCare worker. However, he pointed out, in the spring ProCare would mulch the trees, and no one ever told him that the trees were not on ProCare’s property.

Long believed that only limbs that faced a direction other than toward ALH’s property were cut off. He said that when Myers approached him about ProCare trimming the trees, it was the first indication he had that the trees were not on ProCare’s property. Long admitted that when the spruce that was dying was removed, he did not know who removed it, but he did know that he, personally, had not directed anyone to remove it, nor did he have to pay for its removal. He stated that he thought ALH had removed it because of the risk it posed to ALH’s buildings.

The trial court found that the removal of the tree branches was reckless because Long had reason to know facts that would lead a reasonable person to question whether the trees belonged to ProCare. The trial court held that the complete removal of a large spruce tree in this row of trees at no expense or trouble to ProCare was an indication that ProCare did not own the trees nor was it responsible for maintaining them. The trial court also noted that Long’s testimony that the only branches cut were those that overhung ProCare’s property was disputed by the videotape and photographs, which clearly showed other branches were cut that did not overhang ProCare’s property.

The Court of Appeals found that the trial court’s conclusion that ProCare was reckless was not against the weight of the evidence. The Court held adequate evidence showed ProCare disregarded a known risk with heedless indifference to the consequences when it trimmed branches of trees that were clearly on ALH’s property.

ProCare also argued the trial court’s calculation of damages is against the manifest weight of the evidence.

ALH’s president testified that soon after ProCare trimmed the trees, he contacted two landscaping companies to install arborvitae to replace the barrier. A landscaper submitted a quote for $3,850 to plant 35 arborvitae, although he said planting arborvitae was inadvisable. He also said it was impractical to replace the spruce trees with ones of a similar size, given their 60-foot height. The landscaper provided a separate quote of $18,923 to remove the spruce trees, grind the remaining stumps, and plant a row of Colorado spruce.

A different landscape contractor testified for ProCare and said $3,750 to plant a row of arborvitae was appropriate, and that the shrubs would provide an adequate screening between the properties. He quoted $12,200 to remove the Norway spruce, grind the stumps, and plant Colorado spruce. He thought, however, that Colorado spruce would not provide an adequate barrier because they cannot be pruned properly. He recommended planting White Pine instead because White Pine can be pruned and trimmed more easily than spruce. His estimate to plant a row of White Pine was $11,400.

The trial court found that the best solution to replace the visual screening between the two properties was to replant trees, but that planting Colorado spruce was a disproportionate expense. It ruled that White Pine was a reasonable tree type for restoration, and awarded damages of $11,400. The amount was trebled pursuant to O.R.C. 901.51, for a total award of $ 34,200.

The court of appeals held that the trial court’s decision was reasonable.

– Tom Root

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