2020 Ohio 3219
Ohio Ct. App.2020Background
- Plaintiff Allen Brand owned a 120-acre parcel on which a healthy 32" red oak had been growing; the tree suffered storm damage and fell, with parts landing on neighboring parcels.
- Brand later discovered the tree trunk was missing and sued defendant Ralph Ogle in small claims court for trespass and conversion, seeking damages.
- Ogle admitted cutting and removing part of the fallen trunk at a fence line near neighboring properties, sold the wood for about $600, and testified he did not enter Brand’s land.
- The magistrate concluded no trespass occurred, treated the dispute under premises-liability principles (owner lacked notice of danger), rejected Brand’s damages report, and recommended dismissal.
- The trial court adopted the magistrate’s decision; on appeal, the Fourth District affirmed dismissal as to trespass/premises-liability reasoning but reversed the dismissal of Brand’s conversion claim, holding Brand retained ownership and Ogle wrongfully disposed of the trunk.
- The case was remanded for further proceedings on conversion and damages (appellant and appellee to split costs).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trespass — did Ogle enter Brand’s land to cut/take the trunk? | Brand: Ogle trespassed to cut and remove the trunk. | Ogle: He did not enter Brand’s land; removal occurred at the fence line and aided neighbors. | Magistrate/trial court: no trespass found; that portion of the judgment was affirmed. |
| Conversion — did Ogle wrongfully exercise dominion over Brand’s tree? | Brand: He owned the tree (rooted on his land), did not abandon it, and Ogle lacked permission to take it. | Ogle: Claimed removal as a favor to neighbors and questioned property lines/ownership without a survey. | Appellate court: Brand proved ownership at time of conversion and Ogle’s wrongful disposal; reversal on conversion claim and remand. |
| Applicability of premises-liability law to conversion claim | Brand: Premises-liability (duty to neighbors) is irrelevant to ownership/conversion. | Trial court: Relied on premises-liability precedent to justify dismissal. | Appellate court: Trial court misapplied premises-liability law; lack of owner notice to neighbors does not transfer ownership of severed wood. |
| Damages — appropriate measure and evidence | Brand: Submitted appraisal and damage/restoration estimates (including asserted treble under R.C. 901.51). | Ogle: Pointed to $600 he received from sale and suggested removal expenses might offset recovery. | Court: Value at time of conversion governs; Ogle’s admission of a $600 sale supports damages; trial court should address any credit for removal expenses on remand. |
Key Cases Cited
- Allan Nott Ents., Inc. v. Nicholas Starr Auto, L.L.C., 110 Ohio St.3d 112 (Ohio 2006) (defines conversion as wrongful exercise of dominion over property).
- Joyce v. General Motors Corp., 49 Ohio St.3d 93 (Ohio 1990) (court’s formulation of conversion elements).
- Hirth v. Graham, 50 Ohio St. 57 (Ohio 1893) (growing timber is part of the realty; becomes personalty once severed).
- Davis v. Suggs, 10 Ohio App.3d 50 (Ohio Ct. App. 1983) (abandonment requires intent plus acts or omissions showing intent).
- Rababy v. Metter, 30 N.E.3d 1018 (Ohio Ct. App. 2015) (discusses common-law privilege for a landowner to remove encroaching branches from adjoining property).