490 N.E.2d 615 | Ohio Ct. App. | 1984
What is the measure of damages when a trespasser cuts and removes trees from residential and recreational land, in the process destroying other trees and damaging the land with heavy equipment? The trial court excluded evidence of the costs of cleanup and restoration and restricted plaintiffs-appellants (hereinafter "plaintiffs") to proof of the timber or "stumpage" value of the cut and destroyed trees. We agree with plaintiffs that this was error.
The woods extended also onto Murphy's land, which adjoined the Apking lot. Murphy sold the timbering rights to its land to defendant-appellee Gordon Lamb for $3,000, and Lamb in turn agreed to sell and deliver cut logs to a third party for $7,000. The timbering operation was never completed, however, because when Lamb's employees began to cut trees on the Apking lot and the three residential lots, the noise was heard and the Evendale police were called to stop the timbering. The owners later sued Murphy and Lamb for compensatory and punitive damages.
In the course of the jury trial, plaintiffs called David Johnson as an expert in the business of "landscape contracting" (landscape design and landscape planning, or a combination of landscape architecture and ornamental horticulture). Johnson testified that he had spent between one hundred fifty and one hundred sixty hours on the four lots evaluating the damage; he identified the cut trees and the trees destroyed by the timbering operation (whether by falling trees or heavy equipment), observed the condition of all four parcels, and determined how much damage was done to each of them. In all, sixty-eight trees were cut down and three hundred and thirty-one trees were destroyed, or an aggregate of three hundred and ninety-nine trees. Johnson's testimony about the dollar amount of the damage was never completed. His opinion was based in part on a formula developed by the International Society of Arborculture, designed to determine the value of each cut or destroyed tree.1 To that formula-derived figure Johnson would have added the cost of cleaning up the slash and other debris, the cost of repairing the damaged but not destroyed trees, and the cost of protecting the land disturbed by heavy equipment from erosion by regarding and foresting. Defendants' objections to Johnson's opinion about value of damage were sustained. The court ruled that plaintiffs could not use Johnson's "figures" and could not "get in the restoration cost." When plaintiffs failed to qualify Johnson as an expert timberman, the parties stipulated the "timber value" (by which we believe they meant "stumpage") of the cut and destroyed trees was $7,412.83. *138
Plaintiffs offered no evidence about the diminution in the value of the four parcels from before to after the timbering operation.
After plaintiffs' last witness and the stipulation about "timber" value, plaintiffs brought R.C.
Plaintiffs duly moved for a new trial, as required underMcHale v. Jenkins (June 29, 1983), Hamilton App. No. C-820705, unreported, in order to call the trial court's attention to the errors claimed by plaintiffs even though they had a favorable verdict. When that motion was overruled, plaintiffs appealed and now assign three errors, two of which have merit. The first claims error in rejecting evidence about "reasonable restoration costs" and in limiting plaintiffs to "the timber value of the trees severed from the land." We sustain it, and we sustain the third assignment of error insofar as it claims error in overruling their motion for a new trial for the same reason. The gist of the second assignment of error is that plaintiffs were entitled to treble damages under R.C.
We find persuasive the rule laid down in 4 Restatement of the Law 2d, Torts (1979), Section 929.3 As applicable *139 to this case, this rule is that damages include compensation either for the diminution in value of the land as a whole, or at the owner's option, "the cost of restoration that * * * may be reasonably incurred."4 The parcels in question, being used for purposes personal to the owners, the damages should include amounts for repairs and restoration even though the market values of the parcels have not been decreased by the trespass and even though the award of damages may be greater than that value. Id. at Comment b.5
The cardinal rule of the law of damages is that the injured party shall be fully compensated. Brady v. Stafford (1926),
"* * * The owner of property has a right to hold it for his own use as well as to hold it for sale, and if he has elected the former he should be compensated for an injury wrongfully done him in that respect, although that injury might be unappreciable to one holding the same premises for purposes of sale. * * *"Gilman v. Brown (1902),
Thus, when the cut trees have been used for a specific purpose, such as a sound barrier and a screen from highway traffic, replacement cost is a proper measure of damage. Rector, Wardens Vestry of St. Christopher's Episcopal Church v. C.S. McCrossan,Inc. (1975),
All cases, it is to be noted, stress the overall limitation of reasonableness, a concept well established in American jurisprudence.
Timber cut or to be cut for commercial purposes may be valued in several ways: "stumpage" is the value of the undisturbed timber standing or lying on the land6; add to that the cost of felling and hauling, to find the value of the logs; add to that, again, all costs of manufacture, to obtain the value of the finished product. Those values, however, are important only to the owner who holds his land in order to exploit its timber. Stumpage is generally a much smaller amount than the cost of replacement or restoration. To limit an owner to stumpage, as the trial court did in the instant case, would be to enforce a timber harvest on the owner without consideration of his/her intended use and his/her real loss.
The trial court erred when it excluded plaintiffs' evidence about the cost of reasonable restoration, including cleanup, repair and regrading, and limited plaintiffs to stumpage value. Plaintiffs are entitled to a new trial. We do not intend by this decision to rule on the reasonableness of the formula of the International Society of Arborculture for the valuation of trees. Johnson's testimony was cut off in in medias res, and the issues of pertinency and reasonableness were not raised in the trial or in this appeal.
R.C.
Plaintiffs' amended complaint and their "amended demand" (in which they made definite and certain the dollar amounts they demanded for both compensatory and punitive damages) made no specific mention of their rights to treble damages under R.C.
Judgment reversed and cause remanded.
KEEFE, P.J., and DOAN, J., concur.
R.C.
"No 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 or upon public land.
"In addition to the penalty provided in section
R.C.
"Whoever violates section
"§ 929. Harm to Land from Past Invasions
"(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for
"(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred,
"(b) the loss of use of the land, and
"(c) discomfort and annoyance to him as an occupant.
"(2) If a thing attached to the land but severable from it is damaged, he may at his election recover the loss in value to the thing instead of the damage to the land as a whole."
"b. Restoration. Even in the absence of value arising from personal use, the reasonable cost of replacing the land in its original position is ordinarily allowable as the measure of recovery. Thus if a ditch is wrongfully dug upon the land of another, the other normally is entitled to damages measured by the expense of filling the ditch, if he wishes it filled. If, however, the cost of replacing the land in its original condition is disproportionate to the diminution in the value of the land caused by the trespass, unless there is a reason personal to the owner for restoring the original condition, damages are measured only by the difference between the value of the land before and after the harm. This would be true, for example, if in trying the effect of explosives, a person were to create large pits upon the comparatively worthless land of another.
"On the other hand, if a building such as a homestead is used fora purpose personal to the owner, the damages ordinarily includean amount for repairs, even though this might be greater than theentire value of the building. So, when a garden has beenmaintained in a city in connection with a dwelling house, theowner is entitled to recover the expense of putting the garden inits original condition even though the market value of thepremises has not been decreased by the defendant's invasion." (Emphasis added.)
"The sum agreed to be paid to an owner of land for trees standing (or lying) upon his land, the purchaser being permitted to enter upon the land and to cut down and remove the trees; in other words, it is the price paid for a license to cut."