*1 264
ADELLA HARTLE and HARTLE,
WILBUR
Appellants,
Plaintiffs
LOGGING,
NELSON,
DEAN
d/b/a/ N&N
Respondent.
Defendant and
No. 99-372.
February 10,
2000.
Submitted
Briefs
Decided December
2000.
MT 356.
St.Rep. 1494.
264.
For B. Spencer, Scott Williams, For Mark & Respondent: Ranney, S. Williams Missoula. Opinion NELSON delivered the of the Court.
JUSTICE (the Hartles) brought 1 Adella and Hartle this action in Wilbur the ¶ District, District Court for the Nineteenth Judicial Lincoln County, to (Nel- for damages employee recover caused when an of Dean Nelson son) Logging, inadvertently d/b/a N & N cut timber on the Hartles’ property without the Hartles’ permission. jury The returned a ver- $4,500 dict for the in the sum of and the District Court en- judgment tered appeal judgment in their favor. The Hartles from this arguing improperly that the court instructed as jury damages. the We affirm. following Hartles raise the issues on appeal:
¶2 1. incorrectly jury Whether the instructed the as to the measure injury property. for to real 2. jury Whether the District Court should have instructed the the damages for the trebled. taking of timber could be Background Factual and Procedural undeveloped property Hartles own acres of in the Ridgeview County. in Lincoln his logging Estates Nelson and crew log adjacent property. were hired to 50 acres to the the Hartles’ While logging adjacent property, operator this Nelson’s feller-buncher acci- dentally crossed the to cut tim- property proceeded onto Hartles’ and stopped logging ber on two-acre ofthat Nelson the portion soon the operation property on the Hartles’ as as he discovered mis- immediately home, He went Hartles’ informed them of take. mistake, accepted the and full responsibility. 4,1998, against On filed a complaint March the Hartles Nelson damage to Nelson admit- property
for to real and the timber. damages. liability trespass accepted liability the and It ted for thus, trial, accidental, agreed the was was before determining on logging District Court entered Order Nelson’s And, trial, Hartles’ was at the court in- property unintentional. Plaintiffs’ property on logging structed that “Defendant’s accidental, the case to a parties was not intentional.” The tried 6,1999. admitted lia- six-person jury April Because Nelson bility, only damages. was issue forester, (Yavah), only a retired was the witness Gene Yavah Yavah de- regarding inspecting called After property, species trees had been cut. He deter- termined that 136 of various $2,380 price mined that the mill ofthese trees and that cost to was $1,000. up logging clean debris $700 slash was between damage to this cost did not include amount for the remaining surrounding vegetation trees or to the that could be caused erosion. (Wilbur) boundary line Wilbur Hartle testified that around $3,250 paid He he property
his was well marked. also testified that acre for the and that the value for entire 18-acre per par- $2,000 only acre. logged per cel after two acres were Wilbur *3 a that and the presented videotape jury logged showed area not only had on the testified that impact logging property. Wilbur gone, the scenic of the that he was concerned property was value but area logged. about erosion in the opinion rebut as present any Nelson did not witnesses to Wilbur’s after it
to the difference in the value of the before and was property admitted argues appeal Nelson that Wilbur that logged. a never appraiser, he had no as real estate he had tried expertise and he had lost deal as a result of property to resell not Furthermore, had trespass. that the land been Wilbur testified previous Yavah that there logged regularly by the owner and testified this piles property a road on the inci- logging prior were slash dent. instructions, proposed the Hartles an During settling jury of for compensation defined the measure of
instruction that The The this instruction. property. real refused of for trebling Hartles also an instruction for proposed instruction also refused. the loss of but this was in the sum in the Hartles of jury 11 The returned a favor of verdict ¶ 15,1999, judgment entered $4,500 and on the District Court April 267 appeal judgment arguing their favor. The Hartles from that that the improperly court instructed the as to
Standard of Review a district give proffered jury We review court’s refusal to in City structions for an abuse of discretion. Barnes v. Thompson Falls, 11, 8, 76, 8, 1275, MT (citing 1999 294 Mont. 979 P.2d ¶ ¶ ¶ (1997), 481, 487, Harwood v. Elec. Co-op, Glacier Inc. 285 Mont. 651, 655). P2d “Atrial court is imbued with discretion to deter broad mine whether or not it proposed jury, will instruction to the this Court will not overturn a alleged district court on the basis of in (cit Barnes, structional errors absent abuse ofthat discretion.” 8¶ Entech, ing (1996), Savik v. Inc. 278 Mont.
1095). reviewing 13 In particular jury ¶ whether a properly instruction was refused, given or reviewing court must consider the instruction in entirety, its as well as in connection with the other given instructions and with the evidence introduced at trial. Imperial Moore v. Hotels (cit Corp., 248, 21, 291 164, 21, 967 1998 MT Mont. ¶ P.2d ¶ ¶ ing Fillinger 71, 76, 938 Northwestern P.2d 1350-51). party assigning error to the instructions must show prejudice Moore, prevail. order to Prejudice 21. will not be ¶ found if the entirety instructions in their applicable state the law of Moore, case. 21. ¶
Issue 1. incorrectly Whether the District Court instructed the as to the measure injury to for argued at trial that the measure of wrongfully cutting timber on another’s is the value of the plus timber the difference between the value of the land before the timber was cut and the value of the land after the timber cut. To end, the Hartles proposed following instructions:
You money must determine the amount reasonably which will fairly compensate the Plaintiffs losses sustained. The measure of claim compensation under each should an amount *4 compensate which will Plaintiffs for all the loss caused regardless Defendant’s act of whether it could have been antici- pated. of there are two involving the removal
In a case to the land and damage: damage elements of separate the removal of the timber. damage for No. 2. Proposed Hartles’ Instruction past a invasion resulting to land from damages for harm compen- of value include amounting to a total destruction and not sation for:
(a) the land before the value of the difference between harm, his election in an or at harm and the value after may that has been or case, of restoration appropriate the cost incurred; reasonably (b) land; use of the the loss of
(c) occupant. annoyance to the owners discomfort and No. 4. Proposed Instruction The Hartles’ 2,No. Instruction gave Proposed the Hartles’ The District Court refusing 4. In Instruction No. give Proposed their but refused instruction, judge stated: the trial give this latter there is evidence Well, it I don’t think refusing I’m because (b). (c), I’m not sure that’s even I don’t think the evidence do to law, you all could just it was about of the but good statement mean, think that I I don’t say he ticked off. get Mr. Hartle to (a) I think something compensable that’s level of rises to the No.] 2 where we talk Instruction sufficiently [Proposed covered in removal of the to the further the land and damage to both about timber.... Instruc- Proposed that their argue appeal The Hartles now theory the case as to their 2 alone did not cover
tion No. of dam- correct measure on the it instruct properly nor did cutting the trees or ages failed to District Court because the
Hence, argue told to cor- was not how No. Proposed Instruction Hartles suffered. damages that the rectly determine the District Court was hand, that the Nelson, argues on the it No. because Proposed Instruction refusing the Hartles’ correct evidence, ade- and was law, by the by the nor supported was not ar- Nelson specifically, More instructions. by other quately covered (a) 4 was of the Hartles’ subpart gues In ad- No.2. Proposed Instruction in the Hartles’ already provided for (c) (b) Pro- of the Hartles’ dition, subparts argues Nelson
269 posed by 4 supported Instruction No. are not the evidence and are not accurate statements of law. refusing give A district court is not to held in error for be subj adequately by instruction when the ect has been covered applicable pleadings
instructions or when it is not to the and the evi County (1985), 1, 7, dence. Doble v.Lincoln Title Co. 215 Mont. 692 1267, 1271 (1963), 498, P.2d (citing Wollan v.Lord 142 Mont. 504, 385 P.2d106). 102, Furthermore, adequately where other instructions issue, cover the relating particular law to a it is not error to refuse a proposed instruction subject. Valley on the same Properties v. (1992), 242, 249, Steadman’s Hardware 251 Mont. 1296).
(citing Noll v.City
(1977),
447, 564 P.2d
Bozeman
172Mont.
on Eby
Relying
City
(1918),
113, 173
55 Mont.
P.
of Lewistown
(wherein plaintiff brought
damages
an action to recover
for in
jury caused to his
grade
lots when the
on the
surrounding
streets
his
lots was changed),
argue
the Hartles
that the measure of damages for
injury to real property is the difference between the value ofthe prop
erty
injury
before the
and the value of the
after
property
injury,
if
property
cannot
reasonably
restored
pre-injury
to its
condi
(a)
Hence,
tion.
the Hartles argue that
subpart
Proposed
In
struction No. 4 should
given
have been
jury.
disagree.
We
The Hartles’ Proposed
Instruction
2No.
states that in a tres
pass case involving
timber,
the removal of
besides the
al
lowed for the removal of
are allowed for the land
Furthermore,
itself.
fully
Hartles’ counsel
explained
closing argument
his
Hence,
how to calculate
those
the Dis
trict Court was not in error for refusing
Proposed
Hartles’
4(a)
subject
already
because this
covered in the
Hartles’ Proposed
Instruction No. and that instruction adequately
Doble,
covered the
7, 692
law on this issue.
1271;
215 Mont. at
P.2d at
ValleyProperties,
No. 4 compensation for loss of use of the land and discom annoyance fort and to the owners or occupants, the Hartles based this Moore, prior instruction on our decision in Ralph French v. E. Inc. 327, 333, 661 P.2d plaintiffs’ wherein the nearby family restaurant and by home were contaminated fumes from gasoline French, the defendant’s tanks. In we held that for mental anguish are in a negligence recoverable action where the enjoy the use and has interfered with
claim is that the defendant 335, 661 French, P.2d at 848. 203 Mont. at plaintiffs ment of land. French, the Hartles were not plaintiffs unlike the and, unlike purposes or residential for business using property Hartles, significant evidence plaintiffs presented in French and an- extreme discomfort and of their of loss of use of plead did not The Hartles noyance caused the contamination. annoyance, land or for discomfort damages for loss of use lost they had at trial to show they present did evidence nor an- any discomfort or they had sustained the use of the land or noyance. regarding damages, other only presented at trial evidence *6 the trees and the cost testimony price as to the mill of
than Yavah’s debris, regarding opinion was Wilbur’s up logging clean the slash and might pay he speculated that property. current of the He the value logging. due to per less acre for the $1000 appraiser, as a real estate expertise that he had no Wilbur admitted any lost deal and he had not property, tried to resell the he had never since there was no evidence Consequently, trespass. as a result ofthe Hartles, discomfort to the of of use of the land or loss appropriate. 4 was not law, damages of Furthermore, the measure under Montana Court de trespass, as the District involuntary timber for a casual or detriment.” here, equal to the actual the case is “a sum termined was (1977), 171 70-16-108, v.Brand S Lumber Co. MCA. In Rickl Section com defendant lumber 528, 530, 559P.2d wherein Mont. land and inadvertently plaintiff’s entered had admitted that it pany the tim recovery only the value of timber, for cut this Court allowed damage property. to the ber taken and not for Rickl, the in prior holding our judice, despite In case sub the loss of damages for both the Hartles to seek District Court allowed jury end the awarded the land. To that and the to the timber $2,380 of for the value $4,500, consisting of presumably $2,120 damage to the Yavah, for the as testified to land. entirety in its reviewing the refused instruction Accordingly, are con given, as we instructions with the other
and in connection at Moore, 21; Mont. at do, Fillinger, 283 ¶ strained to its discretion did not abuse 1350-51, the District Court we hold that correctly and that court instructed the as to the measure of injury for
Issue 2. Court have instructed the ¶28 Whether District should taking timber could be trebled. for of are value govern There two Montana statutes whether the these, of in trespass timber taken should be trebled. The first of § MCA, 70-16-107, provides: (1) taking Any or
Trespass person timber. who cuts down any underwood, tree, girdles carries off wood or or or or oth- timber injures any erwise or or person tree timber on land of another house, highway any person’s village on the street or in front or of city lot, grounds or cultivated or public grounds or on commons city thereof, any highway of or town on the or or street front authority, without lawful is of or liable owner such land amount city may such town of for treble the which assessed therefor in having jurisdiction. a civil action in court (2) (1) Nothing in recovery subsection authorizes the more than just value taken timber from uncultivated wood- land repair public highway upon of a or bridge the land or adjoining it. 70-16-107, This interpreted (formerly MCA Code § § Proc.),
Civ. McDonald Montana Wood Co. 94-95, 35 668, 670. McDonald, showing P. In this Court held that a wilfulness, wantonness, required or malice obtain dam treble ages though under the statute even the statute no makes reference wilful, wanton, or malicious acts. *7 McDonald, year In one after this in the Court’s decision Legislature 70-16-108,
Montana enacted now This what is MCA. § statute provides: Injury exceptions to as to For treble timber — injuries timber, trees,
wrongful upon to or land of underwood the thereof, another or removal the measure of is three times compensate detriment, such as the except a sum would actual involuntary or un- trespass where the was casual and committed der the that land or belonged trespasser belief where pur- by authority highway wood was taken officers for the poses highway, damages of a in which cases are a sum equal the actual detriment. wilful, 70-16-108, MCA, require proof
Section does not wanton Instead, Cemetery we held in Mountain View malicious acts. it is a Granger damages should be trebled under this question of fact as whether statute. predicated Proposed their Instruction No. 3 on The Hartles §
70-16-108, Court refused this instruc- MCA. tion, following: noting the Well, fact, upon an agreed probably
THE it’s based COURT: trespass, this an accidental earlier Order from the Court that damages possi- a being case I don’t think are treble bility. refusing District Court erred in The Hartles contend because, while under damages
their treble § instruction on (and McDonald), 70-16-107, in interpretation MCA its be wilful, wanton, they or mali- damages prove must awarded treble MCA, conduct, 70-16-108, trespass fact that the cious under § They that the should controlling. was accidental is not contend not the all the facts and determine whether or be allowed to consider control, i.e., trespass whether the exceptions stated in the statute involuntary. was casual and 70-16-107, First, MCA, does as to because that statute not § tre- state, stated, has it that in order for be
now nor ever malicious, bled, wilful, we overrule the conduct had to be wanton or This, however, leaves cases that so hold. §§ McDonald and 108, MCA, only of a conflict that can 70-16-107 and somewhat overruling of our straightened legislature. out As to the effect appeal, us there is none. The Hartles McDonald on the case before 70-16-107, 3 not on but on § § based 70-16-108. 70-16-108, trespass “where the was ca- provides that Section to the actual det- involuntary... equal are sum
sual allowed to that the should be riment.” The Hartles’ contention exceptions or not the and determine whether consider all facts pending there is a is- only statute control is true where stated case, dispute. not in The District In this the facts are sue fact. was unintentional. a matter of law that the Court ruled as 70-16-108,MCA, not recoverable. Hence, treble are under § entirety in its Accordingly,reviewing the refused instruction hold that the given, other instructions we in connection with the *8 correctly did not its and that the court abuse discretion of damages. instructed as to measure Affirmed. HUNT, REGNIÉR and LEAPHART concur. JUSTICES TRIEWEILER, concurring dissenting. JUSTICE and majority’s I prop- concur with the conclusion that the was erly instructed on compensatory I majority’s dissent from the conclusion that Plaintiffs not were damages pursuant
entitled to instructions on treble to 70-16-107 §§ and MCA. 70-16-108, majority opinion language relies on found at §
MCA, provides trespass which that “where the casual invol- was untary ... the are a sum equal actual detriment.” The majority then that trespass concludes because Defendant’s unintentional, words, treble are not In recoverable. majority opinion by repeats the mistake made the District Court equates “involuntary” conduct “unintentional” conduct. However, they are not the same. involuntary An act is defined as follows: resulting choice; subject
“Not from free and unrestrained not (7th 1999). control the will.” Black’s Dictionary Law ed. hand, On the other an act act resulting “[a]n “unintentional” not from actually the actor’s will what place.” toward takes Black’s Law (7th 1999). Dictionary 25 ed. fact that the Defendant had no intent simply
Plaintiffs’ land and harvest his trees means that was not his at purpose the time he did so. It not not does mean he did act voluntarily acting that he was under duress. circumstances,
¶43 Under I would conclude that the District proposed Court erred when it declined Plaintiffs’ instruc- tion I No. 3. would remand to the District Court for further proceed-
ings retry judgment either the issue treble or enter supports amount the event uncontroverted evidence such I award. dissent from the District Court’s refusal to do so.