Shaffett v. VicksShaffett v. Vicks
The issue before this Court is the amount of damages a defendant must pay for trees cut and removed by the defendаnt, acting in good faith, from the land of the owner, without the latter‘s consent, where the boundary line between plaintiff‘s and defendant‘s land has not been fixed although there is a surveyed property line for the plaintiff‘s land.
The plaintiff owns the southerly tract of land, comprising 7.52 acres, which he acquired in an exchange with the partnership of Batson & Jones on Mаrch 29, 1977. The tract had been surveyed for this transaction by John D. Adams, Surveyor, on March 14, 1977. The north boundary line was about 1332 feet in length and was indicated by witness trees at each end, with iron piрes (tied with red ribbons) at various points along the straight line. The property to the north of the plaintiff‘s tract was acquired by the defendant by credit deed from the Blackwells in July of 1978. This prоperty has not been surveyed. The boundary between the two tracts has never been fixed, the two tracts apparently at one time having been owned by one owner, Ralph Jones.
After his acquisition, defendant Vicks arranged to have his timber cut by George and Josh Chappel, loggers of many years experience. The property line between the two tracts (the north line of the Shaffett tract) was pointed out to Vicks by Shaffett; and Vicks, in turn, pointed out the line to the loggers.
The timber was cut and removed in August and September оf 1978. It was on September 15, 1978, that Shaffett discovered that Vicks’ loggers had cut over the property line, cutting and felling about 75 trees over an area of 1½ acres. At that time, Shaffеtt and Vicks discussed permission to remove the timber if Vicks paid for it.
When Vicks failed to pay him, Shaffett brought this suit for damages for trespass, asserting that the willful and intentional
Defendant responded that he had acted in good faith and that his loggеr had only cut and removed timber within the property line which had been pointed out to defendant by plaintiff. It is not seriously disputed that the loggers logged on the plaintiff‘s land.
After trial on the merits, the District Court rendered judgment in favor of Thomas E. Shaffett against Lee Edward Vicks in the sum of $4,076.88, plus interest and costs, the measure of damages being the treble damages provided by
The parties are in accord that the controlling statute is
“Trees, cutting without consent; penalty:
“A. It shall be unlawful for any person to cut, fell, destroy or remove any trees, or to аuthorize or direct his agent or employee to cut, fell, destroy or remove any trees, growing or lying on the land of another, without the consent of the owner or legal possessor.
“B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed or removed.
“C. Whoever violates the provisions of Subsection A in good faith shall be liable to the ownеr or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed or removed, except however, that the provisions оf this section shall apply only to trees cut or removed across ownership lines, marked boundary lines, or outside of designated cutting area lines, and that no provision herеin shall apply to cutting operations within an area covered by a contract or agreement with the owner.
“D. The provisions of this section shall not apply to the clearing and maintenance of rights of way or to utility service situations where a utility is acting in good faith to minimize the damage or harm occasioned by an act of God; the provisions of this Act shall not apply to land surveying by or under the direction of a registered professional land surveyor, duly registered under the laws of the state of Louisiana.”
In the instant cаse, the record establishes that there are no visible ownership lines, marked boundary lines, or designated cutting area lines. The only indication of a line was the north line of the рlaintiff‘s tract of land, which was a survey line placed by John D. Adams, Surveyor, at the time of the plaintiff‘s acquisition from Batson & Jones in March of 1977. The boundary line between the plaintiff‘s tract and the defendant‘s has never been formally fixed. There are no natural boundaries between the property; neither are there fences or artificial boundaries dividing the properties.
We think it appropriate at this point to note the remark of the Court in Harvey v. Havard, 274 So.2d 917, 923 (La.App. 1 Cir. 1973), affirmed, 287 So.2d 780 (La.1973):
“It is difficult to argue with the proposition that in determining whether a trespass has been committed, the boundary must be located with certainty.”
Although the plaintiff pointed out to the defendant the property line and defendant in turn pointed it out to the loggers, the record reflects that some of the trees on about 1½ acres of plaintiff‘s land were mistakenly cut by the loggers. It is of interest to note that the plaintiff never went to observe the timber cutting despite his knowledge that the defendant had a logging crew in the area near the property line. The record shows that the defendant
We believe that
We find that subsection B of the statute is not applicable, because the record establishes that Vicks’ loggers did not willfully and intentionally cut and remove timber from Shaffett‘s land. We find that under subseсtion C defendant, being in good faith, would be liable for treble damages only if there was a visibly designated demarcation line dividing the two properties. The evidence in the recоrd establishes beyond any question that there was no such dividing line; i. e., an experienced timber man could go from Vicks’ tract to Shaffett‘s tract without a noticeable difference, unless he happened to see an iron stob. It appeared to be one stand of timber.
Consequently, we find that Vicks is not to be assessed for treble damages under
As to the сlaim of the plaintiff for damages for mental anguish and for depreciation of the property, since he neither appealed nor answered the appeаl we cannot consider those items.
For the foregoing reasons, we amend the judgment to reduce the award from $4,076.88 to the sum of $1,358.96, and render judgment in favor of plaintiff, Thomas E. Shaffett, and against the defendant, Lee Edward Vicks, in the amount of One Thousand Three Hundred Fifty-eight and 96/100 ($1,358.96), plus legal interest from the date of judicial demand until paid. In all other respects the judgment is affirmed. We assess the costs of this appeal equally between the appellant and appellee.
AMENDED AND AFFIRMED.