*1 er); pictures of ignored trial exhibits of he thor- court testified Dr. guage. Sivesind removed; (1) cry to be trial court children’s opinions of the oughly reviewed ignored danger ignored reports; trial court (b) of the children opinions parties and children; ignored trial court to mother of mother’s merit/non-merit testimony no parties’ that there was com- all an obstruction to impairment as hearing а children; problem; ignored trial court munication he ability parent her change in circum- material and substantial problem. To was no such there testified stances, parties; evidence of both testified opinion, mother buttress inter- lastly, ignored trial court the best hearing her she did not believe that Wollman, Roger children. Justice ability parent ests of the her impairment affectеd Masek, in Masek v. testi- his dissent children. She bound (S.D.1976), Bank, against the im- warned mony. v. Norwest Werner and ma- proper application of the substantial ratio Notice the a change in circumstances rule before provid- “... terial trial court of the decidendi modify custody order. His could a develop a court ing children continue requirement was that such admonition mother learn- relationship with their expediency, rath- judicially created rule appears ...” It that ing sign language further, he statutory requirement; er than a this evidence con- ignored court the trial not be that such a rule “should concluded Further- cerning deafness. mother’s a mechanistic barrier allowed to create more, evidence established [statutory] performance of that frustrаte the totally deaf until not become mother did duty.” In sum- grown full adult. was a she (1) communicate mary, mother could had a Justice Earl Warren The late Chief was abso- children and there
with the it argument, oral “Is piercing inquiry at if the lutely no evidence establish fair?” (assuming a sign language boys learned No, children. fair to these wasn’t chil- problem), that communication improve. behavior would dren’s
(cid:127) expert. She Dr. was mother’s Sivesind opined that he was ex- him. He
hired
tremely physical safe- concerned children, if the and the
ty of the mother custody of the in the
children remained by her be bound mother. She should WALLAHAN, Appellee, Frank testimony. Dr. Arbes tes- expert’s own “dangerous” to the situation was tified and the children. mother CO- ELECTRIC BLACK HILLS (cid:127) ultimate conclusion Dr. Sivesind’s INC., OP, Appellant. positive had a more the children to the father than аttachment No. 18526. emotional father opined that the the mother. He Dakota. Supreme Court autonomy and able to foster was better and, in his the children independence for May Briefs on Considered healthy, happier, custody, would be 26, 1994. Decided Oct. that this productive. wonder Is appealed! father
CONCLUSION opinions experts; ignored the
Trial court chil- repudiated the desires of the court peti-
drеn; ignored the CHINS trial court (children parent/moth- of control of
tions out *2 January had trees on five property near their 7200 volt trimmed. Three of
power topped line subject those trees are the of this action. off, topped losing approxi- spruce 35 foot *3 mately foliage and the 8 feet of branches ponderosa pines facing power the line on two trimmеd back to the trunk. were against brought his action Wallahan liability trespass theories of BHEC on However, under either excessive theories, complaint gist of the of his these trimming. excessive appeal four deal- On BHEC raises issues They ing instructions. with the trial court’s are:
(1) trial court’s instructions con- Did the cerning compensatory damages for in- , jury improperly expand the to trees dаmages? of measure (2) con- Did the trial court’s instructions cerning improperly required to mandate that the damages? award treble (3) con- the trial court’s instructions Were Wallahan, Banks & giv- D. Kerr of cerning trespass proper Samuel law of the Eicher, Rapid City, appellee. for entry prop- onto the en BHEC’s lawful erty pursuant legislative enactment? Jackson, Oberg Lynn, Shultz J. Steven instruсtions con- Were the trial court’s LeBrun, Rapid City, appellant. for & conveying a cerning the formalities of easement correct? valid ERICKSON, Judge. Circuit (BHEC) Co-op, Inc. Black Hills Electric ANALYSIS awarding Franklin J. appeals verdict of Review Standard (Wallahan) compensatory and tre- Wallahan only trim- those present and excessive is to ble “A trial court by compe ming supported on his We reverse trees instructions which are v. for a new trial. record.” Schelske and remand tent evidence the Poultry Coop, 465 N.W.2d Dakota (S.D.1991). determining whether FACTS proper, this Court examines instructions electri- BHEC has maintained Since fa giving the most the record the evidence poles across the now cal lines and reasonably bear it will vorable construction believed it hеld owned Wallahan. evi there is “some whether to determine to enter and maintain those a valid easement v. Eth bearing on the issue.” Gerlach dence lines, by prior owners. That ease- executed Ass’n, Coop Lumber never filed and contained several ment was (S.D.1991). evidence bear If there is some errors, concerning descrip- particularly issue, court’s instructions ing the trial Nоnetheless, of the land. Wallahan tion disturbed. will not be at time of the lines knew of the existence party Additionally, complaining purchase and contracted with BHEC objected instruc- must have electricity home. furnish to his summer preserve appeal, resulting deprivation tion in the issue on etic loss or order improper or the instruction becomes the law and convenience which the comfort Hart, provided plaintiff. the case. Shaull Therefore, find that defendant un- necessarily unreasonably cut and compen- court’s instructions on plaintiff’s you may trimmed award satory damages were correct. plaintiff damages deprivation convenience, enjoyment improperly comfort wrong- the land which the trees were sought compensation entire value of from fully defendant, though cut healthy, when the trees remained n plaintiff property market value might from severed and there *4 diminished, added). (emphasis not be was no measurable effect on market value. argues merely sought that he dam- argues proper BHEC that the mea ages for of loss the trees themselves as shade effect, damages any, sure of if аnd trees. ornamental realty upon Bailey which the trees stand. computing damages, Wallahan utilized a Co., Chicago By. M. & St. P. 3 S.D. developed by method the International Soci- However, Bailey, N.W. su ety approved by for Arboriculture and pra, distinguished from the instant case Landscape Council of Tree Appraisers. in Bailey, shrubbery the trees and Department Agriculture through The U.S. of completely destroyed. Supreme The Court Cooperative its Extension Service makes this held: publication expert available. Wallahan’s tes- damages depends upon [The] rule of accepted tified this is one of several purpose and character of the action. A assessing injury damage methods of and thus party injured may ... recover the value of to trees. trees, part realty, not as a but of their sepa- intrinsic value as detached and The Trial Court instructed as follows: therefrom, proved rated in the usual Jury Instruction No. 25 value, added). proving mode (emphasis of damages applied by
The measure of to be expert Wallahan and his introduced case, plaintiff in this where has computed evidence based on a method or brought suit to recover the loss value of accepted by landscape formula now apprais damages resulting the trees themselves for ers government and utilized the federal as cutting from trimming defendant’s and/or accepted proving of mode the value of trees, of said is the diminution in the value injury Bailey, supra, to trees. decided over including, of the treеs themselves but lim- years ago, recognized that the method of to, replacement ited the cost those of of proving might change society pro value trees, damaged the loss shade or orna- of gressed. jury provided The ac several trees, mental value the loss cepted measures It was free to aesthetic value those rather than a decide uрon this issue based ac whatever property, diminution in the value of the cepted proving mode of value it choose to (emphasis
find more credible. We believe the instruc properly tions of the court Jury reflected these Instruction No. 26 varied, accepted proving but modes of value. Plaintiff is not recovering restricted to only the loss of the market value оf his question damages 2. The of treble is a property from which trees have been dam- question. injured. aged Damages the destruc- injury plaintiffs tion to be that Instruction 281 resulting measured aesth- wherein the trial court stated the timber, trees, Jury wrongful injury No. 28: Instruction For or under- another, upon wood thereof, the land of or removal provides: A statute in South Dakota damages the measure of thrеe times improperly specific exceptions Three were creat- de- ended. treble “must” award legislature. this factual jury the to decide nied the issue. best, At onto BHEC’s enter was limited what was reason- 21- wrong protected against SDCL The necessary maintain able and its transmis- entry onto the the unlawful 3-10 is not liability, any, sion lines. Its is for abuse of injury trees. The meat to the but rather the opеrate upon privilege its 21-3-10 argument is whether SDCL of this property, concept or the ab initio. acts of for mere assesses treble (Second) § 214. See Restatement of Torts allows treble negligence. 21-3-10 encompasses “trespass” While the term wrongful injury to unless damages for commonly circumstance as well as all other involuntary, or “trespass was casual term, used definitions of the that issue is not the land under the belief committed particularly relevant to this action since the or where the belonged trespasser, damages provision relates not to the highway. was taken” for a wood illegal entry, injury to but rather the trees. court, agreed that Before the emphasis mistakenly placed has been not fall within the definition its acts did upon conсept trespass, when the true involuntary” trespass, since it “casual “wrongful injury” focus of the statute is the *5 purpose of the land for the intended to enter to the trees. fit the trimming trees. Nor did its actions “multiple damage” 21-3-10 is a SDCL in 21- exceptions set forth SDCL other two Cattle, K E Land and Inc. v. statute. & Rather, argues BHEC that acts of 3-10. 529, Mayer, Its 330 N.W.2d 532 faith, belief should also good or reasonable damage provision, in the treble absence damages. imposition of treble exclude the exceptions, keyed the one of three when injury jury “wrong- that the Throughout, position was that its determines BHEC’s fully” right, a claim of i.e. inflicted. conduct was done under legislative enactment. an easement and/or “wrongfully” of art. The term is not term such, trespasser in was not a the As BHEC Wrongful p. allegation “The 101 C.J.S. exсep- ordinary “good faith” sense. BHEC’s wrongfully really a that an act is done is theory premised on the should tion is Pleading of law.” 71 C.J.S. conclusion argue jury to a the treble be able to infring- legal right § [a] 32b. ‘Whenever damages 21-3-10 does provision of SDCL occurs, “wrong’ ... a and harm results trespass apply situa- to non-traditional of omission or commission.” whether it be tions. Skovgaard Tungus, 252 F.2d v. M/V (3rd Cir.1957). “inju- Generally, it means specifically does not create Our statute heedless, reckless, rious, unjust, unfair.” imposition “good exception to the faith” P.2d Marrujo, 86 N.M. Buhler v. damages wrongful injury to treble (C.A.1974). 1015, 1019 except in the three instances delineated. Thus, jury to find that in BHEC, Moyle if the relying primarily Regan on lines, (S.D. Co., exercising to maintain its its easement Petroleum legal infringed upon 1984), argues that South Dakota Su- BHEC the harm of the treеs and a “good rights as an owner preme has created a faith” ex- Court resulted, damages are “three times such wording in the ception in absence of such compensate for the actual would the situa- a sum as punitive damages statutes. Unlike So, in- in this 21-3-10. supra, open is not detriment.” SDCL Regan, tion in this statute injury the trees was compensate actual conclude that a sum as wоuld such detriment, trespass except regarding casu- wrongful where the this statute under involuntary, al and or committed plaintiff damages you three times must award belonged trespasser, belief that the land compensate plaintiff for the amount that would authority the wood was taken or where of (em- damages to the the actual amount purpose high- highway of a officers for thе phasis way; a sum in which case the equal to the actual stance, ment, legislature by legislative has mandated treble then enactment of SDCL simple negligence. property 47-21-79 to enter onto the to safe- guard adjacent its transmission lines and the Generally, whether one or more of landowners. exceptions apply question is a decide; however, jury to since BHEC con complaint BHEC’s real is that Walla- excep not fall within one of the ceded did authority han’s refusal to concede the lawful tions, is no error. there 47-21-79, to trim trees conferred SDCL it, recognize trial and the court’s failure to on 3. The instructions convoluted issues, resulting convoluted the in court the issues and misled and confused the misinstructing as to the law of tres pass. Specifically, that In pre-trial hearing Much of the and trial structions 15 and 193 led the argument consisted of evidence and over believe BHEC had no whatsoever whether BHEC had a valid easement to en- to enter the property onto to trim ter these trees. Throughout pre-trial proceedings, 47-21-79, As to the effect of instructions, and settlement of Wallahan ar- impression issue first South Dakota. existed, gued that no easement kind However, (Second) Torts, the Restatement and, that SDCL 47-21-792 is con- § pertinent part: states easement, strued as an it did not authorize duty authority imposed or or created BHEC to trim trees. legislative enactment with it carries Wallahan now concedes that SDCL 47-21- privilege possession enter land statutory 79 amounted to a easement autho- purpose performing another for the rizing to enter and do exercising duty in so far necessary trimming reasonable and of trees *6 entry reasonably necessary as the to posed potential which a fire hazard due to performance or exercise.... proximity their to the hot transmission wires. (Second) Torts, § 214 Restatement further But, argues, BHEC’s actions seri- states: ously trimming exceeded the amount of that reasonable, thus, necessary and and (1) An actor who has in an unreasonable trespasser subjecting BHEC became a it to any privilege manner exercised to en- conferred SDCL 21-3-10. subject liability any ter land is to for consistently argued legally protected that while it harm to a interest of land, possessed did not own the it owned or another caused such unreasonаble conferred, lawful if not ease- conduct. fore, 2. right SDCL 47-21-79 states: had no to cut added). trim Plaintiff’s and/or (emphasis may brought against No action or suit be a cooperative doing ... business this state Instruction No. 15: pursuant chapter, to this [Rural Electrical Co- You are instructed that Defendant Black Hills operatives] by reason of the maintenance of Cooperative right Electric had the electrical transmission or distribution lines on preceding [SDCL South Dakota statute 47-21- property expiration real after the of a 79] to maintain its electric transmission and period years of two of continuous maintenance distribution lines on Plaintiff's But of such lines. grant right such statute does not to trim (emphasis Instruction No. 13: Plaintiff’s Instruction No. 19: who, trespasser having is defined as one no grant If the of an easement has not been drawn property right possession title to or thereof formalities, required and executed with the entry makes thereon or therein without the instruction, previous jury you set forth in the person lawfully consent of the owner or the and, possession. you find that the entitled to instrument was invalid find the Defen- therefore, Co-op dant legal Black Hills Electric did not have a that had no defendant upon valid easement to enter upon Plaintiff Franklin plaintiff property entitlement to enter s thereon, purpose J. Wallahan’s of cut- (emphasis cut added). trim the trees and/or thereon, ting trimming must trespasser find that Defendant was a and there-
423 framework, in the it is properly enters land Under obvious One who so, 13, any privilege to do Instructions 15 and 19 contradict exercise such, proper workings they commits an act which is tor- of the law. As thereafter tious, subject liability only unduly former, emphasize act, rejected theory, and does not become now such tortious and confuse and mislead entry, Therefore, original jury. lawful liable on this issue the case is prior on the land for his lawful acts reversed and remanded. the tortious conduct. foregoing decision renders the fourth earlier, forth Wallahan now As set concerning issue the instructions on the va- on to that BHEC entered concedes lidity original of the easement moot. enactment, legislative pursuant Reversed and remanded. right to trim qualified had a or limited required to review the
the trees. We admission, light of this and that ad case MILLER, C.J., and WUEST and binding upon Wallahan. Reichert mission is AMUNDSON, JJ., concur. Reichert, 403, 258, 90 405 v. S.D. N.W.2d review this case to We must then J., SABERS, concurs result. Instructions 15 and determine whether coupled with Instruction was con when ERICKSON, Judge, Circuit fusing misleading HENDERSON, Justice, Retired who was of the action member Court at the time this courts have found that when Most was submitted. mislead, instructions conflict or confuse the jury, it constitutes reversible error. Schuller KONENKAMP, J., having been a Stores, Inc., Hy-Vеe Food N.W.2d member of the Court at the time this action (Iowa App.1987); Min. v. First Omaha submitted, participate. did not Bellevue, Bank 226 Neb. Nat. (1987); 111, 114 88 C.J.S. Trial result). SABERS, (concurring in Justice long § 339. Dakota it has been I concur in result on the basis that Walla- recognized improper for the trial han’s 47-21-79 is a unduly emphasize party’s posi one concession court to statutory permits Black easement which Kupеr, Albers v. tion or evidence. *7 (S.D.1994) (Sabers, Justice, Hills to enter his for reasonable spe N.W.2d 745 necessary trimming requires re- of his trees cially concurring); Hopp Thompson, (1949); versal and controls this case and the subse- 135-136 S.D. N.W.2d Mueller, quent jury Accordingly, Issue 3 instructions. Mueller v. 88 S.D. requires it rever- should be discussed first as of this case. Issue 1 on sal It is now uncontroverted that Instructions follow, Issue on treble should 15 and 18 do not stаte the law as there is no need to reach Issue surrounding applies to the circumstances instance, case. In this it cannot be deter- discussing change the order of we do theory which of liabil- mined from verdict issues, opinion our be as convolut- these ity trespass or unreasonable trim- —classic equally instructions and mis- ming adopted by In- While —was and confuse the readers. lead correctly jury that struction 13 told the property, legally BHEC was also
incorrectly stated that it did not authorize along
trimming. That with Instructions 15 incorrectly jury they
and 19 told the could trespasser
decide that BHEC was a classic done, any trimming, reasonably
excessive.