Bonk v. McPherson

• Court: Maine Supreme Court
• Writing for the Court: Before McKUSICK; CLIFFORD
• Citation: Bonk v. McPherson, 605 A.2d 74 (Me. 1992)
• Decision Date: 13 March 1992
• Parties: Mary Ann BONK, et al. v. Henry McPHERSON, et al.

Page 74

605 A.2d 74

Mary Ann BONK, et al. v. Henry McPHERSON, et al.

Supreme Judicial Court of Maine.

Argued Jan. 9, 1992.

Decided March 13, 1992.

Martin L. Wilk and Bernard J. Kubetz (orally), Eaton, Peabody, Bradford & Veague, P.A., Bangor, for plaintiffs.

Eugene C. Coughlin (orally), Vafiades, Brountas & Kominsky; Kevin Cuddy (orally), Cuddy & Lanham, Bangor; and Daniel Rush, Hodsdon & Rush, Kennebunk, for defendants.

Before McKUSICK, C.J., ^* and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, JJ.

CLIFFORD, Justice.

Defendants Henry McPherson, McPherson Timberlands, Inc. (Timberlands), and Earl S. Robinson, Inc. (Robinson) appeal from a judgment entered against them in the Superior Court (Somerset County, Chandler, J.) after a jury verdict finding them liable in treble damages for trespass and the cutting and removal of timber from the property of plaintiffs Mary Ann Bonk and Frederick Camarra. 14 M.R.S.A. § 7552 (Supp.1991). We agree with Robinson that the evidence is insufficient to support the verdict that Robinson acted willfully or knowingly, and we agree with McPherson and Timberlands that the evidence is insufficient to hold them liable in any manner. Accordingly, we vacate the judgment and remand to the Superior Court for entry of a judgment of single damages against Robinson.

McPherson is trustee of the Grace Pond Realty Trust, which owns land in Upper Enchanted Township. Its lands are managed by Timberlands, a corporation owned by McPherson, which also holds title to land in the Township. The Trust created a subdivision involving 920 acres, consisting of lots forty to seventy acres in size, three of which were sold to Plaintiffs in April of 1988. ¹

In the fall of 1987, Timberlands entered into a harvesting agreement with Earl S. Robinson, Inc., a corporation owned by Earl S. Robinson, whereby Robinson would cut timber on land owned by Timberlands and deliver it to a lumber mill. The cutting areas were to be designated by Timberlands. Robinson began cutting timber in the fall of 1987 and continued into the winter of 1988. McPherson or Ken Lamond, Timberland's operations forester would designate the areas to be cut, usually by referring to aerial photographs.

During the winter of 1988, before Plaintiffs purchased their lots, Lamond suggested to Earl Robinson that, for the purpose of moving equipment and people more easily to different cutting areas, Robinson could, at its own expense, and not as a part of the contract, clear a crossover road between the Two Mile Road and the Grace Pond Road. There was a discussion as to the location of the road to be cleared, but the extent and specificity of that discussion is disputed. ² Robinson decided to go ahead and clear the crossover road in July 1988. Earl Robinson told Lamond that the road was going to be cleared and Lamond reminded him that it would be at Robinson's expense. There was no further discussion as to the location of the road. Lamond was aware of the phase lines of the subdivision and the sale of certain lots to the Plaintiffs, but did not blaze them or flag them because, based on his understanding from earlier discussions, he did not believe that the Robinson crew would be cutting near those lots. Robinson was aware of the existence of the subdivision but was not aware of the sale of individual lots to Plaintiffs.

Lamond understood that the crossover road would be cleared from Grace Pond Road, through 300 to 400 feet of Timberland property, to connect with an old existing road leading to Two Mile Road, about a quarter mile from Plaintiffs' lots. Robinson's crew, however, bulldozed from the Grace Pond Road over a different "old" road, an old winter road, that connected with Two Mile Road. This old winter road traversed Plaintiffs' lots. Bulldozing in this direction, Robinson's crew cleared a swath about 2000 feet across Plaintiffs' land. Earl Robinson testified that he felt confident before cutting that he knew where the road was supposed to go based on his earlier discussions with Lamond and his personal view of the site where he had seen "a continuance of an old road."

Plaintiffs filed a complaint alleging that all defendants were liable to them for cutting and carrying away timber and that the conduct was willful and knowing, entitling Plaintiffs to recover treble damages and attorney fees pursuant to 14 M.R.S.A. § 7552, together with punitive damages. ³ Following denial of defendants' motions for directed verdicts, the jury returned verdicts against all of the defendants, finding that Robinson was seventy-five percent at fault, and McPherson and Timberlands twenty-five percent at fault, and that all defendants had acted willfully or knowingly. ⁴ The jury determined Plaintiffs' damages to be $7000, and pursuant to 14 M.R.S.A. § 7552, damages were trebled to $21,000. In addition, Plaintiffs were awarded $17,306.48 in attorney fees, expenses, and costs. This appeal followed the denial of a post-verdict motion for judgment notwithstanding the verdict.

LIABILITY OF DEFENDANT ROBINSON

Robinson concedes that it trespassed onto Plaintiffs' land and cut and carried away timber, and that it is liable under 14 M.R.S.A. § 7552 for single damages. Robinson contends, however, that the evidence does not support the jury's finding that it acted willfully or knowingly within the meaning of the statute, and therefore, it should not be liable for treble damages and attorney fees. We agree.

14 M.R.S.A. § 7552 provides in part:

Whoever cuts down, destroys, injures or carries away any ... timber, wood, underwood, stones, gravel, ore, goods or property of any kind from land not that person's own, without license of the owner, or injures or throws down any fences bars or gates, or leaves such gates open, or breaks glass in any building is liable in damages to the owner in a civil action. If such act or such acts are committed willfully or knowingly, the defendant is liable to the owner in treble damages and, in addition, for the costs of any professional services necessary for the determination of damages, for the attorney's fees, and for court costs.

In order for an act to be committed "knowingly" within the meaning of section 7552, the defendant must be subjectively aware that the cutting is improperly taking place on another's land. See Grant v. Warren Bros. Co., 405 A.2d 213, 218-19 (Me.1979); see also Blaisdell v. Daigle, 155 Me. 1, 2, 149 A.2d 904 (1959). Because there is no evidence in this case to suggest that Robinson or any of its employees had subjective knowledge that the timber cutting was occurring on Plaintiffs' property, the court erred in allowing the jury to consider whether the cutting was "knowing." ⁵

"Willfully," as used in section 7552, although it requires a lesser degree of culpability than "knowingly," nevertheless is intended " 'to embrace conduct on the part of the defendant which displays an utter and complete indifference to and disregard for the rights of others.' " Guilmet v. Galvin, 597 A.2d 1348, 1349 (Me.1991) (quoting Blaisdell, 155 Me. at 2, 149 A.2d 904). Reviewing the evidence in a light most favorable to the Plaintiffs, as we must, Schiavi v. Goodwin, 542 A.2d 367, 368 (Me.1988), we conclude that Robinson's actions cannot be construed as being willful within the meaning of section 7552.

The evidence shows that the trees were cut and the road constructed in the wrong place because of a misunderstanding between Earl Robinson and Ken Lamond, not out of any indifference to or disregard for the rights of Plaintiffs. Although Robinson's crew did not have a map, plan, or photo when it bulldozed the road, Earl Robinson and Lamond had discussed where the road should go and Earl Robinson testified that he felt confident that he knew where the road should go based on those discussions and his inspection of the area. There were in fact two different "old roads" that if extended would run between Grace Pond Road and Two Mile Road, and it is clear from the evidence that the parties were unaware at the time of their discussion that they were talking about different "old roads." It was not until after the cut was made that the misunderstanding came to light. Moreover, there were no boundary markers setting off Plaintiffs' lots from the rest of the rural wooded area that would have alerted Robinson's crew to a potential trespass.

This case differs from Guilmet, where we found no clear error in the finding by the trial court that the cutting by defendants of timber on Guilmet's property was willful within the meaning of section 7552. In that case, there was a cottage situated on Guilmet's property and existing boundary markers on Guilmet's land indicating the property line. Defendants made little effort to ascertain the correct location of those boundaries or their own boundaries before cutting. Here, the cutting took place in an uninhabited area in an unorganized Township and there were no markings to identify Plaintiffs' lots. Moreover, in Guilmet there was evidence of other conduct on the part of the defendants that evinced an utter and complete indifference to Guilmet's rights. Id. at 1350.

This case is also distinguishable from Grant, 405 A.2d at 216, and Nyzio v. Vaillancourt, 382 A.2d 856, 860 (Me.1978). The defendant in Grant was notified that there was a possible dispute as to whose property was being cut, but nonetheless continued in the removal of timber and topsoil from the plaintiff's land. Grant, 405 A.2d at 216. In Nyzio, the defendant...