Breiding v. Wells, 17103

• Decision Date: 11 December 1990
• Docket Number: No. 17103,17103
• Citation: Breiding v. Wells, 800 S.W.2d 789 (Mo. App. 1990)
• Parties: Robert G. BREIDING, Sr., and Betty I. Breiding, husband and wife, Plaintiffs-Respondents, v. Larry WELLS, Leon Cain, Leon F. Cain, Jr., and Vickie L. Cain, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 789

800 S.W.2d 789

Robert G. BREIDING, Sr., and Betty I. Breiding, husband and wife, Plaintiffs-Respondents, v. Larry WELLS, Leon Cain, Leon F. Cain, Jr., and Vickie L Cain, Defendants-Appellants.

No. 17103.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 11, 1990.

Alex Peebles, Hermitage, for defendants-appellants.

Ralph W. Gilchrist, Bolivar, for plaintiffs-respondents.

SHRUM, Judge.

This is an appeal from a judgment for plaintiffs in a court-tried case against defendants Larry Wells (hereafter Wells), Leon F. Cain, Jr. (hereafter Leon, Jr.), and Vickie Cain (hereafter Vickie) for $3,500.00 actual damages for trespass to real estate, which were trebled "pursuant to Section 537.340 R.S.Mo., to the amount of ... $10,500.00, and additional damages in the sum of $1,200.00 for clean up damages computed against Defendants."

Plaintiffs owned 5 acres in Hickory County, Missouri, near Lake Pomme de Terre. Defendant Leon, Jr., and his wife ¹ owned 49.38 acres which adjoined plaintiffs' property. Three acres of plaintiffs' property were located at the southeast corner of the property of Leon, Jr., and his wife. Leon, Jr., wanted to be able to drive around the boundary of his land so he hired Wells to circle his land with a bulldozer. Wells performed the work. In doing so, he pushed out a 48-50 foot wide strip of trees on plaintiffs' land 361 feet in length east and west and 260 feet in length north and south. Wells didn't know where the boundary lines were when he pushed the trees out but acted at the direction of Leon, Jr. The boundary line between the parties was not surveyed before the trespass. Leon, Jr., relied on an old fence line, "measuring out from our back to the southeast corner." Leon, Jr., determined after the trespass that the old fence line was wrong, "[i]t's a mistake." ² Additional evidence concerning damages will be set forth as necessary to dispose of Point II.

Plaintiffs' single-count petition does not specifically refer to § 537.340 but pleads a trespass by defendants, "contrary to the form of the statute" and prays for treble damages. Defendants filed a general denial. During pretrial, plaintiffs' counsel declared that the case was brought under § 537.340 ³ as a trespass on realty. The record is clear, and the trial court's judgment ⁴ reflects, that the case was tried, submitted and decided on the basis of § 537.340.

In Point II, defendants argue that the proper measure of damages for a § 537.340 trespass action is the value of the trees damaged or destroyed (rather than before and after value of the land). They claim that the trial court erred in entering the judgment because plaintiffs failed to adduce "evidence ... of the number and 'fair market value' of the bulldozed trees so that the judgment is based only on speculation [and] is not supported by substantial evidence...." This court is obliged to affirm the trial court's judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Tracy v. Tracy, 791 S.W.2d 924, 926 (Mo.App.1990).

Review of the record in this case has generated a firm belief that there is no substantial evidence to support the judgment as to the amount of damages and that the law has been erroneously applied. The reasons are as follows. Ordinarily, the measure of damages in a § 537.340 action is the market value of the property at the time it was removed from the land. Mo. Damages, § 15.55 (Mo. Bar 1988); Giudicy v. Giudicy Marble, Terrazzo & Tile Company, 329 S.W.2d 664, 669 (Mo.1959). See also Keener v. Black River Electric Co-Operative, 469 S.W.2d 657, 659 (Mo.App.1971). However, in at least one instance, this court approved the use of before and after values of the real estate as a measure of damages in a § 537.340 action where the things taken, injured, or destroyed by a willful trespass have no substantial market value, when considered in their severed state. Barnes v. Arkansas-Missouri Power Co., 220 Mo.App. 141, 149-50, 281 S.W. 93, 96 (1926). The reasoning in Barnes for using before and after values of the land as a § 537.340 measure of damages, in certain limited instances, is sound. However, in this case, the trial court, at the conclusion of the case said:

The only evidence before the Court as to the value of the trees is $3,500.00. The Court finds the issues in favor of the Plaintiffs against Defendants on that issue and enters judgment of $3,500.00 actual. Treble award of $10,500.00. Consequential or clean up damages the Court finds to be $1,200.00 against Defendants herein as per entry filed.

Written judgment was entered accordingly.

Clearly, as to the $3,500.00 portion of the judgment, the trial Court applied the ordinary rule that the measure of damages in a § 537.340 action is the market value of the property at the time it was removed from the land, rather than the rule set forth in Barnes, supra. The only evidence of the value of the trees removed and destroyed came from plaintiff Robert G. Breiding during rebuttal, as follows:

Q. Mr. Breiding, do you have an opinion as to the value of the trees and the destruction thereof as to your continued use or aesthetic use of the property?

A. Yes, I do.

Q. What is that opinion?

A. The value of those trees to me would be about $3,500.00 or maybe $4,000.00

....

Q. How do you value a tree that you're talking about, the value of it? How do you yourself evaluate it? You can evaluate a car, a truck. But how do you evaluate a tree? How do you arrive at that?

A. I arrive at that figure basically because they are the prime feature of that property. You see I regard this area of Missouri as one of the most beautiful places in the mid-west and that asset comes from those trees.

MR. PEEBLES: Nothing further, Your Honor.

THE COURT: Do I understand that you're saying that the damage to your trees is now $3,000.00 to $3,500.00?

THE WITNESS: Yes, sir. (Emphasis added.)

Clearly, plaintiff's opinions did not address the fair market value of the trees removed. His opinions as to the "value of trees" was grounded upon his personal "continued use or aesthetic use of the property." He arrived at that figure "basically because they [the trees] are the prime feature of that property. You see, I regard this area ... as one of the most beautiful places in the mid-west and that asset comes from those trees." (Emphasis added.) Such testimony does not supply necessary evidence of value of the trees.

Proof of fair market value cannot be supplied by evidence as to the value of the property to the plaintiff individually, as a witness' subjective opinion or his feeling ... as to the value of property may not be equated with or substituted for fair market value.

Evinger v. McDaniel Title Co., 726 S.W.2d 468, 474-75 (Mo.App.1987). There was no evidence of fair market value of trees other than plaintiff's opinion. Accordingly, there was no substantive evidence of the fair market value of the trees. This requires reversal and remand for new trial.

Erroneous application of the law occurred from the following. At the conclusion of the trial, after making the $3,500.00 award for the value of the trees, the trial court awarded plaintiffs $1,200.00 "[c]onsequential or clean up damages." Evidence of the cost of cleaning up the bulldozed trees and brush was as follows. Through a witness who worked as a logger, plaintiffs offered evidence, without objection, that it would cost $3,500.00 to "clean up the logs, debris, etc." Defendant Wells testified he could "clean the logs up" for $300.00. When asked how much he had charged Leon, Jr., for clearing a path around the entire 49-acre tract, Wells first said he couldn't remember and then testified, "Let's say $1,200.00. How's that sound?"

Q. (Cont. by Mr. Gilchrist) I'm not saying that. I'm asking you if you know.

A. No, I don't know.

No other place in the record is the figure of $1,200.00 mentioned in relation to anything. Evidence of the cost of "clean up" of the trees would only be relevant if the trial court determined that the reasoning of Barnes applied, and then only to the extent that it aided the court in determining what was the correct difference in the "before and after value" of the real estate. Using evidence of the cost of "clean up" as a separate damage item was an erroneous application of the law requiring reversal and remand for a new trial. Keener, supra, at 659; Giudicy, supra, at 669; Barnes, supra, 281 S.W. at 96.

Plaintiff testified that the fair market value of the land prior to the trespass was $7,500.00; after the trespass, it was $1,500.00. Defendants offered no evidence of before and after values of the land. If, upon retrial, it is determined by the trial court, based upon substantial evidence, that the trees taken and pushed out had no substantial market value in their severed state, evidence of before and after land values should be received and considered by the trial court in determining the damages for the trespass. Barnes, supra. If, however, the trial court determines that the trees destroyed and removed had a substantial market value, then the evidence of the fair market value of the trees destroyed should be received and weighed to determine the measure of plaintiffs' damages. ⁵ Keener, supra; Giudicy, supra.

In Point I, defendants claim trial court error in entering judgment against Vickie. They claim there is no substantial evidence to support the judgment against Vickie because, other than being named in the caption and in the judgment, there is no identification of her and no evidence of her alleged involvement in the trespass. This court agrees.

It is true that "all who direct the commission of a trespass, or wrongfully contribute to its commission, * * * are equally liable to the injured persons...." (Italics in original.) Curlee v. Donaldson, 233...