Creel v. Crim

• Decision Date: 07 September 2001
• Parties: Glenn CREEL, individually and d/b/a Creel Tree Service v. Forest R. CRIM and Tisia Baker Lovelady.
• Court: Alabama Court of Civil Appeals

812 So.2d 1259

Glenn CREEL, individually and d/b/a Creel Tree Service v. Forest R. CRIM and Tisia Baker Lovelady.

2990907.

Court of Civil Appeals of Alabama.

September 7, 2001.

Christopher R. Smitherman, Montevallo, for appellant.

Mickey L. Johnson of Johnson & Bass, P.C., Pelham, for appellee Forest R. Crim.

MURDOCK, Judge.

Forest R. Crim sued Tisia Baker Lovelady and Glenn Creel, individually and doing business as Creel Tree Service, alleging that in August 1997 the defendants had trespassed upon his property and had cut and carried away trees from the property. Creel filed a cross-claim against Lovelady for indemnification for any damages that he might have to pay as a result of Crim's claim against him; Creel claimed that Lovelady had directed him to cut timber on her property but that she had instructed him to cut trees that were not on her property. After conducting an ore tenus proceeding, during which it viewed the land upon which the trespass allegedly had occurred, the trial court entered a judgment in which it expressly found that Creel had cut timber from a portion of Crim's land, but that he had been acting on Lovelady's representations that she owned that portion. The trial court also expressly found that Creel had entered upon and had damaged Crim's property, and directed Creel to pay Crim $5,400; however, the trial court found in favor of Lovelady as to Crim's claim against her, and concluded that statutory damages for Crim's damaged trees were not due to be awarded because Creel and Lovelady had not intended to cut Crim's trees (see Ala. Code 1975, § 35-14-1). Lovelady was directed to pay $2,700 to Creel on his indemnity cross-claim.

Creel appeals, claiming that the trial court erred in finding for Crim on Crim's trespass claim and in awarding Creel only $2,700 on his indemnity claim. The following principles govern our review of the trial court's judgment:

"We note that under the ore tenus standard of review, the trial court's findings of fact based on oral testimony, and a judgment based on those findings, are given a presumption of correctness. A judgment based on such findings will not be reversed unless it is shown to be plainly and palpably wrong. The appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court's decision is supported by reasonable inferences to be drawn from the evidence. The reason for giving such deference to the trial judge's findings based on disputed evidence in ore tenus proceedings is that the trial judge has the benefit of observing the witnesses' manner and demeanor and has the better opportunity to pass upon the credibility of their testimony."

Ex parte Pielach, 681 So.2d 154, 154-55 (Ala.1996) (citations omitted). "Under the ore tenus rule, the trial court's judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless found to be plainly and palpably wrong." Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala. 1992) (citations and internal quotation marks omitted). Finally, we note that "[w]here the trial court has made a visual inspection of the subject matter of a finding of fact there is an even greater presumption indulged in favor of that finding than is the case when the same finding is made from other evidence." Gantt v. Bamberg, 491 So.2d 925, 925 (Ala.1986).

Creel contends that the trial court abused its discretion in concluding that he had trespassed upon and damaged Crim's land and in assessing Crim's damages at $5,400.¹ In doing so, Creel correctly notes that damages in cases involving trespass to land wherein trees are removed are "not measured by the value of the timber or property severed, but by the injury to the land by reason of its severance—the difference between the value of the land immediately before [the trespass] and [the value of the land immediately] after the trespass." Granade v. United States Lumber & Cotton Co., 224 Ala. 185, 189, 139 So. 409, 412 (1931). Creel contends that Crim's testimony concerning the location of his boundary line was not credible and that he failed to present "competent evidence" concerning diminution of value resulting from the trespass and the removal of trees; therefore, Creel says, a judgment for $5,400 in Crim's favor is necessarily erroneous.

However, we note that the trial judge personally viewed the property in question and that the knowledge he obtained during that view constitutes proper evidence in this case. See Lowe v. Morrison, 412 So.2d 1212, 1213 (Ala.1982)

(view of premises by trier of fact supported awards for both substantial performance and breach of implied warranty); Frederick v. Strickland, 386 So.2d 1150, 1151-52 (Ala.Civ. App.1980) (view of premises by trier of fact supported its computation of difference between value of dwelling as contracted and its value as actually constructed); 2 Charles W. Gamble, McElroy's Alabama Evidence § 208.01 & .02 (5th ed.1996) (discussing judicial views generally).

Crim testified concerning the existence of an old, visible fence line roughly paralleling a quarter-section line constituting the boundary between Crim's property and Lovelady's property; he further testified that a marker pipe had been removed from the boundary between his land and Lovelady's, and that Creel had cut pine and poplar trees from the north side (i.e., Crim's side) of the old fence/section line. Moreover, an exhibit admitted into evidence contains a handwritten statement signed by Creel in which he states "I'm very sorry for the over cut, but I simply done [sic] what I was told to...