Hartle v. Nelson

• Decision Date: 22 December 2000
• Docket Number: No. 99-372.,99-372.
• Citation: 15 P.3d 484,2000 MT 356,303 Mont. 264
• Parties: Adella HARTLE and Wilbur Hartle, Plaintiffs and Appellants, v. Dean NELSON, d/b/a/ N & N Logging, Defendant and Respondent.
• Court: Montana Supreme Court

15 P.3d 484

2000 MT 356

303 Mont. 264

Adella HARTLE and Wilbur Hartle, Plaintiffs and Appellants, v. Dean NELSON, d/b/a/ N & N Logging, Defendant and Respondent.

No. 99-372.

Supreme Court of Montana.

Submitted on Briefs February 10, 2000.

Decided December 22, 2000.

Scott B. Spencer, Libby, MT, For Appellant.

Mark S. Williams, Williams & Ranney, Missoula, MT, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Adella and Wilbur Hartle (the Hartles) brought this action in the District Court for the Nineteenth Judicial District, Lincoln County, to recover for damages caused when an employee of Dean Nelson (Nelson) d/b/a N & N Logging, inadvertently cut timber on the Hartles' property without the Hartles' permission. The jury returned a verdict for the Hartles in the sum of $4,500 and the District Court entered judgment in their favor. The Hartles appeal from this judgment arguing that the court improperly instructed the jury as to damages. We affirm.

¶ 2 The Hartles raise the following issues on appeal:

¶ 3 1. Whether the District Court incorrectly instructed the jury as to the measure of damages for injury to real property.

¶ 4 2. Whether the District Court should have instructed the jury that the damages for the taking of timber could be trebled.

Factual and Procedural Background

¶ 5 The Hartles own 18 acres of undeveloped real property in the Ridgeview Estates in Lincoln County. Nelson and his logging crew were hired to log the 50 acres adjacent to the Hartles' property. While logging this adjacent property, Nelson's feller-buncher operator accidentally crossed onto the Hartles' property and proceeded to cut timber on a two-acre portion of that property. Nelson stopped the logging operation on the Hartles' property as soon as he discovered the mistake. He immediately went to the Hartles' home, informed them of the mistake, and accepted full responsibility.

¶ 6 On March 4, 1998, the Hartles filed a complaint against Nelson for damage to real property and damage to the timber. Nelson admitted liability for the trespass and accepted liability for the damages. It was agreed that the trespass was accidental, thus, before trial, the District Court entered an Order determining that Nelson's logging on the Hartles' property was unintentional. And, at trial, the court instructed the jury that "Defendant's logging on Plaintiffs' property was accidental, not intentional." The parties tried the case to a six-person jury on April 5 and 6, 1999. Because Nelson admitted liability, the only issue for the jury was damages.

¶ 7 Gene Yavah (Yavah), a retired forester, was the only witness called regarding damages. After inspecting the property, Yavah determined that 136 trees of various species had been cut. He determined that the mill price of these trees was $2,380 and that the cost to clean up the slash and logging debris was between $700 and $1,000. However, this cost did not include any amount for the damage to the remaining trees or to the surrounding vegetation that could be caused by erosion.

¶ 8 Wilbur Hartle (Wilbur) testified that the boundary line around his property was well marked. He also testified that he paid $3,250 per acre for the property and that the value for the entire 18 acre parcel after the two acres were logged was only $2,000 per acre. Wilbur presented a videotape to the jury that showed the area logged and the impact the logging had on the property. Wilbur testified that not only was the scenic value of the property gone, but that he was concerned about erosion in the area logged.

¶ 9 Nelson did not present any witnesses to rebut Wilbur's opinion as to the difference in the value of the property before and after it was logged. However, Nelson argues on appeal that Wilbur admitted that he had no expertise as a real estate appraiser, that he had never tried to resell the property and that he had not lost any deal as a result of the trespass. Furthermore, Wilbur testified that the land had been logged regularly by the previous owner and Yavah testified that there were slash piles and a logging road on the property prior to this incident.

¶ 10 During the settling of jury instructions, the Hartles proposed an instruction that defined the measure of compensation for damage to real property. The District Court refused this instruction. The Hartles also proposed an instruction for the trebling of damages for the loss of timber, but this instruction was also refused.

¶ 11 The jury returned a verdict in favor of the Hartles in the sum of $4,500 and on April 15, 1999, the District Court entered judgment in their favor. The Hartles appeal from that judgment arguing that the court improperly instructed the jury as to damages.

Standard of Review

¶ 12 We review a district court's refusal to give proffered jury instructions for an abuse of discretion. Barnes v. City of Thompson Falls, 1999 MT 77, ¶ 8, 294 Mont. 76, ¶ 8, 979 P.2d 1275, ¶ 8 (citing Harwood v. Glacier Elec. Co-op., Inc., 285 Mont. 481, 487, 949 P.2d 651, 655 (1997)). "A trial court is imbued with broad discretion to determine whether or not it will give a proposed instruction to the jury, and this Court will not overturn a district court on the basis of alleged instructional errors absent an abuse of that discretion." Barnes, ¶ 8 (citing Savik v. Entech, Inc., 278 Mont. 152, 158, 923 P.2d 1091, 1095 (1996)).

¶ 13 In reviewing whether a particular jury instruction was properly given or refused, the reviewing court must consider the instruction in its entirety, as well as in connection with the other instructions given and with the evidence introduced at trial. Moore v. Imperial Hotels Corp., 1998 MT 248, ¶ 21, 291 Mont. 164, ¶ 21, 967 P.2d 382, ¶ 21 (1998) (citing Fillinger v. Northwestern, 283 Mont. 71, 76, 938 P.2d 1347, 1350-51 (1997)). The party assigning error to the instructions must show prejudice in order to prevail. Moore, ¶ 21. Prejudice will not be found if the instructions in their entirety state the applicable law of the case. Moore, ¶ 21.

Issue 1.

¶ 14 Whether the District Court incorrectly instructed the jury as to the measure of damages for injury to real property.

¶ 15 The Hartles argued at trial that the measure of damages for wrongfully cutting timber on another's property is the value of the timber plus the difference between the value of the land before the timber was cut and the value of the land after the timber was cut. To that end, the Hartles proposed the following instructions:

You must determine the amount of money which will reasonably and fairly compensate the Plaintiffs for the losses sustained. The measure of compensation under each claim should be an amount which will compensate the Plaintiffs for all the loss caused by the Defendant's act regardless of whether it could have been anticipated.

In a trespass case involving the removal of timber, there are two separate elements of damage: the damage to the land and the damage for the removal of the timber.

The Hartles' Proposed Instruction No. 2.

The damages for harm to land resulting from a past invasion and not amounting to a total destruction of value include compensation for:

(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred;

(b) the loss of use of the land; and

(c) discomfort and annoyance to the owners or occupant.

The Hartles' Proposed Instruction No. 4.

¶ 16 The District Court gave the Hartles' Proposed Instruction No. 2, but refused to give their Proposed Instruction No. 4. In refusing to give this latter instruction, the trial judge stated:

Well, I'm refusing it because I don't think there is any evidence of (b). I don't think the evidence of (c), I'm not sure that's even a good statement of the law, but it was just about all you could do to get Mr. Hartle to say he was ticked off. I mean, I don't think that rises to the level of something that's compensable and (a) I think is sufficiently covered in [Proposed Instruction No.] 2 where we talk about damage to both the land and to the further removal of the timber. . . .

¶ 17 The Hartles now argue on appeal that their Proposed Instruction No. 2 alone did not cover their theory of the case as to damages nor did it properly instruct the jury on the correct measure of damages for cutting the trees or for the damage to the real property. Hence, the Hartles argue that because the District Court failed to give their Proposed Instruction No. 4, the jury was not told how to correctly determine the damages that the Hartles suffered.

¶ 18 Nelson, on the other hand, argues that the District Court was correct in refusing the Hartles' Proposed Instruction No. 4 because it was not supported by the law, nor by the evidence, and was adequately covered by other instructions. More specifically, Nelson argues that subpart (a) of the Hartles' Proposed Instruction No. 4 was already provided for in the Hartles' Proposed Instruction No. 2. In addition, Nelson argues that subparts (b) and (c) of the Hartles' Proposed Instruction No. 4 are not supported by the evidence and are not accurate statements of the law.

¶ 19 A district court is not to be held in error for refusing to give an instruction when the subject has been adequately covered by other instructions or when it is not applicable to the pleadings and the evidence. Doble v. Lincoln County Title Co., 215 Mont. 1, 7, 692 P.2d 1267, 1271 (1985) (citing Wollan v. Lord, 142 Mont. 498, 504, 385 P.2d 102, 106 (1963)). Furthermore, where other instructions adequately cover the law relating to a particular issue, it is not error to refuse a proposed instruction on the same subject. Valley Properties v. Steadman's Hardware, 251 Mont. 242, 249, 824 P.2d 250, 255 (1992) (citing Noll v. City of Bozeman, 172 Mont. 447, 564 P.2d 1296 (1977)).

¶ 20 Relying on Eby v. City of...