Huber v. Serpico

• Decision Date: 08 January 1962
• Docket Number: No. A--314,A--314
• Citation: 176 A.2d 805,71 N.J.Super. 329
• Parties: Carl W. HUBER et al., Plaintiff-Respondents, v. Joseph P. SERPICO et al., Defendants and Third-Party Plaintiffs-Appellants, v. TIMBERBROOK CORPORATION, a New Jersey corporation et al., Third-Party Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 329

71 N.J.Super. 329

176 A.2d 805

Carl W. HUBER et al., Plaintiff-Respondents, v. Joseph P. SERPICO et al., Defendants and Third-Party Plaintiffs-Appellants, v. TIMBERBROOK CORPORATION, a New Jersey corporation et al.,

Third-Party Defendants-Respondents.

No. A--314.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 25, 1961.

Decided Jan. 8, 1962.

Clifford W. Starrett, Morristown, for defendant and third-party plaintiffs Joseph P. Serpico and others (Schenck, Smith & King, Morristown, attorneys).

Albert B. Jeffers, Jr., Morristown, for plaintiff Carl W. Huber and others (Jeffers & Mountain, Morristown, attorneys).

Henry Rowe Van Houten, Morris Plains, for third-party defendant Robert C. Edwards Associates, Inc. (Paul Bangiola, Morris Plains, attorney).

Myron J. Bromberg, Morristown, for third-party defendant Timberbrook Corp. (Ralph Porzio, Morristown, attorney).

Before Judges CONFORD, FREUND and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.S.C. (temporarily assigned).

This is an appeal by defendants and third-party plaintiffs, Joseph P. Serpico, individually, and Paul L. Serpico and Joseph P. Serpico, trading as partners, under the partnership name of Serpico Piling and Timber Company (Serpico), from a judgment entered against them in the sum of $6500 in favor of the plaintiffs Carl W. Huber and Helen W. Huber following a jury verdict, and from a judgment of involuntary dismissal pursuant to R.R. 4:42--2(b), 4:42--3, in favor of the third-party defendants Robert C. Edwards Associates, Inc. (Edwards) and Timberbrook Corporation (Timberbrook).

The complaint sounded in trespass, its gravamen being the cutting down by Serpico of some 50 trees on lands belonging to the plaintiffs. Serpico, in turn, filed a third-party complaint against Edwards and Timberbrook alleging, in effect, that it was caused to trespass on Hubers' lands and cut down Hubers' tress, by virtue of the misleading and erroneous posting of surveyor's stakes and markers by Edwards, while in the performance of a survey for Timberbrook in discharge of Timberbrook's contract obligation with Serpico to indicate to it the boundary lines between the properties of Timberbrook and the adjoining lands of Huber. Under the contract in question, Serpico purchased the right to cut timber on some 25 acres of Timberbrook land part of which immediately adjoined Huber.

At the conclusion of the taking of testimony on behalf of plaintiffs and of defendants, motions for involuntary dismissal on behalf of Edwards and Timberbrook were granted by the trial court. Thereafter, the case proceeded against defendants Serpico alone, resulting in the verdict for the plaintiffs.

Subsequent to the filing of the third-party complaint, plaintiffs' complaint had been amended to add counts making Timberbrook and Edwards defendants on substantially the same theory as urged by Serpico. There was an involuntary dismissal as to these counts from which no appeal has been taken by plaintiffs.

Defendants allege error in the dismissal of their third-party complaint as to Edwards and Timberbrook and in the admission of certain testimony for the plaintiffs bearing on the question of damages.

At the trial plaintiffs produced evidence of their ownership and occupancy of a 14.5-acre tract of land containing their residence and outbuildings. Residence tracts in the neighborhood are relatively large. The Huber tract contained a yard, pasturage and a grove of trees ranging in age from 70 to 85 years, including red, white and black oak, black birch, ash and yellow poplar. The grove was used by plaintiffs and their family for purposes of enjoyment and recreation. While they were away on vacation during the Summer of 1959, Serpico came upon the premises, cut down the grove, and removed the salable wood. A large amount of debris was left behind. The dragging of the felled trees from the premises caused additional damage to the surface of the land. The stumps were permitted to remain, and trees which were not cut down were damaged by the felling of the larger trees, and were made more vulnerable to the action of the wind.

Three experts gave evidence as to damages. Their testimony will be referred to infra.

The testimony for defendants indicated that on July 14, 1959 Serpico had entered into a contract to cut down and remove certain timber on 25 acres of the Timberbrook property which adjoined that of plaintiffs. The contract required Timberbrook to 'cause the property lines of their lands to be indicated to the buyer.' Serpico purchased only the timber on the 25-acre portion, and Edwards was hired by Timberbrook to establish the rear line which would separate the 25-acre tract from the balance of its property.

Edwards had been previously hired, in 1957, to survey all of the property then being acquired by Timberbrook. This involved inclusion in the survey map of a portion of adjoining lands of plaintiffs and one Butterworth. Pursuant thereto it had prepared a map of all the property mentioned dated March 29, 1957. Before the Serpico contract was actually executed, the rear line of the 25-acre piece had been located and indicated on the 1957 survey map by Edwards. Joseph P. Serpico, on behalf of defendants, had walked the rear line and flagged it before the contract was signed. Timberbrook furnished Serpico with a copy of Edwards' survey-map showing the 25-acre tract before the commencement of cutting operations. He was told, on behalf of Timberbrook, that the services of Edwards were at his disposal if he required them. He never called on Edwards for assistance. He explained on cross-examination, 'I went according to this survey.' He asserted his familiarity with surveyors' maps and with the location of the property lines as shown on the map furnished him.

Joseph P. Serpico conceded that he had trespassed upon the Huber tract in his timbering operations. He asserted that this was due to the misplacing of the terminal point of the rear line of the tract. The survey map which had been furnished him indicated that the rear line terminated at the Huber-Timberbrook line and then proceeded along that line to the street. Instead of stopping at the Huber-Timberbrook line, Serpico continued his operations along a projection of the rear line of the 25-acre tract onto plaintiffs' property until he came to a stake in a line which separated the Huber property from that of another neighbor, Butterworth. A swath had been cut along the rear line, and he found a lath along the course every 100 or 150 feet. There was no such lath at the Huber-Timberbrook line, and the stake beyond it, to which he cut, appeared to be older than the other stakes. He also knew of the marked location of a projected road which paralleled the front portion of the Huber-Timberbrook line, which was to be used in connection with the logging operation.

Serpico's contention was that the absence of a marker on the ground at the Huber-Timberbrook line, taken in conjunction with the stake at the Huber-Butterworth line, misled him, and that Edwards was responsible for these deceptive conditions.

Considering the testimony in the light most favorable to defendants, they were furnished with a survey map which accurately depicted the boundary lines of the 25-acre tract. The brush had been cut along the rear line of the tract and also part way along the street end of the Huber-Timberbrook line. There was a stone row and fence along this end of the boundary, but it likewise did not go all the way back. Edwards had not erected any flag or marker to show the junction of the rear line with the Huber-Timberbrook line. There were other survey stakes and markers which had been left from Edwards' previous survey of the entire tract. Serpico, in the absence of a market, continued along what he thought to be the course of the rear line to one of the old survey stakes. It was never intended or represented to be a guide to the boundaries of the 25-acre tract.

The third-party complaint contained counts praying for contribution under the Joint Tortfeasors Contribution Law (N.J.S. 2A:53A--1 et seq., N.J.S.A.), and for indemnity. Serpico asserted that Timberbrook breached its contractual duty to it, and that since Edwards was acting for Timberbrook in the performance of Timberbrook's obligation to indicate the boundary lines, Timberbrook was equally responsible with Edwards for the alleged negligence which brought about the trespass, and that they all thereby became co-trespassers.

It is first urged that the evidence created a jury question as to the liability of Edwards as a co-trespasser, since the trespass by Serpico arose from the failure of Edwards to indicate the terminal point of the rear line. This contention is based upon the hypothesis that it was Edwards' duty to show a physical mark on the ground at the point where the rear line intersected the Timberbrook-Huber boundary.

The difficulty with this contention is the fact that the case is devoid of evidence of any such requirement on the part of Edwards. Regardless of Timberbrook's obligation to Serpico, Edwards could be held only to the extent of the obligation to Timberbrook which it had assumed. So far as the record is concerned, it was required to calculate the location of the rear line of the 25-acre tract and prepare a map or plat showing it. It is conceded that the map which it prepared was accurate. There is no proof that it was hired to erect monuments or markers or that this was a professional obligation by custom or otherwise. It was to remain available to assist Serpico when called upon, and it did so. Serpico made no request for assistance or clarification but proceeded 'on his own.'

In the absence of evidence leading to the inference that Edwards failed in the performance of his contract with Timberbrook, since there was no claim of any direct dealings between Edwards and Serpico, there was nothing from which a jury could...