Longenecker v. Zimmerman, 39030
| Decision Date | 06 March 1954 |
| Docket Number | No. 39030,39030 |
| Citation | 175 Kan. 719,267 P.2d 543 |
| Parties | LONGENECKER v. ZIMMERMAN. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
From every unauthorized invasion of the person or property of another, the law infers some damage without proof of actual injury.
A. B. Mitchell, Lawrence, argued the cause, and was on the briefs for appellant.
Howard E. Payne, Olathe, and Bernard L. Trott, Kansas City, Mo., argued the cause, and Oscar S. Brewer, Kansas City, Mo., was with them on the briefs for appellee.
This was an action to recover damages for an alleged trespass. Plaintiff (appellant) in her petition alleged she was the owner of certain described real estate, and defendant (appellee) without her permission hired and caused the Arborfield Tree Surgery Company, its agents and employees, to go upon her property and top off, injure and in effect destroy three cedar trees of the value of $150 each, which trees were growing upon plaintiff's property and were both shade and ornamental in their presence. Plaintiff further stated she was entitled under the provisions of G.S.1949, 21-2435, to recover from the defendant by reason of the matters hereinbefore set out three times the value of the plaintiff's property thus injured and destroyed. Defendant answered by way of a general denial.
Plaintiff's evidence disclosed that she and defendant owned adjoining residences and were neighbors for about five years. On September 8, 1950, defendant without her permission employed a tree surgery company to go upon plaintiff's property and top three cedar trees. The trees were located some two or three feet north of plaintiff's south boundary line. The trees before being topped were 20 to 25 feet high, and were as she wanted them on her property. About 10 feet were cut off the tops of the trees, and from such topping the trees would never grow any higher, and she didn't want them to stop growing. Cedars are not pruned from the top, but are feathered and shaped and not cropped. She considered the trees were, in effect, destroyed by improper pruning. She attached a sentimental value to them as they stood; they served a special purpose, were both shade and ornamental trees and were worth $150 to $200 each.
Defendant's evidence was to the effect that the trees, prior to the time they were topped, seemed to be dying out at the top and they also contained bagworms; that two or three feet were taken out of the top of one tree and about a foot or so out of the other two; that the work done was beneficial to the trees and that they were not injured. The work consisted of cutting out dead branches and cleaning out bagworms. One of defendant's expert witnesses testified on direct examination that the cutting away of dead wood would not injure the physical condition of the tree. However, on cross-examination he testified that if the top is taken out, it is the ambition of every bud on the tree to try to take the place of the terminal bud which has been sacrificed, but the trunk itself is no longer going to grow in height. Defendant stated that she was mistaken as to the boundary line and believed the trees were on her property.
The case was submitted to a jury which returned a general verdict for the defendant. Plaintiff's motion for a new trial was overruled and the court rendered judgment against plaintiff from which she appeals.
At the outset it may be stated that defendant admits the trespass upon plaintiff's property. The determinative question on this appeal is whether the trial court erred in refusing plaintiff's requested instruction to the effect that defendant had admitted the trespass upon plaintiff's property by topping the three cedar trees and, therefore, she was liable to the plaintiff in damages. In lieu of this requested instruction, the court gave the following instruction:
'You are instructed that the motive of the defendant is not material, and is not necessary that the defendant be acting with malice or wrongful intent in order for plaintiff to recover damages to her trees, if any.
'The plaintiff is entitled to have her trees in such shape, condition and state of growth as she desires to have them, irrespective of the thoughts and wishes of others, and free from molestation by others.
'The defendant has admitted that she had plaintiff's trees topped and therefore she has admitted the trespass and is liable in damages for such sum, if any, as you find from a preponderance of the evidence plaintiff has sustained.
'In arriving at the value of said trees you may, if you find from a...
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Gross v. Capital Elec. Line Builders, Inc., 68,982
...moving away from awards of nominal damages in intentional tort actions. Capital concedes that as recently as the decision in Longenecker v. Zimmerman, 175 Kan. 719, Syl., 267 P.2d 543 (1954), this court held that "[f]rom every unauthorized invasion of the person or property of another, the ......
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Ross v. Nelson
...invasion of the person or property of another, the law infers some damage, without proof of actual injury." Longenecker v. Zimmerman, 175 Kan. 719, 721, 267 P.2d 543 (1954). The district court found that Nelson trespassed on the plaintiffs' land by installing pipes in the right-of-way. The ......
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Miller v. Cudahy Co.
...which he has already been compensated. Miller is, therefore, entitled to only nominal damages for this trespass, Longenecker v. Zimmerman, 175 Kan. 719, 721, 267 P.2d 543 (1954). 23. The Court concludes that the defendants are liable for their trespassing pipelines to Cecil Miller in the am......
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In re Worldcom, Inc.
...13 at 70 (5th ed.1984) (same). When such a tangible invasion occurred, the element of damages was presumed. Longenecker v. Zimmerman, 175 Kan. 719, 721, 267 P.2d 543, 545 (Kan.1954). As the bankruptcy and district courts noted, however, some courts have adopted a "modern" view of trespass t......