McDonald v. Stern

Docket Number83566-1-I
Decision Date24 July 2023
PartiesMARK McDONALD, an individual, Respondent, v. MICHAEL STERN and EMMA STERN, a married couple, Appellant.
CourtWashington Court of Appeals

UNPUBLISHED OPINION

BIRK J.

Michael and Emma Stern appeal from a verdict and quiet title order in favor of their neighbor, Mark McDonald, on claims of timber trespass, waste, and nuisance based on Stern's having cut McDonald's trees, among other damage to McDonald's property. Stern challenges the trial court's order establishing the property line, arguing the trial court failed to give the proper legal significance to a corner monument on which Stern's surveyor relied. Stern additionally challenges the jury's determination of damages for nuisance, asserting the verdict was based on instructional error, insufficient evidence, and improper duplication of damages. Finding no error, we affirm.

I
A

McDonald acquired his property in 2015. Stern was his neighbor to the north. Mature hornbeam trees had lined the boundary between Stern's and McDonald's properties at least since 2001. In 2015, McDonald removed some of the hornbeam trees and replaced them with arborvitae trees. Stern was upset McDonald had not removed all of the hornbeam trees and began sending "nasty text messages" and making phone calls in which he was "yelling" and "screaming." One text message read, "I think that 4 instead of only 1 German Shepherd wolf be much better. Your gusts &your kids will be allowed to pat them and you and your workers too. Your $5600 grass will work out even better then."

Stern began sawing branches off the trees. McDonald testified there was "constant branch cutting." He observed and photographed a pole saw on Stern's deck. McDonald testified, "[T]here had to be somebody physically on my side trespassing to-to make those cuts." A police officer who had responded to one of McDonald's calls verified branches were being cut on McDonald's side of the trees. The officer testified from his observation of the trees, "they were being . . . destroyed." McDonald captured video of Stern sawing limbs off the trees with the pole saw. McDonald put on evidence of a large rectangular gap cut into the hornbeams directly across from windows on Stern's house. At some point, Stern threw a rock with a note wrapped around it into McDonald's yard, reading "Tree $$$ is a costly dream. Think amicably &u will win!" The previous owner testified he had sued Stern for timber trespass in 2006 for cutting the same hornbeam trees and a jury had found Stern liable for timber trespass.

In 2016, Stern placed paving stones and had additional back-fill added along the property line up to a chain-link fence owned by McDonald. McDonald alleged the back-fill encroached a foot and a half over the property line. According to the previous owner of McDonald's property, neither the paving stones nor the back-fill were present when he sold the property to McDonald.

Video from May 2019 showed Stern removing a portion of McDonald's fence. McDonald believed Stern burned the fence boards in a fire along with branches removed from McDonald's trees. On August 27, 2019, another fire started by Stern grew out of control. The fire damaged other neighbors' property and caused ember damage to McDonald's lawn. The jury saw photo and video evidence of Stern burning the bonfire in excess of 25 feet high. The trial court excluded Stern's conviction for felony reckless burning resulting from the fire, but instructed the jury the bonfire was not in compliance with law.

McDonald obtained a protection order for himself and his children. The order was extended to a total of four orders. McDonald testified, "The police have been out there 22 times." McDonald did not let his children use the yard because he didn't feel safe due to Stern's conduct. He testified that seeing his trees cut gave him "a feeling of desperation and defeat." McDonald became "paranoid" about "the destruction of my property." It was "like a bad dream that . . . just continues." He testified, "I just didn't feel secure and safe."

Stern denied making any cuttings after McDonald moved in, denied owning a pole saw, claimed he did not know how the rectangular hole got in the trees, claimed he could not see it from his house, claimed the pole instrument photographed on his balcony was not a pole saw but a device for cleaning gutters, claimed a security video of him cutting limbs was doctored, and admitted removing a portion of the fence, but claimed he threw it in the trash.

The fence that Stern removed cost roughly $1,000.00. An engineer testified it would cost $30,000.00 to $50,000.00 to create a retaining wall to curb the settling back-fill placed by Stern. The arborvitae trees would have to be removed to do the work from McDonald's property. The cost of replacing the arborvitae trees, including the use of a barge to reach the property, was estimated at $18,210.50. An arborist testified the hornbeam trees are worth approximately $2,800.00 per tree, and it may take 15 years before a hornbeam tree reaches its mature size. He proposed a rehabilitation plan for the trees which would cost $8,280.00.

Finding for McDonald, the jury awarded $64,194.00 for timber trespass, $89,210.00 for waste, and $393,333.00 for nuisance. The trial court imposed treble damages for timber trespass and waste, bringing the principal judgment amount to $853,545.00. Based on McDonald's prevailing on the waste claim, under RCW 4.24.630(1) the trial court awarded $116,637.50 in reasonable attorney fees and $11,913.04 in reasonable costs.

B

Stern defended additionally on the ground that the property line lay approximately 1 % feet to the south of where McDonald asserted it lay, with the result that the chain link fence the area of the back-fill and the paving stones, and the fence Stern removed, all were on Stern's property. By amended complaint, McDonald added a claim for quiet title. The quiet title claim was tried to the court contemporaneously with the jury claims.

The Stern property was previously owned by Lawrence Barsher. Barsher subdivided his parcel to create the Stern property through the recording of the "Barsher short plat" in 1980. The McDonald property was created by a subdivision recorded in the "Hobbs short plat" in 1981. The legal description on the Barsher short plat was, in relevant part, "the south 100 feet of the north 900 feet of government lot 2." The legal description on the Hobbs short plat was a metes and bounds description, in relevant part starting at "a point on the Westerly boundary line of Government Lot 2," that was "900 feet South 0°21' West of the Northwest corner of said Government Lot 2." The Stern property lies on the south edge of the Barsher plat and the McDonald property lies on the north edge of the Hobbs plat. The legal descriptions on the plats indicate that the boundary between the plats, and therefore the Stern and McDonald properties, is a line 900 feet south of the corner of government lot 2. There was no evidence on when or how parcels were divided establishing that line.

McDonald relied on a survey by Edwin Green, of Terrane Land Surveying. Terrane looked at the legal descriptions of the properties documents including site plans, and the location of monuments at the properties. The Barsher short plat contained markings indicating the location of corners set with monuments at the time the short plat was recorded. It showed five foot building setbacks from the new lot lines for future construction. Barsher filed site plans in 1990 for the construction of what is now the Stern residence, indicating the location of the home would be five feet from the property line. Terrane also reviewed a site plan for a garage constructed on the McDonald property in 1994, showing the builder intended the garage be one foot from the property line. Terrane's line agreed with existing corners and occupation of the properties, lying five feet from Stern's residence and one foot from McDonald's garage. The Terrane line resulted in 40 feet of waterfront on both Stern's and McDonald's properties, which Green testified reflected both code and the intent of the platters. At the time the respective lots were subdivided, the City of Mercer Island required lots to be 40 feet wide to build a dock.

Stern relied on a survey by Trevor Lanktree. Lanktree's field crew found a monument he identified as marking the corner of government lot 2, a 3-inch brass disk, buried three feet under the dirt. Lanktree based his survey on this monument, and opined that "hard monuments in the street" are the most reliable. According to Lanktree's survey, based on calculating the deed line from this monument, the chain link fence fell on the Stern side of the boundary line. Lanktree did not use the local monumentation around the Hobbs or Barsher short plats. These local monuments did not align with Lanktree's survey. Lanktree testified the local monuments could not be reconciled with the deed line, and that the original platter for the McDonald property subdivision found monuments on the Barsher plat "north of . . . where they had put their line," which he described as an "age consistency" supporting his location of the property line. Although Lanktree did not say so explicitly, he presumably meant the local monuments were displaced northward, meaning the true property line was further to the south than the local monuments implied. According to Lanktree's survey line, McDonald's waterfront is 38.5 feet, and Stern's is 41.5 feet.

Lanktree conceded monuments can be disturbed or moved or destroyed over time. Lanktree could not give an exact date for when the government lot 2 corner monument was installed. When asked if the replacement monument his team found was...

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