Wallahan v. Black Hills Elec. Co-op, Inc.

Decision Date23 May 1994
Docket NumberINC,CO-O,No. 18526,18526
Citation523 N.W.2d 417
PartiesFrank WALLAHAN, Appellee, v. BLACK HILLS ELECTRIC, Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Samuel D. Kerr of Wallahan, Banks & Eicher, Rapid City, for appellee.

Steven J. Oberg of Lynn, Jackson, Shultz & LeBrun, Rapid City, for appellant.

ERICKSON, Circuit Judge.

Black Hills Electric Co-op, Inc. (BHEC) appeals a jury verdict awarding Franklin J. Wallahan (Wallahan) compensatory and treble damages for trespass and excessive trimming of trees on his property. We reverse and remand for a new trial.

FACTS

Since 1947, BHEC has maintained electrical lines and poles across the property now owned by Wallahan. BHEC believed it held a valid easement to enter and maintain those lines, executed by prior owners. That easement was never filed and contained several errors, particularly concerning the description of the land. Nonetheless, Wallahan knew of the existence of the lines at the time of purchase and contracted with BHEC to furnish electricity to his summer home.

In January 1989, BHEC had five trees on Wallahan's property near their 7200 volt power line topped or trimmed. Three of those trees are the subject of this action. A 35 foot spruce was topped off, losing approximately 8 feet of foliage and the branches facing the power line on two ponderosa pines were trimmed back to the trunk.

Wallahan brought his action against BHEC on liability theories of trespass and excessive damages. However, under either of these theories, the gist of his complaint is excessive trimming.

On appeal BHEC raises four issues dealing with the trial court's instructions. They are:

(1) Did the trial court's instructions concerning compensatory damages for injury to trees improperly expand the measure of damages?

(2) Did the trial court's instructions concerning treble damages improperly mandate that the jury was required to award treble damages?

(3) Were the trial court's instructions concerning the law of trespass proper given BHEC's lawful entry onto the property pursuant to legislative enactment?

(4) Were the trial court's instructions concerning the formalities of conveying a valid easement correct?

ANALYSIS
Standard of Review

"A trial court is to present only those instructions which are supported by competent evidence in the record." Schelske v. South Dakota Poultry Co-op, 465 N.W.2d 187, 190 (S.D.1991). In determining whether instructions are proper, this Court examines the record giving the evidence the most favorable construction it will reasonably bear to determine whether there is "some evidence bearing on the issue." Gerlach v. Ethan Coop Lumber Ass'n, 478 N.W.2d 828, 830 (S.D.1991). If there is some evidence bearing on the issue, the trial court's instructions will not be disturbed.

Additionally, the complaining party must have properly objected to the instruction in order to preserve the issue on appeal, or the improper instruction becomes the law of the case. Shaull v. Hart, 327 N.W.2d 50, 53 (S.D.1982).

1. The trial court's instructions on compensatory damages were correct.

BHEC argues that Wallahan improperly sought compensation for the entire value of the trees, when the trees remained healthy, were not severed from the land, and there was no measurable effect on market value. Wallahan argues that he merely sought damages for loss of the trees themselves as shade and ornamental trees.

In computing damages, Wallahan utilized a method developed by the International Society for Arboriculture and approved by the Council of Tree and Landscape Appraisers. The U.S. Department of Agriculture through its Cooperative Extension Service makes this publication available. Wallahan's expert testified that this is one of several accepted methods of assessing injury and thus damage to trees.

The Trial Court instructed as follows:

Jury Instruction No. 25

The measure of damages to be applied by you in this case, where plaintiff has brought suit to recover the loss in value of the trees themselves for damages resulting from defendant's cutting and/or trimming of said trees, is the diminution in the value of the trees themselves including, but limited to, the cost of replacement of those damaged trees, the loss of shade or ornamental value of the trees, and/or the loss of aesthetic value of those trees, rather than a diminution in the value of the property. (emphasis added).

Jury Instruction No. 26

Plaintiff is not restricted to recovering only the loss of the market value of his property from which trees have been damaged or injured. Damages for the destruction of or injury to plaintiff's trees may be properly measured by the resulting aesthetic loss or by the resulting deprivation of the comfort and convenience which the trees provided to plaintiff.

Therefore, if you find that defendant unnecessarily and/or unreasonably cut and trimmed plaintiff's trees, you may award plaintiff damages for the deprivation of his convenience, comfort and enjoyment of the land from which the trees were wrongfully cut by defendant, even though the market value of plaintiff's property might not be diminished. (emphasis added).

BHEC argues that the proper measure of damages is the effect, if any, on the realty upon which the trees stand. Bailey v. Chicago M. & St. P. Ry. Co., 3 S.D. 531, 54 N.W. 596, 597 (1893). However, Bailey, supra, is distinguished from the instant case in that in Bailey, the trees and shrubbery were completely destroyed. The Supreme Court held:

[The] rule of damages depends upon the purpose and character of the action. A party injured may ... recover the value of such trees, not as a part of the realty, but their intrinsic value as detached and separated therefrom, and proved in the usual mode of proving value. (emphasis added).

Wallahan and his expert introduced evidence based on a computed method or formula now accepted by landscape appraisers and utilized by the federal government as an accepted mode of proving the value of injury to trees. Bailey, supra, decided over 100 years ago, recognized that the method of proving value might change as society progressed. The jury was provided several accepted measures of damages. It was free to decide this issue based upon whatever accepted mode of proving value it choose to find more credible. We believe the instructions of the court properly reflected these varied, but accepted modes of proving value.

2. The question of treble damages is a jury question.

BHEC argues that Instruction 28 1 wherein the trial court stated the jury "must" award treble damages improperly denied the jury the right to decide this factual issue.

The wrong protected against in SDCL 21-3-10 is not the unlawful entry onto the land, but rather the injury to the trees. The meat of this argument is whether SDCL 21-3-10 assesses treble damages for mere acts of negligence. SDCL 21-3-10 allows treble damages for wrongful injury to trees, unless the "trespass was casual and involuntary, or committed under the belief that the land belonged to the trespasser, or where the wood was taken" for a highway.

Before the trial court, BHEC agreed that its acts did not fall within the definition of "casual and involuntary" trespass, since it intended to enter the land for the purpose of trimming trees. Nor did its actions fit the other two exceptions set forth in SDCL 21-3-10. Rather, BHEC argues that acts of good faith, or reasonable belief should also exclude the imposition of treble damages.

Throughout, BHEC's position was that its conduct was done under a claim of right, i.e. an easement and/or legislative enactment. As such, BHEC was not a trespasser in the ordinary sense. BHEC's "good faith" exception is premised on the theory that it should be able to argue to a jury that the treble damages provision of SDCL 21-3-10 does not apply to non-traditional trespass situations.

Our statute does not specifically create a "good faith" exception to the imposition of treble damages for wrongful injury to trees, except in the three instances delineated. BHEC, relying primarily on Regan v. Moyle Petroleum Co., 344 N.W.2d 695, 697 (S.D.1984), argues that the South Dakota Supreme Court has created a "good faith" exception in the absence of such wording in punitive damages statutes. Unlike the situation in Regan, supra, this statute is not open ended. Three specific exceptions were created by the legislature.

At best, BHEC's authority to enter onto the property was limited to what was reasonable and necessary to maintain its transmission lines. Its liability, if any, is for abuse of its privilege to operate upon Wallahan's property, or the concept of trespass ab initio. See Restatement (Second) of Torts Sec. 214. While the term "trespass" encompasses this circumstance as well as all other commonly used definitions of the term, that issue is not particularly relevant to this action since the treble damages provision relates not to the illegal entry, but rather injury to the trees. The emphasis has been mistakenly placed upon the concept of trespass, when the true focus of the statute is the "wrongful injury" to the trees.

SDCL 21-3-10 is a "multiple damage" statute. K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529, 532 (S.D.1983). Its treble damage provision, in the absence of one of three exceptions, is keyed when the jury determines that the injury was "wrongfully" inflicted.

The term "wrongfully" is not a term of art. 101 C.J.S. Wrongful p. 643. "The allegation that an act is wrongfully done is really a conclusion of law." 71 C.J.S. Pleading Sec. 32b. "Whenever [a] legal right is infringed and harm results ... a 'wrong' occurs, whether it be of omission or commission." Skovgaard v. The M/V Tungus, 252 F.2d 14, 17 (3rd Cir.1957). Generally, it means "injurious, heedless, unjust, reckless, unfair." Buhler v. Marrujo, 86 N.M. 399, 524 P.2d 1015, 1019 (C.A.1974).

Thus, if the jury were to find that in...

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