Yakes v. Williams, 17244

• Decision Date: 17 May 1954
• Docket Number: No. 17244,17244
• Citation: 129 Colo. 427,270 P.2d 765
• Parties: YAKES et al. v. WILLIAMS et al.
• Court: Colorado Supreme Court

Page 765

270 P.2d 765

129 Colo. 427

YAKES et al. v. WILLIAMS et al.

No. 17244.

Supreme Court of Colorado, En Banc.

May 17, 1954.

Rehearing Denied June 7, 1954.

Mansur Tinsley, Roscoe Pile, Bernard P. O'Kane, Lakewood, for plaintiffs in error.

George J. Robinson, Ray A. Curran, Lakewood, for defendant in error.

HOLLAND, Justice.

Following May 14, 1951, defendants in error, the Williams constructed a cabin approximately sixteen by twenty feet on what was approximately one acre of ground, which included parts of lots 34 and 35 and all of lots 36 to 39 inclusive, in block one Brereton's Addition to Twin Spruce Park in Jefferson county, Colorado. This plot of ground originally was a part of approximately five hundred acres of timbered mountain land owned by Mrs. Brereton and she still owned much of the ground in the area of this plot.

On the date above mentioned Williams and his wife received a deed for the plot from Goodspeed, who apparently had 'guessed' off a corner at which there had been some wooden stakes, and later an iron pipe, and without any survey or exact knowledge as to boundaries, the Williams had posted an uncertain number of 'no trespass' signs on some trees, especially one on the supposedly south line of their property. The area generally contained timber suitable for mine props and timbers. Being in need of some extra funds, Mrs. Brereton, living in Denver, made it known to Frank Yakes, one of the plaintiffs in error, that she would like to sell some of the timber, thus thinning out the trees for the better growth of the younger and smaller trees. Yakes told her that he would contact a man who would be interested in buying and thereupon he contacted DiSalvo, another plaintiff in error, who accompanied Yakes to the area, and was given the general idea where the trees would be cut, all presumably on Mrs. Brereton's land. DiSalvo contacted Holtenbeck, another plaintiff in error, for the cutting and removing of the timber to a road which was near the property involved. Holtenbeck entered upon the property in the winter time with snow on the ground and removed the timber. Before Holtenbeck had completed his contract, Lowell Williams learned of what was happening, went to the property and had discussions by telephone and personally with all parties involved. He then went to the district attorney and this suit for trespass was instituted against all of the plaintiffs in error by a complaint filed June 27, 1952, in which complaint it was alleged that on or about the 9th day of February, 1952, defendants and each of them entered, or caused to be entered, upon his land in his possession and without leave, and there caused to be cut down and carried off and converted, one hundred twenty-one evergreen trees of the value of $1,200; that the land belonging to plaintiff was damaged and lessened in value to the amount of $3,500; that the acts of defendants were wrongful, malicious and wanton and by reason thereof, he demanded exemplary damages of defendants and each of them in the sum of $2,500. Defendants answered, denying each and every allegation contained in the complaint. Upon trial to a jury on April 14 and 15, in the district court of Jefferson county, the court gave the following instruction:

'Instruction No. 4

'You are instructed as a matter of law to find the issues on plaintiffs' complaint in favor of the plaintiffs and against the Defendant Holtenbeck.'

The jury returned a verdict of $300 exemplary damages against Holtenbeck; another verdict in favor of plaintiff against Yakes for exemplary damages of $300; and another verdict for exemplary damages of $300 against DiSalvo; and a general verdict for damages to the land of $750 and value of the trees removed $250. Motion for new trial was dispensed with and a writ of error was duly issued.

Plaintiffs in error for review, summarized their argument by contending that it was necessary for the Williams, defendants in error, to prove that the acts complained of occurred on their property, and that the trees cut belonged to them; that this proof should be by competent evidence and not by hearsay; and that in the absence of anything except hearsay testimony, the court should have permitted the jury the opportunity of rejecting them if incredible; that the giving of instruction No. 4, above set out, made this hearsay evidence conclusive not only against Holtenbeck, but against DiSalvo and Yakes as well; and further, that the court should have given tendered instructions and did give instructions over the objections of counsel; and particularly the instruction as to exemplary damages, because there was no justification in the evidence for such instruction.

The record does not contain the objections that were unquestionably made to the instructions, because we find under date of September 18, 1953, that counsel in the case appeared before the trial court with respect to settling certain objections to the reporter's transcript, at which time counsel stipulated that counsel for plaintiffs in error did object to the giving of instruction No. 4. Then counsel for plaintiffs in error moved the court for an order that the record be amended to show that counsel for defendant objected to the giving of instruction No. 7.

'The Court: The Court will deny this motion, but in so doing wishes to state that at the time of arguing the instructions at the trial of this case the regular reporter, who had reported the greater part of the trial, was called away on account of sickness and that a substitute reporter did not get down the objection or objections which were made to instructions at that time. The Court does recall that there was an argument with reference to certain instructions, but just which instructions we cannot recall at this time. So our ruling in denying the motion is based merely upon the fact that the defendants are in the position of not being able to show what objection or objections were in fact made, other than the one that has been stipulated to, and we call this a very unsatisfactory situation.'

It thus is to be seen that we are not in a fair position to discuss the claimed error in the giving of instructions. We cannot determine what was called to the trial court's attention by objections that it is made certain were made and were not in the record; however, we feel that it is necessary only to...