Baglio v. Gulf Coast Casualty Insurance Co.

617 So. 2d 197, 1993 La. App. LEXIS 1408, 1993 WL 105688
CourtLouisiana Court of Appeal
DecidedApril 7, 1993
DocketNo. 92-572
StatusPublished
Cited by1 cases

This text of 617 So. 2d 197 (Baglio v. Gulf Coast Casualty Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baglio v. Gulf Coast Casualty Insurance Co., 617 So. 2d 197, 1993 La. App. LEXIS 1408, 1993 WL 105688 (La. Ct. App. 1993).

Opinion

YELVERTON, Judge.

The City Court of Wards 9, 10, and 11 of Pineville, Louisiana, found that the defendant had crossed plaintiffs’ marked property line and harvested plaintiffs’ trees without the plaintiffs’ consent. Pursuant to LSA-R.S. 3:4278.1, the court held the defendant liable for three times the value of the timber plus attorney’s fees. Among other damages, the court awarded $1,000 for loss of esthetic value and $500 to each plaintiff for mental distress. The defendants appealed. We amend in part and affirm.

FACTS

Daniel and Kathy Baglio, plaintiffs, purchased a rural home on a 2.324 acre lot in Rapides Parish. Their lot was bordered on the east by the western right-of-way of Louisiana Highway #115 (which runs north and south). When purchasing their house and lot, the Baglios also acquired a small, narrow strip of wooded land immediately across the highway. This strip measured approximately 25 feet in width from east to west and about 173 feet in length from north to south. The front of the Baglios’ house faces the wooded strip.

Daniel testified that he and his wife purchased the land across the highway because they “enjoyed being surrounded by wooded areas.” Furthermore, the Baglios wished to prevent others from building structures and improvements that could be viewed from their house.

Richard Gammenthaler, one of the defendants in this case, owns a 33 acre lot to the east of the Baglios’ narrow strip of woods. The property line between Gammenthaler’s lot and the Baglios’ strip is marked by two three-feet-high stakes with red flags. One stake is located at the northeast corner of the Baglios’ strip; the other is at the southeast corner. These two stakes are 173.2 feet apart.

Gammenthaler sold the timber on his 33 acre tract to King Ray-McCann, another defendant in this case. McCann is an experienced logger who has been involved in the logging industry since his childhood. Delivery of the timber was to take place by McCann and his logging outfit coming onto Gammenthaler’s property and harvesting the timber. Gammenthaler described his property to McCann and gave him a legal description and a plat which depicted his property boundaries. He did not, however, go out on the property and physically point out the boundaries.

On the morning of April 5, 1991, the Baglios were getting ready to go to work when they heard the noise of trees being harvested. Daniel emerged from his house and walked across the highway to discover that one of McCann’s employees had cut down a tree on his wooded strip. McCann was not on the scene at this time; however, his logging partner was there and offered Daniel $100 for the tree. Daniel accepted. He and his wife then went on to work.

The Baglios thought that the $100 tender would be the end of their problems with McCann. However, about two weeks later, Daniel discovered that McCann’s logging outfit had in fact cut several of his trees and trampled over parts of his property with a skidder — a piece of heavy machinery used in tree harvesting. When the Baglios confronted McCann, he refused to pay anything further, feeling that his $100 tender was more than generous.

The Baglios then hired Steven Templin, a professional forester, to appraise the damage that McCann’s logging operation had done to their woods. By applying current market data to his measurements and observations, Templin estimated the following damages: (1) $142.37 merchantable timber loss, (2) $105 premerchantable timber loss, (3) $500 for clean up of limbs and logging debris, (4) $150 for insecticide treatment of wounds and gashes that the logging opera[199]*199tion inflicted on standing trees, and (5) $250 for the appraisal itself. Templin did not quantify esthetic damages; however, he noted that the wooded strip no longer shielded the Baglios’ view of the adjacent property. Although McCann disagreed with these estimates, his testimony was never admitted as that of an expert. No other evidence controverted Templin’s appraisal.

In its Reasons for Judgment, the trial court stated that McCann’s “negligence” was the sole and proximate cause of the Baglios’ damage. Therefore, it dismissed all claims against Gammenthaler. In addition to Templin’s estimated damages, the court found McCann liable for $1,000 in loss of esthetic value, treble damages for the merchantable timber, and $1,000 in general damages. McCann’s insurer, Gulf Coast Casualty Insurance Company, was held liable in solido with McCann for all of the above damages which totalled $3,432.11 plus interest. On top of this, the trial court awarded the Baglios $1,500 in attorney’s fees and $150 for Templin’s expert witness fee.

McCann complains that the trial court erred in awarding treble damages and attorney’s fees. McCann further argues that the trial court erred by awarding $1,000 in general damages.

OPINION

LSA-R.S. 3:4278.1 A prohibits the removal or destroying of trees from the land of another without the owner’s consent. § 4278.1 B makes all willful and intentional violators of Paragraph A liable in treble damages plus reasonable attorney’s fees. However, § 4278.1 C provides that good faith violators are liable in treble damages only for those trees cut or removed “across ownership lines, marked boundary lines, or outside of designated cutting lines.... ” Finally, § 4278.1 D makes a good faith violator liable for attorney’s fees if payment is not made within 30 days of notification and demand by the legal possessor.

TREBLE DAMAGES

The trial court described McCann’s actions as “negligent.” Accordingly, his actions could not have been willful or intentional. Therefore, the Baglios are not entitled to treble damages under paragraph B of § 4278.1.

Paragraph C, however, provides for treble damages when trees are removed across “ownership lines,” and “marked boundary lines.” The jurisprudence has consistently held that treble damages are awarded under Paragraph C only when there is a “visibly designated demarcation line” between the two properties. See Brown v. Bedsole, 447 So.2d 1177 (La.App. 3d Cir.), writ denied, 450 So.2d 358 (La.1984), and cases cited therein. Therefore, the issue in Paragraph C-type eases is usually whether the ownership line between the adjacent properties was visibly designated. Jones v. Don Edwards Timber Co., Inc., 516 So.2d 1256, 1259 (La.App. 2d Cir.1987). Such a determination is a finding of fact and subject to the manifest error rule. See Id.

Since the trial court did not find McCann in bad faith, we presume that it awarded treble damage under Paragraph C. The record shows that Gammenthaler gave McCann a legal description of the 33 acres on which he was to harvest timber. Gammenthaler also showed McCann a plat which depicted Gammenthaler’s boundary lines. Two wooden stakes, each three feet tall with red flags, marked the boundary between the Baglios’ strip of land and Gammenthaler’s 33 acre tract. These two stakes were separated by a distance of 173.2 feet. Templin testified that the stakes were obvious and apparent. Finally, McCann admitted that he or one of his crew should have seen the stakes. Upon these facts, we conclude that the trial court was not clearly wrong in finding that McCann had crossed a visibly designated line of demarcation between the Baglio and Gammenthaler properties. Accordingly, treble damages are appropriate.

McCann relies on Shaffett v. Vicks, 385 So.2d 419, 421 (La.App. 1st Cir.1980). There the First Circuit held that, if the [200]

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617 So. 2d 197, 1993 La. App. LEXIS 1408, 1993 WL 105688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baglio-v-gulf-coast-casualty-insurance-co-lactapp-1993.