STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-924
BESSIE L. OTWELL
VERSUS
DIVERSIFIED TIMBER SERVICES, INC., ET AL.
************
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT, PARISH OF LASALLE, NO. 32,074, HONORABLE J. P. MAUFFRAY, JR., DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Michael G. Sullivan, Judges.
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.
J. Christopher Peters Attorney at Law Post Office Box 2387 Jena, Louisiana 71342 (318) 992-7693 and Wm. Henry Sanders Attorney at Law Post Office Box 1363 Jena, Louisiana 71342 (318) 992-8257
Counsel for Plaintiff/Appellee: Bessie Otwell, and Intervenor/Appellee: William Henry Sanders Robert G. Nida Gold, Weems, Bruser, Sues & Rundell 2001 MacArthur Drive Alexandria, Louisiana 71307 (318) 445-6471 Counsel for Defendants/Appellants: Jesse V. Moffett, Jr. B & S Timber, Inc. David Barker Kenny Barker SULLIVAN, Judge.
Defendants, Jesse Moffett, Jr., B & S Timber, Inc., David Barker, and Kenny
Barker, appeal a judgment awarding treble damages for timber trespass and general
damages to Plaintiff, Bessie Otwell Sanders, and general damages to Intervenor,
William Henry Sanders. For the following reasons, we affirm in part, reverse in part,
and render.
Factual and Procedural Background
This timber trespass suit involves a disputed 3.12-acre tract of land in LaSalle
Parish, Louisiana. On February 22, 2001, Mr. Moffett sold the timber on the disputed
tract to B & S Timber, which then contracted with David and Kenny Barker to cut
and haul the timber. At the time of the sale, Mr. Moffett considered himself to be the
record owner of the disputed property, believing that it was contained within a
16-acre tract that he acquired from E. E. Jones on August 27, 1955.
On April 9, 2001, Mrs. Sanders filed the present suit in which her husband,
Mr. Sanders, subsequently intervened as a Plaintiff. Mrs. Sanders alleged that, on
September 22, 1967, she acquired a right of use and habitation from her grandfather,
Terry Brown, over twenty-four acres known as the “Terry Brown Estate,” which
included the disputed property, and that, on January 8, 1968, she acquired title from
her grandfather to a portion of that estate. She also pled ownership through ten and
thirty years acquisitive prescription. Mr. Sanders’ intervention is based upon a right
of use and habitation granted by Mrs. Sanders’ mother, Margaret Otwell, to both
Mr. and Mrs. Sanders on May 10, 1968, over “[a]ll that property commonly known
as the Terry Brown Estate.” In a prior unpublished opinion involving a possessory
action between Mrs. Sanders and Mr. Moffett, this court affirmed the trial court’s
determination that Mrs. Sanders was in possession of the disputed property. Otwell v. Moffett, 02-731 (La.App. 3 Cir. 11/13/02), 836 So.2d 705, writ denied, 03-434 (La.
4/21/03), 841 So.2d 806.
The “Terry Brown Estate” was once part of the Charles McBride Riquet No.
39, a government land grant of 643 acres made on March 3, 1807. In the grant, the
eastern boundary of the Charles McBride Riquet was described as “the waters of [the
east prong of] Hemphill’s Creek.” The eastern boundary of the riquet was eventually
designated as the boundary between Section 39 and Section 24 of Township 8 North,
Range 3 East. Mr. and Mrs. Sanders contend that, sometime in the 1930’s, the
government straightened out a curve in the east prong of the creek, moving the bed
to the west of its original path, but that the boundary between Section 39 and Section
24 did not change. The disputed property lies between the present location of the
creek and the “old slough,” a natural monument believed to be the ancient creek bed.
Mr. Moffett’s 1955 deed describes the western boundary of his 16-acre tract as the
“East line of the Charles McBride Riquet No. 39,” which he contends is the present
location of the creek.1
After a bench trial, the trial court found that Mr. and Mrs. Sanders failed to
prove record or just title to the disputed acreage because they did not establish when
or how the creek bed was altered, i.e., they did not prove that “the waters of Hemphill
Creek” flowed through the “old slough” at the time of the government land grant in
1807. However, the trial court did find that Plaintiffs proved title to the property
1 In yet another action between these parties, a boundary dispute, this court reversed summary judgment in favor of Mr. and Mrs. Sanders, finding that a genuine issue of material fact existed as to whether Hemphill Creek was navigable at the time the boundary between Sections 34 and 29 was set by the official government survey in 1883. Sanders v. Moffett, 03-231 (La.App. 3 Cir. 10/1/03), 856 So.2d 1244. At the conclusion of the present case, the trial court issued a ruling stating: “At trial it was clear that the East fork of Hemp’s Creek, no matter where i[t] was located at any time, was never navigable at any time pertinent to the resolution of this suit or any other suit between these parties.”
2 through thirty years acquisitive prescription. The trial court then awarded
Mrs. Sanders, as owner of the disputed property, treble damages for timber trespass
under La.R.S. 3:4278.1(C), totaling $40,431.15, and general damages of $1,800.00,
and awarded Mr. Sanders general damages of $4,200.00 for interference with his right
of use. After receiving post-trial briefs, the trial court then set expert witness fees of
$20,321.50 for Plaintiffs’ surveyor, $800.00 for Plaintiffs’ forester, and $900.00 for
Defendants’ surveyor.
Acquisitive Prescription
In their first assignment of error, Defendants argue that the trial court erred in
finding sufficient corporeal possession to establish ownership by thirty years
acquisitive prescription.
Ownership of immovable property may be acquired by the prescription of thirty
years without the need of just title or possession in good faith. La.Civ.Code art. 3486.
Corporeal possession sufficient to confer prescriptive title must be continuous,
uninterrupted, peaceable, public, and unequivocal. La.Civ.Code art. 3476. “For
purposes of acquisitive prescription without title, possession extends only to that
which has been actually possessed.” La.Civ.Code art. 3487. “Actual possession must
be either inch-by-inch possession . . . or possession within enclosures. According to
well-settled Louisiana jurisprudence, an enclosure is any natural or artificial
boundary.” La.Civ.Code art. 3426, comment (d).
As the supreme court explained in Liner v. Louisiana Land & Exploration Co.,
319 So.2d 766, 772 (La.1975), “[t]he concept of possession is neither simple nor
precise.” Thus, “the corporeal possession requisite in the case of agricultural land
should not be the same as that in the case of wood land or swamp land. . . .” Id.
3 “Whether a party has possessed property for purposes of thirty-year acquisitive
prescription is a factual determination by the trial court and will not be disturbed on
appeal unless it is clearly wrong.” Secret Cove, LLC v. Thomas, 02-2498, p. 6
(La.App. 1 Cir. 11/7/03), 862 So.2d 1010, 1016, writ denied, 04-447 (La. 4/2/04), 869
So.2d 889.
Mr. Sanders testified that his wife acquired title from her grandfather to the
land between the present channel and the old slough and that he began timber
management on this property, as well as on other lands, at her request. It is
undisputed that sometime in 1967, Mr. Sanders began marking trees on the perimeter
and throughout the disputed property, some of which were inscribed with his wife’s
registered brand, the initials “BO” over a half-moon. Other trees were inscribed with
the initials “CM,” designating those trees that Mr. Sanders set aside for another
individual, Chris Moss. Mr. Sanders explained that he “hacked trees for a long period
of time” so that “anyone passing through there [would] know that this land was
occupied by somebody” and that he wanted to let anyone “without knowledge of the
boundary [to] know that this property was occupied by . . . someone with apparent
brand or someone with initials.” He testified that, in no uncertain terms, he told
Mr. Moffett that the boundary between their lands was the old creek bed, around
which he found old generations of fencing, even though the land was not fenced
recently. In addition to marking trees, Mr. Sanders ran off trespassers, cut an existing
fence to make a riding trail, shot hogs, hunted wood ducks, and harvested berries. He
testified that he placed the property in a hunting club that posted signs and erected
deer stands. He also took an interest in the property as “heritage property,” searching
for Indian artifacts and investigating old sites such as a mill believed to have been
4 burned during the Civil War. According to Mr. Sanders, he has never been “run off”
the property, and the only evidence of another’s possession occurred when his
original markings on the trees were painted over with blue-green paint. He then hired
someone to apply red paint over the blue-green paint. Charles Moffett, the son of
Mr. Jesse Moffett, testified that the painting over Mr. Sanders’ markings would have
occurred between his retirement in 1999 and the cutting of the timber in 2001.
In commenting on the number and frequency the trees marked, the trial court
stated: “I find as a fact that it was many, many trees. If it was 200 trees that wouldn’t
be . . . an underestimate of how many trees had marks on ‘em. And with that many
marks on that many trees on that small a piece of land, you knew that somebody was
laying claim to it.” The trial court’s finding regarding the number of trees marked is
supported, in part, by the testimony of Mr. Moffett, who stated that there was “paint
on everything,” not only by the borders but also “everywhere else.” Considering the
number of trees involved and Mr. Sanders’ other activities on the property, we find
the case cited by Defendants, Albert Hanson Lumber Co. v. Baldwin Lumber Co.,126
La. 347, 52 So. 537 (1910), is distinguishable, where the party claiming possession
marked only on the four corners of the property.
Treble Damages
In their second assignment of error, Defendants argue that the trial court erred
in awarding treble damages under La.R.S. 3:4278.1(C), even though the trial court
stated that Mr. Moffett was in “good faith” when he contracted for the cutting of the
timber.
Louisiana Revised Statutes 3:4278.1 (emphasis added) provides in part:
A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct
5 his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney’s fees.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.
D. If a good faith violator of Subsection A fails to make payment under the requirements of this Section within thirty days after notification and demand by the owner or legal possessor, the violator shall also be responsible for the reasonable attorney fees of the owner or legal possessor.
In the present case, Mr. Moffett testified that he knew as early as 1966 that
Mr. and Mrs. Sanders intended to claim the property east of the present creek bed,
based upon a conversation that he had with Mrs. Sanders’ father, John Otwell.
Although he believed that his title extended to the present creek bed, he also knew
how long Mr. Sanders had been marking trees on the property. Additionally,
Mr. Moffett recalled informing the owner of B & S Timber, Ronnie Jameson, that
there would be a controversy about the cutting of the timber. Based upon this record,
we cannot conclude that the trial court erred in awarding treble damages under
La.R.S. 3:4278.1(C).
Mr. Sanders’ General Damages
In their third assignment of error, Defendants argue that the trial court erred in
awarding general damages to Mr. Sanders , who was neither an owner of the property
6 nor one possessing for himself. In awarding general damages, however, the trial
court found that Mr. Sanders perfected a right of use over the disputed property
through acquisitive prescription. Mr. Sanders’ claim was based on the 1968
document granting him and his wife a right of use and habitation over “[a]ll that
property commonly known as the Terry Brown Estate.” Although the trial court
concluded that this document did not establish just title over the disputed property,
the trial court found that Mr. Sanders believed that the Terry Brown Estate extended
to the “old slough” and that he exercised his right of use over that property.
The right of use is defined as a personal servitude that “confers in favor of a
person a specified use of an estate.” La.Civ.Code art. 639. Under La.Civ.Code art.
645, the right of use “is regulated by application of the rules governing usufruct and
predial servitudes to the extent that their application is compatible with the rules
governing right of use.” As noted in comment (b) to La.Civ.Code art. 3446,
acquisitive prescription applies to real rights such as usufruct and apparent servitudes.
Comment (c) to La.Civ.Code art. 544 also states acquisitive prescription is an
additional method for the creation of usufruct. Based upon the above, we do not find
that the trial court erred in awarding Mr. Sanders general damages for interference
with his right of use over the disputed property.
Value of the Timber
In their fourth assignment of error Defendants argue that the trial court erred
in basing its award of damages on the price at the mill for the harvested timber rather
than on the fair market value of the timber as provided in La.R.S. 3:4278.1(C).
Plaintiffs’ forestry expert, F. L. Johnson, testified that the timber removed from
the property had a value of $13,477.05. Mr. Johnson also acknowledged, however,
7 that the landowner would not receive that amount from the mill because his
calculations did not include deductions for logging costs, which could vary greatly.
Defendants introduced documentation showing that B & S Timber received
$11,017.57 in payments from three mills, from which Mr. Moffett was paid
$5,340.32.
In accepting Mr. Johnson’s figure as the measure of damages under La.R.S.
3:4278.1, the trial court relied on Carroll v. International Paper Co., 94-302, p. 7
(La.App. 3 Cir. 11/2/94), 649 So.2d 474, 478, writ denied, 94-2924 (La. 2/17/95), 650
So.2d 259, in which this court, in quoting the trial court’s reasons, stated:
The defendant argues that plaintiffs’ loss is stumpage value. Such a calculation does not compensate the plaintiffs for their loss. Not only have they lost the standing timber, but they have lost their right to determine the timing and conditions of sale of their own property. Given the current value of standing timber, this is a substantial loss. Additionally, they have lost the opportunity to enjoy their property in its prior state, and that loss cannot be replaced in the near future. Although INTERNATIONAL PAPER COMPANY was not in bad faith, a mistake of this magnitude requires the application of treble damages. Based upon the evidence presented, the market value of the timber taken is $38,988.11.
This court in Carroll, however, did not define “fair market value” as provided
in La.R.S. 3:4278.1(C) and did not elaborate on the calculation of the value ultimately
accepted. The second circuit in McConnico v. Red Oak Timber Co., 36,985, p. 11
(La.App. 2 Cir. 5/16/03), 847 So.2d 191, 198 (emphasis added), after a detailed
discussion of La.R.S. 3:4278.1 and the law prior to its enactment, determined that
“fair market value”as provided therein “refers to the amount a purchaser would pay
for standing timber to be cut and removed.”2
2 See also Cole-Gill v. Moore, 37,976 (La.App. 2 Cir. 12/19/03), 862 So.2d 1197, writ denied, 04-446 (La. 4/30/04), 872 So.2d 501, in which the parties stipulated that the value of the timber was equal to the revenue earned by the timber cutter less the costs of hauling and cutting.
8 As explained in McConnico, prior to 1974, the jurisprudence established that
the measure of damages owed by a timber trespasser depended upon his moral
culpability: a trespasser guilty of “moral bad faith” was liable for the “converted
value” of the timber without deductions for costs and expenses; one guilty of “legal
bad faith” was allowed to deduct his actual expenses in converting timber to lumber
in assessing damages; and a trespasser in “good faith” was only liable for “stumpage
value.” With the enactment of the timber trespass statute in 1974 (originally
designated as La.R.S. 15:1478.1), the legislature retained the degrees of culpability,
but fixed a single measure of damages for one in moral or legal bad faith as three
times the “fair market value” of the of the trees cut, felled, destroyed, removed, or
diverted, a term that had not been used in the prior jurisprudence. (The legislature
also added attorney fees as a penalty for one in moral bad faith.) Given that the
statute introduced the additional penalties of treble damages and attorney fees in
certain instances, we agree with the McConnico court’s interpretation of the term “fair
market value.” Accordingly, we find that the trial court erred in not considering the
costs of logging and hauling in setting the fair market value of the timber removed.3
The only evidence of such costs is that provided by Defendants, which is the
difference between what the mills paid B & S Timber and what Mr. Moffett received,
or $5,677.25. Deducting this amount from the mill value of the timber as fixed by the
trial court, $13,477.05, we find the fair market value of the timber cut to be
3 The impact of this statutory scheme is illustrated as follows. Under the jurisprudence before 1974, Mr. Moffett would have been in legal bad faith, i.e., one who believed himself to be the owner of the timber but who should have known otherwise. Under those circumstances, his liability would have been reduced by the actual expenses of converting the timber. Given the figures that he introduced as to mill payments and expenses, his liability under the prior law would have been limited to $5,340.32. Under our interpretation of the present statute, as one who is in good faith but who should have been aware of certain circumstances, Mr. Moffett is liable for over three times that amount for the same conduct.
9 $7,799.80. Accordingly, Mr. Moffett is liable to Mrs. Sanders for three times
$7,799.80, or $23,399.40, under La.R.S. 3:4278.1(C). Because Defendants have not
contested the amount of general damages awarded to Mrs. Sanders, that award is not
disturbed.
Expert Fees
In their final assignment of error, Defendants argue that the trial court erred in
fixing the expert witness fees for Plaintiffs’ surveyor, Mark Tooke, at $20,321.50,
contending that Mr. Tooke’s bills included worked performed on other cases
involving the disputed property, that his work was cumulative of lay testimony, and
that the trial court largely ignored his findings.
Louisiana Revised Statutes 13:3666(A) provides:
Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
In McKoin v. Harper, 37,984, pp. 3-4 (La.App. 2 Cir. 12/10/03), 862 So.2d
410, 412-13 (citations omitted), the court explained:4
Witnesses called to testify as expert witnesses shall be compensated for their services, with the amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. An expert witness is entitled to reasonable compensation for his court appearance and for his preparatory work. The trial judge is not required to set an expert fee at the amount charged by the expert witness and has great discretion in awarding and fixing costs and expert fees. However, a trial court’s assessment of costs can be reversed by an appellate court upon a showing of abuse of discretion.
4 In McKoin, the appellate court found that the trial court erred in not awarding the successful plaintiffs in a boundary action their total surveying costs, thereby raising the expert fees from $60.000.00 to $81,231.20.
10 Factors to be considered by the trial judge in setting an expert witness fee include time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments and skill of the expert. Additional considerations include helpfulness of the expert’s report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases.
In setting Mr. Tooke’s fee, the trial court stated in its reasons for judgment:
[Mr. Tooke’s] knowledge, skill, experience, training and education permitted him to provide the trier of fat with assistance in understanding the physical evidence and determining several facts in issue in this case. Not only did Mr. Tooke furnish several plats and diagrams which were helpful to the court, but he was also able to explain to the trier of fact the art and science of surveying and the precepts, rules and other techniques used by surveyors in the past and present to establish the confines of estates on the ground.
In reviewing Mr. Tooke’s total statements of $24,646.50, the trial court found
that $7,346.50 was attributable solely to work performed in this case. Concerning the
remaining invoices, the trial court determined that seventy-five percent of the
remaining work related to issues in the present suit, although the work may have been
performed in all four suits concerning the subject property. From the trial court’s
remarks, it is clear that the trial court relied on Mr. Tooke’s testimony to better
understand the art of surveying. The trial court also relied on Mr. Tooke’s plats in
fixing the boundary in the judgment of possession attached to the judgment issued in
this suit. We find no abuse of discretion in the fixing of expert witness fees.
Decree
For the above reasons, the judgment of the trial court is reversed in part to
reduce the treble damages payable to Mrs. Sanders under La.R.S. 3:4278.1(C) to
$23,399.40. In all other respects the judgment is affirmed. Costs of this appeal are
assessed two-thirds to Defendants and one-third to Plaintiffs.
11 AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.