Breiding v. Wells

800 S.W.2d 789, 1990 Mo. App. LEXIS 1787, 1990 WL 198153
CourtMissouri Court of Appeals
DecidedDecember 11, 1990
DocketNo. 17103
StatusPublished
Cited by9 cases

This text of 800 S.W.2d 789 (Breiding v. Wells) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Breiding v. Wells, 800 S.W.2d 789, 1990 Mo. App. LEXIS 1787, 1990 WL 198153 (Mo. Ct. App. 1990).

Opinion

SHRUM, Judge.

This is an appeal from a judgment for plaintiffs in a court-tried case against defendants Larry Wells (hereafter Wells), Leon F. Cain, Jr. (hereafter Leon, Jr.), and Vickie Cain (hereafter Vickie) for $3,500.00 actual damages for trespass to real estate, which were trebled “pursuant to Section 537.340 R.S.Mo., to the amount of ... $10,-500.00, and additional damages in the sum of $1,200.00 for clean up damages computed against Defendants.”

Plaintiffs owned 5 acres in Hickory County, Missouri, near Lake Pomme de Terre. Defendant Leon, Jr., and his wife1 owned 49.38 acres which adjoined plaintiffs’ property. Three acres of plaintiffs’ property were located at the southeast cor[791]*791ner of the property of Leon, Jr., and his wife. Leon, Jr., wanted to be able to drive around the boundary of his land so he hired Wells to circle his land with a bulldozer. Wells performed the work. In doing so, he pushed out a 48-50 foot wide strip of trees on plaintiffs’ land 361 feet in length east and west and 260 feet in length north and south. Wells didn’t know where the boundary lines were when he pushed the trees out but acted at the direction of Leon, Jr. The boundary line between the parties was not surveyed before the trespass. Leon, Jr., relied on an old fence line, “measuring out from our back to the southeast corner.” Leon, Jr., determined after the trespass that the old fence line was wrong, “[i]t’s a mistake.”2 Additional evidence concerning damages will be set forth as necessary to dispose of Point II.

Plaintiffs’ single-count petition does not specifically refer to § 537.340 but pleads a trespass by defendants, “contrary to the form of the statute” and prays for treble damages. Defendants filed a general denial. During pretrial, plaintiffs’ counsel declared that the case was brought under § 537.3403 as a trespass on realty. The record is clear, and the trial court’s judgment4 reflects, that the case was tried, submitted and decided on the basis of § 537.340.

In Point II, defendants argue that the proper measure of damages for a § 537.340 trespass action is the value of the trees damaged or destroyed (rather than before and after value of the land). They claim that the trial court erred in entering the judgment because plaintiffs failed to adduce “evidence ... of the number and ‘fair market value’ of the bulldozed trees so that the judgment is based only on speculation [and] is not supported by substantial evidence .... ” This court is obliged to affirm the trial court’s judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Tracy v. Tracy, 791 S.W.2d 924, 926 (Mo.App.1990).

Review of the record in this case has generated a firm belief that there is no substantial evidence to support the judgment as to the amount of damages and that the law has been erroneously applied. The reasons are as follows. Ordinarily, the measure of damages in a § 537.340 action is the market value of the property at the time it was removed from the land. Mo. Damages, § 15.55 (Mo. Bar 1988); Giudicy v. Giudicy Marble, Terrazzo & Tile Company, 329 S.W.2d 664, 669 (Mo.1959). See also Keener v. Black River Electric Co-Operative, 469 S.W.2d 657, 659 (Mo.App.1971). However, in at least one instance, this court approved the use of before and after values of the real estate as a measure of damages in a § 537.340 action where the things taken, injured, or destroyed by a willful trespass have no substantial market value, when considered in their severed state. Barnes v. Arkansas-Missouri Power Co., 220 Mo.App. 141, 149-50, 281 S.W. 93, 96 (1926). The reasoning in Barnes for using before and after values of the land as a § 537.340 measure of damages, in [792]*792certain limited instances, is sound. However, in this case, the trial court, at the conclusion of the case said:

The only evidence before the Court as to the value of the trees is $3,500.00. The Court finds the issues in favor of the Plaintiffs against Defendants on that issue and enters judgment of $3,500.00 actual. Treble award of $10,500.00. Consequential or clean up damages the Court finds to be $1,200.00 against Defendants herein as per entry filed.

Written judgment was entered accordingly.

Clearly, as to the $3,500.00 portion of the judgment, the trial Court applied the ordinary rule that the measure of damages in a § 537.340 action is the market value of the property at the time it was removed from the land, rather than the rule set forth in Barnes, supra. The only evidence of the value of the trees removed and destroyed came from plaintiff Robert G. Breiding during rebuttal, as follows:

Q. Mr. Breiding, do you have an opinion as to the value of the trees and the destruction thereof as to your continued use or aesthetic use of the property?
A. Yes, I do.
Q. What is that opinion?
A. The value of those trees to me would be about $3,500.00 or maybe $4,000.00
[[Image here]]
Q. How do you value a tree that you’re talking about, the value of it? How do you yourself evaluate it? You can evaluate a car, a truck. But how do you evaluate a tree? How do you arrive at that?
A. I arrive at that fiyure basically because they are the prime feature of that property. You see / reyard this area of Missouri as one of the most beautiful places in the mid-west and that asset comes from those trees.
MR. PEEBLES: Nothing further, Your Honor.
THE COURT: Do I understand that you’re saying that the damage to your trees is now $3,000.00 to $3,500.00?
THE WITNESS: Yes, sir. (Emphasis added.)

Clearly, plaintiff’s opinions did not address the fair market value of the trees removed. His opinions as to the “value of trees” was grounded upon his personal “continued use or aesthetic use of the property.” He arrived at that figure “basically because they [the trees] are the prime feature of that property. You see, I reyard this area ... as one of the most beautiful places in the mid-west and that asset comes from those trees.” (Emphasis added.) Such testimony does not supply necessary evidence of value of the trees.

Proof of fair market value cannot be supplied by evidence as to the value of the property to the plaintiff individually, as a witness’ subjective opinion or his feeling ... as to the value of property may not be equated with or substituted for fair market value.

Evinger v. McDaniel Title Co., 726 S.W.2d 468, 474-75 (Mo.App.1987). There was no evidence of fair market value of trees other than plaintiff’s opinion.

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Bluebook (online)
800 S.W.2d 789, 1990 Mo. App. LEXIS 1787, 1990 WL 198153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breiding-v-wells-moctapp-1990.