Crowe et al v. BellSouth Telecommunications, Inc. et al

Filing 60

MEMORANDUM OPINION. Signed by Honorable Wallace Capel, Jr on 10/2/2009. (br, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION R O B E R T H. CROWE and E M M A C. CROWE Plaintiffs, v. BELLSOUTH T E L E C O M M U N IC A T IO N S Inc., and S T A R CONSTRUCTION, LLC. Defendants. ) ) ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO.: 3:08cv179WC

M E M O R A N D U M OPINION
P lain tiff s Robert H. Crowe and Emma C. Crowe 1 bring this cause of action as a single co u n t of trespass against Defendants BellSouth Telecommunications, Inc. ("BellSouth"), and S ta r Construction, LLC ("Star"). This matter was tried before the Court on August 10 and 1 1 , 2009. I. J U R IS D IC T I O N AND VENUE P u rsu a n t to 28 U.S.C. § 636(c), both parties consented to the conduct of all p ro c e ed in g s and entry of a final judgment by the undersigned United States Magistrate Judge. P ls.' Consent to Jurisdiction (Doc. #15); Defs' Consent to Jurisdiction (Doc. #16). T h e Court exercises jurisdiction over this action pursuant to 28 U.S.C. § 1332 ( d iv e r s ity) and 28 U.S.C. § 1441(a) (removal jurisdiction). The parties do not contest

As Plaintiff Emma C. Crowe is now deceased the Court will refer to Plaintiff in the singular form throughout this opinion.

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p e rs o n a l jurisdiction or venue, and the Court finds allegations sufficient to support both. II. FINDINGS OF FACT AND CONCLUSIONS OF LAW H a v in g heard the evidence and considered the arguments of counsel, the Court makes th e following findings of fact and conclusions of law. A. F in d i n g s of Fact

T h is case stems from Defendants' cutting of cedar trees on Plaintiff's property. The tre e s sit in a row along an approximate sixteen-hundred-foot strip of land that is part of a large r, 85 acre tract of land owned by Plaintiff. Plaintiff planted the trees along the northern b o rd e r of his property line approximately twenty-eight years ago. The northern border of P la in tif f 's property is adjacent to a public right-of-way and Plaintiff said he planted the trees f o r the purpose of privacy. Within the public right-of-way, and within a few feet of P la in tif f 's property, stand telephone poles holding telephone wires, which were erected prior to Plaintiff's planting of the cedar trees. Over time, the cedar trees grew into the telephone lin e s , causing damage. In 2006, BellSouth contracted with Star to maintain and repair the lines. In repair and m a in te n a n ce of the lines, Star cut branches and "topped" 2 the cedar trees. Of the

a p p ro x im a te ly one-hundred-sixty cedar trees located on the property line, between forty-

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The term "topped," as used at trial and in this opinion, refers to the top of the tree being 2

cut-off.

th re e 3 and sixty4 cedar trees were located north of Plaintiff's property line and in the public rig h t-o f -w a y. Defendants entered Plaintiff's property in order to top the trees. BellSouth, a n d Star did not seek permission from Plaintiff prior to entering his property. P r io r to trial, the Parties entered into the following stipulations: P la in tif f Robert H. Crowe owns the land upon which some of the trees at issue a re located. The only other land at issue is the right of way. That plaintiff Emma Crowe is now deceased. That the tree trimming at issue in this case occurred in December, 2006. That the telephone lines in the area at issue were replaced in March of 2007. T h a t the tree trimming was performed by Anthony Edwards and his wife, L yn e tte Edwards. Both Mr. and Mrs. Edwards are employees of Star C o n s tru c tio n and performed this work pursuant to a contract with BellSouth. T h e Plaintiff has never independently had this property appraised. T h a t the telephone lines had been in this spot and on this land since the late 1970s. That the only claim before this Court is a claim of trespass. S e e Stipulations of the Parties (Doc. #43). In addition, the Court has taken judicial notice of § 37-1-49 Code of Alabama 1975, w h ich states as follows:

Plaintiff's expert land surveyor, Tim Simpson, testified that forty-three of the cedar trees sat north of Plaintiff's property line. Defendant's expert land surveyor, Glen Gaylor, testified that between fifty-nine and sixty cedar trees were located north of Plaintiff's property line. 3
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E v e ry utility shall maintain its plant, facilities and equipment in good operating c o n d i ti o n and shall set up and maintain proper reserves for renewals, re p lac e m e n ts and reasonable contingencies. Every utility shall render adequate s e rv ic e to the public and shall make such reasonable improvements, extensions an d enlargements of its plants, facilities and equipment as may be necessary to meet the growth and demand of the territory which it is under the duty to s e rv e . B. C o n c lu s io n s of Law

T h e first question the Court must resolve is whether Defendants trespassed on P la in tif f 's property. "Trespass is a wrong against the right of possession." Jefferies v. Bush, 6 0 8 So. 2d 361, 362 (Ala. 1992). "Intrusion upon land possessed by a plaintiff, without his c o n s e n t, is an essential element of trespass quare clausum fregit." R e g 'l Cancer Treatment Ctr., 551 So. 2d 299, 301 (Ala. 1989). T h e uncontradicted evidence presented by both Plaintiff and Defendants established th a t Defendants entered Plaintiff's property without permission to top the cedar trees. P lain tiff testified that he was never asked, nor gave, permission for Defendants to enter his p ro p e rty. Defendants' employees and experts each testified that Plaintiff's land was entered a n d that permission to enter had not been sought, nor given, by Plaintiff. Accordingly, the C o u rt finds that Defendants trespassed onto Plaintiff's property. H a v in g found a trespass was committed, the Court turns its attention to Plaintiff's c la im s for damages. Plaintiff requested the Court impose both compensatory and punitive d a m a g e s . Defendants argued that any compensatory damages due Plaintiff are minimal and p u n itiv e damages are not appropriate. Harding v. Bethesda

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" T h e measure of damages for trespass to land and cutting of trees is the difference b e tw e e n the value of the land immediately before the trespass and the value of the land after th e trespass." Loper v. Odom, 619 So. 2d 1310, 1312 (Ala. 1993); see also Ryals v. Hunter, 6 3 8 So. 2d 2 (Ala. Civ. App. 1994) ("The legal measure of damages to real estate in cases [ in v o lv in g trespass and the cutting of trees,] such as the present case[,] is the difference b e tw e e n the value of the land immediately before the trespass and the value of the land im m e d iate ly after the trespass."); Hogan v. Alabama Power Co., 351 So.2d 1378, 1381-82 (A la . Civ. App. 1977) ("The measure of damages for trespass to land when trees have been c u t is the difference between the value of the land immediately before the trespass, i.e. the cu tting , and its value immediately after."). Further, in order to establish damages, "a landowner can testify as to the value of his p ro p e rty, even if he is not an expert." Seale v. Pearson, 736 So. 2d 1108, 1112-13 (Ala. Civ. A p p . 1999) (internal quotations omitted); see also Kerns v. Pro-Foam of South Alabama, In c ., 572 F. Supp. 2d 1303, 1307 (S.D. Ala. 2007) ("[t]he general rule is that an owner of real e s t a t e is competent to testify as to its value.") (quoting Alabama Power Co. v. Cummings, 4 6 6 So. 2d 99, 102-03 (Ala. 1985)); S.S. Steele & Co., Inc. v. Pugh, 473 So. 2d 978 (Ala. 1 9 8 5 ) ; Wilkens v. Kaufman, 615 So. 2d 613, 615 (Ala. Civ. App. 1992) ("A person may tes tify to the value of his or her land, even if that person is not an expert."); Carson v. C a n a le s, 409 So. 2d 842, 843 (Ala. Civ. App. 1981) (trial court relied on plaintiff's testimony t h a t market value of his house had fallen from $58,000 to $50,000 or $51,000 because of

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cra ck ed walls, sagging kitchen floor, and chimney that smoked through walls). P lain tiff testified at trial that he estimated his land to be worth approximately $ 8 8 5 ,0 0 0 before the trespass and that the value of the land diminished between $75,000 and $ 1 5 0 ,0 0 0 immediately after the trespass. Defendants offered the Russell County Tax A s s e s s m e n t records as evidence of the value of the land before and after the trespass. The Court does not find either of these estimates of damages to be reliable. The Court d o e s not find the tax assessor records to be sufficiently reliable in determining the value of P la in tif f 's property, because the proper measure of damages to real property is the diminution o f the fair market value of the property, see, e.g., Poffenbarger v. Merit Energy Co., 972 So. 2 d 792 (Ala. 2007), and Defendants failed to show that the tax assessment records evidenced f a ir market value. L ik e w i s e , Plaintiff's testimony as to the value of his land was also unreliable. As stated above, Plaintiff testified that his property was worth approximately $885,000 before th e trespass and that the value of the land diminished between $75,000 and $150,000 im m e d ia te ly after the trespass. It is true that an award of damages cannot be based upon speculation. However, [ P la in tif f ] does not have to prove loss or damage to a mathematical certainty or m e a su re [damages] by a money standard. Rather, he must produce evidence tending to show the extent of the damage or loss he has suffered, and thus the proper amount o f damages, as a matter of just and reasonable inference. S e a le , 736 So. 2d at 1112-13 (internal citations and quotations omitted). While Plaintiff did n o t provide evidentiary support for the monetary value of his land, he did provide the Court

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w ith evidence tending to show the extent of the damage he suffered, which allowed this C o u rt to make a just inference. Plaintiff testified that his land was more valuable than c o m p a ra b le land in the surrounding area because of the timber on the land and his im p ro v e m e n ts to the land. Thus, Plaintiff estimated the value of his land to be approximately $ 1 0 ,4 1 1 .7 6 per acre ($885,000 ÷ 85acres).5 T h e evidence at trial showed that the area affected by the trespass was approximately 1 6 0 0 feet in length. Both surveyors testified that the width of the affected area did not e x c ee d three feet. Thus, using the physical numbers provided by Plaintiff, the total affected a re a amounted to 4800 square feet of land (1,600 length x 3 width). The Court takes judicial n o tic e that there are 43,560 square feet in an acre and that 4800 square feet represents 0 .1 1 0 1 9 3 of an acre. Assuming a value of $10,411.76 per acre, damages would equate to $ 1 ,1 4 7 .3 0 . While the Court recognizes that the exact valuation of land cannot be measured b y such formulas, the Court does find it useful in evaluating Plaintiff's claim for damages. P u t another way, for Plaintiff's measure of damages to be accurate, the Court would h a v e to believe that the loss of the tops of the cedar trees along the 1600 foot strip of land w o u ld have to account for approximately 17% of the total value of Plaintiff's land. Yet, P la in t if f testified that his 85 acres were more valuable than other surrounding areas because it was a Treasure Forrest, that included some 70,000 trees, including some rare species. F u r th e r, by Plaintiff's surveyor's count, at least 43 of the topped trees were located on the
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Plaintiff estimated land in the surrounding area to be worth approximately $5,000 per 7

acre.

r i g h t - o f - w a y. T h e Court notes that property values can be affected by things such as "curb appeal" a n d that these trees sit along the edge of Plaintiff's property. However, there are rows of V irg in ia Pine trees directly behind the cedars. Thus, taking all of the testimony and evidence s u b m itte d as to the value of Plaintiff's property and location of the damage on the property, th e Court finds Plaintiff suffered a $2,294.60 diminution in the value of his land immediately f o l lo w in g the trespass.6 P la in tif f also requested this Court award him damages on the basis that he was made to suffer mental anguish and emotional distress as the result of the trespass. Under Alabama la w , "[u]nless the trespass is attended with words or acts of insult or contumely, damages for m e n ta l anguish are not recoverable." Jefferies v. Bush, 608 So. 2d 361, 363 (Ala. 1992). T h e re was no evidence that the trespass in this case was attended with words or acts of insult o r contumely. Indeed, all of the evidence presented in this case was that Defendants intended to maintain the telephone lines in a manner consistent with their mandate to do so under § 3 7 -1 -4 9 Code of Alabama 1975. The trespass took place as a result of their efforts to repair a n d maintain the lines. In addition, the Court finds that Plaintiff failed to establish that he suffered any mental a n g u is h and/or emotional distress. Plaintiff testified that he, as a certified arborist and

This amount represents double the amount Plaintiff testified his land was worth p e r acre and an amount significantly above what the Plaintiff testified was the average v a lu e of land in the surrounding area. 8

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r e g is te r e d forester, places a special, and greater than average, significance on his trees. H o w e v e r, Plaintiff planted the cedar trees after the telephone lines had been in place, and at le a st 43 of the cedars trees were not even properly planted on Plaintiff's property. Plaintiff, a s a certified arborist and registered forester would have known that the cedar trees would g ro w and extend out and interfere with the telephone lines. It appears that Plaintiff's feelings f o r the trees were not so strong as to require that he properly maintain and trim the trees in a manner to avoid interference with the neighboring telephone lines and the necessary p ru n in g by Defendants.7 Although Plaintiff testified that he suffered mental anguish and e m o tio n a l distress, he presented no evidence in support of such suffering and the Court finds th a t he failed to establish this claim. Finally, Plaintiff has requested this Court award punitive damages. Punitive damages a r e warranted "in the case of trespass if the trespass is attended by rudeness, wantonness, re c k le ss n e ss or an insulting manner or is accompanied by circumstances of fraud and malice, o p p re ss io n , aggravation, or gross negligence." Rushing v. Hooper-McDonald, Inc., 300 So. 2 d 94, 98 (Ala. 1974). Plaintiff argued that the trespass was willful and intentional and p e rp e tra te d in a rude, wanton, reckless, and insulting manner. However, as stated above, th e re is no evidence the trespass was committed in a manner other than mistake. This is not

Eddie Miller, BellSouth's design engineer, testified that when he visited the site to determine how to repair and maintain the lines, he saw tree branches, dead limbs, and even dead trees lying on the telephone cable. Leh Bass, Defendant's retained Arboriculture expert testified that he saw two dead trees that had never been topped. 9

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a case where the property owner denied the utility company entry onto his land.8 Anthony E d w a rd s , the Star Construction employee who performed the tree topping, testified that the B ellS o u th work order indicated that no permission was needed to enter the property. There is no evidence to suggest that the work order was produced in wrongful manner.9 F u r th e r, to show wanton trespass, Plaintiff would have to show "the mere knowledge o n the part of the defendant of his invasion of the plaintiff's rights." Cummans v. Dobbins, 5 7 5 So. 2d 81, 82 (Ala. 1991). As stated above, Defendants mistakenly believed that they h a d permission to enter Plaintiff's property to top the trees. Plaintiff has only asserted that D e f en d a n ts should have known they were trespassing because of the fence located on the p ro p e rty line, or should have sought permission from Plaintiff prior to the trimming. While the Court agrees and certainly has ruled in Plaintiff's favor regarding the trespass, the record is devoid of evidence that Defendants knew a trespass was being committed, especially here, w h e re Star's employee believed permission to enter Plaintiff's land have been given. The Court also rejects Plaintiff's attempt to establish that he is entitled to punitive damages because of the manner in which the trees were cut. While there may be a disagreement as to the

See, e.g., Hogan v. Alabama Power Co., 351 So. 2d 1378, 1382 (Ala. Civ. App. 1977) (finding punitive damages could be supported where defendant's employee knew permission to enter land had been withheld by landowner). Mitchell Smith, an employee of BellSouth testified that it was a deviation from the normal company policy to not seek permission to enter private property and that permission was normally sought by by the design engineer. However, Plaintiff failed to show that the design engineer's failure to seek permission, or to properly indicate that permission had not been given, was anything more than an oversight or mistake. 10
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b e st way to prune the cedar trees, Defendants did establish that topping was a manner used b y the industry. While Plaintiff may not have agreed that topping was a proper way to trim th e trees, he failed to establish that the choice of topping was done in a rude, wanton, rec k less, or insulting manner. A c c o rd in g ly, the Court does not find Plaintiff is entitled to an award of punitive dam ages. III. CONCLUSION B a s e d on the foregoing, the Court finds in favor of Plaintiffs and against Defendants. A judgment consistent with this opinion will be entered. D o n e this 2nd day of October, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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