Harper v. Morris

365 S.E.2d 176 (1988)

Jerald D. HARPER and wife, Virginia Harper v. Billy MORRIS, T/A Morris Logging Company.

No. 874SC769.

Court of Appeals of North Carolina.

March 1, 1988.

*177 Harrison, Heath and Simpson, P.A. by Fred W. Harrison, Kinston, for plaintiff-appellees.

Ward, Ward, Willey & Ward by Joshua W. Willey, Jr., New Bern, for defendant-appellant.

ORR, Judge.

It is well settled law in our state that when trees are unlawfully cut from the land of another, "claimant is entitled to either the difference in fair market value of the land before and after the cutting or the market value of the timber at the time and place of its severance plus incidental damages caused in removal, whichever he elects." Simpson v. Lee, 26 N.C.App. 712, 712, 715, 217 S.E.2d 80, 82 (1975). Here the plaintiffs elected the diminished value measure, calculated by the difference in market value before and after the cutting.

Defendant contends the trial court erred by instructing the jurors that they could consider certain factors in determining the diminished value of plaintiffs' property. These factors are:

the purpose for which these particular trees and shrubs cut, were grown and maintained; the cost of replacement or restoration of the same to the extent that it is reasonable and practicable; that is, not being excessive in relation to the damage to the land itself; and the contemplated use of the particular lands from which the timber and shrubs were cut or removed, including any aesthetic value to the landowners of such trees and shrubs.

According to defendant, this instruction impermissibly expands the elements of damages recoverable in trespass actions. We disagree. Each element of the instruction has some relevance in determining *178 the diminished value of plaintiffs' property.

The purpose for which these trees and shrubs were grown and maintained and the contemplated use of the land including aesthetic value to the landowners, in our opinion, directly affects the market value of this property. Similarly the cost of producing the trees and shrubs has some bearing on the value of plaintiffs' land, and one factor in determining the diminished value would be the cost of replacing or restoring the trees and shrubs to the same extent as is reasonably practicable. Diggs v. Railroad, 131 Mo.App. 457, 110 S.W. 9 (1908). See generally Annot. "Measure of Damages for Injury to or Destruction of Shade or Ornamental Tree or Shrub," 95 A.L.R.3d 508 (1979).

Appellant next contends the trial court erred by admitting evidence of replacement cost.

We believe the testimony of the cost of replacing these trees and shrubs presented by plaintiffs' expert witness was relevant and properly admitted. Its probative value was not outweighed by any possible prejudicial impact on the jury, particularly where as here the trial court cautioned the jury to consider replacement cost only to the extent "that it is reasonable and practicable; that is, not being excessive in relation to the damage to the land itself...." We find no error by the trial court in admitting this testimony.

We have examined defendant's remaining assignments of error and find them to be without merit. The judgment of the trial court is affirmed.

Affirmed.

JOHNSON and PHILLIPS, JJ., concur.