A logging company that allegedly fell more than three dozen hardwood trees on a Morgan County property whose owner had warned the contractor to stay off his land was rightly awarded more than $80,000 in damages, the Indiana Court of Appeals ruled.
The appellate panel found no error in the Morgan Superior Court’s grant of summary judgment in favor of landowners John and Linda Hurst and against Mike Dow, doing business as Midwest Logging and Veneer.
The Hursts own about 15 heavily wooded acres in Morgan County, where their home also is located. A neighbor entered into a logging contract with Dow, but before logging started, Linda Hurst spoke with Dow before logging began to make sure that trees were not cut across the property lines that John Hurst had marked with metal posts.
Dow hired a contractor to cut trees on the property neighboring the Hursts’ land and harvest the timber, but when John Hurst heard chainsaws that seemed to be coming from his land, he went to investigate and found logging taking place on his property. He told the logger to finish harvesting the tree he was cutting, but to harvest no more timber from his land. Despite this, Hurst later observed more trees being harvested from his property and again told Dow to stay off his land.
After Hurst sued, he presented evidence from a Department of Natural Resources forester and a landscaper to assess damages including the value of the cut timber and the cost of remediation, leading to the judgment and damages ruling in his favor. The trial court found Hurst was not eligible for treble damages he sought.
On appeal, Dow claimed the trial court erred in concluding he was liable for the actions of independent contractors, in awarding damages to the Hursts, and in the admission of alleged hearsay evidence.
The COA affirmed in Mike Dow and Midwest Logging and Veneer v. John Hurst and Linda Hurst, 19A-PL-1709. The panel found Dow had a duty that could not be delegated under the Timber Buyers Act, I.C. 25-36-5-1-4(b) – a duty to not cut or cause to be cut or appropriate any timber not purchased. The panel likewise rejected Dow’s argument regarding damages — that the Hursts should be entitled either to the value of the timber or the estimated cost of remediating the land, but not both.
“To hold otherwise would be to permit a windfall to the tortfeasor, permitting the tortfeasor to either profit from the value of the timber taken or shield the tortfeasor from liability for the injury to the real property caused by the taking of the timber. We therefore reject Dow’s position …,” Judge Paul Mathias wrote. The panel also noted the award of damages was not excessive and represented only a small percentage of the value of the total property.
Finally, the panel also found admission of Linda Hurst’s testimony regarding what the contracted logger said Dow told him was harmless.