If you want to see a lawyer cringe, ask how he or she likes property line disputes or fights over trees near property lines.
The case of Lau v. Pugh shows why lawyers (including trial judges and appellate judges) hate such cases. After all the fighting and expense, nobody is happy. Here’s how it often plays out.
Happy new neighbors
The Laus and the Pughs each bought adjoining small acreages in Texas County, Missouri, and enjoyed sharing dinners and playing cards with one another. Mr. Lau asked Mr. Pugh to teach him how to safely fell a tree, and Mr. Pugh was apparently happy to help, and Mrs. Pugh pitched in, as they took down three trees in May 2006.
The Laus hired Mr. Davis to take down some more trees, and Davis took took the trunks for lumber and added the limbs from the trees in to an existing pile near the boundary line of the Lau and Pugh tracts.
The demand letter
The Pughs thought that the brush pile was on their land, so they asked the Laus to move it in a letter. After the letter, the neighbors met at the brush pile and argued.
The Laus hired a guy with a bulldozer to push the pile onto the Lau tract and asked him to place a line of logs on what Mr. Lau thought was the property line. In September 2006, Mr. Pugh sent the Laus an invoice and “statement of mechanics’ lien” for his work in helping Mr. Lau fell three trees a few months earlier, charging him $150 per tree.
The Laus ordered a survey and found that the trees that Davis had removed and the brush pile that Davis added to were actually on the Pugh property.
The lawsuit and trial
Knowing that they had cut trees from the Pughs’ land, the Laus didn’t apologize, but sued Mr. Pugh, challenging the validity of his claim to a mechanics’ lien, asserting that the lien claim slandered the title to their property. Mr. Pugh counterclaimed for money for restoration of the damage to his land from the removal of trees by the Laus’ contractor, for the scraping of his land by the bulldozer and for the value of his labor in assisting Mr. Lau with the removal of the three trees.
At trial, a horticulturist testified that the replacement of trees removed from the Pugh parcel and other revegetation would cost about $15,000. A real estate appraiser concluded that the damage to the Pugh tract reduced its value by about $2,200.
The trial court determined that Mr. Pugh’s mechanics’ lien was no good, because his assistance with felling three trees with Mr. Lau was a friendly gesture, not done for pay. The trial court also awarded the Laus $1,815 to compensate them for the slander of title (the filing of an invalid mechanics’ lien) and related court costs. But the trial court also found for Mr. Pugh on his claim for damage to his property by the removal of trees and the dozing, awarding him $3,100 and costs.
After a year of litigation and a trial, the judge essentially awarded Mr. Pugh $1,285 ($3,100 minus $1,815). And nobody was happy.
The court of appeals reviews
Mr. Pugh appealed, claiming that he had released the mechanics’ lien so that he shouldn’t be liable for the $1,815 damages, most of which consisted of the legal fees for the attorney for Mr. and Mrs. Lau. Mr. Pugh also claimed that the judge made a mistake by not awarding treble damages for the removal of trees and scraping of his property.
The court of appeals reviewed the case law from around the country and concluded that attorney fees should be recoverable as special damages in a slander of title action, even though there was no Missouri appellate case or statute giving any guidance on the question. Ordinarily, attorney fees may not be recovered in the absence of a contract provision or statute authorizing a court to award attorney fees to the successful party. The appellate court noted that the Laus had spent nearly $6,000 in the litigation, and that the trial court was competent to have determined that $1,815 of this total was justified for the slander of title portion of the lawsuit.
The court of appeals found no evidence in the record that Mr. Pugh had released his mechanics’ lien claim.
Most interesting is the court of appeal’s discussion of the question of the proper measure of damages for the cutting down of 10 trees on the Pugh tract. The Missouri statute on cutting down trees on the property of another (section 537.340 RSMo) gets people, including some lawyers, very excited, because it provides for treble damages and does not require proof of negligence or intent.
But the court of appeals didn’t read section 537.340 by itself. The court also looked at section 537.360, which states that only single damages may be awarded if the person who removed the trees had “probable cause” to believe that he was on his own property when he cut down the trees. Looking at the trial evidence, the appellate court didn’t find any evidence relating to probable cause on which the trial court could have based an award of treble damages. Moreover, the appellate court noted that Mr. Pugh gave up the right to treble damages by testifying that he was “not asking for anything for the trees that were moved,” but merely “asking that the injury to the land be restored.”
What was accomplished?
If you winnow all the facts as they appear in the court of appeals opinion, here’s what you find:
- 10 trees were removed from a wooded tract that probably had several hundred trees.
- A real estate appraiser had to strain to find that the tract was devalued at all by the removal of the 10 trees.
- Friendly neighbors spent three years fighting and may never be friendly again.
- Together the neighbors probably spent well over $10,000 in legal fees and expert witness fees.
- In the end, the Laus owed Mr. Pugh the sum of $1,285.
That’s why lawyers cringe when clients want to file lawsuits over property lines and damage to trees. They know that it is unlikely that the parties will be happy in the end, and they’ll blame the lawyers and the legal system for wasting the parties’ time and money.
I was fortunate to prosecute in south FL during the beginning of the real estate bust. I saw far too many disputes, where the neighbors went back and forth each becoming a defendant, each becoming a victim and thus screaming in my ear why the other neighbor should have the book thrown at him or her but that his case be dropped. I honestly wished I had the power and I am sure the judge would have liked to have the same power to order the two to move away from each other.
For many of these disputes, which did often originate on some type of boundary/fence/nuisance claim, there would never be a happy answer for either party and it ended up ruining lives because neither party nor the justice system could cope with such bickering.
I do think that there are many lawyers who feed into this, not anyone with whom I do business, by not looking deeper into the dispute and not advising the client to stop and just let the dispute go.
As a prosecutor, my solution to this problem was to sit down with the victim/defendant and the opposite victim/defendant and their attorneys and as long as nobody really overstepped the line (no felony batteries, etc.) then I would dismiss each case and threaten that if I ever saw another in my court room that I would press for the max in jail. Sometimes, miraculously it worked they backed off each other. Sometimes, they called my bluff and I would ask for the max and they usually got probation from the judge.
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My bobcat contractor was to do clean my property and in exchange get the trees that was to be removed. He went to court house, got a map, then somehow got the property markers mixed up and took the trees from neighbor’s land.
Now my neigbors are talking about suing me for for tens of thousands of dollars for the standing timber.
What recourse do I have?
You need to contact a lawyer in your community. I do not give legal advice on this blog.