Clearing Your Neighbor's Fence Line Without Permission Could Cost You Big

March 10, 2016
Kristine A. Tidgren

Yesterday, the Iowa Court of Appeals granted a new trial to an excavation company in a trespass action. At trial, the jury found the excavation company liable for $118,900 in damages for trespassing onto a farmer’s property and clearing trees and brush from a 12-foot wide strip of his fence row.  The new trial was not granted because of any question as to the actual trespass. That had been admitted at trial. Rather, the court was concerned that the defendant was prejudiced by evidence that the excavation company would be indemnified by the farming company that hired the work done. The court noted that such evidence may have caused the damages to be unfairly high.

The case arose when a large-scale farming company engaged the excavation company to remove trees brush, and remnants of fence from a boundary line of property it was farming. The farming company was partnering with a couple that rented the farm ground from the landowners. The boundary line at issue separated the ground the farming company was farming from farmland owned by the plaintiff. The shared boundary was one-half mile long. The trees, grass, shrubs, and berry bushes populating the line provided erosion control and refuge to wildlife.

The excavation company assumed that the farming company had permission from the plaintiff to clear approximately 12 feet of land on his side of the shared boundary. That permission had not been granted. The plaintiff sought $57,750 in damages from the excavation company in a demand letter, and the farming company accepted responsibility for the trespass. Although the farming company refused to pay the requested damages, it did offer to reestablish the property line, grade the soil, and perform other work required to restore the productivity of the land.

The plaintiff rejected this offer and filed a trespass action against the excavation company. The fact of the trespass was not disputed at trial. The excavation company had intentionally entered the plaintiff’s property without permission. The issue at trial was the amount of damages, if any, that that plaintiff incurred due to the trespass. The plaintiff introduced testimony as to the value of his lost trees and brush, the effect of the cleared fence row on his crops, and a possible impact on payments he received through a wildlife-enhancement program. The plaintiff also submitted evidence regarding the cost of replacing the fence line, the cost of replacing and reestablishing trees and shrubbery, and the value of the timber cut from the land. The jury found that the excavation company was liable for the trespass and awarded the plaintiff $118,900 in damages.

On appeal, the excavation company argued that the trial court had abused its discretion in admitting evidence showing that the farming company had offered to indemnify the excavation company for any damages the jury awarded to the plaintiff. The excavation company argued that the evidence was irrelevant and unfairly prejudicial. The Iowa Court of Appeals agreed, reversing the verdict and remanding for a new trial.

The court found that the evidence was not relevant because the trespass itself had been admitted. The only issue for the jury was to determine was the amount of damages. The fact that the farming company was paying for the excavation company’s defense and that it would also indemnify the excavation company from any resulting damages had no relevance to the question of what those damages should be. The court went on to find that admission of this irrelevant evidence was prejudicial to the excavation company because “such evidence ‘tends to influence jurors to bring in a verdict against a defendant on insufficient evidence’” and “causes jurors to bring in a larger verdict than they would if they believed the defendant would be required to pay it.” The court found this prejudice especially possible given that the plaintiff had presented evidence that the farming company had “deep pockets.” The court noted that the potential prejudice caused by the evidence of indemnification was not mitigated by a limiting instruction. The trial court denied the excavation company’s request for such an instruction.

So back to the trial goes the case.

Landowners, tenants, and excavators should not overlook the big lesson from this case: Don’t clear a boundary line without express permission from your neighbor. The damages could be significant and they may just roll downhill.

The case was Buhr v. Mayer's Digging Co., No. 15-0211 (Iowa Ct. App. March 9, 2016).

 

 

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