Plaintiff Wins $70,100 after Neighbor's Trail Encroached upon Her Land

September 13, 2017 | Kristine A. Tidgren

The Iowa Court of Appeals recently affirmed a jury verdict awarding a plaintiff $70,100 after her neighbor built a trail encroaching upon her property. The damages included $50,000 for trespass and loss of lateral support and $20,100 in treble damages for the loss of trees. The jury found the neighbor 75 percent responsible for the damage and his contractor 25 percent responsible. The case should remind landowners and contractors to conduct a survey before engaging in any construction or removal of trees near a neighbor’s property.

The neighbor hired a contractor to build a trail along the boundary line of his property. The trail ran along a ravine in Boone County, next to the plaintiff’s property. The trail was constructed after some discussions in which the plaintiff told the neighbor that she did not want him on her property. At the neighbor’s direction, the contractor cleared 20 of the plaintiff’s trees, built a portion of the trail upon the plaintiff’s property, and damaged her embankment leading to the ravine. This caused her property to lose lateral support. Neither the neighbor nor the contractor sought to have a survey conducted before completing the project. Instead, the neighbor instructed the contractor to rely upon an old fence, old posts, a shed, and a roofline to gauge the boundary. When the plaintiff conducted a survey after the trail was built, she discovered that the trail encroached upon her land. She promptly filed suit against the neighbor and his contractor.

At trial, the jury determined that the plaintiff’s destroyed trees were worth $6,700. The jury then awarded treble damages of $20,100 for the loss of those trees after finding that their removal was “willful” or “without reasonable excuse.” The jury awarded $50,000 as compensation for trespass and loss of lateral support, in large part relying upon estimates of repair costs.

On appeal, the court affirmed the judgment. The court found that the evidence supported an award of treble damages for the loss of the trees under Iowa Code § 658.4. That provision allows triple damages for “willfully injuring” trees of another. The Iowa Supreme Court has interpreted that provision to mean “an act done wantonly and without any reasonable excuse.” The court in this case stated that substantial evidence—particularly the failure of the neighbor to have the land surveyed before the construction—supported a finding that he acted without reasonable excuse.

The court also ruled that the evidence supported the award of damages for trespass and removal of lateral support. The jury was properly instructed as to both repair costs and diminution of value and told that if the repair costs would create economic waste, the amount of damages should be for reduction in value of the property. Instead, the jury opted to assess damages within the range of repair estimates provided by witnesses. The court reiterated that “the determination of damages is traditionally a jury function … [that] should be disturbed only for the most compelling reasons.”

The lesson of the day? Don’t clear trees, move dirt, or conduct any activities along the boundary of your property without first conducting a survey or being certain of where that boundary line is. This applies equally to landowners and their contractors.

The case is North v. Van Dyke, No. 16-0165 (Iowa Ct. App. Sept. 13, 2017).