Opinion
C.A. No. 97C-02-040.
Submitted: December 9, 1999.
Decided: March 31, 2000.
Jerry L. Keller, Gloria K. Keller, Charles R. Rock and Joan M. Rock. Pro Se.
Stephen A. Hampton, Esq., Dover, Delaware. Attorney for Del-Homes, Inc.,
Diane M. Willette, Esq., Wilmington, Delaware. Attorney for Regina Tilley.
Charles P. Coates, III, Esq., Newark, Delaware. Attorney for Mark Wooleyhand.
Edward F. Kafader, Esq., Wilmington, Delaware. Attorney for Flossie Short.
ORDER
This is the Court's decision after a bench trial.
This case originated in the Court of Chancery as a quiet title action to determine the exact location of a boundary line which separates the Carlisle Village subdivision near Dover, Kent County, Delaware, from two adjoining parcels, one owned by plaintiffs Jerry and Gloria Keller and one owned by Plaintiffs Charles and Joan Rock. Defendant Del-Homes, Inc. is the developer of Carlisle Village subdivision. Defendants Mark B. Wooleyhand, Regina Tilley and Flossie Short are the owners of individual lots in the subdivision. Their lots adjoin each other and back up to the plaintiffs' properties. The total common boundary between Carlisle Village and the plaintiffs' properties is a straight line of approximately 1400 feet. The Court of Chancery established the true boundary between the plaintiffs' and defendants' respective properties. In doing so, it determined that the boundary line shown on the Carlisle Village subdivision plot plan encroached upon the plaintiffs' properties by as much as approximately sixteen feet at its widest point of encroachment. From this widest point, the encroachment tapered down to what appears to be about zero at the other end of the line. At the point where the three individual lots are located, the discrepancy is in the range of about five feet. In other words, the lots which backed up to the plaintiffs' property lines were not quite as deep as the Carlisle Village plot plan would indicate. The case was then transferred to this Court for a decision on monetary damages claims which the plaintiffs' claimed.
The plaintiffs claim that the defendants committed timber trespass on the plaintiffs' properties, dumped debris and rubbish on their properties, damaged earth and trees on their properties and destroyed a barbed wire fence. The plaintiffs seek compensatory and punitive damages.
Plaintiffs Mr. Keller, Mr. Rock and Ms. Rock testified at trial. Their testimony tended to show that the construction of Carlisle Village did result in trespass on their respective properties. They testified that construction debris was discarded across the property line onto their properties. They testified that heavy equipment caused some damage to trees, small growth and earth on their side of the property line. They also testified that some trees and earth were pushed onto their properties. William D. Allen and John M. Schwalm, two experts called to the site by the Rock's, also testified that they observed construction debris which appeared to have been pushed onto the plaintiffs properties. The Court finds all this testimony to be credible, especially when considered together with the fact that it was subsequently determined that the boundary shown on the plot plan of Carlisle Village encroached on the plaintiffs' properties and that at the time Del-Homes was, therefore, laboring under a misconception as to the location of the true line. The photographs which were admitted further also show evidence that the construction activities encroached upon the plaintiffs' properties. Therefore, the Court does find that there was some trespass by Del-Homes onto the plaintiffs' respective properties which occurred during the process of laying out and improving the lots in Carlisle Village and constructing houses. The evidence also tended to show that this misconception about the location of the rear line of the lots involved was passed on to the original purchasers of the houses which were built on the lots backing up to the Keller's and the Rock's. For example, Mr. Keller testified that Ms. Tilley had indicated to him that Del-Homes had told her that her line was fifteen feet back into the woods. The evidence is less than entirely clear as to on how deep this trespass went on the plaintiffs' properties, but the Court does conclude it probably extended at least onto the area that Del-Homes believed it owned, if not further.
The damages claimed by the plaintiffs were presented through the testimony of two witnesses. William Allen of Allen's Expert Tree Service gave the plaintiffs an estimate of $8000.00 to clear a strip up to 1000 feet long along the plaintiffs' side of the true boundary line. John M. Schwalm of the forestry section of the Department of Agriculture testified that two trees with a combined value of $300.00 had been cut from the Keller's property and nine trees with a combined value of $98.15 had been cut from the Rock's property. In addition, after the trial was completed, the plaintiffs submitted a letter stating that they had intended to include with their damages the cost of erecting a fence along the property line. They indicated that they had an estimate for materials of $1,254.95.
Before considering the issue of damages against Del-Homes, the Court would like to turn to the cases against the individual defendants. The plaintiffs' case against Flossie Short centers on a hickory tree, which Ms. Short had topped. This involves a claim by the Rock's only, because the Rock's, not the Keller's, adjoin Ms. Short. The hickory tree is clearly on the Rock's property, a short distance off the property line. Ms. Short had the tree topped where the branches expand out from the trunk forming the umbrella. The issue is whether she had only that portion of the tree which extended across the property line onto her property topped, or whether she topped it across the line over the Rock's property.
Ms. Short called a surveyor, Mr. Paraskewich, of Pelsa surveyors, who testified that he performed a survey of the area of the hickory tree and he determined that it appeared to him that the topping occurred on Ms. Short's side and stopped at the property boundary. His survey was introduced, which includes an inset showing the tree. As appears from his survey, he did use the correct property line.
Ms. Short testified that she felt as though the tree presented a danger to her property. She was concerned that if a limb fell off it could conceivably strike her house or shed. She testified that she asked Mr. Rock to have the tree topped and that he agreed. She testified that she had the tree topped only after he did not do so.
The Rock's disputed Mr. Paraskewich's testimony that the tree was topped at the line on various grounds, but the Court is satisfied that Mr. Paraskewich's testimony is accurate and credible. The Court finds that Ms. Short did not trespass onto the Rock's property, but topped the tree only to the line which was ultimately determined to be the true line. The Court further finds Ms. Short did not trespass upon or damage either plaintiffs' property in any way. The plaintiffs' claim against Ms. Short is therefore dismissed.
The claim against Mr. Wooleyhand was that he cut down two trees which were on the Rock's property. Mr. Rock testified that he cut them down without permission. Mr. Wooleyhand admitted that he cut down two trees which were on the Rock's property, but testified that Mr. Rock gave him permission to do so. Susan Linda Temple, who had been a neighbor to Mr. Wooleyhand, testified that she was present at a conversation where Mr. Wooleyhand asked if he could cut trees down, and Mr. Rock consented. She testified that she thought that more than one tree was mentioned. There was some discrepancy in her testimony about whether one tree or more than one tree was mentioned. However, the Court finds based upon all the evidence that Mr. Rock made statements to Mr. Wooleyhand which led him to believe that he had permission to cut down the two trees. The Court finds no basis in the evidence for any other claim against Mr. Wooleyhand. The plaintiffs' claim against Mr. Wooleyhand is, therefore, dismissed.
The case against Ms. Tilley focuses primarily on a cherry tree. It is undisputed that in connection with the purchase of her home from Del-Homes, Ms. Tilley asked Del-Homes to remove the cherry tree, and that Del-Homes did so. Del-Homes did so by pushing it over, apparently with a bulldozer. Mr. Keller testified that the tree was two or three feet on his property. Ms. Rock testified that it was about four feet on the Keller's property. Ms. Tilley testified that she thought it was on her property. So did Mr. Tilley. It is undisputed that when it was pushed over it fell onto the Keller's property. Apparently the tree was eventually cut up by Mr. Tilley and left at or near the property line. Ms. Tilley testified that she wanted the tree removed because it was dead and she felt it posed a threat to her children.
The Court finds that the evidence is inconclusive as to whose property the tree was situated on before it was removed. Both parties testified that they believed it was on their respective property. Apparently it was removed before the true line was established. The true line was ultimately determined to be in between where the Rock's and Keller's originally thought it was and where the Carlisle Village plot plan showed it. It is also noted that Ms. Tilley testified that the tree was dead and she considered it a safety hazard. Therefore, it is unclear that the tree even had any value. It is also noted that no evidence of the value of the tree was introduced. For these reasons the Court finds that the plaintiffs have failed to prove a claim for damages regarding the cherry tree.
The Keller's and the Rock's also claimed that Tilley dumped debris, or had debris dumped, on their properties. Ms. Tilley denied the claim. The Court has carefully considered this part of the plaintiffs' claim and finds that the evidence does hot support this claim. Therefore, the plaintiffs' claims against Tilley are dismissed.
I now return to the case against Del-Homes. As mentioned above, I do find that there was some trespass by Del-Homes onto the plaintiffs' respective properties which occurred during the process of laying out and improving the lots in Carlisle Village and constructing houses. However, the Court is not persuaded that Del-Homes is liable for all of the damages sought by the plaintiffs. Turning first to the timber trespass which was the subject of the Mr. Schwalm's testimony, I note first that Mr. Schwalm testified that all of the eleven trees on his report were trees which had been cut. Mr. Beiser, however, testified that his company does not use chain saws. Based upon his demeanor as he was testifying, the Court finds this testimony to be credible. Therefore, the Court does not believe that Del-Homes cut the trees. It appears from the evidence that it's method of tree removal is pushing them over with heavy equipment. The evidence is simply inconclusive as to who cut down the trees.
In addition, it is not entirely clear that Mr. Schwalm was using as his point of reference the true line which was not established by Court of Chancery until December 1996. Mr. Schwalm prepared his report in 1995. The plaintiffs' claim for $294.45 for timber trespass is therefore denied.
The estimate from Allen's Expert Tree Service is also problematical. The estimate is $8,000 to clear one thousand feet along the boundary line. It is broken down to $5,000 for the first six hundred feet and $3,000 for the next four hundred feet. The scope of work contemplated by the estimate, however, seems to go substantially beyond clearing up the Del-Homes trespass. The estimate appears to be for clearing a strip along the boundary line. It appears to the Court that the proposal to clear the area would improve it to a condition over and above its original state. This estimate includes removal of stumps, but as stated above the Court is not persuaded that Del-Homes cut down trees. The photographs introduced as exhibits do not seem to show any significant amount of construction debris. However, they do appear to show clearly that some trees and brush were pushed over on the plaintiffs' properties. After considering all of the evidence, including the photographs which were admitted, the Court concludes that a sum of $2,750.00 is a reasonable award to make to the plaintiffs for the damage caused by Del-Homes. This amount is apportioned $1,650.00 to Mr. And Mrs. Rock and $1,100.00 to Mr. and Mrs. Keller. This apportionment is based on it appearing that the greater damage was done to Mr. and Mrs. Rock's property.
There is no legal basis for awarding the plaintiffs money to erect a fence between the properties. Therefore, this request is denied.
With regard to punitive damages, the Court is not persuaded that the conduct involved here amounts to the type of wilful and wanton misconduct which is required for an award of punitive damages. That request is, therefore denied.
Del-Homes raised a statute of limitations defense. The suit was originally filed in the Court of Chancery in 1995. The events in question appear to have occurred primarily in 1993, 1994 and 1995. The Court understands that not all claims were asserted in the original complaint, but I am satisfied that all claims relate back to the time of the filing of the complaint under Rule 15. The Court finds that the plaintiffs claims are not barred by the statute of limitations.
IT IS SO ORDERED.