{
  "id": 1892788,
  "name": "I.B. ARNOLD and Ruth Arnold, Husband and Wife v. Mark LEE",
  "name_abbreviation": "Arnold v. Lee",
  "decision_date": "1988-09-26",
  "docket_number": "88-78",
  "first_page": "339",
  "last_page": "344",
  "citations": [
    {
      "type": "official",
      "cite": "296 Ark. 339"
    },
    {
      "type": "parallel",
      "cite": "756 S.W.2d 904"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "279 Ark. 121",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1746919
      ],
      "weight": 2,
      "year": 1983,
      "opinion_index": 0,
      "case_paths": [
        "/ark/279/0121-01"
      ]
    },
    {
      "cite": "265 Ark. 928",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1664668
      ],
      "weight": 2,
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/ark/265/0928-01"
      ]
    },
    {
      "cite": "286 Ark. 277",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8719751
      ],
      "weight": 2,
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/ark/286/0277-01"
      ]
    },
    {
      "cite": "Ark. Code Ann. \u00a7 18-60-102",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "weight": 2,
      "year": 1987,
      "pin_cites": [
        {
          "page": "(a)"
        }
      ],
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 486,
    "char_count": 8773,
    "ocr_confidence": 0.859,
    "pagerank": {
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      "percentile": 0.5619621066710839
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    "sha256": "f4a381dcf783b48c09263ac6933b86214bc748f05b32e3b4f7409037756676db",
    "simhash": "1:6a25f6dc39126ce5",
    "word_count": 1486
  },
  "last_updated": "2023-07-14T19:25:51.901471+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "I.B. ARNOLD and Ruth Arnold, Husband and Wife v. Mark LEE"
    ],
    "opinions": [
      {
        "text": "John I. Purtle, Justice.\nA jury verdict, in the sum of $6,508.00, was trebled by the trial court pursuant to the treble damages provision of Ark. Code Ann. \u00a7 18-60-102 (1987), involving trespass to property. The appellants argue on appeal: (1) that there is insufficient evidence to sustain the finding that they were trespassers; (2) that there is insufficient evidence to support the damages awarded by the jury; and (3) that, as a matter of law, it was error for the trial judge to treble the damages under the circumstances of this case. We do not agree with the appellant on any of these arguments and therefore affirm the judgment.\nAt the time the incident in question occurred, the appellants and appellee were neighbors in a rural area in Washington County, Arkansas. These parties used a road which ran along the east side of the appellee\u2019s property and into the southeast corner of the appellants\u2019 property. Other property owners, and presumably the public, also used this road when they wished to travel in the area.\nThe appellants decided to improve the road and trim the brush along the right-of-way in order to make travel more convenient. The matter was discussed between appellants and appellee and it was agreed that the trees and bushes along the road could be pruned and trimmed. The appellants employed a bulldozer operator who leveled not just the road but also a row of trees along the east boundary of the appellee\u2019s property near the road. In the process of widening and leveling the road, the embankment on the eastern boundary of appellee\u2019s property was also leveled and all of the trees, except one, were destroyed. Approximately a hundred small trees and much undergrowth, as well as an old fence, were eliminated by the project. The primary allegation of damages was for the loss of the privacy provided by the foliage. Additionally, the appellee sought damages for destruction of the trees and brush, erosion of his land and inconvenience caused by the project.\nIt is undisputed that the discussion between the appellants and the appellee related to \u201cpruning and trimming\u201d along the right-of-way as well as leveling the road itself. The first day the bulldozer operator was in the area he completed the appellants\u2019 driveway. He was instructed to come back the next day and work on the road. He was told to prune the brush and grade the embankment along the eastern edge of the appellee\u2019s property. At this point the bulldozer operator informed one of the appellants that he could not perform the task because of the four-foot embankment upon which the trees and fence were located. The operator suggested that the appellee\u2019s permission should be obtained before starting this work. The next day the operator explained to Mrs. Arnold that he would have to level the bank, the trees, the undergrowth, the fence row and all in order to accomplish the appellants\u2019 objective. After being so informed, Mrs. Arnold said, \u201cDo it.\u201d He did.\nThere was never any assertion that the appellants had any interest in the appellee\u2019s land outside of the roadway itself. Likewise, it is undisputed that the operator bulldozed about twenty-five feet onto the appellee\u2019s land for a distance of some two or three hundred feet. Although the appellee had agreed to the work on the road and even had promised to pay for part or all of the gravel used, the removal of the appellee\u2019s \u201cprivacy fence\u201d (the small trees and brush along the embankment) was never discussed.\nDuring the trial the appellee testified that he had incurred out-of-pocket expenditures of $1,908.00 in making repairs and restoring his property. Appellee also presented the testimony of an expert witness that it would cost an additional $4,600.00 to completely restore the property to the condition it was in before the road was \u201crepaired.\u201d There was some testimony concerning the value of the appellee\u2019s property before and after the work was accomplished, but it is clear that the jury did not use this testimony as the basis for the award of damages.\nThe applicable law is Ark. Code Ann. \u00a7 18-60-102(a) (1987), which in part provides:\nIf any person shall cut down, injure, destroy, or carry away any tree placed or growing for use or shade ... on the land of another person; shall dig up, quarry or carry away any stone, ground, clay, turf, mold, fruit, or plants;. . .the person so trespassing shall pay the party injured treble the value of the thing so damaged, broken, destroyed, or carried away, with costs.\nThere is clearly substantial evidence that the appellants, or their agent, entered upon the appellee\u2019s land and destroyed growing trees and underbrush. It is equally clear that the appellants knew the bulldozer operator was going to enter upon the appellee\u2019s land and take out the row of trees and the old fence. Although the appellants and the appellee had indeed discussed the road work and the \u201cpruning\u201d of the growth along the road, there was never any discussion concerning entry onto the appellee\u2019s property. The work that had been discussed could have been accomplished from the existing roadway without such a major alteration of the landscape.\nThe appellants argue that they had appellee\u2019s \u201cimplied consent\u201d to enter upon his lands and accomplish the work on the road. This issue was submitted to the jury by instruction number 11 and was decided against the appellants. The instruction was given without objection. It provided that if the jury found, from a preponderance of the evidence, that the appellants committed the trespass complained of, the verdict should be in favor of the plaintiff. The verdict was by interrogatory and the jury unanimously found that the appellants had committed a trespass. The jury answered \u201cyes\u201d to the following interrogatory:\nINTERROGATORY NO. 3: Do you find that the damages were done by the Arnolds or their agent intentionally and without probable cause for belief that the Arnolds owned the trees and land so damaged?\nThe trial court also instructed the jury in instruction 11 as to the procedure to be used in assessing appellee\u2019s damages. Without objection the jury was instructed as follows:\nYou may consider the reasonable expenses of necessary repair to any property which was damaged, taking into consideration its usable value during the time that plaintiff was deprived of its use, and the difference in the value of the land with the trees and ground undisturbed and the value of the land with the trees and ground removed as complained of, the purpose for which the owner intended to use the trees and ground and their reasonable value to him for such purposes, if any have been shown by the testimony.\nThe jury returned a verdict in favor of the appellee in the amount of $6,508.00. The court trebled this figure in accordance with the provisions of the code.\nThe appellant, for the first time, now argues that the trial court erred in giving instruction number 11 to the jury. This court has stated many times that we will not consider arguments presented for the first time on appeal. Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985).\nBoth parties rely on Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979). This decision does indeed contain support for both arguments. Stoner held that \u201cthe good faith argument by Ms. Stoner was a question of fact for the jury.\u201d The opinion approved the giving of an instruction defining malice as \u201cthe intentional doing of a wrongful act without justification or excuse.\u201d The opinion also stated that, in a proper case, either the jury or the court could treble the damages, but that it was preferable for the court to do so. We reversed because both the trial court and the jury trebled the compensatory damages suffered by the complaining party.\nBoth parties also cite Foran v. Molitor Ford, 279 Ark. 121, 649 S.W.2d 177 (1983). Again, we find support for both parties in that opinion. However, we held in Foran that the alleged tortfeasor had an \u201cinterest and right\u201d to be upon the land. Foran also involved the repair and \u201cimprovement\u201d of a rural road. It differs from the present case in that the appellants here did not assert an interest in or right to be upon the property of the appellee.\nAfter reviewing the evidence presented to the jury, we are of the opinion that there is substantial evidence to support the award of compensatory damages in the amount of $6,508.00. Moreover, we hold that the trial court properly trebled the damages awarded by the jury. Finding no prejudicial error, the case will be affirmed.\nAffirmed.",
        "type": "majority",
        "author": "John I. Purtle, Justice."
      }
    ],
    "attorneys": [
      "William A. Storey, for appellant.",
      "Estes, Estes & Gramling, by: Peter G. Estes, Jr., for appellee."
    ],
    "corrections": "",
    "head_matter": "I.B. ARNOLD and Ruth Arnold, Husband and Wife v. Mark LEE\n88-78\n756 S.W.2d 904\nSupreme Court of Arkansas\nOpinion delivered September 26, 1988\nWilliam A. Storey, for appellant.\nEstes, Estes & Gramling, by: Peter G. Estes, Jr., for appellee."
  },
  "file_name": "0339-01",
  "first_page_order": 365,
  "last_page_order": 370
}