{
  "id": 8520928,
  "name": "JERALD D. HARPER and wife, VIRGINIA HARPER v. BILLY MORRIS, T/A MORRIS LOGGING COMPANY",
  "name_abbreviation": "Harper v. Morris",
  "decision_date": "1988-03-01",
  "docket_number": "No. 874SC769",
  "first_page": "145",
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  "last_updated": "2023-07-14T22:39:00.818604+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Johnson and Phillips concur."
    ],
    "parties": [
      "JERALD D. HARPER and wife, VIRGINIA HARPER v. BILLY MORRIS, T/A MORRIS LOGGING COMPANY"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nIt is well settled law in our state that when trees are unlawfully cut from the land of another, \u201cclaimant is entitled to either the difference in fair market value of the land before and after the cutting or the market value of the timber at the time and place of its severance plus incidental damages caused in removal, whichever he elects.\u201d Simpson v. Lee, 26 N.C. App. 712, 715, 217 S.E. 2d 80, 82 (1975). Here the plaintiffs elected the diminished value measure, calculated by the difference in market value before and after the cutting.\nDefendant contends the trial court erred by instructing the jurors that they could consider certain factors in determining the diminished value of plaintiffs\u2019 property. These factors are:\nthe purpose for which these particular trees and shrubs cut, were grown and maintained; the cost of replacement or restoration of the same to the extent that it is reasonable and practicable; that is, not being excessive in relation to the damage to the land itself; and the contemplated use of the particular lands from which the timber and shrubs were cut or removed, including any aesthetic value to the landowners of such trees and shrubs.\nAccording to defendant, this instruction impermissibly expands the elements of damages recoverable in trespass actions. We disagree. Each element of the instruction has some relevance in determining the diminished value of plaintiffs\u2019 property.\nThe purpose for which these trees and shrubs were grown and maintained and the contemplated use of the land including aesthetic value to the landowners, in our opinion, directly affects the market value of this property. Similarly the cost of producing the trees and shrubs has some bearing on the value of plaintiffs\u2019 land, and one factor in determining the diminished value would be the cost of replacing or restoring the trees and shrubs to the same extent as is reasonably practicable. Diggs v. Railroad, 131 Mo. App. 457, 110 S.W. 9 (1908). See generally Annot. \u201cMeasure of Damages for Injury to or Destruction of Shade or Ornamental Tree or Shrub,\u201d 95 A.L.R. 3d 508 (1979).\nAppellant next contends the trial court erred by admitting evidence of replacement cost.\nWe believe the testimony of the cost of replacing these trees and shrubs presented by plaintiffs\u2019 expert witness was relevant and properly admitted. Its probative value was not outweighed by any possible prejudicial impact on the jury, particularly where as here the trial court cautioned the jury to consider replacement cost only to the extent \u201cthat it is reasonable and practicable; that is, not being excessive in relation to the damage to the land itself . . . .\u201d We find no error by the trial court in admitting this testimony.\nWe have examined defendant\u2019s remaining assignments of error and find them to be without merit. The judgment of the trial court is affirmed.\nAffirmed.\nJudges Johnson and Phillips concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
    ],
    "attorneys": [
      "Harrison, Heath and Simpson, P.A., by Fred W. Harrison, attorney for plaintiff-appellees.",
      "Ward, Ward, Willey & Ward, by Joshua W. Willey, Jr., attorney for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "JERALD D. HARPER and wife, VIRGINIA HARPER v. BILLY MORRIS, T/A MORRIS LOGGING COMPANY\nNo. 874SC769\n(Filed 1 March 1988)\n1. Trespass \u00a7 8.2\u2014 unlawful cutting of trees and shrubs \u2014 diminished value of land \u2014 instructions on factors to be considered\nIn an action to recover damages for the wrongful cutting of trees and shrubs from plaintiffs\u2019 land, the trial court did not err in instructing the jury that, in determining the diminished value of plaintiffs\u2019 property, it could consider the purpose for which the trees and shrubs were grown and maintained, the contemplated use of the land including aesthetic value to the landowners, and the cost of replacing or restoring the trees and shrubs to the extent that such is reasonable and practicable.\n2. Trespass \u00a7 8.2\u2014 wrongful cutting of trees and shrubs \u2014 evidence of replacement costs\nIn an action to recover damages for the wrongful cutting of trees and shrubs from plaintiffs\u2019 land, testimony by plaintiffs\u2019 expert witness of the costs of replacing the trees and shrubs was relevant and properly admitted.\nAppeal by defendant from Stevens, Judge. Judgment entered 13 February 1987 in Superior Court, Duplin County. Heard in the Court of Appeals 6 January 1988.\nThis is an action in trespass, in which plaintiffs sought damages for defendant\u2019s unauthorized cutting of trees and shrubs from plaintiffs\u2019 land. Defendant by mistake or inadvertence cut approximately 180 trees and shrubs of various kinds and sizes from two acres of plaintiffs\u2019 property.\nPlaintiffs testified that they planned to build a retirement home for themselves on this tract and were very disappointed when they discovered the trees and shrubs had been cut. Plaintiffs and their children and grandchildren went to this property often for recreational purposes. They enjoyed swimming in two man-made ponds located on the property. Plaintiffs do not know whether they will build their retirement cottage on this property now that the trees and shrubs are gone.\nDefendant introduced the testimony of an expert in real estate appraisal that the market value of the tract was $6,000 before the cutting and $5,100 after. Plaintiff Jerald Harper, on direct examination, stated that he thought his property was diminished in value by $10,000. On cross-examination, however, Mr. Harper testified that the property was worth $50,000 before the cutting and that its value was \u201cprobably diminished by half\u2019 afterward. Over defendant\u2019s objection the trial court permitted plaintiffs to introduce the opinion of an expert nurseryman that it would cost approximately $30,000 to replace the trees and shrubs.\nThe jury returned a verdict in favor of plaintiffs for $10,000. Pursuant to its own motion, the trial court remitted the award to $6,500. Plaintiffs did not object to the remittitur. Defendant appeals.\nHarrison, Heath and Simpson, P.A., by Fred W. Harrison, attorney for plaintiff-appellees.\nWard, Ward, Willey & Ward, by Joshua W. Willey, Jr., attorney for defendant-appellant."
  },
  "file_name": "0145-01",
  "first_page_order": 173,
  "last_page_order": 175
}
