EUNICE F. NORTH, Plaintiff-Appellee,
DOUGLAS K. VAN DYKE, Defendant-Appellant.
from the Iowa District Court for Boone County, Michael J.
Van Dyke appeals following a jury verdict in favor of Eunice
North on claims for trespass, loss of lateral support, and
loss of trees.
L. Yung of Klass Law Firm, L.L.P., Sioux City, for appellant.
P. Foley of Nyemaster Goode, P.C., Ames, for appellee.
Vaitheswaran, P.J., Tabor, J., and Blane, S.J. [*]
VAITHESWARAN, Presiding Judge.
Van Dyke hired Heck's Dozer, Inc. to construct a trail in
rural Boone County along a ravine between his property and
adjacent land owned by Eunice North. Twenty of North's
trees were removed during the trail's construction, and a
portion of the completed trail encroached upon North's
sued Van Dyke and Heck's Dozer, Inc. for trespass, loss
of lateral support, and loss of trees. The jury awarded
North damages of $50, 000 on the trespass and lateral support
claims and $20, 100 in treble damages on the loss-of-tree
claim. The jury held Van Dyke 75% responsible and Heck 25%
responsible. Van Dyke appealed following the denial of his
Dyke asserts the district court should have (1) directed a
verdict in his favor on North's loss-of-tree claim, (2)
included additional language in a jury instruction on the
measure of damages for trespass and loss of lateral support,
(3) granted a new trial on the trespass claim on the ground
that the "verdict for encroachment and/or trespass [was]
not supported by substantial evidence and [was] contrary to
the jury instruction capping damages, " and (4)
exercised equitable jurisdiction and considered an equitable
Loss of Trees - Treble Damages
loss-of-tree claim was premised on Iowa Code section 658.4
(2013), which states:
For willfully injuring any timber, tree, or shrub on the land
of another, or in the street or highway in front of
another's cultivated ground, yard, or city lot, or on the
public grounds of any city, or any land held by the state for
any purpose whatever, the perpetrator shall pay treble
damages at the suit of any person entitled to protect or
enjoy the property.
jury awarded North $6700 for the loss of trees, which when
trebled, resulted in damages of $20, 100.
Dyke contends North failed to prove he "willfully"
destroyed North's trees. In his view, the district court
should have granted his motion for directed verdict.
jury was instructed it would have to find Van Dyke
"acted willfully or without reasonable
excuse." (Emphasis added.) The jury did not receive a
definition of the term "willfully." The Iowa
Supreme Court has defined the term as "an act done
wantonly, and without any reasonable excuse." Cozad
v. Strack, 119 N.W.2d 266, 271 (Iowa 1963)
(quoting Werner v. Flies, 59 N.W. 18, 19 (Iowa
1894)); accord Hurley v. Youde, 503 N.W.2d
626, 627 (Iowa Ct. App. 1993); cf. Clark v.
Sherriff, 74 N.W.2d 569, 573 (Iowa 1956) (citing this
definition but noting "the word 'wantonly' is as
elastic as 'willfully'"). The term also has been
characterized as an intentional and deliberate act
"without regard to the rights of others."
Bangert v. Osceola Cty., 456 N.W.2d 183,
188-89 (Iowa 1990). Id. at 189; Cozad, 119
N.W.2d at 272. A reasonable juror could have found the
willfulness component satisfied or, alternatively, could have
found Van Dyke "acted . . . without reasonable
to North, Van Dyke approached her about his plan to build the
trail. North had "no idea" what he was talking
about. She "shrugged [her] shoulders" and said she
"guessed it would be okay." Then North "began
to worry." She sought the advice of a friend, who said
the trail was "not a good idea at all." North told
Van Dyke, "I don't want you on my land at all."
She testified, "I don't know how I could make it any
clearer." Van Dyke responded that he would "go to a
on, " North heard a "loud commotion." Standing
on her deck, she saw "two pieces of heavy
equipment" below and "trees . . . flying." She
decided not to go into the ravine to check on the commotion
because she was "afraid" she would get "hit
with something, " and she had physical difficulties
getting "down there." Suspicious of an encroachment
on her land, she commissioned ...