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North v. Dyke

Court of Appeals of Iowa

September 13, 2017

EUNICE F. NORTH, Plaintiff-Appellee,
v.
DOUGLAS K. VAN DYKE, Defendant-Appellant.

         Appeal from the Iowa District Court for Boone County, Michael J. Moon, Judge.

         Douglas Van Dyke appeals following a jury verdict in favor of Eunice North on claims for trespass, loss of lateral support, and loss of trees.

          Brian L. Yung of Klass Law Firm, L.L.P., Sioux City, for appellant.

          Jon H. P. Foley of Nyemaster Goode, P.C., Ames, for appellee.

          Vaitheswaran, P.J., Tabor, J., and Blane, S.J. [*]

          VAITHESWARAN, Presiding Judge.

         Douglas 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 property.

         North sued Van Dyke and Heck's Dozer, Inc. for trespass, loss of lateral support, and loss of trees.[1] 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 posttrial motions.

         Van 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 remedy.

         I. Loss of Trees - Treble Damages

         North's 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.

         The jury awarded North $6700 for the loss of trees, which when trebled, resulted in damages of $20, 100.

         Van 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.

         The 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 excuse."

         According 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 different plan."

         "Later 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 ...


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