
    Emma Long RHODES, Plaintiff-Appellant, v. James Minor RHODES, et al., Defendants-Appellees.
    No. 28293-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 1996.
    Robert R. Earle, Farmerville, for Appellant.
    Rabun & MeCallum by Jay B. McCallum, Farmerville, for Appellees.
    Before SEXTON, HIGHTOWER and BROWN, JJ.
   liSEXTON, Judge.

In this appeal from an action for damages for cutting of timber without consent, plaintiff, Emma Long Rhodes, claims that the trial court erred in refusing to award treble damages and that inadequate damages were awarded. We affirm.

FACTS

In September 1993, James Minor Rhodes, an employee of Auger Timber Company, supervised timber cutting on property owned by the Carroll family. The Carroll tract adjoined property owned by Emma Long Rhodes. During the process of cutting the trees, Auger crossed the boundary between the properties and cut trees on Mrs. Rhodes’ property.

Mrs. Rhodes filed suit against Auger Timber Company and James Rhodes (her nephew), seeking damages for the cutting of her trees without her consent and claiming entitlement to treble damages pursuant to the provisions of LSA-R.S. 3:4278.1. The court found treble damages unwarranted, but awarded plaintiff damages in the amount of $5,615.84 and attorney fees of $1,881.50. Plaintiff has appealed.

DISCUSSION

LSA-R.S. 3:4278.1 provides in part:

Art. 4278.1. Trees, cutting without consent; penalty
A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney’s fees.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for |2three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.
D. If a good faith violator of Subsection A fails to make payment under the requirements of this Section within thirty days after notification and demand by the owner or legal possessor, the violator shall also be responsible for the reasonable attorney fees of the owner or legal possessor.

(Emphasis added).

Relying on these provisions, the trial judge determined that the evidence failed to demonstrate that defendants “either willfully or intentionally violated Subsection A of the statute.” He, however, applied the “good faith” provisions of Subsection C to the resolution of this matter noting:

Apparently, there was a barbed wire fence at one time discernible on the east side of plaintiffs property. The fence has since fallen and grown in between trees and is barely discernible at all. Although defendant Rhodes observed portions of the fence prior to cutting, he believed the flagged line to be the boundary line....
- Defendant Rhodes did not blatantly ignore the plaintiffs property rights but made efforts to establish those rights.... Since the circumstances show that it was reasonable for defendant Rhodes to proceed as he did, no treble damages are due.

Plaintiff urges the application of Carroll v. International Paper Company, 94-302 (La.App.3d Cir. 11/02/94), 649 So.2d 474, writ denied, 94-2924 (La. 02/17/95), 650 So.2d 259 in brief. We distinguish Carroll on two grounds. First, the circumstances in Carroll occurred prior to the 1992 revision of La.R.S. 3:4278.1(C) which read:

C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed or removed. However, the provisions of this Section shall apply only to trees cut or removed across ownership lines, marked boundary lines, or outside of designated cutting area lines, and no provision herein shall apply to cutting operations within an area covered by a contract or agreement with the owner.

Notably, the exception clause in subsection C, added in 1987, reflects ajjtrend toward a less stringent standard for the application of treble damages than that which had previously existed. Nevertheless, it did not reflect the further slackened standard added by the 1992 revisions, providing that the reasonableness of the violator’s actions are to be considered before liability attaches.

Secondly, we find Carroll factually distinguishable. There, a forester relied upon a hand-drawn plat instead of making a more detailed inquiry. Also, the timber agreement was vague. An International Paper representative, attempting to physically locate the property, misread a metal plate marking the corner of the plaintiffs’ property, which led to the harvesting of fifty acres of timber from the wrong property.

In the instant case, Mrs. Rhodes had her timber thinned five years earlier but stopped short of her property line. Although Mrs. Rhodes claimed that this occurred because she did not want to further increase her tax liability for that year, Thomas Foster, a senior forest technician for International Paper who supervised the thinning stated that he was uncomfortable locating the boundary because the old fence was down in places. Foster painted a blue cutting line some distance back from the old fence.

James Rhodes stated that because the property description he obtained from the courthouse was vague, he made a physical inspection of the property noticing the old fence line, which he described as “one strand of barbed wire nailed to some trees.” Rhodes was aware that old fences are frequently found in the woods and do not always indicate ownership or boundary lines.

Rhodes also found a tree line that corresponded to the area that Mrs. Rhodes previously had thinned and felt it was the boundary between the Carroll and plaintiff tracts. Rhodes acknowledged that he did not contact his aunt or the Carrolls before cutting and that he did cut across the old dilapidated fence line which was the boundary between the properties.

|4In Carroll, the boundary was clearly marked by a metal plate which was misread by the representative of the timber company. In the present case, even the testimony of plaintiffs expert demonstrates that the boundaries were not clearly marked. As the trial court noted, the only marking of the boundary remaining was the old fence line which was barely evidenced. Indeed, our review of plaintiffs exhibits 6-9, the photographs of the site, reveal evidence of wire in only one picture, gleaned only after close scrutiny.

The trial court’s determination that defendants did not violate LSA-R.S. 3:4278.1(0) is a factual determination. Reasonable evaluations of credibility and inferences of fact should not be disturbed on review even where conflict exists in the testimony. Chambers v. Graybiel, 25840 (La. App.2d Cir. 6/22/94), 639 So.2d 361, 367, writ denied, 94-1948 (La.10/28/94), 644 So.2d 377. A court of appeal may not set aside a trial court’s or jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. In light of the evidence, we cannot find this determination clearly wrong.

Plaintiff also argues that the trial court’s damage award was inadequate and that it should have included amounts for large machinery to repair the fence, for loss of her right to determine the time and condition of timber sales, for deprivation of the opportunity to enjoy the property in its prior state and for mental anguish.

Much discretion is left to the judge or jury in the assessment of damages. Each case is different and the adequacy or inadequacy of the award should be determined by the facts or circumstances of the case under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), U.S. cert. denied sub. nom, Maritime Overseas Corp. v. Youn, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Plaintiffs rely on Baglio v. Gulf Coast Casualty Insurance Co., 617 So.2d 197 (La.App. 3d Cir.1993), in which the Baglios were awarded $1000 for loss of esthetic value and $1000 in general damages. In Baglio, however, the plaintiffs purpose in owning the property was to protect the view from their home. Further, they apprised cutters of the line before the majority of damage was done. These factors are not present in this ease. Further, defendants did not contest the amounts presented by plaintiff and the trial court awarded plaintiff all amounts for which evidence was presented. We, therefore, can not say that under the circumstances of the case, that the trial court limitation of recovery to actual damages was an abuse of discretion.

The judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiffs.

AFFIRMED.

BROWN, J., dissents in part with reasons.

liBROWN, Judge,

dissenting in part.

I disagree with the majority view that treble damages are not proper under La.R.S. 3:4278.1.

James Rhodes, an employee of Auger Timber Company, supervised a timber cutting operation on property in Union Parish owned by the Carroll family. The Carroll tract adjoined property owned by Rhodes’ aunt, Emma Long Rhodes. Disregarding an old fence line, the timber company crossed the boundary between the properties and cut trees on approximately three acres of Mrs. Rhodes’ property.

James Rhodes testified that because the property description he obtained was vague, he followed standard practice and made a physical inspection of the land. Rhodes looked first in the area he suspected was the boundary and found the old fence. Rhodes clearly knew that old fences usually, but not always, are boundaries. The condition of the old fence is irrelevant. As a professional in the timber industry, Rhodes should have investigated further.

La.R.S. 3:4278.1, following its amendment in 1992, provides in part:

C. Whoever violates the provisions of Subsection A in good faith shall be hable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees. (Emphasis added).

In Carroll v. International Paper Company, 94-302 (La.App.3d Cir. 11/02/94), 649 So.2d 474, writ denied, 94-2924 (La. 02/17/95), 650 So.2d 259, the court, noting that the cutting was not willful or intentional, but rather was caused by a mistake on defendants’ part, found:

In this case, the taking did occur across marked boundary lines and outside the designated cutting area. The contention of mistake by International Paper Company does not change that fact. Additionally, the record is clear that the circumstances surrounding the actions of International Paper | ^Company are such that it should have been aware it was on the wrong property....
It is incumbent upon the professionals in the timber industry to take the necessary steps to assure proper location in conjunction with cutting activities. International Paper Company has access to timber cruisers, surveyors, and other personnel whose obligation to the company and the public is to see that the right tract is cut. A mistake of this magnitude is exactly what the statute contemplated when it provided for treble damages. (Emphasis added).

Carroll, 649 So.2d at 478.

Carroll, supra, was decided under pre-amendment R.S. 3:4278; however, the 1992 amendment did not change the criteria set forth in Carroll. The Carroll court applied the “should have been aware” standard. The 1992 amendment actually expanded coverage by removing restrictive language that “the provisions of this Section shall apply only to” certain situations. The amendment did not, as stated by the majority, “further slacken” the “should have been aware” standard for treble damages as applied in the Carroll case.

In the instant case, Mrs. Rhodes had her timber thinned five years earlier; however, this thinning stopped short of her property line. Thomas Foster, a senior forest technician for International Paper, supervised the thinning. Foster stated that he found the old fence line but because the fence was down in places, he knew it would be difficult to accurately run the entire line; however, he clearly recognized the old fence as the property boundary. Foster further testified that he painted a blue cutting line some distance back from the old fence because Mrs. Rhodes did not want the big trees near the property line cut.

Foster stated that it was his practice to get a legal description of the property from the tax assessor’s office and to then physically inspect the property to locate the boundary. When unable to locate the fines on his own, Foster would have the landowner point out the fines or he would look in the conveyance records. Foster stated that it was insufficient to cut timber relying upon a tax assessor’s ^description without speaking to the landowner.

James Rhodes, plaintiff’s nephew, supervised the timber harvest on the Carroll tract for his employer, Auger Timber Company. Rhodes stated that the property description he obtained from, the courthouse was vague. Rhodes made a physical inspection of the property and first found the old fence fine, which he described as “one strand of barbed wire nailed to some trees.” According to Rhodes, old fences are frequently found in the woods and do not always indicate ownership or boundary lines. This particular old fence, however, was found where Rhodes first looked for the boundary.

After finding the old fence, Rhodes also found a tree fine that corresponded to the area that Mrs. Rhodes had previously had thinned and assumed it was the boundary between the tracts. Rhodes acknowledged that he did not contact his aunt or the Car-rolls before cutting and that he did cut across the old fence fine which was the boundary between the properties.

In addition to Foster and James Rhodes, both plaintiff and her son, John Rhodes, testified to the existence of the old fence fine. They also indicated that this fence line was always considered the boundary between the properties. It was John Rhodes who discovered the trespass and wrongful cutting.

The issue is not how discernable or dilapidated the old fence was, but rather, once the fence was found, whether Rhodes, a professional in the timber industry, should have investigated further. After obtaining a vague property description, Rhodes inspected the property and found two possible boundaries between the adjoining tracts. Thus, Rhodes had notice that the boundary was questionable and as a timber professional, should have ascertained whether the old fence or the tree fine was the actual boundary between the properties. In this case, all James Rhodes had to do was ask his aunt, who lived just down the road, or his Uclients, the Carrolls. However, as in Carroll, swpra, defendants cut across a marked property fine, i.e., the old fence.

In many similar instances such a trespass would go undetected and did, in fact, go unnoticed by the elderly Mrs. Rhodes. Some time later, Mrs. Rhodes’ son saw the cut over property and asked first his mother and then his cousin about it. Only after such a trespass is discovered can an owner attempt to determine how much timber was wrongfully cut through the difficult process of counting the stumps and estimating size.

The circumstances in this case are more egregious than those in Carroll, supra, where the mistake was in misreading a marker. These defendants saw the old fence and were on notice of a possible boundary. A marker was not misread. If these defendants had any more information, such as hearsay concerning the boundary, they would have been in bad faith. Under the majority view, it is difficult to conceive of a good faith situation where treble damages could be awarded. Under these circumstances defendants should have asked the landowners, particularly in fight of the fact that Rhodes’ aunt resided in the area. A lesser duty would render the statute impotent. This mistake is exactly what the statute contemplated when it provided for treble damages.

For these reasons, I believe that plaintiff is entitled to treble damages and must disagree with the majority opinion.  