Longenecker v. Zimmerman

267 P.2d 543 (1954)

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Nature of the Case

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Facts

P alleged in her petition that she was the owner of certain described real estate, and D without her permission hired and caused the Arborfield Tree Surgery Company, its agents and employees, to go upon her property and top off, injure and in effect destroy three cedar trees of the value of $150 each, which trees were growing upon plaintiff's property and were both shade and ornamental in their presence. The trees were located some two or three feet north of P's south boundary line. The trees before being topped were 20 to 25 feet high and were as she wanted them on her property. About 10 feet were cut off the tops of the trees, and from such topping, the trees would never grow any higher, and she didn't want them to stop growing. Cedars are not pruned from the top, but are feathered and shaped and not cropped. P considered the trees destroyed by improper pruning. She attached a sentimental value to them as they stood; they served a special purpose, were both shade and ornamental trees. D claims that the trees, prior to the time they were topped, seemed to be dying out at the top and they also contained bagworms and that the work done was beneficial to the trees and that they were not injured. D also testified that she was mistaken as to the boundary line and believed the trees were her property. The trial court refused P’s instruction that D was liable for at least nominal damages. The trial court instructed the jury that it was required to determine whether the evidence showed that injury had occurred to the trees and, if so, whether and to what extent damages should be awarded. The jury returned a general verdict for D. P appealed.