| Fernandes v Morgan |
| 2012 NY Slip Op 04258 [95 AD3d 1626] |
| May 31, 2012 |
| Appellate Division, Third Department |
| Voss J. Fernandes et al., Appellants, v Betty S. Morgan et al.,Defendants, and James Gee, Respondent. (And Another RelatedAction.) |
—[*1] Fitzsimmons Law Firm, Watkins Glen (Daniel J. Fitzsimmons of counsel), forrespondent.
Peters, P.J. Appeals (1) from an order of the Supreme Court (O'Shea, J.), entered November30, 2010 in Chemung County, which, among other things, found defendants Betty S. Morgan andLeander Morgan liable for treble damages, and (2) from the judgment entered thereon.
Plaintiffs own roughly 55 acres of real property in the Town of Veteran, Chemung County,the northern 15 acres of which are erroneously included in the deed description of propertyowned by plaintiffs' neighbor, defendant Betty S. Morgan. Beginning in 1986, Morgan and herson, defendant Leander Morgan, attempted to assert ownership of plaintiffs' northern 15 acres. In2004, the Morgans entered into a timber contract with defendant James Gee (hereinafterdefendant), a logger, to harvest trees from the disputed property. Apparently unaware of theparties' property dispute and relying on the Morgans' representations that Betty Morgan ownedthe disputed 15 acres, defendant began harvesting the trees in April 2005.
After plaintiffs learned of defendant's activities on their land, they commenced this [*2]action against defendant and the Morgans seeking treble damagesfor the injuries to their property pursuant to RPAPL 861 (1). Following a nonjury trial, SupremeCourt found the Morgans liable to plaintiffs, but dismissed their claims against defendant basedon an indemnification agreement between defendant and the Morgans. Plaintiffs appealed thatorder and moved to reargue before Supreme Court. The court denied plaintiffs' motion, this timeon the ground that defendant was not a "culpable party" under RPAPL 861 sufficient to imposeliability upon him for the damage to plaintiffs' property. A judgment was issued awardingplaintiffs treble damages against the Morgans, for a total award of $81,768.96 plus interest.Plaintiffs appeal.
To the extent that Supreme Court found that dismissal of plaintiffs' claims against defendantwas warranted based on the existence of an indemnification agreement between the Morgans anddefendant, this was error. The indemnification agreement relied upon by Supreme Court merelyestablished the Morgans' obligation to hold defendant harmless in the event that he was heldliable for his logging activities. As such, the existence of the agreement did not affect plaintiffs'right to a judgment against defendant based on his conduct but, rather, simply represented anallocation of the risk of liability among defendant and the Morgans (see generally Federal Ins.Co. v Walker, 53 NY2d 24, 32-33 [1981]).
Nor did Supreme Court's alternate finding—that defendant did not "possess[ ] even aminimal degree of culpability" in harvesting plaintiffs' timber—provide a basis fordismissing plaintiffs' claims against defendant. RPAPL 861 (1) permits a property owner tomaintain an action against "any person" who, without the owner's consent, "cuts, removes,injures or destroys, or causes to be cut, removed, injured or destroyed, any underwood, tree ortimber [from the owner's] land" and recover from that person damages amounting to "treble thestumpage value of the tree or timber or [$250] per tree, or both" for the injury (see Vanderwerken v Bellinger, 72AD3d 1473, 1474 [2010]). To escape the statute's default imposition of treble damages, thetrespasser bears the burden of proving, by clear and convincing evidence, that "he or she hadcause to believe the land was his or her own . . . or [that] he or she had a legal rightto harvest such land" (RPAPL 861 [2]; see Vanderwerken v Bellinger, 72 AD3d at 1475;Krieg v Peters, 46 AD3d 1190,1191 [2007]). Yet, even where the trespasser is able to prove this good faith belief in his or herlegal right to harvest the property, he or she will still be "liable [to the property owner] for thestumpage value or [$250] per tree, or both," for the otherwise unlawful taking (RPAPL 861 [2];see Miller v Moore, 68 AD3d1325, 1327 [2009]).
Here, plaintiffs proved, and defendant does not contest, that defendant entered onto theirproperty and removed trees without their consent, thereby establishing their prima facieentitlement to treble damages against defendant (see RPAPL 861 [1]). The burden thusshifted to defendant to mitigate those damages by showing that he had cause to believe that hehad a legal right to harvest plaintiffs' trees (see RPAPL 861 [2]; see e.g.Vanderwerken v Bellinger, 72 AD3d at 1475). At trial, Leander Morgan testified that, whenhe contracted with defendant to harvest the trees, he told defendant that his mother ownedplaintiffs' property, provided him with Betty Morgan's deed to her property and a taxmap—both of which showed that she owned plaintiffs' land—and flagged andpainted the purported boundaries of Betty Morgan's property in such a way as to includeplaintiffs' parcel within it. Upon our independent review of the record and giving due deferenceto Supreme Court's credibility determinations (see Richmor Aviation, Inc. v Sportsflight Air, Inc., 82 AD3d 1423,1424 [2011]; Shon v State of NewYork, 75 AD3d 1035, 1036 [2010]), we agree that defendant proved by clear andconvincing evidence that he had good cause to believe that he had a legal right to cut plaintiffs'trees (compare Krieg v Peters, 46 [*3]AD3d at1191-1192). We iterate, however, that inasmuch as a trespasser's good faith belief in a legal rightto harvest timber does not absolve that person from all liability under RPAPL 861, but merelysaves him or her from having to pay the plaintiff treble damages (see RPAPL 861 [2];Miller v Moore, 68 AD3d at 1327), defendant is liable to plaintiffs for damagesamounting to the stumpage value of plaintiffs' trees (see RPAPL 861 [2]).
Mercure, Stein, McCarthy and Garry, JJ., concur. Ordered that the order and judgment aremodified, on the law, without costs, by reversing so much thereof as dismissed plaintiffs' claimsagainst defendant James Gee; matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.