[Cite as Brewer v. Dick Lavy Farms, L.L.C., 2016-Ohio-4577.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     DARKE COUNTY

 JAMES BREWER                                         :
                                                      :
         Plaintiff-Appellee                           :    Appellate Case No. 2015-CA-7
                                                      :
 v.                                                   :    Trial Court Case No. 2013-CV-663
                                                      :
 DICK LAVY FARMS, LLC, et al.                         :    (Civil Appeal from
                                                      :    Common Pleas Court)
         Defendant-Appellant                          :
                                                      :

                                              ...........

                                              OPINION

                            Rendered on the 24th day of June, 2016.

                                              ...........


JOSE M. LOPEZ, Atty. Reg. No. 0019580, 18 East Water Street, Troy, Ohio 45373
     Attorney for Plaintiff-Appellee

EDWARD J. DOWD, Atty. Reg. No. 0018681, KEVIN A. LANTZ, Atty. Reg. No. 0063822,
8163 Old Yankee Street, Suite C, Dayton, Ohio 45458
      Attorneys for Defendant-Appellant


                                            .............




WELBAUM, J.
                                                                                         -2-


       {¶ 1} In this case, Defendant-Appellant, Dick Lavy Farms, L.L.C. (“DLF”), appeals

from a judgment of $148,350 in favor of Plaintiff-Appellee, James Brewer. In support of

its appeal, DLF contends that the trial court erred in failing to apply DLF’s common law

privilege to cut off, sever, destroy, mutilate, or otherwise eliminate branches of an

adjoining tree that encroaches on its property. DLF further contends that the trial court

erred by failing to apply prior authority in our district regarding the proper measure of

damages. Alternatively, DLF contends that the trial court’s damages holding was against

the manifest weight of the evidence.

       {¶ 2} DLF also argues that the trial court erred when it found that Lavy negligently

trespassed on Brewer’s land. Alternatively, DLF maintains that this finding was against

the manifest weight of the evidence. Finally, DLF argues that the court’s finding of

recklessness was against the manifest weight of the evidence.

       {¶ 3} We conclude that the trial court’s judgment regarding damages was against

the manifest weight of the evidence. However, the remaining assignments of error are

without merit. Accordingly, the judgment of the trial court will be affirmed as to liability

and reversed as to damages. This matter will be remanded for a new hearing on

damages.



                              I. Facts and Course of Proceedings

       {¶ 4} Around 2006, James Brewer purchased slightly over 70 acres of property on

Hartle Road in Darke County, Ohio, for $180,000. About 30 acres of the land were

tillable, and 40 acres were wooded. The only access to the tillable and wooded property

was via a 20-25 foot wide lane.
                                                                                       -3-


      {¶ 5} When Brewer purchased the property, the former owner had allowed DLF to

farm the property, and the lane was never used. As a result, trees had grown up in the

center of the lane. Brewer trimmed these trees and made a tunnel out of the lane to

access the rest of the property. The lane ran west to east for about 3,600 feet, and had

trees on both the north and south sides of the lane. DLF’s property bordered Brewer’s

property on the south. The trees in the fence row were a woodland mix; none of the

trees were ornamental or unique.

      {¶ 6} In January 2013, Dick Lavy, DLF’s owner, ordered his employee, Bill

Hawkey, to clear the fence row between the two properties. At the time, Lavy understood

that he could clear brush straight up and down the property line. Clearing a fence row is

important for crops, because trees will grow out and take over a field. In addition, the

tree growth impacts the yield and growth of crops that are planted, and poses a hazard

to farm equipment.

      {¶ 7} Lavy sent Hawkey out with a track hoe, which was the equipment that he had

available. DLF presented testimony that this is a standard method of clearing fence rows

in Darke County, Ohio.

      {¶ 8} Hawkey used a 200 John Deer track hoe, which had an arm that could reach

about 15 feet in the air. The track hoe had a bucket at the end of the arm. Hawkey had

used the track hoe in the past, while clearing fence rows for DLF. Using the track hoe,

Hawkey reached up, grabbed limbs, and pulled on them, trying to break them off cleanly.

While reaching up, Hawkey attempted to keep the track hoe on DLF’s side of the property.

There were occasions when a branch would snap off or tear the tree on Brewer’s side.

Occasionally, a tree branch would fall on Brewer’s side, and Hawkey would reach over
                                                                                      -4-


and grab the branch to clean up. Hawkey stated that he never consciously reached over

with the bucket to try and break a branch at the tree trunk that was on Brewer’s side of

the property. Hawkey did indicate that he could not always control the damage to a tree

that he would touch with the track hoe. However, he never consciously attempted to

reach over the fence for any reason other than cleaning up debris. During this process,

Hawkey was also clearing trees that were on DLF’s side of the fence.

      {¶ 9} Brewer did not live at the property on Hartle Road. When he learned that

DLF was clearing the fence row, he went out to look at the property. At that point, the

track hoe was about halfway down the fence row, destroying trees. Brewer called the

police on January 18, 2013, to complain. After speaking with Brewer, Darke County

Sheriff’s Deputy, Thomas Nichols, contacted the Darke County Prosecutor, and then

called Lavy to tell him that a complaint had been made. Nichols told Lavy of his concern

that civil or criminal issues could be involved in what he was doing. Lavy stated that he

had a right to take down any branches that were hanging over his property. In addition,

Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he

wanted the branches removed before crop season began in March or April.

      {¶ 10} Nichols then told Brewer about Lavy’s position. Nichols told Brewer that

Lavy had said that he was allowed to take tree branches from his side, and that if Brewer

did not like the way he was doing it, Brewer could cut them himself. Nichols went out the

following day and took photos of the property.     Nichols observed some damage on

Brewer’s side of the line. Brewer told Nichols that he was going to have an expert look

at the trees. Nichols asked Brewer to give him an estimate of the damages, but never

received an estimate. Nichols then filed a report and sent the report to the prosecutor’s
                                                                                            -5-


office for review. No charges were brought as a result of the incident.

       {¶ 11} Although Nichols had suggested that Lavy obtain legal advice before

continuing, Lavy told Hawkey to continue clearing the fence row. Knowing that Brewer

was upset, Lavy told Hawkey not to clean up any branches that fell on Brewer’s side.

After finishing clearing the line, Hawkey dug a hole on DLF’s side and burned the tree

debris using a controlled burn. Before Hawkey burned the debris, he called the fire

department.

       {¶ 12} Within days after the damage occurred, Brewer’s wife took photos of the

trees. In April 2013, Brewer and arborist, David Furlong, walked in DLF’s field and the

lane. They counted the damaged trees, disregarding anything less than three inches in

diameter. They counted 326 trees that had been damaged.

       {¶ 13} In November 2013, Brewer filed suit against DLF, alleging three claims: (1)

a violation of R.C. 901.51; (2) reckless trespass; and (3) negligent trespass. DLF filed

an answer and counterclaim, based on Brewer’s alleged damage to a culvert on DLF’s

property in the summer of 2012.

       {¶ 14} Prior to trial, the court filed a decision discussing cross motions in limine the

parties had filed concerning the proper measure of damages. The court held that Brewer

was not limited to damages for diminution in value, and the court would apply a standard

that allowed recovery of the costs of restoration.

       {¶ 15} The case was subsequently tried to the bench on March 10 and 11, 2015.

The court had also previously viewed the scene in October 2014. Following the trial, the

court filed a decision, awarding Brewer $148,350 in damages, including treble damages

of $133,515. This appeal followed.
                                                                                          -6-




                                    II. Common Law Privilege

       {¶ 16} DLF’s First Assignment of Error states that:

              The Trial Court Erred as a Matter of Law to the Prejudice of DLF

       When It Failed to Apply Appellant’s Common Law Privilege, Based on the

       Ohio Constitution, to Cut Off, Sever, Destroy, Mutilate, or Otherwise

       Eliminate Branches of an Adjoining Landowner’s Tree that Encroached on

       Its Land, and Erroneously Created a Conflict between the Privilege and R.C.

       901.51.

       {¶ 17} Under this assignment of error, DLF contends that it had a common law

privilege to sever or eliminate overhanging branches in any manner that it desired, and

that the trial court nullified the privilege by holding that DLF could not cause breakage

that impacts the tree on the other side of the property line. According to DLF, this holding

emasculates the common law privilege and creates a conflict between R.C. 901.51 and

a property owner’s constitutional rights.

       {¶ 18} R.C. 901.51 provides that:

              No person, without privilege to do so, shall recklessly cut down,

       destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop

       standing or growing on the land of another or upon public land. In addition

       to the penalty provided in section 901.99 of the Revised Code, whoever

       violates this section is liable in treble damages for the injury caused.

       {¶ 19} “A privilege existed at common law, such that a landowner could cut off,

sever, destroy, mutilate, or otherwise eliminate branches of an adjoining landowner's tree
                                                                                          -7-

that encroached on his land.” Alh Properties, P.L.L. v. Procare Automotive Serv. Sols.,

L.L.C., 9th Dist. Summit No. 20991, 2002-Ohio-4246, ¶ 18, citing Murray v. Heabron, 35

O.O. 135, 135, 74 N.E.2d 648 (C.P.1947).

       {¶ 20} R.C. 901.51 was enacted in 1974, replacing former R.C. 2907.44, which

contained essentially the same provisions. The only difference is that the former statute

carried a penalty of a fine or imprisonment, while the new statute provided an additional

right to treble damages for reckless behavior. Wooten v. Knisley, 79 Ohio St.3d 282,

285-86 and fn. 2, 680 N.E.2d 1245 (1997).

       {¶ 21} In Wooten, the court held that “the term ‘recklessly,’ as that term is used in

R.C. 901.51, has the same meaning in a civil claim for treble damages under R.C. 901.51

as it does in a criminal proceeding involving a violation of that statute. Specifically, the

term ‘recklessly,’ as it is used in R.C. 901.51, is defined in R.C. 2901.22(C).” Id. at 289-

90. Under R.C. 2901.22(C):

       A person acts recklessly when, with heedless indifference to the

       consequences, the person disregards a substantial and unjustifiable risk

       that the person's conduct is likely to cause a certain result or is likely to be

       of a certain nature. A person is reckless with respect to circumstances

       when, with heedless indifference to the consequences, the person

       disregards a substantial and unjustifiable risk that such circumstances are

       likely to exist.1

       {¶ 22} As an initial matter, we disagree with DLF, insofar as it argues that


1
 This is taken from the new version of R.C. 2901.22(C) that became effective on March
23, 2015. However, there is no significant distinction between the wording of the new
statute and the version applied in Wooten.
                                                                                         -8-


individuals exercising their common law privilege to cut down branches could never be

held liable for doing so. Clearly, that is not the case, as even in situations involving

common law privilege, a landowner should not act in a manner as to cause damage to

the property of an adjoining landowner. Thus, while a privilege exists, it is not absolute.

       {¶ 23} In Newport Harbor Assn. v. DiCello, 8th Dist. Cuyahoga No. 87126, 2006-

Ohio-4493, the court observed that “the law holds a high regard for an individual's right to

own property and treats harshly those who infringe upon that right. In the absence of

some agreement to the contrary, a property owner has no right to encroach on the land

of another.” (Citations and footnote omitted.) Id. at ¶ 28. The court went on to note

that “it is a well-recognized principle of common law that a landowner has the right to

protect his own land from threatened injury, even though, in doing so, he produces a

condition that injures adjoining land, provided he acts with reasonable care. Ohio has

recognized the right of a property owner to use self-help in removing encroachments on

his property. Other jurisdictions also recognize the right of an owner to remove any

encroachment on his property which deprives him of the complete enjoyment of his land.”

(Citations and footnotes omitted.) (Emphasis added.) Id. at ¶ 29.

       {¶ 24} The critical phrase is “reasonable care.”       DLF’s privilege to remove

encroachments was limited by the use of reasonable care not to injure neighboring

property. By imposing a standard of recklessness, which requires a higher degree of

fault, R.C. 901.51 does not interfere with the common law privilege. We also stress that

owners have an absolute right to destroy any vegetation on their own side of the property;

liability attaches only where, as here, the owners’ actions create harm on the other side

of the property line.
                                                                                       -9-


      {¶ 25} By way of analogy, R.C. 971.08 allows owners or contractors to enter up to

ten feet onto adjoining property to build and maintain partition fences. However, the

owner or contractor is statutorily “liable for all damages caused by the entry onto the

adjoining property, including damages to crops.” Id. Again, a privilege exists, but it is

not unlimited. Whether or not DLF used reasonable care is a subject we will consider in

connection with DLF’s Third Assignment of Error.

      {¶ 26} Based on the preceding discussion, the First Assignment of Error is

overruled.



                            III. The Proper Measure of Damages

      {¶ 27} DLF’s Second Assignment of Error states that:

             The Trial Court Erred as a Matter of Law to the Prejudice of DLF

      When It Failed to Apply this Court’s Measure of Damages as the Diminution

      of Appellee’s Property Value; in the Alternative, the Court’s Holding on the

      Issue of Damages Was Against the Manifest Weight of the Evidence.

      {¶ 28} Under this assignment of error, DLF contends that the trial court erred in

failing to apply the measure of damages we outlined in Blust v. Lamar Advertising Co.,

157 Ohio App.3d 787, 2004-Ohio-2433, 813 N.E.2d 902 (2d Dist.).             In Blust, an

advertising agency leased a small piece of farmland near the property line of two farms,

in order to erect a billboard. A wire fence, mostly concealed in brush, vines, and trees,

separated the two farms. Id. at ¶ 6. A local company, who was hired to remove trees

and vegetation, cut down 34 trees that were growing wild on the adjoining landowner’s

property. 17 of the trees were more than three inches in diameter. Id. at ¶ 7.
                                                                                              -10-


       {¶ 29} The jury awarded $32,000 in compensatory damages and more than

$2,000,000 in punitive damages. Id. at ¶ 8. The trial court indicated that it would grant

a new trial on all issues, including liability, unless the plaintiffs accepted a remittitur of the

punitive damages award to $550,316.80, with half going to a nonprofit nature

conservancy. After the plaintiffs refused, the trial court ordered a new trial, and the

plaintiffs appealed. Id. The advertising agency (Lamar) also cross-appealed. Id.

       {¶ 30} We first concluded that the trial court had abused its discretion by requiring

plaintiffs to prove entitlement to both compensatory damages and punitive damages a

second time, without providing a good reason for the plaintiff to do so. Id. at ¶ 20. We

did agree that the punitive damages award was “unreasonable and disproportionate to

the harm caused.” Id. at 44. As a result, we remanded the case for a new trial solely

on punitive damages. Id. at ¶ 46.

       {¶ 31} In a cross-assignment of error, the advertising agency argued that the trial

court should not have submitted the punitive damages issue to the jury. In response, the

majority of the panel held that the agency had acted with conscious disregard for the

adjoining landowners’ rights by cutting the trees on their property.           Blust, 157 Ohio

App.3d 787, 2004-Ohio-2433, 813 N.E.2d 902, at ¶ 32.2 The majority noted, however,

that a closer question was whether the agency’s agent knew that the act of cutting the

trees would cause substantial harm. Id. at ¶ 34. We observed that to evaluate this

issue, some measure of value would have to be assigned to the trees. Id. at ¶ 35. We

first found that the agent had no awareness of two potential harms – the possibility that


2
 One panel member concluded that the trial court should have directed a verdict on
punitive damages. Blust, 157 Ohio App.3d 787, 2004-Ohio-2433, 813 N.E.2d 902, at
¶ 48-52 (Brogan, J., dissenting in part).
                                                                                          -11-


the plaintiffs would ever subdivide their farm for residential purposes, or the possibility of

future prospects of marketing veneer. Id. at ¶ 36. Of note to the case currently before

us, we then stated that:

                 Likewise, with regard to the cost of replanting the trees, no

       reasonable trier of fact could find that [the agent] was aware that cutting the

       Blusts' trees had a great probability of resulting in harm valued at

       $40,566.33 to purchase and replant all of the trees or even $24,335 to

       replant 11 of the larger trees. We reach this conclusion for two reasons.

       First, photographs reveal that the felled trees comprised a small part of a

       tree line dividing two farms. Given the location of the trees, which were

       growing wild near a rural road, Kramer could not have anticipated a great

       probability of the Blusts', who did not even reside on the property, desiring

       to replant the trees. Second, replacement cost is not the typical measure

       of the harm when wild trees are cut. When a party trespasses and cuts

       trees that are part of a woodland mix and not unique, the ordinary measure

       of the harm is the difference in the fair market value before and after the

       cutting. See, e.g., Kapcsos v. Hammond (1983), 13 Ohio App.3d 140, 141,

       [468 N.E.2d 325].     Therefore, despite the jury's compensatory damage

       award of $32,000, Kramer could not reasonably be found to have

       disregarded a great probability of causing harm of this magnitude.

Blust at ¶ 37.

       {¶ 32} DLF brought the Blust decision to the trial court’s attention. However, prior

to trial, the court decided it would apply the following standard from a decision of the Fifth
                                                                                            -12-


District Court of Appeals:

         “[I]n an action for compensatory damages for cutting, destroying and

         damaging trees and other growth, and for related damage to the land, when

         the owner intends to use the property for a residence or for recreation or for

         both, according to his personal tastes and wishes, the owner is not limited

         to the diminution in value (difference in value of the whole property before

         and after the damage) or to the stumpage or other commercial value of the

         timber. He may recover as damages the costs of reasonable restoration

         of his property to its preexisting condition or to a condition as close as

         reasonably feasible, without requiring grossly disproportionate expenditures

         and with allowance for the natural processes of regeneration within a

         reasonable period of time.”

Fronsman v. Risaliti, 5th Dist. Stark No. 2008CA00028, 2008-Ohio-5074, ¶ 32, quoting

Denoyer v. Lamb, 22 Ohio App.3d 136, 138-139, 490 N.E.2d 615 (1st Dist. 1984). (Other

citations omitted.)

         {¶ 33} At trial, Brewer’s expert, David Furlong (an arborist), testified that removing

the damaged trees would cost $55,000, and the cost of replacing the trees would be

$138,000, plus $13,510 in sales tax.3 Brewer did not testify as to any diminution in the

fair market value of his property. DLF’s expert, Dr. Sydnor (an arboriculture consultant

with a Ph.D. in plant physiology and horticulture), testified that the life expectancy and

service life functionality of the fence row was not affected by the manner in which the

trees were pruned. Dr. Sydnor observed essentially the same conditions on both the


3
    This is almost 10% in sales tax.
                                                                                          -13-


north and south side of the fence row. He valued the fence row as a woodland edge

fence and stated that real estate or market value would be the proper approach for

assessing damages. Finally, another expert for DLF indicated that the fair market value

of Brewer’s property was the same before and after the incident. See Defense Ex. H.

       {¶ 34} In ruling on damages, the trial court applied the damages standard from

Fronsman and Denoyer and allowed recovery of restoration costs. In this regard, the

court first concluded that Dr. Sydnor’s opinions about cost of repair and damages were

not credible because Sydnor “strained too hard to reach the unreasonable conclusion that

there was no harm to the Plaintiff’s trees.” April 6, 2015 Decision and Entry, p. 14.

However, while finding Furlong’s expert testimony credible about “disease, death,

susceptibility, and other harm to the trees after the blunt force tearing of limbs,” the court

also said that “Furlong’s opinions regarding the cost to repair the damages are

problematic.” Id. at p. 15. The court then found that tree removal was unnecessary,

and discounted the $55,000 cost. In addition, the court concluded that $138,000 for

replacement was excessive and reduced that amount by 50%. The court also deducted

14% for ash tree disease, which had caused the death of a number of trees on both sides

of the lane.

       {¶ 35} Based on these calculations, the court arrived at $59,340 in compensatory

damages. Next, the court decided that DLF had been negligent for one-fourth of the

property (or about 1,000 feet), and was reckless in trimming the remaining part of the

fence row. As a result, the court awarded $14,835 for negligence, and $44,505 for DLF’s

recklessness. Pursuant to R.C. 901.51, the court trebled this latter amount to $133, 515.

The total award, therefore, was $148,350.
                                                                                          -14-


       {¶ 36} As was noted, DLF argues that the trial court should have applied the

damages standard from Blust, which states that “[w]hen a party trespasses and cuts trees

that are part of a woodland mix and not unique, the ordinary measure of the harm is the

difference in the fair market value before and after the cutting.” Blust, 157 Ohio App.3d

787, 2004-Ohio-2433, 813 N.E.2d 902, at ¶ 37.

       {¶ 37} Blust relied on Kapcsos v. Hammond, 13 Ohio App.3d 140, 468 N.E.2d 325

(9th Dist.1983), in which the court held that “[i]f the replacement or restoration cost of the

trees is sought to be recovered, there must also be evidence indicating that the trees

were ornamental, i.e., trees having a calculable value separate from that of the land upon

which they stood, rather than those indigenous to the area.” Id.

       {¶ 38} After Kapcsos, but before Blust, we issued a decision in a case involving

Dayton Power and Light’s removal of ninety redbud trees from a property. Jones v.

Dayton Power & Light Co., 2d Dist. Greene No. 94-CA-49, 1994 WL 702062, *1 (Dec. 14,

1994). Although DP&L was found negligent, the trial court did not award any damages.

Id.

       {¶ 39} We noted the general rule under Ohio Collieries Co. v. Cocke, 107 Ohio St.

238, 140 N.E. 356 (1923), which was that “recoverable restoration costs are limited to the

difference between the pre-injury and post-injury fair market value of the real property.”

Id. at *2.   We stressed an exception, however, in which “restoration costs may be

recovered in excess of diminution in fair market value when real estate is held for non-

commercial use, when there are reasons personal to the owner for seeking restoration,

and when the diminution in fair market value does not adequately compensate the owner

for the harm done.” Id., citing Thatcher v. Lane Const. Co., 21 Ohio App.2d 41, 254
                                                                                        -15-

N.E.2d 703 (10th Dist.1970), and Denoyer, 22 Ohio App.3d at 136, 490 N.E.2d 615.

       {¶ 40} We went on to observe that:

       Ohio courts have applied the restoration cost exception in a variety of

       situations, such as when damaged trees have been maintained for a

       specific, identifiable purpose, like recreation, or a sight, sound, or light

       barrier, when damaged trees are essential to the planned use of the

       property, and when the damaged trees had a calculable value separate

       from the land. See, e.g., Thatcher, supra; Denoyer, supra; Schuyler v.

       Miller (1990), 70 Ohio App.3d 290; Kapcsos v. Hammond (1983), 13 Ohio

       App.3d 140. However, this is not to say that these are the only situations

       when the exception should be applied. The Denoyer decision specifically

       explains that the destruction of shade and ornamental trees justifies

       restoration cost as a measure of damages, as does the destruction of trees

       that form part of an ecological system of personal value to the owner.

Jones at *3.

       {¶ 41} Ultimately, we held that restoration costs would be appropriate because “the

Joneses held the property as a personal residence, * * * the injured trees were

ornamental, blooming, redbud trees, and * * * the Joneses articulated personal reasons

for restoring the property to its pre-injury condition in accordance with their personal

tastes and wishes.” Id. at *4. We further concluded that where the exception applies,

“the reasonableness of restoration costs as the measure of damages pursuant to the

exception recognized in Ohio is not exclusively determined by comparing the proven cost

of restoration to the diminution in value of the property, but should instead be determined
                                                                                           -16-


by considering whether the proposed cost is grossly disproportionate to the entire value

of the injured property.” Jones, 2d Dist. Greene No. 94-CA-49, 1994 WL 702062, at *5.

Thus, contrary to DLF’s claim, we have not only applied diminution in value as a standard.

       {¶ 42} Our decision in Jones is generally consistent with the later decision of the

Supreme Court of Ohio in Martin v. Design Constr. Servs., Inc., 121 Ohio St.3d 66, 2009-

Ohio-1, 902 N.E.2d 10, which settled a conflict among districts concerning whether a

plaintiff must prove diminution in market value in actions involving temporary damage to

property.   Id. at ¶ 11-12.   After discussing decisions that were issued after Ohio

Collieries, the Supreme Court of Ohio stated that:

       The rule expressed in Ohio Collieries, that damages for temporary injury to

       property cannot exceed the difference between market value immediately

       before and after the injury, is limited. In an action based on temporary

       injury to noncommercial real estate, a plaintiff need not prove diminution in

       the market value of the property in order to recover the reasonable costs of

       restoration, but either party may offer evidence of diminution of the market

       value of the property as a factor bearing on the reasonableness of the cost

       of restoration.

Martin at ¶ 24, discussing Ohio Collieries, 107 Ohio St. at 238, 140 N.E. 356. The court

went on to state that “[w]hile evidence of loss in market value of the property may be

relevant, the essential inquiry is whether the damages sought are reasonable. Either

party may introduce evidence to support or refute claims of reasonableness, including

evidence of the change in market value attributable to the temporary injury. But proof of

diminution in value is not a required element of the injured party's case.” Id. at ¶ 25.
                                                                                            -17-


       {¶ 43} Accordingly, recovery is not limited to diminution in value.              Where

appropriate, restoration costs may be recovered. We note that Martin has been applied

subsequently to situations involving trespass and temporary injury to property.            See

Hartman v. Ohio Dept. of Transp., 10th Dist. Franklin No. 08AP-599, 2009-Ohio-469.

Hartman involved trespass and improper mowing of the plaintiff’s hedgerow. Id. at ¶ 5.

The court of appeals noted that after Martin, “diminution in value is a factor that may be

considered in determining whether restoration costs are reasonable, but is not itself an

element of damages that must be considered.” Id. at ¶ 7. Thus, to the extent that the

trial court’s decision was based on allowance of reasonable costs, it is not inconsistent

with current law.

       {¶ 44} Martin involved defects in a home, and the Supreme Court of Ohio did not

comment on matters like distinctions between ornamental trees and a woodland mix,

whether trees are part of personal planning for the land use, and whether trees have a

calculable value apart from the land. However, because Martin establishes a general

rule of reasonableness, these factors should be considered in deciding whether a

decision on damages is reasonable.

       {¶ 45} Viewing the trial court’s award of damages from the perspective of

reasonableness, we must conclude that the award for restoration was objectively

unreasonable. Phrased another way, the trial court’s decision was against the manifest

weight of the evidence.

       {¶ 46} “[I]n order for an appellate court to reverse a decision as against the

manifest weight of the evidence in a civil context, the court must determine whether the

trier of fact, in resolving evidentiary conflicts and making credibility determinations, clearly
                                                                                         -18-

lost its way and created a manifest miscarriage of justice.” Alh Properties, P.L.L., 9th

Dist. Summit No. 20991, 2002-Ohio-4246, at ¶ 12. Although reversal for manifest weight

is reserved for rare situations, we conclude that the circumstances of this case warrant

application of the doctrine. Compare Broadstone v. Quillen, 162 Ohio App.3d 632, 2005-

Ohio-4278, 834 N.E.2d 424, ¶ 22 (10th Dist.) (reversing an award of damages where it

was not clear how the trial court arrived at a figure granted for permanent impairment to

earning capacity).

        {¶ 47} In Tinney v. Tite, 6th Dist. Huron No. H-11-006, 2012-Ohio-2347, the court

of appeals observed that “[t]he case law implicating R.C. 901.51 almost exclusively

involves situations where trees have been completely cut down, making it considerably

easier to determine the full extent of the damage to the plaintiffs' property.” Id. at ¶ 11.

Like the present case, Tinney involved a tree that was not cut down, but sustained some

injury due to the actions of the defendant. The trial court concluded that the damages

were temporary and speculative because the tree appeared to be thriving nearly one year

later. Id. at ¶ 13. However, the court of appeals found that this decision was against

the manifest weight of the evidence, and that the trial court could have awarded at least

nominal damages because “the damages to the tree must have had some value.” Id. at

¶ 17.

        {¶ 48} We agree with the assessment of the Sixth District Court of Appeals. Our

research has also revealed that the cases generally involve situations in which

defendants enter property and cut down numerous trees, rather than where trees simply

sustain some sort of injury. See, e.g., Jones, 2d Dist. Greene No. 94-CA-49, 1994 WL

702062, at *1 (90 redbud trees on residential property were cut down); Denoyer, 22 Ohio
                                                                                          -19-


App.3d at 137, 490 N.E.2d 615 (68 trees were cut down and 331 trees were destroyed

on residential property).

       {¶ 49} In contrast to these cases, Brewer testified that other than a few small

saplings, he was not claiming that any large trees had been removed from the property.

Transcript of Proceedings, Vol. I, p. 203. Instead, his contention was that 326 trees had

been damaged in some manner and would ultimately die, even though pictures of the

area taken in June 2014 depict a substantial canopy of foliage. See, e.g., Defense Ex.

D1-14. Brewer also testified that a number of trees had died, but he did not give any

specific number.

       {¶ 50} Furthermore, unlike the situation in Jones, the trees were not ornamental

and were not located at Brewer’s residence. Instead, they were native trees that were

part of a fence row on farmland. Brewer indicated that he uses his property for hunting

only about a half-dozen times a year, and for family get-togethers, which occur twice a

year. He also said the removal of branches had not impacted his hunting, his family get-

togethers, or his ability to rent tillable land to farmers. Brewer did state that he intended

to put a house on the property when his youngest child, who was then four years old,

graduates from high school. However, he did not assert that the removal of the trees

interfered with his anticipated use of the property for a home site.

       {¶ 51} In this regard, the case before us is similar to Dotson v. Village Res. Dev.

Co., 9th Dist. Lorain No. 98CA007066, 1999 WL 494068, *1 (July 14, 1999).               Like

Brewer, the plaintiffs in Dotson did not contend that the damaged part of the property was

essential to their purchase for use of a home site. According to the court, the plaintiffs

“established, at most, that they walk around back there.” Id. at *4.
                                                                                        -20-

      {¶ 52} In Dotson, the court of appeals also noted that the restoration estimate was

worth more than the plaintiffs had paid for the parcel almost two years earlier, and that

only a small portion of the property had been damaged. Id. As a result, the court of

appeals concluded that the cost of restoration was “grossly disproportionate.” Id. This

is similar to the case before us. Brewer paid $180,000 for the land several years before

the incident, and the alleged restoration cost (including removal and replanting of trees)

for a very small proportion of the property was more than $200,000.

      {¶ 53} We understand that the trial court did not award the entire amount of the

requested damages. However, the basis for the trial court’s decision is hard to decipher.

As was noted, Brewer did not testify as to any diminution in value. Although Brewer was

not required to present such evidence, it would have been helpful, particularly since two

defense witnesses indicated that removing vegetation from the fence row did not impact

the fair market value of the land. Although the trial court concluded that Dr. Sydnor was

not credible on this particular point, the court made no comment about the other evidence

of lack of diminution. In addition, the damages award, even before it was trebled, was

many thousands times higher than the zero change in value, which was not contradicted.

This is akin, as noted in Jones, to spending $100,000 to restore a car with a $10,000 fair

market value, i.e., it was objectively unreasonable.

      {¶ 54} As a further matter, other parts of the trial court’s calculation were based on

speculation or were incorrect. For example, the court concluded that one-fourth of the

fence row was trimmed negligently.       However, the figure the court used (negligent

trimming of 1,000 feet out of a total of 3,600 feet), is actually 27.77%, not 25%. April 6,

2015 Decision and Entry, p. 15.
                                                                                          -21-


       {¶ 55} The court also did not explain the basis for its adoption of the 1,000 foot

figure. Brewer’s own testimony was that half the fence row had been trimmed when he

arrived at the scene. This would have been 1,800 feet. Transcript of Proceedings, Vol.

I, p. 185. In contrast, Hawkey, who was trimming, testified that he was almost finished

with Brewer’s property when Brewer told him to stop. The figure of 1,000 feet came from

Deputy Nichols, who stated that this was an estimate, as he did not measure the property.

The trial court could have chosen to disregard Hawkey’s testimony, but there is no logical

reason to disregard the plaintiff’s own admission about how far the fence row had been

cleared. In any event, the trial court gave no reason for disregarding Brewer’s testimony.

       {¶ 56} Finally, the court gave no particular reason for its 50% discount on

damages. As has been noted, the trees on the fence row were a woodland mix of native

trees, not ornamental trees. A number of the trees were undesirable, and there was no

evidence of special value. In addition, the fence row had been unmaintained for ten or

twenty years.   Even though these facts no longer require damages to be limited to

diminution in value, they are still points that should be considered in deciding whether an

award is reasonable.

       {¶ 57} Finally, we note that the trial court’s decision refers to a number of matters

that are simply not in the record, like the fact that DLF “is widely known to be a very large

and successful farming operation in many counties in this vicinity. Its only or controlling

shareholder is Dick Lavy.” April 6, 2015 Decision and Entry, p. 2.

       {¶ 58} Based on the preceding discussion, the Second Assignment of Error is

sustained. On remand, the trial court is instructed to hold a new hearing on damages.

On remand, the trial court shall consider the reasonable restoration costs, taking into
                                                                                           -22-


consideration the following factors: (1) any evidence about diminution in the fair market

value of the land; (2) the fact that the trees were a common woodland mix, not ornamental

trees or trees that the plaintiff had planted for a particular purpose; (3) the fact that the

fence row was not maintained for many years, and had undesirable and dead trees on

each side of the row; (4) the extent to which the trees have regenerated since January

18, 2013; (5) the lack of impact on plaintiff’s intended home site, given that the land on

either side of the fence row belongs to other individuals and the lane only leads back to

a potential home site; (6) the fact that plaintiff’s use of the property for recreation is very

sporadic and is not impacted by any injury to the trees. As noted in Tinney, 6th Dist.

Huron No. H-11-006, 2012-Ohio-2347, at ¶ 17, the damage to the trees had some value,

even if nominal.



                                      IV. Negligent Trespass

       {¶ 59} DLF’s Third Assignment of Error states that:

              The Trial Court Erred as a Matter of Law to the Prejudice of DLF

       When It Held Appellant Negligently Trespassed on Appellee’s Property; in

       the Alternative, the Court’s Holding Was Against the Manifest Weight of the

       Evidence.

       {¶ 60} Under this assignment of error, DLF contends, first, that the trial court erred

in finding it negligent. Specifically, DLF maintains that the trial court required it to use

the best method of trimming vegetation, rather than applying a traditional negligence

analysis. Alternatively, DLF contends that the court’s decision is against the manifest

weight of the evidence.
                                                                                       -23-


       {¶ 61} In the complaint, Brewer asserted claims for violation of R.C. 901.51,

negligent trespass, and reckless trespass. “A common-law tort in trespass upon real

property occurs when a person, without authority or privilege, physically invades or

unlawfully enters the private premises of another whereby damages directly ensue, even

though such damages may be insignificant.” Linley v. DeMoss, 83 Ohio App.3d 594,

598, 615 N.E.2d 631 (10th Dist.1992).       “The act of nonconsensual entry may be

intentional or negligent.” Id. “In order to recover compensatory damages for trespass,

it must be shown that the trespass proximately caused harm for which the compensation

is sought, and the amount of damage must be proved by a preponderance of the

evidence.” (Citation omitted.) Pleasant Hill-Newton Tp. Fire Assn., Inc. v. Adams, 2d

Dist. Miami No. 85-CA-40, 1987 WL 11043, *5 (May 13, 1987).

       {¶ 62} This case presents a somewhat unusual situation, because DLF’s

employee, Hawkey, did not actually trespass on Brewer’s land, other than when clearing

off brush that had fallen or during a few instances in which he was unable to control the

bucket of the track hoe. Transcript of Proceedings, Vol. I, p. 102. In fact, Hawkey stated

that he never consciously reached over onto Brewer’s property to snap off a branch at

the tree trunk that was on Brewer’s property. Id. at p. 106. The action of clearing debris

would not have harmed Brewer, but would actually have been of benefit. In addition,

Hawkey only identified one instance where he was unable to control the bucket. Id. at

p. 116, identifying Plaintiff’s Ex. 1-13.

       {¶ 63} As was noted, most instances of trespass occur when individuals enter onto

the land of another, cut down, and remove trees. See, e.g., Shanklin v. Lowman, 3d

Dist. Logan No. 8-10-07, 2011-Ohio-255, ¶ 2. Nonetheless, trespasses can occur if
                                                                                          -24-

individuals set in motion actions that intrude on another’s land and cause damage. See,

e.g., Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 709, 622 N.E.2d 1153

(4th Dist.1993) (indicating that recovery for trespass can occur, for example, if a polluting

substance is deposited on a party’s land and interferes with the party’s possessory

interest by causing damage). Thus, liability could still exist even if Hawkey did not

actually enter Brewer’s property.

       {¶ 64} The trial court concluded that DLF was negligent by failing to cut or break

the trees above its own land, and that DLF breached a duty to ensure that no damage

occurred on Brewer’s side of the property line. In its findings of fact, the court discussed

two methods of trimming trees (using a track hoe to tear limbs along fences and using a

bucket and chain saw). The court then held that “the more common but dangerous

method of lifting a person in the from [sic] of a scoop bucket on a tractor * * * more clearly

respects the property line and causes the lest [sic] damage.” April 6, 2015 Decision and

Entry, p. 6.

       {¶ 65} To establish actionable negligence, the party “seeking recovery must show

the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.”

Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981).

       {¶ 66} Various testimony was presented at trial about practices in Darke County,

Ohio, for cutting limbs. Brewer’s expert, Furlong, stated that the common practice is to

use a chain saw, hand saw, or poll pruner. Furlong also said he had never seen anyone

use a track hoe, which will cause more damage to a tree. Furlong estimated the cost of

his type of pruning to be about $16,000 for the length of the fence row. It is evident from

the testimony that this type of pruning would be a difficult expense for most farmers; none
                                                                                      -25-


of the farmers who testified indicated that they would use this form of trimming.

      {¶ 67} Both Hawkey and a farming expert for DLF stated that the custom in Darke

County is to clear fences using a track hoe or back hoe. DLF’s expert, Barry Rodeheffer,

stated that he had been farming in the county for 45 years, and that the common practice

for clearing fence rows for the last 15 years had been to use back hoes or track hoes to

tear limbs off overhanging trees.      Rodeheffer also named commercial excavating

companies who use this method. In addition, Rodeheffer said that using a bucket truck

and chain saw is not standard practice because of cost and labor. Furthermore, this

method is not used because it is dangerous.

      {¶ 68} Another farmer in Darke County, Joe Henry, testified on rebuttal that the

farmers he knows stand in a loader bucket and trim trees using a chain saw. Henry

indicated that this is a very dangerous method for farmers to use, as it is not safe. In

addition, Henry testified that he did not know anyone who used a track hoe for trimming.

Finally, Dr. Sydnor stated that he would not recommend pruning with a track hoe.

      {¶ 69} In view of the above testimony, we cannot say the trial court erred in

concluding that DLF’s employee was negligent. Farmers may face difficult choices if the

available methods are either too expensive, or risk damage to surrounding property, or

risk the farmer’s safety. However, the issue in this case is simply whether the method in

question caused unnecessary harm to the adjoining property. In view of the evidence,

we cannot conclude that the trial court erred in the standard it applied, nor can we

conclude that the court’s finding of negligence was against the manifest weight of the

evidence.

      {¶ 70} Accordingly, the Third Assignment of Error is overruled.
                                                                                         -26-




                                        V. Recklessness

      {¶ 71} DLF’s Fourth Assignment of Error states that:

              The Trial Court Erred to the Prejudice of DLF because Its Finding

      that Appellant Was Reckless Was Against the Manifest Weight of the

      Evidence.

      {¶ 72} Under this assignment of error, DLF contends that the trial court’s finding of

recklessness was against the manifest weight of the evidence. According to DLF, the

trial court improperly discounted DLF’s common law privilege and also ignored testimony,

including the fact that Dick Lavy offered to let Brewer trim his own trees over the two or

three-month period before spring planting.

      {¶ 73} We noted earlier that the Supreme Court of Ohio has adopted the definition

of recklessness in R.C. 2901.22(C) for purposes of assessing liability under R.C. 901.51.

Wooten, 79 Ohio St.3d at 289-90, 680 N.E.2d 1245. R.C. 2901.22(C) provides that:

              A person acts recklessly when, with heedless indifference to the

      consequences, the person disregards a substantial and unjustifiable risk

      that the person's conduct is likely to cause a certain result or is likely to be

      of a certain nature. A person is reckless with respect to circumstances

      when, with heedless indifference to the consequences, the person

      disregards a substantial and unjustifiable risk that such circumstances are

      likely to exist.

      {¶ 74} After reviewing the record, we cannot conclude that the finding of

recklessness was against the manifest weight of the evidence. Dick Lavy testified that
                                                                                       -27-


Deputy Nichols told him that Brewer was not happy with what was happening, and asked

him to stop clearing the line until he got legal advice. There was no indication that Lavy

did so before continuing to clear the line. Furthermore, although Lavy stated that Brewer

was welcome to trim the trees on his own, Lavy did not tell his employee to stop clearing

the line in order to give Brewer a chance to do so. He also did not contact Brewer to

discuss the matter.   Notably, there was no specific reason to proceed immediately.

Lavy told Deputy Nichols that he wanted to clear the fence row before spring planting.

However, planting would not occur for two or three months.

      {¶ 75} Courts have found defendants reckless in various situations where their

actions continued after they learned of a dispute about the activity. See, e.g., Miller v.

Jordan, 87 Ohio App.3d 819, 824, 623 N.E.2d 219 (12th Dist.1993) (defendant continued

cutting timber after being told he was cutting trees belonging to neighboring property

owner), and Johnson v. Hershberger, 7th Dist. Columbiana No. 99-CO-38, 2000 WL

1486758 (Sept. 29, 2000) (defendant acted recklessly by continuing to cut trees after

being warned of a dispute over location of property line).

      {¶ 76} Accordingly, the Fourth Assignment of Error is overruled.



                                        VI. Conclusion

      {¶ 77} DLF’s First, Third, and Fourth Assignments of Error having been overruled,

and DLF’s Second Assignment of Error having been sustained, the judgment of the trial

court is affirmed in part and reversed in part. The judgment of liability is affirmed, and

the judgment as to damages is reversed. This cause, therefore, is remanded for a new

hearing on damages.
                                                                                          -28-


                                      .............



DONOVAN, P.J., concurs.

HALL, J., concurring:

       {¶ 78} I agree with the resolution detailed in the lead opinion. I write separately to

emphasize my belief that there is no duty of reasonable care required by a property owner

when protecting her own property from encroaching vegetation. She may cut, mutilate,

decimate, pulverize or obliterate branches or roots which infringe upon her property from

a neighbor’s trees or plants.4 Self-help is permitted to remove trees or plants. What she

cannot do is intrude into the neighbor’s property in doing so. That is why liability is

imposed here. Tearing off branches on the DLF property which extended into the Brewer

property and which severed the branches at the trunk, or some other point on the Brewer

property, constituted an intrusion and the trespass across the property line into the Brewer

property, regardless of any degree of care or lack thereof.

       {¶ 79} The quote from Newport Harbor Assn. v. DiCello, 8th Dist. Cuyahoga No.

87126, 2006-Ohio-4493 to the effect that “it is a well-recognized principle of common law

that a landowner has the right to protect his own land from threatened injury, even though,

in doing so, he produces a condition that injures adjoining land, provided he acts with

reasonable care,” id. at ¶ 29, is, in my view, not a correct statement of the law applicable

to removal of encroaching vegetation. In Newport, DiCello bought a boat slip represented



4 It seems likely that a landowner could not chemically treat or poison the roots or limbs
that encroach upon her property if that method of destruction will migrate to that portion
of the vegetation on the neighbor’s yard and destroy the tree or shrub altogether, but
that is an issue for another day.
                                                                                         -29-


to be 80’ by 25’. His 63’ by 15’ boat fit. Years later, when he had custom-made an 80’ by

20’ yacht, he had difficulty docking it. He measured the width of his slip from the finger

dock walkway on one side to the guide poles that separated his slip from the next one.

The distance measured 23’. Newport Harbor would not move the poles. The owner of the

adjacent slip also objected. DiCello hired an underwater demolition crew who cut down

the guide poles at 5:00 a.m. one morning. Litigation ensued. The question before the

Court of Appeals was whether the trial court erred by granting Newport Harbor’s motion

for summary judgment on its claim for purposeful and malicious destruction of property.

The court of appeals concluded that “DiCello presented sufficient evidence to allow the

issue of purposeful and malicious destruction of the guide posts to go to the jury.” Newport

Harbor at ¶ 20. The question the case turned on was not whether the poles constituted a

trespass on DiCello’s boat slip, but on whether the removal of poles that he may have

reasonably believed encroached on his property constituted “purposeful and malicious

destruction.” The court concluded a “question of fact exists regarding DiCello’s state of

mind,” id. at ¶30, when he had the poles cut down.

       {¶ 80} I also draw a distinction between removal of encroaching vegetation, where

self-help is universally accepted, and removal of structures, building or fences, where

self-help is often unacceptable. Accordingly, I am of the opinion that the reasonableness

evaluation from the Newport quote does not apply to the removal of vegetation but

because of the trespass, the result is the same nonetheless.

                                      ............
                        -30-




Copies mailed to:

Jose M. Lopez
Edward J. Dowd
Kevin A. Lantz
Hon. Jonathan P. Hein
