09-135f.v12.htm

CASE SUMMARY AND BACKGROUND

1. The instant proceeding was initiated under Indiana Code §§ 25-36.5, commonly referred to as the “Timber Buyers Statute” and 312 IAC 3-14, through correspondence filed by Douglas M. and Martha E. Hill (collectively referred to as “the Hills”) on July 30, 2009. Through this correspondence the Hills named Michael E. Patton (“Patton”) and Ohio Casualty Insurance Company (“OCIC”) as Respondents.

2. The Hills allege in their correspondence as follows:

While cutting timber on our neighbor’s property, Michael E. Patton came onto our property and cut several trees and caused lots of damage to our property. The property he was cutting had been surveyed by Bell Surveying and Mapping within the past 10 years and is on file at the Orange County Courthouse in Paoli, Indiana.

The Hills’ seek $5,000.00 for clean up and damages to property, $2,600.00 for surveying expenses, $3,000.00 for timber harvested from a .74 acre “gap in deeds (Hill/Slater)” (this section of property will be referred throughout this judgment as “the gap property”) and $5,319.90 for timber harvested from the property established by a survey completed by Bledsoe Riggert Guerrettaz Land Surveying & Civil Engineering as the Hills’ property (this section of property will be referred to throughout this judgment as “the established property”). The Hills’ correspondence further identifies OCIC as the holder of Patton’s surety bond, numbered 3807007.

3. The Hills clarified during the prehearing conference, conducted on August 28, 2009, that the deeds associated with their property and Bob Slater’s property create “a gap…in some areas along what was previously believed by both parties to be their shared property line.” See Report of Prehearing Conference dated September 1, 2009. Mr. Patton allegedly harvested trees not only from the gap property but also from the established property. The Hills’ claim for damages includes $3,000.00 for timber located on the gap property and 3 times the stumpage value of $1,773.30, or $5.319.90, for timber harvested from the established property.

4. Following a written motion filed by the Hills on September 17, 2009, Bob Slater (“Slater”), who was identified as the adjacent landowner who contracted with Patton for the cutting of timber, was joined as a Respondent to the instant proceeding on September 21, 2009.

5. On August 19, 2009, OCIC filed with the administrative law judge a copy of correspondence directed to their insured, Patton, wherein it states “the surety does not plan to attend the administrative hearing…” but requested that Patton provide an update following the conclusion of the proceeding. At no time has OCIC participated in any way in the instant proceedings.

6. Procedurally, Indiana Code §§ 4-21.5-3 and 312 IAC 3 govern the instant proceeding.

7. The Natural Resources Commission (“Commission”) is the “ultimate authority”, as defined at Indiana Code § 4-21.5-1-15, for proceedings initiated under IC §§ 25-36.5 and 312 IAC 14. 312 IAC 14-1-2(d).

8. All parties to this proceeding have proceeded without counsel.

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9. The Commission possesses jurisdiction over the subject matter of this proceeding and over the parties.

FINDINGS OF FACT

10. Patton entered into a verbal contract with Slater to harvest timber from Slater’s property. Testimony of Slater.

11. Patton’s practice is to have the landowner identify the boundaries associated with property from which trees are to be harvested. In this instance, Slater identified his property boundaries for Patton. Testimony of Patton.

12. In 1999 Slater’s property was surveyed by Gordon Bell, of Bell Surveying and Mapping, at the request of Slater’s predecessor in title. (Hereinafter this survey will be referred to as “the Bell Survey”).

13. The Bell Survey is recorded with the Orange County Recorder. Testimony of Slater.

14. Slater purchased his property in 2001 and acknowledged that the survey markers from the Bell Survey were evident on his property. However, because several people had informed him that the survey “was not a very good survey” he chose to ignore those survey markers when identifying the property boundaries for Patton. Testimony of Slater.

15. When Slater identified the property boundary for Patton, instead of using the property boundary established by the Bell Survey, Slater redrew his property line using orange paint based upon an aerial photograph obtained from the Orange County Surveyor. Slater was aware that his redrawn boundary line was not consistent with the Bell Survey monuments. Testimony of Slater.

16. Slater acknowledged that he did not make any attempt to obtain a professional survey before identifying the property boundary for Patton.

17. Patton made no effort to confirm the boundary lines identified by Slater. Testimony of Patton.

18. After the Hills discovered that trees had been harvested from their property they commissioned Bledsoe Riggert Guerrettaz Land Surveying and Civil Engineering to complete a Boundary Survey & Line Stake on December 1, 2008 at the cost of $2,600.00. Testimony of Cooper, Claimant’s Exhibit #4.

19. Matthew Cooper (“Cooper”) conducted all field surveying and preparation of the “Report of Survey Job # 3-0127” (This survey is referred to throughout this document as the “BRG Survey”), which identifies the boundary of the established property as well as the gap property. Testimony of Cooper, Claimant’s Exhibit #3.

20. The Hills own two adjoining tracts of property that are identified on the BRG Survey as “Tract 1” and “Tract 2”. Only Tract 1, identified on the BRG Survey as containing 19.54 acres, is involved in the instant proceeding.

21. A dispute associated with the location of the Hills’ western boundary, which forms Slater’s eastern boundary, is integrally involved in the determination of this dispute as it relates to the ownership of the trees harvested by Patton.

22. Richard Paul Croix Hodges (“Hodges”) of Hodges Land Surveying identified three “possible locations of the Boundary Line between Slater and the Hills, testifying that the “information comes from various sources…is not a survey…there were not survey descriptions.” The testimony of Hodges clarified that the plat drawn as part of his review of Slater’s property “represents information found during a survey by me, and was made to show the possible locations of the Boundary Line between Slater and the Hills. Due to conflicting information found in the Written Title Lines over the last 40 plus years, and lack of any true evidence of possession between them; it is my desire to see if both parties can agree upon a line between them.” ((This plat is referred to throughout this document as the “Hodge’s Plat”) Testimony of Hodges, Respondent’s Exhibit 1.

23. Hodges and Cooper agree that there are discrepancies in the Hills’ and Slater’s deeds that result partially from the preparation of deeds without first establishing surveyed measurements. The lack of actual measurements being used in the preparation of the deeds is evidenced by the multiple occasions where distances are reflected as “more or less”. Furthermore, the Slater property, which used to be a part of the Hill tract was sold off but the Slater deed uses different language than the exception in the Hills’ deed. According to Cooper it is customary for the legal description associated with a parcel of property such as Slater’s that is sold off a larger portion of property, or “parent tract”, such as the Hills’ to use the same legal description language as the exception that is added to the legal description of the parent tract to reflect the separation of the sold off tract. However, the description language used in the Hills’ deed exception is different than the language used in Slater’s deed. This difference in language creates a second cause of the existing discrepancies in the deeds. Testimony of Cooper, Testimony of Hodges.

24. Despite the deed discrepancies, Cooper determined the necessity to “interpret the intent of many of the calls” in the Hills’ deed. Cooper’s interpretations, based upon his professional opinion and in accordance with survey requirements set forth at 865 IAC 12, resulted in the placement of 5/8 inch rebar monuments to identify the Hills’ property boundaries. Claimant’s Exhibit #3.

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25. It is reasonable to accept as accurate Cooper’s opinion that the intent of the deeds would have been for the properties to be contiguous without overlaps or gaps. Claimant’s Exhibit #3.

26. The Hill’s overall property description is as follows:

A part of the west half of the west half of the northeast quarter, and a part of the east half of the east half of the northwest that lies south of the county highway in Section Thirty Four (34), Township One (1) North, Range One (1) West, bounded and described as follows to-wit:

Beginning at a stone that is on the quarter line 20 rods, more or less east of the southwest corner of the northeast quarter of said Section 34, thence west along the quarter line 730 feet, passing the quarter corner as 330 feet, more or less, thence north 1830 feet parallel to the quarter line to the county highway, thence southeasterly 740 feet along said highway, thence south 1669 feet parallel to the quarter line to the point of beginning, containing 29.75 acres, less .25 acres in highway right of way, leaving 29.50 acres more or less.

(This property description is referred to throughout this judgment as “the parent tract.”)

27. The exception recited in the Hills’ deed that identifies the Slater property is described as:

A part of the west half of the west half of the northeast quarter, and a part of the east half of the east half of the northwest quarter that lies south of the county highway in Section 34, Township 1 North, Range 1 West, Greenfield Township, Orange County, Indiana. Beginning at a stone that is on the quarter line, 20 rods, more or less, east of the southwest corner of the northeast quarter of said Section 34; thence west along the quarter line, 345 feet to the point of beginning proper, passing the quarter corner at 330 feet, more or less; thence west about 365 feet to the southwest corner of the property; thence north 1830 feet parallel to the quarter line, to the county highway; thence southeasterly about 370 feet along said highway; thence south about 1790 feet parallel to the quarter line, to the point of beginning.

(This property description is referred to throughout this judgment as “the Hill exception.”)

28. Slater’s deed was not placed in evidence. However, the evidence established that Slater’s deed describes the point of beginning of Slater’s property as, “beginning at a stone that is on the quarter section line 20 rods, more or less, east of the southwest corner of the northeast quarter.” Claimant’s Exhibit #3.

29. The stone monument marking the point of beginning of the Hills’ and Slater’s properties was located by both Hodges and Cooper. There exists no conflict in the evidence about the location of the point of beginning regarding these properties. Claimant’s Exhibit #3, Respondent’s Exhibit #1, Testimony of Cooper, Testimony of Hodges.

30. From the point of beginning, the parent tract reflects that the northern property line travels “west along the quarter line 730 feet, passing the quarter corner at 330 feet, more or less…” (emphasis added). Testimony of Cooper, Testimony of Hodges, Claimant’s Exhibit #3, Respondent’s Exhibit #1. The exception in the Hills’ deed that establishes the boundaries of what is now Slater’s property specifies that to reach the point of beginning for Slater’s property one must travel from the point of beginning of the parent tract “west along the quarter line 345 feet to the point of beginning proper, passing the quarter corner at 330 feet, more or less. (emphasis added). Id. Slater’s deed specifies that the beginning point of his property is identified by measuring west from the point of beginning of the parent tract along the quarter line a distance of 399 feet, passing the quarter corner at 330 feet, more or less. (emphasis added). Testimony of Cooper, Testimony of Hodges.

31. The language of all the deeds is consistent in specifying that from the beginning point to the quarter corner is 330 feet, more or less. According to both Hodges and Cooper, the call “more or less” reflects that the distance between the point of beginning and the passage of the quarter corner was uncertain at the time the deeds were written. Testimony of Cooper, Testimony of Hodges, Claimant’s Exhibit #3.

32. The stone monument identifying the point of beginning of the parent tract is actually located 417.35 feet east of the quarter corner. Testimony of Cooper, Testimony of Hodges, Claimant’s Exhibit #3 and Respondent’s Exhibit #1. This results in an 87.35 foot discrepancy.

33. Hodge’s plat identifies two possible boundary line locations as being determined solely by measuring the distance of 345 feet, as specified in the Hill exception, and 399 feet, as specified in Slater’s feet, from the point of beginning. Using this method, the entirety of the Hills’ property would be located within the west half of the west half of the northeast quarter of section 34, which is inconsistent with the deed’s heading, which specifies that both Slater’s and the Hills’ properties are “a part of the west half of the west half of the northeast quarter, and a part of the east half of the east half or the northwest quarter.” Claimant’s Exhibit #3. The outcome of using only the measurement calls of 399 or 345 feet would also nullify the call contained within Slater’s deed and the Hills’ deed exception for “passing the quarter corner” and would also result in a 67 foot gap between Slater and his neighbor to the west, identified in testimony as “Digger Duncan.” Testimony of Hodges, Testimony of Cooper, Claimant’s Exhibit #3, Respondent’s Exhibit #1.

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34. For the foregoing stated reasons the determination of the Slater/Hill boundary line based solely upon the call of 345 feet or 399 feet west from the point of beginning of the parent tract is not reasonable in the mind of the trier of fact but is instead deemed to be entirely inconsistent with the intent of the deeds and is given no weight.

35. The Bell Survey positioned Slater’s eastern property line “at a distance of 69 feet west of the quarter corner (Center of Section 34). …The distance of 69 feet was derived from the call of 399 feet, less the informative call of “passing the quarter corner at 330 feet, more or less.” Claimant’s Exhibit #3.

36. Based upon Slater’s deed, the Bell survey established Slater’s northeast corner based upon the determination that the east line of the parent tract was located “at 330 feet east of the quarter section line rather than holding the property corner stone found 417.35 feet east of the southwest corner of the Northeast Quarter.” Claimant’s Exhibit #3.

37. The Bell Survey establishes Slater’s property boundaries without benefit of actual measurements from identifiable monuments. Id.

38. The Bell Survey results in Slater’s property being solely located in the east half of the east half of the Northwest quarter of Section 34, which is not consistent with the heading of Slater’s deed that specifies that Slater’s property is “a part of the west half of the west half of the northeast quarter, and a part of the east half of the east half of the northwest quarter.” Furthermore, the Bell survey ignores a call in Slater’s deed that specifies in addition to Slater’s northeast corner being established by calculating the “midpoint of the east and west property lines of Deed Book 146, Page 443…” the line is to be “405 feet, more or less along said highway.” The Bell Survey also results in “a 20 [foot] gap on the west side of the Slater property and a 69 foot gap to a 24 foot overlap on the east side of the Slater property (west line of Hill property).” Claimant’s Exhibit #3.

39. The BRG Survey established the southeast corner of the parent tract at a point “400 feet west of the stone located at the center of section. This distance was derived from the call of 730 feet west along the quarter from the property corner stone, less the informative call of ‘passing the quarter corner at 330 feet, more or less’”. Testimony of Cooper, Claimant’s Exhibit #3.

40. The Hill “exception description, which forms the boundary of Slater’s property, calls for a distance of 345 feet west from the property corner stone located ’20 rods, more or less’ east of the southwest corner of the northeast quarter”. In the same manner that the southeast corner of the parent tract was determined, the BRG Survey established the southwest corner of Slater’s property at a point “15 feet west of the quarter corner” with the 15 feet being “derived from the call of 345 feet, less the informative call of ‘passing the quarter corner at 330 feet, more or less’”. By employing this methodology the “southwest corner of the Hill property exception [Southwest corner of Slater’s property]…matches the southeast corner of the Duncan property [the Duncan property adjoins Slater’s property to the west]….” And “is the same property as described in the overall Hill deed [parent tract]…” Claimant’s Exhibit #3.

41. Slater’s deed calls for a distance of “399 feet west from the property corner stone located ’20 rods , more or less’ east of the southwest corner of the northeast quarter.’” The BRG Survey, again similar to the method used with respect to the parent tract and the Hills’ exception, established Slater’s southeast corner by measuring 69 feet west of the quarter corner with the 69 feet being “derived from the call of 399 feet, less the informative call of ‘passing the quarter corner at 330 feet, more or less’”. Claimant’s Exhibit #3. The BRG Survey determined that while Slater’s deed and the Hills’ exception generally describe the same property the language used in the two descriptions is different and this difference has “caused a 20 foot gap in the west side of the Slater property and a 69 foot gap to a 24 foot overlap on the east side of the Slater property (west line of Hill property).” Claimant’s Exhibit #3, Testimony of Cooper.

42. The BRG Survey establishes boundaries of the Hills’ and Slater’s property that places both properties in “a part of the west half of the west half of the northeast quarter and a part of the east half of the east half of the northwest quarter” as specified by both deeds, more accurately utilizes all the specific calls and informative calls contained within the deeds and reduces the gaps and overlaps more than any other survey method offered into evidence.

43. The Bell Survey places Slater’s and the Hills’ shared property line approximately 69 feet west of the shared boundary line as determined by the BRG Survey. Claimant’s Exhibit #3.

44. The gap property results from the “69 foot gap to 24 foot overlap” identified by the BRG Survey as existing along Slater’s and the Hills’ shared boundary. The ownership of this land cannot be established by the evidence available.

45. By using the BRG Survey the ownership of the gap property, and thus the ownership of the trees harvested from that land, is uncertain.

46. The BRG Survey and the Brown Survey are consistent in the determination that the Hills own the established property.[1] Trees located on this land would also be the property of the Hills.

47. Patton, at the direction of Slater, harvested trees growing on the established property that were the property of the Hills.

48. The trees harvested from the established property have a stumpage value of $1,773.30. Testimony of McCoy, Claimant’s Exhibit 1.

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49. McCoy’s appraisal does not include any trees that were harvested from within the gap property. Testimony of Martha Hill and Doug Hill.

50. The Hills obtained an estimate from Rusty Cooper to do clean up and make repairs to the Hills property that resulted from the timber harvest work that occurred. The estimate for $5,000.00, dated July 25, 2009, explains the work to be performed in cleaning up and repairing the Hills’ property and removing tree tops and repairing ruts in the land. Testimony of Rusty Cooper, Claimant’s Exhibit #2. Slater and Patton offered no evidence contrary to the estimate of Rusty Cooper.

CONCLUSIONS OF LAW:

51. The Hills are timber growers. Indiana Code § 25-36.5-1-1

52. Patton is both a timber buyer and a timber cutter. Id.

53. Slater, as the owner of land adjacent to land owned by the Hills from which Patton harvested timber, is also among the class of persons who may be liable for the wrongful harvest of timber. Indiana Code § 25-36.5-1-3.2(e)(4).

54. The Hills are entitled to initiate a proceeding under Indiana Code § 25-36.5-1-3.2 against Patton who acquired timber from the Hills’ property without a written contract and without making payment for the timber in an amount “equal to the value of the timber as determined under IC 26-1-2” and against Slater who entered into the contract with Patton, identified his property lines for Patton and who shared in the proceeds of the trees harvested from the Hills’ property.

55. Under Indiana Code § 25-36.5-1-3.2(f)(2) the Hills may seek three times the stumpage value of the trees wrongfully harvested. This remedy is frequently referred to as the “treble damages clause” of the Timber Buyers Act.

56. The treble damages clause was established “to insure that timber buyers will exercise care in the cutting of timber and to protect landowners from careless felling of their timber.” Wright v. Reuss, 434 N.E.2d 925, 929.

57. The Commission has previously determined that it is possessed of the authority to determine whether an award of treble damages is appropriate. “Such discretion may most appropriately be applied where the timber buyer or timber cutter acts with all due diligence, but because of misdirection or connivance of another, is caused to err.” Martin, supra at 73, citing Gallien v. Sloan Logging, Pendley & Zurich North American, 9 CADDNAR 40, (2002), Hornaday v. Ammerman, et al., 8 CADDNAR 112, (1999) and Pollock v. Coats, 8 CADDNAR 124, (1999).

58. The Timber Buyers Statute is a “strict liability statute”, Martin v. Curtis & Teague, 11 CADDNAR 53, 73 (2007), citing Rose Acre Farms, Inc. v. Ault & Curry, 8 CADDNAR 138, (1999).

59. “A timber buyer who relies upon a person’s oral claim of real estate ownership does not satisfy due diligence” in determining the true ownership of property from which timber is to be harvested. Goldasich at 175.

60. Slater’s action of identifying property boundaries for Patton that were contrary to the Bell Survey, when monuments associated with the Bell Survey were evident on the property does constitute misdirection by Slater. If Patton had made reasonable inquiries as to the location of Slater’s property boundaries and those inquiries had failed to identify Slater’s misguidance, it might be reasonable to conclude that Patton should not be liable for treble damages. However, Patton relied exclusively upon the oral representations of Slater as to the location of the property boundary shared by Slater and the Hills, which does not satisfy the Commission’s consistent holding that due diligence must be exercised by timber buyers. Id.

61. Under Indiana Code § 25-36.5-1-3.2(e)(2) a timber buyer’s surety is also among the classes of persons who may be liable to a timber grower although the liability of a surety is “limited to the value of any timber wrongfully cut or appropriated.” Indiana Code § 25-36.5-1-3.2(g).

62. Under both the Bell Survey and the BRG Survey, the established property, thus the trees harvested from the established property, are the property of the Hills.

63. The stumpage value of the trees harvested from the established property is $1,773.30.

64. There is insufficient evidence from which to determine the ownership of trees located on the gap property.

65. The Hills are entitled to an award of three times the stumpage value of the trees harvested from the established property, or $5,319.90.

66. The Hills are also entitled to “compensation for damage actually resulting from the wrongful activities of a timber buyer or timber cutter”. Indiana Code § 25-36.5-1-3.2(f)(1).

67. The Commission has determined that compensation for damage may include such activities as the clearing of tree-tops and the repair of ruts to the land. Goldasich v. Hites, et al., 11 CADDNAR 165 (2007).

68. The Hills are entitled to an award of $5,000.00 for the repair of land damages and tree top removal.

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69. The Commission “has only the powers conferred on it by the Indiana General Assembly” and the authority to award expenses of litigation, such as the cost of obtaining a survey has not been granted to the Commission. Pike Lumber Co. v. Cruse Timber, et al., 10 CADDNAR 28, 38 (2005) and Martin v. Curtis and Teague, 11 CADDNAR 53, (2007).

70. Consequently, the Commission is without authority to award the Hills compensation for the costs of associated with survey completed by Bledsoe Riggert Guerrettaz.

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order, Paragraphs 71 through 74, have been relocated to the “Final Order” section at the beginning of this document.]

[1] The purpose of this nonfinal judgment is not to establish the property boundaries of Slater or the Hills. The sole purpose of this proceeding is to determine whether, by a preponderance of the evidence, the ownership of certain trees can be established.