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AMI 2226A Measure of Damages—Damage to Trees or Growing Timber

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2226A
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 22. Damages
AMI 2226A Measure of Damages—Damage to Trees or Growing Timber
The [fair market value of the timber cut] [difference in the fair market value of the land immediately before and immediately after the occurrence] [cost of replacement of the trees] [the value of the wood in a manufactured state] [plus the reasonable expense of necessary repairs to any property damaged].
NOTE ON USE
The appropriate clause is to be inserted between the two paragraphs of AMI 2222 when the evidence justifies its use. The final bracketed clause is not used where the plaintiff seeks damages for diminution in the fair market value of the land.
COMMENT
A plaintiff claiming damages for the wrongful removal of timber is presented with a number of options. Under Ark. Code Ann. § 18-60-102, the plaintiff may recover the value of the timber or the damage to the market value of the land. Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979). In cases involving ornamental or shade trees, damages are measured by the cost of replacing the damaged or destroyed trees plus the reasonable expense of any necessary repairs to any property damaged. Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991). The use made of the land should be considered. Id. The evidence in each case will determine which instruction should be given. Id. The reasonable expense of necessary repairs can be recovered except in cases where damages are measured by the difference in the market value of the land immediately before and immediately after the occurrence.
In addition, the common law allows recovery of the value of the wood in the manufactured state less the cost of converting the timber to wood. Burbridge v. Bradley Lumber Co., 218 Ark. 897, 239 S.W.2d 285 (1951). Where the defendant acted intentionally, it is not entitled to a reduction for the cost of manufacturing. Bailey v. Hammonds, 193 Ark. 633, 101 S.W.2d 785 (1937). The jury may be instructed on different theories but only one recovery is appropriate. Peek v. Henderson, 208 Ark. 238, 185 S.W.2d 704 (1945).
In certain situations, the intended use of the damaged or destroyed trees is a question for the jury. King v. Powell, 85 Ark. App. 212, 148 S.W.3d 792 (2004). In Prendergast v. Craft, 102 Ark. App. 237, 284 S.W.3d 104 (2008), the court approved an instruction awarding the fair market value of the timber cut plus the reasonable expense of necessary repairs to any property damaged.
In Shamlin v. Quadrangle Enterprises, Inc., 101 Ark. App. 164, 272 S.W.3d 128 (2008) the court held that the Civil Justice Reform Act of 2003 does not evince an intent to alter the common law regarding actions for conversion brought under Ark. Code Ann. § 18-60-102 and therefore does not automatically apply to such actions. There, the court affirmed a decision to hold defendants jointly and severally liable for the fair market value of the timber cut and to apportion the award for the cost of restoring the damaged land.
An action for double damages may be brought under Ark. Code Ann. § 15-32-301 where a defendant acts knowingly. An action for treble damages is available under Ark. Code Ann. § 18-60-102 unless the defendant had probable cause to believe he owned the land or the trees cut. A plaintiff may also elect to recover punitive damages. Travis Lumber Co. v. Deichman, 2009 Ark. 299. A plaintiff may not recover both statutory enhanced double or treble damages and common law punitive damages where the elements for each recovery are the same. Stoner, supra.
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