Creel v. Crim

812 So.2d 1259 (Ala. Civ. App. 2001)



Under the ore tents rule, the trial court's judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless found to be plainly and palpably wrong.


The Circuit Court granted judgment in favor of appellee property owner in his action against appellant tree service, alleging that the tree service had trespassed upon his property and had cut and carried away trees from the property. The tree service appealed. The tree service claimed that the trial court erred in finding for the property owner on the owner's trespass claim and in awarding the tree service only $2,700 on his indemnity claim.  The trial judge personally viewed the property in question and the knowledge he obtained during the view constituted proper evidence. The owner testified that a marker pipe had been removed from the boundary between his land and his neighbor's, and an exhibit admitted into evidence contained a handwritten statement signed by the tree service in which he stated he was sorry for the over cut.


Whether the tree service trespassed by over cutting on a neighbor's property?




Th evidence was such that the trial court could have ascertained not only that the tree service trespassed upon, and cut trees from, the owner's land, but that the actions diminished the value of the owner's property in the amount of $5,400.  Because the trial court found that the tree service was entitled to indemnity because of the neighbor's representations, but did not require full indemnity, the trial court erred.

The judgment was affirmed as to the owner's trespass claim and reversed as to the tree service's cross-claim against the neighbor.

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