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MAY 09, 1984




Seismic Petroleum Services, Inc. [Seismic] has appealed from a judgment entered against it in the Circuit Court of Adams County, Honorable Edwin E. Benoist, Jr., presiding, in favor of Charles M. Ryan for actual, statutory and punitive damages in the aggregate amount of $15,980, as a result of a trespass suit. Seismic assigns the following errors in the trial below:

(1) The lower court erred in overruling appellant's motion for judgment notwithstanding the verdict and/or alternatively for remittitur, and/or alternatively, for a new trial.

 (2) The lower court erred in denying appellant's motion for the jury to view the subject property.

 (3) The lower court erred in allowing the issues of statutory damages and punitive damages to go to the jury and should have given Instructions No. D-1 and D-2.

 Evidence favorable to Ryan indicates that prior to September 15, 1981, Seismic's representatives contacted him to obtain permission for a seismograph crew to run a seismic line over approximately one-half (1/2) mile of the property. Ryan authorized the representative to enter the land for the purpose of a survey or determination where Seismic desired to run the line, but admonished him not to run the line without obtaining Ryan's permission to do so.

 The representatives never contacted him again or obtained a permit to run the line. Ryan discovered that the Seismic crew was on the property with its machinery and had started on the seismic line, and he sent his son to warn them not to continue the work without Ryan's express permission. On September 15, 1981, the son, Danny Ryan, told the crewmen that they were trespassing on the property and that they needed to talk with appellee Ryan about it. Subsequent to that date, young Ryan saw evidence of cable and equipment indicating that the crew had come back upon the property, and on September 28, 1981, at the request of his father, Danny Ryan complained to Deputy Sheriff Max Marler about the trespass. The deputy went to the property and arrested two Seismic employees for trespassing. Seismic still did not obtain a permit to go upon the property.

 The two employees, who were charged with willful trespass, were released on bond obtained by the Seismic foreman and were told by the deputy not to go back on the property. Deputy Marler stated that on the next day he received a call complaining that seismograph employees had been back upon the property and, after Marler inspected the same, he found that additional equipment had been placed upon the property and wire had been laid since the previous day.

 Seismic contended, and introduced evidence to the effect, that it was acting in good faith in going upon the property. Kenneth Caziar, vice president and part owner of Seismic, stated that, if the matter had come to his attention he would have talked to Ryan personally and could have moved the line around Ryan's property and that Seismic thought it had a verbal permit to go upon the Ryan property. Seismic admitted that it had at least three (3) separate crews upon Ryan's property at different times.

 Edward H. Hamby, a professional forester, testified for Seismic that he inspected the property after the alleged trespass and found that there were 62 damaged trees, which included 37 one-inch trees, 11 two-inch trees, 13 four-inch trees, and one ten-inch tree with a scar. He estimated that a generous value of the damage was around 17 to 22 cords of wood of the lowest value specie for pulpwood with a value of about $22.00. Hamby made photographs of the property, the line, and the damage, and fourteen (14) photographs were introduced in evidence. *fn1

 In rebuttal, Tom Middleton, registered forester, testified on behalf of Ryan. On October 30, 1982, he viewed the property to assess damage done by the seismograph crews, and stated that he found 201 trees cut and destroyed; that seventy-five percent (75%) were of commercial value, mostly red oak, sweet gum, hickory, and sassafras, and twenty-five percent (25%) were of" junk "species; that the path of the line cut was an average of six (6) feet wide; and that he found evidence of preparation made for drilling holes.

 The lower court sustained a motion for partial directed verdict on actual damages, limited the amount to $180.00, and overruled motions for directed verdict on statutory damages and punitive damages. The jury returned a verdict finding that Seismic willfully trespassed upon the Ryan property, and awarded damages in the amount of $180.00 actual damages, $3,300 statutory damages (60 trees at $55.00 per tree), and $12,500 in punitive damages, for total damages of $15,980.

 Motion for judgment notwithstanding the verdict, for remittitur and for a new ...

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