John Moon, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0903

John Moon,
Appellant,

vs.

Mark F. Schultz, et al.,
Respondents.

Filed January 17, 2023
Reversed
Connolly, Judge

Chippewa County District Court
File No. 12-CV-20-653

Matthew B. Gross, Quarnstrom & Doering, P.A., Marshall, Minnesota (for appellant)

Douglas D. Kluver, Kluver Law Office, Montevideo, Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Connolly, Judge; and Johnson,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Following a bench trial on respondent-landowners’ claims related to damage to their
trees and crops, appellant-adjoining-landowner argues that the district court (1) abused its
discretion in awarding damages in favor of respondents; (2) erred in finding that treble
damages under Minn. Stat. § 548.05 (2022) were applicable; (3) abused its discretion by
admitting the testimony of respondents’ expert witness; and (4) abused its discretion in
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denying appellant’s motion for a new trial. Because the district court abused its discretion
in awarding damages to respondents, we reverse.
FACTS
Appellant John Moon and respondents Mark Schultz (Schultz) and Mary Pepka-
Schultz are the record owners of adjoining parcels of real property located in Sparta
Township, Chippewa County. Respondents’ property consists of pastureland and
appellant’s property is cropland. The south side of respondents’ property adjoins the north
side of appellant’s property, and there has traditionally been a fence line along the boundary
between the parties’ properties. Appellant had previously installed fences along the
boundary line in 1993 and 2017, but both fences were removed.
In September 2017, appellant replaced the existing fence along the parties’ property
line. In doing so, appellant entered respondents’ property and cut down several elm trees.
The trees fell onto respondents’ soybean field, damaging some of the crops. Respondents
later sued appellant for damages related to the destroyed trees and crops.
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A bench trial was held in December 2021, at which Schultz testified that two acres
of his soybean crop were damaged as a result of the trees falling on his crop land. Schultz
also testified that he calculated his damages for the destroyed crops by relying on price
information obtained from his crop insurance, which showed an average yield of 58 bushels
of soybean per acre. Schultz then explained his calculation of damages: “It’s [58] bushels

1 The parties are also the record owners of separate adjoining parcels of real property in
Chippewa County. Although the parties’ lawsuit also involved land-use issues related to
an easement on those parcels of property, those issues are not before us in this appeal.
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per acre at two acres equals 116 bushels times the guarantee of $10.19 for a total of
$1,182.04.” According to Schultz, the price information , which he received in January
2018, is determined by the market.
With respect to his damaged trees, Schultz claimed that the trees had special
aesthetic value because “[t]here was one tree in there that was kinda special to me because
. . . I had trimmed it a couple times and was hoping that I could use it for a deer stand in
. . . the future.” But Schultz admitted that his land did not decrease in value as a result of
appellant damaging the trees.
Duane Hastad testified that he operates a nursery and landscaping business and that
his duties in his line of work include providing estimates for the value of foliage. Hastad
also testified that Schultz asked him to conduct a valuation for the damage to his trees.
Schultz provided Hastad pictures of his damaged trees, the number of trees that were
damaged, the location of the trees, and the size of about a third of the damaged trees. After
being provided this information, Hastad concluded that the replacement value of the trees
was $9,500 to $12,500. In reaching his conclusion, Hastad admitted that he “consulted”
another individual because “he’s a lot more familiar with [this] type of procedure and [the
individual has] been doing this for [65] years, so he’s kinda a mentor and I trust his
valuation of trees.” And Hastad acknowledged that a “tree being on a tree line would
probably not have as much value as a tree in your front yard.”
Appellant moved to disqualify Hastad as an expert witness. The district court
denied the motion, concluding that Hastad’s “qualifications provide sufficient foundation
for the opinions and the comments really go to the weight to be given rather than whether
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the opinions are admissible.” Appellant then testified that he cut down the trees because
they were in his fence line. And according to appellant, the fallen trees were Chinese elm
trees, which are ”bushy,” “short lived, weed- type tree[s],” that have a “negative value”
because they grow fast and expand out, creating shade over crops causing them not to grow.
The district court found that appellant felled 19 elm trees on respondents’ property
and that the replacement value of the trees is $9,500. The district court also found that the
felled trees caused $1,182.04 in damage to respondents’ soybean crop. And the district
court determined that treble damages were applicable under Minn. Stat. § 548.05. Thus,
the district court awarded damages in favor of respondents in the amount of $32,046.12
related to appellant’s trespass and damage to respondents’ trees and soybean crop.
The parties moved for amended findings of fact, conclusions of law, order for
judgment and judgment. Appellant also filed an alternative motion for a new trial. The
district court denied the motions. This appeal follows.
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DECISION
Appellant challenges the district court’s decision awarding damages to respondents
for their (A) damaged trees, and (B) destroyed soybean crop. This court reviews a district
court’s award of damages for an abuse of discretion, Gabler v. Fedoruk, 756 N.W.2d 725,
734 (Minn. App. 2008), and the district court’s findings concerning damages awarded on
court-tried claims are reviewed for clear error, Rasmussen v. Two Harbors Fish Co., 832

2 Respondents did not file a brief in this appeal and this court ordered that the matter
proceed pursuant to Minn. R. Civ. App. P. 142.03 (providing that, if respondent fails to file
a brief, the case shall be determined on the merits).
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N.W.2d 790, 797 (Minn. 2013). “[W]e examine the record to see if there is reasonable
evidence . . . to support the [district] court’s findings” and “view the evidence in the light
most favorable to the verdict.” Id. (quotation omitted). But whether the district court used
the proper measure of damages is a legal issue that is reviewed de novo. Magnuson v.
Cossette, 707 N.W.2d 738, 744 (Minn. App. 2006).
A. Damaged trees
“It has long been the rule in this state that the measure of damages for destruction
of trees and shrubbery is the difference between the value of the land before and after the
damage has been inflicted.” Baillon v. Carl Bolander & Sons Co., 235 N.W2d 613, 614
(Minn. 1975). Where the destroyed trees were small, ill-formed, and used to prevent
erosion or reduce noise, the proper measure of damages was diminution of land value. Id.
at 615. But where the destroyed trees had substantial value for shade and ornamental
purposes, had aesthetic value, and were used as a sound barrier and a screen from traffic,
replacement cost was the proper measure of damages. Rector, Wardens & Vestry of St.
Christopher’s Episcopal Church v. C.S. McCrossan, Inc., 235 N.W.2d 609, 610 (Minn.
1975).
Here, the district court found that appellant cut down 19 elm trees, and that the “trees
had trunk radiuses ranging from 2 inches to 12 inches.” But the district court made no
further findings related to the proper measure of damages. Instead, the district court simply
found that the replacement value of respondents’ damaged trees is $9,500.
Appellant argues that the replacement value of the trees is the wrong measure of
damages because there is no evidence in the record indicating that respondents’ damaged
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trees were the type of tree that had substantial value for shade and ornamental purposes,
had aesthetic value, and were used as a sight and sound barrier. We agree. Our review of
the record indicates that the fallen trees were small and ill-formed, with little or no aesthetic
value. The trees were situated along a fence line between appellant’s pastureland and
respondents’ cropland, and there is no indication that the fallen trees had any shade or
aesthetic value, or were used as a sound or sight barrier. In fact, the record indicates that
the fallen trees were on a parcel of property that was not visible from respondents’ house.
Moreover, Hastad testified that he believed the trees were likely wild elm trees that
grew along a tree line and “would probably not have as much value as a tree in your front
yard.” Appellant echoed Hastad’s testimony, claiming that the fallen trees were Chinese
elm trees, which are ”bushy,” “short lived, weed-type tree[s],” that have a “negative value”
because they grow fast and expand out, creating shade over crops causing them not to grow.
Schultz did not dispute Hastad’s or appellant’s descriptions of the fallen trees. Instead, he
claimed that one of the fallen trees “was kinda special to me because . . . I had trimmed it
a couple times” and “was hoping to be able to have it for a deer stand at some time in my
life.” But Schultz’s desire to perhaps use one of the trees as a deer stand “at some time in
[his] life” does not support a finding that the replacement value of the trees is the proper
measure of damages. Rather, the record is devoid of any evidence demonstrating that the
fallen trees had substantial value for shade and ornamental purposes, had aesthetic value,
or were used as a sound and sight barrier. Therefore, we conclude that the district court
erred in using replacement cost as the measure of damages in this case.
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Appellant also contends, that because the district court erred by using replacement
cost as the measure of damages, the applicable measure of damages is diminution of value.
Appellant claims that, “[i]n applying the diminution in land value measure of damages, the
record is clear that Respondents’ land did not decrease in value as a result of the damage
to Respondents’ trees.” Thus, appellant contends that respondents are not entitled to any
damages related to their fallen trees.
Again, we agree. The record reflects no pleading or arguments by respondents
related to diminution of land value. Rather, respondents’ claim for damages related to the
fallen trees focused solely on the replacement value of the trees. Moreover, there was no
evidence presented at trial related to diminution of land value. In fact, Schultz testified
that he did not know the value of his land in 2017, when the trees were damaged. And,
more importantly, Schultz acknowledged that his land did not decrease in value as a result
of appellant damaging the trees. Because Sch ultz admitted that the value of his land was
not damaged by appellant’s actions, respondents are not entitled to any damages for the
fallen trees. Accordingly, the district court abused its discretion in awarding damages to
respondents related to the fallen trees.
B. Damaged soybean crop
Appellant also contends that the district court abused its discretion in awarding
damages to respondents for their damaged soybean crop. The measure of damages for
destruction or injury to growing crops is the value of the crops as they were standing at the
time and place of their destruction. Poynter v. County of Otter Tail, 25 N.W.2d 708, 715
(Minn. 1947). As the supreme court has explained, the “valuation of crops . . . based upon
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the assumption that they will mature and be harvested may differ considerably from
valuation of such crops as they stand in the fields in the early part of the growing season.”
Id.
Here, Schultz testified that two acres of soybean crop were damaged as a result of
the trees falling on his crop land. Schultz also testified that he calculated his damages for
the destroyed crops by relying on price information obtained from his crop insurance. This
information, submitted as exhibit 114.1, shows an average yield of 58 bushels of soybean
per acre. Schultz then explained his calculation of damages as follows: “It’s [58] bushels
per acre at two acres equals 116 bushels times the guarantee of $10.19 for a total of
$1,182.04.” According to Schultz, the price-guarantee information of $10.19 is determined
by the market, which he received in January 2018, and depicted the market value as of that
time.
In awarding damages to respondents for their destroyed soybean crop, the district
court apparently adopted Schultz’s testimony, finding that “[t]wo acres worth of soybeans
were damaged, resulting in a loss of 58 bushels. The total amount of damages to the
soybeans was $1,182.04.” The district court then awarded treble damages for the destroyed
soybeans in the amount of $3,546.12. But the district court made no findings supporting
its determination that the total amount of damages to respondents’ soybeans was $1,182.04,
nor did the court engage in any legal analysis to arrive at its measure of damages.
Appellant argues that the district court abused its discretion in awarding damages to
respondents for the destroyed soybean crop because “there is no evidence in the record of
the value of Respondents’ soybean crops at the time they were damaged or destroyed.” We
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agree. Respondents’ soybean crop was damaged in September 2017, and there is no
evidence in the record of the value of the soybean crop as of that time. Instead, the only
evidence submitted by respondents depicts the value of two acres of soybeans after being
harvested, based on an assumed per-acre yield and the market value of a bushel of harvested
soybeans. The supreme court has clearly stated that the measure of damages for destruction
or injury to growing crops is the value of the crops as they were standing at the time and
place of their destruction. Poynter, 25 N.W.2d at 715. Without evidence of the value of
the damaged soybean crop as of September 2017, respondents failed to meet their burden
to show the value of the damaged crop under the appropriate measure of damages set forth
in Poynter. As such, the district court abused its discretion in awarding damages to
respondents for the destroyed soybean crop.
Appellant also contends that the district court erred in awarding treble damages
under Minn. Stat. § 548.05. But we need not address this argument because we have
concluded that the award of any damages was error and, therefore, there are no damages to
treble. And because we reverse the district court’s award of any damages, appellant’s
remaining arguments are moot, and they need not be addressed.
Reversed.