Supreme Court of Kansas
267 P.2d 543 (1954)
H. Wade Zimmerman (defendant) hired a company to cut the tops off three cedar trees located on property Zimmerman believed she owned. However, the trees were located on property owned by Matilda Longnecker (plaintiff). Longnecker sued Zimmerman for trespass and sought damages. At trial, Longnecker argued that approximately 10 feet were cut off the tops of the 25-foot-high cedar trees. As a result, the trees would never grow any higher. Longnecker thus considered the trees destroyed and valued them at $150 each. Zimmerman testified that she thought the trees were located on her property, but Zimmerman admitted that she had trespassed on Longnecker’s land. However, Zimmerman claimed that the trimming of the trees was beneficial, because several branches were dying. An expert testifying for Zimmerman agreed and stated that the cutting away of dead wood would not injure the physical condition of the tree, but the expert conceded that if the top of the tree were removed, the tree would no longer grow. The trial court refused Longnecker’s requested jury instruction that Zimmerman was liable for nominal damages. Instead, the trial court instructed the jury that it was required to determine whether the evidence showed that injury had occurred to the trees and, if so, whether and to what extent damages should be awarded to Longnecker. The jury held for Zimmerman. The trial court denied Longnecker’s motion for a new trial. Longnecker appealed.
Rule of Law
Holding and Reasoning (Wertz, J.)
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