#### J. H. McBRIDE, Plaintiff-Appellee, v. H. E. DUCKWORTH, Executor, Defendant-Appellant.

No. 11274.

Court of Appeal of Louisiana. Second Circuit.

Oct. 20, 1969.

On Rehearing Feb. 3, 1970.

Rehearing Denied March 3, 1970.

*123Alfred Bullock, Shreveport, for appellant.

Booth, Lockard, Jack, Pleasant & LeSage, by John R. Pleasant, Shreveport, for appel-lee.

Before AYRES, DIXON and WILLIAMS, JJ.

*124WILLIAMS, Judge.

Plaintiff J. H. McBride seeks judgment herein against defendant H. E. Duckworth, Executor of the estate of Mrs. Leila Pirkle, for damages resulting from the cutting of two pin oak trees and a privet hedge. Plaintiff also seeks orders commanding defendant to remove all dirt, debris and trash placed by defendant on plaintiff’s lot and to construct a curb along defendant’s driveway adjacent to the north side of plaintiff’s lot to control drainage. The alleged damage resulted from defendant’s actions in enlarging and improving a certain parking lot and driveway which adjoin plaintiff’s property on the north and west sides.

The trial court awarded plaintiff $2,000 for the two trees and $50 for the privet hedge. The court ordered defendant to remove all dirt, debris and trash placed on plaintiff’s property by defendant, and further ordered defendant to construct a curb along the driveway adjacent to the north side of the property owned by plaintiff to control the flow of water and direct it to the northwest corner of plaintiff’s property along its natural drainage line. From this judgment defendant has taken a suspensive appeal.

Plaintiff’s property is located on the west side of Alexander Street in the city of Shreveport. The lot extends in a westerly direction along the northern edge of the property for a distance of 150 feet. At the rear the property is 52.5 feet wide. Improvements on plaintiff’s property consist of a garage and a residential-type building which is used by plaintiff’s wife as a dance studio. Plaintiff’s property is bounded on the north and west by defendant’s property, which consists mainly of commercial property fronting on Kings Highway. In 1967 defendant enlarged the parking lot at the rear of plaintiff’s property and improved the driveway which runs along the northern edge of plaintiff’s lot.

In the course of improving and enlarging the parking lot, defendant removed two pin oak trees and a hedge which were located at the rear of plaintiff’s property. The trees measured approximately 18 inches in diameter and were some 40 to 50 feet high. These trees were natural growth and were among some eight trees that were located west of plaintiff’s dance studio. Prior to the cutting of the trees and hedge plaintiff had constructed a wooden fence across the rear of his lot, approximately 14 feet from the rear property line. The pin oaks and hedge were outside and beyond this fence. Without locating the property line, defendant had the trees and hedge cut down and removed, leaving only the two stumps of the trees. Defendant gave no excuse for cutting the trees and hedge except that he thought they were on his lot. There is no evidence that he acted with malice.

The trial court based its judgment of $1,000 for each tree cut by defendant on the replacement cost of similar but smaller trees. This figure was reached from testimony of Mr. Calvin Morrison, a tree surgeon. Defendant offeed no evidence on the question of damages. Evidence produced shows that the trees and hedge were not planted by plaintiff, were not a part of a balanced landscape plan, and had no particular aesthetic value. Their main value was in screening the dance studio from the parking lot. It is uncertain from the testimony whether they actually provided any shade.

The replacement value basis used by the trial court in assessing damage does not conform to the jurisprudence of this state. Plaintiff relies heavily on the case of City of New Orleans v. Shreveport Oil Company, 170 La. 432, 128 So. 35 (1930) as authority for the proposition that replacement value is the proper measure of damages. In that case a large water-oak growing along St. Charles Avenue in New Orleans was destroyed. The court stated:

> “The evidence shows that it would be impossible to put back in the same place or in any other selected place a tree of like character and like dimensions, and growth.

> *125“The replacement value cannot, therefore, he accepted as the measure of value or damage the plaintiff and the public have sustained.” [128 So. 35, 36]

Replacement value is not the proper measure of damages when the trees had little aesthetic value, were not part of a landscape plan and were natural growth. Marbury v. Louisiana Highway Commission, 153 So. 590 (La.App., 2nd Cir. 1934) and Morgan v. Dixie Electric Membership Corp., 112 So.2d 315 (La.App., 1st Cir. 1959). Plaintiff’s evidence as to replacement cost of selected but smaller similar trees, therefore, cannot be accepted as the sole basis for assessing damages. On this issue in Tisscot v. Great Southern Telegraph & Telephone Company, 39 La.Ann. 996, 3 So. 261 (1887) the court observed:

> “The law on the subject of assessment of damages in cases of offenses and quasi offenses leaves much discretion to the judge or jury. R.C.C. 1928.

> “ * * * The Code provides that, in cases of unlawful deprivation of some legitimate gratification, although the same are not appreciated in money, yet damages are due. R.C.C. 1934; * * *.” [39 La.Ann. 996, 1005, 3 So. 261, 265]

See also Oglesby v. Town of Winnfield, 27 So.2d 137 (La.App., 2d Cir. 1946).

We find that the amount awarded for the value of trees is excessive and should be reduced. We have reached the conclusion that $250 for each pin oak and $50 for the privet hedge for a total of $550 is adequate.

We now reach the drainage question. Before the fill was added to defendant’s property it already had a slightly higher elevation than that of plaintiff’s. In improving the driveway defendant further increased the elevation of the lot along and adjacent to the north edge of plaintiff’s property leaving a slight ridge alongside the driveway. Defendant removed the curb on Alexander Street without securing a permit from the city. Plaintiff maintains that the flow of water across his property was thus greatly increased by the work done on the driveway. Before this work was completed plaintiff testified that the wooded area between the lots absorbed the drainage from defendant’s property and for this reason seeks an order commanding defendant to construct a curb along the driveway of his property to control the flow of water and redirect it toward the northwest corner of plaintiff’s property to its natural drainage line. The trial court issued an order accordingly. Evidence produced by plaintiff at the trial showed only that the water spilled over and ran across the front part of the driveway and cut a small ditch across the lot. This evidence was refuted by defendant’s witness, Cliff Eschenfelder, a photographer, who testified he parked in the driveway adjacent to plaintiff’s lot and observed the flow of water when it came down the driveway and out into Alexander Street. Pictures filed in evidence (Exhibit P-8) show the water from a rain would naturally move eastward into Alexander Street. Plaintiff has not demonstrated to our satisfaction that defendant’s action caused an excess flow of water across his property. In the absence of evidence of irreparable injury, loss or damage, plaintiff is not entitled to injunctive relief. LSA-C.C.P. art. 3601. Irreparable injury for which an injunction will lie is that injury for which an injured party cannot be compensated adequately in money damages. Monochem, Inc. v. East Ascension Telephone Company, 195 So.2d 748 (La.App., 1st Cir. 1967). There is no sound basis for requiring defendant to construct a curb along his driveway adjacent to the north side of plaintiff’s lot.

In addition to cutting the trees at the rear of the lot while the parking lot was being enlarged, some of the fill used was allowed to fall on plaintiff’s property. The evidence revealed that all of the dirt, debris and trash complained of has been removed with the exception of some small amount of debris at the “corner” of plaintiff’s property and a “slab of concrete that is still over the *126property line.” The trial court issued an order commanding defendant to remove all dirt, debris and trash placed on plaintiff’s property. Again, this court does not view the use of injunctive relief as appropriate where no irreparable harm is shown. LSA-C.C.P. 3601.

For the reasons assigned the judgment appealed, so far as relates to injunctive relief, is annulled, avoided, reversed and set aside, and plaintiff’s demands for such relief are rejected; and so far as it relates to the award of damages, the judgment is amended by reducing the award to $550, and as thus amended, it is affirmed. Plaintiff-appellee is taxed with the cost of this appeal.

Amended and affirmed.

DIXON, J., dissents with written reasons.

DIXON, Judge

(dissents).

I respectfully dissent.

I cannot agree that the trial court abused its discretion in fixing damages at $1000.00 each for the destruction of these two trees.

The record contains evidence about the shade-giving qualities of the trees (which was disputed) and evidence about the cost of replacing the trees (which was undisputed). There is hardly any other evidence in the record on which an award for damages can be based. This court now finds, for unexplained reasons, that $1000.00 is too much for a tree, and $250.00 is enough. In the process it is said that replacement cost is not a proper measure of damages in this case.

When an ornamental or a“utility” tree is destroyed in a city, and when the tree can be replaced, it is my opinion that replacement cost is the only measure of damages authorized. (“Every act whatever * * * that causes damage * * * obliges him by whose fault it happened to repair it.” Civil Code Article 2315). Replacement cost seems to me to be the only sound method of computing damages here; any other method, especially on the record before us, would have a result unpredictable, uncertain, and speculative. It is the only method by which the injured person can hope to be restored to the condition he was in before the damage.

I cannot glean from the cases cited that our jurisprudence holds replacement cost to be an inappropriate measure of damages. Marbury et al. v. Louisiana Highway Commission, 153 So. 590 (La.App. 1934) is not applicable. There a road building contractor cleared an eighty foot right of way across one thousand feet of the plaintiffs’ property. There had been no conveyance of the right of way, and no expropriation. Damages were awarded to the plaintiffs in the amount of $300.00. There was no discussion of the replacement cost as being the proper measure of damages. All the court had to say about the measure of damages was:

> “The testimony introduced by plaintiffs estimates the damage to their property at from eight hundred to one thousand dollars. Defendant offered no evidence on the question of damages. Mr. Atkinson was of the opinion that for shade and ornamental purposes the destroyed trees had an aesthetic value of $900. In view of the facts of the case, this sort of value cannot be adopted as the measure of damage sustained from the trespass. If the trees destroyed had been all there were on the front line of the land, the aesthetic value would enter into the case more seriously; but as there are plenty trees left on the land, in fact, as we gather from the record, they are continuous back to the Farmerville road, a different case is presented.”

In Morgan et al. v. Dixie Electric Membership Corporation, 112 So.2d 315 (La.App. 1959), an electric co-op obtained a right of way deed from part of the owners, but not from all. The plaintiffs claimed damages for the destruction of one oak tree and one pecan tree, and for the mutilation *127of two oak trees; plaintiffs based their claim on City of New Orleans v. Shreveport Oil Company, Inc. et al., 170 La. 432, 128 So. 35 (1930) and Tissot v. Great Southern Telegraph and Telephone Company, 39 La.Ann. 996, 3 So. 261 (1887).

In the Tissot case, $750.00 damages were awarded in the trial court after the defendant trimmed several limbs from four full grown magnolia trees so that an open space was left “in the foliage, varying 25 to 40 feet in circumference.” The trespass was found to be in bad faith. The court said Civil Code Article 1928 left “much discretion” to the judge. The court mentioned the cost of replacement, time required for the newly planted trees to acquire the size of those mutilated, disappointment and mortification, and referred to the provisions of Civil Code Article 1934, which provides for damages for the violation of rights to some intellectual enjoyment. Although the replacement cost was mentioned, the court found that “the damage done is daily being repaired, and that, in the course of time, it will hardly be perceptible, so that the original condition of things will be fully restored.” Following this finding, the court reduced the award to $400.00.

In Oglesby v. Town of Winnfield, 27 So.2d 137 (La.App. 1946), there were elements of bad faith, a hand planted and carefully nurtured thirty-five year old tree and a finding that there was a peculiar case of disappointment, mortification and “other sufferings, not measurable and appreciable in dollars.” The award was increased from $250.00 to $500.00. There was no discussion of replacement cost.

In the City of New Orleans v. Shreveport Oil Company, Inc. et al., supra, there was a $750.00 judgment in the district court for destruction of a water oak between the sidewalk and curb on St. Charles Avenue. The tree was fifty-four years old, sound and healthy, two and one-half feet in diameter. The court found that it was impossible to replace the tree and said “the replacement value cannot, therefore, be accepted as the measure of value or damage the plaintiff and the public have sustained.” The court then said that the trial judge did not abuse the “wide discretion” left to him in assessing the damages.

In none of these cases did the court find that it was possible to replace the trees which had been destroyed. In this case, it is possible to substitute somewhat smaller trees for those which were removed by the defendant. Since the only evidence before us is that it would cost $1000.00 apiece to replace the destroyed trees, it is my opinion that the trial court was correct in fixing damages due the plaintiff.

In all other respects, I concur in the opinion of the majority.

AYRES, J.

A rehearing was granted to afford an opportunity to give further consideration to the question of the quantum of damages to which plaintiff is entitled as the result of defendant’s having cut and removed two large pin oak trees situated on plaintiff’s property.

As the background and nature of the litigation are adequately set forth in our original opinion, we shall proceed directly to the question at issue.

We reduced the award of $2,000 allowed by the judge in the lower court to $500. On further study, we are convinced that the award of $500 was, more or less, arbitrary and not supported by the evidence in the record.

The only evidence in the record, and properly before this court, on which an award to compensate plaintiff for the loss of the trees could be based is the testimony of Calvin Morrison, a tree surgeon for 16 years who specialized in ornamental horticulture. He has a B.S. degree in agricul*128ture from Louisiana State University. Morrison testified that it would cost $2,000 to replace the two trees with two 10- to 12-inch pin oak trees, the largest trees, it was said that may be successfully replanted. The trees destroyed were much larger. No contradictory testimony was offered by defendant.

In Oglesby v. Town of Winnfield, 27 So.2d 137 (La.App., 2d Cir.1946), the court awarded plaintiff $500 damages where, from a 35-year-old pin oak tree, 27 branches were removed to provide clearance for electric power lines.

In the earlier case of City of New Orleans v. Shreveport Oil Company, 170 La. 432, 128 So. 35 (1930), a large 54-year-old water oak, two-and-one-half feet in diameter, growing between the curb and sidewalk on St. Charles Avenue in New Orleans, was destroyed. There the court awarded damages in the sum of $750.

However, as was observed in Tissot v. Great Southern Telephone & Telegraph Co., 39 La.Ann. 996, 3 So. 261 (1887), and in Oglesby v. Town of Winnfield, supra, though actual, damages in a case of this character are not always susceptible of actual proof, nevertheless, the fact that damages have been sustained by the aggrieved owner is not open to question.

It must be borne in mind that wide discretion is allowed to the trial judge in the assessment of damages. We cannot say, in view of the record, that the judge abused his discretion in awarding plaintiff $2,000 to compensate for the loss of these two large trees. An award of this size is amply supported by the evidence in the record and the authorities cited above.

For the reasons assigned, our original decree is amended by increasing the award of damages to $2,000 and by assessing defendant-appellant with all costs, including the cost of this appeal, and, as thus amended, our original decree is reinstated and made the final judgment of this court.