No. 2-812 / 01-2071Court of Appeals of Iowa.
Filed August 13, 2003
Appeal from the Iowa District Court forJohnson County, J. Hobart Darbyshire, Judge.
Plaintiff appeals from a jury verdict awarding no damages for the removal by the county of trees in the road right-of-way. AFFIRMED.
Wallace Taylor, Cedar Rapids, for appellant.
J. Patrick White, County Attorney and Andrew B. Chappell, Assistant County Attorney, Iowa City, for appellee.
Considered by Habhab, Harris and Snell, Senior Judges.
*Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
PER CURIAM.
This appeal questions the legality of the removal of trees by order of the Johnson County engineer in order to improve the road right-of-away. The plaintiff is a property owner adjacent to the road called Vincent Avenue. The engineer claimed that trees on plaintiff’s side of the road interfered with the maintenance of the road. They formed a canopy over the road which hit large vehicles and kept the dirt road from drying out.
All of the trees that were removed from plaintiff’s side of the road were within the county’s right of way. The jury was instructed that if trees were removed that were outside the county’s right-of-way, a verdict for plaintiff should be found. The jury found for the defendant county, establishing on this point that no removed trees were from outside the right-of-way.
Plaintiff argues that defendant had no legal right to remove the trees even in its right-of-way. Having examined the legal issues raised we now affirm the judgment for defendant.
Plaintiff in the appeal questions the jury instructions. We review this for correction of errors at law. Grefe Sidney v. Watters, 525 N.W.2d 821, 824 (Iowa 1994).
Plaintiff as abutting landowner owns the land to the centerline of the road subject to the easement rights of defendant. SeeArthur D. Peterso , Arboreal Law in Iowa, 44 Iowa L. Rev. 680, 685-86 (1959).
Instruction eight set out the law pertinent to these facts. It said:
County employees in charge of maintenance work on a county road cannot without express permission of the owner or occupant enter property belonging to another that adjoins the right of way and remove or injure trees located on that property, but may lawfully remove trees in the right of way or branches of trees that overhang the right of way.
The court cited Iowa Code section 314.7 (1999) as the law supporting its instruction. Plaintiff believes that this section did not supplant the common law as expressed more fully in Bills v. Belknap, 36 Iowa 583, 585
(1873). Plaintiff also cites Fritz v. Parkison, 397 N.W.2d 714, 716 (Iowa 1986), stating that a state goal is to encourage the growth and cultivation of trees and discourage their wanton destruction.
We have examined the law as stated in Billsand the statute, and find there is no inconsistency between them. The facts submitted to the jury from which the verdict for defendant inheres, established that tree branches hit the equipment used to maintain the road, breaking mirrors, antennas, lights and scraping paint. The school bus could not go down the road because tree branches scraped the yellow light off the top. A fire truck was unable to use the road, necessitating an extra four mile trip and the loss of a building. The trees included dead elms, mulberries, cedars and others of varying sizes. Trimming branches offered an inadequate solution since they grew back and had to be trimmed frequently. Removal was the only long-term and necessary action.
The court in Billsmore completely explained the law than does the statute. See Bills, 36 Iowa at 585-86. However, given the factual record made, the jury was adequately instructed on the law. There was no likelihood that the jury was misled or uninformed.
The defendant argues the court should have directed a verdict in its favor. The issue is moot.
AFFIRMED.