Todd Harbour & a. v. Henry Farrin, Jr. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0148, Todd Harbour & a. v. Henry Farrin,
Jr. & a., the court on December 20, 2019, issued the following
order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The defendants, Henry Farrin, Jr. and Dyann L. Farrin, appeal an order of
the Superior Court (Kissinger, J.), following a bench trial, denying their
counterclaim for trespass against the plaintiffs, Todd Harbour and Melissa
Harbour. The defendants contend that: (1) the evidence did not support the trial
court’s finding that Henry Farrin consented to the plaintiffs cutting down more
than “a couple” of the defendants’ trees; (2) any consent Henry Farrin gave was
ineffective because Dyann Farrin did not also give consent; (3) the plaintiffs
exceeded the defendants’ consent; and (4) even if the plaintiffs cut the
defendants’ trees by mistake, they remain responsible for wrongful cutting. We
assume, without deciding, that these issues are preserved.

When reviewing a trial court’s decision rendered after a hearing on the
merits, we will uphold the trial court’s factual findings and rulings unless they
lack evidentiary support or are legally erroneous. O’Malley v. Little, 170 N.H.
272, 275 (2017). We do not decide whether we would have ruled differently than
the trial court, but rather, whether a reasonable person could have reached the
same decision as the trial court based upon the same evidence. Id. Thus, we
defer to the trial court’s judgment on such issues as resolving conflicts in the
testimony, measuring the credibility of witnesses, and determining the weight to
be given evidence. Id. We review the trial court’s application of the law to the
facts de novo. Id.

In this case, the plaintiffs cut down approximately twenty 100-foot-tall
white pines growing on the sideline between their lot and the defendants’ lot. The
defendants agree that Henry Farrin gave the plaintiffs permission to use the
defendants’ field to “drop” trees, but contend that this permission was limited to
“a couple” of trees. After the trees were cut, Henry Farrin complained to the
plaintiffs about the damage to the defendants’ field. The defendants contend, but
the plaintiffs dispute, that Henry Farrin also complained about the number of
trees cut. Months after the trees were removed, the parties ascertained that the
trees had been standing on land deeded to the defendants. A surveyor testified
that the trees stood between approximately one and three feet from the plaintiffs’
lot. However, the plaintiffs claimed ownership of approximately 1,632 square feet
of the defendants’ land on which the trees had stood, by right of adverse
possession. Following a view and a three-day hearing, the trial court denied the
plaintiffs’ adverse possession claim, and they have not appealed that decision.

The trial court also denied the defendants’ counterclaim for trespass. The
defendants contend that the trial court’s finding that their consent to the use of
their field was not limited to a certain number of trees is unsupported by the
evidence. We review sufficiency of the evidence claims as a matter of law, viewing
the evidence in the light most favorable to the prevailing party, here, the
plaintiffs, and uphold the findings and rulings of the trial court unless they are
lacking in evidentiary support or tainted by error of law. Smith v. Pesa, 168 N.H.
541, 544 (2016).

The trial court was not required to accept Henry Farrin’s testimony that his
consent was limited to “a couple” of trees, see O’Malley, 170 N.H. at 275; the trial
court’s finding that his consent was not so limited is supported by Todd
Harbour’s testimony that he “explained [to Henry Farrin] that we were taking
down our trees and that I would really appreciate . . . using the field to take the
trees down because if . . . the trees [were felled] in the other direction, . . . [a]ny
one of them would have crushed the [plaintiffs’] house.” To the extent that the
defendants contend that this testimony was not credible, we defer to the trial
court’s contrary determination. See id.

Moreover, e-mails between Todd Harbour and Henry Farrin, both before
and after the trees were cut, support the trial court’s finding that Henry Farrin’s
consent was not limited to “a couple” of trees. For example, after receiving Henry
Farrin’s verbal consent, Todd Harbour e-mailed Henry Farrin: “We really
appreciate your help with the pine trees. Once they are down, you will see more
of our place, but we want to make sure that it is a good view.” The trial court
could have reasonably inferred that removing only two trees would not have
substantially altered the defendants’ view.

Another e-mail from Todd Harbour to Henry Farrin referred to a
discussion, prior to the tree removal, regarding privacy fencing. The trial court
was not required to accept Henry Farrin’s explanation that the privacy fencing
was only for the plaintiffs’ backyard and could have reasonably inferred that the
parties would not have discussed privacy fencing unless they anticipated,
consistent with Todd Habour’s representation, the removal of all the trees.

Viewing the evidence in the light most favorable to the plaintiffs, we
conclude that the trial court’s finding that Henry Farrin’s consent to the use of
his field was not limited to a certain number of trees is supported by the evidence
and not legally erroneous. See Pesa, 168 N.H. at 544.

We next address the defendants’ contention that Henry Farrin’s consent
was ineffective because his co-tenant, Dyann Farrin, did not also consent. We

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have generally held that one co-owner’s consent cannot bind another co-owner.
Hamblett v. Nashua, 102 N.H. 318, 320 (1959) (addressing consent to abutter’s
request for variance). However, “[i]f words or conduct are reasonably understood
by another to be intended as consent, they constitute apparent consent and are
as effective as consent in fact.” Restatement (Second) of Torts § 892(2), at 362
(1979). Consent “may be manifested by action or inaction and need not be
communicated to the actor.” Restatement (Second) of Torts § 892(1), at 362; cf.
93 Clearing House, Inc. v. Khoury, 120 N.H. 346, 349 (1980) (stating agency
relationship may be implied from parties’ conduct or other evidence of intent).

In this case, the trial court specifically found that Dyann Farrin “conveyed
that she acquiesced to Henry’s actions” in conveying consent to the plaintiffs.
The evidence supports this finding. First, Dyann Farrin testified that Henry
Farrin told her that he had consented to the plaintiffs cutting the trees. Although
she further testified that Henry Farrin’s consent was limited to “dropping” “a
couple” of trees into the defendants’ field, the trial court was not required to
accept that latter part of her testimony. See O’Malley, 170 N.H. at 275. Second,
Dyann Farrin subsequently met with the plaintiffs before the trees were cut, but
did not deny the plaintiffs her permission or limit the scope of Henry Farrin’s
consent.

The defendants contend that she “had no opportunity . . . to manifest a
consent to the cutting . . . because the subject of tree cutting and use of the field
was not addressed” at this meeting. However, Henry Farrin testified that all four
parties met together at a kitchen table and that he and Todd Harbour discussed
the location of the lot line and the trees. In context, Dyann Farrin’s failure to
restrict her apparent consent could be reasonably understood as apparent
consent identical to that of Henry Farrin. It was incumbent upon her to negate
her apparent consent, if she so desired. See Restatement (Second) of Torts §
892A comment on subsection (5), at 369 (stating that consent terminates when
actor has reason to know that other no longer consents). See Restatement
(Second) of Torts § 892, at 362.

On this record, viewing the evidence in the light most favorable to the
plaintiffs, we conclude that the trial court’s finding that the defendants consented
to the plaintiffs cutting the trees and “dropping” them into the defendants’ field is
supported by the evidence and not legally erroneous. See Pesa, 168 N.H. at 544.
Accordingly, the plaintiffs’ use of the defendants’ field did not exceed the
defendants’ consent.

Finally, we address whether the plaintiffs wrongfully cut the defendants’
trees. The defendants contend that Todd Harbour never requested permission to
cut the defendants’ trees because, at the time, he believed that the trees were on
his land. The defendants argue that the plaintiffs knew or should have known,
before they cut the trees, that the trees belonged to the defendants because of the
lot lines shown on the municipal assessor’s maps. However, Henry Farrin

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represented to the trial court that “[t]he parties were aware that an assessor’s
map may not be an accurate rendition of a boundary line.”

The trial court was entitled to rely upon Todd Harbour’s testimony that,
when he cut the trees, he believed he owned them and upon Henry Farrin’s
testimony that, when he gave his consent, he did not know on whose property
the trees stood and was not concerned about which trees the plaintiffs intended
to cut. The trial court could have reasonably inferred from this testimony that
the defendants consented to the removal of the trees regardless of who owned
them. See Restatement (Second) of Torts § 892A(1), at 364 (stating one who gives
consent cannot recover in tort for the conduct or the harm resulting from it).

This inference is further supported by the parties’ e-mails after the trees
were removed, in which Todd Harbour addressed Henry Farrin’s concerns about
the damage to his field, but did not mention any concern raised by Henry Farrin
that the plaintiffs had cut the defendants’ trees. The trial court found, and the
evidence supports, that “these emails tend to show Henry was upset only with
the damage to, and debris left on, his field by the logging operation.”

To the extent that the parties were mistaken about the ownership of the
trees, the trial court correctly stated that “consent ‘induced . . . by a substantial
mistake concerning the nature of the [trespassory] invasion’ is nonetheless valid
unless ‘the mistake is known to the [trespasser] or is induced by the
[trespasser’s] misrepresentation’” (quoting Restatement (Second) of Torts §
892B(2), at 370. In this case, the evidence does not indicate that, when the trees
were cut, the plaintiffs knew that they stood on the defendants’ land or made any
misrepresentation to the defendants.

On this record, we conclude that the trial court’s implicit finding that the
defendants consented to the plaintiffs cutting the defendants’ trees is supported
by the evidence and not legally erroneous. See Pesa, 168 N.H. at 544. Any
remaining issues raised by the defendants in their brief either are not sufficiently
developed, see State v. Blackmer, 149 N.H. 47, 49 (2003), or otherwise do not
warrant further discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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