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Click here for the full text of this decision FACTS:The Schievinks owned approximately 300 acres of land, but their land was completely surrounded by Wendylou Ranch Inc., a 4,500-acre exotic game ranch. Wendylou hired Rudy’s Fencing to build a game fence around parts of Wendylou. The fence work was done in stages. Mike Odell, the manager of Wendylou, gave verbal instructions to Rudy’s Fencing about where the fence should be. Odell’s deposition and affidavit indicated that Rudy’s Fencing was an independent contractor, not an employee. Rudy’s Fencing used its own equipment and, other than being told where to start, stop or put a gate, was not instructed as to the details of building the fence or clearing the fence line. Odell walked the boundary line with Rudy’s Fencing’s on-site supervisor Efrain Rulio Villareal. They walked the fence line in phases, only going as far as the fence builders were expected to go in a given period of time. Odell checked the progress occasionally but did not supervise the day-to-day activities. As each phase of the fence was completed, they walked the fence line for the next phase. Odell instructed Rudy’s Fencing to build the new fence two feet to three feet inside the old fence running along the boundary line to keep from encroaching upon the Schievinks’ property. Odell had not yet walked the fence line with Villareal at the point where the trespass occurred on July 20, 2004; he had expected the previous phase through a creek to take longer than it did. Rudy’s Fencing used a bulldozer to clear the fence line. The bulldozer was operated by Ignacio Bustamante. At the instruction of Villareal, who was confused about his location, Bustamante cut the boundary fence and followed another fence row into the Schievinks’ property. The southern boundary line of the Schievinks’ property was zigzagged, and Bustamante made a right turn at a corner where he should have gone left. Bustamante had bulldozed a strip of land approximately 15 feet wide by 1,600 feet long, including some trees, before Jochum Schievink came and informed Villareal that they were on his property. The Schievinks sued Wendylou for trespass and for breaching a duty as an adjoining landowner after Rudy’s Fencing bulldozed the trees on the Schievinks’ land. Wendylou asserted that it was entitled to a traditional summary judgment, because the undisputed summary judgment evidence showed that Wendylou did not trespass on the Schievinks’ land or instruct Rudy’s Fencing to trespass and because Wendylou was not liable for the trespass of Rudy’s Fencing, an independent contractor. The trial court granted Wendylou’s motion for summary judgment. HOLDING:Affirmed. In their first issue, the Schievinks contended that there was a genuine issue of fact concerning Wendylou’s breach of a duty owed to them as adjoining landowners to instruct Rudy’s Fencing as to the correct property line. A person may be liable for trespass, the court noted, if he aids, assists, advises or causes another to enter the property. Under this theory of liability, a landowner may be liable even though the person entering the adjoining land is an independent contractor. Odell, the court stated, instructed Rudy’s Fencing to follow the old fence line and to stay two feet to three feet inside the old fence. Rudy’s Fencing did not follow Odell’s instructions; instead, Bustamante cut the old fence and entered the Schievinks’ property. Villareal admitted that he was confused and that he made the decision to turn right instead of left. The Schievinks contended that Rudy’s Fencing followed flags or markers onto the Schievinks’ property and that the flags had been placed there by Odell. But the court found that the summary judgment evidence did not support this contention. Thus, the court held that Wendylou established by summary judgment evidence that it did not commit the trespass; that it did not aid, assist, advise or cause Rudy’s Fencing to enter the Schievinks’ property; that it did not fail to ascertain the correct boundary line; that it did not fail to instruct Rudy’s Fencing as to the correct boundary; that Rudy’s Fencing was an independent contractor; and that Wendylou did not breach any duty that it owed to the Schievinks. The Schievinks, the court stated, failed to come forward with more than a scintilla of evidence to create a genuine issue of material fact that would preclude summary judgment. Wendylou, therefore, was entitled to judgment as a matter of law, and the trial court properly granted Wendylou’s motion for summary judgment. OPINION:McCloud, S.J.; Wright, C.J., Strange, J., and McCloud, S.J.

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