Thursday, August 18, 2005

TIMBER TRESPASS

The assault

For the past several years you’ve enjoyed the privacy and comfort of your large pine trees on the edges of your property. They keep your yard cool in summer and screen the neighbors’ pool.

Then one day you return from a hard day at work to find your beloved trees massacred. Their branches hacked to within an inch of their life, the trees are skeletal remains of themselves.

You think you can see the neighbors peeking around the corner of their newly exposed house, grinning slyly.

What has happened?

All too often neighbors have vastly different opinions about the trees that separate their lots. To you, the pines were a sheltering green zone, providing a sense of tranquility and home to birds. To the neighbors, they were messy nuisances that shaded their garden and dropped unsightly debris on their lawn. They may even have considered them a view obstruction or fire hazard.

One day, the neighbors had enough. Someone had told them they could trim on their side of the property line, so they hired the Chop and Drop Tree Co. to come over and do just that.

Unfortunately, Chop and Drop got carried away and started hacking on your side of the line. Your beautiful trees are now a mess.

Worse yet, your neighbors never even consulted with you. You would have agreed to a little reasonable thinning for their garden’s sake.

But now you are angry. What should you do?

What could have been amicably resolved between good neighbors has turned into an ugly feud. The neighbors have committed what’s known as “timber trespass” or “trespass cutting of amenity trees.”

The law

Contrary to what it sounds like, “Timber Trespass” isn’t when a member of Earth First takes up residence in an endangered redwood tree in the middle of an old growth forest. It’s any time someone crosses onto the property or air space of another, and causes damages to their trees.

If your neighbor goes on to your property and removes vegetation there, it’s a timber trespass. Trees have value, monetary and non-monetary. These can include aesthetic, architectural, energy conservation and wildlife habitat.. They provide shade, privacy and a sense of emotional well being to the people who tend them and appreciate their beauty and the natural setting they offer. The trees can also provide critical slope stability and erosion control.

To lose your tree can be a devastating loss.

That’s why the laws in California and many other states provide stiff penalties for the unlawful removal or damage of another’s trees. Iin most cases you can even recover two or even three times the actual loss, and even, in certain circumstances, emotional distress damages.

The law provides that for the intentional injury to “timber, trees, or underwood upon the land of another, or removal thereof,” the damages to be awarded are three times the actual value of the loss. Where the wrongful cutting is unintentional or negligent, “the measure of damages shall be twice the sum as would compensate for the actual detriment…” (California Civil Code section 3345: Wrongful Injuries to Timber, Trees or Underwood.)

In fact, courts have found that because of people’s special relationship to their trees, this is one of the unusual situations when you may be able to recover for emotional distress for a purely property damage claim. In an early case on this subject, the California Supreme Court stated that once you establish that a trespass or nuisance has occurred, “an occupant of land may recover damages for annoyance and discomfort that would naturally ensue therefrom." (Herzog v. Grosso (1953) 41 Cal.2d 219, 225) A more recent case stated it this way: “Mental distress caused by the nuisance created and maintained by the defendant is an element of loss of enjoyment.” (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 287-288, quoting Sturges v. Charles L. Harney, Inc. 165 Cal.App.2d 306, 323.)

The remedy

If this happens to you, make sure you document the loss immediately, contact a consulting arborist who can evaluate the monetary damages, and call your insurance company. It helps if you have both “before” and “after” photos to support your claim. Immediately photograph the damage and write down an accurate timeline of events. The arborist will use a number of factors in evaluating your loss, including species, size, health, location of the tree on your property and its importance for privacy, shade, wind screen or other values particular to your property.

A good land use attorney experienced in tree law can help you determine the best course of action.

If your neighbors have been complaining about your trees, it’s always best to try to work it out informally or through mediation before things escalate to a full bore timber war. It pays to keep track of your trees health, their effect on neighboring properties, how fast they are growing and other factors that can come between even the best of neighbors. In fact, courts have found that homeowners have a “duty to inspect” their trees and property. Ignorance is not an excuse.

In the case of mature trees on your land, an ounce of prevention can be worth a ton of cure.

Dotty E. LeMieux

Printed in the Marin Scope papers, August 15, 2005

1 comment:

Anonymous said...

See also (Washington State Supreme Court)

http://www.tvw.org/modules/opinions/645485_o.htm

... We hold emotional distress damages, if proved, may be recovered in an action under RCW 64.12.030, and no election of remedies is necessary. We affirm the judgment on the verdict of the jury.