Case of the Day – Monday, June 21, 2021


AdvPossSignIn an Ohio case we were working on recently, we had occasion to be considering a “wrongful cutting” statute. Many states have them, statutes that require people who trespass on land and remove trees to pay multiple damages – most commonly three times the value of the timber but in some states double damages. Usually, the statute requires that the person trespassing and removing trees have some culpability more than mere negligence. The notion is that people who recklessly or intentionally cut down someone else’s trees need a strong incentive to abandon their nefarious ways, and awarding a multiple of actual damages is intended to encourage them to walk on the paths of righteousness.

But like any good statute (look at the federal RICO statute in the event you need some proof of this) the opportunity for misuse of the wrongful cutting law is rife. In today’s case, we start with your garden-variety adverse possession case. The plaintiff really had encroached on his neighbor’s property over a period of close to 50 years, although he had not gone to court to get record title. When the record owner of the land cut down some of the trees on land his title said still was his, the adverse possessor not only sued to quiet title – that is, get a judicial acknowledgment that he now owned the disputed strip of real estate – but even wanted treble damages for the timber his neighbor had cut.

The Massachusetts Land Court wisely declined the plaintiff’s invitation. It ruled that if your title says the land is yours, even if someone might be able to take it away from if the case goes to court, you hardly can be blamed for cutting timber on it. The Massachusetts statute required that you have “good reason to believe that the land on which the trespass was committed” wasn’t yours, in order to be on the hook for treble damages.

The adverse possessor already was getting title to land he had never bought, a judicial act some would call unjust enrichment. Giving him treble damages because the guy who owned the property according to the title cut down some of what the records said were his trees would really be piling on.

Mendes v. Bachant, 15 LCR 308 (Mass. Land Ct., June 29, 2007). George Mendes bought land in 1969. At that time, a shed stood at the rear of the parcel, and in fact intruded on land owned by a man named Gleason. Neither Mendes nor the prior owner had permission to locate a shed on Gleason’s land, and apparently, no one was aware that the shed was in the wrong place.

Mendes installed a barbeque pit on the disputed land ... do you think the Bachants were ever invited to a pig roast?

Mendes installed a barbeque pit on the disputed land … but do you think the Bachants were ever invited to a hog roast?

Gleason sold the land in 1969 to the Bachants. In the 1970s, Mendes installed a garden and trellis on the disputed land. Ten years later, Mendes replaced the shed with a larger shed which further encroached, and built a stockade fence behind the shed which enclosed the area in dispute. He also added a barbeque pit. Again, he did this without permission and apparently even without knowing that he was intruding.

Some 46 years or more after the first intrusion, the Bachants figured out that they held title to the disputed land, and in 2005, they tore down the fence, tore up the garden, and cut down and removed trees in the disputed area. Mendes sued, claiming the land by adverse possession and asking damages for trespass to trees. He demanded treble damages under Massachusetts G.L. c. 242, §7 for the destroyed timber.

The Bachants said that Mendes had failed to establish what portion of their property he adversely possessed, and had not proven the elements of dominion and control or open and notorious possession sufficient to establish his claim of adverse possession. The trial issued a temporary restraining order enjoining the Bachants from undertaking any construction or related activities on the disputed land. After trial, the court made findings.

Held: The land belonged to Mendes by adverse possession, but the Bachants weren’t liable for cutting down the trees.

The Court ruled that Mendes’ possession had been actual, exclusive, and non-permissive, exercising dominion and control for a continuous period of at least 20 years. The Bachants argued that because the land was undeveloped woods, a stricter rule applied, and Mendes was required to have enclosed the area he possessed. The Court agreed that where a party claims adverse possession of woodlands, it must also demonstrate that the land at issue was either enclosed or reduced to cultivation and, in contrast, title by adverse possession cannot be shown to wild or woodland that has always been, and remains, open and unenclosed. But, the Court said, Mendes met the stricter standard imposed upon woodland parcels by enclosing a substantial portion of the disputed area with a stockade fence and the cultivation of a vegetable garden within the same enclosure, coupled with the aforementioned additional activities.

beware140430 As for the trespass to trees, the Court observed that under G.L. c. 242, §7, a person who without right to do so cuts down and removes another’s trees and timber is liable for treble damages. Mendes contended the Bachants unlawfully entered his land, and removed all of the trees and brush up to his shed. The Bachants argued that they were entitled to enter upon the land pursuant to their record title. The Court didn’t buy either argument, but it observed that the statute permitted treble damages only where the trespasser did not have “good reason to believe that the land on which the trespass was committed was his own.”

Here, the Court said, the Bachants’ record title indicated they owned the disputed area. Thus, even if damages were appropriate, treble damages wouldn’t apply. All they had done was to cut trees from land that remained theirs as a matter of law until the courts said otherwise.

– Tom Root

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