Case of the Day – Friday, December 3, 2021


Have you ever wondered why this blog is named “tree AND neighbor law?” Primarily, it’s because when I set it up, someone had already taken “Google” and “Amazon.” I had to settle for what Internet domains were left.

All right, not really. But you may have noticed by now that there are many tree cases that never would have been brought but for the fact that neighbors were involved, or maybe just N-I-N-Os, “neighbors in name only.”

Today’s case is one of those cases. Reading between the lines, the Fleeces and Kankeys appeared to be congenial next-door neighbors. They had agreed on their property boundary, marked as it was by a common fence. When the fence deteriorated, they agreed to share the cost of replacement.

But when the Kankeys bulldozed the old fence and put in a sparkling new edifice, everything went south. It seems that some scrubby trees along the old fence were destroyed in the process. Suddenly, the Fleeces became the aggrieved parties, and not only did not want to contribute to the fence project, but demanded $17,500 to replace trees that lacked any market value. They apparently were anxious to try out Arkansas’s double and treble damage statutes as well.

The trial court made short work of the Fleeces’ attempted fleece, but the court of appeals grudgingly admitted that yes, replacement value counted (even for trees that lacked any market value). The appeals judges seemed to suggest that it would be (or should be) pretty hard to prove the intent needed for application of the multiple damage statutes.

Nevertheless, the court seemed to say, no matter what Bill Kankey’s good intentions in moving the project along, some of those trees – we don’t know how many – appear to have been boundary trees. Thus, the Fleeces and the Kankeys owned those trees as tenants in common. Neither owner had the right to destroy the tree without the consent of the other.

Fleece v. Kankey, 77 Ark. App. 88, 72 S.W.3d 879 (Ct. App. Ark. 2002). Harlan and Nancy Fleece were Bill and Charlotte Kankey’s neighbors. For some time, they had agreed an old fence was the boundary line between them, and when the fence began falling apart, they agreed to share in the cost of replacing the fence. Bill and Char bulldozed the old fence that separated the properties, as well as some trees that stood alongside the fence.

That’s when the deal fell apart. Harlan and Nancy sued Bill and Char for trespass and for destruction of the trees. The trial court found that, except for two posts that needed to be moved south two feet, the new fence was located in the same position as the old fence. The court held that Harlan and Nancy suffered no loss over the destroyed trees because the trees had no market value.

Harlan and Nancy appealed, arguing that they should have been awarded damages for the replacement value of the destroyed trees. Bill and Char replied that because they had no market value and because the removal of the trees and installation of the new fence actually improved the area, Harlan and Nancy had nothing coming.

Held: The case was reversed and sent back to the trial court for consideration of Harlan and Nancy’s damages due to the trees’ loss.

Arkansas Code Annotated § 18-60-102(a) provides, in part, that “if any person shall cut down, injure, destroy, or carry away any tree placed or growing for use or shade… on the land of another person… the person so trespassing shall pay the party injured treble the value of the thing so damaged, broken, destroyed, or carried away, with costs.” The treble-damages remedy requires a showing of intentional wrongdoing, although intent may be inferred from the carelessness, recklessness, or negligence of the offending party. Less-than-intentional conduct may support double damages under Ark. Code Ann. § 20-22-304, but must be pled in order to give a defendant adequate notice of the remedy he would be confronting.

Harlan and Nancy argued that the statute did not require that a tree have a market value in order for a landowner to be entitled to replacement value damages. Larry Morris, a registered forester, gave expert testimony that 35 trees had been bulldozed on the east/west side and 25 more on the north/south side. He explained that the destroyed trees included Post Oak, Black Oak, and Black Jack Oak. He calculated that the replacement value of the trees was $ 17,531.00.

The trial court dismissed Morris’s testimony because it focused on replacement value, not market value. The trial court held that “in view of the rural nature of this area, and the location of the lane over which the Fleeces travel, it seems absurd to award damages on a replacement estimate, because the removal of the old fence and the installation of the new fence has actually improved the area.”

The appellate court found this ruling clearly erroneous, one that suggested that the trial judge failed to consider the number of trees cut down and their replacement value. The appellate court said that the Arkansas rule is that when ornamental or shade trees are injured, the use made of the land should be considered, and the owner compensated by the damages representing the cost of replacement of the trees.

Damages awarded for loss of a shade tree cannot include both replacement costs and consequential damages, but clearly replacement costs are a proper measure of damages.

“Because the trial court appears to have relied entirely on the question of market value,” the appeals court said, “we are unable to determine whether the court considered other factors besides the market value in assessing appellants’ damages, including replacement value and the number of trees lost. Therefore, we reverse and remand.”

The appeals court included a final observation, “that it appears uncontroverted that many of the trees were located in the boundary line. Other jurisdictions have held that owners of boundary line trees are considered tenants in common, and neither tenant possesses the right to destroy the commonly held property without consent of the other.”

– Tom Root


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