Case of the Day – Monday, November 3, 2025

Posted on November 3, 2025 by TLRoot tagged.

HURTS SO BAD

In case you missed it the past two days, this is a trackhoe removing a tree.

Today is our last day down on Dick Lavy’s Darke County farm. As you recall, we helped Dick’s faithful employee Sylvester trim the trees along a fencerow that separated one of the Lavy from land belonging to his neighbor, Jim Brewer.

We were fairly impressed to watch Sylvester run a trackhoe down the Lavy side of the fencerow, smacking down branches with the machine’s bucket. It was not pretty, but it got the job done effectively and cheaply.

Jim Brewer, however, wasn’t very happy with the result and sued Dick Lavy Farms. Farmer Lavy argued the Massachusetts Rule let him trim overhanging trees any way he liked, that Sylvester wasn’t negligent or reckless, and that the damage – if there even was damage – didn’t amount to much. The jury thought it was arboricide and socked Farmer Lavy for $148,350.

Last Thursday, we watched the Court of Appeals for Darke County, Ohio, fillet Dick Lavy’s argument that the Massachusetts Rule was a license to butcher. The Court affirmed a landowner’s right to trim encroaching trees and roots to the property line but held that such trimming had to be done in a reasonable manner so as not to injure the adjoining owner’s trees.

On Friday, we saw the Court compare the various means of trimming a fencerow, comparing for ease of use, custom in the area, and cost. It concluded that the trial court was right to find DLF negligent in trimming part of the fencerow and reckless in continuing after a sheriff’s deputy advised Dick Lavy to get legal advice before continuing (advice the farmer ignored).

Today, the Court delves into the $148,350 damage award. Clearly, the Court is troubled that Jim only paid $170,000 for the whole 70 acres, and provided no evidence that the value of the land fell a farthing because of Sylvester’s trimming activities. The Court felt hard-pressed to see Jim get almost $150,000 when no trees other than some saplings were destroyed.

Jim didn’t help his cause by admitting (as he had to) that he only visited the land about eight times a year to hunt and picnic, and the trimming didn’t interfere with those activities. He argued that he planned to build a house there in another 14 years or so, but the Court couldn’t see that the damaged fencerow trees had any impact on those plans.

Usually, the measure of damages for a trespass where trees are cut is the difference in the land’s value after the cutting versus before the cutting. There are times when this measure does not capture the real loss: a family loses a cherished ornamental tree, for example, or the landowner nurtures trees for their ecological value.

That’s what Jim Brewer claimed, too…

In this case, however, it’s hard to see how Jim was hurt at all, not to mention hurt as badly as he claimed to be. Indeed, that’s how the Court of Appeals seems to read it, too. Come with us now on a detailed and thoughtful journey through all of the matters a court (and aggrieved party) should consider in setting the amount of loss. Although the Court sends the damage award back for the trial judge to deal with, it’s quite clear that the appellate panel is disinclined to turn the case into a winning lottery ticket for Jim Brewer.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016)

(These facts are repeated from the previous two days: If you don’t need the refresher, skip to the holding)

In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.

The former owner had allowed his neighbor Dick Lavy Farms to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees were ornamental or unique.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line and that such clearing was important for crop production, yield and safety of farm equipment. Using a track hoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the trackhoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch Sylvester stated that he never consciously reached over with the bucket to try and break a branch at the tree trunk that was on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County sheriff’s deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

Or, if you’re Sylvester, don’t use a chainsaw at all…

The deputy told Brewer that Lavy said that he was allowed to take tree branches from his side and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.

Although the deputy suggested that Lavy obtain legal advice before continuing, Lavy continued clearing the fencerow. Knowing that Brewer was upset, Lavy told his employee not to clean up branches that fell on Brewer’s side.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging a violation of O.R.C. § 901.51, reckless trespass, and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

DLF argued that it had a common law privilege to cut off, destroy, mutilate or otherwise eliminate branches from Brewer’s trees that were overhanging DLF land. The Farm also argued that if it was liable, the proper measure of damages should be the diminution of Brewer’s property value; in the alternative, the court’s holding on the issue of damages was against the manifest weight of the evidence. Finally, DLF claimed it had not negligently or recklessly trespassed on Brewer’s property.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515.

Dick Lavy Farms appealed.

(If you remember the facts from the previous two days, start here)

Held: It was Halloween for Jim, and he got a trick, not a treat. The $148,350 in damages was set aside because Jim’s property really didn’t diminish in value.

The Court observed that in a previous case, it had held that where the trespasser could not reasonably foresee that trees had a special purpose or value to the landowner, and where the trespasser “cuts trees that are part of a woodland mix and not unique, the ordinary measure of the harm is the difference in the fair market value before and after the cutting.” The trial court, however, had relied on a different standard:

It was all trick and no treat for Jim…

In an action for compensatory damages for cutting, destroying and damaging trees and other growth, and for related damage to the land, when the owner intends to use the property for a residence or for recreation or for both, according to his personal tastes and wishes, the owner is not limited to the diminution in value (difference in value of the whole property before and after the damage) or to the stumpage or other commercial value of the timber. He may recover as damages the costs of reasonable restoration of his property to its preexisting condition or to a condition as close as reasonably feasible, without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

At trial, Jim’s expert arborist testified that the cost of removing the trees Sylveste3r had damaged would cost $55,000, and the cost of replacing them would be $138,000, plus tax. Jim did not offer any evidence that his 70-acre property’s fair market value had fallen by so much as a penny. DLF’s arboriculture expert testified the life expectancy and service life functionality of the fencerow were not affected by the manner in which the trees were pruned. He valued the fencerow as a woodland edge fence and argued that real estate or fair market value would be the proper way to assess damages. Another DLF expert also testified that the fair market value of Brewer’s property was the same before and after the incident.

The trial court found that removal of the damaged trees was unnecessary, and thus discounted that $55,000 cost. In addition, the court concluded that the $138,000 estimate for tree replacement was excessive, and reduced that amount by 50%. The court also deducted 14% for ash tree disease, which had already caused the death of a number of trees on both sides of the lane. The trial court thus arrived at $59,340 in compensatory damages.

Next, the trial judge decided that DLF had negligently trimmed one-fourth of the property (or about 1,000 feet), and recklessly trimmed the remaining three-fourths of the fencerow. The trial court awarded $14,835 for negligence, and $44,505 for DLF’s recklessness. Pursuant to O.R.C. § 901.51, the court trebled the recklessness amount to $133,515. This brought the total damages to $148,350.

The Court of Appeals noted Ohio’s general rule that “recoverable restoration costs are limited to the difference between the pre-injury and post-injury fair market value of the real property,” The courts have carved out an exception, however, that permits restoration costs to be recovered in excess of the decrease in fair market value when real estate is held for noncommercial use, when the owner has personal reasons for seeking restoration, and when the decrease in fair market value does not adequately compensate the owner for the harm done. This restoration cost exception has been applied, for example, where the damaged trees have been maintained for a specific, identifiable purpose (like recreation, or a sight, sound, or light barrier), when damaged trees are essential to the planned use of the property, or when the damaged trees had a value that can be calculated separate from ornamental trees have been destroyed, or where the trees form part of an ecological system of personal value to the owner.

Even where the restoration exception is applied, the Court said, “the proposed cost [cannot be] grossly disproportionate to the entire value of the injured property.”

The Court said that the damage to Jim Brewer’s trees was “temporary” (meaning, apparently, that the damaged limbs would grow back), and that the Ohio rule is that “damages for temporary injury to property cannot exceed the difference between market value immediately before and after the injury, is limited. In an action based on temporary injury to noncommercial real estate, a plaintiff need not prove diminution in the market value of the property in order to recover the reasonable costs of restoration, but either party may offer evidence of diminution of the market value of the property as a factor bearing on the reasonableness of the cost of restoration.”

The trial court seemed certain that Dick Laye was a deep pocket, and that may have driven its damage award.

The trial court seemed certain that Dick Lavy was a deep pocket, and that may have driven its damage award.

“Viewing the trial court’s award of damages from the perspective of reasonableness,” the Court of Appeals said, “we must conclude that the award for restoration was objectively unreasonable.” First, the application of O.R.C. § 901.51 “almost exclusively involves situations where trees have been completely cut down, making it considerably easier to determine the full extent of the damage to the plaintiffs’ property.” Here, Jim Brewer admitted that other than a few small saplings, he was not claiming that any large trees had been removed from his land. Instead, he contended only “that 326 trees had been damaged in some manner and would ultimately die, even though pictures of the area taken in June 2014 depict a substantial canopy of foliage… Brewer also testified that a number of trees had died, but he did not give any specific number.”

The Court found that Jim Brewer’s trees were not ornamental and were not located at his residence. Instead, they were native trees that were just part of a fencerow. Jim testified he used the property for hunting only about six times a year, and for family get-togethers maybe twice a year. He also admitted the removal of branches had not had any effect on these activities or his ability to rent tillable land to farmers. Jim intended to put a house on the property after his 4-year-old child graduates from high school, but he didn’t claim that DLF’s tree trimming affected his plans to do so.

The Court found it noteworthy that Jim Brewer paid $180,000 for all 70 acres, yet claimed the restoration cost (including removal and replanting of trees) for a very small part of that property was more than $200,000.

Jim did not present any proof that the fair market value of the land had fallen because of the tree trimming. The Court agreed that he was not required to present such evidence, bur said “it would have been helpful, particularly since two defense witnesses indicated that removing vegetation from the fence row did not impact the fair market value of the land.” Additionally, the Court found that much of the trial judge’s calculations “were based on speculation or were incorrect. For example, the court concluded that one-fourth of the fence row was trimmed negligently, but the plaintiff’s own evidence showed that more like 1,800 feet had been trimmed when Jim Brewer first complained. “The trial court could have chosen to disregard [the DLF employee’s] testimony,” the Court said, “but there is no logical reason to disregard the plaintiffs’ own admission about how far the fence row had been cleared.”

The Court of Appeals was not inclined to see Jim Brewer get a winning lottery ticket…

The trial court also gave no particular reason for its 50% discount on damages. What’s more, the Court of Appeals complained, “The trees on the fence row were a woodland mix of native trees, not ornamental trees. A number of the trees were undesirable, and there was no evidence of special value. In addition, the fence row had been unmaintained for 10 or 29 years. Even though these facts no longer require damages to be limited to diminution in value, they are still points that should be considered in deciding whether an award is reasonable.”

The Court of Appeals vacated the damages, and directed the trial court on remand to consider the reasonable restoration costs, taking into consideration the decrease in the fair market value of the land; the fact that the trees were a common woodland mix, not ornamental trees or trees that Jim had planted for a particular purpose; the fact that the fence row was not maintained for many years, and had undesirable and dead trees on each side of the row; the extent to which the trees have regenerated since the date of the 2013 trimming; the lack of impact on Jim’s intended home site; and the fact that Jim’s use of his property is “sporadic and is not impacted by any injury to the trees.”

The detailed list of evidence the trial court is to consider pretty much tells the trial judge how the Court of Appeals expects this to turn out.

– Tom Root

Case of the Day – Tuesday, August 5, 2025

Posted on August 5, 2025 by TLRoot tagged.

IF A TREE FALLS IN THE FOREST …

Island Realty’s coffers were as empty as a Venezuela grocery store’s shelves.

Taking a philosophical bend, a New York trial court asked “[i]f trees are cut in a forest that were going to be removed anyway does the owner have compensable damages?”

The Mottas couldn’t stand the overgrown and scrubby condition of unimproved land next door to their place, property owned by Island Realty. When another neighbor took matters into his own hands and cut back some of the offending saplings on the vacant land, the Mottas — bothered by falling leaves and insects, not to mention fears of West Nile virus — hired their own landscaper to cut back some other trees and vegetation on the Island Realty property.

The landscaper attacked the job with enthusiasm, and a neighbor — worried about the cutting because the Mottas weren’t home — called the cops. The police came and — this being New York City — everyone got a ticket because no permits to cut trees or park dumpsters had been obtained. One of the police officers reported the matter to Island Realty, too.

Island Realty had a case of the “shorts.” It wanted to develop the lot for housing, but its bank account was emptier than a beer cooler in Caracas. So it sued the Mottas for treble damages under New York law and brought in an expert who tried to sell the Court the amazing woof story that the one-third acre of cut saplings would cost $190,000 to replace.

The Mottas’ expert pointed out that the Island Realty development plan called for the removal of the trees that the Mottas had cut. In other words, far from damaging Island Realty, the Mottas had saved the developer a few bucks by doing what the developer would have had to have paid to have done.

The Court was a bit vexed. It didn’t much cotton to the Mottas’ form of self-help in clear-cutting the neighboring land, but it couldn’t really find any damage, either. It ruled that under New York law, the lesser of the diminution of value of the land or restoration costs was used to set damages. The Mottas had pretty well shown that the land wasn’t worth a dime less with the scrub cut. In fact, an aerial picture taken during the litigation (three years after the cutting) showed that the scrub was nearly all back.

The Court held that because Island Realty intended to cut the trees itself, damages were nominal, and it ordered the Mottas to pay $100, trebled to $300. In fact, the Court gave credence to the Mottas’ suggestion that the whole reason Island Realty sued to begin with was to raise a pot of money to start the development that it was too cash-starved to pull off by itself.

333, Island Realty Assoc., LLC v. Motta, 21 Misc.3d 554, 863 N.Y.S.2d 866 (Sup.Ct., Aug. 22, 2008). Island Realty was a land developer that owned a large tract of unimproved wooded land along the south shore of Staten Island. Joseph and Joan Motta owned a house next door. The Mottas had often complained that the unattended trees on the Island Realty land had created a nuisance because some of the trees hung over their property, and falling leaves had clogged their pool drains.

Motta’s neighbor – whose property also abutted the Island Realty land – exercised a little self-help by cutting a swath of Island Realty trees to create a 100-foot buffer zone between his backyard and the tree line. He did so without any permission or objection from the real estate firm. Seeking to create a similar buffer zone to safeguard his own property, Joseph Motta had a landscaper cut the trees that overhung his land and create a buffer zone away from the unattended trees for fear of insects and West Nile Virus, which was prevalent in Staten Island around that time.

While the Mottas were not home, the landscaper and his crew went to work but became overzealous, cutting down various trees without Island Realty’s consent and without any supervision from the Mottas. A nosy neighbor called the police to inform them that trees were being cut while the Mottas were not home. Because the complaint involved tree cutting, police officers from the New York City Department of Environmental Protection responded to the premises and observed a wood chipper feeding into an open container. Upon confronting the landscaper, the police officers learned that Joseph Motta authorized him to clear out some trees. The police officers originally estimated that 100 to 200 trees were cut in an area about half the size of a football field, but later admitted they were not certain how many trees were cut down. The police issued Motta five summonses for cutting down trees without permission and for placing a container on the street without a permit. All of those charges were dismissed by the criminal court, except for the container charge, for which the defendants paid a $250 fine.

Officer Friendly responded to a call from a nosy neighbor … and stopped by the Mottas for a chat.

Island Realty was not immediately aware of the felling of the trees but soon learned of it from the police. The company had planned to develop the wooded tract into a large development of houses, and in order to do so, it would have had to clear large sections of trees to comply with an approved plan. Ironically the Mottas argued that they rendered a benefit to Island Realty in removing trees at no expense to the company that ultimately would have to have been removed in order to complete the building project.

Nevertheless, Island Realty sued Motta under New York Real Property Actions and Proceedings Law § 861, which authorizes treble damages for the wrongful cutting of trees.

Held: Motta was liable for damages, but the damages awarded were nominal, $100 trebled to $300. The Island Realty expert estimated that 483 saplings would have to be planted to replace what was cut, at a price of $190,000. The trial court rejected the estimate as “incredible” and “preposterous.” Motta’s expert, on the other hand, testified that Island Realty was under no legal requirement to replace the trees, which it was going to cut down itself anyway. The Court accepted this opinion.

The Court followed the New York law principle that the measure of damages for permanent injury to real property is the lesser of the decline in market value or the cost of restoration. A plaintiff may demonstrate the costs of restoration, but then it becomes the defendant’s burden to prove that a lesser amount than that claimed by the plaintiff will compensate for the loss.

Here, the Court said, Island Realty only presented speculative testimony of the value of the restoration and disregarded balancing that testimony with the other evidence in this case, namely, that there was no decrease in the value of the land, especially when it was to be cleared for development anyway.

The Court warned that it did not condone the Mottas’ actions in cutting down Island Realty’s trees without permission. However, applying the rule of taking the lesser of the values between restoration —which was most speculative — and no diminution of the value of the land, the Court held it was clear that there was no diminution in the value of the land.

It was noteworthy, the Court said, that Mottas tried to buy the land from Island Realty after the cutting, and Island Realty wouldn’t adjust the price downward because the trees were gone. This suggested, the Court said, that even Island Realty didn’t think the land was worth less with the trees gone. Rather, it suggested that Island Realty’s lawsuit was only about getting startup capital for a building project from the Mottas instead of being about the value of the lost trees that would never be replanted.

– Tom Root

Case of the Day – Tuesday, July 1, 2025

Posted on July 1, 2025 by TLRoot tagged.

I CHANGED MY MIND… I GUESS

Doug Van Dyke had big plans for getting folks back to nature. He wanted to build a nature trail along a ravine that split his property and that of his waffling neighbor, Eunice North. People could enjoy the birds, the babbling brook, the scent of pine… that kind of thing.

If you ever wonder whether it’s a good idea to get agreements in writing, Doug’s $70,000 mistake will settle that question for you. Because Doug’s nature path would meander a bit onto Eunice’s side of the ravine, he told her about his plans for the trail. Eunice, who admitted that she really had no idea what Doug was talking about, said she just “shrugged my shoulders” and replied that “I guess it would be okay.”

To Doug, that was like the green flag at Indy. But little did he know that Eunice promptly began to fret about her confused acquiescence. She had trouble sleeping for her worry, and finally asked a friend about the plan. Her friend told Eunice the trail idea was a mistake. Armed with this advice, Eunice said, she reneged. She claimed she told Doug that she didn’t want him around.

“No probalo,” Doug – who had no intention at all of honoring Eunice’s change-of-heart – allegedly responded. Regardless of his actual intentions, Doug promised Eunice that he “would go to a different plan.”

That different plan seems to have involved having his contractor run the bulldozers at full throttle instead of half throttle. By the time the diesel fumes cleared, 20 of Eunice’s trees had been ground under Caterpillar treads and the trail encroached on her land.

Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded Eunice $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. It mattered little that Doug and the contractor both told a different story, the bulldozer operator testifying that Eunice had agreed to Doug’s plan. The jury believed Eunice.

Juries do that, often buying one side of the story and not the other, many times against common sense. We don’t know that that happened here, but it sure did not help Doug that he had not bothered to have the property boundaries surveyed before the ‘dozers started dozing.

Much of Doug’s case in the appeals court focused on damages. The jury agreed that Doug’s dozing had made Eunice’s side of the ravine unstable. Eunice’s expert testified that there were three ways to repair the damage, but none of the trees would restore the ravine to its pristine state. Doug argued that said because the land could not be repaired to the way it was before the bulldozers rolled through, then the diminution of the fair market value of the ravine was all that mattered.

Not so, the court said. The law does not require that the evidence show that the damage can be repaired so as to make the property as good as new. While it is a general rule of Iowa law that the cost to repair property is the fair and reasonable cost of repair not to exceed the value of the property immediately prior to the loss or damage, all Eunice was required to do was to establish a fair and reasonable cost to fix things up in order to arrest further deterioration and make the place as good as it can be made. In this case, Eunice showed that she had three means of stabilizing the steep bank after Doug’s earth-moving frolic and only one of those made any sense. She established the cost of that repair, and the value of the property before the damage.

Because the damages did not exceed her expert’s $129,000 repair price tag, it was clear the jury fulfilled its function in weighing the evidence.

Next time, Doug, get the landowner’s OK in writing. Call a surveyor. Stake the property boundaries. Surely that’s cheaper than $71,000.

North v. Van Dyke, Case No. 16-0165 908 N.W.2d 880 (Ct.App. Iowa, 2017). Douglas Van Dyke hired Heck’s Dozer, Inc., to build a trail along a ravine between his property and adjacent land owned by Eunice North. Twenty of North’s trees were removed during the trail’s construction, and a portion of the completed trail encroached upon North’s property. Doug said Eunice gave him permission. Eunice said she initially sort of equivocated, but later told Doug in no uncertain terms that he was to stay off her land.

Doug said he would do so, but he never had the land surveyed or staked, and his guess as to the location of the property line was by guess and by gosh. Doug’s contractor said he met with Eunice, and she approved the plans. Eunice said she had never met the contractor.

Eunice testified that after she told Doug to steer clear of her property, she heard a “‘loud commotion.’ Standing on her deck, she saw ‘two pieces of heavy equipment’ below and ‘trees… flying.’ She decided not to go into the ravine to check on the commotion because she was ‘afraid’ she would get ‘hit with something,’ and she had physical difficulties getting ‘down there.’ Suspicious of an encroachment on her land, she commissioned a survey. The surveyor confirmed her fears.”

Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded her damages of $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. Doug appealed.

Held: Eunice amply proved that Doug should pay treble damages under Iowa Code § 658.4 (2013). The statute requires the damage to trees be committed willfully or without reasonable excuse.” The term “willfully” has been characterized as an intentional and deliberate act without regard to the rights of others. Here, the Court of Appeals said, a reasonable juror could have believed that Eunice said “no” the jurors could have found Van Dyke “acted… without reasonable excuse.”

The jury additionally could have found that Doug’s failure to commission a survey before building the trail denied him any reasonable excuse for the trespass. The testimony established that Doug relied on an “old fence,” “old posts,” a “shed,” and a “roofline” to gauge the boundary.

The measure of damages is the cost of repair, as long as that cost does not exceed the value of the property prior to the damage. Doug complained that because Eunice’s expert testified only that the continued deterioration of the property could be stopped by stabilizing the steep bank, she was not able to show that the property could be repaired to its original state.

The Court of Appeals held that nothing requires that the repair estimate be enough to restore the land to its state before the damage. As long as Eunice provided evidence of the fair market value of the land before and after the damage, and a repair cost that is less than the value of the place before the damage – which she did – she met her obligation. Here, the damages awarded by the jury were higher than Doug’s estimate of $2,500.00 to fix it, but well below Eunice’s estimate of $127,000. Plus, the jury’s $50,000 award for trespass and lateral support was well below Eunice’s evidence that the land was worth $250,000.

The damage to the trees was assessed separately, with the value of the lost timber found to be $6,700, trebled to $20,100.

– Tom Root

Case of the Day – Wednesday, June 18, 2025

Posted on June 18, 2025 by TLRoot tagged.

YEAH, WELL, THEY WERE UGLY TREES…

When the contractor building an interstate highway interchange needed some space to park bulldozers, the state highway department asked Mr. Baillon for an easement. Being justly proud of his scrubby little trees and stunted bushes, he refused.

A couple of volunteer oak trees and some forsythia bushes are no match for a Caterpillar D10, so the contractor, Carl Bolander & Sons Co., went ahead and used Mr. Baillon’s land anyway. But it turns out a Caterpillar D10 is no match for a Minnesota trial court. Mr. Baillon sued and won.

But he won what? The trial court judged his damages by the diminution in value of his land. That is, how much less is the scrawny strip of real estate worth with the scrub trees gone? Not much, the Court said, giving Mr. Baillon just $500.00.

Mr. Baillon appealed. He argued he had wanted the trees and bushes as a sound barrier between himself and the road. Also, he should have gotten treble damages because of the intentional trespass.

The appeals court sort of agreed. It held that the measure of damages for the loss of trees — because they weren’t particularly desirable as shade trees or ornamental trees — was the reduction value of the real estate. Clearly, however, treble damages should be assessed under Minnesota Statute 561.04, Minnesota’s wrongful cutting statute, because the trespass was anything but casual.

This type of damage calculation, well known to contract law students who read Peevyhouse v. Garland Coal Co., is intended to avoid economic waste. The thinking is that the courts won’t order restoration of the property if the cost exceeds the reduction in value caused by the conduct. But at what price to freedom? Mr. Baillon didn’t want to sell his property; he wanted his trees, pathetic though they might be. The fact that the marketplace might not share his desires shouldn’t matter all that much: it was his land, and he should be able — within broad parameters — to keep it as he likes. Letting the bulldozer operator off the hook for the intentional trespass by not requiring that the land be restored to what it looked like before the trespass, even if that cost ten times the difference in real property value, seems to us to not accord Mr. Baillon’s rights the respect they deserved.

Baillon v. Carl Bolander & Sons Co., 306 Minn. 155, 235 N.W.2d 613 (Sup.Ct. Minn. 1975). The Highway Department tried to get Baillon to grant a temporary construction permit, giving the state an easement to go on his property adjacent to where Bolander was constructing I-35. Although Baillon wouldn’t grant the easement, Bollander’s workers trespassed on the land and destroyed a number of trees and shrubs. Baillon wanted the particular trees, in order to preserve a natural and wild appearance, to abate noise from the highway, and to preserve the beauty of the premises. The trial court found that Baillon was damaged by the Bolander company’s intentional acts in the sum of $500.00.

Arguing that the trial court should have applied as a measure of damages the replacement cost of the trees and not, as the trial court held, the diminution in value of the real estate, and that he was entitled to treble damages, Baillon appealed.

Held: The award of damages was upheld in part. The Supreme Court held that the proper measure of damages for the destruction of trees which, for the most part, were quite small, ill-formed and not particularly desirable as shade trees or ornamental trees, but which served to prevent erosion and acted as a sound barrier, was the diminution in value of the real estate rather than the replacement cost of trees (even though the trespass was willful).

However, treble damages should be awarded. The Court held that where the highway contractor — in the course of building the freeway — intentionally cut the trees, which did not protrude over the highway. The trespass was not necessary for the contractor’s purposes and was not “casual.” It was clearly the duty of the trial court to order treble damages unless Bolander’s activities came within one of the exceptions specified in the statute, and those activities clearly did not.

– Tom Root

Case of the Day – Monday, March 10, 2025

Posted on March 10, 2025 by TLRoot tagged.

WHAT IS THIS CASE DOING IN MY COURTROOM?

I recall once enjoying the spectacle of a young lawyer squirming during a pretrial hearing. I couldn’t help myself – he represented the opposing party and generally was insufferable. The judge picked through the sharp young attorney’s pleadings like he was sorting a pile of smelly socks, and then demanded to know “what is this case doing in my courtroom?”

Ah, schadenfreude! Such a guilty pleasure, chiefly because I have no doubt that I myself have on many occasions given other lawyers opportunities to enjoy schadenfreude at my expense.

Still, there are a lot of cases that ought to never see the inside of a courtroom. Today’s case is a good example. A man named Klemme burned some brush one day. He carefully tended the burn pile, kept water and a phone handy lest the fire gets out of control, and checked for burning embers before he went home that night. He was on the scene the next day, too, and saw no smoldering debris. The next day, however, the wind came up, and somehow, fire burned about 400 young seedlings planted in the neighboring unimproved property, owned by the widow Zech.

The seedlings were fewer than one percent of the 62,000 seedlings planted by the Zechs pursuant to a deal they had made with a federal conservation program. They had bought seedlings for about 30¢ apiece and planted them over a period of years. Then Mr. Zech died, and after that, Mrs. Zech never visited the property. She admitted she couldn’t say for sure that it had been Klemme’s burn pile that had started the fire. She admitted that a lot of other seedlings had died of natural causes and that she hadn’t replaced the seedlings allegedly killed by the fire or the ones that had simply died. Finally, she was unable to show that the fair market value of the real estate had fallen because of the damage to about 0.66% of the seedlings on the premises.

This case was not (to use a Latin phrase), a “slam dunker” for Mrs. Zech. If she felt she had been damaged, why didn’t she spend $120.00 for 400 new seedlings? If she permitted many of the 62,000 seedlings to die without replacement, how seriously had her enjoyment of the property – which she didn’t visit because of the amount of snowfall and because it apparently evoked memories of her late husband – been compromised?

Mr. Klemme’s lawyer filed a motion for summary judgment, asking the Court to grant judgment for the defendant without a trial. Summary judgment is a useful device for economically ridding the court of a dog of a case where there is no genuine issue of fact and where one side is entitled to judgment as a matter of law. The trial court obliged him, holding that the proper measure of damages was the decrease in the value of the property and that Mrs. Zech had provided no evidence that the value of the premises had fallen.

Mrs. Zech appealed, arguing that the measure of damages should have been the replacement value of the seedlings. What, we’re talking $120.00 here? As little sense as that made, the trial court had found that the seedlings were “special purpose” trees because the Zechs were required to plant them as a condition of having the land enrolled in the CRP. Relying on that “special purpose” finding, the Court of Appeals held that the proper measure was indeed the decrease in fair market value, thus agreeing with the defendant.

A priceless Ming vase (note the clear label)

This is a peculiarity of the law of negligence. Not only must there be a departure from the standard of care (someone has to be a klutz), but there must be harm flowing from the klutziness. If I drop your priceless Ming vase, but it bounces without breaking, you have no claim against me for negligence. If it breaks, however… that’s another story.

Was Mr. Klemme negligent? Did his burn pile spontaneously combust? We’ll never know because – whatever caused the fire – Mrs. Zech didn’t suffer any loss.

Zech v. Klemme, 803 N.W.2d 128 (Iowa App. 2011). One spring day, strong winds rekindled an ember in a burn pile located on Klemme’s property and started a grass fire that damaged trees on Zech’s property. Several days before, Klemme had burned brush and tree limbs in a burn pile located about 300 feet from the Zech property.

Klemme kept a water hose nearby and used the hose to wet down the adjacent area to prevent the fire from spreading. He also had a cellular telephone available to contact the local fire department if necessary. Klemme said he stopped burning at about 11 a.m. on April 2, and when he left his property at the end of the day, the burn pile had subsided to ashes. He worked on his property on April 3, and observed the pile throughout the day, noting no sign of any smoldering embers. Klemme also said he had no knowledge there would be any strong or sudden gusts of wind on April 4th.

Zech had enrolled the land where the fire occurred in the federal Conservation Reserve Program (CRP). The CRP required Zech to prevent erosion and provide wildlife habitat on the acreage and prohibited her from harvesting the trees or using the land for grazing livestock or raising crops. In exchange for her enrollment in CRP, Zech received an annual payment starting in 2002 and continuing through 2006. For conservation purposes, Zech and her late husband planted between 2,000 and 3,000 bare-root seedling trees each year. At the time of the fire, about 62,500 trees of various species had been planted on the CRP land.

The Zechs purchased the bare-root seedlings from the Iowa State Forest Nursery at about $0.30 each. Zech asserted that over 400 trees were damaged in the fire. In the ordinary course of nature, wildlife, insects, disease, and climatic conditions have also damaged or destroyed some of the trees on the CRP land. Zech has not removed, replaced, treated, repaired, pruned, trimmed, or cut down any of the trees that have been damaged or destroyed by the fire or by natural causes. She does not live on the CRP property, and the fire did not change her use of the land.

Zech contended in her complaint that the appearance of the burned branches on the trees she planted with her late husband has diminished her emotional enjoyment of the land. However, she did not argue that the fire has diminished the fair market value of the land. The fire did not cause Zech to incur a loss of income, nor did it cause her to incur any additional expense. She also did not argue that the damaged trees had any historic value.

Zech had no personal knowledge as to the cause or origin of the fire, and she did not contend that Klemme acted intentionally to harm the trees.

The trial court held that the trees on the land were “special purpose” trees and that the measure of damages was the decrease in the fair market value of Zech’s property. Because there was no proof of any loss of market value, there were no damages, and Klemme was granted summary judgment.

Zech appealed.

Held: The trial court properly determined what damages should be considered and correctly concluded that Zech had not been damaged.

The Court of Appeals observed that Laube v. Thomas had held 25 years before that “[i]t is impossible to state a simple, all-purpose measure of recovery for loss of trees.” Therefore, trial courts are granted a degree of discretion to select how to assess damages based on the facts of each case.

Zech argued that the appropriate calculation for damages should be the replacement cost of the seedling trees damaged or destroyed by the fire. Where trees can be replaced, a reasonable cost of replacement is the appropriate measurement of damages. Laube, the Court noted, involved the removal of about 100 walnut trees. The Laube court decided that the replacement cost measure “would obviously be inappropriate,” and the trial court in this case – which was dealing with about 400 trees – was likewise right that a replacement calculation would not work. Compounding the problem, Zech admitted she has not replaced or treated any of the damaged trees since the fire in 2005, nor has she expressed an intent to do so in the future.

Instead, the trial court concluded that the appropriate measure of damages for Zech’s loss should be the “special purpose” or “special use” calculation used in Laube. Where trees are put to a “special purpose” or have a “special use” – such as for windbreaks, shade, or ornamental use – damages are based upon the difference between the market value of the land before and after the destruction of the trees. The trial court viewed the conservation use of the trees as required by CRP to be a special purpose and thus concluded that any enjoyment Zech derived from the trees was incidental to the primary purpose of the CRP land. Besides, the Court of Appeals noted, while Zech herself had testified that the burned trees reduced her enjoyment of the land, she admitted she no longer regularly walks on the CRP land, citing the fact that “there has been too much snow for one thing.” She also admitted that she had ceased her custom of walking the land after her late husband passed away.

Zech also admitted that the fire did not cause her to change her use of the land. The trial court concluded that Zech’s deposition testimony did not establish a special use relating to her enjoyment of the land, nor a diminution in her enjoyment due to the fire. Using the “special purpose” market value calculation, the trial court concluded that the issue of damages entitled Klemme to summary judgment because the record did not demonstrate a loss in the market value of the land.

The Court of Appeals approved of these findings and left them undisturbed. Because Zech has not sustained any compensable economic loss as a result of the fire, the Court affirmed the trial court’s summary judgment ruling on damages.

– Tom Root

Case of the Day – Wednesday, February 26, 2025

Posted on February 26, 2025 by TLRoot tagged.

SHOWING UP

Denise Pevarnek’s agent chopped down her neighbors’ trees so she’d have a better view of the river. The neighbors complained (surprisingly enough), but Denise steadfastly ignored their remonstrances. The neighbors then sued, but Denise ignored the summons. She finally decided to start paying attention after a default was entered against her and the trial court intended to assess treble damages against her in the amount of $77,000.

Denise tried futilely to undo the consequences of her earlier indolence. Alas, a stitch in time saves nine. The Court ruled that she had had plenty of notice, but her decision to ignore the lawsuit was her problem, and undoing the default she so richly deserved would have turned her problem into her neighbors’ problem. And they were already smarting from the loss of their trees.

Of interest in the case — one argument Denise included in her scattershot but untimely defense — was her contention that the cost to replace the trees wasn’t the right measure of damages and that the trial court was wrong to rely on an affidavit of an arborist that didn’t explain in detail how he had arrived at the damage costs. The Court rejected this, saying that in the case of trespass, the measure of damages is either the reduction in the value of the property or — where the property can be repaired — the cost to fix things. The goal of the damage award, according to the Court, is to come as close as possible to compensating the owner for the damages, and trial courts have a lot of latitude to choose the method that seemed more reasonably calculated to do so.

The affidavit, the Court noted, laid out the expert’s education and experience, showed that he had inspected the damaged real estate, and proposed a reasonable strategy for repairing the harm. The arborist listed what had to be done and how much he’d charge to do it. It might not be perfect, but perfection is often the enemy of “good enough.” The affidavit, the Court ruled, was “good enough.”

The Court reminded the defendant that if she really had found the damage showing to be flawed and superficial, she could have come to the hearing and contested it. Snooze and lose, indeed.

Bologna v. Pevarnek, 2007 Mich. App. LEXIS 2689, 2007 WL 4207801 (Mich.App., Nov. 29, 2007). Denise Pevarnek hired Chester Damiani to clean up her property. He was zealous to a fault, deciding to improve the view of the Detroit River from her adjacent lot by cutting down trees belonging to her neighbors, the Bolognas. Believing that Denise and Chester’s conduct was baloney, the Bolognas sued for trespass, alleging that the destruction reduced the value of their property and exposed a view to Pevarnek’s unsightly neighboring property and asking for $28,000, trebled by Michigan’s wrongful cutting statute to $84,000.

Denise Pevarnek was served with the lawsuit, but she didn’t answer. As is customary when that happens, the Bolognas got a default judgment. Thereafter, they presented the affidavit of a certified arborist who opined that the cost of landscape restoration was $24,050. At this point, Denise took notice, and began taking action to defend, seeking to have the default undone. The trial court refused, and it entered judgment against her for $77,730. Pevarnek appealed.

Held: The judgment was upheld. Much of the case revolves around whether Denise should be relieved from her default judgment. The Court of Appeals ruled, in essence, that she knew about the suit and did nothing. In other words, “you snooze, you lose.” But of interest in the area of tree law was Denise’s claim that the trial court was wrong in using the cost of replacing the trees as a measure of the damages the Bolognas suffered. The Court of Appeals said where the wrong consists of a trespass to property resulting in an injury to the land that is permanent and irreparable, the general measure of damages is the diminution in value of the property. If the injury is reparable or temporary, however, the measure of damages is the cost of restoration of the property to its original condition (if less than the value of the property before the injury).

The rule is, however, flexible in its application. The ultimate goal is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss. Here, the Court said, given the fact that the Bolognas’ trees could be restored, it was proper for the trial court to use the cost-of-restoration method.

Pevarnek argued that the trial court erred by adopting without question the assertion of alleged damages without sufficient foundation. The plaintiff had filed an affidavit of arborist Steve McCollum, who swore that – in order to return the property to its pre-trespass condition, that is, with no view of Pevarnek’s property – 12 new trees had to be planted, some existing trees had to be replanted, the over-pruned trees had to be removed, and the lawn had to be repaired. He stated that the total cost of this work was $24,050. The trial court awarded plaintiffs damages of $77,730, equal to three times the sum of the cost of work proposed by McCollum and $1,860 for the cost of a privacy fence. Although McCollum’s affidavit didn’t explain how he calculated the damages, he stated his qualifications and education, he said he had personally inspected the Bologna property, assessed their needs, specifically listed the work to be done, and listed the cost for his business was to complete it. The Court said the expert affidavit put forth a reasonable basis for the damage computation, and that was enough.

– Tom Root

Case of the Day – Thursday, January 23, 2025

Posted on January 23, 2025 by TLRoot tagged.

THAT’S PERSONAL

Reader Paul D. sent a comment yesterday:

Figuring damages for tree loss… I don’t understand why you would use diminution of property value… Unless you were going to soon sell the property or you had a business on the property or your property generated some kind of income. But if the trees were for a personal reason, such as shade or privacy, wouldn’t the better way of proving damages be the current value of trees removed or at least restoration costs?

I think placing a diminution price on a residential property can often be very subjective and inaccurate, especially compared to having a qualified arborist make a value assessment.

Paul asks a good question. Why would anyone prefer a diminution in property value over restoration costs or stumpage value?

Here’s a prime example of someone who might: A few years ago, a tree service company sent a crew to an address in Grove City, Ohio, to remove a maple on the front lawn. Instead of going to 1553 Main Street, the crew mistakenly went to 1533 Main Street. That house, coincidentally, also had a maple tree in its front lawn, a magnificent and healthy specimen that the homeowner loved very much.

You can guess what happened. While the homeowner was obliviously toiling in his office 10 miles away, the tree cutting crew made short work of the beautiful maple. When the owner arrived home that evening, his arboreal pride and joy was nothing but a stump and some sawdust.

There was no question about liability: the tree service company goofed. But how much to pay for the tree? Stumpage value makes no sense. The homeowner wasn’t raising the tree to sell the timber. Replacement cost for the tree might be a fairer measure. However, the largest tree that could be planted for the homeowner – with costs of a few thousand dollars – will not begin to replace the lost tree.

In our homeowner’s case, the measure of damages we finally settled on was a real estate appraisal that concluded that the value of the home had been lessened by about $17,000 by the removal of the mature tree.

Today’s case considers what might happen if the removal of the trees does not diminish the value of the property. A man named Chung bought a parcel of land for a home. When he had a tree-cutting service clear the land for construction, the cutters crossed the line onto Rora Park’s land and removed about 560 trees. The decision only implies this, but it appears that the “accident” might not have been accidental at all. Rather, Chung may have steered the cutters in the wrong direction in order to improve the view from his land.

Whatever the reason, the liability was certain. The problem arose because removing 560 trees didn’t really decrease the value of Rora Park’s land at all. Hard to believe, but then, Alaska is a pretty big place. So Ms. Park demanded restoration damages and payment of the cost of restoring the property by planting new trees. That would have been about $400,000. The trial court granted damages equal to the cost of replanting 50 trees, but the Alaskan Supreme Court reversed.

Chief Justice Oliver Wendell Holmes, Jr.

It seems that if the wronged property owner doesn’t have a “reason personal to the land-owner for restoring the trees,” an Alaskan court won’t use that measure of damages. In this case, Ms. Park waxed eloquent about how she had once had cancer, and “this natural beauty of my yard is [a] healing spot for me, and . . . after work I come by, see my property and see the natural beauty and the trees and all that[. W]hen I [saw] that all cut out it just [made] me very – [it] just [broke] my heart, and then very angry . . .” Unfortunately for her, she later tried to downplay how often she visited the property.

The trial court wouldn’t let her have it both ways and found that she hadn’t justified restoration damages. But, apparently troubled by Ms. Parks’ neighbor getting away with a fast one, the trial court awarded her restoration damages anyway. It may have seemed like justice, but it wasn’t the law.

The Alaskan Supreme Court said that restoration damages could be awarded only if Park had a “reason personal” for restoring her property. Because she failed to prove she had such a reason, she ended up being entitled to pretty much nothing.

There’s something not right about letting a slippery character like Chung pull a fast one, cut down 50 of the neighbor’s trees for a better view, and not have to pay damages for it. But that’s the system for you. It reminds one of a quotation attributed to Oliver Wendell Holmes, Jr: “This is a court of law, young man, not a court of justice.”

Chung v. Park, 339 P.3d (Sup.Ct. Alaska, 2014). Landowner Rora Park sued her neighbor Christopher Chung for trespass, alleging that he cleared about 50 trees from her property without permission. The trial court found that the tree cutting did not diminish the property value and that there was no reason personal to the landowner for restoring the trees. But the trial judge nevertheless awarded damages equal to the cost of restoring 50 trees on the property.

Ordinarily, a landowner damaged by a trespass may recover either the loss in property value or reasonable restoration costs. But restoration costs are inappropriate if they are disproportionate to the loss in property value unless there is a reason personal to the landowner for restoring the land. We thus conclude that we must vacate this award.

Chung hired a company to build the foundation of his new house. As part of that project, the contractor agreed to clear trees and other vegetation from the lot. Aerial photographs indicate that some trees were removed from Park’s property near the border of Chung’s lot between August 2008 and the end of September 2008, and more trees were removed between 2008 and 2009. The trees appear to have been removed more or less directly behind the house built on Chung’s property. Timber debris, presumably from the cleared trees, was also discovered buried on Park’s property. An expert witness hired by Park estimated that 562 trees were cleared from about a third of an acre of Park’s property. He calculated that it would cost over $400,000 to restore the property to its former condition. But Chung’s expert witness testified that the market value of Park’s property was likely not affected by the removal of trees.

The trial court found Chung liable for the trees removed from Park’s property. Although the court acknowledged that Park had not proved that the tree cutting reduced the value of her property and found that Park had no reason personal for replacing the trees, it nevertheless concluded that “it would be reasonable both aesthetically and legally to award damages that would permit replacement of trees on that first portion of the lot that can be clearly shown to have been scraped clean as of September 27th, 2008.” The court, therefore, awarded Park the cost of replacing 50 trees, $23,500. Because the court found that Chung’s trespass was intentional, it awarded treble damages under AS 09.45.730.

Chung appealed.

Held: The Alaska Supreme Court vacated the damage award. It held that a party who is injured by an invasion of his property not totally destroying its value may choose as damages either the loss in value or reasonable restoration costs. But reasonable restoration costs are an inappropriate measure of damages when those costs are disproportionately larger than the diminution in the value of the land and there is no reason personal to the owner for restoring the land to its original condition. A reason personal is one that is “peculiar or special to the owner.” The Court said, “We require the landowner to demonstrate a reason personal because we believe it indicates circumstances where the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.”

Ms. Park tried to sell the court that the trees were her “personal healing spot.” New wave… or just trying to pump up her damages?

During the trial of this case, Park tried to establish a reason personal for replacing the trees that Chung had allegedly removed. She talked about having had cancer, and relying on her property as a “healing spot for me.” But later in the trial, she downplayed her visits to the property. As a result, the court found that Park had not established a reason personal for restoring her property.

According to the unrebutted testimony of Chung’s expert witness, the removal of trees from Park’s property did not appreciably affect the value of her property. The trial court accepted that testimony in its findings of fact. Therefore, the Supreme Court concluded that the damages the trial court awarded – $23,500 before trebling – were disproportionate to the diminution of the property value. The Court said that the trial court could award restoration damages only if it found that Park had a reason personal for restoring her property. Because it did not, the trial court’s award of compensatory damages that exceeded the diminution in the market value of Park’s property was not appropriate.

– Tom Root