trespass to timber

Case of the Day – Tuesday, October 22, 2024

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WHEN ARM’S LENGTH ISN’T QUITE FAR ENOUGH

When I was a mere first-grader, I had an uncle – a Wharton School grad – who taught me a business aphorism he had learned in B-school. Everyone thought that it was cute to hear a 6-year-old try to say, “infamous machinations,” sort of the same way that the Teddy Ruxpin creator picked the bear’s name because he figured so many children would mispronounce it so cutely.

But six decades later, I remember what Uncle Harl taught me through his omnipresent swirls of cigar smoke: “Always deal with your business associate at arm’s length. For if he be an honest man, he will respect your caution…”

Apropos of our regular discussions about independent contractors, you, Harry and Harriet Homeowner, may figure that you are being prudent by hiring your vendors and service providers as such. After all, we all know that the homeowners are not liable for the negligence of independent contractors.

Certainly, our neighbors will respect our caution.

In today’s case, however, the Svensons discovered, to their chagrin, that trespass ain’t negligence. As a result, they got no respect. When the independent contractor tree service hired by their independent contractor architect – making the tree service something akin to an independent contractor once removed – cut down a pair of boundary trees, the Svensons were sued along with the architect and the tree service. They figured they were insulated. It was the contractors’ fault, after all, not theirs.

But one can be dinged for trespass, or for causing someone else to trespass. The fact that the party that has been caused to trespass may be liable, like an eight-ball going into a side pocket, does not absolve the person who directed the trespass. Like the cue ball that put the eight ball into motion, the party who caused the trespass was indispensable to the tort. And regardless of the relationship between the director and the directee, both may share liability.

Oh, and one other thing, Svensons… if you have a good argument to make on appeal, make sure you make the same argument before the trial court. Like l’esprit de l’escalier, thinking of a great argument for the first time on appeal is about 10 minutes too late.

Swegan v. Svenson, 960 N.Y.S.2d 768,104 A.D.3d 1131(Sup.Ct.A.D., 2013). The Svensons were doing some remodeling around their place. They did it right. They hired an architect to design the project and manage the contractor. The architect hired a tree service to remove two trees. The tree service did exactly as it was instructed.

But the trees were boundary trees, partly in the Svensons’ yard and partly in the touchy neighbors’ yard. It didn’t take a New York minute for the neighbors to sue everybody involved for conversion and trespass.

The Svensons moved for summary judgment based on the novel argument that they could not be held liable for the trespass because the architect was not their agent but rather an independent contractor, and tree service certainly was not their agent but instead was an independent contractor as well. The trial court denied their motion.

The Svensons appealed.

Held: The Svensons were not entitled to summary judgment. The court held that regardless of the architect’s status as an independent contractor, the Svensons may be held liable for the trespass and ensuing conversion if they “directed the trespass or such trespass was necessary to complete the contract” between Svensons and the architect. Here, the Swegans had raised an issue of fact whether the Svensons “directed the trespass or whether such trespass was necessary to complete the contract.”

For the first time on appeal, the Svensons floated the argument that they had the right as joint owners to remove the trees because they were structurally unsafe and created a safety hazard or private nuisance. At any rate, they claimed, they should not be assessed treble damages under RPAPL 861 because there is no evidence that they acted recklessly, willfully or wantonly. The court did not consider either contention, because neither had been raised in the trial court.

– Tom Root

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Case of the Day – Thursday, October 17, 2024

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EXPERT TESTIMONY

expert150115

I spent the better part of last week trying to line up a couple of expert witnesses for a Virginia case. The eye-glazing episode left me contemplating Mark Twain’s aphorism that “an expert is just somebody from out of town.”

As I was reminded in my quest for some experts in rather arcane disciplines, it’s a little more complicated than what Twain may have thought. But not that much: certified arborists, operators of tree trimming services, even just guys from out of town – just about anyone can be qualified by courts as expert witnesses.

And what good is an expert witness? Primarily, experts testify not to facts, but rather to opinions. Juries like opinions. Opinions sway juries.

In today’s case from Arkansas, a frolicking bulldozer operator wiped out a bunch of a neighbor’s trees. Clearly, she was entitled to damages. But how much would the damages be? She hired the county extension agent to testify as to the value of the trees that had been cut down. The defendant complained that the expert relied on timber sales reports written by others, but the Court of Appeals accepted his opinion and, in the process, explained what type of research process it wanted to see as a basis for an expert opinion.

Of course, the state’s treble damages statute, which multiplied the value of the lost timber by threefold, made the expert’s opinion all that more important to both sides. Incidentally, the defendant tried to argue that there was no proof that the bulldozer operator was his agent, but that was a mere sideshow: the evidence was overwhelming on that point.

Expert150116Jackson v. Pitts, 93 Ark.App. 466, 220 S.W.3d 265 (Ct.App. Ark. 2005). Richard Jackson owns land just north of Nora Pitts’s property. Pitts claimed that Jackson or people acting for him bulldozed trees on her land where it borders Jackson’s.

Lloyd Pitts, Nora’s son, saw John Moore operating a bulldozer in the area of the destroyed timber, which was located on Pitts’s property line with Jackson’s land. Lloyd said he walked along his mother’s land shortly afterward and saw holes where trees had been removed from the bulldozed ground. Another witness saw the bulldozer activity on Pitts’ property and said that the bulldozer operator told him that he had been directed by Jackson to perform the work. The trial court found that Jackson and Moore trespassed on Pitts’ land and destroyed marketable timber, setting the value of the destroyed timber at $1,157.20. Treble damages allowed under §18-60-102 of the Arkansas Code increased the judgment to $3,471.60. Jackson appealed.

Held: The trial court judgment was upheld. Jackson claimed that treble damages were unjustified, but the Court disagreed. The imposition of treble damages in a trespass action for trees damaged, broken, destroyed, or carried away requires a showing of intentional wrongdoing, although intent may be inferred from the carelessness, recklessness, or negligence of the offending party.

Here, the Court said, the evidence was sufficient to support a finding that an agency relationship existed between Jackson and the bulldozer operator such that Jackson was liable for the operator’s damage to Pitts’ timber. Lloyd Pitts saw the bulldozer on his mother’s property operating in the area of the damaged timber and saw Moore operating it. Another witness said Moore said he was working for Jackson. Jackson admitted he had hired Moore to work on his property with a bulldozer, and that if any trees had been removed from Pitts’ property, it would have been done by Moore.

Mark Twain says there are none of these ...

Mark Twain says there are none of these …

As for the amount of damages, the Court said, the evidence in each trespass case determines what measure of damages should to be used to value trees damaged, broken, destroyed, or carried away. Timber is generally valued according to its “stumpage value,” which is the value of the timber standing in the tree. Here, Pitts’ expert witness gave testimony of the estimated number of trees destroyed by Moore, and their market value at the time. The evidence was admissible, the Court said, even though the opinion relied in part on hearsay. The expert described the methodology he used to compute timber value within a specified area, which included diameter measurements of randomly selected trees, an estimate of the timber volume multiplied by the number of trees within a specified area, and the use of a university timber market report to obtain an estimated market value.

What’s more, the Court observed that the expert testified he personally walked the area to conduct his measurements and testified he walked off the area that was bulldozed and then went into the woods next to that area to measure a similar amount of land and counted the trees within it. The Court said an expert witness may base an opinion on facts or data otherwise inadmissible, as long as the facts or data are of the type reasonably relied on by experts in that particular field.

– Tom Root

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Case of the Day – Monday, October 7, 2024

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HE SAID, SHE SAID…

This is probably the right time, what with Presidential campaign drama being played out in Washington and across the country, to run with our own “he said, she said” case, a peculiar turn-of-the-last-century trespass to timber case from New Jersey.

The defendant farmer was accused of trespassing onto the plaintiff’s land without permission and cutting down 32 trees. He said he only cut 13 trees, and anyway, he had permission from the plaintiff’s father (the plaintiff being a fair damsel who, back then, couldn’t be worrying her pretty little head about real property management).

The plaintiff’s dad, unsurprisingly, denied giving permission.

It seemed pretty clear that the jury bought the plaintiff’s version of events. The damages awarded could not have been for just 13 trees, implying the jury must have believed that Farmer Ruddy had taken all 32. The fact that the jury found a trespass meant that it necessarily disbelieved Farmer Ruddy’s story about looking at the trees with the plaintiff’s father and making a deal.

After the obligatory denial that it was not second-guessing the jury, the court of appeals held that punitive damages were not proper where the case was nothing more than “an honest dispute as to permission for the act found to be a trespass…” Sure, and Bonnie and Clyde thought they had permission to take money that wasn’t theirs from the bank. So their offense was really just “an honest dispute as to permission for the act” found to be a robbery accompanied by lots of gunfire.

If Farmer Ruddy did not have permission (as the jury found he did not), then his entire story about walking the boundary with Ms. Hollister’s father was a woof story. And necessarily, Farmer Ruddy’s conduct in trespassing and taking the trees was wanton and malicious.

The court of appeals was simply substituting its own conclusions for those of the jury, rewriting the verdict as best it could by reducing the damages by about half.

This is not only an old decision, it’s an awful one. The Court may have been swayed by George Ruddy’s motive, to remove the shade from his field and thereby make it more productive. It may have preferred George’s detailed testimony over getting permission from plaintiff Minnie Hollister’s dad, whose hot denials may have sounded hollow. It may have figured that some woods belonging to a mere girl should not be favored over a field owned by a man.

Who knows (but the Court)? The point is that those conclusions are factual, and in this country, findings of fact are made by the jury, not an appeals court. This is raw judicial encroachment on the jury function, 19th-century style.

And some think that judicial activism is a recent phenomenon.

Hollister v. Ruddy, 66 N.J.L. 68 (N.J. 1901). Farmer George Ruddy had a problem. Minnie Hollister’s trees that stood along the boundary with his field threw so much shade that a healthy part of the cropland was not healthy at all. George cut down some trees, the exact number being an issue, some of which were boundary trees.

Minnie claimed that George had no permission to remove any trees at all. George testified that he had obtained permission from Minnie’s father, who had the authority to approve tree removal. George gave convincing testimony that he had driven the elder Hollister from town to the field, that they discussed the trees and shade problems they caused, that the trees were only fit for firewood, and that George even offered to sell the wood and give all of the proceeds to Minnie (because his only interest was in making the field more productive). Farmer Ruddy said he had cut only 13 trees on the boundary, not the 32 trees Minnie claimed were gone.

No matter. The jury believed Minnie Hollister and found that George had trespassed. Miss Minnie recovered $400.00 in damages to the trees and punitive damages of $350. George appealed.

Held: Minnie was not due any punitive damages.

The trial court had instructed the jury that after it figured out the value of the timber that was improperly taken, “if you believe that the action of this defendant, in entering upon the plaintiff’s land and cutting the trees, was wanton, willful and malicious, and that he meant to take property that he knew was not his own, and cut down the trees maliciously and carried them away without the plaintiff’s knowledge or consent, you may add such damages as you think is proper punishment for a man who willfully does an illegal act of trespass of that character.”

The court of appeals agreed with the jury instruction, but it found that the clear weight of the evidence showed that Farmer Ruddy had not cut or authorized the cutting of more than the 13 trees that stood on or near the boundary line and that the trees he cut were fit only to be cut for cordwood. Their value, based on the trial court testimony, was about $20.00. But even if the jury thought that George Ruddy had cut all 32 trees, the most they could have been worth was about $400.00. So plainly, the appellate court concluded, the jury must have allowed punitive damages.

The Court ruled that the right to award punitive damages rests primarily upon a single ground – wrongful motive. But here, the Court said, there was no competent evidence that George had authorized the cutting of anything more than the trees on or along the boundary line, and he claimed that his reason for cutting those was that they shaded his field so as to prevent the raising of full crops. He also claimed that he had procured permission from the elder Hollister, who was in charge of the property, for the cutting of those trees, although Mr. Hollister hotly denied this.

The Court conceded that “the verdict determined that permission was not given, and on that point alone we would not disturb it; but it seems to us quite plain that the jury was not justified in finding the defendant’s conduct wanton or malicious. Without conceding that for a mere trespass on lands and the cutting of trees that have no special value in themselves, and the cutting of which inflicts no peculiar injury on the landowner, punitive damages can ever be properly awarded, we see no ground for their allowance on the testimony above cited.”

The Court characterized the trespass case as “an honest dispute as to permission for the act found to be a trespass. It is true that some of the trees cut were exactly on the boundary line, and it is argued that that fact gave them a peculiar value. No such value was contended for or submitted to the jury. The line was not obliterated, for the stumps of the trees remained in the earth, and the line itself was shown by a post and wire fence, which, though considerably fallen into decay, still left the boundary line between the parties clearly discernible. There was no peculiar injury or any indignity inflicted on the plaintiff. It will be enough if she gets just compensation, which, of course, may include the value, if any, of any of the trees as line trees.”

– Tom Root

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Case of the Day – Wednesday, October 2, 2024

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HANK YANKED, JOHNSONS CRANKED, SUPREME COURT TANKED

It’s hard to muster up a lot of sympathy for hard-nosed businessman Henry Tyler. When he wanted to build a commercial building, but his neighbors rightly refused to let him cut down some of their trees, Hank just yanked the trees anyway.

But the neighbors, the Johnsons, were not a couple of patsies who would roll over and play dead. They got a lawyer, who cranked on Hank big time. By the time the dust settled, Hank owed the Johnsons for the trees he had cut down, for additional damages his trespass had caused, for treble damages under the statute, and for punitive damages. The $1,400 worth of Johnson trees that Hank butchered ended up costing him over $11,500.

But there’s truth to the maxim that little pigs go back to the trough, but big pigs get slaughtered. (Mark Cuban is credited with the most common variation on this old saw, but I recall my wonderful securities law professor, the late Morgan Shipman, using the line often back in the 70s. Like Abraham Lincoln famously said, you just can’t trust the Internet).

Treble damages are intended to punish the malefactor by providing a simple statutory punitive remedy for a wronged party. Common-law punitive damages likewise are intended to punish the malefactor but without a set formula (thereby permitting a jury to make a symbolic gesture or run wild, as it wishes).

In today’s case, the plaintiffs’ silver-tongued lawyer talked the jury into awarding both treble damages and common-law punitive damages. When the trial judge wisely struck one, reasoning that a defendant could be punished once but not twice, the plaintiffs – who were big piggies by this time – appealed.

The Johnsons should have accepted the court’s offer when it first made it. The Iowa Supreme Court tanked their punitive damage award and sent the whole case back to be retried.

Johnson v. Tyler, 277 N.W.2d 617 (Supreme Court, Iowa, 1979). The Johnsons, who bought their home in 1952, planted trees and shrubs around the premises, particularly along the west line of their property. Genco Distributors, Inc., bought the property next to the Johnsons’ land to the west, intending to put a commercial building there. Genco’s president, Henry E. Tyler, asked the Johnsons for permission to remove the trees along the west boundary in preparation for the construction work. They refused. Hank nevertheless instructed the contractor to bulldoze the trees.

The Johnsons sued under Iowa Code § 658.4 for damages resulting from Hank’s deliberate and willful removal of a number of trees and shrubs from their property. The jury found for the Johnsons, fixing the value of the destroyed trees and shrubs at $1,400.00, which were trebled to $4,200.00, adding other sundry damages of $2,100.00, and assessing punitive damages of $5,250.00. That was too much for the trial court, which set aside the verdict for punitive damages.

The Johnsons refused their adjusted judgment of $6,300.00, which still was more than double the total amount of damage they suffered. They appealed the trial court’s striking of punitive damages, and the case ended up in the Iowa Supreme Court.

Held:  Punitive damages cannot be assessed.

The Supreme Court said that the paramount issue here was the question of whether the Johnsons could have both treble damages under the statute and punitive damages at common law.

The relevant statute provides that “[f]or willfully injuring any timber, tree, or shrub on the land of another… the perpetrator shall pay treble damages at the suit of any person entitled to protect or enjoy the property.” The Court held that by bringing the action under Iowa Code § 658.4, the Johnsons chose the remedy afforded by that statute, which is itself punitive.

The Johnsons argued that the statute did not abrogate their right to punitive damages, but instead just provided an additional statutory remedy. The Court disagreed, holding that letting a plaintiff have both treble damages under the statute and punitive damages under common law “would violate the basic prohibition against double recovery.” The Supreme Court ordered that the case be retried, with the jury being instructed that it should only find compensatory damages.

Not all the news was bad for the Johnsons, however. The Supreme Court clarified one question, whether “loss of enjoyment resulting from destruction of the trees and shrubs” was part of the damages that could be tripled under the statute. The trial court said they were not.

The Supreme Court held that the treble damage statute “allows treble damages for loss resulting from willfully injuring any timber, trees, or shrubs. It does not limit recovery to damage to the trees or shrubs themselves. Loss of enjoyment resulting from such conduct is an element of damage. If properly proved, this item, too, comes within the treble damage provision of § 658.4.“

– Tom Root

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Case of the Day – Friday, September 13, 2024

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TREE TRESPASS LOTTERY

There are a lot of moving parts to today’s case. First, we have the classic setup for treble damages. A neighbor is told repeatedly that his beliefs as to his property boundaries were wrong, but he pigheadedly ignores the news he does not want to hear. After the inevitable trespass results in the butchering of hundreds of trees, the unhappy victims – who don’t want justice as much as a pound of flesh – decide to pile on with multiple experts, each describing the loss a little differently. Finally, we have a plaintiff’s lawyer who screws up on a minor and rather technical rule of pleading, costing his clients some money in the process.

In any fair contest, the Linebargers should have gotten treble damages from their neighbor George. How many times do you have to be put on notice that your purported property lines place you at risk of committing a whopper of a timber trespass before you check your figures, just to be safe?

Still, the punishment ought to fit the crime. Like the Alaska case we considered a few months ago, compensation for loss is one thing. But a lottery ticket that would score you two-thirds of the fair market value of your 30-acre spread for the loss of 4 acres of trees just seems wrong.

No one should quibble with the Linebargers getting treble damages. Pigheaded George had it coming. But their lawyer somehow forgot to ask for treble damages in his complaint, or even at trial. A basic tenet of procedural due process is that a defendant should get notice of what the plaintiff wants to stick him or her with, and an opportunity to put on as good a defense as the defendant can muster and the law allows.

In today’s litigious world, the Linebargers would have gone after their lawyer’s malpractice policy the day after the appeals court ruled.

Linebarger v. Owenby, 79 Ark.App. 61, 83 S.W.3d 435 (Ark.App. 2002). George Owenby’s property lies south of a heavily wooded, 30-acre tract owned by Jerry and Margaret Linebarger. The Linebargers bought the northern 20 acres of their property in 1976, where they built a weekend cabin. They bought the southern 10 acres in 1993 to serve as a buffer between their cabin and neighboring lands.

In 1998, George sold the timber on his tract to Canal Wood Corporation. Canal Wood began cutting in the fall of 1998 and, in the process, cut 329 trees from the southern 10 acres of the Linebargers’ land. Jerry complained that he had tried to tell George for years that a 1987 survey George used to establish his boundary was wrong, and that there was a more recent survey available.

As late as December 1997, when George told Jerry he was thinking of selling his timber, Jerry reminded George of the boundary problem and asked George to call him before proceeding. Heedless of this good advice, George made his deal with Canal, and, when Canal noticed some evidence of a boundary different than the one George had indicated, George provided Canal with the 1987 survey. In reliance on the wrong survey, Canal marked the acreage in such a manner that some of the Linebargers’ trees were cut.

Jerry and Marge finally got George’s attention by suing him and Canal for trespass and destruction of trees “that had been used for shade and beauty.” They asked for damages that would allow them to replace the lost trees, for attorney fees and costs, and for anything else to which they might be entitled. At trial, the Linebargers offered the testimony of three experts as to the amount of damages they had suffered. One expert, Bill Kelly, said the stumpage value of the cut trees was $1,081.60 and that it would cost $643.50 to prepare the site for re-planting. Another expert, real estate appraiser Wayne Coates, testified the market value of appellants’ property was $68,000 before the cutting and $62,000 afterward (which included $3,000 in clean-up costs). A third expert, Al Einert, placed a value on every tree that had been cut and determined the total value of the trees to be $44,702. Naturally, the Linebargers liked Al’s number the best.

The trial judge found that Canal had failed to obtain a survey prior to cutting the trees and had trespassed on the Linebarger’s land as the result of George’s intentional failure to disclose the correct survey. However, the judge found that the $44,702 damage figure testified to by Al was disproportionate in relation to the fair market value of the land. He awarded the Linebargers $5,000 for the reduction in value of their land, based on Wayne Coates’s testimony, plus $1,081.60 stumpage value and $643.50 in clean-up costs, based on Bill Kelly’s testimony.

The Linebargers appealed.

Held: The replacement value of the trees was grossly disproportionate to the diminution of the land value, and would be a windfall for the Linebargers.

The Linebargers complained that the trial court should have awarded them the $44,702 replacement value of the trees. Arkansas courts have recognized that when ornamental or shade trees are injured, the use made of the land should be considered, and the owner should be compensated for the cost of replacing the trees. However, fact situations may arise in which recovery of the replacement cost of trees would yield a result grossly disproportionate to the fair market value of the land and thus would be an inappropriate measure of damages. The evidence in each case determines what measure of damages is to be used.

Here, the trial judge acknowledged the Linebargers had used their trees for screening and shade, and he gave due consideration to the replacement measure of damages. However, he found that most of the trees cut were behind and over the crest of a hill from Jerry and Marge’s cabin, which tended to reduce the harm they suffered. After all, you can’t derive shade from trees you can’t see. He also found that the replacement cost of the trees would be disproportionate in relation to the fair market value of the land.

The Court of Appeals agreed. “We cannot say that the trial judge abused his discretion in making the damage award,” the Court wrote. “Although he recognized that an award of replacement value might be possible, he declined to use that measure of damages because 1) the cut trees were behind and over a crest from the cabin, and 2) the replacement value would be disproportionate to the land value. The location of the cut trees in relation to the cabin is a legitimate factor to consider. The trees provided only minimal shade, ornamental, or landscaping value to the appellants’ residence.”

It was obviously meaningful to the appellate court that if George paid the Linebargers the full replacement value of $44,702 for trees cut on 4.29 acres, Jerry and Marge would have received 67% of the value of the entire 30 acres as a whole (including the cabin). Such an award would exceed the stumpage value of the cut trees by over $43,000.

The Linebargers cited Ark. Code Ann. § 18-60-102 (a), which provides that if a person cuts down another’s tree, he may be liable for treble damages. Here, the Court replied, the trial judge found that the wrongful cutting in this case occurred through George’s intentional conduct. In cases of intentional wrongdoing involving the cutting of trees, the victim may recover treble damages. But despite his finding of intentional conduct, the judge declined to award treble damages in this case, based on the idea that a court of equity cannot award treble damages.

The judge was right, the appellate court said, but for the wrong reason. Jerry and Marge did not include a request for treble damages in their pleading, nor does the record reveal that they notified George and Canal at trial that they would be seeking exemplary (punitive) damages. A defendant is entitled to be given adequate notice of the remedy he or she will be confronting. An award of treble damages would have been inappropriate in the absence of the Linebargers pleading for them or the issue being tried with the express or implied consent of the parties.

– Tom Root

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Case of the Day – Tuesday, September 10, 2024

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WASHINGTON STATE – GREAT COFFEE, GREAT VISTAS… AND GREAT CONFUSION

I have to confess that, although I am a proud Midwesterner, I love the State of Washington. Temperate rain forests, soaring mountains, beautiful lakes, great coffee, greater beer, and Seattle in the sunlight.

OK, not so much about the sunlight. But for that, Washington is two fantastic states, the first being a lush and moist paradise west of the crest of the Cascades, and the other being a sprawling, sunny and semi-arid plain east of the mountains.

Despite my love of the place, I was unstinting in my criticism yesterday about how the Mustoe court had sanctioned an “anything goes” culture in Washington, in which a landowner could misuse the Massachusetts Rule to kill a neighbor’s tree by the indiscriminate cutting of roots and branches, regardless of effect. As long as you stay on your own property, you can trim branches and roots with a backhoe bucket, if you so choose.

Today’s case is every bit as puzzling as is Mustoe, but in quite the opposite direction. One set of neighbors hacked branches off a boundary tree to the point that the other set legitimately feared that it was so unstable it would fall. The second set of neighbors then retaliated, taking the rest of the branches off the tree. That stabilized the tree trunk but had the unfortunate side effect of killing the tree.

Neighbor One, who lacked not for chutzpah, sued Neighbor Two for timber trespass. The courts found Neighbor Two liable for treble damages under the State’s timber trespass statute, regardless of the fact that Neighbor One’s reckless trimming created a hazard tree and the need for the drastic remedy that killed the tree.

The Court, in today’s case, candidly “acknowledge[s] that under Mustoe and our holding here, it would appear that a property owner has greater rights with respect to trimming a neighboring tree than a tree standing on a common property line with a neighboring property. This outcome is the result of applying a statute to a situation that was not likely contemplated upon the statute’s drafting. Our legislature may clarify the statute’s applicability to boundary trees in future legislation.”

Of course, part of the problem may be that the lawyer for the Pelayos (Neighbor Two) failed to remember that the best defense is often a good offense. He did not file a timber trespass claim against the Herrings (Neighbor One), which would have placed their misconduct into play. To be sure, in any fair world, the Herrings’ conduct in removing all the branches overhanging their property also violated RCW 64.12.030 and should have mitigated, if not outright excused, the Pelayos’ cutting in response.

Herring v. Pelayo, 397 P.3d 125 (Wash.App. Div. 2, 2017). The Herrings and Pelayos are neighbors. In December 2011, the Herrings hired a tree trimmer to remove some branches from a tree located on the common property line. The Herrings did not discuss their plan to remove branches from the tree with the Pelayos prior to the work. When they discovered the trimming, the Pelayos believed that the work had caused the tree to become unbalanced, constituting a danger to their home. Three weeks after the Herring trimming, the Pelayos had a tree trimmer remove all the remaining branches from the boundary tree, causing the boundary tree to die. Like the Herrings, the Pelayos did not discuss their plans with the neighbors before the work was done.

The Herrings sued, claiming a timber trespass in violation of RCW 64.12.030 or, in the alternative, regular garden-variety trespass in violation of RCW 4.24.630. At trial, Jose testified that he knew the tree at issue was on the common property line, he told the tree trimmer to remove all of the remaining branches from the tree, he did not discuss his plan with the Herrings, (4) the tree was alive prior to the removal of the remaining branches, and (5) he believed that removing the remaining branches would kill the tree, which it did.

The Pelayos’ tree trimmer, Tim Jones, testified that he believed the tree was a danger to the Pelayos, and he had recommended that they remove the entire tree or, at least cut off all the remaining branches. But Tim also told the Pelayos that they could remove a top portion of the tree to balance it, and Tim admitted that he might have been able to remove some of the remaining branches to render the tree safer without killing it.

The trial court held that the Pelayos committed timber trespass under RCW 64.12.030, and their defense of mitigating circumstances, allowed by RCW 64.12.040, did not apply.

Held: The Pelayos had to pay.

Jose and Blanca Pelayo argued that the trial court failed to find that their conduct in removing the branches from the boundary tree was both (1) willful and (2) without lawful authority. Without those findings, they contended, they could not have violated RCW 64.12.030.

RCW 64.12.030 provides that “whenever any person shall cut down, girdle, or otherwise injure, or carry off any tree… on the land of another person… without lawful authority, in an action by the person… against the person committing the trespasses… any judgment for the plaintiff shall be for treble the amount of damages claimed or assessed.” Washington law is clear that there must be an element of willfulness on the part of the trespasser to support treble damages under RCW 64.12.030. In this context, the Court said, “willful” simply means that the trespass was “not casual or involuntary.” The burden of proving that a trespass was casual or involuntary is upon the defendant once the fact of trespass and the damages caused thereby have been shown by the plaintiff.

Here, the Court said, the Pelayos never argued and no evidence ever suggested that the trespass was casual or involuntary. Under those circumstances, it was not necessary for the Herrings to prove willfulness.

Jose admitted at trial that he knew the Herrings had an ownership interest in the boundary tree and that he had ordered the remaining branches to be removed from the tree knowing that such removal of branches would kill the tree. The Court said his testimony “was tantamount to a concession” that the conduct in removing the branches was willful. No other evidence would have let the trial court infer that this conduct was casual or involuntary. Therefore, no specific finding as to willfulness was required.

Next, the Pelayos argued that they were lawfully authorized to remove branches from the boundary tree that were overhanging their property. The Court made short work of that argument as well.

RCW 64.12.030 applies only to people acting without lawful authority. A landowner has the legal authority to engage in self-help and trim the branches and roots of encroaching onto his or her property. On the other hand, a landowner does not have the legal authority to cut down an encroaching tree. But here, the issue was whether a landowner may trim the branches of a tree standing on a common property line in a manner that a defendant knows will kill the tree.

The Court began by holding that trees standing directly on the property line of adjoining landowners are the common property of both landowners. The Pelayos contended that landowners had an unfettered right to trim branches that overhang their property regardless of whether the tree is situated entirely on a neighboring property or, instead, is situated on a shared property line.

Despite Washington State’s rather cavalier treatment of a tree owner’s rights vis-à-vis the neighbor in the Mustoe decision, the Court concluded that where the tree stood on a common property line, both the Pelayos and the Herrings had undivided property interests in the tree. This was consistent with the only other relevant decision on the matter, a Washington appellate decision in Happy Bunch LLC. Because the Pelayos have a property interest in the tree at issue, the Court reasoned, portions of the tree overhanging their property could not be said to be “encroaching” in the same way that the branches and roots were encroaching in Mustoe.

The Pelayos and Herrings owned the tree as tenants in common, and thus each couple was entitled to use, maintain, and possess the boundary tree, but not in a manner that “interfered with the coequal rights of the other cotenants.” Unlike a landowner engaging in self-help to trim branches overhanging his or her property from a tree situated entirely on the property of another, the Court ruled, a cotenant owning a boundary tree had a duty not to destroy the common property and thereby interfere with the rights of the other cotenants.

After all, the Court argued, if landowners had an unfettered right to cut away the portions of a common boundary tree that stand on their property, without any regard for whether such cutting would injure or destroy the tree, the timber trespass statute could become inapplicable to neighbors sharing a property interest in a boundary tree. Under the Pelayos’ argument, the Court complained, a neighbor sharing a property interest in a boundary tree could effectively destroy the tree and escape liability under the timber trespass statute if the neighbor destroys the tree in a manner that does not physically trespass on the portion of the tree situated on the neighboring property. “This result cannot withstand the plain language of RCW 64.12.030,” the Court said, “which imposes liability on ‘any person… [who] cut[s] down … or otherwise injure[s] … any tree… on the land of another person’.”

The Court observed that it also had to “give effect to language in the statute shielding from liability conduct that is taken with ‘lawful authority’… In recognition of the long-recognized lawful authority to trim overhanging vegetation, the lawful authority to use and maintain property held in common with a cotenant, and the plain language of the timber trespass statute, we hold that where a tree stands on a common property line, the common owners of the tree may lawfully trim vegetation overhanging their property but not in a manner that the common owner knows will kill the tree.”

Because the Pelayos admitted they directed the removal of the remaining branches of the boundary tree, knowing that the removal would kill the tree, they were liable under RCW 64.12.030.

The Pelayos tried to avoid being hit with treble damages under RCW 64.12.040 by arguing that mitigating circumstances applied to their conduct. They said that because they cut the tree branches while standing on their property, they had probable cause to believe that they owned the land where such conduct took place.

The Court rejected that argument, too, holding that RCW 64.12.030 violations involve direct trespass to a tree, not trespass to the land on which the tree grows. The timber trespass statute applies when a defendant commits a direct trespass that causes immediate, not collateral, injury to a plaintiff’s timber, trees, or shrubs, even if the defendant is not physically present on a plaintiff’s property.

– Tom Root

TNLBGray140407

Case of the Day – Monday, August 19, 2024

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THERE ARE LEGAL COSTS, AND THEN THERE ARE LEGAL COSTS

fees160104Let nothing come between a lawyer and his or her fee.

You might be cynical, and imagine that today’s case is nothing more than a lawyer worried about collecting a large and unwarranted fee. But the case is much more than that.

The facts are rather prosaic. Some landowners failed to carefully mark the common boundary with their neighbor before setting a timber company loose on the property. Sure enough, the cutters harvested some of the neighbor’s trees. That much wasn’t an issue.

When Valarie Garvey sued the Chaceys for timber tress, property damage and a collection of related causes of action, the Chaceys hired some aggressive litigators. Their lawyers knew that the best trial defense often is a good pretrial offense. They fought tooth-and-nail before trial, gaining their best tactical high ground when Valerie’s lawyer inexplicably didn’t identify the plaintiff’s timber expert by the pretrial deadlines.

The expert was crucial because he was going to testify as to the value of the timber that had been wrongfully cut. But once the expert established the value of the missing trees, Section 55-332 of the Virginia Code would let Valerie Garvey collect three times the value of the wrongly-cut timber, plus reforestation costs, plus other damages to the property (such as the private road the timber harvesters ripped up) plus “legal costs directly related to the trespass.” In short, it looked like a big payday for Valerie Garvey. She just had to do one thing. She had to prove the value of the stolen timber.

Alas, she screwed it up. Perhaps it would be more appropriate to say her lawyer screwed it up. Without the expert, Valerie had no way to get the value of the timber into evidence. When the jury decided the case, it was able to award her the princely sum of $15,135.00 (only a fraction of the reforestation costs she estimated to be $78,000.)

expert160104Valerie’s lawyer, trying to save a case that was going south pretty fast, successfully convinced the trial court that the “directly associated legal costs incurred by the owner of the timber as a result of the trespass” included attorneys’ fees. Valerie claimed she had spent over $135,000 in legal fees, and the trial court awarded even more than that – $165,000 – in fees.

We doubt that Valerie’s lawyer was going to get all of that. In fact, Val had every right to be as mad as a wet hen over counsel’s missing the expert witness deadline. We suspect that the lawyer and client had made a deal to salvage something out of the case, and counsel would have ended up with little more than cab fare (but no malpractice claims). Unfortunately, we’ll never know because on appeal the Chaceys convinced the Virginia Supreme Court that whatever “directly associated legal costs” might be, they are not “attorneys fees.” The Supreme Court was impressed that wherever the legislature intended to authorize the award of attorneys fees – in over 200 statutes in the Code – it was able to clearly say so.

The Chaceys – not satisfied with hitting a triple – swung for the fence. They asked the Supreme Court to rule that where a plaintiff claiming timber trespass did not prove the value of the missing timber, the case should be thrown out. The Supreme Court disagreed. Proving a timber trespass does not require that one prove the value of the purloined pines. Of course, not doing so cuts the plaintiff out of a lot of damages, but the offense does not depend on proven damages. It just requires that a trespass to timber occur, whether the tree is worth anything or not.

As for Valerie’s attorney, we suspect he was on the phone pretty quickly, calling his malpractice carrier.

reforest160104Chacey v. Garvey, 291 Va. 1, 781 S.E.2d 357, 358 (2015). In 1995, Valerie Garvey bought 50 acres of land from Allan and Susan Chacey. The Chaceys retained ownership of adjacent property, and they reserved to themselves an easement over Garvey’s property as a means for ingress and egress to their property.

At the end of 2012, Garvey sued the Chaceys and Blue Ridge Forestry Consultants, Inc., alleging timber theft and trespass. Garvey said the Chaceys had hired a logging company a few years previously to remove some timber located on their property, and that the company had trespassed on her property and removed timber without her permission. She alleged that she was entitled to damages for timber theft at three times the value of the timber on the stump, as well as reforestation costs not to exceed $450 an acre, the costs of ascertaining the value of the timber, and her attorney’s fees. She also asked for $30,000 for damages to her property caused by the trespass, including damage to the road, fencing, and the stone bridge.

Prior to trial, Garvey attempted to designate an expert witness for the purpose of establishing the monetary value of the timber on the stump at issue in the complaint. However, she did so too late, and the trial court refused to let her expert testify during the three-day jury trial.

While she was testifying at trial, Garvey was asked by her attorney whether she had incurred legal costs in connection with the trespass. The Chaceys objected, but the trial court ruled that legal costs included attorney’s fees. Garvey told the jury that she had incurred more than $135,000 in legal costs, including attorney’s fees, which she claimed were all directly associated with the trespass. She also testified that she had negotiated with Bartlett Tree Services for the restoration of the trees, and she had paid a deposit of $440 towards that work, against a total price of $78,000.

The trial court ruled that Garvey could not recover treble damages since her expert evidence regarding the value of the timber on the stump had been excluded. However, the case could still go to the jury for consideration of damages for reforestation and legal costs.

The Chaceys argued that attorneys’ fees are not recoverable by a prevailing party in an action for timber theft pursuant to the Virginia Code § 55-331. They also contended that Garvey’s timber trespass claim should not have been submitted to the jury, because she had failed to provide any evidence related to the value of the alleged damaged timber. However, the jury found for Garvey on her claims of timber theft, trespass, and property damage. On the timber theft claim, the jury awarded Garvey $135.00 in reforestation costs. The jury also awarded her legal costs. On the trespass count, the jury awarded Garvey $15,000 in damages. The trial court held that Garvey was entitled to $165,135 in “directly associated legal costs incurred by Plaintiff as a result of the trespass, including attorney’s fees, in the amount of $150,000 …”

The Chaceys appealed.

needlawyer160104Held: The Virginia Supreme Court split the ticket. It observed that although Virginia Code § 55-331 permits any victim of timber trespass to collect “directly associated legal costs incurred by the owner of the timber as a result of the trespass,” whether Garvey was entitled to attorney’s fees depends upon the meaning of “costs.” Garvey argued that her attorney’s fees are legal costs directly associated with the trespass. The Chaceys argued that Garvey is merely entitled to the costs necessary for the prosecution of her suit.

Tracing the definition of “costs” in other proceedings, the Court held that “the term ‘costs’ is limited to the costs necessary for the prosecution of a suit, and does not include attorney’s fees. The Code of Virginia contains more than 200 instances where the General Assembly has determined a successful litigant is entitled to ‘attorney’s fees and costs’ or ‘costs and attorney’s fees’ … However, the General Assembly did not include the right to recover attorney’s fees in this statute, something it has done in more than 200 other separate instances.”

The Court disagreed with the Chaceys, however, about the timber trespass claim. The Chaceys, no doubt wanting to capitalize on their pretrial success in keeping Garvey’s expert off the stand, argued that the trial court erred in permitting Garvey’s timber trespass claim to proceed to the jury because Garvey failed to provide any evidence related to the value of the alleged damaged timber. Essentially, the Chaceys were contending that evidence related to the value of the damaged timber is a prerequisite to awarding any of the additional damages provided for under Code § 55-332(B).

Virginia Code § 55-332(B) holds that any person who removes timber from the land of another without permission is liable to the rightful owner for “three times the value of the timber on the stump and shall pay to the rightful owner of the property the reforestation costs incurred not to exceed $450 per acre, the costs of ascertaining the value of the timber, and any directly associated legal costs incurred by the owner of the timber as a result of the trespass.” The Court held that there was nothing in the statute that stated that an owner is only entitled to reforestation costs, legal costs, or the costs of ascertaining the value of the timber after he or she had first established the value of the timber that was improperly taken. Instead, the Court said, the statute made clear that the person who removed the timber “shall be liable to pay” all of these damages to the owner. The fact that Garvey was unable to prove the value of the timber on the stump, in this case, did not preclude her from being able to recover the other damages she was entitled to under Code § 55-332(B).

– Tom Root

TNLBGray