Law Review: Double or treble damages for cutting down your neighbor’s tree
Cutting down a neighbor’s trees to improve your view of Lake Tahoe or otherwise always shocks me – especially because under California law it can be quite expensive for the wrongful tree cutter.
GIANT TREE ON THE PROPERTY LINE
Russell v. Man is a recent wrongful tree-cutting case with a twist because it did not involve trespassing on the neighbor’s property to cut down the tree. This case involved what is known as a “line tree” – a tree on the boundary line between two properties. In this case an 85-foot Jeffrey pine, a tree we know well in the Sierra.
The general law of a line tree is that trees whose trunks stand partly on the land of two owners belong to them in common. Neither owner may cut the tree without the consent of the other if the cutting unnecessarily kills or injures the tree.
In building a house on his property, Man cut the roots of the tree when digging a trench and as a result, the tree died. The Russells sued for wrongful tree-cutting and treble damages for willful and malicious behavior. The trial court ruled for the Russells. The Fourth Appellate District Court of Appeal reviewed the case and concluded otherwise.
Tree cutting has three measures of damages: “(1) for willful and malicious cutting, the court may impose treble damages but must impose double damages; (2) for casual and involuntary tree-cutting, the court must impose double damages; and (3) for trespass under legal authority (e.g. Caltrans trimming trees), actual damages.”
The basic damages are diminishment of market value of the property or the cost of restoring the property to its original condition including a replacement tree. The court in Fulle v. Kanani, allowed the injured neighbor to recover damages for annoyance and discomfort if the property owner lived on the property at the time of the trespass and allowed those annoyance and discomfort damages to be trebled. The code sections are Civil Code §3346 and Code of Civil Procedure § 733.
MEASURE OF DAMAGES
The Fourth District Court of Appeal overturned the trial court finding that Man did not “trespass” on the Russells’ property which is a requirement for double or treble damages under the code sections. That makes sense. Nor did Man act with malice when the trenching was done, and the roots were cut.
Interestingly, and new to some, the apparent way to value a tree is using the “trunk formula” method – a method that is standard in the industry for valuing a tree too large to be purchased at a nursery – involves measuring the size of the tree and its uniqueness. Something we Sierra folks will all get a laugh out of, the Russells claimed that the Jeffrey pine is an endangered species but the trial court and Court of Appeal rejected that claim.
In the end, the Court of Appeal allowed the Russells to recover $37,000 for the value of the 85-foot Jeffrey pine calculated under the trunk formula method.
The court pointed out the purpose of section 3346: “To educate blunderers (persons who mistake location of boundary lines) and to discourage rouges (persons who ignore boundary lines), to protect timber from being cut by others than the owner.”
I like the rulings in Russell v. Mann and Fulle v. Kanani.
Happy New Year — it can only be better than 2020.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com.
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