Four Keys to Building a Strong Environmental Damages Case
Your wake up one morning to the sound of a chainsaw. You go outside and see that your new neighbor, the one with an affinity for giant inflatable lawn ornaments, is felling trees near your property line. You sigh. You thank god for the row of old hemlocks on your side of the line.
Leaving for work, you pause. You wonder whether you should remind your neighbor of the property line. No, you decide, that would be gratuitous—he can’t possibly miss the row of surveyor’s stakes. You drive off.
When you return that evening, you cannot believe your eyes. Your hemlock trees are gone. There is nothing left standing between you and a horde of inflatable Santas, Pooh Bears, and Smurfs. You are livid. You charge over to your neighbor’s house. You inform him that he has just cut down your trees. He denies that they were your trees. You show him the surveyor’s stakes. Oh, he says—he is sorry. Sorry, you reply, is not good enough. He has just ruined your yard. Oh, come on, he says, give him a break—how much were those trees really worth, anyway?
The answer is, a lot more than your neighbor may think. There is a statute in Massachusetts, M.G.L. c. 242, § 7, that specifically addresses the phenomenon of “trespass to trees.” The statute provides for an award of treble damages against any person who, without license, willfully cuts down or destroys any “trees, timber, wood, or underwood” on the land of another. Treble damages means three times the amount of actual damages. Actual damages means the amount of money that will, in theory, suffice as a substitute for your lost trees—in the language of the law, the amount necessary to “make you whole.” See Kattar v. Demoulas, 433 Mass. 1, 15 (2000).
Of course, triple damages will not amount to much if actual damages are not significant. But how does one quantify actual damages in a case like this? To you, the value of your hemlock trees was incalculable, both because of their inherent beauty and because of the privacy that they afforded you from your neighbor. Thus, to you, the only thing that can make you truly whole is a restoration of the status quo ante—that is, replacement of the trees. Your neighbor, however, might argue that the measure of your damage should be the amount by which your property’s value has been diminished by the elimination of the trees. In other words, your neighbor may argue that the proper measure of your damage is not how valuable your trees were to you, but much value they would have added to your property in a hypothetical marketplace. Of course, your neighbor would prefer the latter measure because it is practically impossible to prove how a hypothetical market would quantify the value of your trees. Quite conceivably, using this measure, you would not be able to prove any actual damages at all.
Rest assured, your neighbor will lose this argument. In two cases in 2008, the Massachusetts Appeals Court ruled that damages for trespass to trees could be measured according to the plaintiff’s restoration cost—that is, the amount of money that it would cost to replace the trees, or to approximate such replacement. See Ritter v. Bergman, 72 Mass. App. Ct. 296, 304-306 (2008); Glavin v. Eckman, 71 Mass. App. Ct. 313, 317-321 (2008). In each of these cases, the court sharply rejected the defendant’s argument that the plaintiff should be limited to damages based on diminution of property value. The court in Glavin v. Eckman was particularly emphatic. It wrote,
“Glavin had no desire to sell the property. Indeed, his plan was to hold on to the lot and utilize its mature oak trees to provide shade for a pond he planned to create from the existing wetlands, and as a backdrop to a tranquil view from his house lot. Regardless whether the planned restoration would increase the value of the lot as a building site and regardless whether the wrongful cutting had an impact on the market value of the lot, elimination of the trees wrought a significant change to Glavin’s property. The trees represented decades of natural growth that could not easily be replicated. Moreover, any diminution in market value arising from the wrongful cutting was of less importance than was the destruction of the special value that the land and its stand of mature oak trees held for Glavin.” Id. at 319.
Applying the restoration measure of damages, the jury in Glavin v. Eckman awarded the plaintiff $30,000 for his ten wrongfully cut oak trees, which was trebled under the statute to $90,000. In Ritter v. Bergman, applying the restoration measure, the judge awarded the plaintiff $43,594 for his trees, which was trebled to $130,782. These types of results, and the decisions of the Appeals Court affirming them, are a cautionary lesson for any person who is cutting trees near the boundary of his property in Massachusetts. As your neighbor will soon discover, trespass to trees can be a very costly proposition.
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