Adjoining property owner began land clearing and
ignored "no trespass" signs and painted
boundary trees as well as verbal warnings. Over an acre of land was cleared. To limit their liability, they burned much of the evidence that we needed to prove our case even though we got an injunction to stop the destruction. They were found guilty in criminal court and guilty of contempt of court. However, only a few stumps remained for our arborists' appraisal. Since these trees were part of a protected historic landscape (eligible for listing with the National Register under a rural historic landscape classification and part of a stewardship program), we considered them real property - part of our landscape and not for sale. However, our damages may hinge on the technical interpretation of fair market value of timber as established by a registered forester (statute may not allow jury to consider a certified arborists' evalation). They claim damage should be limited to the price they received per board foot for our trees, we are assessing the damage on a replacement value.

Has anyone had experience in similar cases? Comments and assistance greatly appreciated!

Reply to post by Jan, on December 03, 1999 at 23:08:40:

First, anything following is not based on any specific understanding of staute and case law in your, jurisdiction, which will govern. But here are some thoughts.

IF law requires timber value to be the only applicable measure of damages, is it the value actually received by the logger on conversion or is it the value of which the landowner is deprived? There is something quite absurd - but I've seen it applied by courts nonetheless - in saying the measure of damages is the salvage value of the damaged property... so the more you trash the property the lower the damages! Where is the equity in that?

I have heard of this type of doctrine but it was interpreted as the damage being related to the value removed from the property. If someone came in and cut your trees but left the timber on site, you are not damaged. Maybe they did you a service by providing some of the conversion expenses for free... your net will be higher. This is distinguished from the interpretation you describe which relates to value received by the offender. In either case, it is archaic in that it sees only commodity value in the asset... no ecological, amenity or other type value as growing stand.

Was the land already under stewardship or was it evaluated by a professional forester or other qualified person? If so there may be a competent record of the nature of the destroyed property. Is the record clear that the offender burned the trees and stumps? And that there intention was to destroy evidence? Did they treat other areas outsid ethe trespass differently?

There is a catch 22 in the contribution to FMV of land. "Historic" value is not always reflected in a premium at market. The market may not care. The key issue, theoretically - the law may not support you - may be that as part of the property that you had no intention of selling, market value is irrelevant. There was a value in use to you. Will the law allow other reasonable measures of value in use... such as cost of cure? There are cases in various states recognizing cost of cure awards disproportionate to contribution to real estate value... even gretaer that real estate value. I don't have citations right at hand... are you out there Lew?

Reply to post by Jan, on December 03, 1999 at 23:08:40:

Regarding the assessment of missing trees-
Aside from the legal ramiffications Scott discussed:

The best was to assess the losses is to compare to a nearby patch of woods that was not disturbed. Sample an appropriate number of plots of a similar woodlot, and extrapolate that data to the cut area. Using the immediately adjacent woods would be best, if possible. Make sure all the details are as similar as possible. This will give you a reasonably accurate count of numbers of trees, species, etc. Then use these figures for your analysis.

What method is applied may well be determined by the court. A lot depends on your attorney, though, and whether he can successfully argue for the court to consider alternate methods, since the land was not held for timber production.

Reply to post by Scott Cullen, on December 03, 1999 at 23:08:40:

Thank you for your comments Scott.
Yes, the land was already under a (USDA) Forestry Stewardship Program and the stand identified in the management plan as Stand 3 to be maintained for as long as possible for wildlife habitat, windbreak, etc. The plan was developed for implementation more than two years before the trees were taken and a copy is available as supporting documentation.
Yes, a certified arborist has been our consultant for the past four years. He semi-annually inspects/treats our oak allee as well as other significant trees on the property so, of course, we have his assessment of the replacement values. These trees were not something we just became attached to after they were taken. They were part of our landscape and included in our overall management of the property's natural resources.
The record is quite clear about their burning the debris as evidence. A court has issued a contempt of the court order and they were fined.
Other debris piles remain untouched, so yes, again, they did treat areas outside the trespass areas differently. (good point, by the way.)
As to what the court will allow, I can only wait and report after the case is heard and hope
that we will be able to find sympathetic jurors who would reject the defense counsel's argument that we should be compensated only the price they received per board foot.
At greater risk in this particular case is to the very foundation of private property rights -particularly fee simple ownership, in which our right to exclude others, refuse to sell, and to restrict the use of our property, among others, is under attack. An unfavorable decision in this case would threaten rights afforded us by our Constitution. It is therefore, imperative, that a Court rule favorably in this matter...
lest we all won't see the forest for the theives.

Reply to post by Jan, on December 04, 1999 at 06:39:14:

Your last point is very well taken. And unfortunately case law already exists that does very little to reinforce the idea of the rights you outline, because trespassers are not heavily penalized.... why hesitate to take a chance on cutting your trees if the worst you get is a slap on the wrist?

One thing you might look to is the administrative penalties imposed by public agencies in your state for unauthorized tree removal. Watersheds, park districts, municipalities, etc want to set a clear standard that such cutting is not OK. There is no idea of "marginal" value ("oh one tree out of 10,000 is insignificant") or if there is the margin is zero, each tree recognized as having complete individual value. You'll see administrative penalties like "caliper inch for caliper inch" or "basal area for basal area" plus understory, site restoration, pest management and establishment expenses. If not settled administratively the penalties may have been enforced by the courts.

I think the issue must be presented clearly to the jury and the judge by counsel.

If there is a real risk to the protection of property rights or the environment if those rights are eroded maybe you can find an ally in outside groups who can provide backup, maybe amicus curiae briefs.

Reply to post by Scott, on December 04, 1999 at 23:57:50:

This is a typical cost of cure case, and should be handled as such. Scott's advice of measuring sample plots is good, and right out of the cost of cure field form, which will be a great document to use in presenting the case. IMO, the most important part of this case is to get a really dedicated lawyer, and a good consulting arborist as a lot is at stake in such a case. These trees were not intended to be timber trees, and the best intended use of the property is important.
GOOD LUCK!
lew

Reply to post by lewbloch, on December 05, 1999 at 08:19:00:

Would it be better in this case to start lobbying now for better legislation or after the case is closed?

Would bringing the media in now hurt Jans case?

Reply to post by Jan, on December 03, 1999 at 23:08:40:

alt.forestry and alt.agroforestry are two palces I have seen tresspass and timber theft discussed also.

Reply to post by Russ Carlson, on December 03, 1999 at 23:08:40:

I agree Russ. I had a similar case and had to conduct samples to prove the loss of evidence. I also found aerial photographs very useful as I was able to show beyond doubt that the area had once been a contiguous forest of similar timber types, and thus, that the sampling areas I used were valid as sample plots that could reasonably represent the area in question.

Julian Dunster

Reply to post by Scott Cullen, on December 03, 1999 at 23:08:40:

question? how many electric utilty treetrimmers are covered under a group 4 retirement category? for example massachusetts. trying to get this for current employees......union negotiating afscme....
please respond if you have pertinent information. thanks..joan