While clearing my lott for construction of a new home the
operator of the excavator thought he was doing everyone a favor
by reaching about 2 ft across the boundry line and removing a
dead 30 ft tall black pine from my neighbors property. My neighbor
is furious and threatening to sue us. I have offered to plant a
new tree in its place,(dont know what eles to do). What are the
limits of my liability?

Reply to post by Bob McCabe, on March 24, 2001 at 13:25:23:

That could well depend upon the "actual loss" that your neighbor might claim and how well his claim against you is presented. I can easily see someone arguing, on his behalf, that the dead 30ft Pine was the greatest thing in the county for wildlife habitat!!!; and now your contractor destroyed it. Basically,the way I see things, if he sues, your limits of liability will be set by the legal process. Maybe you could find out what he wants and try and reach an amicable agreement.
One other point is that if your contractor took it upon himself to make the decision to cross the boundary, and you are being sued as a result of that, you may have a case against him, Sounds Ugly, Good Luck, James.

Reply to post by James Causton, on March 24, 2001 at 13:25:23:

James,
Thanks for your quick response. Of course, since we are going
to be neighbors with this guy our first priority is an amicable
resolution. We are located in Mass. and the owner of the excavation
company ( who, by the way, was contracted by the builder and not by
me) tells me that in Mass. one can be held liable for the lumber
value only. Does this sound correct? In addition to being dead the
tree was leaning heavily over our property line, nearly half of the
tree was over our driveway.

Thanks again

Reply to post by Bob McCabe, on March 24, 2001 at 22:27:30:

It sounds like the neighbor is trying to make a quick buck off an unintentional act. I'd imagine a free meal for he and his wife at their favorite restaurant might be a reasonable counter offer, or something else of equivalent value that he'd like. It'd be a cheap investment in good neighorly relations. It may be that his issue is really more a perception of an insult, rather than the real value of the tree. You'll of course need to discuss the matter with him to find out what he'll accept willingly.

There was probably "trespass" onto his property involved. This would be a criminal matter and would be the liability of the contractor and not you. In most states that would require a warning as to the location of the property line. In some states you would be allowed to remedy the overhang onto your property by cutting back to the property line, but not be allowed to remove the stump. However, the damages caused by the trespass might be your responsibility. What you really need is a Mass. attorney. Each state varies according to state law and past predicent.

Generally, the damages would be determined through civil rather than criminal recourse.

The "Guide for Plant Appraisal" gives the following methods of appraisal.
1. Replacement Cost Method (Largest Commonly Available Transplantable Tree) usually used only for smaller transplantable sized material.
2. Trunk Formula Method (Probably the best method used here). A dead tree isn't worth much under this equation. (probably $0.00) The intrinsic health and landscape value of the tree, and cost of potential damage to be caused by a dead tree would need to be considered.
3. Palms (does not apply here)
4. Cost of Repair/Cost of Cure would be the cost to return the situation to the original condition. This would use an estimate as to the restoring to the original condition, whatever wildlife value, maybe the cost of nesting boxes, bird feeders, and whatever other economic "value" could be established.

Timber value could be used, but it isn't going to be a great deal for a single yard tree, either.

You can contact American Society of Consulting Arborists for a local consulting arborist to give you a written report. The report might cost more than the tree.

Reply to post by Bob McCabe, on March 24, 2001 at 22:27:30:

The best alternative here (assuming the suggested 'neighborly' appeals don't work) is probably to have a consulting arborist check the situation. Determine why the neighbor felt the tree was important, and figure out where the value of the tree really lies.

The American Society of Consulting Arborists can recommend highly qualified arborists and consultants in your area. Their web site and database is at

http://www.asca-consultants.org

or contact the main office at

American Society of Consulting Arborists
15245 Shady Grove Road
Suite 130
Rockville, MD 20850
(301) 947-0483