Scott brought up a point in the "Be Reasonable" thread about the benefits to non-owners.

When is is it appropriate to place a value on a tree for a non-owner? And how far do the non-owner's rights go in determining the disposition of a tree. A street tree can obviously add to the value of a property, but can the property owner then make claim to the value, if he does not own the tree or the property it is on? Is there a difference between a tree on public property vs. another privately owned property?

The concept here is tenants in common. How is the value shared, if at all?

Reply to post by Russ Carlson, on April 17, 1999 at 15:24:32:

I don't know that the doctrine of 'tenancy in common' bears globally on this question. If tenancy in common exists by explicit agreement or can be implied it probably does bear on the apportionment of benefits among owners. But benefits can be apportioned or even multiplied among multiple parties including non-owners.

In the case of street trees there most definitely is case law (I'll see if I can dig up a citation) that a private property owner has an actionable beneficial interest in street trees on abutting public property. The trees - like all public property - are held in the public interest. In that abstract sense all citizens are part owners. But in a strict sense they do not have title or conveyable ownership.

These threads have indicated that in the UK law has established that non-owners have amenity rights to private trees. I'd guess this is always going to be a jurisdiction by jurisdiction issue.

Owners surrender certain beneficial rights when they grant utility easements or view easements or acquire property encumbered by such easements. Non-owners may acquire beneficial rights to trees, say through conservation easements.

You must distinguish estimatable benefit from actionable or recoverable benefit. Say there is no law giving a non-owner beneficial rights in private trees. Owner A has a big beautiful tree. Abutting owners B, C, and D don't want A to cut the tree down to make room for a tennis court and have been told by a real estate appraiser that A's tree adds 10% to each of their properties' value. If A cuts the tree down they will all lose that 10% but they have no basis to recover it from A. So they go to A and offer him easements on parts of thier land to construct the tennis court in a manner that preserves the tree. (Assume that the arrangement satisfies all zoning regulations).

So the value is estimatable. Conducting a appraisal was appropriate to guide B, C and D in decision making. It was worth it to them to grant the easements to A in order to keep the tree.

So, I guess the answer to Russ's question is: it's appropriate to place a value (either to the owner or to one or more non-owners)on a tree for a non-owner when the opinion of value is useful to the non-owner client. All the basic parameters apply: purpose and use of the appraisal; definition of value (including legal or theoretical basis), defined beneficiaries and clear statement of assumptions & limiting conditions.

Reply to post by Scott, on April 17, 1999 at 15:24:32:

I disagree in principle.

I expect that issue would be determined jurisdiction by jurisdiction, as you say. I can't imagine that a jury in a state that values individual property rights highly (such as Florida or Texas) would come to the same determination as a jury in Minnesota or Massachusetts. However, I doubt that you will find many property owners who would agree that their neighbor has a financial interest in his fee simple owned residence or business. If I paid for it, then I am the one who owns it. (period)

In regard to street trees I would imagine that the adjacent property owner have claim an interest in a right of way tree by nature of his legal obligation to maintain the public greenway between the back of curb and his right-of-way line. I would expect that the argument that a private property owner has a claim to his neighbor's tree would lack the same level of strength.

Likewise a designated easement (such as for utility lines or conservation areas) generally involves some sort of monetary compensation to the property owner at the time the easement is platted. This would not normally be the case for a tree which happens to fall on an adjacent property but which no easement or agreement has been granted.

While the TFM (and other appraisal methodology) does consider the relative quality of adjacent property in setting a value, I would be careful to avoid assuming that the technique is somehow reciprocal. At least in a capitalist economy and a free nation.

It would be un-Amurikan.

Reply to post by Paul M Davis, on April 17, 1999 at 18:07:56:

I think we're pretty much in agreement Paul. Private property rights are still dominant in American jurisprudence.

There are local ordinances and state statutes that limit those rights. Zoning and wetlands are two principal examples. There is emerging law that specifically limits owners' rights to remove trees. Many municipalities require a permit to remove trees over a certain size. the MD Forest Conservation Act requires minimum tree cover on any develpoed site or an equal amount of protected offsite cover (is that accurate Lew?). And of course there is older agriculturally based law that prohbits noxious species. This all in the public interest.

That is indeed distinguished from vesting rights in other private property owners.

One point I was trying to make is that adjoining owners may indeed enjoy value from someone else's tree; and that value is discernable by appraisal; but that value (absent contractual arrangements or legal rights) is not accompanied by any rights... it's a freebee.

I agree, absent some clear cut legal basis, this is sticky business and beyond most tree appraisers. It might often require qualified real estate appraisal. TFM might be applied but could very easily be abused.

All that said, I think there can be multiple beneficiaries. The benefits may be apportioned (one pie split up) by a structured agreement or regulation. The benefits may accrue as beneficiaries increase. That pork-barrel highway extension to no-where may have no residual value after all the wages to construction worker voters stop when the project is finished. But as traffic increases and efficiencies are created and businesses created at the intersections and tax dollars generated the benefits grow. There is a direct relationship between the number of beneficiaries and the aggregate benefit.

Reply to post by Scott, on April 17, 1999 at 15:24:32:

"The trees - like all public property - are held in the public interest."

Where does this assumption come from? First the assumption that the trees are owned by the public, then the assumption of public interest. (Public interest has stronger arguements than public ownership)

Let's look at this through the eyes of a property owner who owns the land to the center line of the street, over which the street and utility rights of way / easements run. Let's say that property owner wants to cut a nuisance tree down, it drips pine pitch on his car. Under what circumstances would a municiple program insist the tree be retained, and what is their responsibility to assist with the pitch problem if the tree is retained by force?

Yeah, yeah; local laws and agreements and all, but let's talk about what is reasonable - barring specific rules of law. How should courts be guided by expert witnesses in getting their arms around common sense and reasonableness?

Best regards,
KWK

Reply to post by Kerry, on April 17, 1999 at 18:07:56:

Kerry,

My assumption was of street trees which are actually on public property and are publicly owned. If the private property owner's fee extends to the middle of the street then I would assume there is no public ownership of the land or naturally growing trees. Ownership of improvements including trees might vary based on law; deed covenants or restrictions; easements; or private agreements.

So you're right, whether the owner can cut that nuisance tree down depends on whether he owns it first and puplic policy if he does not own it and the public entity does. endless variables I guess on those policies and how 'nuisances' are defined and handled.

As far as experts go, I'd guess the first issue remains ownership. The lawyers would have to present legal opinions as to the rights. Surveyors would have to present expert opinions about where the tree really is. Joe the car detailer can testify that it will cost Y/year to clean the car. Sue the car dealer can testify that the car has a 10 year remaining life. The arborist could provide expert opinion about condition, performance (does it really make pitch? always? how much? what's to be done about it if anything?), and maybe value. Value is where it gets sticky (no pun intended). How is value defined? Value to whom? This has to be grounded in the law and the rights of the parties. To remain a non-advocate the arborist appraiser might have to say 'the tree has no value maybe even negative value to the sports car owner.' 'The tree has value to the public in that it provides shade in summer and this and that and the other thing. It will cost X to replace.' So maybe the court decides that the tree is public property. The sports car owner can take it down if he pays X - (present value of Yx10 years) or the tree must stay but the city must pay Joe Y every year for ten years to clean the car. Or maybe the court decides that it's the sports car owner's tree and he can cut it down and the city must reimburse him for court costs and legal fees.

I'm not sure 'reasonable' can be separated from the context of law, agreements, custom, precedent, acts and intentions of the parties, the judge's mood on any given day, the make up of the jury..........

Experts can merely present facts within their areas of expertise. Sometimes the courts want experts to make their jobs easier by stating explicitly what is 'correct' or reasonable.' I'm not sure that's the experts job if the facts allow alternative conclusions.

That's my two cents. I'd be interested in more input on this.

Reply to post by Scott, on April 17, 1999 at 21:16:55:

Well chaps, this is all very well, but how far should we go before anyone, anywhere can control what the tree owner can or cannot do with his or her trees? In Canada, this issue is fraught with a mix of emotional and scientific debate. In most of the case law, the issue hinges on damages caused to a tree by the non-owner, or damages resulting from the tree's presence to one or more parties. Trees can cause damage as nuisance, or as actual damage. The issues raised in this thread are well debated in the "commons" issues surrounding such esoteric things as landscape aesthetics, sense of place, and potential dopwnstream damages resulting from the actions of one or more people on their own land that may potentially affect many others. The whole issue of the the "public interest" is equally problematic. Who defines the extent of the public, and what they are or are not interested in, and how shall those deciding know if the public and its interest is being fairly represented? These are age old questions. Reasonableness is defined by the court system, and is site, time, and context specific, and evolves constantly.

Ultimately, societal awareness drives the decision making process, although even then, it typically akes many generations before major paradigms shift. I would suggest, that as arborists we have a long way to go befores society at large values trees and their benfits the way we do. Selling the message is important, but educating the other professions may be the most effective means of achieving better awareness.

Meanwhile, reality proceed apace; the antarctic ice shelf is breaking up and the next ice is still heading your way, relatively soon in geological terms.

Julian

Reply to post by Scott Cullen, on April 18, 1999 at 12:31:48:

Scott, why would Sue the car dealer be called? The guy owns a spots car now- just bought it alst week, and it's a beauty! The life of the car may be 10 years, and he may even intend to keep it that long. But at the end of 10 years, he will get another car, and the tree will still be dripping pitch on his then new car. Why even bother with the life of the car?

Reply to post by Russ Carlson, on April 19, 1999 at 12:18:18:

Hmmmm. How about the judge ruled that to KISS the jury would rule on a settlement given the life of the current car?

Maybe the court imposed a 10% discount rate (high these days!) and beyond 10 years the cost of washing discounts to $0.

The owner is 82. He has testified that this is his last car. He saved his entire working life for this dream mobile. When it dies he hangs up his driving gloves. That's why this period is so important to him. The chicks at the senior center won't be as impressed if there's pitch all over his car. Have you ever seen the sun glint off a freshly simonized fire engine red Ferrari? We can call Gladys and Mabel to testify on this your honor.

I guess the point is, in response to Kerry's query, that various experts can be called to help the court understand various issues. Some will be outside the arborist appraiser's range of competence.

Reply to post by Julian Dunster, on April 18, 1999 at 06:23:08:

"Reasonableness is defined by the court system, and is site, time, and context specific, and evolves constantly." 10-4!

"I would suggest, that as ARBORISTS [emphasis added] we have a long way to go before society at large values trees and their benfits the way we do." We have a technical appreciation and perhaps a personal fondness that society may not, that other individuals may not. Inserted into the appraisal process this may become a bias. As APPRAISERS we must limit ourselves to the facts which include how society or the particular parties in a case value trees as of the date of appraisal. Somewhere back in these threads Julian, you explained that value is subjective. It is most definitely subjective in that it is a perception of certain beneficiaries, experienced subjectively by them. Our role as appraisers (no different from a doctor who must diagnose based on what the patient proclaims to feel: "the pain is here;" or the economist who must foreast events based on consumer confidence; and so on) is to objectively consider all those facts and keep our own subjective biases out of the analysis.


There was an interesting discussion on the UKTC list about a lime (linden to us) that was historically designated on one side of a lane with branches arcing over the lane and an historically designated thatched cottage on the other side. The aphid poo fell on the thatch and mildewed releasing spores which seriously aggravated the occupant's asthma. The thatch could not be replaced with other roofing types (even if the owner wanted) because of the historic issue. The tree owner had rights and also historic constraints. Lopping back limbs would disfigure the tree and cause safety concerns over the lane. Then there were the community 'amenity' value issues that apply in the UK. Experts were called on both sides to estimate the annual volume of aphid poo production.