The question here is how best to calculate loss on volunteer plant material, and how does that impact the cost of cure? One neighbor cleared a 50 long strip of land (about 15 feet wide) between his back property and his neighbors back property removing a spruce, taxus, apple, and an unknown number of volunteer norway maples. The strip was by all accounts volunteer material except for the spruce, taxus and apple. The result is that the non-cutting neighbor was not consulted and when he discovered the cutting had been done, a berm had been placed over the stumps (also on his land to an extent) so a count of stems is not possible.

Owner B (the non-cutting neighbor) has one poor photograph of the back yard that establishes that neighbor A's house and garage were fully screened from his yard and pool prior to the cutting. They are now fully visible along with outdoor lights on a motion detector that seem to go on frequently. Much time has passed, the neighbors do not speak any longer, and both have had surveys conducted that show differing boundaries. The non-cutting neighbor wants his screen back and has gotten estimates for planting the 50 foot long boundary and moving the berm off of his property. Does the loss of volunteer material play into the cost of cure?

The only absolutes are that trees are missing, they were volunteer mostly, and the stumps are under 3 feet of disputed soil and have been for over 2 years.

Reply to post by Wayne Cahilly, on March 01, 2000 at 09:49:17:

Wayne,
You need not inventory the lost plants, nor try to duplicate what was lost. You may design your own planting, using similar plant matertials to as nearly replicate the lost landscape effect as possible or practical. You may also add in maintenance costs to make sure the new plantings survive.
Very treely,
Lew

Reply to post by Wayne Cahilly, on March 01, 2000 at 09:49:17:

It's not clear in your post if the trees in question were all on the cutter's property, all on the plaintif's property or straddling the line. That's point A in my mind. Somebody's got to establish which trees are plaintiff's (through fee ownership, easement or x interest) to claim damages for. Dunno if that means inventory of stumps relative to surveyed line (you wanted to buy ground penetraing side scan radar anyway, right?), agreement by parties to % allocation, SWAG or waht.

Point B. Lew's approach is valid in the abstarct. Estimate the lost screen, cure it. Inventory of stems is not needed to determine physical cure. But determination at Point A is needed to determine damage to plaintiff.

Point C. The volunteer issue in my mind has nothing to do with determinations of ownership or rights or physical cure. But the law in some jurisdictions may distinguish volunteers from planted stuff (fructus naturalae from fructus agricolae, while I think that may be archaic doctine rooted in agrarian times and poorly applied to amenity residential trees, the courts might not agree).

Scott

Reply to post by lewbloch, on March 01, 2000 at 09:49:17:

Lew as a technical point, I think it's useful to distinguish "establishment costs," which are necessary to get the replacements "established" according to accepted guidelines from "maintenance expenses," which would have been regular and ongoing in the situation... if damaged paty was incurring them before it's not damage... if damaged party was not incurring them before they would not be made necessary by the damage... either way it's a wash.

I think it's useful to characterize establishment expenditures as "capital costs," part of the replacement package, without them the installation is not complete; and to characterize "maintenance" as regular "operating expenses..." they don't relate to the installation or cure.

Reply to post by lewbloch, on March 01, 2000 at 09:49:17:

Glad to have your input, I didn't think inventorying the stumps served any purpose, but the homeowner was seriously stuck on the point and after a while it makes you wonder who needs the review.

To answer Scotts question, it is completely unclear what percentage of the screen was on the cutters property. This is one of the sticky issues and may require the berm be moved just to settle it if nothing else. There were at least seven trees on the non-cutters property as evidenced by exposed stumps. Everything else is covered.

As best I can tell there was little or no ongoing maintenance taking place on the trees that were lost. The lawn was mowed now and again but that seems to be it. Establishment costs could be substantial. There is a grade change requiring tall plant material to establish a screen at the outset, most likely 4 to 5 inch material.

Thanks again for your comments

W

Reply to post by Scott, on March 01, 2000 at 17:52:31:

Gentlemen, (you too, Scott)
I think you would have a good argument to have the screen planting replicated, even if some of it was on the neighbor's property. This may be a good one for Johnny Cochran.
As to the cost of maintenance to establish the new plantings; Of course it should/could be in the installation cost. It is optional just how much,if any the appraiser should put in the appraisal. sometimes I do, and sometimes I don't. The guide is a guide is a guide is a guide.......
very treely,
lew