Timber trespass--land adjacent to customer's was logged. Logger cut 5 of customer's trees and skidded many logs across their land and stream. Site was passive recreation/hiking area for their kids. Now unusable for years until new canopy closes in. High cost of restoring land to original condition. Site is small % of a modest residential lot.
I think the owner should have recourse for this damage to be "cured" but cost is way beyond the usual reasonableness parameter.
How to proceed?
Guy

Reply to post by Guy Meilleur, on May 22, 2001 at 10:28:59:

Retain a GOOD lawyer familiar with such cases. there is case law where awards have been given for more than the entire value of the real estate. There is 1 case in my book where an award of twice the value of the property PLUS emotional distress was upheld.

good luck!

Lew

Reply to post by Guy Meilleur, on May 22, 2001 at 10:28:59:

Lew's advice is good. You need not just a "good" lawyer but one familiar with the cases in your jurisdiction. A quick look at statute won't do. There is wide variation in both from jurisdiction to jurisdiction and even within jurisdiction depending on circumstances.

From an appraisal standpoint you have to ask "reasonableness related to what?" Most of the literature talks about tree value being reasonably related to its contribution to fair market value of the real estate. That may be what the law allows. Some states only allow the value of lost timber or cordwood, so you'd have to be resonably related to that... cure would have no relationship to that at all. If the law supports a value in use then market value does not apply at all.

As an example look at wetlands. They are protected resources. In many jurisdictions if you damage them you restore them. Period. The cost of that cure can exceed the reasonable contribution to market value... wetlands in fact often reduce the market value which directly or indirectly is why people damage them in the first place.

But the law has to support you. The law is part of the fact pattern. Reasonablness is in the context of the facts, not only market value or any other single benchmark.

Reply to post by Guy Meilleur, on May 22, 2001 at 10:28:59:

Gentlemen, thanks for your comments. A local lawyer is checking case law. judging by the past experiences in NC, it will be scant.
I recall at the ASCA conference at Napa, Jim Ingram detailed a case in Iowa that settled for $250k or more. the property was a modest campground on a river.
I'm still digging for my notes but I recall differences in local precedents helped to establish the loss. If we find unfavorable precedent we are thereby limited in our valuation or liable for error, right? Unless an overriding law such as that protecting a wetland or a highly valued river system, such as the one in this case, can be applied.
If I take your advice accurately, the attorney's research is to help establish a cure in the context of local law, and simultaneously keep the consultant out of the legal trouble that the error of overvaluing can bring.
And no one needs that.

Reply to post by Guy Meilleur, on May 22, 2001 at 10:28:59:

My 2-cents worth- Don't forget that it may not be the arborist's job to decide reasonableness. You might leave that to the trier of fact, perhaps offering several methods of determining value.

Reply to post by guy Meilleur, on May 22, 2001 at 10:28:59:

>>highly valued river system, such as the one in this case,

I remember hearing that NC has been concerned with degradation of waterways. Maybe this is the better angle and that the trees are suporting the boundry of a roparian area. Get the veiws of a hydrologist or other disciplins that apply.