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<Moore>
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Believe it or not, my neighbor and the tree service he has hired was at it again last week. Although I have instituted a lawsuit for trespass and conversion, my neighbor was not satisfied. He hired the same tree company to cut more branches - the same tree company that I am already suing. The tree company employee informed me that I do not own the air above my land therefore he can cross over and cut any branches he chooses. Of course, as every first myear law student knows, the tree cutter was incorrect.

At this point, the cutting of the trees is no longer an act of negligence or mistake, rather it is intentional, as is the trespassing. Does anyone have any suggestions as to valuation or damages when the act is an intentional act such as this? Any insight would be greatly appreciated.

By the way, my neighbor and the tree company called the local police to have me removed from my own property because I was standing beneath the tree they wanted to cut. Luckily, the police realized that I had every right to be on my own property.
 
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<Scott>
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So, I guess the May * settlement was not final. Very sad behavior.

You are the lawyer and should know better than we what the law in your state allows. But my undersatnding is that the valeu will still be what the value is... for either the first cutting, the subsequent cutting or the sum of those. Just how that is determined will depend on what you state allows as a measure of value or damages.

The senod act(s) of trespass which are now clearly intentional may trigger additional damages or penalties... civil or criminal. But I would think those are up to the court to assess and impose. They may be based on your loss in value. But the value is separate from those additional damages or penalyies related to the intentional nature of the trespass.

My earlier posts of April 91 & 21 outlined some of the valuation math and the vagaries of state law in terms of measures of damages.

Since then I've had some exposure to NY state law and the case law seems to be that the LESSER of reaonab;e restoration or diminution of property value apply. I have been involved in cases in NY where the judge found both of those measures "inequitable" and.... urged shall we say the parties to reach a settlement in between.

SO it's back to basics: what's your goal? What costs in addition to possible recovery are you willing to incur? If you want to fight it through get good solid opinions on reaonable and/or equitable damages and fight it through. The law might slap uou upside the head or equity may take care of you.

At this point, can you get some sort of injunctive releif or restraining order to protect your property rights? Do you have a cause for action becasue the police were called to restrict your reasonable enjoyment of "your " of your "cast;e?" Wasn't it Mr. Justice Holmes who affirmed your rights?
 
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In my town, people do not have the right to touch trees that are not in their land, even if some branches is over their land. The tree, branches and fruits belong to the owner of the tree. So if you have an apple tree, your neighbor don't even have the right to eat apples which fall on his land.

In this case, the priority is the trees protection, not the people rights protection!

Unfortunately for you, I can see that the laws in your city are stupids! Confused
 
Posts: 5 | Location: La Malbaie, Québec, Canada | Registered: Wednesday September 10, 2003Report This Post
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