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<Moore>
posted
I have read most of the conversation on this site, but I do not see any discussions on the situation where the value of only a portion of certain branches is to be determined. My neighbor hired a tree service to cut the branches of several of my trees that overhung his fence. Although he may have had the right to cut certain branches, he had no right to cut them back as far as he did. He cut many of them all the way back to the tree. So, I am trying to determine the amount of the damage where he had a right to cut some of the branch but cut 1 to 6 feet too much.

Any thoughts? Most of the discussion is regarding trees that are completely destroyed.

Thanks.
 
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<James Causton>
posted
Reply to post by Moore, on April 07, 2003 at 21:19:42:

This situation could become very involved and complex. There is a distinct possibility that you are not able to substantiate any loss. If the tree company that did the work claim that they pruned the branches back to the most appropriate point, for the benefit of the tree, rather than exactly at the property line, it would appear reasonable that you suffered less of a potential loss than if the branches had been cut exactly at the property line.
It will be interesting to read other folks input on this matterm

Good Luck, James.
 
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<Guy>
posted
Reply to post by Moore, on April 07, 2003 at 21:19:42:

Only an arborist on site can assess the damage done byremoving the branch portions over your property, which are your property. The branch portions over your neighbor are, or were, your neighbor's. While their rights to remove them were not absolute, Moore should first know that "tree" and "trunk" are not synonymous.

I think James is right about relative damage, but it's clear your neighbor trespassed when the parts over your land were taken. Whether it's worth pursuing can only be known after an arborist gives you management options and prognoses. See www.asca-consultants.org or www.isa-arbor.com to find an arborist.
 
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<Lew Bloch>
posted
Reply to post by Guy, on April 07, 2003 at 21:19:42:

As wisely suggested, have the "damage" assessed by an experienced consulting arborist. If the neighbor tresspassed, they broke the law, but what are the damages.

One method is the cost of repair which would assertain how much it would cost to re-prune to re-balance, or whatever.

Another method is to ascertain the value by the trunk formula method and estimating what percentage of the tree was removed and do the math.

Just maybe, unless the tree is now a real eye-sore, is to bite your lip and go on----

Lew
 
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<Scott>
posted
Reply to post by Lew Bloch, on April 08, 2003 at 12:01:58:

I think Lew's advice is sound. Notwithstanding the idea of technical trespass (yes the neighbor's workers were at the very least in your airspace w/o permission) do you really want to create more long term ill feelings with a neighbor by going to court over that?

The key thing for an arborist to tell you is whether the tree was damaged by the over the line trimming or if trimming back to the trunk was in fact the most proper way to do it and the cuts were properly made. If the latter is true you may not even want to pay for an opinion of value of the portion of the branches between the boundary and the trunk.

Say the tree whole and entire is worth X, the branches removed were worth 0.2X but of that 0.18X was over the boundary and the neighbor had a right to remove and only 0.02X was between the boundary and trunk. So 0.02X is the maximum art issue and if it was the most reasonable and proper thing for the tree to remove it may not be recoverable anyway. Then consider court costs and the long term costs of taking a neighbor to court... maybe bite your lip.
 
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<Moore>
posted
Reply to post by Scott, on April 08, 2003 at 17:29:54:

Thanks for the thoughts. However, I have already had several problems with this neighbor in the 8 months I have lived here, as have all of the other neighbors in our neighborhood. Also, I am an attorney, so there is very little dollar cost to me for filing the lawsuit. Plus, our state has a law which requires treble damages for unlawful; cutting of trees. I found a local arborist who has testified in court before, so I will be hiring him. As to the long-term ill-will with the neighbor, unfortunately, it is already there. Hopefully this lawsuit will cause him to settle down and leave my family and the other neighbors alone.

Thanks aagin for your thoughts.
 
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<Guy>
posted
Reply to post by Moore, on April 09, 2003 at 07:35:09:

Hopefully this lawsuit will cause him to settle down and leave my family and the other neighbors alone."

Aggressive litigation on behalf of trees is rare, at least in my area. Trespassing is serious business. I hope you and your arborist let us know how the case unfolds.

Above all, attend to the maintenance needs of your tree so it withstands the loss of those branches. You might want to save receipts and add their amount to the suit.
 
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<Lew Bloch>
posted
Reply to post by Moore, on April 09, 2003 at 07:35:09:

Far be it for me to advise a lawyer on law issues, but it seems to me the damages may be quite small. Is trebling a couple of hundred dollars worth it? I don't know what state you are in, but I am in a treble awards state where the trebling is not automatic. As a matter of fact, treble damages has never been awarded in MD.-----Until now. I am on a case where treble damages were not allowed by a lower court, but the appellate court over ruled that judgement and we are awaiting a new hearing for damages only.

Just my 2 cents----

Lew
 
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<Guy>
posted
Reply to post by Lew Bloch, on April 12, 2003 at 10:30:32:

Lew that news about the override is welcome to me. i'm also in a treble state and haven't found such an award except in cases of timber rustling. We don't have many cattle so the rustling types have to pick on something...

Anyway for the same reason I hope Lawyer Moore pursues the suit and prevails. As he said, it's not for the $ but to change behavior. That deterrent effect imo is the best effect of successful appraisals--getting defenseless trees more protection from humans.
 
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<Scott>
posted
Reply to post by Guy, on April 15, 2003 at 17:30:45:

I'll add two observations.

First Lew is in point about damages. Mr. Moore must distinguish the recovery of damages from the more basic idea of the court recognizing a wrong-doing. If the latter is more important that's fine. But then the treble damages provision is not a real consideration... it should not matter. If t.d. do matter Mr. Moore must look to the measure of damages admissable under whatever statute will be used to seek remedy. It CT, for example, if damages are sought under a t.d. statute the case law is often read by judges to limit measure of damages to lost timber or cordwood value which in a case like this will be deminimis. Three x zero = zero. The earlier discusion went through some basic math about the damages likely being only a portion of what was cut which may only be a small portion of the overall tree value EVEN IF a depreciated replacement cost measure of damages is admissable.

Second, Guy, we have discussed this before. It is perfectly appropriate for any of us to advocate for trees or for deterrant public policies in a forum like this or in a general educational role. That is not a proper or appropriate stance for anyone acting in an expert role for a plaintiff like Mr. Moore. Any "tree hugger" values or beliefs must be checked at the door both in an expert report or in expert testimony. The more stronly we might hold those beleifs in day to day life the more vigorously we must be to keep them from biasing our expert opinions.
 
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<Guy>
posted
Reply to post by Scott, on April 17, 2003 at 18:03:16:

Scott mentions that for treble damages to apply in most courts in CT the award is based on timber/cordwood value. I wonder if before-and-after RE appraisals are also commonly used there, and if that might affect Moore's case.

This isn't academic curiosity. I was just made aware of a 1999 Appeals court decision in NC which calls for either RE or timber valuations. That case was cited by a lawyer who had assigned me to proceed with an appraisal based on replacement cost. Now he's doubting he can use that methodology, based on his subsequent unearthing of the 1999 case, and is asking me "what I think".

What I think is, 1. he should have done his research before the assignment was made, and 2. If assigned, I'll research other applicable case law which may support methodologies other than timber or RE value. This experience seems to refer to the previous question of the appraiser having familiarity with case law and applying that at assignment time. Should I tell future clients about it if this precedent causes this attorney to lose this case? That would imo be outside my role, and providing legal advice. How a lawyer uses a report is the lawyer's job to determine.
Should I research case law on my own to get a more thorough understanding of applicable case law? Maybe I need to, if that one case is repeatedly cited as a reason not to appraise tree value.

And thanks for the repeated gentle reminder to stay objective by leaving biases behind. Something for tree-huggers and all others to keep in mind.
 
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<Scott>
posted
Reply to post by Guy, on April 21, 2003 at 06:13:16:

I think, but am not sure, that in CT before and after RE value (i.e. diminution of value) may also be admissable. My sense is in a case like Mr. Moore's thta might also be deminimis.

My experience was similar in a case in CT. I prepared replacement cost testimony and only just before trial did the attorney recognize it might not be admissable. This was not really a glaring error on his part becasue the potential tree value was just one tiny part of a much bigger case which would never have been brought for the trees alone.

Is it the attorney's job to just do whatever with the report you write? Sure. But IMO if I have knowledge that a RC report may not be admissable I feel a responsibilty to have the client confirm this with the attorney or have me talk with the attorney before I spend any of their money on that report. I talk myself out of more cases than I take in CT.

The problem with RE opinions is that RE appraisers are not trained to look at tree values. On any given day any group of qualified RE appriasers with good comp data in an active market can easily be +/-5% from a mean opinion. That's a spread of 10%. Assuming total landscape might contribute 15% any single tree can easily be lost in the 10% error range. Who says a,b or c buyer might not pay a few percent more or less with or without that key tree? So there is a role for the tree apprasier to work with a RE apprasier.
 
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<Moore>
posted
Reply to post by Moore, on April 07, 2003 at 21:19:42:

I am about to reach a settlement with my neighbor, so I cannot discuss the findings of the arborist I hired, yet. I definitely recommend finding an arborist who is experienced in testifying in court in a specific jurisdiction. Although he is certainly not a lawyer, he clearly understands the legal standards that apply in this jurisdiction. He also recommended a lawyer to me that handles tree cases.

I will provide an update as soon as the case is settled. Then, hopefully I will not have to seek further assistance with my favorite neighbor!
 
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<Bob Wulkowicz>
posted
Reply to post by Guy, on April 21, 2003 at 06:13:16:



And thanks for the repeated gentle reminder to stay objective by leaving biases behind. Something for tree-huggers and all others to keep in mind.


What about loss of consortreeum?


Bob Wulkowicz
 
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