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  • Writer's pictureW. Cory Reiss

Trespass to timber cases reveal the roots of many disputes.

Our client had already caught her neighbors clearing trees from her wooded back lot twice and instructed them to stop, but then she heard their chainsaw again.

The neighbors were back to carving out a secluded Shangri-La for themselves on her land.

A temporary restraining order halted the cutting, but trees and bushes were gone for good. A survey made it clear the neighbors had crossed a real line — the property line — which made them liable under a statute prohibiting the offense of “trespass to timber.” The statute allows property owners to collect twice the value of timber taken from their land without permission.

As timber within the Wilmington city limits goes, however, our client’s trees weren’t exactly commercial grade. Their value was mainly aesthetic and in providing privacy — which can be hard to measure in dollars and cents.

But the North Carolina Court of Appeals recently pointed out that one way to value the loss of ornamental trees cut from residential property is the cost to replace them, which provides a good measure of the “diminution in value” of the real estate caused by the loss of trees. Faced with irrefutable liability and a viable measure of damages that could be doubled, our clients’ neighbors settled.

The recently decided Court of Appeals case, however, illustrates a problem in litigation: sometimes the lawyers use completely different standards to measure potential damages at stake. In that case, a power company’s contractor clearing an easement overreached and removed two fifty-year-old, thirty-foot wide Bloodgood Japanese Maple trees from a residence and injured a third. The trial judge halted a jury trial by ruling the injury was just nominal, meaning a technical injury worth virtually nothing in real dollars. The judge directed a verdict in favor of the defendants. The Court of Appeals reversed on the grounds that the homeowners should have been allowed to show the jury evidence of how much it would cost to replace the trees.

Liability wasn’t even contested, so we might think the parties could have found a compromise and settled without going all the way to trial. The reason that didn’t happen is probably that the defendants clung to a theory of damages pinning the value of the timber, after being cut, at a mere $50 or less for “not even… particularly good firewood,” while an arborist for the owners measured the replacement value of the trees as $25,800 each.

With that decided, the next jury could award more than $100,000 in a case the defendants valued at about $100.

At the root of any case is knowing what it’s worth.

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