If your neighbor or their tree service cut down trees on your property, you are likely entitled to damages. Furthermore, if the trees were cut down accidentally (usually because of miscommunication or a misjudged property line), the neighbor’s homeowners’ insurance or the company’s liability insurance should provide coverage for the incident. In other words, if your trees were cut down, you may be able to get compensation by filing an insurance claim and without ever having to bring a lawsuit.
But what kind of damages are you entitled to for your destroyed trees? And how are they calculated?
As noted in a previous blog on the subject of timber trespass, there are different ways to calculate damages in these cases. However, the primary two kinds of damages are based on “replacement cost” and “stumpage value.”
Stumpage value is the measure of damages used for violations of RSA 227-J:8, the timber trespass statute in New Hampshire. RSA 227-J:8 applies when trees are destroyed either negligently or intentionally. The statute requires that the tree owner be awarded damages equal to the “market value” of trees, multiplied by a factor of at least 3 and not more than 10.
Recent legislation has defined the “market value” of the tree as the “stumpage value.” See RSA 227-G:2, XII-a. The “stumpage” value is the value of standing timber before it is cut; that is, the value landowners are typically paid when they sell timber. This definition of “market value” reflects that the statute is “intended to protect trees as a marketable resource.” Motion Motors, Inc. v. Berwick, 150 N.H. 771, 774 (2004). The amount of the statutory multiplier is then determined by the factfinder based on the egregiousness of the defendant’s actions.
Stumpage value is typically calculated by an arborist, forester, or logger. By statute, factors in determining stumpage value include the location of the timber and the quality of the wood. RSA 79:1, III. Of course, the species and amount of timber will be the other driving factors.
The State of New Hampshire Department of Revenue publishes tables of “average stumpage values” for various common types of lumber. These average values are calculated twice a year based on a survey of local foresters. As the tables reveal, the “stumpage value” of trees can vary widely based on species. Oak trees, for example, may be worth almost ten times red pine or hemlock trees. The value of white pine trees is somewhere in between. In any event, the “market value” of trees is not likely to be a large amount unless many trees are destroyed. Therefore, in many cases, statutory damages are unlikely to “make whole” an injured landowner.
Fortunately, RSA 227-J:8 provides for statutory damages “in addition to any other civil or criminal penalty allowed by law.” Therefore, a tree owner is entitled to statutory damages plus the multiplier and other categories of damages, such as compensatory damages (e.g., replacement cost). Woodburn v. Chapman, 117 N.H. 906, 908-9 (1977).
In most timber trespass cases involving residential properties, “replacement cost” is the appropriate measure of compensatory damages. Simply put, “replacement cost” is the amount of money it would cost to replace the felled tree with an identical tree of the same size, species, and condition. “Replacement cost is allowable as a measure of damages . . . [where] there is substantial evidence of the owner’s personal residential and recreational use of the land.” Morris v. Ciborowski, 113 N.H. 563, 566 (1973).
In many situations, it is impossible to literally replace a felled tree. The largest trees available for purchase and replanting are usually not more than 10 feet or so in height, and often only smaller trees are available. Therefore, arborists must use mathematical calculations to estimate the hypothetical “replacement cost” of a large tree.
Replacement value of a large tree (e.g., a mature tree 40-50 feet in height) is usually calculated using the “trunk formula method.” The trunk formula first determines the total area of the felled tree by squaring the diameter of the trunk and multiplying it by 0.785 (i.e., area of tree in square inches = d2 x 0.785). A similar calculation is performed with the largest available replacement tree in order to determine the “per square inch” cost of a replacement tree on the market. Once a “per square inch” (or “unit”) cost is calculated, the formula multiplies the unit cost by the total square area of the felled tree. The product of these numbers is the “basic tree cost.”
Once the “basic tree cost” is calculated, adjustments occur to that figure based on the tree’s species, condition, and location. These adjustments take the form of percentages.
Each species of tree in a geographic region is assigned a “species rating” by local arborists depending on various factors. For example, a species’ rating may depend on its hardiness, adaptability to weather conditions, longevity, aesthetic appeal, and resistance to disease. In New England, a white poplar tree has only a 20-30% rating, while a white oak has a 90-100% rating.
Similarly, arborists have assigned “location ratings” to certain types of property locations. For example, a tree on a residential lot or park may have an 80-100% rating, while a tree in the middle of the woods will have a much lower rating.
Finally, the appraised tree’s condition must be assessed. Condition is a measure of the particular tree’s health and structure.
The basic tree cost is multiplied by the species, location, and condition ratings for the tree. This usually results in a reduction of the starting figure. The final number is the “replacement value” of the tree in question. For example, if a tree’s “basic cost” is $20,000, and it has a species rating of 70%, location rating of 95%, and a condition rating of 80%, the tree’s replacement value will be $10,640 ($20,000*0.70*0.95*0.80).
The above description is simplified. In order to get an accurate assessment of a tree’s replacement value, it is recommended that a licensed arborist be retained. Large trees on residential lots can often have a significant replacement value of $10,000 or more per tree. And as many homeowners can attest, the value of a mature tree used for shade or privacy can seem priceless – especially when that tree is destroyed by someone else’s negligence.
Unfortunately, accidents happen. Neighbors or their tree service companies are careless. Valued trees on your property could be destroyed as a result. If this occurs, it is important to be cognizant of your rights and the value of your property. You could be entitled to significant damages through an insurance claim. An attorney can help guide you through the process, make sure you understand your rights, and ensure you are not being taken advantage of by an insurance company.
The attorneys at Welts, White & Fontaine, PC have considerable experience handling timber trespass claims. If you have questions, we would be happy to speak with you. You can call us today at (603) 883-0797, or through our contact page. Welts, White & Fontaine is Nashua’s biggest law firm and serves the legal needs of both individuals and businesses in towns such as Amherst, Milford, Hudson, Brookline, Windham, Hollis, Merrimack, Litchfield, Bedford, Londonderry, Pelham, and of course Nashua.
Author: Israel F. Piedra
This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.