A landowner who discovers that one or more trees have been unlawfully cut or cleared from his property is entitled to recover monetary damages as compensation for the loss. And, in many instances, the landowner may be entitled to treble (triple) damages resulting from the unauthorized cutting.
The right to damages for unlawful tree cutting is governed by M.G.L. c. 242, § 7, which provides that
A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.
Municipalities and private individuals alike can be subject to damages under M.G.L. c. 242, § 7. Lawsuits brought under M.G.L. c. 242, § 7, can be filed in District Court, Superior Court or Land Court, although any claim for damages filed in the Land Court must be ancillary to another claim related to any right, title or interest in land, such as a declaratory judgment claim regarding ownership of the land in question.
Factors that can trigger an award of treble damages include whether the trespasser actually knew he was entering onto another person's property by acting in disregard to posted signage, deed descriptions or known lot survey plans, or in cases where he was put on notice that the rightful owner opposed the cutting of any trees.
Depending on the nature of the trees cut or destroyed, as well as the underlying land itself, the courts have accepted various measures of damages in cases brought under M.G.L. c. 242, § 7. The usual measures of damages that have been used by the courts include
- diminution of fair market value (FMV) stemming from the loss of trees;
- value of the timber wrongfully cut; or
- reasonable tree replacement and restoration costs
As a general rule, it appears that the courts will accept the replacement and restoration cost approach to calculating damages in those cases where the diminution of the property's FMV is minimal/nonexistent or the value of cut timber is negligible. See, e.g., Ritter v. Bergmann, 72 Mass. App. Ct. 296 (2008) and Glavin v. Eckman, 71 Mass. App. Ct. 313 (2008). This approach is used not only to properly compensate the landowner when he might otherwise not recover any meaningful damages, but also to deter this kind of conduct in the first instance.
No matter what approach to damages is ultimately used at trial, it is usually beneficial to retain a qualified expert (i.e. certified arborist) familiar with the types of trees cut and their respective value. Because these cases are so fact-specific, and considering the size of judgment potentially at stake-particularly where the age and species of the tree provided significant aesthetic or privacy value or where a large number of trees have been cut-retaining an arborist is a necessary and worthwhile litigation expense.
Whether it was one prized tree that was cut or a wide swath of young trees along a common boundary, landowners harmed by the unauthorized cutting of their trees should take advantage of the damages provisions carved out by M.G.L. c. 242, § 7.
Written by Kristen M. Ploetz, Blog Editor
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.