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March 4, 2008

Sad, Interesting Case Construing Damages Statute

Your neighbor asks you if he can cut down some gorgeous mature oak trees so he can see the ocean better from his house; you say "no" but he then hires someone to chop them down anyway. Mass. General Laws c. 242, § 7, provides that one who willfully and without license cuts the trees of another shall be liable in tort "for three times the amount of the damages assessed therefor." What are the damages?

In a recent case, where a "neighbor" chopped down the trees, the court held that the usual measures of damages -- the value of the timber or the diminution of value caused by the cutting -- were not the only measures, and restoration costs were permissible. In reaching its conclusion, the court stated:

"The statute does not prescribe how the damages shall be measured." Larabee, supra at 643. While the most common measures of damages are (1) the value of timber wrongfully cut, or (2) the diminution in value of the property as a result of the cutting, see ibid., we discern no limitation in the statute to these measures of damages. Indeed, to limit damages to these measures would encourage, rather than deter, wrongdoers from engaging in self-help in circumstances such as when an ocean or other view is desired. The timber wrongfully removed may amount to no more than a single tree; and its removal may even improve, not diminish, the market value of the property. Yet the wrongful cutting may represent a significant loss to the property owner and a significant gain to the wrongdoer even where the value of the timber cut is negligible, or the diminution in value of the property owing to the cutting is minimal or nonexistent. So to limit the damages would permit a wrongdoer to rest assured that the cost of his improved view would be no more than treble the value of the timber cut even where the change wrought to his neighbor's property by the wrongful cutting, as here, is significant. The statute does not so confine a property owner's redress for the wrongdoing of an overreaching neighbor.

Although diminution in market value is one way of measuring damages, "market value does not in all cases afford a correct measure of indemnity, and therefore is not therefore 'a universal test.' " Trinity Church v. John Hancock Mut. Life Ins. Co., 399 Mass. 43, 48 (1987), quoting from Wall v. Platt, 169 Mass. 398, 405-406 (1897). Accordingly, "[r]eplacement or restoration costs have also been allowed as a measure of damages ... where diminution in market value is unavailable or unsatisfactory as a measure of damages." Trinity Church, supra at 49. See Heninger v. Dunn, 101 Cal.App.3d 858, 864-865 (1980) (applying restoration cost measure in damage to trees). This is but another way of recognizing "that more complex and resourceful methods of ascertaining value must be used where the property is unusual ... and where ordinary methods will produce a miscarriage of justice." See Trinity Church, supra at 49, quoting from Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authy., 335 Mass. 189, 195 (1956).

The judge, as gatekeeper, has broad discretion to determine whether evidence other than fair market value is relevant to the question of damages. See Massachusetts Port Authy. v. Sciaba Constr. Corp., 54 Mass.App.Ct. 509, 514 (2002). Here, the judge did not abuse that discretion in concluding that diminution in market value was not a fair and adequate measure of the damages that Glavin suffered by the wrongful cutting of his trees. See id. at 515. Glavin had no desire to sell the property. Indeed, his plan was to hold on to the lot and utilize its mature oak trees to provide shade for a pond he planned to create from the existing wetlands, and as a backdrop to a tranquil view from his house lot.

Glavin v. Eckman, (Mass. App. 2008) (not yet online, but it will be here.)

It's not a significant statutory interpretation case, but I love trees, and we have far too little neighborly behavior than we once had. The court was right, imho!

March 4, 2008 in Current Affairs | Permalink


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check out this story:

Neighbors Clash Over Trees, Solar Power

By TERENCE CHEA – Feb 20, 2008

SUNNYVALE, Calif. (AP) — In an environmental dispute seemingly scripted for eco-friendly California, a man asked prosecutors to file charges against his neighbors because their towering redwoods blocked sunlight to his backyard solar panels.

But the couple next door insisted they should not have to chop down the trees to accommodate Mark Vargas' energy demands because they planted the redwoods before he installed the solar panels in 2001.

Experts say such clashes could become more common as California promotes renewable energy and solar systems become more popular.

"Five or ten years ago, you wouldn't have seen this case because there weren't that many systems around," said Frank Schiavo, a retired environmental-studies professor at San Jose State University. "I can almost guarantee there are going to be more conflicts."

After more than six years of legal wrangling, a judge recently ordered Richard Treanor and his wife, Carolyn Bissett, to cut down two of their eight redwoods, citing an obscure state law that protects a homeowner's right to sunlight.

The couple does not plan to appeal the ruling because they can no longer afford the legal expenses, but they plan to lobby state lawmakers to change or scrap the law.

The Solar Shade Control Act means that homeowners can "suddenly become a criminal the day a tree grows big enough to shade a solar panel," Treanor said.

The case marks the first time a homeowner has been convicted of violating the law, which was enacted three decades ago, when few homeowners had solar systems.

The law requires homeowners to keep their trees or shrubs from shading more than 10 percent of a neighbor's solar panels between 10 a.m. and 2 p.m., when the sun is strongest. Existing trees that cast shadows when the panels are installed are exempt, but new growth is subject to the law.

Residents can be fined up to $1,000 a day for violations, though the judge did not impose any fines against the Treanors.

Vargas says the law protects his $70,000 investment in solar power, and he believes it should be strengthened.

"I think it's unfair that a neighbor can take away this source of energy from another neighbor," he said.

Treanor, a retired engineer, said he and his wife are not against solar power, "but we think there's a rational way to implement it."

Solar power is growing rapidly in California, which is by far the nation's biggest generator of solar energy. In 2007, more than 30,000 California homes and businesses had rooftop solar panels, with the capacity to generate 400 megawatts of electricity.

That's as much as eight power plants, according to the nonprofit Environment California.

The boom is being fueled by the California Solar Initiative, which offers homeowners and businesses more than $3 billion in rebates over the next decade to install solar-electric systems.

Both sides say they want to do what's best for the environment.

Treanor and Bissett, who drive a hybrid Toyota Prius, argue that trees absorb carbon dioxide, cool the surrounding air and provide a habitat for wildlife.

Vargas, who recently bought a plug-in electric car, counters it would take two or three acres of trees to reduce carbon dioxide emissions as much as the solar panels that cover his roof and backyard trellis.

Bernadette Del Chiaro, clean energy advocate for Environment California, says the solar shade law might need to be revised to prevent similar disputes.

"We want to make sure we are protecting individuals who have invested a lot of money in solar power, which is an important resource for the state," she said. But lawmakers might want to "take a look at the policy and make sure it's written in a way that's fair to everybody."

Posted by: andy | Mar 8, 2008 4:05:51 PM

Love it: we'll cut down trees to get solar energy. There's something doubly rich about that story.

Posted by: David Hricik | Mar 9, 2008 4:21:09 PM

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