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!
Debra Lyn Bassett: Statutory Interpretation in the Context of Federal Jurisdiction
As noted below, Debra Lyn Bassett of the University of Alabama Law School has published in the George Washington Law Review Statutory Interpretation in the Context of Federal Jurisdiction, available on SSRN. I finally had the chance to read it, and, frankly, was a bit disappointed in two respects.
First, it's (mostly) about the "deemer" clase in 28 USC 1332, which "deems" foreign nationals who are permenent residents of the US to be a citizen of their state of domicile. A lot of the paper is focused on the split in interpretations of that clause, which is probably ambiguous at best, for reasons I won't bore you with.
Second, I did not find the discussion that jurisdictional statutes should be interpreted "differently" than other statutes very compelling. Many statutes have their origin in the Constitution (the Patent Act, the Copyright Act, and no doubt many others), and yet we construe them, for the most part, like other statutes. I think, no doubt, that any statute that mimics constitutional language ought to be construed with that fact in mind, but I don't see that this necessarily requires "different" rules of interpretation, just, perhaps, a contextual application of those rules. But all she seemed to say, when I strip away a lot of rhetoric, is that statutes have to be interpreted to be constitutional... which seems to be a basic principle, not something unusual about jurisdictional statutes.
Anyhow, I'm probably not giving her thoughts enough consideration, but I was disappointed by what seemed mostly argument that jurisdictional statutes should be different without much considered proof that they, in fact, are.
March 3, 2008
Virginia Supreme Court Construes, Upholds Anti-Spammer Statutory Conviction
There's an article here, and the decision in Jaynes v. Commonwealth of Virginia (Va. Feb. 29, 2008) is here. It's a significant case because the statute involved is very similar, if not identical, to those of other states.
On the interpretation issue, the statute required "use" of a computer in Virginia. Beause he had e-mailed the false e-mails from his home in North Carolina, he had only "used" a computer there, not in Virginia -- where tens of thousands of e-mails were received by AOL's servers. The court rejected this, because, it concluded, receipt of the e-mail was an element of the statute, and so an element had occurred in Virginia.
Concerning the constitutional challenges, the court rejected his First Amendment challenge on standing grounds, and his Vagueness challenge to the statute on the merits. It also rejected a dormant commerce clause challenge.
In dissent, 3 of the 7 justices agreed with the majority on all grounds, but would have found that he had First Amendment standing.
Interesting case. I wonder if the Supremes will take it, since this statute is fairly common and, judging at least from my in-box, spam is a big issue.