Monday, March 29, 2021
Damaged and/or Destroyed Trees and Crops – How is the Loss Measured?
Sometimes a farmer, rancher or other rural landowner experiences damages to trees as a result of someone else’s conduct. Maybe the damage occurs from aerial spry drift or excess (and wrongful) water drainage from an adjacent tract, or from some other occurrence. The trees could be a producing orchard; or a windbreak designed to minimize soil loss and protect buildings; or ornamental trees and bushes providing an aesthetic benefit. Often, trees are planted to become mature trees with an eye toward materially benefitting the property – whether monetarily or not.
No matter whether the damage was intentional or a result of negligence, the computation of the amount of damages the landowner is entitled to can be difficult to determine.
Computing tree damage - it’s the topic of today’s post.
Negligence – Determining Liability
The negligence concept is the great workhorse of tort law. More than 90 percent of all civil liability problems are those relating to negligence. The negligence system is designed to provide compensation to those who suffer personal injury or property damage. The negligence system is a fault-based system. The vast majority of situations involving damage to trees are the result of negligent conduct with liability determined under the negligence, fault-based approach
For a person to be deemed legally negligent, certain conditions must exist. These conditions can be thought of as links in a chain. Each condition must be present before a finding of negligence can be obtained. The first condition is that of a legal duty giving rise to a standard of care. To be liable for a negligent tort, the defendant's conduct must have fallen below that of a “reasonable and prudent person” under the circumstances. If a legal duty exists, it is necessary to determine whether the defendant's conduct fell short of the conduct of a “reasonable and prudent person (or professional) under the circumstances.” This is called a breach, and it is the second element of a negligent tort case. Once a legal duty and breach of that duty are shown to exist, a causal connection (the third element) must be established between the defendant's act and (the fourth element) the plaintiff's injuries (whether to person or property. In other words, the resulting harm to the plaintiff must have been a reasonably foreseeable result of the defendant's conduct at the time the conduct occurred. Reasonable foreseeability is the essence of causality (also known as proximate cause).
The fourth element of a tort claim, damages, when occurring to an annual crop (such as corn, soybeans and wheat, for example), are pegged by the lost value of the crop pegs. That’s the starting point for determining the amount that can be recovered. Of course, the party suffering the loss must establish the extent of the monetary damage, often by market data or by establishing the existence of a contract that specified the amount to be received on harvest and sale, discounted for risk of loss due to weather and/or insects.
But, when the damage occurs to a plant, such as a tree, there is an additional component to the damage calculation – restoration. Restoration involves calculating the cost of returning the disaffected landowner’s property to its condition before the damage occurred. Sometimes courts compute the restorative cost as the difference in the value of the land before and after the damage. But, the cases also demonstrate that the computation is not easy. See, e.g., B. & B. Farms, Inc. v. Matlock’s Fruit Farms, Inc., 73 Wash. 2d 146, 437 P.2d 178 (1968); Reeder Flying Service v. Crompton, 470 P.2d 281(Wyo. 1970). The courts use various measures to assess the loss, but the goal is to provide adequate compensation so that the injured party is restored as closely as possible to pre-damage status.
Note: A lawsuit to recover damages to trees (as well as crops), under the common law, is considered to be an action to recover for injuries to real estate. Thus, the lawsuit is to be filed in the county where the trees are/were standing.
For trees and vines that produce nuts and fruits, the measure of damages is generally the difference in land value immediately before and after the damage or destruction. See, e.g., Rowe v. Chicago & North Western Railway Co., 102 Iowa 286 (1897); Collins v. Morris, 97 Kan. 264 (1916). But, it might also be possible for the plaintiff to recover the value of the crop before the damage occurred. So, the plaintiff should provide evidence of the cost of harvesting and marketing the crop in addition to the value of the crop itself. Damages are a net computation. See, e.g., Peterson v. Hager, 714 F.2d 1035 (10th Cir. 1983). But, one court has held that damages to a fruit crop itself could not be awarded because the value of the fruit-producing trees was an element of the damages. If the value of the crop were to be included in the damage calculation, the court reasoned, the result would be double damages. Hill v. Morrison, 88 Cal. App. 405, 263 P. 573 (1928).
A Kansas case last year illustrates how courts handle claims involving alleged damages to trees. In Ringneck Farms, LLC v. Steuwe, 471 P.3d 33 (Kan. Ct. App. 2020), the plaintiff owned a ranch used for commercial hunting purposes that was adjacent to the defendant’s property. The ranch had a row of hedge trees approximately 20 yards wide and 300 yards long adjacent to the defendant’s property. The hedge trees were mature trees. The defendant’s tenant contacted the plaintiff requesting permission to cut down the hedgerow and install a fence. The plaintiff told the tenant to not cut down the trees or disturb the vegetation. However, the tenant proceeded to cut down the hedgerow and installed the fence. In the process about 156 mature trees were destroyed. The plaintiff sued alleging negligence, conversion and trespass claiming that that the loss of the trees decreased the value of the property for hunting purposes. The defendant filed a motion in limine seeking to bar the plaintiff from presenting evidence about the trees’ replacement value, claiming that Kansas law did not recognize replacement value as a proper measure of damages for tree destruction. The defendant specifically referred to the plaintiff’s two experts, arborists that were prepared to testify that the replacement cost of the trees was $1,092,361.
The trial court granted the defendant’s motion. The defendant then moved for summary judgment, claiming that the trial court’s grant of the motion in limine established that the plaintiff could not establish that damages existed and, thus, had no claim. The trial court granted the summary judgment motion on the negligence issue, finding that the plaintiff did not know the market value of the ranch before and after the trees were removed and, thus, could not prove damages. In its response to the summary judgment motion, the plaintiff claimed that the ranch was damaged by virtue of the tree removal reducing the quality of hunting on the ranch. However, the trial court viewed this assertion did not convert any of the defendant’s statement of facts.
On appeal, the issue was whether the plaintiff had presented sufficient evidence of damages to present its case to a jury. The appellate court first determined that the plaintiff had not abandoned its claims for conversion and trespass because the defendant didn’t specifically address the conversion and trespass claims in the defendant’s trial court motions focusing solely on negligence. The appellate court also determined that the trial court did not err in granting the defendant’s motion in limine. The appellate court noted that damages had to be calculated in a reasonable manner, citing the fact that replacement cost of the trees with mature trees would exceed three times the value of the ranch. Thus, it was proper for the trial court to exclude the plaintiff’s proposed evidence on replacement cost of the hedgerow with mature trees.
On review of the grant of summary judgment on the negligence claims, the appellate court noted that the general rule that the measure of damages for negligent destruction of trees is the difference in market value of the land immediately before and after the damage. However, the appellate court noted that this rule is flexible, and the parties may present evidence supporting alternative measures of damages – trees having value independent of the land; loss of income from fruit trees; sentimental value of a tree, etc. See, e.g., Evenson v. Lilley, 295 Kan. 43, 282 P.3d 610 (2012). On this point, the appellate court concluded that the plaintiff had submitted sufficient evidence of damages to overcome the defendant’s summary judgment motion. The appellate court noted that the plaintiff had provided sufficient evidence to overcome the motion by showing that the removal of the trees impacted the quality of hunting on the ranch which justified reasonable replacement costs as a measure of damages. The appellate court also determined that the plaintiff had provided sufficient evidence of damages on the conversion and trespass claims. The case was remanded to the trial court for further proceedings.
When tree damage occurs on a farm, ranch or rural property the computation of damages is a key focus. The damage calculation can differ based on whether the trees are income producing, soil preservation, or simply provide aesthetic beauty. However, in general, the courts try to make the damaged party whole by returning them to the place they were in before the damage occurred. Preserving evidence and substantiating the loss is key to recovery.