A poem lovely as a tree
So wrote Joyce Kilmer (Alfred Joyce Kilmer, that is) in 1913; but even Mr. Kilmer might have been shocked to learn how valuable a lovely tree can be. A recent ruling by a California Appellate Court (Rony v. Costa, First Appellate District, October 12, 2012) sheds some light on this subject.
Most real estate agents and many property owners are aware of the right to remove overhanging branches from a neighbor’s tree to the extent that those branches actually intrude over your property. But, as we learn from the Rony case, you want to be darn sure that the tree trimming goes no farther than the property line.
Ellen Rony has lived on her property in Tiburon since 1979. A distinguishing feature of that property was two towering Monterey cypress trees that marked the northwest and northeast corners. Over the years, Ms. Rony periodically had the trees professionally trimmed to enhance their appearance.
In 2000, Paola Costa and family moved onto the property just behind that of Ms. Rony. In 2008 Mr. Costa decided to install an outdoor oven in the southeast corner of his lot, adjacent to the Rony property. He hired a day laborer to cut tree branches that extended over the cooking area. The laborer cut branches from trees on Costa’s property and also from trees on Rony’s property. He not only cut away overhanging branches, he cut into Rony’s tree itself. According to testimony, he "made 32 cuts along the north side of the tree and had denuded three vertical limbs of their branches and growth. The cuts left stubs, [that] were not of ‘professional’ quality, and did not promote the health of the tree."
In December of 2008, Rony filed a complaint against the Costas alleging that they were responsible for the laborer’s tree cutting and that they should pay enhanced damages under California Civil Code section 3346.
Both parties produced expert witnesses at the trial. Both of them employed complex formulas to assess the value of the damages. They both referred to the Guide for Plant Appraisal in support of their reasoning. Their conclusions, however, were significantly different. Rony’s expert calculated the loss at $59,248. Costa’s, on the other hand, arrived at the figure of $7,530.
When the trial court filed its statement of decision, it found, first, that Costa was vicariously liable for the damage the laborer had inflicted. But, when it came to damages, the court found neither expert opinion to be compelling. The court essentially struck a middle ground, finding actual damages - including aesthetic considerations - to be $22,530. But, then, under the provisions of California Civil Code §3346, the damage amount was doubled to $45,060.
California Civil Code §3346(a), as the Appellate Court put it, "punishes [as] wrongful ‘injuries to trees’". It provides that "injuries to trees, timber, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment…" Who knew this? The section also provides that if the trespass is "casual or involuntary" or if it is made under a probable cause to believe that no trespass was committed, then the measure of damages will only be double. Thus, the trial court only doubled the actual damages.
The First District Court of Appeal upheld the trial court’s finding. Most notably, it upheld the trial court’s prerogative to place a "dollar amount on aesthetic harm, unless the amount was ‘so grossly excessive as to shock the moral sense…’" [my emphasis]
As the Appellate Court pithily put it, "Given the hack job [the laborer] inflicted on Rony’s tree while trespassing on her property, we do not find the trial court’s award ‘shocking’ and will not second-guess the amount the trial court selected after carefully considering the evidence before it."
"Only God can make a tree" Joyce Kilmer wrote. But a court can tell you that it may be worth a whole lot of money.