Get Consent Before You Cut, or Pay!


Simon Offord

by Simon Offord on September 10, 2012

in Neighbor Issues, Real Estate Law

In a previous blog, “Get Your Tree out of my Yard” I discussed the potential issues that may arise between adjoining landowners with respect to trees.  In that article, I cautioned against resorting to self-help unless you have consulted an attorney to ensure you are within your rights.  This article further exemplifies the need to consult an attorney before resorting to self-help.

The recent California Court of Appeal case of Kallis v. Sones examined the potential damages that can follow the wrongful cutting of timber.  The facts of the case are as follows: The Kallises and Soneses owned neighboring properties. A large pine tree rested on the shared property line between the two lots. As the tree grew, it split into two separate, but still large trunks.  One trunk grew over each of the two lots.  The trunks essentially became so distinct and apart that even at the base, there was enough room for a metal property line fence.

After many years, the Soneses became worried that the tree could fall and cause damage to their home.  As a result, they hired workers to cut the entire tree down, including the trunk on the Kallises lot, leaving nothing but a large stump in the ground.

In September 2009, the Kallises sued the Soneses for “wrongful cutting and removal of timber,” trespass, and negligence.  The trial court awarded $53,628.31 in damages to the Kallises. The amount was doubled, pursuant to Civil Code Section 3346(a), to $107.256.62.  The Soneses appealed.

While the Soneses did not dispute that they cut the tree down, they argued that the trial court wrongly failed to account for the common ownership of the tree when assessing damages.  The appellate court affirmed the trial court’s decision.

The appellate court held that the tree was a “line tree.”  A line tree is a tree growing on a property line.  Civil Code Section 834 provides that trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common. As such, neither owner may cut the tree without the consent of the other.  If one owner does cut the tree down without consent, they are liable for damages.

The issue then became whether the damages were appropriate.  The Court held that there is no single fixed rule for determining the measure of damages for injury to trees. At trial, a certified arborist testified that the cost to restore the tree was $53,758.31.  The trial court awarded that full amount to the Kallises.

The appellate court agreed that restoration costs were appropriate.  The appellate court noted that diminution in value is one measure that could be used, but because of the personal value the Kallises placed on the tree and the likelihood that they would restore a tree of similar size, restoration damages were appropriate. [Specifically, the Court held that the tree was “integral” to the property in that it provided a broad canopy and shading for the yard and home].

This case highlights the importance of understanding your rights and responsibilities before resorting to self-help, because if you do not, you could have a six figure judgment entered against you for cutting down the wrong tree (plus tens of thousands of dollars in attorney fees).

PRACTICE TIP ==> Most cities have tree protection ordinances and a tree removal permit process.  The pro-active owner should engage an arborist and work with the city to remove the tree.  In the fact pattern above where there is a “line tree,” an owner may need to seek equitable  or emergency relief from the court due to safety concerns when the neighbor witholds consent.

If you have questions about this article, or anything else relating to real estate law, please contact the Law Offices of Peter N. Brewer at (650) 327-2900, or visit our website at www.BrewerFirm.com.

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