“My neighbor cut down my trees!” - Legal options in New Hampshire
It’s a surprisingly common occurrence: your neighbor hires a tree service or logger to cut down trees on their property, and ends up also cutting trees on your property. The trees may have been decades old or older — and overnight, they’re gone. It can feel frustrating, violative, and painful. Unfortunately, there’s no way to bring the felled trees back. But the law does provide potential legal remedies. Here are some options if you think someone has cut down your trees without permission — an act known as “timber trespass.”
Establish the facts — and keep your cool
Many timber trespasses are the result of negligence, not maliciousness. “Negligence” means the lack of reasonable care. In the context of a tree trespass, that often means failing to ascertain property lines before cutting. A property owner knows (or should know) where their own boundary lines are. If they are cutting anywhere near those boundaries, they should commission a survey before they begin cutting. At a minimum, they should speak with the neighboring property owner and reach an understanding about what is permissible to cut. Unfortunately, neighbors often do not take these common sense precautions, leading to the “accidental” cutting of trees.
Just because cutting may not have been malicious does not mean it is excusable. Sometimes, a neighbor has been warned about potential encroachments in the past, making their actions even more egregious. However, even if it was truly a “good faith” mistake, the neighbor is still liable for the damage to your property.
Moreover (as will be discussed further below), proving malicious intent may not be as beneficial to your case as many people think. If your neighbor acted maliciously and intentionally, their homeowner’s insurance may not provide coverage for their actions.
Therefore, it usually is most prudent to “keep your cool” when faced with a potential tree trespass situation. Don’t jump to conclusions, and don’t start a war with your neighbor. Document everything — with photographs, measurements, and videos. Make sure that no “evidence” (primarily the tree stumps) are removed.
The most important threshold issue in timber trespass cases is the location of the property line. Even if you feel that a tree was “clearly” or “obviously” on your property, you will need to establish that fact through formal evidence. That almost always means getting a survey performed by a licensed surveyor. Surveys, of course, aren’t cheap. If you can find a surveyor willing to do it, the cheapest option is to just have the property line in question “staked” or “flagged” out. That way the location of the tree stumps can be visually ascertained. If possible, the preferable course is to get a formal plot plan prepared depicting the stumps on the plan. This is irrefutable evidence and may be necessary if a case proceeds to litigation.
Once you have established the property line, it’s usually a good time to call an experienced lawyer to discuss next steps.
2. Understand your legal remedies
An experienced timber trespass lawyer can help you understand what remedies are available under the law. Each state has different laws relating to tree cutting cases. The laws follow the same general principles, but can vary subtly and significantly.
New Hampshire (like many states), has a “timber trespass statute”, RSA 227-J:8. The statute provides that:
No person shall negligently cut, fell, destroy, injure, carry away, or cause to be cut, felled, destroyed, injured, or carried away, any tree, timber, log, wood, pole, underwood, or bark which is on the land of another person, or aid in such actions without the permission of that person or the person's agent.
Violators of the statute are liable for multiple damages — 3-10 times the “market value” of each tree removed or destoryed:
In addition to any other civil or criminal penalty allowed by law, any person who violates the provisions in paragraph I shall forfeit to the person injured no less than 3 and not more than 10 times the market value of every such tree, timber, log, lumber, wood, pole, underwood, or bark cut, felled, destroyed, injured, or carried away.
Unfortunately, in most residential tree trespass cases, RSA 227-J:8 is of little assistance. That is because a different statute, RSA 227-G:2, XII-a, defines “market value” as the “stumpage” value of a tree (the value of tree “on the stump” for timber). Stumpage reports are available on the State of New Hampshire website; stumpage values often average only $100-200 per thousand board feet (MBF) of wood. Stumpage value is typically extremely low not at all representative of the true value of the trees to a residential homeowner.
Thankfully, RSA 227-J:8 is not the only recourse to New Hampshire property owners who are victims of tree trespasses. When the trees in question were not kept for timber value but rather for “enjoyment of [the owner’s] property,” tree owners may advance a cause of action for “compensatory damages” under the common law. Woodburn v. Chapman, 116 N.H. 503, 505 (1976). This common law claim can be brought concurrently with an RSA 227-J:8 claim. Peaslee v. Koenig, 122 N.H. 828, 831 (1982). Compensatory damages are meant to “make whole” the tree owner. Courts have reasoned that where felled trees were valued for benefits such as privacy, ornamentation, shade, or similar attributes, stumpage value would not adequately compensate the tree owner. Thus, the property owner should be able to recover the cost to replace the tree. Morris v. Ciborowski, 113 N.H. 563, 566 (1973).
3. Replacement cost damages in timber trespass lawsuits
The “replacement cost” of a tree can be calculated in different ways depending on context and the theory used. For small trees, a tree of the same size may be readily available for purchase and planting. However, for larger trees, a tree of the same size is likely not available or practicable to transplant. For the latter situation, arborists have developed method to estimate the “cost” or value of a replacement tree. The universally-accepted methodology for determining replacement cost of larger trees is found in the Guide for Plant Appraisal published by the Council of Tree and Landscape Appraisers. In the 9th edition of the Guide this method is known as the Trunk Formula Method; in the 10th edition, it is referred to as the Trunk Formula Technique.
In essence, the Trunk Formula Technique/Method operates by calculating the per-square-inch cost of a readily-available replacement tree (usually a sapling) and extrapolating that cost by the size of the tree that has been felled. The size of the felled tree is calculated by the formula pi (i.e., 3.14) x stump radius squared (r²). Once a “Basic Tree Cost” is established, the tree value is then “depreciated” by various factors such as the assessed location and condition of the tree. For more information and a “rough” estimate of replacement cost under the Trunk Formula Method, visit our Tree Value Calculator.
4. Conclusion
If you think a neighbor has cut down your trees — even if it was by mistake — you may be the victim of a “timber trespass. You likely have a legal remedy against the neighbor and/or their tree service. Document everything, get a survey to confirm the trespass, and then contact an attorney with experience in tree law.
A tree law attorney can evaluate your case, help you find an arborist when necessary, and represent you in your legal claim. In many cases, a settlement may be possible through the neighbor’s homeowners insurance or tree service’s liability insurance without needing to bring a lawsuit. However, in other situations, litigation may be necessary.
Welts, White & Fontaine, PC, represents clients across New Hampshire in timber trespass matters. We have recovered millions of dollars in tree trespass cases on behalf of our clients. For a free consultation or to learn more, contact us.
