by Attorney Don Hebert
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(Question of Law articles are written by
volunteer attorneys as a public service provided by the NH
Bar Association. They are intended to provide general legal
information concerning the covered topics. They are not meant
to take the place of specific legal advice which should be
provided by an attorney in each individual situation. Note
that information in the articles is current as of the date
of publication, but may have changed over time. The reader
should, therefore, verify the accuracy of the information
contained herein.)
QUESTION:
I own 60 acres of land. I hadn’t walked a
certain part of my property for about a year, but when I
did walk it last week, I saw that a large portion of my timber
was cut and removed. I did not give my permission to anyone
to cut down my trees. It is estimated that approximately
$20,000.00 worth of timber was taken, not to mention the
mess that has been made of my property. What recourse do
I have against the person(s) responsible for this trespass?
ANSWER:
Taking someone’s timber without authority
to do so is referred to as ‘timber trespass.’ Timber
trespass is all too common in our area. The trespass may
be characterized by the degree of the logger’s fault,
ranging from intentionally cutting someone else’s trees,
to doing so by accident, as in the case of a well-founded,
but mistaken belief as to the location of a boundary line.
The recourse available to the land owner depends first on
the extent of the logger’s fault. The State may also
file criminal charges against the logger under certain circumstances.
Let us look at some of the range of possibilities, beginning
with the most innocent of circumstances.
Any trespass is grounds for a lawsuit and the trespasser
is responsible for the damages caused by the trespass, even
if there was no negligence, or carelessness, involved. So,
if I am cutting down a tree on my land, and I have taken
every reasonable precaution to avoid the tree falling on
my neighbor’s land, I am still liable if a freak wind
suddenly arises and blows the tree onto my neighbor’s
land and into her tree, causing damage. I have to compensate
my neighbor for the damage I did, even if I was not negligent
in anything I did.
The question then becomes the amount of the damages that
I owe my neighbor. Do I pay only the timber value of the
tree I destroyed or do I have to pay the cost of replacing
the tree? The answer to this question might depend on whether
the tree was in the front yard or the back yard.
If the tree was in the front yard, it might have landscaping
value: the maple tree located in the woods three hundred
feet behind the house is not worth the same amount as the
maple tree I planted in the front yard twenty years ago for
esthetic reasons. Assuming a totally accidental event caused
the tree to be lost, the value might range from the value
of the timber involved, plus clean-up and incidental damages,
to the replacement cost of the tree if it has value beyond
its timber value, including, for example, landscape value.
If the tree has landscape value, the amount of the damages
is equal to the cost of replacing the tree. The cost of replacing
a twenty or thirty foot tree can amount to thousands of dollars.
On the other hand, the value of a tree with timber value
only, may be one or two hundred dollars.
So far we have discussed the situation in which the person
who did the damage was less than negligent. Now let’s
assume that the person cutting or damaging trees without
authority is negligent. Negligent means the person has failed
in some respect to act in a reasonable manner. For example,
I may be negligent if my neighbor and I have informally agreed
on a certain boundary line, and I cut down trees on his side
of the line without making any effort to determine the actual
location of the boundary line.
If the person doing the cutting is found to be negligent,
he or she will be liable for damages in an amount not less
than three and not more than 10 times the market value of
the timber, in addition to any other measure of damages.
In other words, that tree worth $200.00 in timber value,
might now cost the logger $2,000.00. The court has the final
determination of the multiplier to be used, and will apply
it depending on the circumstances involved. It’s one
thing if the boundary line takes an unexpected jog, but it’s
quite another if the logger drives his equipment over a stone
wall to take down or remove the trees. The more blatant the
encroachment, the more the logger must pay.
If the logger is reckless in cutting the trees, then criminal
charges may be filed. On a scale of one to ten, with pure
accident being one, total intent being ten, and negligence
being five, reckless is about a seven. For example, cutting
trees with disregard for any possible boundary lines would
qualify for reckless conduct. If the conduct rises to the
level of reckless, the cutting may result in criminal charges
being filed. The statute provides that any loss of $1,000.00
or less shall be charged as a misdemeanor, and if the loss
is greater, the charge shall be a felony. The severity of
the consequences reflects the seriousness with which the
State views these offenses.
Now, in your case, you indicate that the timber in question
was cut on a 60 acre parcel that you own, and that you are
unsure when the cutting was done. It therefore seems that
the trees cut down had no landscape value, and their value
may be as timber only. In that case, it seems almost certain
that the amount of your damages-or your recourse, if you
will-is somewhere between three and 10 times the market value
of the timber removed, plus the cost to restore your property
to the condition it was in prior to the cutting.
In order to establish the amount of your damages you will
need to enlist the services of a professional registered
forester. The forester will be able to identify the species
of tree removed and calculate the value of the timber.
You can report the timber trespass either to your local
police department or to the New Hampshire Division of Forest
and Lands. Your local police department will usually refer
the case to the Division of Forest and Lands, which is more
experienced in these cases and will usually lead the investigation
and criminal prosecution.
Finally, be aware that if you engage a logger to cut trees
on your land, you can ultimately be held liable if that logger
strays from your borders and cuts down some of your neighbors’ trees.
To avoid that possibility, and to ensure that you achieve
the greatest return on your timber, enlist the services of
a professional forester. The value of that professional supervision
and expertise will far exceed the cost.
For additional Question of Law articles on various topics,
visit the New Hampshire Bar Association’s Web site
at: For
the Public\Questions of Law.
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printable version.
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