Liability and Damages for Wrongful Trimming or Erection and Maintenance of Trees and Hedges
Property owners in and around Santa Barbara are famous, and sometimes infamous, for erecting and maintaining hedges and trees for privacy, shade, and other reasons. Although property owners—and often their neighbors—do not know it, wrongful trimming, removal, or even erection and maintenance of a tree or hedge may be a very expensive and regretful decision. If you have prosecuted or defended a case involving the wrongful cutting of one of Santa Barbara’s or Montecito’s trees or hedges then you may be aware of the potentially large damages that can result, and the potentially high costs and attorney’s fees to both sides in defending and prosecuting a case. California law allows for treble damages for malicious cutting, and mandatory, double the actual damages for negligent cutting. The malicious erection or maintenance of a hedge may also subject its owner to damages under the California spite fence statute. Attorneys and their clients will benefit from understanding the law in this area and how to avoid a potentially costly lawsuit.
The Basic Law Governing Tree Cutting
In California there are some fairly clear rules regarding cutting trees and hedges:
(1) If the tree trunk is exclusively on one property, the property’s owner can cut the tree down, even if the roots or branches extend to a neighboring landowner’s property (Civ. Code § 833.).
(2) As a correlation to the first rule, if the tree trunk is exclusively on a landowner’s property, a neighboring landowner may not cut any portion that has not extended onto his own neighboring property. This means that a neighboring land owner cannot cut any portion of a tree, including its branches, located on or over his neighbor’s property.
(3) If the tree trunk is located exclusively on one landowner’s property, a neighboring land owner may cut overhanging branches that extend over his property. The branches can only be cut back to the property line. Encroaching roots, however, can only be cut (and only to the boundary line) if they cause damage. (Booska v. Patel (1994) 24 Cal.App.4th 1786, 1791-1792.) Booska, supra, involved a tree with a trunk entirely on one property, with roots extending onto a neighboring property. The neighboring property owner cut all roots located on his property, destroying the tree. The court applied a reasonableness test to determine that the neighbor wrongfully cut the roots, thus destroying the tree. This test of reasonableness has yet to be extended to cutting overhanging branches. However, landowners would be wise to balance the need for trimming overhanging branches with the likely result to the tree. Courts may be inclined to apply Booska to overhanging branches and not limit it to roots.
(4) If the tree trunk is partly on at least two adjacent properties (termed “line trees”) the property owners own the tree as tenants in common. Each adjoining landowner needs their fellow tenant in common’s permission to cut the tree down and can only trim it reasonably so as not to injure the tree. (Civ. Code § 834) This rule is often violated where one neighbor believes a commonly owned hedge is overgrown and decides to trim it without consulting the neighbor.
Knowing and understanding these rules is essential in order to avoid potential damages for wrongfully cutting a hedge or a tree, and to determine when a lawsuit may lie against another for wrongful cutting of trees.
Damages for Wrongful Cutting
If your client has violated one of the above rules he or she may be subject to substantial damages, not to mention attorney’s fees and costs in defending a lawsuit. Such lawsuits are often emotionally charged, and are often involve two neighbors with a history of feuding. Because of the emotions involved, one or more of the parties often ignore the practical concerns that would ordinarily deter a lawsuit or cause an early settlement (i.e., the risk of attorney’s fees and costs). Instead, they may devote a substantial war chest to pay an attorney to defend or prosecute a lawsuit for the often misguided purpose of simply “sticking it” to the neighbor and refusing to give in to the practical considerations of costs and attorney’s fees. No matter what side of the dispute you find yourself, to prosecute or defend a wrongful hedge or tree trimming lawsuit, one must not only know the rules for avoiding one, one must understand the risk of significant damages.
The measure of damages for tortious injury to property, including trees and hedges, “is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (Civ. Code § 3333; Rony v. Costa (2012) 210 Cal.App.4th 746, 754.) If you have experience as a real estate attorney, you may be under the impression that any damages (whether doubled or tripled) are likely to be limited given the normal measure of damages for injuries to real property, that is, the lesser of either: (1) the costs to repair or restore the real property; or (2) the difference between the value of the real property before and after the injury. Often times a real estate appraiser will be hard pressed to find any substantial difference in market values of the real property before and after any wrongful cutting or destruction of hedges or trees. Therefore, damages—even when doubled or tripled—should be limited.
However, the loss in market value of the real property is just one of a few theories courts have used to award a plaintiff compensatory damages. Restoration costs may be awarded even though they exceed the decrease in market value when there is a reason personal to the owner for restoring the original condition, such as shade, privacy, and ornamental shrubbery, or where there is reason to believe that the plaintiff will, in fact, make the repairs. (Heninger v. Dunn (1980) 101 Cal. App. 3d 858, 863.) And, as illustrated in a recent 2012 case, “[i]f restoration of the land to a reasonable approximation of its former condition is impossible or impracticable, the landowner may recover the value of the trees or shrubbery, either as timber or for their aesthetic qualities, again without regard to the diminution in the value of the land.” (Rony v. Costa (2012) 210 Cal.App.4th 746, 756,)
A plaintiff need not quantify damages for loss of aesthetics at trial in order to support a damage award; the award simply must not be “so grossly excessive as to shock the moral sense and raise a reasonable presumption that the [trier of fact] was under the influence of passion or prejudice.” (Ibid.) Because there is no need to quantify such damages, a damage award easily could exceed the difference in market value or the costs to replace injured trees. The damages would then be tripled, or doubled, under Civil Code § 3346 and Code of Civil Procedure § 733.
Mandatory Double, and Discretionary Treble Damages
By statute, all the actual damages for injuries to trees must at least be doubled and may be tripled if the injury was done maliciously or willfully. (Civ. Code § 3346(a); Code Civ. Procedure § 733.) However, an award of treble damages under Civil Code § 3346 or Code Civ. Procedure § 733 is warranted only when the defendant’s acts were willful or malicious. Whether to triple the damage award is strictly within the trial court’s discretion. (Caldwell v. Walker (1963) 211 Cal. App. 2d 758, 763.) Still, even if the injury was not willful or malicious, but was instead negligent, the trial court has no choice but to award double the actual damages under Civil Code § 3346. (Ostling v. Loring (1994) 27 Cal. App. 4th 1731, 1742; Rony, supra, 210 Cal.App.4th at 753, fn. 5.) Tripling or doubling damages is not appropriate if punitive damages are awarded. (Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal. App. 4th 153, 169 [plaintiff may elect actual plus punitive damages, or actual damages doubled or tripled by court, but not both].) What constitutes malice and willfulness may be easy to prove: it is enough to support treble damages if a landowner cuts another’s trees knowing the trees are not on his land. (Roche v. Casissa (1957) 154 Cal.App.2d 785, 789.)
A Recent Illustration
Rony v. Costa illustrates how one court has applied these rules. That case involved the “lopping off” of mature cypress and oak tree branches by a non-licensed tree trimmer hired by a landowner (Costa) to trim branches extending from his neighbor’s cypress and oak trees in order to make room for his outdoor pizza oven. The Court of Appeal upheld a double damage award totaling $45,060. The award was calculated by doubling: (1) $7,530 for the diminution in value of the trees themselves; and (2) $15,000 for lost aesthetics. At trial plaintiff had requested at least $59,428 in damages (in addition to damages for loss of aesthetics, all of which could be potentially tripled under Civil Code § 3346). Luckily for the defendant, the trial court agreed with defendant’s expert witness’ opinion as to $7,530 dollars in damages for the loss in value of the trees. Finally, the Court of Appeal completely overturned an attorney fee award of $50,148 in favor of the plaintiff (the plaintiff had sought $62,685). By most standards the plaintiff in Rony achieved a Pyrrhic victory because her attorney’s fees were not recoverable and the court disagreed with her expert’s high calculation of damages.
A Hedge May Be Subject to the California Spite-Fence Statute
Under California’s spite-fence statute, “[a]ny fence or other structure in the nature of a fence which unnecessarily exceeds 10 feet in height and which is maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.” (Civ. Code § 841.4.) A hedge or similar row of trees over 10 feet in height, although not technically a “fence” is subject to California’s spite-fence laws, if it was “maliciously erected or maintained for the purposes of annoying” an adjoining landowner. (Wilson v. Handley (2002) 97 Cal. App. 4th 1301, 1309.) Although damages cannot be trebled or doubled under the spite fence statute, punitive damages may be available under Section 3294 of the Civil Code.
Violating tree laws can result in substantial damages and fees and costs to all parties, particularly in the Santa Barbara area where old and established trees and hedges are ubiquitous. To avoid the risks of conflict, advise your clients on the rules governing liability and damages. Although your clients may not actually be the ones doing the trimming, they are liable for any wrongful cutting done on their behalf or at their direction by a licensed or unlicensed gardener or landscaper. In addition, make sure your client knows to think twice before erecting any hedge over or near a boundary line, especially if it will exceed 10 feet in height.