Cutting Down Damages Awards in Timber Trespass Cases

• Publication year: 2016

§ 33 Alaska L. Rev. 99. CUTTING DOWN DAMAGES AWARDS IN TIMBER TRESPASS CASES

Alaska Law Review
Volume 33, No. 1, June 2016
Cited: 33 Alaska L. Rev. 99

CUTTING DOWN DAMAGES AWARDS IN TIMBER TRESPASS CASES

Dana M. Diehr ^[*]

ABSTRACT

The Alaska Supreme Court recently heard two cases addressing damages awards for timber trespass claims. Both cases, Wiersum v. Harder and Chung v. Park, emphasized the difficulty of obtaining restoration damages and the close scrutiny given to the size of the damages award itself. This Note explores the history of timber trespass and the current method by which courts determine the appropriate damages award. The Note also proposes a possible alternative to the current reticence toward restoration damages in which the plaintiff may elect to receive restoration damages but would be required to use those damages to restore their trees.

INTRODUCTION

A. A Timber Trespass Hypothetical

You own a plot of land in the Matanuska-Susitna Valley, on which you have built a cabin overlooking a river and enveloped by numerous mature Sitka spruce trees. Work and family obligations keep you busy during the week but you sneak out to the cabin every weekend to unwind. In five years, when you retire, you hope to move to the cabin full-time to be surrounded by nature.

Marring this idyllic vision is your contentious relationship with your neighbor, Ms. McAdams. Her plot overlooks your land, which sits between hers and the river. Some of your tall trees partially block McAdams' view of the water. Annoyed, McAdams hires men to cut down the tallest of your trees to create a panoramic view for her cabin. You are outraged by the loss of trees because their beauty was one of the reasons for your purchase of the land. When you consult a nursery about replacing the trees, the arborist tells you that shipping in mature spruce trees would cost $25,000.

How much of this cost should be borne by Ms. McAdams? It seems to you that she should pay the whole $25,000 cost to replace the trees she cut down. But what if, putting your sadness aside, your land's fair market value has gone down only $5,000 or has not decreased at all as a result of McAdams's behavior? In fact, it's possible that your plot is actually worth more with the trees removed. Under that circumstance, is it still fair to make McAdams pay the $25,000? Or is it unfair to make you bear the cost of planting replacement trees yourself because the fair market price does not accurately capture the value your spruce trees added to the land?

This hypothetical involving the destruction of trees on the property of another was traditionally covered by the common-law tort of trespass. ^[1] However, in Alaska and several other states, statutes create an alternative cause of action for such cases. ^[2]

One of the earliest cases in the United States regarding timber trespass is E.E. Bolles Wooden-Ware Company v. United States, ^[3] in which the Supreme Court grappled with the valuation of felled trees. ^[4] Courts today still struggle to determine the appropriate amount of damages in timber trespass cases because the costs of restoring mature trees often outweigh the land's diminution in market value.

B. Alaska's Timber Trespass Statute

The state of Alaska quickly recognized timber trespass claims in its courts. The timber trespass statute, Alaska Statute §09.45.730, was enacted in 1962. ^[5] Though there had been cases involving the destruction or removal of timber under common-law trespass claims before Alaska's statehood, ^[6] the earliest case to reach the Alaska Supreme Court under the timber trespass statute was Mertz v. J.M. Covington Corporation in 1970. ^[7] The current version of the timber trespass statute reads:

A person who without lawful authority cuts down, girdles, or otherwise injures or removes a tree, timber, or a shrub on (1) the land of another person or on the street or highway in front of a person's house, or (2) a village or municipal lot, or cultivated grounds, or the commons or public land of a village or municipality, or (3) the street or highway in front of land described in (2) of this section, is liable to the owner of that land, or to the village or municipality for treble the amount of damages that may be assessed in a civil action. However, if the trespass was unintentional or involuntary, or the defendant had probable cause to believe that the land on which the trespass was committed was the defendant's own or that of the person in whose service or by whose direction the act was done, or where the timber was taken from unenclosed woodland for the purpose of repairing a public highway or bridge on or adjoining the land, only actual damages may be recovered. ^[8]

C. Other States' Statutes

Other than Alaska, forty-two states also have statutes relating to timber trespass. ^[9] A Missouri court suggested that separate statutory timber trespass actions beyond common-law trespass are necessary because "[s]tatutory trespass attempts to redress plaintiff for injuries that often have intangible qualities, such as aesthetic value, and such damages are often difficult to measure." ^[10] While many states' statutes resemble Alaska's in focusing on the destruction and removal of trees, some states have enacted statutes targeting the impermissible destruction or removal of various natural resources, including trees. Although discussion of each of these states' statutes is beyond the scope of this Note, the Washington and Oregon statutes deserve greater attention because of the shared Pacific Northwestern environmental context of Alaska, Washington, and Oregon.

Oregon's statute applies to trespasses that result in damage to or destruction of trees, produce, or other vegetation. ^[11] Like Alaska's statute, it allows for the collection of treble damages in cases where the trespass was committed "willfully, intentionally and without plaintiff's consent." ^[12] Washington's statute ^[13] applies to natural resources more generally than either Alaska's or Oregon's statutes; it covers timber, crops, minerals, and any other valuable resource from the land. ^[14] A separate statute, ^[15] which addresses only the destruction or removal of timber, specifies that any award for timber trespass is subject to treble damages, regardless of defendant's knowledge or intent. ^[16]

It is no surprise that these states have enacted statutes to protect trees on private lands, as economic and environmental issues surrounding timber loom large in the Pacific Northwest's public discourse. Alaska has enormous forests scattered across the state for a total of 129 million forested acres. ^[17] Unsurprisingly, Alaska is home to the two largest national forests in the United States. ^[18] There are boreal forests throughout Alaska's interior and southern central region. ^[19] Along the southeast, there are coastal rainforests like those in Washington and Oregon. ^[20] Meanwhile, in Oregon and Washington alone, there are sixteen national forests that attract large numbers of tourists. ^[21] For the Pacific Northwest, careful stewardship of the region's timber resources is important for the local economy, environment, and identity. ^[22] In Oregon and Washington, the logging industry has been cut back in order to protect the region's sensitive environment. ^[23]

The timber industry remains an important part of Alaska's economy. ^[24] Recently, however, environmentalists have lobbied and filed lawsuits to curb logging in the Tongass National Forest. ^[25] The Forest Service in Alaska is trying to balance the tension between the conservation of forests and the economic benefit the timber industry provides.

I. MECHANICS OF DAMAGES AWARD CALCULATIONS

A. Compensatory Damages based on Diminution of Fair Market Value

At trial, the amount of damages for most timber trespass claims equates to the diminution of the land's fair market value as a result of the trespass. ^[26] Although Alaska has not yet calculated damages this way, at least one other state court has held that the value of the lost timber itself can be recovered in addition to the diminution in fair market value of the land. ^[27]

In order to determine the loss of fair market value, testimony by both the landowner and experts is admissible. ^[28] "In Alaska, lay testimony offered by the landowner as to property value is admissible because of the owner's presumed knowledge about the value of such property." ^[29] Additionally, real estate agents familiar with the property and the neighboring area can provide expert testimony on the diminution of the land's fair market value. ^[30]

B. Statutory Treble Damages

Many plaintiff landowners are not limited to recovery of actual damages because Alaska Statute section 09.45.730 allows for recovery of treble damages in timber trespass cases, with three exceptions. ^[31] Treble damages punish defendants for intentionally removing trees from another's property, and thereby discourage them from committing timber trespass again. ^[32]

There is an exception for unintentional trespasses that result in damage to plaintiff landowner's trees. ^[33] One example would be an unintentional fire on the defendant's property, which spreads to the plaintiff's land and destroys his trees. For unintentional or involuntary trespasses, treble damages would fail to discourage future trespasses by the defendant, because the forces behind these trespasses, such as fires, are...