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Money may in fact grow on trees in Massachusetts

Brian C. Dever 508-738-2272

Brian C. Dever

In a few months, as the seasons begin to change and summer gives way to fall, our focus may turn to the trees of New England, as their leaves begin their annual change in color. It happens every fall, and it brings visitors in to the area from all over the country, and the world. Trees are a part of the New England identity, so much so that, in Massachusetts, we have a special statute concerning harm to trees and the amount of money a landowner can recover if his or her trees are cut down by another.

Pursuant to Mass. Gen. Laws ch. 242 §7, Willful Trespass to Trees, a landowner may recover damages for the loss of trees, timber, wood, or underwood, caused by the actions of another. If trespasser does not have a good reason to believe that the trees were on his/her land, then those damages are automatically multiplied by three, which is called treble damages. The case law informs us that “good reason” requires something more substantial than a (false) belief in property lines. According to Palmer v. Davidson, 211 Mass. 556, 98 N.E. 623 (1912), a mere belief that one has the right to cut down trees does not create a “good reason” that the trees are on his/her land. The statute creates an affirmative duty on the part of the tree cutter to investigate his/her rights prior to cutting down any trees. The duty can be satisfied by getting a surveyor or through a professional examination of the deed to the land. Thus, if someone has paid a surveyor to assess their property rights, and relying on that surveyor’s incorrect statements cuts down trees on another’s land, they would not be liable for treble damages, but would still be liable for the damage to the trees.

Another issue arises during the calculation of damages phase. The statute does not indicate how we are to come up with a valuation of damages when a trespass is made to someone’s trees. We turn once again to the case law, which informs us that there are three accepted ways to calculate the loss. Pursuant to Ritter v. Bergmann, 72 Mass. App. Ct. 296, 891 N.E.2d 248 (2008) and Glavin v. Eckman, 71 Mass. App. Ct. 313, 881 N.E.2d 820 (2008), the first method is the value of the timber, the second is the diminution in property value caused by the loss of the trees, and the third is the cost to replace the trees. With respect to the replacement cost aspect, that is not the cost of seeds, or a young sapling from Home Depot. Instead, that is the cost of a mature tree of the same species. The decision as to how to calculate damages is made at the discretion of the landowner/plaintiff. Of note, in the Glavin case, the Court specifically noted that if the reasonableness of the damages award is challenged, the Appeals Court may only review the original award, not the award of treble damages (the damage award times 3), as the award of treble damages is punitive and not meant to be compensatory.

My firm has experience handling ch. 242 § 7 cases. One of my colleagues had a similar case where the trespass to trees issue was wrapped up in a wrongful death lawsuit. Like many statutorily created causes of action, the ch. 242 § 7 remedy is structured in such a way that it is very plaintiff friendly. If you have experienced a loss of trees on your property, please contact my office and we can discuss the proper remedy for your unique situation. On the other hand, if you are about to embark on a tree removal project, do yourself a favor and make sure that the trees are in fact on your land before you owe your neighbor a large sum of money.

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