Timber Trespass

Laying Down the Law

Chris Charles.jpg b&w

Christopher Charles, Esq.
Managing Partner and Founder, Provident Law


Tony Soprano and Ned Flanders are preparing to face off in court. They have been next-door neighbors for about five years. The Flanders property has a 30-year old citrus tree in the front yard planted near the Soprano property line. Throughout the year, the tree sheds its leaves. Some of the leaves fall on the Flanders property, and some of the leaves fall on the Soprano property.

A recent storm left quite a mess: the wind knocked down several large branches and tons of leaves scattered across Mr. Soprano’s property. Frustrated with picking up Flanders’ mess, Mr. Soprano resolved to fix the annoyance once and for all. The next day after the storm, at Mr. Soprano’s direction, his landscaper chopped down Mr. Flanders’ tree and hauled it to the nearest landfill.

Mr. Flanders loved that tree — what are his legal options?

Most jurisdictions recognize a legal claim for “timber trespass,” which is the wrongful removal of trees located on the property of another without their permission. For example, California, Florida, New York, Nevada, Illinois, Michigan, Washington, and Texas all have enacted timber trespass statutes.

In order to prove timber trespass, the claimant must prove: [1] he or she owned the tree and [2] the tree was cut or removed without his or her consent. Pittman v. Dykes Timber Co., Inc., 18 So. 3d 923 (Miss. Ct. App. 2009).

It is often difficult to measure the plaintiff’s damages in timber trespass cases because the plaintiff’s damages often include intangible injuries. The defendant will argue that the damages should simply be limited to the replacement cost. But that doesn’t take into account the aesthetic value or age of the tree.

As a result, most timber trespass statutes provide for treble damages —three-fold damages — where the plaintiff can demonstrate that the tree cutting or removal was willful or intentional. “Willfully” has been interpreted by the courts as requiring a lesser degree of culpability than “knowingly,” but includes conduct on the part of the defendant that displays utter and complete indifference to or disregard for the rights of others. See Fraser v. Barton, 628 A.2d 146 (Me. 1993)(holding that in order for landowners to have acted “willfully” in cutting timber on adjoining land so to be liable for treble damages, they must have displayed “utter and complete indifference to and disregard for the rights of others”).

Arizona is one of the few states that has not enacted a timber trespass statute. As a result, injured property owners must rely on common law remedies such as conversion and trespass, and possibly intentional infliction of emotional distress in extreme circumstances. Those causes of action generally only allow recovery for compensatory damages (cost of replacement, clean-up costs, etc.). An injured party cannot recover double or treble damages under common law for conversion or trespass.

On the other hand, under common law in states like Arizona, the plaintiff can seek punitive damages in regard to a timber trespass claim to punish the defendant or to deter the defendant and others from similar misconduct in the future. In order to recover punitive damages, the plaintiff must show: [1] the defendant intended to cause the injury; or [2] the wrongful conduct was motivated by spite or ill will; or [3] the defendant acted to serve his own interests, having reason to know and consciously disregarding a substantial risk that his conduct might significantly injure the rights of others. Bradshaw v. State Farm Mut. Auto. Ins., 157 Ariz. 411, 422, 758 P.2d 1313, 1324 (1988).

And where punitive damages are available in states like Arizona, the damages are not capped at a multiplier of three like in other states.

Thus, because Mr. Soprano willfully cut down Flanders’ tree without his permission, if Flanders chooses to pursue his legal remedies against Mr. Soprano, he can sue him for timber trespass and seek treble or punitive damages, depending on the jurisdiction. Mr. Flanders can also sue the landscaper for aiding and abetting tortious conduct.
Call Mr. Charles today if you or someone you know has questions about a property dispute.


Christopher J. Charles is the founder and Managing Partner of Provident Law, PLLC. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS® (the “AAR”). He is also an Arbitrator and Mediator for the AAR regarding real estate disputes; and he serves on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions.
Christopher is a licensed real estate instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at chris@providentlawyers.com or at 480-388-3348; 14646 N. Kierland Blvd, Suite 260, Scottsdale, Arizona 85254.