Trees or Cut Timber?
In this matter, a new consultant to tree appraisals found herself across from me in an assignment regarding the cutting of trees without permission, and a trespass.
A logger clear-cut 10 acres of standing pine trees on a property that did not belong to his client. A misunderstanding at best. A matter of deception for profit at worst.
The logger was instructed by the plaintiff to harvest or clear-cut 10 acres of the subject pine trees. At play here were the intentions of the plaintiff. Evidence was introduced that strongly suggested the plaintiff purposely misinformed the logger as to which parcel of land to harvest. The alleged intent was to collect the value of the trees and have a cleared parcel of land for the development of their future homesite that included numerous built amenities.
Plaintiff introduced drawings or schematics of the future home, barn, and other amenities to demonstrate the intended use of the property. They were conceptual renderings that did not rise to the level of intensity or detail describing the future home or other improvements. They were more like an artist’s rendering. This approach had been tried previously in another landmark court case without success. I was quite familiar with that other court case because my ASCA (American Society of Consulting Arborists) mentor at the time was the plaintiff’s expert. My mentor had applied the Trunk Formula Method as a rationale or approach to value. The judge vehemently rejected that approach. If you only have a hammer in your tool bag, you will only be able to pound nails.
Obviously, the arborist across from me had not heard of that court case. Unbelievably, she also went to the Trunk Formula Method for her approach to value. The value of the tree in her calculations and opinion exceeded the value of the land in which the trees were growing. There are only rare instances when that approach can be applied and that outcome can be realized; this instance was not one of them. The Before/After Rule: the value of a shade or ornamental tree is the difference between the value of the real estate in which it is growing immediately before and immediately after the casualty.
The subject trees were all growing in rows and separated at the same distance. They were a product. They were timber. And their value was the fair marketplace price being paid for cut timber. If it looks like a duck, walks like a duck, and quacks like a duck, then it’s probably a duck.
When designing which approach to value to apply in your assignment, first consider what the tree does for the person who owns it. Will the owner of the tree be damaged in the tree’s absence? The appraised value of the subject tree must be reasonably juxtaposed to the land in which it is growing. A good arborist knows how to appraise a tree. A great arborist knows case law.
The matter of trespass is altogether a different story with a decisively different outcome. Recovery in trespass is always based upon a wrongful invasion of plaintiff’s rights, and the rule of damages adopted should be such as to more carefully guard against failure of compensation to the injured party than against possible overcharge upon the wrongdoer.
In this instance, plaintiff’s attorney thought it wise to vacate the assertion of trespass upon defendant. The matter settled on the marketplace value of the cut timber.
Have you ever been involved in such a case?
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Image courtesy of Markus Spiske on Unsplash
The articles presented here do not make any legal recommendations or representations, as the author is not qualified to do so. These articles are for educational and entertainment purposes only. Seek the advice of a qualified attorney regarding questions of law.
Yes,
An Expert’s Assignment is given by thr client, and our Resultant is delivered within those directives.
Thanks for publishing this case.
Hopefully she learned her lesson and will never return, or return with a vengeance. Poor thing. Good thing you knew everything from day one. I admire you to the moon and back, have known you forever. But this type of attitude along with many other ASCA members is just enough to keep me busy elsewhere, there’s plenty of work. I prefer the company of the regular Joe, learning, growing, sharing, and teaching. Generous exchange of passion.
I’ll continue to follow as I always have but will remain silent, “A lurker as I was called, my last post, years ago on MY member site ASCA.
I’ve had several cases where transitional land as you describe is appraised for its intended use as developed land, not as a plantation. Even if they are not detailed, schematics and drawings are a clear demonstration of how the land is to be used, and how the trees should be appraised.
Cost of cure applies to this kind of appraisal, a lot better than trunk formula method.
The before/after rule is an extreme example of real estate market value. This is often beside the fact. We are not real estate appraisers.
Nor are we lawyers. While it can be handy to be familiar with caselaw, we are not Inevitably constrained by it.
And most importantly, the arborist or consultant writes their assignment. We don’t just copy and paste what our client tells us to do. That is an invitation to disaster.
Look at the consultants code of ethics; especially the parts about independence and objectivity and impartiality. Being recognized as a hired gun is not the best way to have the truth win out in a case.