Imagine arriving home to discover that a neighbour has removed a number of mature trees from your property without permission. People enjoy trees on their property for the natural beauty, the privacy they give, the habitat for wildlife, and, in some cases, their value as merchantable timber. Neighbours often dislike trees because they block the sunlight or the view. Sometimes the cutting of the trees is a mistake. Because so much emotion is attached to trees and their removal there is plenty of case law regarding damages for missing trees.

The first thing you would want on finding that your trees have been removed is to have them replaced as nearly as possible. Your claim for damages for restoration would probably not be upheld because it is unreasonable. In the case of Kates v. Hall Mr. Hall removed thirteen 40 foot trees from the Kates' property while they were away in order to gain more sunlight in his backyard. The Kates' obtained a quote from a landscaping company for replacement with 40 foot evergreens at a cost of some $200,000.00 without any guarantees. The court held that the difference in cost between "meticulous restoration" and reasonable repairs as well as the difference between actual benefits to the plaintiff vs. the added cost to the defendant must be balanced in arriving at a reasonable remedy. It was found that the cut trees provided limited privacy and that the Kates' spent little time in the home. Accordingly there were other means of restoring the property and affording privacy. In addition, the court awarded damages at $1,000.00 per tree for loss of amenities while the replacement trees grew to maturity. Finally, the court awarded punitive damages of $2,000.00 per tree because of Hall's deliberate high-handed actions.

The case of Banner v. Jack Decoteau Excavating saw a different result. The defendant removed trees from the Banner property in error thinking that it had a valid permit from the Government. The court held that the defendants committed trespass and so were liable. However, the trespass was not deliberate because the defendant believed it had permission to cut and remove the stand of trees. The Banners failed to produce evidence that they planned on restoring the trees nor any evidence that there was a loss of value to their property because of the removal of the trees. Accordingly, no damages were awarded for restoration or for loss of value. Punitive damages were not available either because the act was not deliberate. In this case, the court awarded an arbitrary $8,000.00 for general damages and loss of immunities.

When it comes to removing merchantable timber there are additional damages to be considered. In the case of Shewish v. MacMillan Bloedel the defendant, through negligence removed approximately one hectare of merchantable timber from the plaintiff's land. In evaluating damages for the removed timber the court discussed two approaches to evaluating timber removed by a trespass. Under the "mild rule" the market value of the timber less the cost of falling, bucking, transporting, producing, and selling it would be the proper damage awarded. Under the "severe rule" the cost of falling and bucking the timber would not be deducted from its market value. In determining which rule to employ, the court considers the degree of culpability and lack of bona fides of the defendant in removing the timber. In this case the court held that MacMillan Bloedel was negligent and applied the severe rule.

Punitive damages are not always awarded by the court. No punitive damages were awarded to Shewish because the negligent actions of MacMillan Bloedel were "not such that should attract other than compensatory damages". Punitive damages were not awarded in the Banner case, either, because the trespass was not deliberate. In the Kates' case, punitive damages were appropriate because of the high-handed actions of the defendant. In the case of Prince Rupert v. Pederson Pederson entered land owned by the plaintiff city and cut down 89 mature cedar and hemlock trees in order to obtain a view for a lot he was developing. The court determined that replacement should be based on 10 to 12 foot trees for a total cost of $63,000.00 (not 15 to 20 foot trees at $135,000.00). The trial court awarded punitive or exemplary damages of $500.00 per tree ($58,500.00) plus $14,000.00 being the amount by which Pederson improved the value of his own property by his wrongful act. The Court of Appeal held that this approach was not wrong, but that punitive damages are a form of punishment and the totality of the punitive damages must be considered. The court was of the view that $25,000.00 in punitive damages was more appropriate. Pederson still had to pay $88,000.00 for his $14,000.00 view.

While the courts will not require meticulous restoration of land damaged by the trespass of a neighbour, neither will they permit the neighbour to enjoy the fruits of his wrongful acts.

Please call or E-mail me with questions or comments you might have. You can get more information on our web site at www.hc-law.com.

July 12, 1999