Los Angeles real estate attorneys should note that the California Supreme Court and Court of Appeals have clarified trespass and treble damage for trees and tree issues.
Real estate attorneys are generally familiar with two California statutes which set forth damages for ‘wrongful injuries’ to trees and timber: Civil Code section 3346 and Code of Civil Procedure section 733. And both real estate lawyers and property owners may be familiar with the idea that a property owner can get treble damages for injury to a tree and tree issues. However, the California Supreme Court and the Court of Appeals have both recently issued rulings that clarify the treble damages rule.
“Wrongful injury to trees” under Civil Code section 3346
Civil Code section 3346 provides that “for wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary, or that the defendant … had probably cause to believe that the land on which the trespass was committed was his own…, the measure of damages shall be twice the sum as would compensate for the actual detriment….” [Section 3346(a)].
“Injury to trees on the land of another person” under Code of Civil Procedure section 733
Code of Civil Procedure section 733 states that “Any person who cuts down or carries off any wood or underwood, tree, or timber, or girdles or otherwise injures any tree or timber on the land of another person, or on the street or highway in front of any person’s house, village, or city lot, or cultivated grounds…without lawful authority, is liable to the owner of such land or to such city or town, for treble the amount of damages which may be assessed therefore, in a civil action….”
The California Supreme Court on damage to trees from fire
The Supreme Court first addressed the issue of enhanced treble damages in Scholes v. Lambirth Trucking Company [8 Cal.5th 1094 (2020)]. The holding of Scholes was the statute providing enhanced damages to plaintiffs suffering “wrongful injuries” to timber, trees, or underwood requires direct, intentional injuries.
In this case Lambirth and Scholes were adjoining property owners. Lambirth operated a company making wood chips, sawdust and other products which involve the grinding of wood. A fire broke out on the property and leapt onto Scholes’ property. Scholes alleged various causes of action which were barred by the statute of limitations but, in a third amended complaint, he requested enhanced damages under sections 3346 and 733.
The issue for the court was whether the statutes encompass damage caused by negligently spread fires. The court initially noted that the harm at issue must involve a “wrongful injury” and “it also appears any actionable harm must involve or at least occur in connection with a ‘trespass’.” The court recites both sides arguments and the argument over whether a fire is a ‘trespass’.
“Timber trespass—direct, intentional injuries to trees”
The court concludes that section 3346’s requirements “correspond to timber trespass—direct, intentional injuries to timber, trees, or underwood on the land of another—as the ill to which its scheme of penal damages apply.” The holding notes that the statute’s structure is incongruous with consequential trespasses involving unintended entries like an out-of-control fire. The Legislature had set forth graduated penalties depending on the reasonableness of a breach of property lines: treble damages if the breach was made in bad faith; souble damages if the breach was made based on reasonable belief of ownership or if the defendant crossed the property lines by accident; and single damages if the defendant took affirmative but ultimately insufficient steps to respect boundary lines by engaging a surveyor. By contrast ‘accidental invasions’ like the spread of fire do not fit easily into this property-line focused framework.
Moreover, although section 3346 fails to define the ‘wrongful injuries’ that must flow from the defendant’s intentional entry onto the land, the surrounding language points to the injuries being direction and intentional acts involved in timber trespass.
In its opinion the Supreme Court looks at both Civil Code section 3346 and Code of Civil Procedure section 733 and concludes that, because they related to the same subject, the court will construe them together and endeavor to give both consistent effect. The court holds that the same category of harm under both sections is timber trespass.
The court spends time discussing the history of the two statutes and their related case law. It also goes over the statutes relating to fire liability. “This robust and comprehensive fire liability scheme strongly suggests that, contrary to Scholes’s assertion, the Legislature provided for compensation in the event fire spread negligently instead of leaving a gap implying a need for section 3346 to play that role.”
Lastly the court noted “what a peculiar scheme would result” if both section 3346 and Health and Safety Code section 13007 covered negligent fire-spreading—tree and timber would be compensated at double or treble damages but damage to people would be compensated at regular damages.
Death of a line tree: California Court of Appeals in Russell v. Man
Nine months later the California Court of Appeals published the opinion of Russell v. Man [58 Cal.App.5th 530] addressing some of these same tree issues. In Russell two neighbors had a “massive” pine tree which stood on the property line between them. The Mans built a property on their home and, in the course of construction, dug a trench which cut the roots of the tree. As a result, the tree died.
After trial, the trial court awarded the Russells $219,756.50 representing $73,265.50 as the value of the tree times three for treble damages. The Mans appealed.
The Court of Appeals found that the Mans remain liable, but only on a negligence theory, and only for untrebled damages. Moreover, the court found that the trial court’s finding regarding the value of the tree was erroneous and excessive. The value was reduced to $37,000.
No trespass by the owner of a line tree
The first issue in the appeal was whether Civil Code section 3346 applies when there is not a trespass. The Mans argued that they injured the tree while they were on their own property. The tree itself was 80% on the Russell’s property and 20% on the Mans’ property. The Court of Appeals noted the Scholes v. Lambirth Trucking Co. opinion by the Supreme Court and its holding that both section 3346 and section 733 require a trespass. Moreover, it is not just any common law trespass but a “timber trespass” or “timber misappropriation”. In other words, intentionally severing or removing timber from another’s land without the owner’s consent.
The basics of tree issues and roots law
The Court of Appeals went over the basic laws regarding tree issues and roots on neighboring properties. Ordinarily, when the roots of a tree on A’s land grow into the land of B, B has the right to cut them. The cutting of the roots is not treated as a trespass to the tree because the tree itself is the trespasser—it is an encroachment on B’s land. There is, however, an exception—you may not cut the roots when it unnecessarily kills or injures the tree.
In this case the tree was a “line tree”, a tree on the boundary line between two pieces of property. Trees whose trunks stand partly on the lad of two or more coterminous owners, belong to them in common. [Civil Code section 834]. Neither owner is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the tree.
The Russell court noted that Scholes also requires that, even assuming that cutting the tree roots constituted a common law trespass, Scholes requires a timber trespass, which in turn requires an intentional crossing of boundary lines into the land of another to injure timber.
Accordingly, the Mans cannot be liable for treble damages—or any damages at all—on the first cause of action for wrongful cutting of timber since there was no timber trespass. However, they could be found liable (and were) on the second cause of action for negligence, where they were found liable for the actual, untrebled damages.
Lessons for Real Estate Attorneys in Los Angeles
Real estate attorneys in Los Angeles who deal with tree issues are usually dealing with urban or suburban neighbor disputes (rather than intentional tree theft for timber). Many lawyers who deal with neighbor issues reflexively note treble damages when dealing with injury to trees. This can seriously skew the analysis of litigation and damages in a run of the mill neighbor dispute. Since line trees may not be subject to treble damages, it is important to remember that the measure of damages is for actual damages—the value of the tree. On the other hand a trespass on to someone else’s property for the purpose of cutting down a tree may still qualify for treble damages.
Laine T. Wagenseller is an experienced real estate litigation attorney in Los Angeles. He is the founder of Wagenseller Law Firm in downtown Los Angeles. Wagenseller Law Firm specializes in real estate litigation and has handled many neighbor property line and tree lawsuits/disputes. For more information visit our website at www.wagensellerlaw.com or call us at (213 286-0371.