Found At: www.statewidetitle.com
Issue 269 Article 422
King v. Duke Energy Progress, LLC (COA 20-292) 2/16/2021
Replacement Cost as Measure of Trespass to Timber Damages for Ornamental Trees
Chris Burti, Vice President and Senior Legal Counsel
The plaintiffs in this action appealed from the trial court's judgment granting a directed verdict in favor of defendants Duke Energy Progress, LLC and Carolina Tree Equipment, Inc. d/b/a/ Carolina Tree awarding Plaintiffs nominal damages. Contracted by Duke Energy, Carolina Tree removed two large Japanese Maple ornamental trees from the plaintiffs' property and severely damaged a third. The trees screened Duke Energy's power lines from view on the plaintiffs' property and the lines are now visible from the sunset deck of the plaintiffs' home.
The plaintiffs alleged trespass to chattel, trespass, and negligence, and requested declaratory relief. The defendants moved for a directed verdict at the close of the plaintiffs' evidence and the trial court entered a judgment directing a verdict in favor of Defendants and awarding Plaintiffs only nominal damages. Identifying the correct measure of damages in an action for trespass to timber for ornamental trees having little or no commercial value after they are cut and whether the replacement cost of those trees alone is sufficient evidence to establish the diminution in value of real property were the primary issues addressed in this appeal.
With appropriate citation, the opinion notes that the North Carolina Supreme Court has recognized two distinctly different measures of damages for the tort of trespass to timber, the value of the timber after it has been cut or the diminution in value to the land. The cases cited in the opinion tell us that the rule valuing the timber at the time of cutting is inapplicable to ornamental trees. The opinion interprets N.C.G.S. Section 1-539.1 which provides a statutory cause of action for trespass to timber and which permits an award of double damages, as not applying to ornamental trees. Only the commercial value of the timber at the time of cutting is recoverable under the statute.
The doctrine of diminution damages for ornamental trees has been developed further in more recent years in the North Carolina Court of Appeals.
This Court has held that the replacement cost of trees can be used to establish the diminution in value of real property from which they are removed where the property is owned for personal use.Huberth v. Holly, 120 N.C. App. 348, 354, 462 S.E.2d 239, 243 (1995). In Harper v. Morris, 89 N.C. App. 145, 147, 365 S.E.2d 176, 178 (1988), the first time our Court considered the question, we rejected the argument that the aesthetic value of the trees was inappropriate for the jury to consider when determining the extent to which the value of the real estate had been diminished. Instead, we held that the diminished value of the real estate could be determined by reference to the aesthetic value of the trees, as measured by "the cost of replacing or restoring the trees . . . as is reasonably practicable." Likewise, in Lee v. Bir, 116 N.C. App. 584, 590-91, 449 S.E.2d 34, 38-39 (1994), we rejected the argument that the aesthetic value of the trees and the replacement cost of the trees, including the type of replacement trees used, were improper for the jury to consider when determining the landowner's damages. Thus, in an action for trespass to timber where the trees have little or no commercial value after they are cut, we hold that evidence of the cost of reasonable remedial measures, such as replacement and restoration, constitutes competent evidence of the diminution in value of the real property, provided it is owned for personal use.
We have previously cited portions of the Second Restatement of Torts in this context, see Huberth, 120 N.C. App. at 354, 462 S.E.2d at 243, and note that it is consistent with our holding above. Comment b to § 929(1)(a) of the Restatement is illustrative:[I]f a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building. So, when a garden has been maintained in a city in connection with a dwelling house, the owner is entitled to recover the expense of putting the garden in its original condition even though the market value of the premises has not been decreased by the defendant's invasion. Restatement 2d of Torts § 929, cmt. b (1979).
Like the gardener in the Restatement, landowners injured by a trespass to ornamental trees on their property are entitled to recover the "difference in the value of the land before and after cutting." Williams , 154 N.C. at 309, 70 S.E. at 632. And they may demonstrate the extent of the diminution in value of their property by presenting evidence of "the cost of replacing or restoring the trees . . . as is reasonably practicable." Harper, 89 N.C. App. at 147, 365 S.E.2d at 178.
Since the defendants admitted to cutting down the trees illegally, the opinion notes that the only fact question for a jury to consider was damages and the evidence of the plaintiffs' damages in the form of the replacement cost of the trees was sufficient "to go to the jury and to support a verdict[.]", the Court of Appeals unanimously reversed the judgment of the trial court granting the defendants' motion for directed verdict and remanded for a new trial because the cost of replacing the ornamental trees was deemed competent evidence of the diminution in value of Plaintiffs' property.
A review of the opinion is beneficial for an understanding of damages recoverable for tortious cutting of trees, both merchantable and ornamental.