Legal Update


  • October 12th, 2012
  • Print

A property owner cut down a mature 70 feet tall Aleppo pine tree whose trunk was located partly on his property and partly on the neighbor’s property.   He cut down the tree thinking the tree was his and that it presented a safety hazard.  When sued by the neighbor, the trial court awarded double damages in excess of $100,000 and the appellate court affirmed.   Kallis v. Sones (2012) 146 Cal.Rptr.3d 419.

FACTS:  Plaintiff and Defendant were neighbors for more than 30 years.  Beginning long before either party came to own their properties, there was an Aleppo pine tree that started growing on one side of their common boundary line but eventually grew to straddle the property line.   By 2008 the tree was more than 50 years old and 70 feet tall.  But its defining characteristic was its form. A few feet up from the base of the tree the trunk split into two separate, but still large trunks. One of these trunks grew over the Plaintiff’s property and one grew over the Defendant’s.  Each trunk supported a fully developed system of branches and limbs.

In June 2008, the Defendant grew concerned that the tree could topple and cause damage so he hired workers to cut it down, without first gaining the neighbor’s (Plaintiff’s) consent.   Instead of cutting just the portion of the tree on the Defendant’s side of the property line, the workers cut both of the secondary trunks, leaving a large stump in the ground. A survey conducted after the tree was cut confirmed that at ground level, 41 percent of the stump lay on the Plaintiff’s property, while 59 percent lay on the Defendant’s.

Plaintiff sued Defendant for “wrongful cutting and removal of timber,” trespass, and negligence and sought treble damages pursuant to Civil Code 3346.   This code section states that for wrongful injuries to trees or underwood upon the land of another the measure of damages is three times such sum as would compensate for the actual detriment, except that where the defendant had probable 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.  On summary adjudication the trial court denied the treble damages claim by finding that the Defendant believed the pine tree was theirs and that it presented a safety hazard.

A bench trial was held on the issue of damages with the parties stipulating that the Aleppo pine tree was on the property line and that the Defendant caused the tree to be cut down. After hearing testimony from the parties and each side’s arborist expert, the trial court awarded $53,628.31 in damages to the Plaintiff. When doubled pursuant to Civil Code section 3346(a), the total judgment amounted to $107,256.62.  Defendant appealed.

DECISION:  As a tree growing on a property line, the Aleppo pine tree was a “line tree.”  Civil Code section 834 provides: “Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common.” As such, 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 Defendant argued on appeal that since the Aleppo pine tree was located on both sides of the property line, the trial court was required to reduce the damages award by an amount that would reflect only the proportionate percentage of the trunk that lay on the Plaintiff’ property. The Court of Appeal disagreed and ruled that the award for the full amount was properly within the trial court’s discretion based on the following factors: (i) the tree’s unusual size and form made it very unusual for a “line tree”—it functioned more like two trees growing on the separate properties; (ii) the tree’s attributes, such as its broad canopy, provided significant benefits to the Plaintiff’s property; and (iii) the Plaintiff placed great personal value on the tree.

The Defendant also argued that Civil Code 3346 only allowed the trial court to double the value of the pine tree and not the cost of planting and aftercare.   The appellate court disagreed and upheld the full award.   It should be noted that the “value” of the tree was established by expert testimony to be $42,678, whereas the replacement cost to locate, transport and install an identical 70 foot tall Aleppo pine tree would cost $1 million.  Fortunately for Defendant, the court used the tree “value”, not the “replacement cost”.

ANALYSIS:   California law is very protective of its trees.  Before cutting down a tree whose trunk is near the property line with your neighbor, you should take special precautions.  You need to find out if the tree trunk is located “entirely” on you property.  Fence lines are not always located on the true boundary line.  Just because the tree trunk is on your side of the fence does not mean the trunk is located entirely on your land.  The safest course of action before cutting down a “line tree” is to survey the property line to make sure no part of the tree trunk is over the line.  Alternatively you should obtain your neighbor’s prior written consent.  Doing both is probably best.  Anything less puts you at risk of liability for double or triple damages.

When the trunk of a tree is located wholly on your neighbor’s property you have the legal right to remove tree branches that overhang your property.  However, the branches can only be cut back to the boundary line.

If the neighbor’s tree shades your solar panels, the California Solar Shade Act may give you a legal right to cut it down.  However beware of the many restrictions and exemption in this law.  (Public Resources Code 25980 – 25986).  In California only the sun has more legal protection than a tree.

Full text of the decision: