Introduction
In Michigan, as is the case in many states in the northern part of the United States, the fall and early winter is the best time to take down unwanted or diseased or damaged trees or tree limbs. There are many reasons for this. If the tree that is being removed is dead, a removal after the ground starts to freeze protects the soil and grass as well as surrounding plants and trees from the damage that could be caused by the removal. Additionally, if the tree being removed is diseased, that disease is typically dormant in the colder weather months. The need to remove the tree in the fall or winter is especially true if the tree (or tree branch) to be removed is an oak. Oak wilt is a serious issue, and if oak trees are removed during the warm weather months, the disease can be transmitted from tree-to-tree and cause significant damage to other trees both on your own and neighboring property. Even further, the cost to remove a tree after the leaves have fallen may be less because there is not as much clean-up involved. That all being said, when considering whether to cut down (or trim) trees in Michigan, the first critical step is to verify that the tree (or limb) is on your property. If you do not do this, then you could open yourself up to significant claims of damage if the tree or limb being removed is on your neighbor’s or public property.
Recoverable Damages for Improperly Removing, Injuring or Killing Trees on Another’s Property
Michigan, along with at least 42 other states, provides for penalties for removing lumber that is on another’s property—a cause of action also known as timber trespass. More specifically, MCL 600.2919 states that any person who “cuts down or carries off any wood, underwood, trees, or timber or despoils or injures any trees on another’s lands,” or “digs up or carries away stone, ore, gravel, clay, sand, turf, or mould or any root, fruit, or plant from another’s lands” without the permission of the owner (or by way of a license if the land is publicly owned), is liable to the owner of the land or the public body for 3 times the amount of actual damages suffered by that owner.[i]
Importantly, this three times or treble damage provision requires intentional or willful conduct on the party taking down the tree(s), and the adjoining owner is only entitled to actual damages if it is found that the party cutting down the tree had probable cause to believe that the land was his or her own, or if the trespass was only casual and involuntary. Iacobelli Construction Co, Inc v. The Western Casualty & Surety Co, 130 Mich.App 255, 262; 343 NW2d 517 (1983). Willful or intentional conduct will typically be found if the person cutting down the tree knows where the property line is, or if the property line is marked. On the contrary, if a party has a good faith and honest belief that he or she possessed the legal authority to commit the complained-of act, treble damages will usually not apply. In a lawsuit seeking damages under the Act, the purportedly harmed owner has the burden to prove that the cutting was done without permission, while the party that cut down the tree has the burden to show that any trespass was casual and involuntary rather than wilful.
Determining damages (whether singular or trebled) that are recoverable for a timber trespass is a more detailed process and the court will typically attempt to fix a valuation that will best compensate the injured party for the improper removal. Some of the damages that may be recoverable in Michigan include:
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- The value of the timber removed;
- The value of any other trees that are damaged by the improper removal;
- The value of the tree if removal of branches or limbs causes the tree to die;
- Clean up costs to remove items such as debris, to fill in stump holes and to remove tree tops related to the improper tree removal. Miller v. Wykoff, 346 Mich. 24, 26, 77 N.W.2d 264, 265 (1956); and
- The difference in value of the land before and after the injury. ?This is generally recoverable if the court finds that the injury is “permanent or irreparable.” Schankin v. Buskirk, 354 Mich. 490, 494 (1958). This can also include the loss of aesthetic value of the property. Thiele v. Detroit Edison Co., 184 Mich. App. 542, 545, 458 N.W.2d 655, 657 (1990).
The last type of recoverable damages (difference in the value of the land) is not always available, however. An example of where a court analyzed valuation of the land in the context of the removal of trees was in the Schankin case. There, the plaintiffs purchased a parcel in the Detroit suburbs and one of the reasons why the property was chosen was the existence of mature trees on the property. During development of a neighboring property, and despite the existence of lot line stakes, six of the large trees on the plaintiffs’ property were removed. Although the defendants argued that the value of the property was actually increased by the removal of the trees, the jury found in favor of the plaintiffs after testimony that, due to the nature of the trees removed (ornamental or shade), the trees had an intrinsic value to the contemplated or existing use to the land not tied directly to a straight valuation analysis.
When deciding the value of the timber removed, there is no set calculation that a court will use. If the tree is in an urban area, the landscaping replacement value for the tree may be considered. In more rural areas, the commercial value of the actual tree(s) removed (otherwise known as stumpage value) is typically used to determine the value of the tree. However, if the tree removed had sentimental value, or was used for a purpose unique or special to the injured party (as was the case in Schankin), the court will typically decide the amount to compensate that injured party that is not always tied to replacement or stumpage value.
In Michigan, a party who files a lawsuit seeking damages as outlined above is also potentially entitled to reasonable attorneys’ fees and costs from the offending party if successful.
What Happens if a Tree is on Multiple Properties?
One issue that may come up when deciding whether to remove a tree is what happens when either the tree, or the branches on the tree, is located on multiple properties. Generally, if a tree trunk is located on a boundary line between two properties, the tree is co-owned by both property owners. In that situation, neither party has the right to remove or destroy it without getting the consent of the other party.
If branches from a tree located on another party’s property extend over into an adjoining property, the owner of the adjacent property has the right to remove the branches without the consent of the landowner where the tree trunk is physically located. However, during that removal, it is critical that the removal of the branches is done in a way that does not kill the tree. If the tree is killed, then a claim could potentially be asserted against the party that removed the branch(es). In that situation, involving an arborist to provide guidance on when and how to remove the encroaching branches is probably warranted.
Are there any other Concerns when Removing a Tree that may be Located on Another’s Property?
In Michigan, a party who willfully destroys a tree can also be subject to criminal penalties. 750.382 of Michigan’s Penal Code provides for fines up to $20,000 and up to 5 years in prison depending on the value of the tree(s) removed.
Conclusion
If you are considering removing a tree, or part of a tree, that is anywhere close to a property line, further investigation and diligence is advised before taking that tree or limb down. Retaining a licensed surveyor to provide you with a survey showing the location of the tree(s) to be taken down may be the first, and easiest step. Although not always possible, communicating with your neighbor will also go a long way. If the tree to be removed is dead, or dying, the neighbor may be in favor of removal even if the entire tree, or part of the tree, is on the neighbor’s property. In that situation, an agreement should be negotiated and executed to head off a claim being asserted at some point in the future. If a dispute arises between you and your neighbor regarding the ownership of a tree, or trees, it may warrant getting the court involved before the tree(s) is removed to avoid a lengthy and time-consuming litigation. Therefore, if you are considering removing a tree or parts of a tree, and the removal is to take place at or near your property line, it is suggested that you retain competent real estate counsel to walk you through the process.
[i] In an unpublished decision, the Michigan Court of Appeals ruled that a party can be liable for treble damages for removing a tree in an area where that party holds an easement. Rudy v. Lints, No. 293501, 2011 WL 666143, at *4 (Mich. Ct. App. Feb. 22, 2011). In ruling in favor of the owner whose tree was taken down, the Court stated that an owner of an easement “cannot displace the possessor or the owner of the land . . . .” Terlecki v Stewart, 278 Mich App 644, 659-660; 754 NW2d 899 (2008). This is important, because even though an owner may have the right to use another party’s property under an easement, if a tree needs to be removed on that easement, the actual owner of the property must consent to the removal.
Mr. Toosley focuses his practice on real estate litigation, zoning and land use, construction and financial services litigation. Over the course of his career, he has represented owners, landlords, condominium associations, lenders and all parties in the construction chain, handling all aspects of real estate-related disputes, including construction defect cases, payment and landlord-tenant disputes as well as real estate foreclosures, mechanic’s lien cases and fraud and business tort claims in state and federal court as well as in mediations and arbitrations throughout the United States.
