Robert Nislick 
The Massachusetts statute for willful trespass to trees, G. L. c. 242, § 7, states that:
“A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.”
Let’s say you are homeowner in a typical Massachusetts town. Everyone in the neighborhood is friendly, except for the gentleman who happens to live next door. Assume there is no fence between your property and the neighbor’s property. A few unmaintained trees have sprung up near the boundary line. One day, you are cleaning up your property and you cut some brush. Your yard looks a lot better now and it is sunnier too.
About a week later, you open your mailbox and find a letter from an attorney’s office. Your heart pounds to learn that your neighbor is accusing you of cutting down his trees. The neighbor wants compensation. The demand sounds utterly ridiculous.
Most of the time, it does not make economic sense for the person who has suffered a trespass to trees to pursue such a claim. The plaintiff in such a case may see dollar signs in his eyes, particularly when reading that the statute may provide for treble damages.
But how are damages measured? Most plaintiffs argue in favor of a restoration cost. This may involve having an arborist provide an expert opinion based on the species of the tree, the expense of purchasing another tree of the same species, the size of the trunk, the health of the tree, and the cost to try to restore what was damaged to near original shape.
The statute, however, does not obligate the court to follow a restoration measure of damages. “The statute does not prescribe how the damages shall be measured.” Larabee v. Potvin Lumber Co., 390 Mass. 636, 643 (1983). “The most common measures of damages are the value of the timber cut and the resulting diminution in value of the property.” Glavin v. Eckman, 71 Mass. App. Ct. 313, 317-318 (2008).
For example, the Appeals Court found in Ransom v. GTL Forest Corp., Appeals Court No. 2020-P-0625, Mem. and Order Pursuant to Rule 23.0 (June 9, 2021), that, “the value of the timber wrongfully cut was an appropriate measure of damages”, “especially considering that the cost of restoration was not reasonably necessary in light of the damage inflicted . . . and would have represented a very large and disproportionate expense to relieve from the consequences of a slight injury”. The plaintiff was deprived of approximately $300.00 worth of wood.
In Balicki v. Ziegler, Land Court Case No. 18 MISC 000469 (RBF), Decision at 19 (Foster, J.) (July 19, 2022), “there was no evidence at trial of the cost of restoring the hemlocks or any diminution in market value, let alone any evidence of the value of the timber.” Additionally, the court found that the, “testimony was too vague to establish any restoration cost. There is no measure by which I can award damages.” The Land Court judge found that the party was entitled “to nominal damages at least” of $100, which was trebled to $300. See Lawrence v. O’Neill, 317 Mass. 393, 395 (1944).
A plaintiff in a trespass to trees case should also take note that the statute does not provide for the award of attorney’s fees. Accordingly, even if a plaintiff is successful in obtaining a money judgment against the neighbor who has cut the tree, the plaintiff will very likely have spent more in attorney’s fees than the amount of the money judgment.
About the author: Robert Nislick is a Massachusetts real estate lawyer and former law clerk of the Land Court. For more information, contact him at (508) 405-1238, or by e-mail.
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