It happens every day between neighbors. Oak trees on private property get cut down. The diminution in the value of the property is the loss of the trees. Plaintiff wants to recover the cost of replacing the trees. Such a recovery would cost more money than the property’s value.
Are damages in the form of restoration of the trees reasonable if the cost of replacement would be worth more than what the whole property is worth?
If it is determined that Plaintiff had personal reasons for restoring the property to its original condition, and such restoration could be achieved at a cost that is not unreasonable in relation to the damage inflicted and the value of the land prior to damages, Plaintiff may be awarded restoration costs for the trees cut down.
The measure of damages for tortious injury to property is the amount which will compensate for all the detriment proximately caused thereby. There are two ways to determine such damages. The general measure of damages is the difference between the value of the property before and after the injury. An alternative measure is the cost of restoring the property to its condition prior to the injury.
As to restoration awards, courts will normally not allow costs of restoration if they exceed the diminution in the value of the property prior to the injury. This is because the basic objective of compensatory damages is to make an injured party whole, but no more than that. The Plaintiff may be awarded the lesser of the two amounts.
An exception to the general rule is that restoration costs may be awarded even though they exceed the decrease in market value if the owner has personal reason for restoring the original condition, or there is reason to believe that the owner has a bona fide desire to repair or restore. The personal reason exception has been invoked in cases involving destruction of shade or ornamental trees that were of personal value to the owner, but of little commercial value. Though, courts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered. These cases have also allowed recovery of the value of the trees or shrubbery without regard to the diminution of the value of the land, if restoration of the land to its former condition was impossible or impracticable.
If the trespass is found to be willful and malicious, the court may impose more damages. If the trespass is found to be causal and involuntary or under a mistake of fact, the court must impose fewer damages.
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