Restoration costs are appropriate because it is hard to otherwise quantify the value of trees that serve some personal purpose like privacy, shade, or beauty. The purpose of compensatory damages “is to put the injured party as nearly as possible in the same position he would have been had the injury not occurred.” Phillips v. Verax Corp., 138 N.H. 240, 248 (1994). Replacing a felled tree with one of the exact same type and dimensions, that provides the same aesthetic, shade, and privacy benefits, is the only way to really make the tree owner whole.

For smaller trees, determining replacement cost is a relatively simple exercise. Tree nurseries and landscaping centers sell and install trees at various stages of growth and it may be possible to get an exact estimate of how much it would cost to buy and install a similar-sized tree of the same species. This cost would be the measure of damages for smaller re-plantable trees. 

Assessing the value of larger trees is a more difficult endeavor. It is typically not feasible to plant a larger tree that may be 50 feet or more in height. Therefore, when determining the replacement cost of a large tree, arboreal appraisal methods must be employed.

The International Society of Arboriculture publishes a book called the “Guide for Plant Appraisal” that is the industry standard for tree value appraisal. The guide contains several different methods for determining what a tree is worth. For large trees, arborists use a system called the “Trunk Formula Method.” In short, the Trunk Formula Method allows arborists to calculate the replacement value of a large tree by determining the per-square-inch cost of a smaller available replacement tree. For example, if a 10-foot-high pine tree is available at a nursery for replanting, an arborist will calculate the per-square-inch cost of that 10-foot pine and then extrapolate that cost to the tree of the same species being appraised (for example, a 50-foot pine that was cut down by a neighbor). Arborists then modify the “basic tree cost” of the hypothetical replacement tree by making adjustments which account for the condition and location of the appraised tree.

The replacement value of a large tree can be significant. Appraised values of trees with large stump diameters can be worth tens of thousands of dollars. An experienced tree law attorney should be able to give a rough approximation of a tree value. It is important to remember, however, that a jury has enormous discretion in determining how much money to award an injured landowner, even if it is clear their trees were wrongfully cut. The jury is not required to accept an arborist’s appraisal at face value, and timber trespass verdicts can vary greatly based on a number of factors. 

Insurance coverage for timber trespass

The good news for victims of timber trespass is that there is often insurance coverage available to compensate them for their loss. When a neighbor is responsible for cutting down their neighbor’s trees, a claim can be made with the perpetrator’s homeowner’s insurance. This is because homeowner’s insurance policies include “personal liability” coverage. Liability insurance indemnifies homeowners when they are legally liable for damages due to their own negligent conduct. Thus, if a homeowner accidentally misjudges the property line and cuts down their neighbor’s trees, their homeowner’s insurance should be responsible for covering liability that results.

Insurance companies are sometimes unfamiliar with timber trespass claims. At first glance, there may be questions about whether a timber trespass is an “accident” to which liability insurance applies. Trespass, after all, is an “intentional tort” under the law, and liability insurance covers only “accidents” (also termed “occurrences” in insurance parlance).

Courts in New Hampshire, however, have eschewed the technical legal categorizations of causes of action in adjudging whether an incident is a covered occurrence. Rather, the question is whether the insured intended to inflict injury. Lumber Ins. Companies, Inc. v. Allen, 820 F. Supp. 33, 35 (D.N.H. 1993). Thus, “if an insured sets out to clear his property of trees and he inadvertently strays across the unmarked property line and cuts down a neighbor’s tree, his conduct would be accidental . . . because he had no intention to injure.” Id.

Therefore, if a neighbor who perpetrated a tree-cutting has homeowner’s insurance, an injured landowner may be able to make an insurance claim for compensation. The presence of insurance coverage means that property owners may be able to receive compensation through an insurance settlement without having to file a lawsuit. Insurance settlements benefit both the claimant and the insurance company by compromising in order to remove the uncertainty of litigation.