What is the statute of limitations in New Hampshire when a neighbor cuts down my tree?
“Timber trespass” in New Hampshire occurs when a person or company cuts, removes, or damages trees on another’s property without the landowner's permission. Timber trespass can be both a crime and a “tort,” or civil wrong. Timber trespasses are rarely prosecuted as crimes in New Hampshire because it is often difficult to prove the perpetrator’s intent. In most situations, the perpetrator was not intentionally seeking to steal trees or timber, but instead acted accidentally or negligently in failing to make sure the trees they were cutting were actually on their own property. If a neighbor cuts down your tree, it is likely that the only recourse will be civil: bringing a claim for monetary damages resulting from the timber trespass.
Other articles on this website (and our free Tree Value Calculator) discuss how much money a tree is worth. In this blog post, we will discuss a different topic: how much time do you have to bring a lawsuit for timber trespass in New Hampshire?
The short answer: generally, three years. N.H. RSA 508:4 provides that:
Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.
RSA 508:4 is the general statute of limitations for civil causes of action in New Hampshire, including negligence and trespass. As noted in the statute quoted above, the default statute of limitations is three years.
The discovery rule
There is, however, an exception to this general three year statute of limitations. RSA 508:4 states that “when the injury and it causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.”
This “exception” to the statute of limitations is known as the “discovery rule.” “The statutory discovery rule is designed to provide relief in situations where the plaintiff is unaware either of the injury or that the injury was caused by a wrongful act or omission.” Lamprey v. Britton Const. Inc., 163 N.H. 252, 257 (2012). The discovery rule requires that two prongs to be satisfied before the statute of limitations begins to run. “[1] a plaintiff must know or reasonably should have known that it has been injured; and [2], a plaintiff must know or reasonably should have known that its injury was proximately caused by conduct of the defendant.” Beane v. Dana S. Beane & Co., 160 N.H. 708, 713 (2010).
A classic example of the “discovery rule” is a medical malpractice injury involving a surgical sponge. In such a case, a surgeon negligently leaves a surgical sponge inside a patient when performing surgery. The patient, of course, is unaware of this event until they begin having medical problems due to the negligent act — which may take several years or longer to discover. Under the discovery rule, the legal “clock” does not begin to run for statute of limitations purposes until the patient “knew or reasonably should have known” about the negligent act and its consequences.
Timber trespass and the discovery rule
As it pertains to timber trespass lawsuits, the discovery rule could apply in situations where someone’s tree is cut down, but they do not realize it was on their property until after the three year statute of limitations has passed.
Notably, the discovery rule is an objective inquiry, not a subjective one. This means that it is not dependent on when the plaintiff actually discovered the trespass. “Rather, the standard is what a plaintiff in the exercise of reasonable diligence should have discovered.” Troy v. Bishop Guertin High School, 176 N.H. 131, 137 (2023) (emphasis added) (citation omitted). “Whether the plaintiff exercised reasonable diligence in discovering the causal connection between the injury and the defendant's alleged act or omission is a question of fact.” Id.
The discovery rule imposes a high standard. It is not enough to say “I didn’t know until I got the survey.” The real question is, when could you have gotten that survey? In many situations, even if a landowner does not know the exact location of their property line, they know enough to tell when the neighbor has cut down a tree that is “close” to the property line. In that situation, a New Hampshire court would likely find that a “reasonably diligent” plaintiff landowner would get a survey done immediately if they were suspicious that a timber trespass may have occurred. It is likely not sufficient to argue things like “I assumed the neighbor knew what they were doing” or “I never thought they’d actually cut my trees down.”
On the other hand, it is possible that under some circumstances the discovery rule would apply. For example, if both neighbors have long observed the same property line, or the perpetrating neighbor assures the plaintiff homeowner that they’ve verified the property lines prior to cutting, it may not be “reasonable” to expect a homeowner to go out and incur the cost of a formal property survey. See Hoggatt v. Pezdek, No. D056322, 2011 Cal. App. Unpub. LEXIS 822, at *37-38 (Feb. 1, 2011) (“[I]t is not enough [to defeat the discovery rule] that a survey would have easily determined the boundary, the doctrine requires that plaintiffs have some information that would put them on notice to conduct an inquiry into a possible boundary problem and seek that survey.”). The discovery rule would especially be applicable if the perpetrating neighbor intentionally obfuscates or misleads the plaintiff homeowner regarding the facts of the timber trespass. Allyn v. Boe, 943 P.2d 364, 373 (Wash. App. Ct. 1997).
In conclusion, in most cases the statute of limitations for timber trespass claims in New Hampshire is three years. Under some circumstances, the discovery rule could apply and delay the running of the clock. However, potential claimants in New Hampshire would be wise not to rely on the discovery rule in a timber trespass case. It is advisable to get a survey if you have any inkling that a neighbor may have cut a tree on your property, and consult with an experienced timber trespass attorney as soon as possible.
