Who Says Money Doesn’t Grow on Trees?—Wisconsin’s Law of Damages for “Growing Things”

WDC Journal Edition: Summer 2015
By: Jane E. Howard, Corneille Law Group, LLC


Summer is in full swing, and with it the toils of the season's landscaping around your home. New and old homeowners alike are often surprised by the time (and expense) of new trees, bushes, and other landscaping that improves the look of a home, and in many ways, a home's value. That cost is most shocking when you are served with a lawsuit alleging you have somehow damaged someone else's landscaping, particularly trees.

The scenario is far more common than you would expect, especially in rural areas where lots have been divided over time, surveys are outdated, and boundaries are not as clear as a white picket fence. Simply look to the plethora of cabin properties dotting the shores of Wisconsin's lakes and you'll find fertile ground for growing dispute.

For example, Joe Client has lived next door to Jane Claimant for many years. Joe has always hated that blue spruce along the property line near the lake. While it creates nice shade and privacy for Jane, its needles clog up Joe's shoreline. Joe Client is determined to cut it down this year. After all, he's fairly certain the tree is on his side of the property line. Or is it?

I. Timber Theft Versus Ornamental Trees

Under the common law, property owners are entitled to a self-help remedy to trim any branches that encroach onto their property.1 However, once a property owner trims branches on another's property, it is trespassing. Further, mistake is not a defense to trespass. Even if a property owner in good faith believed a tree or branches were on his or her property, he or she will still liable for cutting them down if he or she was wrong.

A. Wis. Stat. § 26.09: Timber Theft

Wisconsin Stat. § 26.09, known as Wisconsin's timber trespass statute, finds its origins in Wisconsin's timber industry. For a time, the cost of paying the penalty for timber theft, defined as the unauthorized cutting, removal, or transportation of "raw forest products," was often less than the outright cost of timber.2,3 This pressured the Wisconsin Legislature to adopt adequate penalties for timber theft in order to dissuade the unlawful cutting and taking of timber. In 2000, the legislature conducted a major overhaul of Wisconsin's timber trespass law, creating three distinct categories of penalties depending on the level of culpability of the "harvester."4

Under the first category, a claimant is entitled to damages equaling the "stumpage value" of the raw forest products harvested if the tortfeasor reasonably relied upon a recorded survey that was done by a licensed surveyor.5

Under the second category, a claimant is entitled to two times the stumpage value if the tortfeasor did not rely on a recorded survey, but otherwise took reasonable precautions to identify harvesting boundaries.6

Under the third category, a claimant is entitled to four times the stumpage value, or two times the fair market value of the raw forest products harvested, whichever is greater, if the tortfeasor did not rely on a recorded survey, and did not take any reasonable precautions to identify harvesting boundaries.7

The "reasonable precautions" used to identify the harvesting boundaries are defined by statute as doing allof the following:

  1. Use of a compass and measuring device or use of a global position system if the identification is conducted by a person trained in the method8;
  2. Use of a method established by the Department of Natural Resources9;
  3. Review of land ownership records and any other resources or documentation regarding the land, including instruments of conveyance, certified survey maps, survey field notes, and information on the land's boundaries provided by the owners, or their agents, of any land that abuts a proposed harvesting boundary.10

Wisconsin Stat. § 26.09(3) provides for the possibility of two other forms of damages. Under § 26.09(3)(c), a court shall award the owner of raw forest products that were harvested without the consent of the owner, any economic damages resulting from that harvest, such as the diminished value of land. Under § 26.09(3)(d), a court shall award other reasonable and necessary costs to the victim, including the costs to determine the fair market or stumpage value of the forest product harvested, as well as the cost of cleanup and replanting.11

B. Shade and Ornamental Trees

The damages articulated in Wisconsin's timber trespass statute are calculated in pure economic terms. For example, "stumpage value" is defined as "the fair market value of raw forest products less the cost of their harvesting, whichever is greater," and determined by the Department of Natural Resources each year with variations by municipality.12,13 However, neighbors involved in a property dispute are not necessarily interested in a tree's stumpage value, but intangibles like shade and privacy.

In Wisconsin's seminal case on damages for shade and ornamental trees, Gilman v. Brown, the Wisconsin Supreme Court held that a claimant's damages are not limited to the diminished value of the land related to the timber's destruction, but may also include the cost to replace damaged timber in order to account for comfort, convenience, and privacy.14 In reaching this holding, the court recognized that a tree's destruction may not always have an impact on the value of the property for purposes of sale.15

The Wisconsin Court of Appeals in McKinnon v. Benedict went even further, holding that when circumstances are such that it is practical to restore the premises, the owner is entitled to recover the amount reasonably necessary to do so, which may include better quality trees.16 As a consequence, plaintiffs frequently cite McKinnon to support largely subjective damages claims.

So what happens when the destruction of timber spans economic and aesthetic interests? Is an owner entitled to damages under the categories defined in Wis. Stat. § 26.09 for the removal of shade or ornamental trees?

To date, there is no bright line rule or case clarifying which damages theory applies. Without clear indication, plaintiffs' counsel will be inclined to use the multiple damage provisions under Wis. Stat. § 26.09 as leverage depending on the circumstances of the case.

Dicta exists that Wisconsin courts do consider the nature of the timber destroyed. Unfortunately, many of these cases pre-date the legislature's revisions to Wis. Stat. § 26.09 in 2000; thus, these cases examine whether damages should consist of diminishment in value to the land versus replacement costs, as opposed to the application of statutory damages.

For example, in Otto v. Cornell, the trial court examined the proper measure of damages for a 16 row of trees destroyed that marked a boundary between two neighbors' lots. On appeal, the court of appeals' ultimate holding was that the proper measure of damages for the destroyed trees was the cost of replacing the ornamental or shade trees, but that more than one rule of damages could apply when the replacement cost would be unreasonable or excessive.17 In reaching this holding, the Otto court drew a comparison between the ornamental tree destroyed in Gilman and the timber destroyed in previous cases like Miller v. Neale and Nelson v. Churchill.18,19,20 It therefore stands to reason that Wisconsin courts would use the same analysis in determining whether an owner is entitled to damages under the new statutory scheme.

Finally, the Wisconsin Court of Appeals solidified the damages theory for ornamental trees in Threlfall v. Town of Muscoda.21 Essentially, the Threlfall case highlights the willingness of courts to liberally construe damages for a claimant given that the tort is based in trespass.22

II. An Illustration

With a number of damages theories available to claimants, and assuming liability is undisputed, they are poised to make substantial recoveries.

Hearken back to our example with Joe Client and the spruce tree. Under the common law, Joe is entitled to trim any branches that are encroaching on his property without liability. Let us assume Joe decides to completely cut down the tree without referencing any surveys or other resources. As luck would have it, the tree is on Jane Claimant's property. Jane retains an attorney who pleads damages under Wis. Stat. § 26.09, including four times the stumpage value of the spruce or two times the fair market value of the raw forest products harvested, plus all economic damages, such as diminishment in value to her land, and costs to obtain an estimate of the fair market value. In the alternative, she argues she is entitled to the diminished value of her property, or the cost to replace the spruce.

As Joe's attorney, it will be important to distinguish the damages available for timber theft from the damages available for destruction of ornamental trees. Arguments should be made that the statutory damages set forth in Wis. Stat. § 26.09 were not intended by the legislature to allow owners to recover a windfall in disputes with neighbors. Dicta found in Otto v. Cornell noted above may be helpful in drawing this distinction.

Even if defense counsel is successful in taking statutory damages off the table, however, the claimant will still be entitled to diminution in value or replacement costs.

A. Diminution in Value

An evaluation of the diminution in value requires the services of a certified appraiser, or possibly a real estate broker. Appraisal services come with their own challenges. First, appraisals are highly dependent on location. The appraiser must be familiar with the specific market, and it may be hard to find an appraiser comfortable offering opinions in certain locations.

Beyond the hurdle of simply finding an appraiser up for the job, the nature of assessing the value of a property with and without a tree is challenging. Appraisers determine value through comparison to other similar properties. The presence or absence of a single or multiple trees is not necessarily a point of data with the Multiple Listing Service (MLS), a source of data on the value of various properties. Unless the appraiser can locate and interview sources familiar with this specific situation, defense counsel may faceDaubert issues as to the data the appraiser relies upon to form his or her opinions. For all of these challenges, however, appraisers are defense counsel's best bet to articulate an alternative range for damages.

B. Replacement Costs

The other possibility is that Jane Doe is entitled to replacement costs. In our scenario, let's assume the spruce cut down was fully grown. Jane's attorney cites McKinnon for the proposition that she is entitled to recover the amount reasonably necessary to put her in the same position as if the spruce were not unlawfully cut down. Does that mean she is entitled to a fully-grown spaded tree? What about the quality of the tree?

Full-grown, spaded spruce trees run anywhere from $400 to $1,600 each depending on their quality. For cases involving damage to more than one tree, one can see how quickly damages can add up. Further, only certain nurseries may offer this type of spruce. If Jane lives in Elkhart Lake, but the nearest nursery to have this spruce is in Milwaukee, is Jane entitled to the cost to transport the tree(s) to her home? Or under Threllfall, does this make her damages excessive? These questions will need to be answered and can have a potentially significant impact.


Our example illustrates the unique considerations to be taken in these cases. At the root (pun intended) of this dilemma is determining the interests involved for the trees or landscaping damaged. From there, and assuming no dispute of liability, the focus is advocating for the theory that will minimize costs and damages to the client.

Jane E. Howard, Wisconsin 2012, is an associate attorney with the Green Bay office of Corneille Law Group, S.C. She specializes in the defense of personal injury and professional negligence cases.

1 See Aman v. Aushwitz, 122 Wis. 2d 776, 362 N.W.2d 447 (Ct. App. 1984) (unpublished).
2 "Raw forest products" means forest products not altered by a manufacturing process off the land from which they are taken, and includes seedlings, saplings, shrubs, whole-tree chips, boughs, logs, pilings, posts, poles, cordwood products, pulpwood, fuel wood, and Christmas trees. Wis. Stat. § 26.05(1).
3 See Robert P. Rusch, "It's the Law," Woodland Management (Spring 2009).
4 1999 Wis. ALS 190; 1999 Wis. Act 190; 1999 Laws of Wis. 190; 1999 Wis. AB 504.
5 Wis. Stat. § 26.09(3)(b)1.
6 Wis. Stat. § 26.09(3)(b)2.
7 Wis. Stat. § 26.09(3)(b)3.
8 Wis. Stat. § 26.09(5)(b)1.
9 Wis. Stat. § 26.09(5)(b)2.
10 Wis. Stat. § 26.09(5)(a)2.
11 Wis. Stat. § 26.09(3)(d).
12 See Wis. Stat. § 77.91(1).
13 Note "Stumpage Value" was amended in 2009 from "Stumpage Rate." 2009 Wis. ALS 365; 2009 Wis. Act 365; 2009 Wis. Laws 365; 2009 Wis. AB 580.
14 Gilman v. Brown, 115 Wis. 1, 7, 91 N.W. 227 (1902).
15 Id. at 8 ("The owner of property has a right to hold it for his own use as well as to hold it for sale, and if he has elected the former he should be compensated for an injury wrongfully done him in that respect, although that injury might be unappreciable to one holding the same premises for purposes of sale.").
16 In McKinnon v. Benedict, the court allowed as damages the cost to replace trees that had been destroyed with larger and better quality trees where it was believed necessary to restore a mound that had provided increased privacy from the plaintiffs' neighbors. 38 Wis. 2d 607, 625, 157 N.W.2d 665 (1968) ("We view this item of damages as being no more than placing the plaintiffs in the same position as they were prior to clearing the property and bulldozing the mound.").
17 Otto v. Cornell, 119 Wis. 2d 4, 10-11, 349 N.W.2d 703 (Ct. App. 1984).
18 Id. at 9-10.
19 Miller v. Neale, 137 Wis. 426, 119 N.W. 94 (1903).
20 Otto, 119 Wis. 2d at 9-10 ("Otto maintained the lawn around the trees, and when one was damaged he replaced it. The trees could be ornamental even though they marked a boundary.... Otto's trees are more like those in Gilman than the timber destroyed in Miller v. Neale, 137 Wis. 426, 119 N.W. 94 (1903), and Nelson v. Churchill, 117 Wis. 10, 93 N.W. 799 (1903).").
21 Threlfall v. Town of Muscoda, 190 Wis. 2d 121, 527 N.W.2d 367 (Ct. App. 1994).
22 Id. at 135 (A landowner has "the right to enjoy the use of his or her property and [it is important to use] a rule of damages that more carefully guards against failing to compensate an injured landowner than against possible overcharge to a wrongdoer.").