Vermont Civil Jury Instruction Committee

Plain English Jury Instructions

Section 9.        Unlicensed Cutting of Timber 13 V.S.A. § 3606

 

Table of Contents

9.0       Unlicensed Cutting of Timber—Description of Claim

9.1       Damages for Wrongful Cutting of Timber

9.2       Factors that Mitigate Damages—Burden of Proof

9.3       Indemnity Claim against Surveyor/Forester/Neighbor

9.4       Trespass

 

 

9.0     Unlicensed Cutting of Timber—Description of Claim

[Name of plaintiff] claims that trees on her land were cut by loggers and that [he/she] is therefore entitled to damages. To win [his/her] case, [name of plaintiff] has to prove the following things:

1.         [Name of defendant] cut trees or wood on [name of plaintiff]’s land; and

2.         [Name of defendant] did not have the right to cut the trees or wood.

 

Reporter’s Notes

            A Defendant’s right of ownership necessarily precludes a claim for wrongful cutting.  Stanley v. Stanley, 2007 VT 44, ¶ 9. 

 

9.1     Damages for Wrongful Cutting of Timber

A person who cuts trees or wood belonging to someone else is liable for three times the damages caused.[1]  This part of the instructions applies only to the person who cut the trees, not to the landowner who contracted with person who cut the trees. If you decided that [name of defendant] wrongfully cut trees or wood on [name of plaintiff]’s property, you must now determine the value of whatever was cut and multiply the value times three.

[For cases arising from the commercial harvesting of timber: The “value of whatever was cut” is the “stumpage” or the amount a logger would pay for the opportunity to harvest the trees. It does not include the cost of cutting, limbing, skidding and transporting each log to the mill. If some or all of the wood was cordwood, firewood or pulpwood, that value is measured before cutting, not after it has been cut up, split and trucked into town.]

[For cases arising from the cutting of trees with ornamental or decorative value, alternate 1:  The “value of whatever was cut” is measured by the fair market value of the property before the tree(s) were cut compared to the fair market value of the property after the tree(s) were cut.]

[For cases arising from the cutting of trees with ornamental or decorative value, alternate 2: The “value of whatever was cut” is measured by the cost to replace the tree(s).]

In addition to the value of wood, damages also include the cost of fixing up the land after the job, such as preventing erosion or cleaning up the landing or roads or brush.

 

Reporter’s Notes

There are three kinds of damages from the wrongful cutting of trees.  The judge has to decide in each case which of the three is appropriate.

 

The damages that are trebled include the value of the trees cut and associated costs such are the clean up of tops, limbs, slash, damage to the land caused by machinery, erosion, etc.

 

The statute that provides for treble damages for wrongful cutting of trees is 13 V.S.A. §3606.  The basis of liability under this statute is the tort of trespass.  Stanley v. Stanley, 2007 VT 44, ¶ 10 (“The punitive aspect of the timber trespass statute serves to deter intentional trespass and the wrongful taking of another’s timber. “).  Thus a Defendant might be found liable no matter what degree of care he or she used to avoid cutting timber that belonged to another.  There is simply no requirement that a Defendant be proved negligent as a predicate to recovery.  Masters v. Stone, 134 Vt. 529, 367 A.2d 686 (1976).

 

The statue has antecedents in Vermont that go back to 1787.  It is said of the statute’s predecessors, that these statutes gave no independent right of action, but established a measure of damages for what was, and still is, actionable at common law.  Hathaway v. Goslant, 77 Vt. 199, 59 A. 835 (1905); Davenport v. Newton, 71 Vt. 11, 42 A. 1087 (1898); Montgomery v. Edwards, 45 Vt. 75 (1872).

 

Plaintiff is only required to prove that defendant cut timber on his land without leave, and on such showing he is entitled to recover treble damages.  Davis v. Cotey, 70 Vt. 120 (1897).

 

The trial court was entitled to rely on the property owner's testimony as to the replacement value of the two shade trees plaintiffs cut down in calculating damages.  Pion v. Bean, 2003 VT 79.

 

As a general rule where suit is brought to recover damages for injury to realty caused by cutting of trees and recovery of value of the trees as items of personal property separate and apart from land itself would not give plaintiff his full damage; the true measure of damage is difference between value of land before injury and its value immediately thereafter.  O’Brien v. Dewey, 120 Vt. 340, 143 A.2d 130 (1958).

 

Difference in the value of the land, before and after the trespass, is not the exclusive measure of damage under this section. It is proper to measure damages under this section by reference to value of the cut timber as marketable logs, together with the cost of removing tops and limbs. Lavalette v. Noyes, 124 Vt. 353, 205 A.2d 413 (1964).

 

9.2     Factors that Mitigate Damages—Burden of Proof

[Name of defendant logger] can reduce the three-times-multiplier to only the actual damages by showing that his wrongful cutting was the result of a good faith mistake.

To gain the benefit of this reduction by mistake, [name of defendant] must persuade you that [he/she] acted through a mistake which was not the result of [his/her] own lack of care or misconduct. That means a mistake that any reasonably careful logger would make under similar circumstances, or if he had good reason to believe he was authorized to cut, even though it turns out he was not.

 

Reporter’s Notes

Burden was on defendant to establish defense that he cut timber through mistake or had good reason to believe that he had right to cut it.  Parker v. Cone, 104 Vt. 421, 160 A. 246 (9132).

 

9.3     Indemnity Claim against Surveyor/Forester/Neighbor

[Name of defendant logger] claims that his logging in the wrong place was solely the fault of [name of defendant surveyor/forester/neighbor that contracted]. If you find that [name of defendant logger] used reasonable care to determine the boundaries of the land within which he was authorized to cut, but even though he was careful, he cut on [name of plaintiff]’s land solely because of [bad directions/bad marking of boundaries/ bad survey] of [name of defendant surveyor/forester,] then [name of defendant logger] is entitled to have [name of defendant surveyor/forester] pay all of the damages that you find [name of plaintiff] is entitled to by the cutting of trees from [his/her] property. But if [name of defendant logger] was careless in any respect about ascertaining the boundaries within which he was supposed to cut, or even a little at fault for cutting on the wrong property, then [name of defendant logger] is not entitled to have [name of defendant surveyor/forester] pay the amount that you award.

 

9.4     Trespass

If [name of defendant] caused the loggers to cut trees on [name of plaintiff]’s property by giving [wrong directions/bad marking of boundaries/bad survey], then [name of defendant] is liable for the harm that was caused by the cutting of the trees. This is so even if he or she did not intend to mislead or did not intend to cause cutting of trees from [name of plaintiff]’s land.

To find [name of defendant] responsible, however, you must be persuaded that [he/she] gave incorrect directions, which caused the loggers to cut on [name of plaintiff]’s property. If [name of defendant] gave no directions at all, or provided a map which was misinterpreted by a logger, that is not sufficient to make [him/her] responsible for the cutting.

 

Reporter’s Notes

This instruction is based on the Restatement (Second) of Torts §157, which describes vicarious liability for the tort of trespass. Comment j addresses the liability of a person who causes a person to trespass on the land of another:

j.          Causing entry of a third parson. If, by any act of his, the actor intentionally causes a third person to enter land, he is as fully liable as though he himself enters. Thus, if the actor has commanded or requested a third person to enter land in the possession of another, the actor is responsible for the third person’s entry if it be a trespass. This is an application of the general principle that one who intentionally causes another to do an act is under the same liability as though he himself does the act in question



[1] Damages are described in a later instruction.