In Harshbarger v. Klamath County, No. A163379, the Oregon Court of Appeals addresses timber trespass claims involving noncommercial, ornamental trees.  In such cases, the court holds, the plaintiff must prove either (1) that damage to the trees diminished the market value of the real property, or (2) that the effect on the property’s value cannot be determined.  According to the court, if the evidence shows that the land’s market value is not affected, then the plaintiff cannot substitute evidence of the value of the trees or costs related to the trespass.  The timber trespass claim simply fails.

In Harshbarger, the Klamath County Department of Public Works applied herbicide next to the plaintiff’s property.  The herbicide damaged or killed several of the plaintiff’s ornamental pine trees.  At trial, the plaintiff conceded that the harm to the trees did not decrease the market value of his land.  However, he sought damages for the cost of the dead trees and expenses related to removal and replanting.  The trial court denied the county’s motion for a directed verdict.  But on appeal, the Oregon Court of Appeals reverses.

The Oregon Court of Appeals explains that “unless there is sufficient evidence that the effect on market value cannot be determined,” a plaintiff cannot prevail on a timber trespass claim without proof that the trespass decreased the market value of the land.  (Emphasis added.)  The court distinguishes this case—where the plaintiff conceded that there was zero effect on market value—from a previous case in which the plaintiff testified that he could not find an expert who could put a number on the effect on market value.

The court notes that a different rule applies in the context of trespass to commercial timber. In such cases, evidence of the value of the timber removed is sufficient to support a timber trespass claim.

But in this case involving ornamental trees, because there was no evidence of any effect on market value or that such effect could not be determined, the Oregon Court of Appeals holds that the plaintiff “failed to present legally sufficient evidence to prevail on his timber trespass claim.”


The statements and views expressed in this posting are my own and do not reflect those of my law firm, are intended for general informational purposes only, and do not constitute legal advice or legal opinion.