In his great American poem, “Mending Fences,” Robert Frost wrote that “Good fences make good neighbors.” Well said. However, much litigation has been spawned by disputes between neighbors about who owns the fence, hedges or tree line between two properties or where one property begins and the other ends.
What happens when one neighbor cuts down the hedges or trees of a neighbor in error? Can the offended neighbor require the other to replace a mature tree with another of equal size no matter what costs? In other words, what is the standard for damages where the property is of no “peculiar value” to its owner and the defendant acted without malintent?
In Mosteller v. Naiman, plaintiff was an absentee landlord whose property was separated from his neighbor’s by a chain link fence and a row of six mature trees. The defendant neighbor contracted with a landscaper to remove the trees much to the consternation of plaintiff who promptly commissioned a survey to determine who actually owned the denuded trees. After confirming that he owned the trees, plaintiff sued his neighbor seeking the replacement value of replacing the trees, one of which was about $130,000.
In a triumph of common sense and good judgment, the New Jersey Appellate Division held that the customary measure of damages for injury to land is the diminution of the value of the property because of the damage, in this case, the wrongful removal of the trees. This ruling was critical, limiting plaintiff to about $20,000 in diminution of value as compared to about $440,000 to replace the trees and restore the property to its prior condition.
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