Geise v. Neal, 2014 IL App (1st) 133914-U, discusses how to measure damage caused by unauthorized tree cutting on private property.
The plaintiff rented out his deceased mother’s home to the defendants under a two-year lease. After they took possession, the defendants cut down over 50 trees on the lot.
When plaintiff found out, he terminated the lease, sued for possession of the home and sought damages under the Wrongful Tree Cutting Act, 740 ILCS 185/1 et seq. ( the “Act”), a statute that allows a plaintiff to recover triple the value of trees that are purposefully cut down.
While the lawsuit was pending, plaintiff sold property to a third party for about $65K less than the property purchase option price.
After a bench trial, the trial court entered judgment in plaintiff’s favor for almost $150K – the replacement value of the fifty-plus trees chopped down by the defendants. The defendants appealed on the basis that the court applied the wrong damages standard.
Held: Reversed. Trial court should have applied diminution in value standard instead of replacement value.
A: The court pronounced the operative damages rules:
– compensatory damages are designed to compensate the injured party for damage to his property and to restore the injured party to his pre-injury position;
– tort damages to real property are typically measured by the difference between the market value of the property before the injury and its value after the injury;
– diminution in value may be inadequate where the property is held for personal use – such as a family residence – and the damage can be repaired with a reasonable expenditure;
– the proper damages measure for injuries to land depends on (1) whether its residential or commercial, (2) the severity of the claimed injury, (3) whether the damaged item has value apart from the realty, and (4) whether the repair or replacement exceed the property value;
– the ‘cost of repair’ damages standard is typically applied to residential property damage and where the repairs are economically feasible;
– where damage to the property is permanent, and repairing the damage is cost-prohibitive, the damage measure is market value of property before injury minus market value after injury;
– where the property damage is temporary or partial, the proper damage measure is the cost of restoration
The court found that the diminution in value was the proper damages standard. The court noted that the property was held purely for investment purposes: plaintiff didn’t live on the property and he rented it to defendants for $2,300 per month.
In addition, there was no evidence that the chopped-down trees had any sentimental value to the plaintiff or that plaintiff was forced to sell the property due to the destruction of the trees. The plaintiff admitted that his intention was to sell the property all along regardless of whether the trees were cut down or intact.
The Court also found that replacement of the trees was no longer possible since plaintiff had already sold the property to a third party. As a result, awarding the plaintiff the repair costs of the trees would have given plaintiff a windfall. ¶¶ 31-32.
– A damage award to a real estate owner should make him whole; it shouldn’t give him a windfall or double-recovery;
– If property is destroyed or damaged beyond repair, the proper damage measure is diminution in value;
– If property is only partially damaged, and repair is economically practical, cost of repair is the proper damage amount.