DOMINIC CACIOPOLI v. JEFFREY LEBOWITZ, SC 18894

Judicial District of New Haven

     Torts; Trespass; Whether General Statutes § 52-560 Preempts the Common Law Rule of Damages for Cutting Trees Located on Another's Property. The defendant hired a tree service to remove trees that he believed were located on his property. In actuality, the trees were located on the adjoining property owned by the plaintiff.  Claiming that he suffered a loss of privacy due to the removal of the trees, the plaintiff brought this action sounding in common law trespass.  He also included a claim for treble damages under General Statutes § 52-560.  That statute provides in relevant part: "Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another . . . without license of the owner . . . shall pay to the party injured . . . three times the reasonable value of any . . . tree, timber or shrubbery; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on his land, . . . it shall render judgment for no more than its reasonable value."  The trial court found that the plaintiff had proven the elements of an intentional trespass action.  As to the appropriate remedy, the court, noting that there are several possible measures of damages available under the common law for loss of trees, including the market value of the trees and the loss of value to the property caused by the cutting, awarded $150,000 to compensate the plaintiff for the diminution in the value of his property.  It did not, however, award treble damages under § 52-560 because the plaintiff did not present sufficient evidence of the value of the trees.  On appeal to the Appellate Court (131 Conn. App. 306), the defendant contended, among other things, that the trial court improperly awarded damages for the diminution in value of the property because that common law remedy was preempted by § 52-560.  The Appellate Court ruled that § 52-560 does not provide the exclusive remedy in timber trespass actions, but merely provides an enhancement of common law damages by providing for treble damages in certain circumstances.  Accordingly, the court found that the trial court properly used the diminution in the value of the property as a measure of damages.  The Supreme Court has granted certification to decide whether § 52-560 preempts the common law rule of damages for cutting trees located on another's property.