• Attorney Margaret Miglietta of Cummins & White, LLP successfully appealed a trial court’s award of treble damages for the death of a tree resulting from the clients’ construction activities on their property as well as the trial court’s calculation of the value of a tree
  • The Court of Appeal reversed the trial court’s ruling finding that the construction activities constituted trespass within the meaning of Civil Code section 3346, holding that neither treble nor double damages were proper.
  • The Court of Appeal also reduced the trial court’s finding of value of the tree by approximately 50%.

Case Study

Margaret Miglietta of Cummins & White LLP successfully obtained a reversal of the trial court’s findings on timber trespass and the valuation of a border tree by the California Court of Appeals. Significantly, the appellate ruling clarifies that physical trespass onto the land of another is necessary to trigger damages under Civil Code section 3346. This ruling on the application of section 3346, builds upon the California Supreme Court’s recent ruling in Scholes v. Lambirth Trucking Co. that construed the statute within the context of a fire that spread from one property to another, burning trees on the adjacent property.

Man Construction purchased a vacant lot in the City of Big Bear. The lot was located adjacent to the plaintiffs’ property. Between the properties stood an 85 foot tall Jeffrey pine tree. The tree was 80 percent on the plaintiff’s property and 20 percent on the Man property. Man Construction retained a draftsman who prepared building plans for the construction of a single family residence. The plans inaccurately depicted the tree’s position. The city issued a building permit and periodically came out to inspect the progress of the construction of the house issuing a final certificate of occupancy. The tree died and the adjacent property owners sued for wrongful cutting of timber under Civil Code section 3346.


The trial court found Man Construction had trespassed within the meaning of Civil Code section 3346 when it cut the roots of the tree while digging trenches for foundation footings. The trial awarded plaintiffs, $73,000 for the value of the tree and then awarded them treble damages under Civil Code section 3346 for a total award of approximately $219,000, plus their costs.

The Appellate Court Reverses

The appellate court reversed the trial court’s judgment holding that a trespass under Civil Code section 3346, like Civil Code section 733, (known as the timber statutes), require a physical trespass onto the land of another. While property owners are entitled to cut roots and branches of trees from adjoining properties that grow onto their own property, they can do so only to the extent that they do not adversely injure or kill the trees. Because Man Construction’s cutting of the tree roots while digging foundation trenches resulted in the death of the Jeffrey pine tree, Man Construction was liable for the value of the tree. Damages were not subject to double or treble damages under Civil Code section 3346 or Civil Code section 733 because all of Man Construction’s activities that resulted in the death of the tree occurred on its own property.

The appellate court further found in the unpublished portion of its opinion, that the trial court had improperly arrived at the value of the tree. Based on the testimony and opinion of the plaintiffs’ own arborist expert, the value of tree was $37,000. This amount reflected the tree’s species, the tree’s pre-loss condition, and its location on the plaintiffs’ property, all factors that were disregarded by the trial court.