Heartbreaking Tree-Pirates Scorned by the Common Law

September 29, 2010

If Virginia is for lovers, Nevada is for heartbreak.

At least for the tree-lovers among us.

The New York Times offers what could potentially be an obituary-in-advance. The world’s oldest tree – Methuselah – is in a fight for its life. At 4,800 years old, Methuselah was a mere sprout when the pyramids of Egypt were being built. Now, Methuselah and its cohort of other Bristlecone trees in Nevada’s Great Basin National Park are under double assault: White Pine Blister Rust and global warming. Ecologists studying Methuselah and its brethren think the stressors placed on these trees by the encroaching fungus and increased temperatures might quickly prove deadly to these living wonders.

While Methuselah’s death would be an immeasurable loss for all of us, what does an ancient tree have to do with our law today?

A lot.

The Common Law – like those all those tree lovers – developed with a keen appreciation for the value trees bring to our lives and livelihoods. Trees are protected pieces of property for which courts and legislatures have crafted a variety of protections.

Searching West’s Causes Of Action 2d for (tree /p damage) retrieves this:

A cause of action for the wrongful cutting of trees or timber was traditionally available under the common law as a variety of trespass. See, e.g., Bumgarner v. Bumgarner, 124 Idaho 629, 862 P.2d 321 (Ct. App. 1993); Mundell v. Perry, 2 G. & J. 193, 1830 WL 1650 (Md. 1830). The availability of such actions has been supplemented [see, e.g., Eklund v. B.R. Lewis Lumber Co., 13 Idaho 581, 92 P. 532 (1907)], or replaced [see, e.g., Mehlhorn v. Derby, 2006 ME 110, 905 A.2d 290 (Me. 2006)], by statutory actions for timber trespass. Such statutes vary in the scope of their coverage: Some extend to include the injury of trees by the spraying of herbicide [see, e.g., Worman v. Columbia County, 223 Or. App. 223, 195 P.3d 414 (2008)]…Another court has held that the “intended targets of the timber trespass statute are those tree pirates and arboreal rustlers who trespass on another’s property and remove timber to which they have no right.” Stanley v. Stanley, 181 Vt. 527, 2007 VT 44, 928 A.2d 1194 (2007).

While your firm may not be able to sue anyone for Methuselah’s ailing, you may find yourself prosecuting timber-thieves or suing for looted lumber. Keep COA in mind.

I will be spending the next two weekends planting apple trees, Burr Oaks and Autumn Blaze Maples. One of which will certainly be named in honor of Methuselah. I encourage you too to consider, in honor of the world’s oldest tree, planting a tree this fall.

Submitted by
Seth T.
West Reference Attorney