Appeal from Superior Court, Windsor Unit, Civil Division
Robert P. Gerety, Jr., J.
S. Shahi of Cleary Shahi & Aicher, P.C., Rutland, for
D. Willey, Jr. of Boylan Associates, P.C., Springfield, for
B. Heath and Evan J. O'Brien of Downs Rachlin Martin
PLLC, Burlington, for Defendant-Appellee Johnson.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. This is a timber trespass action brought by plaintiffs
against a neighboring landowner and the logger who cut
plaintiffs' trees. Plaintiffs appeal from a jury verdict
in their favor, arguing that the damage award was inadequate.
Plaintiffs also claim that the jury should have found the
neighbor liable for unlawful mischief and that the trial
court erred in denying their claims for treble damages,
additional costs, and prejudgment interest. We affirm.
2. The following evidence was presented at trial. Plaintiffs
Paul Epsom and Kristine Kelly reside in Pennsylvania. Epsom
is a certified arborist and owns a garden center. In 2008,
plaintiffs purchased a forty-eight-acre lot in the town of
Plymouth for $165, 000. They built a house on the property to
use as a second home with the intention of eventually
retiring there. In 2011, they placed the property in a
current-use plan. Epsom testified that they wanted to improve
the forest and intended to develop some recreational trails.
3. Defendant David Crandall lives in Vermont and Florida. He
owns a four-acre lot that abuts the north and west sides of
4. In September 2014, Crandall listed his property for sale.
He hired a logger, defendant Mark Johnson, to clear the lot
to make it more attractive to potential purchasers. Crandall
had never had logging done on any property he owned before
this project. Neither Crandall nor Johnson was aware that the
law at that time required Crandall to mark the area to be
5. Prior to beginning work, Crandall and Johnson met at
Crandall's property and walked the proposed logging area.
The northern and southern boundaries of Crandall's
property were well-marked. Crandall testified that he thought
it would be simple for Johnson to find the eastern boundary
line-i.e., the boundary between his land and plaintiffs'
land-because his survey map depicted it as being 300 feet
from the road. Crandall testified that he showed Johnson the
survey map that day. He testified that he relied on
Johnson's expertise as a logger to find the boundary.
6. Johnson denied that Crandall showed him the survey map on
the day they met or told him the eastern boundary was 300
feet from the road. Johnson understood that he could cut down
to a certain stream that ran through Crandall's property,
and that the eastern boundary was beyond that stream. Johnson
began logging soon after his meeting with Crandall because he
had an opening in his schedule and there was plenty of work
to be done on the area that Crandall had identified as his
7. As he worked, Johnson did not observe any signs of a
boundary line near the eastern edge of Crandall's
property. He observed that the forest near the eastern
boundary consisted mainly of maple trees of average to lower
quality, as well as beech trees that bore scabbing and were
diseased. He also observed old skid trails from previous
logging activities as well as old stumps and downed trees.
Johnson testified that when he got close to where he
understood the eastern boundary to be, he asked Crandall to
send him the survey map. When Johnson received the map, he
realized that he had overcut onto plaintiffs' property.
8. Johnson cut thirty-nine mature trees and nineteen saplings
on plaintiffs' land. The mature trees consisted of seven
ash, eight beech, nineteen maples, and five birch trees.
Johnson sold two of the ash trees and seventeen of the maple
trees to a sawmill for $734. Johnson also cut five to six
cords of firewood, for which he received approximately $500
9. After Johnson realized that he had cut plaintiffs'
trees, he notified Crandall. He then called Epsom and
apologized. Epsom and Johnson arranged to meet at
plaintiffs' property in early October along with
Epsom's forester. Johnson presented Epsom with a copy of
the sawmill receipt and offered to pay Epsom the amount
Johnson had received for the logs. Epsom declined. Johnson
asked if there was anything else he could do, and Epsom asked
him to clean up the overcut area, which Johnson did.
10. Plaintiffs subsequently filed separate actions against
Crandall and Johnson. They sought damages against both
defendants for timber trespass, common-law trespass, and
unlawful mischief, and against defendant Crandall for unjust
enrichment. Crandall and Johnson filed cross-claims for
indemnification against each other. The actions were
consolidated for a jury trial.
11. The trial took place over five days. The parties did not
dispute that Johnson had cut plaintiffs' trees; the
testimony focused mainly on the amount of damages.
Plaintiffs' arborist expert, Cal Felicetti, estimated the
replacement value of the cut trees using the trunk formula
method for appraisal of trees in the Guide for Plant
Appraisal, an industry treatise. Under this method, Felicetti
took the cost of purchasing and planting a sapling species
from a commercial nursery and used that to calculate the cost
per square inch of diameter. He then multiplied that amount
by the size of the trunk on the lost tree to obtain a
theoretical replacement cost, which he reduced by factors
such as species rating, condition, location, and cost. Using
the trunk formula method, he estimated the replacement value
for the trees cut on plaintiffs' land to be $189, 200.
His valuations of individual trees ranged from $352 for an
eight-inch beech to $25, 929 for a 32-inch sugar maple.
Felicetti stated that he used the trunk formula method
because of plaintiffs' stated emotional connection to the
trees, but admitted his estimate of value was in "a gray
zone, because the trees at the far end of the Epsom's
property are probably only worth timber value."
12. Defendants presented a much lower estimate of damages.
John Wiggin, defendants' timber evaluation expert,
testified that he visited plaintiffs' property
approximately one month after the trees were cut. Based on
the stumps and the surrounding trees, he estimated that the
cut trees were not particularly old or large except for some
of the ash trees. He stated that most of the beech trees were
of small diameter and were severely impacted by disease,
making them suitable only for firewood. Based on his
observations, he estimated the mill value of the cut trees to
13. The jury found Johnson liable for timber trespass but
concluded that Johnson acted through mistake of fact
regarding the location of the boundary. It found that
Crandall did not act through mistake of fact or have a good
reason to believe the trees belonged to him, and was
therefore liable for the statutory penalty of $1000 for
failure to mark the harvest unit. The jury also found both
Johnson and Crandall liable for common-law trespass. It found
that Crandall had to indemnify Johnson. It determined that
plaintiffs' actual damages were $19, 500. The jury found
defendants not liable for unlawful mischief, unjust