Oregon Case Law Update: Plaintiffs Must Show Diminished Property Value in Order to Prevail on a Timber Trespass Claim Involving Ornamental Trees

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Oregon Case Law Update: Plaintiffs Must Show Diminished Property Value in Order to Prevail on a Timber Trespass Claim Involving Ornamental Trees

From the Desk of Joshua P. Hayward: Defending timber trespass cases is complicated by the fact that if plaintiff prevails, they will be awarded double or triple damages and attorney fees. What happens if a plaintiff does not allege that the trespass diminished the value of their property? Read on to find out.

Claims Pointer: In this timber trespass case, a plaintiff brought both a nuisance claim and a timber trespass claim against Klamath County for spraying herbicide on his property and causing $23k in damage to plaintiff’s ornamental trees. At trial, plaintiff did not allege that the trespass diminished the value of his property, and in fact, admitted that the value was not affected. Despite this, the plaintiff prevailed on the timber trespass claims and was awarded double damages and attorney fees. The court of appeals reversed, holding that plaintiff’s failure to allege diminished property value was fatal to the timber trespass claim. This case illustrates that in order for a plaintiff to prevail in a timber trespass suit involving ornamental trees, they must prove that the property value was diminished or that it is impossible to determine whether their property value was diminished.

Harshbarger v. Klamath County, 294 Or App 631 (Oct. 31, 2018).

In June 2010, the Klamath County Department of Public Works applied herbicide along a right-of-way next to Daniel Harshbarger’s (“Plaintiff’s”) property. When the herbicide made its way to Plaintiff’s property, it damaged or killed several ornamental pine trees, at a total alleged cost of $23,486. Plaintiff sued Klamath County (“County”) for nuisance and timber trespass. Plaintiff sought damages related to the value of the trees but never made allegations related to how the trespass affected the market value of his property.

Before and during trial, the...

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