Woodman, Spare that Tree!

The pyrrhic victory, where you win but lose at the same time, is not common at law, but when it happens the “winning” party (and his or her counsel) can be understandably perplexed and usually baffled.  (King Pyrrhus of Epirus, won a number of battles against the Romans, but his losses were so great as to make his “victory”meaningless.)

A recent Bucks County decision, Bales v. Strawberry Hill Associates, well-illustrates such a victory.  The owner of a large, heavily-wooded tract had agreed to give a 30-foot wide easement to Lower Saucon Township.  However, the contractor hired to clear the easement proceeded a bit too energetically and cleared trees in an area which varied in width from 40 to 55 feet.  Priceless old shade was destroyed and the landowner sued to recover $135,000, his estimate to “replace” the trees.

In a decision, which is somewhat enigmatic, the judge found in favor of the landowner but awarded damages of $0.  The judge reasoned that it would take several decades of growth to restore the trees which were improperly destroyed; and, therefore, he was unable to determine what the replacement cost of the trees would be when it is impossible to replace them.

The judge admonished counsel for the landowner that their proper request for damages would have been to seek the difference in the market value of the property with and without the trees in place.  Since counsel had presented no evidence as to before and after values, the judge concluded that he could not speculate since he had no basis upon which to make a determination.

How would you like to be the lawyer who had to explain to his or her client:  “You won; you also lost”?

— Ken Butera


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