## Facts

- James A. Glavin owned two nearby parcels in Aquinnah, Massachusetts; Bruce and Shelly Eckman owned a neighboring lot with a southwest ocean view across intervening land.
- Glavin purchased an adjoining 1.7-acre parcel that included a wetland, a knoll, and a stand of ten large mature oak trees, which he intended to preserve as shade and as a backdrop to a planned pond restoration.
- Seeking to improve their ocean view, the Eckmans hired Jon R. Fragosa and his landscaping company to perform tree work.
- After Glavin refused permission to cut trees on his property, Fragosa crossed onto Glavin’s land and cut down ten mature oak trees without authorization.
- Glavin sued under Mass. Gen. Laws ch. 242, § 7 (wrongful cutting of trees).
- The jury found that Fragosa willfully cut the trees and lacked good reason to believe he was authorized, and that the Eckmans willfully caused the cutting by directing Fragosa and likewise lacked good reason to believe they were authorized.
- The jury awarded $30,000 as the reasonable cost to restore the property as nearly as reasonably possible to its original condition; the judge trebled the award to $90,000 under the statute.

## Issues

1. Whether restoration cost was a permissible measure of damages under Mass. Gen. Laws ch. 242, § 7, instead of diminution in market value or timber value.
2. Whether the trial judge erred by admitting the plaintiff’s arborist testimony estimating restoration costs.
3. Whether mandatory trebling of restoration-cost damages under § 7 produced an unreasonable or excessive award.
4. Whether the Eckmans could be held liable for the cutting performed by Fragosa as an asserted independent contractor.

## Decision

- The Appeals Court affirmed the judgment.
- Restoration-cost damages were properly submitted to the jury because the evidence supported a finding that market-value diminution would not fairly compensate for the owner’s special, nonmarket value in the trees and planned landscaping use.
- The arborist’s restoration-cost opinion was properly admitted and provided a sufficient, non-speculative basis for the jury’s $30,000 award.
- Trebling the restoration-cost award, as required by § 7 given the lack of good-faith authorization, did not make the damages unreasonable.
- The evidence supported liability for the Eckmans because the jury could find they directed the scope of the work that resulted in the cutting on Glavin’s land, defeating an attempt to avoid responsibility by labeling the cutter an independent contractor.

## Legal Principles

- In trespass-related injury to real property, restoration cost may be used as the measure of damages when it reasonably reflects the owner’s loss and diminution in market value is not a fair or adequate substitute, including where the property feature has special aesthetic or personal value.
- Under Mass. Gen. Laws ch. 242, § 7, once damages are properly measured and the statutory predicates are met (including lack of good reason to believe authorization existed), the court must treble the damages proven; the statute does not restrict trebling to a market-value measure.
- Expert testimony on restoration costs is admissible when grounded in a concrete restoration plan and provides the factfinder a rational basis to estimate reasonable restoration expense.
- A landowner who directs the scope of work that results in wrongful cutting on another’s property may be held liable even if the physical cutting is performed by a hired contractor.

## Conclusion

The court upheld a restoration-cost damages award for intentional tree cutting that destroyed the owner’s special use and aesthetic interests, enforced mandatory treble damages under the tree-cutting statute, and affirmed landowner liability where the landowners directed the work that caused the trespass and cutting.


Glavin v. Eckman, 71 Mass. App. Ct. 313, 881 N.E.2d 820 (2008)