Mosteller v. Naiman
7 A.3d 803
N.J. Super. Ct. App. Div.2010Background
- Mosteller owns rental property in Highland Park, NJ and resides in Virginia; six mature trees were removed by Coyne Tree Service on property defendant believed to be on her side of the boundary.
- Boundary was uncertain; a survey showed the chain-link fence did not align with the true boundary and six trees lay on plaintiff’s side.
- Trees were removed without plaintiff’s knowledge or permission; stumps and debris remained.
- Plaintiff alleged damages: reduced privacy, diminished aesthetics, erosion and insect risk, and brown spots on lawn from loss of shade.
- Plaintiff sought replacement costs for six trees (estimates approaching $436,750) and other restoration costs; defendant urged diminution-of-market-value damages as proper measure.
- Trial court adopted diminution-in-value measure; provisional consent judgment for $20,000 was entered pending appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is the proper damages measure for unauthorized removal of trees? | Mosteller favors replacement-cost damages. | Naiman supports diminution in value. | Diminution in value is the proper approach. |
| Is peculiar value necessary to award replacement costs? | Peculiar value exists; replacement costs justified. | Peculiar value not proven or warranted. | Peculiar value not established; replacement-cost not awarded. |
| Can absentee owner prove peculiar value of trees to recover restoration costs? | Absentee owner can show peculiar value. | Burden on absentee owner is high; not shown here. | Absentee status did not yield peculiar-value finding. |
| Should damages include replacement-cost proofs for comparative purposes? | Yes, for completeness. | No, would distort measure of damages. | Court declined to substitute replacement-cost measures; maintained diminution in value. |
Key Cases Cited
- Huber v. Serpico, 71 N.J. Super. 329 (App.Div. 1962) (peculiar-value restoration-cost allowed in certain trespass/tree-destruction cases)
- Velop, Inc. v. Kaplan, 301 N.J. Super. 32 (App.Div. 1997) (guides measuring damages; favors market-value depreciation or restoration-cost as appropriate)
- Correa v. Maggiore, 196 N.J. Super. 273 (App.Div. 1984) (avoid restoration-cost where it would cause economic waste; balance with reasonableness)
- 525 Main Street Corp. v. Eagle Roofing Co., 34 N.J. 251 (1961) (flexible approach; avoid mechanical application of restoration-cost method)
- Samson Construction Co. v. Brusowankin, 147 A.2d 430 (Md. 1958) (recognizes peculiar-value/restoration-cost approach for beautification value)