Timber land damage

uplander · April 21, 2014, 07:39:34 AM

Well, the REMC sprayed about 700 feet of my classified forest road frontage with herbicide. About 25,000 square feet of ground. I think I will lose several hundred trees of all sizes.

They did this after I had forbidden them from doing so. I have written documentation between them and myself regarding not spraying my land. They have no easement or right of way where they did this.

I know in Indiana that I can collect 3 times the actual damage that they created. I think that I can collect not just the current value but the future value of the destroyed trees. Does anyone know if this is correct?

Right know I am mad as hell and want to make this as painful as possible for them. What would you do?

What is this worth to me? How much per square feet should I ask for? Has anyone here ever dealt with a similar situation? What should I do?

Uplander

uplander · April 21, 2014, 07:47:32 AM

Foresters, I have suffered significant damage to my Classified Forest from another party.

Please go the members only section and read my post and comment on it if you can.

Uplander

Sorry all, this post was supposed to be in Ask The Forester.

WDH · April 21, 2014, 08:04:02 AM

That is a little over 1/2 acre, so fortunately, the area is small. I would discuss it with them to see what they have to say.

uplander · April 21, 2014, 08:12:58 AM

WDH, yes it is not that big of an area but it does affect me greatly. The question is "What is it worth"

What value do I use as a starting point. I am sure they will low ball me on what they try to give me.

WDH · April 21, 2014, 08:19:31 AM

You are right in that it is most probable that the most that you would get in damages is triple the fair market value of what was killed unless you can prove criminal intent or criminal trespass. If they did it by mistake, even though you had asked them not to spray it, and unless you can prove that they did it maliciously or on purpose, that is about what you could expect if that same thing happened in Georgia. Not sure if it is the same in your State, but maybe a Forester familiar with your area can comment.

You would need to get an appraisal from a Forester to establish the fair market value of the loss. I would think that the cost of the appraisal would be added to the damages.

Ron Wenrich · April 21, 2014, 08:28:46 AM

I'm not so sure that you have too much in damages in timber value. Future growth would have to be discounted to present net value. Your trees have been killed, but you still have those trees. Had they cut the trees and removed them, then you have a timber trespass case. If you don't salvage the trees, you will just extend the damages. I'm thinking these trees were pretty small to begin with. According to your numbers, you're talking about an area that is 35' wide by 700' long. If you're talking both sides of the right-of-way, then the width is halved. Electric companies don't usually kill big trees, they remove them or trim the limbs.

First thing I would do is make sure that you are right about the right-of-way boundaries. They extend out from the power line. The one through my land is 125' wide. Next thing I would do is take pictures of the damages. Get that done ASAP. Then I would get the REC forester out there. Ask him what he's going to do to take care of the damages. It was his job to supervise the crew. I'd see where that would take me before I would threaten with legal actions. If he stonewalls, then go up corporate. If you can get everything taken care of by the REC, you'll be much further ahead. They won't want to make a big deal out of this.

What are you looking for in the process? I know the local electric company came through my field and sprayed where they weren't supposed to. I lost some small shrubs and some small saplings. But, they played ball with me on some other things, so I didn't take them to task. But, the next time they come in, they won't be as welcomed. I know that every time they've come to do things to the lines, they have informed me. There's always been a forester in charge, and I never let them BS me.

If you're looking for huge monetary losses, I don't think you'll get them. The Feds have mandated the electric companies into doing a lot of this work. They don't even want anything under the lines. So, they have that to fall back on. If you want them to remove the dead stuff and replant, you probably will be able to get that. If they don't want to do it, they'll probably pay the value of doing just that. I don't think you'll get punitive damages. But, I'm not a lawyer.

My 2 cents.

uplander · April 21, 2014, 08:37:04 AM

Ron, I am absolutely sure about the easement - right of way issue. They have no easement or right of way where they did this.
There is a strong chemical smell and a blue dye covering everything in 700' long by 30-35 foot wide area. I think I will lose about 100 white pine seedlings and the blue dye-herbicide is on the trunks of about 30 mature or almost mature oaks. It is also on around 40 oak seedlings.

chevytaHOE5674 · April 21, 2014, 10:19:58 AM

If they have no easement or right of way then why/how are the electric lines there in the first place?

uplander · April 21, 2014, 11:32:03 AM

Quote from: chevytaHOE5674 on April 21, 2014, 10:19:58 AM
If they have no easement or right of way then why/how are the electric lines there in the first place?

The lines have just always been there. The deed at the recorders office shows no easement for them. There is a county road out there and the highway superintendent acknowledges that I own it. He has said I could shut it down if I wanted to.
I guess way back when the electric coop just strung the lines along the road and people were so happy to have the service nobody said anything.

I think I will have to get a forester to outline just what my damage is. I suspect they will try to low ball me.

Black_Bear · April 21, 2014, 12:26:01 PM

I have no opinion of what actually happened here, but if it were my land I would get pictures of the blue dye on your trees.

If you cannot find a deeded easement then the judge, if it goes to court, would probably recognize a prescriptive easement in favor of the REMC. The easement would most likely be recognized as wide as the corridor is today.

Take a day or two, mellow out, and then approach them in a neighborly way. I have had much more success being nice than going in with guns drawn. I know it makes you angry, it would make most landowners angry, but like someone else wrote earlier, try to get something out of them. It may not be monetary compensation, but there may be something else they can do for you. It will be difficult to do, but being amiable often yields favorable results. Remember, most public service companies have lawyers on retainer or on staff and could make this a painful, expensive event for you.

BTW, what exactly is Classified Forest? I have never heard the term.

Ed

SwampDonkey · April 21, 2014, 01:44:25 PM

Up here where I'm from there is nothing deeded or described at all on power lines right of way. They are there, they have to maintain the lines and that's just the way life is. They are there for the common good. When they were first put through on my grandfather's place, coming from the new hydro dam, they would just cut the wood and do with the wood what they pleased. Or you could cut it and do with your own wood what you pleased. But if the hydro did it you weren't getting anything. My grandfather said he was cutting his own lines for the wood and someone else wasn't getting free wood, not his anyway. For all that is involved acreage wise, your in for a whole lot of heartache for little gain. Never hurts to ask those involved for what it's worth, by all means do. But I doubt your going to get much. And asking for future value of trees probably isn't going to fly. Not even insurance will cover anyone for estimating future crop yields (ie. a timber cruise).

I'm not from the US, so maybe things are different. The only beef I have with line cutters is cutting off the tree tops. Just cut the whole dang thing down and eliminate problems with that same tree. ;D

chevytaHOE5674 · April 21, 2014, 01:51:52 PM

Well as a forestry who used to do utility work I will say that the utility company probably has an easement/right of way on file for those wires just was never filed with the government. Utility I worked for had hundreds of thousands of miles of wire and I could count on one hand the number of easements that were actually filed with the courthouse and present on a deed. Our attorneys never had a problem with them holding up in court in any state we were in.

Another thing I will tell you as a once utility forester. We had "problem" customers who used to raise a stink about line clearance work being done, so at those locations we would go back and cut everything down within the ROW and then trim/cut things outside the ROW that could possibly reach the wires. It looked terrible but it saved us from having to go back every 5 years and deal with a "problem" customer.

curdog · April 21, 2014, 06:13:16 PM

Depending on the type of herbicide used, the oaks that are sprayed on the trunks may be fine. Some herbicides need to make contact with foliage, some don't. I'd document what you have while the dye is still present and then find out what was sprayed. Not sure on what you will get for compensation, but a bag of 500 white pine seedlings is about $40-50 bucks, and you can get an acre of them planted for less than $100. I understand it's the principal of things, but I wouldn't think they will reimburse you for much. Hopefully the larger trees will be fine at least. Good luck

Corley5 · April 21, 2014, 06:15:25 PM

I've had issues with our power company's spray contractors. A few years ago they sprayed what I think was Tordon and it killed trees outside the ROW. I was POed but had given them permission to use chemicals. A couple or three years later I got a call about spraying and I told the rep the experience I had last time but he assured me they were using Glyphosate and would only spot spray woody brush. I agreed. The contractor sprayed the ROW from the road to my house solid killing all the vegetation including the grass. I was really POed but it was done. Last spring they called about spraying >:( >:( I told the rep no and was transferred to the "ROW Specialist" who I told the whole story to and that under no circumstances would I ever allow them to use herbicides on my land again but they were welcome to use mechanical means which they have done before. They sprayed all around me but not on my property but haven't been around to mow it yet. If the contractor would have been responsible in the use of the herbicides it wouldn't have been a problem. Good luck with you claim. You've got documentation that you told them "No"

uplander · April 22, 2014, 07:23:04 AM

I met with the REMC and subcontractor yesterday. They took full responsibility for my damage. Said they screwed up badly. Much to my dismay I learned they used a mixture Tordon and Garlon.

Tordon is a systemic herbicide That enters through the root and interferes with cation uptake if I understand correctly. It is persistent for several months. It will kill everything where they sprayed it.

The REMC contact I spoke with acknowledged that they had no right to do what was done. That I could force them to remove the power lines if I wanted to.

Part of the property where they sprayed is a steep hillside and it will be devoid of vegetation I have already had a bit of slope failure there and I suspect it will get much worse. so I have that to consider.

I spoke with an attorney also, he stated that my compensation under Indiana law are three times the actual and future value of the timber. Compensation for loss of the aesthetic value of the woodland and compensation for the loss of soils that may occur. He had a big smile on his face after I was done speaking with him. I think he smells blood in the water. He advised me to not settle for less than I wanted.

The contractor is turning the matter in to their insurance company today and they are supposed to contact me. I get to deal with them next.

I mentioned to the REMC rep that they will never again receive permission for any work on the property.
No spraying or physical removal, cutting etc. he said there is a old lady down the road dependent on a oxygen generator. I told him they better be getting her a standby generator.

For those that do not know classified forest is a program in Indiana that you can enroll your land in that
requires you to practice best forest management techniques to ensure a good and quality timber supply in the state. Enrolling in the program keeps your taxes on the land low. Only a dollar per acre per year.

I will update the thread when everything is settled and I have closure.

pappy19 · April 22, 2014, 11:35:07 AM

This is an interesting thread. Having been in the "right of way agent" business for many years, and having paid millions in damages settlements for companies, I have the following suggestions.

1) Even without a recorded easement, the power company has a "prescriptive" right and I am sure, they are recognized as a legitimate utility. That gives them certain rights regardless of the circumstances. that being said, any settlement that you make with the company should include a written easement document with a certified surveyed plat of your land. It should be specific in the width of the right of way and include any language concerning "danger trees" and method of keeping the right of way cleared. You should seek out a good attorney that is knowledgable on easements.

2) Within the damage settlement, I would recommend that you not settle for a dollar amount, but that the company is responsible for a successful re-vegetation of your affected property, plus your attorney fees. If you accept a dollar amount, then you are stuck with making the replanting work regardless of how long or how much money it takes. This should also include the hill side you refer to as being denuded.

3) It doesn't help to be nasty, but you should become knowledgable as to your position and leverage. As a last resort, you can petition the local court with your pleading, including the right to have a written and specific easement including width, etc.

If you get an attorney to draft an easement, I would be happy to review it for you.

Pap

curdog · April 22, 2014, 06:00:48 PM

I hate to add more to it, but keep an eye on the vegetation surrounding the area and not just the trees directly sprayed. Tordon will move through the soil, and the hillside could amplify that. If water runs down it could carry some into other areas, and tordon becomes volatile and spray drift damage can show up with even small amounts of herbicide contact.
Good luck with the power company.

Black_Bear · April 23, 2014, 12:37:27 PM

Glad to hear it may work out OK for you.

luvmexfood · April 28, 2014, 04:34:53 PM

Here is a similiar question. Our utility company contracts with a large company for right of way clearing. Their rep came to my house and asked if I care if they cleared the right of way on about a third of an acre. I asked if they would chip and remove limbs etc. and leave anything that would make a log for me to get out. Well they left the logs and I got what would sell and did well on them. Now, after a few months he hawing around they are refusing to chip the brush.

Do I have any standing on that?

Second to that they need to comeback sometime and cut a little more at another spot. I understand that legally they probably have the right to but as the power of attorney for my mother who actually owns the land just to show them that they can't come on our land any make a mess and leave would it be legal to request proof of insurance and workers comp insurance before they work on our land again?

SwampDonkey · April 28, 2014, 06:15:56 PM

I would say it is your right to ask. However a lot of land owners don't realize they to need liability insurance to if the crew were to role a machine into a hole. Worker's comp covers their workers so you can't be sued, but if equipment gets damaged there is no worker's comp for that. Their liability is for damage they do to your place. If there was no contract to clean that brush, and just words exchanged, that might be tough to win.

pappy19 · April 29, 2014, 09:27:47 AM

The power cpmpanies, and pipeline companies as well, have the right to keep their right of way cleared of vegetation and woody plants. Usually that means they bush hog every year or sometimes twice a year. Power companies also usually have a clause or the "right" to remove "danger" trees that could fall and disrupt the power. That being said, these companies usually hire a sub to do all of the veg maintenance. Some agreements have a liability clause that removes the landowner from any liability issues. If you do not have a written agreement/easement or if the agreement does not have a liability clause, then I would suggest you obtain an amendment to your agreement with more stipulations regarding entry, cleanup, liability, notifications, etc. A good land attorney can write you one fairly cheap or you can PM me a note. Some agreements require a "right of entry" document be signed for each entry onto the property. It all depends on the situation.

luvmexfood · April 29, 2014, 11:12:38 AM

Pappy.

I guess it's no big deal but it just gets under my skin a little when they tell you on more than one occasion that they will chip the brush and don't. I wouldn't have a clue where to look for any right of way agreement. Tell you one thing. They sure are not a ball of fire when it comes to working. They set in the truck as much as they work. I even pointed out one tree that had severe damage to the trunk and was starting to rot. They limbed it but did not cut it but cut some others right beside it. I guess somewhere they would have a copy of the agreement but getting a copy would probably be impossible.

pappy19 · April 29, 2014, 11:40:30 AM

You can go to a title company with your legal description of your property along with your county assessor Parcel number (APN) and they can bring up every legal document associated with that land parcel. They may charge you up to $50 for this. Or, you can go to your county courthouse at the rcorder's office and ask them to bring up any easement or right of way documents associated with your property. They may charge you for the copy if they have it on their computer. If it is a real old document like over 25 years, they will show you how to find it in the Index books.