California Civil Jury Instructions (CACI)

2002. Trespass to Timber (Civ. Code, § 3346; Code Civ. Proc., § 733)

[Name of plaintiff] claims that [name of defendant] trespassed on [his/her/its] property and [cut down or damaged trees/took timber]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [owned/leased/occupied/controlled] the property;

2. That [name of defendant] intentionally, recklessly, or negligently entered [name of plaintiff]’s property and [cut down or damaged trees/took timber] located on the property;

3. That [name of plaintiff] did not give permission to [cut down or damage the trees/take timber] [or that [name of defendant] exceeded [name of plaintiff]’s permission];

4. That [name of plaintiff] was harmed; and

5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003

Directions for Use

Note that the affirmative defense of reliance on a survey could be raised by defendant.

Sources and Authority

  • Civil Code section 3346 provides, in part: “For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment …”
  • Code of Civil Procedure section 733 provides: “Any person who cuts down or carries off any wood or underwood, tree, or timber . . . or otherwise injures any tree or timber on the land of another person . . . is liable to the owner of such land . . . for treble the amount of damages which may be assessed therefor, in a civil action, in any Court having jurisdiction.”
  • “Although an award of double the actual damages is mandatory under section 3346, the court retains discretion whether to triple them under that statute or Code of Civil Procedure section 733. [¶] ‘So, the effect of section 3346 as amended, read together with section 733, is that the Legislature intended, insofar as wilful and malicious trespass is concerned under either section, to leave the imposition of treble damages discretionary with the court, but to place a floor upon that discretion at double damages which must be applied whether the trespass be wilful and malicious or casual and involuntary, etc. There are now three measures of damages applicable to the pertinent types of trespass: (1) for wilful and malicious trespass the court may impose treble damages but must impose double damages; (2) for casual and involuntary trespass, etc., the court must impose double damages; and (3) for trespass under authority actual damages.’ ” (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1742 [33 Cal.Rptr.2d 391], internal citation omitted.)
  • The damages provisions in sections 3346 and 733 must be “treated as penal and punitive.” (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138 [235 Cal.Rptr. 857], internal citation omitted.)
  • “ ‘However, due to the penal nature of these provisions, the damages should be neither doubled nor tripled under section 3346 if punitive damages are awarded under section 3294. That would amount to punishing the defendant twice and is not necessary to further the policy behind section 3294 of educating blunderers (persons who mistake location of boundary lines) and discouraging rogues (persons who ignore boundary lines).’ ” (Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 169 [100 Cal.Rptr.2d 662], internal citations omitted.)
  • “Treble damages could only be awarded under [section 3346] where the wrongdoer intentionally acted wilfully or maliciously. The required intent is one to vex, harass or annoy, and the existence of such intent is a question of fact for the trial court.” (Sills v. Siller (1963) 218 Cal.App.2d 735, 743 [32 Cal.Rptr. 621], internal citation omitted.)
  • “Although neither section [3346 or 733] expressly so provides, it is now settled that to warrant such an award of treble damages it must be established that the wrongful act was willful and malicious.” (Caldwell v. Walker (1963) 211 Cal.App.2d 758, 762 [27 Cal.Rptr. 675], internal citations omitted.)
  • “A proper and helpful analogue here is the award of exemplary damages under section 3294 of the Civil Code when a defendant has been guilty, inter alia, of ‘malice, express or implied.’ ” (Caldwell, supra, 211 Cal.App.2d at pp. 763—764.)
  • “Diminution in market value . . . is not an absolute limitation; several other theories are available to fix appropriate compensation for the plaintiff’s loss… [¶] One alternative measure of damages is the cost of restoring the property to its condition prior to the injury. Courts will normally not award costs of restoration if they exceed the diminution in the value of the property; the plaintiff may be awarded the lesser of the two amounts.” (Heninger v. Dunn (1980) 101 Cal.App.3d 858, 862 [162 Cal.Rptr. 104], internal citations omitted.)
  • “The rule precluding recovery of restoration costs in excess of diminution in value is, however, not of invariable application. Restoration costs may be awarded even though they exceed the decrease in market value if ‘there is a reason personal to the owner for restoring the original condition,’ or ‘where there is reason to believe that the plaintiff will, if fact, make the repairs.’ ” (Heninger, supra, 101 Cal.App.3d at p. 863, internal citations omitted.)
  • “Courts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered.” (Heninger, supra, 101 Cal.App.3d at p. 865.)

Secondary Sources

2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew Bender)

48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.10 (Matthew Bender)

22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew Bender)