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  1. #1
    Join Date
    May 2018
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    4

    Default Compensation for Trimming Trees in an Easement

    My question involves real estate located in the State of: Texas

    An easement holder wishes to remove some trees and trim others. The trees are both in the easement and bordering the easement. Those trees that are in the easement were willing allowed to remain in the easement 40 years ago when it was taken. The easement language states that "the Agency will pay to the owner of the land, and if leased, to his tenant, as they may be respectively entitled, for actual damage as done to timber, fences and growing crops by reason of construction, maintenance or removal of said lines; provided however, that no such payment shall be made for trimming or removal of trees hereafter permitted to grow on said land, nor for removal of buildings, structures, or obstructions erected upon said land after any of the said lines are constructed."

    How do I establish the value of a tree? How do I establish the reduction in value of a beautifully shaped tree that will soon be shaped like a toothbrush?

    Beyond this basic issue of the value of a tree, the tree line they want to remove blocks the view of my backyard from my neighbors. The symmetry and overall layout of my yard was based on the tree line that they left 40 years ago, with that treeline removed I will need to plant new trees, closer to my house, thus causing me to relocate paths and plantings that have all been laid out by landscape architects over the years and kept in good condition; do they owe me for this as well?

  2. #2
    Join Date
    Jan 2006
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    38,867

    Default Re: Value of Trees Adjoining Easement That Easement Holder Wants to Trim

    You establish the value of a tree by having it appraised by a person qualified to establish the value of a tree. Sometimes that’s an arborist. In some states it’s a licensed appraiser.

    But I’m not sure why you ask. This phrase, "provided however, that no such payment shall be made for trimming or removal of trees hereafter permitted to grow on said land," appears to state you aren’t owed anything for the trees removed now.

  3. #3
    Join Date
    Nov 2013
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    6,807

    Default Re: Value of Trees Adjoining Easement That Easement Holder Wants to Trim

    Looks like you are the servient estate and when the easement was granted (not taken) there were trees that could have been required to be removed but weren't. Now years later, the dominant estate wants to trim or remove those trees.

    However now, the clause in the language that says:

    provided however, that no such payment shall be made for trimming or removal of trees hereafter permitted to grow on said land,
    would preclude you from receiving payment for those trees. So I have to agree with JK.

  4. #4
    Join Date
    May 2018
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    4

    Default Re: Value of Trees Adjoining Easement That Easement Holder Wants to Trim

    You are correct that some of these trees existed before the easement and that the dominant estate chose not to remove them. So they are not trees permitted to grow hereafter, they existed prior to. Really that does not seem to be an issue, they are willing to pay for those trees; I just need to establish a value. Also at issue are trees that are not in the easement but which overhang the easement and they want to trim them. one of which is a leaning live oak that has tremendous character and will be destroyed by the trimming.

  5. #5
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    Jan 2006
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    Default Re: Value of Trees Adjoining Easement That Easement Holder Wants to Trim

    Since the grant precludes the requirement to pay you for any of what they wish to do yet they are willing to pay you regardless, you can attempt to negotiate anything you wish. If you want a legally sustainable valuation, contact a tree appraiser.

  6. #6
    Join Date
    Nov 2013
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    672

    Default Re: Value of Trees Adjoining Easement That Easement Holder Wants to Trim

    You could try talking to them about the Live Oak. When my trees were last "trimmed" ONE of the supervisors was quite willing to adjust the amount of foliage removed in some cases. It would probably depend on who (some of the crews may not be amenable) and what is involved (is the tree an obvious hazard, or is it just "over the line") but it can't hurt to ask.

  7. #7
    Join Date
    May 2018
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    4

    Default Re: Value of Trees Adjoining Easement That Easement Holder Wants to Trim

    not trying to be argumentative but I don't think you are looking at it correctly. When the easement was set up the servient estate was paid a sum of money for the easement, in addition to that payment, the easement required the Agency to pay for actual damages to timber, fences and growing crops by reason of construction, maintenance or removal of said lines. These trees, for whatever reason, were not removed 40 years ago, and thus the servient estate was never compensated for them. Now they want to remove them and they should pay for damages caused by their removal. 40 years ago they may have been valued only as timber but not they are a vital part of my landscape, my growing crop, and I think I should be compensated accordingly.

    Another point is this, if the grant precludes payment for these trees then what trees are they speaking of when the easement states that they will pay for damages by reason of maintenance. If any tree that existed and any tree that subsequently grew up in or near the easement is disqualified then what tree would they have to pay for when they performed maintenance?

  8. #8
    Join Date
    Sep 2005
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    Default Re: Value of Trees Adjoining Easement That Easement Holder Wants to Trim

    Texas courts have rejected the position that trees grown for purposes of shade or ornamentation are "timber" in the context of this sort of easement language. See, e.g., Melder v. Phillips Pipe Line Co., 539 S.W.2d 208 (Tex.Civ.App.—Austin 1976).
    Quote Quoting Melder v. Phillips Pipe Line Co.
    The question presented by these appeals is whether the appellants can recover for damages to their lands under the easement deeds, which provide that the grantee and its assigns are obligated "to pay any damages which may arise to crops, timber, fences or buildings" due to the use by grantee and its assigns of the easement....

    The word "timber" has been generally defined as meaning growing trees suitable to be used for the construction of building, tools, utensils, furniture, fences, ships, etc. This concept of timber distinguishes it from saplings, and undergrowth, fruit trees, and trees suitable only for firewood or cordwood, or for decoration....

    Among the trees which appellants allege were removed from the 50-foot wide easement strip, the cedar and oak might or might not have been useful for the construction of buildings, fence posts, or other items made from wood. However, appellants neither pleaded nor proved that any of these trees were suitable for such uses; nor is there any evidence in the record concerning the amount of timber destroyed, or its value. Appellants offered instead evidence of the value of the trees for shade and ornamentation, and the reduction in the value of their land as a consequence of their removal. Growing trees, valuable for shade or ornamentation, or for fruit, are not considered to be timber in the generally accepted use of the word..... The trial court was correct in finding that no timber had been destroyed.

  9. #9
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    Jan 2006
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    Default Re: Value of Trees Adjoining Easement That Easement Holder Wants to Trim

    If any tree that existed and any tree that subsequently grew up in or near the easement is disqualified then what tree would they have to pay for when they performed maintenance?
    you only provided part of the grant so there may be something in the section not provided but based on only what you provided;

    none
    provided however, that no such payment shall be made for trimming or removal of trees hereafter permitted to grow on said land
    apparently you were paid for trees lost or trimmed at the time of the creation of the easement. After that it appears there is no payment due for removing or trimming trees.
    You are correct that some of these trees existed before the easement and that the dominant estate chose not to remove them. So they are not trees permitted to grow hereafter, they existed prior to.
    it doesn’t say trees having grown hereafter (which would exclude trees left on the easement). It says removal or trimming of trees hereafter permitted to grow on said land

    that means that ANY tree that has been permitted to grow on the easement. In other words: from that time forward, any tree that remained or newly grown or was planted can be trimmed or removed without payment to you.
    Another point is this, if the grant precludes payment for these trees then what trees are they speaking of when the easement states that they will pay for damages by reason of maintenance.
    as it is written I suggest it refers to trees that were trimmed when the easement was created and used as a construction road.









  10. #10
    Join Date
    May 2018
    Posts
    4

    Default Re: Value of Trees Adjoining Easement That Easement Holder Wants to Trim

    "the easement required the Agency to pay for actual damages to timber, fences and growing crops by reason of construction, maintenance or removal of said lines. These trees, for whatever reason, were not removed 40 years ago"

    "apparently you were paid for trees lost or trimmed at the time of the creation of the easement"

    I was not paid for trees that they did not remove, that was my point, so given that I was not compensated back then for the removal of these trees then would you agree that they should be paid for now and not as timber but as a component of the landscaping?

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