                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      April 9, 2003 Session

                   JACK T. JONES, ET AL. v. MELVIN JOHNSON

                      Appeal from the Circuit Court for Davidson County
                           No. 01C-3101     Carol Soloman, Judge



                      No. M2002-01286-COA-R3-CV - Filed June 4, 2003


This suit arose from the deliberate destruction of a walnut tree on the plaintiffs’ property. The trial
court awarded the plaintiffs $5,500 in damages. The defendant argues on appeal that the court used
the wrong measure to calculate damages, and that the judgment should not have exceeded $1,000.
We affirm the trial court.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Affirmed and Remanded

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which PATRICIA J. COTTRELL ,
J. and RUSS HELDMAN, SP . J., joined.

J. Todd Faulkner, Nashville, Tennessee, for the appellant Melvin Johnson.

Jeanan Mills Stuart, Nashville, Tennessee, for the appellees, Jack T. Jones and Joann Jones.

                                             OPINION

                                       I. UNDISPUTED FACTS

        The facts of this case are meager, but undisputed. A mature black walnut tree was growing
in the backyard of Jack and JoAnne Jones, near the property line of their next door neighbor, Melvin
Johnson. One day, Mr. Johnson trespassed onto the property of his neighbors, and made several
deep cuts with a chainsaw to the trunk of the walnut tree, effectively killing it. Mr. and Ms. Jones
paid $1,000 to have the dead tree cut down, and its stump removed.

        On September 28, 2001, the Joneses filed a Complaint for compensatory damages in the
Davidson County General Sessions Court. After a hearing, the court awarded them $3,700, basing
the award upon the damage to the tree, the cost of removal and replacement, and court costs. Mr.
Johnson appealed to the Circuit Court.
        The Circuit Court hearing was conducted on May 2, 2002. David L. Bates, owner of Bates
Nursery & Garden Center testified at trial as an expert witness. He testified that a black walnut tree
of the size which was cut down would cost about $4,500 to replace. On May 9, the trial court filed
an order granting the plaintiffs a judgment of $5,500 against Mr. Johnson. This appeal followed.

                                 II. THE MEASURE OF DAMAG ES

        Melvin Johnson has raised only one issue on appeal. He contends that it was error to grant
the plaintiffs any damages beyond the $1,000 cost of removing the tree, because they did not submit
proof of the value of their land before and after their tree was destroyed.

       The appellant relies upon the case of Cathcart v. Malone, 229 S.W.2d 157 (Tenn. Ct. App.
1950) to support his position. In that case, the defendant landowner “willfully and maliciously” cut
two shade trees whose trunks intersected the boundary line between his property and the plaintiff’s.
The court found the defendant liable for damages in trespass, and stated the measure of damages for
such an action to be “the difference in the market value of the realty immediately before and
immediately after the destruction of the tree.”

        Although this may be the most commonly applied measure of damages in such cases, our
courts have also drawn a distinction between temporary injury to land, which may be corrected by
the expenditure of money and labor, and permanent damage, which may not be reasonably so
corrected. In the case of temporary injury, the proper measure is generally held to be either the cost
of restoration or the reduction in market value, whichever is less. Doss v. Billington, 39 S.W. 717
(Tenn. 1897). See also Killian v. Campbell, 760 S.W.2d 218 (Tenn. Ct. App. 1988); Redbud
Cooperative Corp. v. Clayton, 700 S.W.2d 551 (Tenn. Ct. App. 1985).

        Appellant argues that since the appellees did not present any proof as to the value of their
land, there is no way to determine whether the cost of restoration would be greater or less than its
reduction in market value. He agrees that he is liable for the $1,000 cost of removing the dead tree,
but claims that the absence of proof on the value of the land requires the dismissal or reversal of any
other claims for damages.

        Appellees contend that they would be insufficiently compensated for the loss of their tree if
they were only to recover the cost they incurred to remove it. They point out that the damage
inflicted by Mr. Johnson was intentional, and that Mr. Bates’ expert testimony as to the cost of
replacing the tree was unrefuted. They further maintain that once competent evidence of their
damages has been entered into the record, the burden shifts to the defendant to introduce any
evidence that would support a lesser award.

                                   III. THE BURDEN OF PROOF

       We have not found any Tennessee cases that directly address the allocation of the burden
of proof when the plaintiff has introduced proof of only one of the two alternative measures of


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damages for injury to real property. When we turn to Am. Jur. 2d, we discover that other
jurisdictions have had to deal with this question and with others closely related to it in ways that are
helpful to our analysis. See 22 Am. Jur. 2d Damages § 402 (1998).

        In New York State, for example, it appears to be the rule that the plaintiff is only obligated
to establish the amount of damages by using one measure, and that once he has done so, it is the
defendant’s obligation to prove that a lesser amount than that claimed by the plaintiff would be
sufficient compensation for the loss. Jenkins v. Etlinger, 432 N.E.2d 589 (N.Y. 1982). We are
reluctant to adopt the same rule in all our cases, for the plaintiff is often in a far better position to
establish the value of his land than is the defendant, and it may sometimes lead to injustice to
automatically excuse him from doing so. On the other hand, we would not want to say that if the
plaintiff does not prove both measures of damages then he is not eligible to receive either, for this
could also lead to an unjust result.

       We note that when the injury is intentionally inflicted, courts are sometimes allowed to
measure the damages by the costs of restoration alone, even when these costs have been proven to
exceed the decrease in market value. Dandoy v. Oswald Bros. Paving Co., 298 P. 1030 (Cal. App.
2d Dist. 1931). This is especially so when the plaintiff intends to remain on the property, since in
such cases its restoration would be of more immediate benefit than some theoretical price that could
be obtained upon a future sale. Samson Const. Co. v. Brusowankin, 147 A.2d 430 (Md. 1958);
Moulton v. Groveton Papers Co., 323 A.2d 906 (N.H. 1974).

        All the above cases rest on their individual facts, and thus each of them is cited in many
subsequent cases which set out distinctions to justify a different result. The unifying principle
appears to be the goal of making the injured party whole for the losses inflicted on him by the
defendant’s actions. If the appellees in the present case received some benefit from the presence of
a large living tree in their yard, then reimbursement of the costs of removing a dead tree would
clearly not make them whole.

        The record does not contain a transcript of the evidence, so we have no way of knowing the
value the appellees placed upon the living tree.1 We know that the shade provided by such a tree,
the beauty of its foliage, its value as a habitat for squirrels and birds can make it a highly prized
feature in any yard. We also know that the leaves and the hard fruits dropped by a walnut tree can
create the need for a lot of unwelcome raking and gathering. Perhaps this is the reason for
appellant’s unwise decision to destroy his neighbors’ tree. We can only speculate.

        In any case, we have dealt with the question of law raised by the appellant by determining
that a plaintiff is not obligated in every case to prove two alternative measures of damages in order
to establish a basis for recovery. Thus, we can only reverse the trial court’s $4,500 award if we find


         1
           W e note that in Cole v. Clifton, 833 S.W .2d 75 (T enn. Ct. App. 1992), the plaintiffs did not receive any
damage award for the negligent destruction of trees and shrubs o n their prope rty because they failed to prove that they
were affected in any way by the loss of vegetation.

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that the evidence preponderates against it. See Rule 13(d), Tenn. R. Civ. P. Given the state of the
record, and the unrefuted evidence that replacement of the walnut tree would cost $4,500, we do not
see how we could make such a finding. We therefore affirm the trial court.

                                                 IV.

      The order of the trial court is affirmed. Remand this cause to the Circuit Court of Davidson
County for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant,
Melvin Johnson.




                                               _________________________________________
                                               BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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