Tree Rustling, Fort Bragg Style
by Bruce Anderson, May 21, 2008
The day after escrow closed on the Fort Bragg property Wayne and Mason Cottrell bought out on Franklin Road, they logged the property next door.
Mason Cottrell is a Fort Bragg police officer. Mason's father-in-law is also a Coast police officer. You could say the Cottrells are a law enforcement family, not a logging family, but a few years ago they did a little of both.
The Cottrells said the big trees they took down on their neighbor's property and made into lumber were on their side of the property line. They said they knew where the line was because a real estate agent had shown them the property lines, showed them the line separating their 3.9 acres from the 3.1 acres of 41-year-old Skye Nickell, a single woman who was in Virginia when the Cottrells took eight trees from her property, trees valued at $53,200 but priceless to the lady who owned them, trees the previous owner of the property had left up, he said, "to make the place look nice so I could sell it."
The Cottrells said they took one of the trees down because they were afraid it would fall on their neighbor, whoever she was. They left another menacing tree standing, an old hemlock; it seemed more hazardous than the much more valuable redwood next to it, not that the Cottrells would think of putting economic considerations ahead of neighborhood safety.
Both trees were on their side of the line. That's the way the Cottrells saw it, they said.
The Cottrells had never met their neighbor, Skye Nickell, and they seemed perplexed, surprised even, that she was not grateful for their concern for her welfare when they did meet her. More surprising to the Cottrells, Skye Nickell seemed upset that her trees were gone. But they weren't her trees, they were the Cottrell's trees because the real estate agent who'd sold them their place had shown them where their property line was.
Skye Nickell first came to live on the Mendocino coast in 1991, "but I used to come camping up here all the time with my family when I was a kid." She graduated from Berkeley High School and has a two year physical science and math degree from the College of the Redwoods. Her dad was a civil engineer for the City of Pleasant Hill. Skye is a math wizard; she's studied electrical and sound engineering. She reads calculus textbooks for fun. She is much in demand as a lighting technician for rock and roll and stage shows. She works at two jobs, one in Fort Bragg, one in Mendocino, and she maintains two small enterprises of her own, each of them having to do with her skill as a lighting tech. Skye Nickell has worked long and hard to buy her little slice of land.
When the little slice of land a few miles east of town was finally hers, Skye had driven from Virginia to Fort Bragg almost non-stop. She was anxious to begin a new life on the first piece of property she'd ever owned, "my dream place," she calls it, her three-plus acres of paradise where the lush redwood forest of Jackson State Forest meets the uniquely stunted botany of pygmy forest off Simpson Lane and borders Jackson State Forest, a protected area just out of the fog belt, where a botanical cornucopia thrives — berries, rare trees, animals, ferns, untouched, untapped springs, a lush little stream. It's a place to love, and Skye Nickell loves it.
The loss of her trees was doubly, triply painful to Skye, a person who tracks every plant and tree, every animal, on her edenic three acres, tracks it all with the delight of an explorer. As she leads the visitor through the remaining trees and lush stream-fed vegetation, she identifies each fern, each tree. "That burrow there? There's this huge raccoon. I think he lives in it. And yesterday I saw a giant salamander just over there in that pool."
Jackson State Forest could not have a more conscientious property owner on one of its south boundaries, but the damage done to a protected area of Hare Creek by Skye's next door neighbors, the previously untouched ribbon of blue line stream where Jackson State Forest abuts Skye's property was described by the forester who looked at it as, "Significant damage to the understory vegetation was observed in the areas near the creek; the ground had been disturbed with heavy equipment and erosion into the creek was occurring from disturbed areas."
The California Department of Forestry, the people who protect Jackson State Forest from exactly this kind and all kinds of damage, were otherwise silent.
"I drove straight across the country to get home when I finally bought the place," Skye remembers. "I was so eager to start working and living on my own place, and I just sat down and bawled my eyes out when I saw what happened. I couldn't believe it. I was in a state of shock. When I saw the Cottrells the next day they looked at me like, 'Who's this girl? What's she doing on our property?' I said, 'Hey, you're cutting my trees down. What's up? Who are you? Do you mind explaining yourselves?'"
The Cottrells explained themselves by saying that Skye didn't know that the property line wasn't where she thought it was, that the trees they'd cut down were on their side of the line, that she generally didn't know what she was talking about, that the trees were theirs.
Which they weren't.
Neither was the distribution box and 50 feet of leach line the Cottrells soon dug on Skye's property, with the leach line at the top of Skye's driveway.
Skye called a busy Fort Bragg surveyor named Richard Seale. Could he please come out right away? Seale at first said he was too busy for any more work, "really jammed," but maybe there was something in Skye's voice, something so urgent about her, that Seale fit Skye in.
The surveyor had no trouble finding corner markers, the true corner markers, the only corner markers separating Skye's three-plus acres from the Cottrell's three-plus acres.
The Cottrells hadn't bothered to check with Skye before they began taking the trees, hadn't had their own survey done, hadn't bothered to file for a logging permit, either.
About a year later, though, when lawyers became involved, the Cottrells filed for a three-acre exemption cut. It was one of the oddest timber filings ever in Mendocino County because it was filed a year after the trees had become lumber, and it was for trees cut down on property that didn't belong to them.
By the time the lawyers got involved, the Cottrells had suggested to Skye that they might both sue the real estate company. The whole misunderstanding, the Cottrells said, was the real estate agent's fault. He'd shown the Cottrells the wrong property line. Those eight trees valued at $53,200? The Cottrells were positive they were on their side of the line. The realtor told them where the line was. It was all Penitenti/Petersen's fault, the real estate firm. They made the mistake, not us. Case closed.
Mr. Petersen of Penitenti/Petersen had shown the Cottrells the wrong property line that just happened to include the thirty feet of Skye's place the trees were on. If that darned Petersen guy had only shown them the correct property lines none of this would have happened.
Wayne Cottrell said he and his wife spent two hours walking the property he bought next door to Skye, two hours walking the three-plus acres with realtor Petersen himself. They knew where the lines were.
Wayne Cottrell says, "He showed us four flagged corners. He stated that they were the corners of our property that we were purchasing. So I took it on his good word and, you know, faith and good word that he showed me the four true corners."
So, simple enough. Let's ask Mr. Petersen what he told the Cottrells.
Nobody could ask Mr. Petersen anything, because Mr. Petersen was conveniently dead.
He'd died before anybody could ask him about anything about Skye Nickell or Wayne and Sharon Cottrell or their property lines.
Wayne Cottrell got a survey after Skye sued him. That survey gave the Cottrells the bad news that they'd cut down and milled Skye's trees.
The Cottrells had gotten a permit for a septic tank, but their belated survey gave them another piece of bad news: Approximately 50 percent of the leach line was on Skye Nickell's property, as was the septic system's distribution box.
The Cottrells had to dig up their distribution box and leach line.
"So," Skye says with a rueful laugh, "they got my trees, got the lumber they made out of my trees, but they don't have to clean up the mess they made on my property, there were no criminal charges filed against them for stealing my trees, they were not penalized for perjury, they got $23,500 from the real estate man's insurer, and they weren't penalized for logging and using heavy equipment in the protected zone of Jackson State Forest."
By the time the Cottrells conceded that they were wrong about the property line, a fact they could have discovered for themselves by a simple glance at the plot plan, they'd had put up multiple No Trespassing signs facing Skye's property. Maybe the signs were to remind themselves what belonged to whom, maybe they were merely blaming their victim.
"When I first talked to them they were surly, although the wife was nice," Skye remembers. "She brought me baby trees and made other neighborly gestures. She said she felt bad for all the trouble."
Down at the Fort Bragg cop shops there was a lot of joking about tree rustlers and leach lines, and rumors that the logger cops were laughing about it to other cops, the logger cops saying they'd drag it out until they broke Skye financially or mentally.
Skye says, "They came pretty close." Since that day in 2001 when she came home to find her trees gone, there's been six years of bullying lawyers, court appearances, depositions, lost files, judicial cowardice — all because a well-connected family of Fort Bragg old-timers with a law enforcement son and a law enforcement in-law stole the lady's trees.
"I was so excited to finally own my own place," Skye, a naturally upbeat person, seems reluctant to recall, "so I get home and find my trees gone, slash piles, burn piles, milling remnants — a big mess on my property. They seemed to think I was an out-of-towner they'd never see, someone who bought the place as an investment. They didn't know that I've lived in this area for many years. I only moved out of state for a while to make the money so I could buy something here."
The Cottrells, with their law enforcement associations were intimidating, especially to a single woman living alone, but as obvious as the theft of her trees was, Skye still assumed the Cottrells would do right by her. Surely a law enforcement family wouldn't steal from her? But even if the Cottrells didn't do the right thing the courts would straighten things out. I mean, really, how complicated was it?
Skye thought at first she could work it out without involving lawyers.
She was wrong.
The Cottrells had convinced themselves that they were the wronged party. The Cottrells couldn't very well admit otherwise, could they? But now that they officially weren't the wronged party given the fact of the now-confirmed property lines, they were suddenly friendly to their neighbor. All they could do was say that the realtor, the dead man, had steered them wrong, nevermind that they hadn't logged a single marketable tree on their own property, not even one that was leaning, a potential widow maker, one like the redwood they cut down on Skye's place that the Cottrells said they took down so it wouldn't fall on her, the redwood that just happened to be worth thousands of dollars.
"When I asked them to return the wood," Skye says, "and asked them to clean up the mess they'd made, they hemmed and hawed and complained about the money they'd put into the project. They haven't touched any of their big trees, only mine. They even said they planned on moving here to live in a big pink trailer!"
When a judge finally asked the Cottrells to bring the wood back the Cottrells claimed they were afraid to come near the 5'2" 110 pound woman who, she says, "still gets carded once in a while." Then they said that their lawyer, John Ruprecht, told them not to bring it back "until the matter was resolved."
Skye was worried.
Former neighbors had seen men walking around "kicking things" on her property, and Skye "was finding cigarette butts right in front of my steps when I came home from work. It was like a message to me saying they could do whatever they wanted. I had a deputy ask them to stay off my property because they were walking around on it when I wasn't there. And they constantly used my driveway even after I asked them not to. I planted a row of trees to keep them out — they complained in a deposition about it — so in obvious retaliation they pushed a big, ugly berm between their place and mine. I'd planted some young trees near there and they drove back and forth over them while they were putting in their leach lines on my property."
The legal battle commenced.
The Cottrells hired the aforementioned Fort Bragg lawyer named Ruprecht; Skye hired a Ukiah lawyer named Johnson. She'd never been to court before. She didn't know what to expect, but she expected justice. Realizing that the matter would be settled in the Ten Mile Court in Fort Bragg, Skye instead hired a Fort Bragg attorney, James Rainie. Rainie was close by, Ten Mile Court was close by, too.
The case dragged on, 2001-2008.
Rainie suffered a nervous breakdown and ceased the practice of law. Then the case file was mysteriously lost. The files were somehow sent to Ukiah when they should have stayed in Fort Bragg. Judge Lehan couldn't find them "to schedule the matter." Four big, thick files. Lost, lost for so long that when they were finally found and the case resumed, many months had passed, and when Skye finally went to court expecting "the matter to proceed to trial," Judge Lehan announced, "I'm in a box here, but I have to follow the law. Case dismissed."
The judge said Nickell vs. Cottrell had lingered so long in legal limbo it was unfair to the defendants, the Cottrells, to drag it out any longer although Skye and her then-attorney, Rod Jones, were ready to take it to a judge as soon as the judge would sit down to hear it; they waived a jury trial simply to get the thing finally resolved.
But the judge said the law compelled him to dismiss it. Judge Lehan didn't say he was dismissing it "in the interests of justice." That might have been a little too much even for him. No, he just said Nickell vs. Cottrell was too old, apparently oblivious of the fact that he'd aged most of it himself.
While Skye's lawyer was having his nervous breakdown and charging Skye for it, and while her case was lost somewhere in the County Courthouse in Ukiah, the Cottrells collected $23,500 from Penitenti and Petersen, the Fort Bragg real estate firm because, as the Cottrells claimed, a dead man had shown them the wrong property lines.
And Skye received legal bills she's still paying, including one from John Ruprecht, the Cottrell's lawyer, for depositions Ruprecht insisted on convening, which she'll have to pay if her appeal isn't successful.
A word about Ruprecht, esq.
On the 4th of September, 2001, Ruprecht, freshly hired by the Cottrells, called Skye at her work and asked who was representing her. She told Ruprecht she was represented by Tom Johnson of Ukiah. Rather than ringing off with a thank you, Ruprecht kept Skye on the line. He began arguing the case with her. Ruprecht went on arguing although he knew Skye was at work, knew that even by Mendocino County's notoriously loose legal ethics he was behaving "unprofessionally," clearly trying to intimidate Skye into ceasing her claims against his clients, the Cottrells, innocent victims, as Ruprecht portrayed them, of their deceased real estate agent.
Soon after Mr. Ruprecht's bullying phone call, Mrs. Ruprecht appeared at Skye's job. Skye didn't know who she was until it was too late. Skye thought Mrs. Ruprecht was merely a friendly shopper, so friendly, so interested in Skye's life that Skye soon found herself telling Mrs. Ruprecht all about how her property had been logged by her neighbors. Mrs. Ruprecht paid for a small purchase with a check identifying her as who she really was, her husband's private investigator.
Wayne and Sharon Cottrell are in their middle 50s. Wayne Cottrell is a carpenter. He once worked for Origin Construction until his own vehicle rolled over him as he worked on it, permanently disabling him. The Cottrells live on Hare Creek Terrace not far west from the few acres they own adjacent to Skye's 3.1 acres. Sharon Cottrell owns Cottrell's Ferns and Flora, a small retail-wholesale-retail nursery.
Wayne Cottrell says he felled three of Skye's trees himself. A man named Rod Ciro "helped me fell three others." It was Ciro's skidder that pulled the downed trees in the protected zone of Hare Creek out to the area next to Skye's driveway where about half of them were milled and hauled off to the Cottrell compound on Hare Creek Terrace. The other half was eventually returned to Skye in the form of rotten logs, a few rounds and maybe half the milled wood.
Wayne Cottrell said he couldn't remember if his son Mason, the Fort Bragg policeman, helped him with the project.
"I milled up approximately 80 percent, 20 percent is still sitting on the ground up at the top, that's part of the slash pile," he said.
Which, like the trees it came from, is virtually in Skye's driveway, a constant reminder to her that half the beauty of her three acres of paradise has been reduced to slash piles that Skye's gradually cutting up so she won't have to be reminded of the Cottrell's initial raid on her place back in 2001.
Skye hired Horticultural Associates of Glen Ellen to evaluate her property without the trees that had so dramatically enhanced its beauty and its value. The undisputed report declared that "Eight trees and understory vegetation with an appraised value of $53,200 were removed from the site at an unknown time in the summer of 2001."
- Tree 1 Monterey cypress $10,400
- Tree 2 Doug fir $9,300
- Tree 3 western hemlock $1,300
- Tree 4 coast redwood $6,000
- Tree 5 coast redwood $5,000
- Tree 6 coast redwood $16,900
- Tree 7 tanbark oak $3,500
- Tree 8 California bay laurel $800
"This property," the report continues, "was purchased with the intention of constructing a home, and a significant portion of its intrinsic value is the wooded character created by its many trees. Loss of trees has diminished its monetary and aesthetic value, as well as basic engineering, architectural and environmental functions."
The illegal taking of trees and disputes over property lines often combine in Mendocino County to create arguments that have to be worked out in the courts. The law is very clear.
Civil Code section 3346 — "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, except that where the trespass was casual or involuntary, or that the defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment, and excepting further that where the wood was taken by the authority of highway officers for the purpose of repairing a public highway or bridge upon the land or adjoining it, in which case judgment shall only be given in a sum equal to the actual detriment."
Pat Lawler functioned as Skye's realtor for Penitenti and Petersen. Retired in 1996 as senior loan officer and appraiser for the Farm Credit Bank of Spokane, Lawler, well into his golden years, forthrightly declares, "It's not the salesman's responsibility to identify property corners or boundaries. Salesmen are not surveyors."
Not that Lawler was hostile to Skye. He was simply pointing out his obligations as a realtor.
"He told me all the corner points," Skye says. "I had no trouble locating them. They were all visible."
Skye also remembers talking with the Roy Petersen when Wayne Cottrell mentioned to her that Petersen had given him permission to take down "a widow maker" on her property. Skye hustled down to the Penitenti/Petersen where Petersen assured Skye he had not, could not, give anyone permission to cut down trees on another person's property, but he did remember Wayne Cottrell calling him to ask about doing it. He said he told Cottrell he couldn't give him permission. Petersen, Skye says, also told her that he was confident he'd shown the Cottrells the correct property line markers.
"After it all happened," Skye says "the Cottrells came out right after the County notified them that their septic system was halfway on Skye's property and wanted to discuss things. They say I cussed them out that time, which I didn't, but the second time they tried to talk to me I realized that they probably weren't going to go away so I did. They both apologized and said that Roy Petersen had shown them the wrong corner points. Wayne said we were going to be neighbors so we should work it out and maybe work together, that the real estate agency was really liable for all the damage that had been done. Wayne said maybe we should sue the real estate agency together. I wasn't interested in doing that. I said maybe he'd consider moving his property line over so I could have his big trees in exchange for the ones he took from me; he really didn't like that idea too much, but we left on good terms, I thought."
Rod Jones of Mendocino became Skye's attorney when the unfortunate Rainie became so ill he could no longer work. Before Rainie stopped representing her, Ruprecht and the lawyer for Penitenti's and Petersen's insurer, a Santa Rosa-based attorney named Seeger, spent much of a day's deposition insulting Skye, demanding that she explain private aspects of her personal history as if it were somehow relevant to the known fact that her neighbors had stolen her trees.
Skye remembers the hellish deposition.
"Mr. Rainie was completely out of it, like he wasn't there. He just let them go on asking me all kinds of things about boyfriends, my medical history, whatever, and I had to answer them. It went on and on. I was really raked over the coals, and nobody explained what any of it had to do with my case."
Rainie himself would write, "I served as counsel to plaintiff from 2001 until sometime in 2005. My health was faltering during the latter part of my representation and, by May 2005, I was totally disabled and had to end my practice..."
The Ten Mile Court then lost Skye's case file.
Rod Jones picked up the pieces in 2006, five years after Skye's trees had been turned into lumber and trucked down Simpson Lane to Wayne Cottrell's house, where half of Skye's lumber is believed to reside to this day.
Jones has worked steadily "to get the case back on track, get it kick-started." He characterizes the depositions Skye was subjected to by Ruprecht and Seeger as "outrageous" and the entire case as, "Horrible, one of these cases that just makes me want to retire. Totally disgusting."
Jones did get the case kick-started. He got everything ready to go to court this year, 2008. Skye would finally get the opportunity to tell a judge what had happened to her.
Then Judge Lehan threw it out.
The judge said he had to throw it out because it had taken too long to get it into court, as if the delays were her fault, as if Skye could have predicted her attorney's mental health collapse, as if she'd lost her own case files.
Jones is so angry that he's writing Skye's appeal at no charge, arguing that "The five-year limit is rarely an issue in modern practice because the court, not the parties, controls the pace of litigation."
He also nicely summed up the Cottrell side of the dispute.
"...This case inexplicably became an 'orphan' of the courts for about the last year or so, getting moved back and forth between Ukiah and the Coast for no apparent purpose and becoming lost in the bowels of the bureaucracy. Trial dates have been changed and vacated, but not on request of plaintiff but by unilateral court order... It was only during a casual recalculation, following receipt of a handsome settlement check from the insurance company [$23,500 paid to the Cottrells and Ruprecht], that this new issue suddenly appeared, providing defendants with a tool to disallow plaintiff from having her day in court and reward themselves for their timber trespass... No one in the clerk's office has ever explained (or seems to know) why the case file was transferred to Ukiah to languish during and after the writ proceeding. Plaintiff has done all within her power to prosecute her claims."
Gentleman John Ruprecht has also dunned Skye for $2,200 for the depositions he demanded, the leeringly boorish depositions during which Ruprecht and Seeger, the voyeur for the insurance company, pried irrelevantly, endlessly into Skye's personal life.
Skye, then, will be asked to pay for the privilege of being insulted for two hours by two lawyers.
Rod Jones is still seething at Judge Lehan's decision to throw Skye over the side on the phony grounds that her case took too long to get to court.
"This is one of those cases where a judge should be a judge and look at this thing and say, 'You know something? I'm not going to let this happen. It's not fair. She could go to trial and lose it that way. That's the risk you take when you go to trial. But I'm not going to let her lose it by a judge saying 'Well, the statute has run. Goodbye.' That just can't happen."
The appeal is going forward. Presumably, the appellate court won't lose the case file.