Case of the Day – Monday, November 24, 2014



literally140423One of the many badges that marks us as curmudgeons, according to a recent book, is our preoccupation with proper language. It irritates us no end when people say “irregardless” when they mean “regardless,” say “affect” when they mean “effect,” or use “like” every third word or so.

But what metaphorically drives us batty is the casual and improper use of the word “literally.” The word means “actually” or “without exaggeration.” Believing as we do that the widespread devaluation of like every corner of the English language is like literally send us to hell in a handcart, we were surprised to see that today’s case ­– well over 50 years old – featured a witness describing “literally thousands of bees inside the trunk” of the decayed tree.

We were fascinating that, with such a swarm pursuing him, the witness took the time to count the bees, at least until he passed 2,000. That took nerves of steel. Literally.

Beyond our disquiet over the witness’s imprecise and flawed language, we were interested in the application of both Hay v. Norwalk Lodge No. 730, B. P. O. E., 92 Ohio App. 14, 109 N.E.2d 481 (Sup.Ct.Ohio 1951) and Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231 (3rd Cir. 1951). While those decisions, which we’ve discussed in recent posts, related to injury to passing motorists, the court here couldn’t see any practical difference between the landowner’s duty to a motorist and to a parked car. Furthermore, it found that the tree was so obviously dead and dangerous that the landowner was chargeable with knowing about its condition, although he’d only owned the property for a few weeks.

How many bees?  Literally thousands ...

How many bees? Literally thousands …

The court said that a few weeks was not so legally insufficient a period time for him to have gotten over and inspected the place that the factfinder was wrong for finding him liable.

The trend here is clear: the law was moving toward holding that a property owner had an affirmative duty to inspect the land. Actual or constructive knowledge wasn’t enough. The absentee owner should have done a drive-by, the court decided by implication. And thus, the evolution of a requirement that an owner affirmatively care for his or her property continued.

Turner v. Ridley, 144 A.2d 269 (Ct.App.D.C. 1958). Turner owned a house facing a street on which automobiles were regularly parked. The small front yard featured a single large tree. On a fall evening, Ridley’s friend parked Ridley’s car at the curb in from of Turner’s house. Early the next morning, with no inclement weather to blame for the event, the tree toppled and fell across the sidewalk, striking Ridley’s car.

At the time the tree fell, according to the man who had parked Ridley’s car – a man named Reid ­–the tree ‘was rotten and looked like it was dead and had very few leaves on it.’ and on the night before it fell he had remarked to a friend ‘that tree looks like it is going to fall some day.’ The tree in falling broke off even with the ground, and then it was observed that the tree was hollow and badly decayed with ‘literally thousands of bees inside the trunk.’

Turner testified he had purchased the property through an agent at a foreclosure sale a month before the mishap, that the property had been vacant since he purchased it, that he had never seen the property or the tree, and that he had no notice or knowledge that the tree was in a dangerous or rotten condition. The trial court awarded judgment to Ridley for the damages he sustained.

Turner appealed.

Held: Turner was liable for the damage to Ridley’s car. While prior cases diverge somewhat, the Court found the Ohio decision in Hay v. Norwalk Lodge No. 730, B. P. O. E., instructive, holding that “an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway.”

Knowledge could either be actual or, as held in Brandywine Hundred Realty Co. v. Cotillo, constructive, “if such condition was known or by the exercise of ordinary care could have been known by the defendant.”

The car was the first casualty ... but not the only one.

The car was the first casualty … but not the only one.

The Court admitted that Hay and Brandywine dealt with personal injuries to travelers on the highway, but it observed that there is “no distinction in principle between the case of personal injury to one lawfully traveling on a highway and the case of property damage to a vehicle lawfully parked on the highway.” The issue was whether the owner – who had only owned the property for a few weeks and who had never seen it before – could be charged with constructive knowledge of the tree’s condition. There was no question that the tree was obviously dangerous and quite dead. The Court acknowledged that “[a] three-week period is no great length of time, but we cannot rule that such period was legally insufficient time for appellant to look over his property and observe the condition of the tree and take steps to prevent its fall. We think the evidence presented a factual question as to notice and lack of care.”

“Hard cases are the quicksands of the law,” as an old maxim put it. Here, the intersection of an absentee owner, an obviously defective tree, a fairly minor damage bill, a colorful witness and lack of any defense by Turner, combined to bring about a holding that imposed additional duties on a landowner.



And Now The News …



uglytree141124New York City, New York Daily News, November 22, 2014: Reading, Pennsylvania, residents say ugly Christmas tree must go

A Christmas tree that might make Charlie Brown think twice is getting kicked to the curb a little early after residents of a Pennsylvania town complained it was too ugly. Reading’s spindly 50-foot spruce drew the ire of residents who said it was ruining their holiday spirit. Now a group led by the city council president is raising money to buy and decorate a more impressive replacement. The current tree is topped with a lighted pretzel, a nod to the area’s many bakeries …

Tampa, Florida, Tampa Bay Times, November 23, 2014: Permits sold for Christmas trees from Ocala forest

The U.S. Forest Service is selling permits for Christmas trees from the Ocala National Forest. A $7 permit includes directions and maps to a designated tree cutting area within the forest in central Florida. The permits will be available Monday through Friday, from Nov. 24 through Dec. 24 …

Cleveland, Tennessee, Daily Banner, November 23, 2014: Thousand cankers disease found on Marion County walnut trees

The Tennessee Department of Agriculture announced the discovery of walnut twig beetles, which transmit thousand cankers disease, or TCD, a walnut tree-killing disease in Marion County. The county is now buffer regulated. Residents in buffer counties can move walnut tree products and hardwood firewood within buffer counties, but not outside. Products can also be moved into a quarantine county, but not taken back out …

woodtruss141124Sourceable magazine, November 23, 2014: Turning whole trees into v\high-value building materials

Architect Michael Green’s Wood Innovation Design Centre (WIDC) in Prince George, British Columbia, is a six-story building made entirely of engineered wood. Green has proposed wooden buildings up to 30 storys. In contrast to Green, architect Roald Gundersen takes a different approach to building with wood. Rather than chipping trees and re-forming the pieces with adhesive, Gundersen’s company, Whole Trees Architecture and Structures, has developed methods forusing whole peeled logs for columns and trusses. Using government grants and private investment, Gundersen’s team has performed research at the US Forest Products Laboratory to test Y-branched trees under axial loads and to test the parallel-chord trusses that join with the Y-branched trees. They then determined the design specifications of whole trees and branched columns, and designed patent-pending steel connectors that tie the parts together …

High Point, North Carolina, WGHP-TV, November 22, 2014: Hundreds of fruit trees planted to create urban orchard in High Point

Guilford County Passive Parks Department and dozens of volunteers planted hundreds of fruit trees in High Point to create an urban orchard. The orchard is located at the Thomas Built Bus Preserve near Oak Hill Elementary School in High Point. Matt Wallace, Passive Parks Program Director for Guilford County, said more 250 fruit and nut trees will help the air quality in the area and the food desert need in the community …

xmastrees141121Sunbury, Pennsylvania Daily Item, November 21, 2014: 50,000 trees pine for owners at one of biggest auctions in US

Six feet of snow wasn’t about to stop Leon Berner from his mission: getting Christmas trees from among the thousands at the annual Buffalo Valley Produce Auction, which began Thursday. Berner owns Berner Farms Market & Greenhouse in Elma, N.Y., some 18 miles east of Buffalo where a historic snowstorm has buried the area. He has lost a greenhouse in the mess. A friend and fellow garden center owner lost five, he said. Berner was among the hundreds of vendors Thursday as the annual auction got under way. People came from as far north as Maine and as far south as Virginia to choose among the more than 50,000 fir trees, more than 20,000 wreaths and ornamentals and thousands of yards of white pine roping, which was very popular and sold out quickly …

Twisp, Washington, Methow Valley News, November 20, 2014: Dead trees are part of forest’s life cycle

When forests burn, trees die. It’s a fact. Particularly in hot fires in dense fuels — cambium cooks and needles fry. Conifers are particularly flammable and can go up in a spectacular crown fire. The resulting sea of black dead stems causes some people to think we must do something immediately. Not so fast. Catch your breath …

Jackson, Mississippi, Clinton News, November 20, 2014: Mississippi-grown trees will be cut quickly

Consumers who want Mississippi-grown Christmas trees to deck their halls should shop early for the best selection every year. “Choose-and-cut Christmas tree production in Mississippi is fairly flat because there are growers each year who retire,” said Stephen Dicke, a forestry professor with the Mississippi State University Extension Service. “Growers still in the business are producing more trees each year, but demand in heavily populated counties is much higher than the supply of trees …”

Southold, Long Island, New York,, November 20, 2014: Town sets public hearing on plan to allow developers to trade cash for trees

The Southold Town voted unanimously Tuesday to set a public hearing on a proposal pitched by the planning board that will allow developers planning a project in areas where trees are not necessary or where a suitable location does not exist, to create a tree bank, or fund, trading money for trees. According to Southold principal planner Mark Terry, who spoke about the proposal last month, there are certain projects where there is no need for trees, or not enough space. In lieu of trees on the parcel, the developer could give funding to the town’s tree committee, waiving the tree requirement for the planned subdivision …

stormdamage141120Salem, Oregon, Statesman-Journal, November 19, 2014: Trees may need first aid after ice storm

After winter storms, such as the freezing rain the Willamette Valley experienced last week, it’s time for the daunting task of cleaning up the damage. Trees in particular can suffer the brunt of inclement weather, cautioned Paul Ries, an urban forester with the Oregon State University Extension Service. Don’t try to repair all the damage yourself if your trees are large, Ries advised. Bring in a certified arborist if large limbs are broken or hanging. “I tell people that if the corrective measure involves using a chainsaw off the ground, then it’s time to hire a professional,” Ries said …

Manteca, California, Bulletin, November 20, 2014: PG&E cutting down 36 trees under lines

PG&E is removing upwards of 36 trees along a greenbelt walking path in east Manteca near Joshua Cowell School. Neighbors are upset since the trees provided shade for walkers plus beautified the neighborhood …

South Bergen, New Jersey, South Bergenite, November 19, 2014: ‘Rutherford is in crisis over its trees’

It greets visitors as they cross into town, a sign reading “Rutherford: The Borough of Trees.” Despite the local pride in the borough’s notable tree canopy, many are claiming the Department of Public Works isn’t taking care of its trees or replacing lost trees efficiently enough. The situation has prompted the governing body to examine and potentially change the way trees are handled by the borough …

Surrey, British Columbia, BC Local News, November 19, 2014: Letter – Trees can pose a serious threat to property

The cypress/juniper hedge blocking the sidewalk at the McCutcheon residence (Oak Bay News Nov. 7) illustrates things many people are ignorant of, besides the decency of not blocking sidewalks. Trees grow, especially quickly here on the wet coast, despite what environmental activists infer. Those ones really should be removed, then new ones can be planted further back from the sidewalk -– in a few years they’ll be an ample hedge …

San Francisco, California, AP, November 19, 2014: Downed trees in San Francisco leave 1 injured, cars damaged

Thursday’s rain and wind led to four large trees toppling over in San Francisco early that morning. The most serious case involved a massive ficus, estimated to be more than 50 years old- at Potrero Avenue and 23rd Street, just across the street from San Francisco General Hospital. A construction worker, emerging from an SUV, was struck by a branch and seriously injured. Firefighters say he was knocked unconscious and his arm and leg pinned by the tree …

protest141119Outer Banks, North Carolina, Sentinel, November 18, 2014: In Southern Shores, a pitched battle over trees

The issue of large numbers of old trees being cut down is galvanizing citizens of Southern Shores in their opposition to policies being pursued by the town. The topic has recently become the focus of a public outcry that has spread from the town to county government …

Columbus, Ohio, WTTE-TV, November 19, 2014: Crews kept busy as snow creates problems with trees

The snow is 36 hours old, but it was keeping tree companies busy Tuesday. One homeowner in North Columbus watched anxiously from her back yard as crews sawed away at a pear tree. “When I woke up yesterday morning, the tree was on the house. Some of the limbs and some of the limbs were actually on the electric line,” V Shields said. The homeowners planted the tree more than 10 years ago. Its limbs were creeping closer and closer to where V’s roommate sleeps. “Her room is right underneath were the tree was and I was very concerned that there might be some damage that would hurt her,” Shields said …

Rock River, Nebraska, Times, November 19, 2014: Environmental contest: Trees vs. prairie

This article addresses the different benefits and drawbacks of two types of ecosystems, trees and prairies. Several questions will be pertinent to this topic. These are questions that not many people have asked about the environment …

Houston, Texas, Press, November 18, 2014: City gets $300,000 for illegally removed oak trees on Kirby

Remember those massive oak trees that were illegally removed in front of the Wendy’s off Kirby a few weeks ago? You know, the ones that triggered a massive uproar after they were chopped down in the middle of the night illegally. Well, the City of Houston is about to get those dolla, dolla bills, y’all. The issue has already been settled, and to the tune a $300,000 settlement, no less. The four trees, which ranged in size from 10 to 20 inches in diameter, were situated at the corner of Kirby and North Boulevard in a public right-of-way, and had been planted more than a decade ago by Trees for Houston volunteers. The trees were illegally chopped down without a permit as part of a construction project to renovate a Wendy’s drive-thru in the middle of the night, and the city, which has been cracking down on improperly removed trees, was pissed …

Duquesne141118Pittsburgh, Pennsylvania, Post-Gazette, November 18, 2014: For Duquesne Light’s vegetation management coordinator, some trees are hard to trim

Jenny Arkett grew up climbing trees. She was a Girl Scout, which kept her out in the woods for hours on end. Her parents taught her to love nature and took the family camping as often as possible. “I love trees as much as anybody,” she said. So the irony isn’t lost on her that her full-time job entails cutting, pruning and removing trees from the Western Pennsylvania landscape. After all, if you love something, sometimes you have to let it go. As the vegetation management coordinator at Duquesne Light, Ms. Arkett supervises a department that scours thousands of miles of power lines searching for any type of tree, plant or shrub that might compromise power service. Sometimes that means pruning limbs. Other times that means removing a perfectly healthy, beautiful tree …

Waterloo, Ontario, Regional Record, November 18, 2014: Crews to cut down 1,100 ash trees in Kitchener this winter

Crews will continue the grim work of cutting down hundreds of ash trees throughout Kitchener as part of ongoing efforts to manage the emerald ash borer. The invasive beetle, which originates in Asia, was first spotted in Kitchener trees in 2010, and is now found in every ward of the city. The bug is expected to kill 5,000 ash trees — about 80 per cent of all ash trees in the city — within the next three years. The city is spending $11 million over 10 years to control the pest, by chemically injecting larger ash trees and systematically cutting down the rest …

Syracuse, New York, Syracuse University Daily Orange, November 18, 2014: Professors use crowdfunding to help restore American chestnut trees

After 25 years of work, two SUNY-ESF professors have developed a way to restore the American chestnut tree back to its former glory and are receiving funding from the community to help the cause. The American chestnut tree was almost wiped out due to a blight but William Powell and Chuck Maynard of the State University of New York College of Environmental Science and Forestry have found a way to create blight-resistant trees. Their goal is to produce 10,000 trees while going through the regulatory process. Normal grant agencies won’t help with funding as it is not considered research though, which is why they turned to a crowd funding page that has received more than $35,000 in support so far …

Seattle, Washington, KIRO Radio, November 17, 2014: ‘Every container has a story’: Christmas trees bound for Hong Kong stuck at Port of Tacoma

When Chinese businessman Teddy Chan went looking for quality Christmas trees nearly a decade ago, he called John and Carol Tillman in Rochester, Washington. Every year since, the Tillmans have delivered around 2,000 high-quality Christmas trees to Chan. Each year, the trees are loaded into shipping containers and hauled by truck to the nearest port, where they’re stacked onto cargo ships and make a 23-day journey to Hong Kong in time for the holidays. But in 30 years, nothing compares to what the Tillmans are faced with this season. As of Monday, nine shipping containers filled with Christmas trees bound for Hong Kong are languishing at the Port of Tacoma. The Tillman family’s longtime customer, Teddy Chan, expected the 2,200 trees to be loaded on a ship almost two weeks ago to make it in time for Christmas. The Port of Tacoma is among several West Coast ports at a near standstill as the Pacific Maritime Association (PMA) and the International Longshore and Warehouse Union (ILWU) continue contract negotiations that have been going on since May. The sticking points are unclear …

Portland, Oregon, Oregonian, November 18, 2014: Winter-proof trees to withstand snow, ice and winds: Friends of Trees

Want to make your trees winter-proof? The two best actions to winterize trees involves mulch and pruning, says arborist Andrew Land, who works with Friends of Trees, a nonprofit organization that helps volunteers plant and care for city trees in green spaces and neighborhoods. Since 1989, the group has planted half a million trees in the Portland-Vancouver and Eugene-Springfield metro areas …

jacaranda141117Los Angeles, California, Observer, November 16, 2014: Water the grass less – but don’t forget the trees

Tearing out the turf and setting that fancy irrigation system to trickle could play a part in destroying our region’s fabulous canopy of trees. That high greenery keeps us cool, produces vast amounts of oxygen, shades our homes and our cars, dampens the crash-bang sounds of the city and fills the air with bird song, not to mention providing nesting spots for said birds …

Sacramento, California, KOVR-TV, November 16, 2014: Davis community lives in fear of old, potentially dangerous trees

Vivian Brecheisen says she’s complained for years and nothing has been done to remove the several trees near her Davis home she says could fall at any moment. “We are stuck living under this pit and pending doom,” Brecheisen said. Brecheisen claims large tree branches fall in her neighborhood and put people in danger. “Right above our mailboxes over here is the most dangerous tree,” Brecheisen said. “If it comes down it could take out my house.” Brecheisen lives at a mobile home park off Olive Drive where she says many of the trees are old and in bad condition.

Montgomery, Alabama, News, November 16, 2014: The kindest cut: the importance of pruning deciduous canopy trees

As the days grow shorter and cooler, winter weather predictions have become a popular topic of conversation. In these days of superstorms and polar vortices, it seems that such conversations are concerned less with “Hot enough for you?” and more with “How many hours did it take you to get home?” or “How long were you without power?” Putting aside for the moment the larger issue of global warming, we might well consider the effects of severe weather on canopy trees and the importance of proper maintenance in preparing them to withstand it. Poorly maintained trees pose a threat to people and property under the effects of high wind, snow and ice. Effective tree pruning targets development of a stable tree structure, removes weak and diseased limbs, and maintains an open and symmetrical canopy that accommodates an evenly distributed air flow …

Southgate, Michigan, News-Herald, November 16, 2014: Trees are one of the main reasons for increase in power outages

On a recent morning, two large trucks from Davey Tree Service pulled up in front of my house. A gentleman knocked on the door and explained they were a contractor for DTE Energy and needed to prune the large silver maple tree in our backyard to ensure proper clearance from the power lines. I was a bit apprehensive due to the fact that in the past DTE tree trimming crews had a reputation as a “hack and whack” approach to tree trimming. Things have certainly changed. The crew from Davey did an excellent job of pruning our tree. Watching the crew swing around the tree 30 feet above the ground got me thinking about trees and power lines …

ficus141114San Francisco, California, San Francisco First, November 13, 2014: Troublesome ficus trees fall on cars, power line, pedestrians

San Francisco’s aging batch of ficus trees claimed a few more victims this morning, as the trees — which are known hazards — toppled across the city. In a July report, San Francisco’s Department of Public Works admitted that the decision in the 1960s to plant ficus trees throughout the city was a crummy one, as the trees are known for “limb failure.” That was all too apparent this morning, when the modest amount of precipitation we had today took at least four of the trees down …

Washington, D.C., Greater Greater Washington, November 13, 2014: Street trees can’t ask for more soil themselves, but new DC standards will help them get it

Trees are a special quality of DC’s urban environment, but the city’s tree canopy has been shrinking in recent years. A new set of design standards ensures new construction on the roads and in public space includes enough soil so that trees can thrive …

Sacramento, California, Sacramento Bee, November 13, 2014: In drought-stricken areas, thirsty trees need attention this winter

Just because we’ve had a little rain, it doesn’t mean the drought is over. The damage done by drought builds up over time and its lingering effects will take many rainy months to begin to wash away. Particularly hit hard are trees. Sacramento’s famed urban forest continues to struggle with lack of moisture. But it may be hard to tell if a tree is suffering – especially if it usually drops its leaves this time of year …

West Lafayette, Indiana, Purdue University, November 13, 2014: Study: Fungus behind deadly disease in walnut trees mutates easily, complicating control

Researchers from Purdue and Colorado State universities have discovered that the fungus responsible for thousand cankers disease, a lethal affliction of walnut trees and related species, has a rich genetic diversity that may make the disease more difficult to control. Adjunct assistant professor of forestry Keith Woeste and fellow researchers analyzed the genes of 209 samples of Geosmithia morbida from 17 regions of the U.S. to determine the genetic diversity of the fungus, its possible origin and how it spread throughout the West and to parts of the East. The researchers identified 57 distinct haplotypes, or genetic races, among the samples, a curious finding for an organism that reproduces by cloning itself. The high diversity of Geosmithia morbida likely indicates that the fungus mutates readily, said Woeste, who is also a hardwood specialist with the U.S. Forest Service …

chestnuts141113Ars Technica, November 12, 2014: GMO trees could rescue American chestnut from invasive fungus

The relationship between the US public and genetically modified organisms is a bit ambiguous. Efforts to label GMO foods were defeated in California, while some Hawaiian islands have banned the planting of GMO crops. But for most Americans, these issues remain pretty abstract. That may change thanks to work taking place in upstate New York. There, scientists are planning the return of an American icon in a genetically modified form. And if all goes according to plan, ten thousand GMO chestnut trees could be ready to plant in as little as five years. People could find them in parks and playgrounds and even in their neighbors’ yards …

Miami, Florida, Herald, November 12, 2014: Doral Council to pay at least $50,000 to find a legal loophole against Trump’s trees

The Doral City Council unanimously decided Wednesday night to invest at least $50,000 in legal advice in hopes of finding legal grounds to defend its residents against Donald Trump’s walls of trees. Since early last year, more than 2,500 homeowners have made noise about the millionaire’s beautification project of the Silver Course in Doral Park. Former views of green, curvy hills or glassy waters are now blocked by trees that grow dozens of feet high. More than 100 residents showed up at Wednesday’s council meeting to voice their frustration. But the city attorney told council members that after dissecting the city’s code, there’s very little wiggle room for the city to act. “We’ve diligently been troubleshooting the issue,” City Attorney Dan Espino said. “But we’ve run out of code. There is no silver bullet that can simply cause the resort to remove their plantings …”

New Bedford, Massachusetts, South Coast Today, November 12, 2014: Dozen trees on chopping block in Fairhaven

With its venerable old trees and historic buildings, Francis Street holds a special charm for residents. But Adam Colucci says that charm would be lost if the town follows through on its plans to cut down a dozen trees on Francis, along with Massasoit, Elm and Linden avenues. “The neighborhoods of Fairhaven are dependent on the historical seaport charm of old trees and old buildings. If a Historical Society can protect an old house, they should certainly be able to protect an old tree,” Colucci wrote in a letter to The Standard-Times. “An old growth tree cannot be replaced. The charm of Francis Street will literally be lost forever if we allow the town to cut down these trees …”

Albany, New York, Times-Union, November 12, 2014: Hemlock trees under assault, Schumer says

The state’s timber industry welcomed calls Wednesday by U.S. Sen. Chuck Schumer that the federal government do more to help New York fight an invasive insect threatening to devastate its abundant and venerable hemlock trees. The hemlock woolly adelgid — an insect about the size of a period in this newspaper — has spread north into 28 counties so far since appearing during the 1980s in the Hudson Valley. It has since moved into the Catskills, the Capital Region, the Finger Lakes and, most recently, the Zoar Valley conservation area in Erie and Cattaraugus counties …

sopris141112Aspen, Colorado, Aspen Daily News, November 11, 2014: Aspen area neighbors sue each other over felled trees

A war of words is raging between attorneys who are representing two midvalley neighbors — who also happen to be high-profile lawyers — in a legal dispute over the felling of 30 to 50 aspen trees so the defendant could have a better view of Mount Sopris. At dispute in recent court filings is whether the defendant, Walter Stuart, a part-time valley resident who also lives in New York City, can remove PVC poles put up by the plaintiff, Gerald Hosier, on Hosier’s undeveloped property on Sopris Mountain Ranch. The poles represent the trees that Stuart had cut down near the two men’s property line …

Queens, New York, Times Ledger, November 11, 2014, Neighbors call on city to ask them if they want trees or not

To plant or not to plant? That’s the choice northeast Queens residents want to make when it comes to the city planting trees in front of their properties. Neighbors are opposed to the Bloomberg administration’s Million Trees Program. So far, according to the program’s web page, the city has planted 914,165 tress throughout the five boroughs. “Homeowners should not be forced to accept a tree in front of their homes,” said Jerry Wind, president of the Bellerose Hillside Civic Association. “The Parks Department cannot adequately take care of the existing trees …”

Reykjavik, Iceland, Grapevine, November 11, 2014: The trees are coming down on Laugavegur

Many merchants on Reykjavík’s main shopping street are distressed over a recent decision to cut down many of the trees on Laugavegur. MBL reports that trees along Laugavegur are being cut down, and this has caused no small amount of concern amongst some of the street’s storeowners. “We are unhappy that trees are being cut down right above our heads, but especially during opening hours,” said Frank Michelsen, owner of the Michelsen watch store …

Los Angeles, California, Times, November 11, 2014: City Hall debates who should trim L.A.’s trees

Nearly a decade ago, Los Angeles embarked on an ambitious campaign to plant more trees across the city. Now city officials find themselves struggling to maintain the urban forest along its parkways and medians. To save money during the recession, the city began to jettison dozens of employees who trimmed trees. The city retained a small group of trimmers for emergencies. And as the economy improved, it began hiring outside companies for routine jobs — a practice meant to be more efficient …

Monroe, Louisiana, News Star, November 11, 2014: Riverside Drive trees tagged for possible removal

Riverside Drive’s majestic magnolias in Monroe have been flagged for inspection and possible removal because of damage from last month’s tornado. John Stringer, executive director of the Tensas Basin Levee District, said trees flagged by the district will be inspected and those deemed unsalvageable will have to be removed for safety reasons. Once Monroe Public Works is finished with debris removal, the city will determine what needs to be done with damaged trees, Stringer said. That could be a month away …

olives141111Istanbul, Turkey, Al-monitor, November 10, 2014: Destruction of olive trees in Turkey triggers protests

In the early hours of Nov. 7, 6,000 olive trees that were 85 to 100 years old were cut down in Yirca village, which is attached to the western town of Soma in Manisa province. The Kolin Group — one of Turkey’s biggest conglomerates and known to have a close relationship with the government — decided to build a power plant in the olive grove. “If they would have shifted their location by just one kilometer [0.6 mile], we would have kept our trees in place,” Akin said. “The Council of State decided 10 hours later that the company should stop all activities at our grove, but it was already too late. The trees are gone, and we are now waiting for the final decision of the court before making up our minds as to what we can or cannot do next.” Once the trees were gone, the villagers were numbed.

San Diego, California, XETV, November 11, 2014: Torrey Pines trees are dying from lack of rainfall

As San Diego experiences its 12th month of warmer than average temperatures, our famous trees known as Torrey Pines, are suffering, dying off by the hundreds. San Diego 6′s Neda Iranpour shows us the drought’s effects on an internationally recognized hiking spot. These cliffs bring a mix of colors: the awe-inspiring blue of the ocean seen from winding brown trails, as the sun sparkles through these not so green trees. Bill Eckles, President of the Docents Society of Torrey Pines Natural Reserve, “We’re having a bit of trouble with the lack of water.” Eckles says they’re losing hundreds of Torrey Pines at Torrey Pines State Reserve …

Ft. Collins, Colorado, Coloradoan, November 10, 2014: Trees come down for Lincoln Ave. widening

Preparations have begun for building street improvements tied to the Woodward, Inc., campus under construction near the intersection of Lincoln and Lemay avenues. Until windy weather shut them down, crews on Monday started taking down trees along the south side of Lincoln Avenue to make way for widening of the road. The city plans to take down 54 trees. The trees are hazardous, of poor quality or are non-native species, officials said …, November 11, 2014: They are planting more trees in Newark in areas where they are needed

With the holiday season soon approaching, Mt. Prospect Avenue in Newark, New Jersey is a great place to shop, especially for those who like to purchase merchandise in small businesses. Even in business sector like Mt. Prospect Avenue, where business owners are friendly with their customers, not only during the holidays but the entire year, there was still something missing. What was lacking in this urban area was a gift that only nature can give us, trees. After the roads were renovated on Mt. Prospect Avenue, new trees were finally planted …

Portland, Oregon, Oregonian, November 10, 2014: Winter is arriving fast: Prepare your trees, yard and house

Weather reports are scary enough to send a chill down your spine: A large, cold area of Arctic air from Canada is causing temperatures to plummet across the central U.S. all the way into the Southeast. Faster than you might have expected, it’s time to prepare your home, yard and trees for winter. Tree care is on many people’s minds and they have cause for concern. Leaves still clinging to branches can become landing spots for heavy ice and snow, and this additional weight may cause branches to snap …

pulp141110Jacksonville, Florida, The Florida Times-Union, November 9, 2014: To cut carbon from their power plants, Europeans cutting trees in the South, sparking environmental dispute

Southern forests are drawing uncounted millions of dollars in foreign spending to help utilities overseas meet carbon-emission rules that this country is still debating as tools to limit climate change. What those rules will mean for the environment is in dispute, and will doubtless be contested again based on findings the Intergovernmental Panel on Climate Change released this month …

Springfield, Massachusetts, WWLP-TV, November 9, 2011: Slower leaf-drop may cause problems for you later

Normally by this late into fall there aren’t many leaves on the trees, but as you may have seen there are still some trees with bright colored leaves still on the branches. The weather is the reason why the leaves are falling about three weeks later than normal. Nighttime temperatures in October were warmer than normal and we haven’t had many really cold nights so far. Cold temperatures are the main trigger for leaf change and drop. While some trees don’t have any leaves on them, others have plenty, and it’s all to do with the variety of the tree or how much that tree has been exposed to the wind …

Columbus, Ohio, The Ohio State University Alumni Magazine, November 2014: Donors In-Kind

Trees contribute mightily to campus environment A resident of the Oval and longtime Ohio State supporter has pledged nearly $12,000 to the university: Platanus occidentalis, a sycamore tree just south of Hopkins Hall, will provide in-kind donations of sewer management, air-pollution removal, HVAC services and other benefits to be delivered over 25 years. In all, about 14,000 donors with roots in the Columbus campus — many of them actual buckeyes — have made similar pledges totaling more than $25 million over the next quarter century. Everyone knows trees are beautiful — try to imagine Mirror Lake Hollow or the Oval without their leafy canopies — but who knew they actually save money?

Portland, Oregon, Portland Business Journal, November 6, 2014: The best trees in the nation aren’t always where you think

Which state has the most impressive trees in the nation? Well, Florida, but Oregon is fast gaining traction in a national inventory of the nation’s biggest trees …

Harrisonburg, Virginia, News Leader, November 8, 2014: Composting leaves from black walnut trees? Think twice

I almost made a mistake when placing grass and leaf clippings onto the garden. One side of our yard has a big black walnut tree. I mowed the area collecting finely chopped leaves and then proceeded to the garden to dump this load on bare ground. Suddenly it occurred to me that I was transporting juglone to my garden. Juglone is a chemical which occurs naturally in all parts of the black walnut (wood, bark, nuts, leaves. etc.). Research indicates juglone is a respiration inhibitor which deprives sensitive plants of needed energy for metabolic activity. Plants threatened by juglone include tomatoes, peppers, cabbage and potatoes. There are, however, a few plants that benefit from juglone exposure: lawn grasses, corn, and onions …

dangertree141106Philadelphia, Pennsylvania, Inquirer, November 7, 2014, Take a good, hard look at your trees

Tree guys all over the Philadelphia region still talk about Feb. 5, 2014. That day, a brutal ice storm toppled even the hardest of the hardwood trees. Oaks, hickories, and beeches, along with the Eastern white pines and other easy marks, keeled over, ripped through utility wires, and crashed onto cars, roads, and houses. Nine months later, as another winter approaches, Chris Miller, a certified arborist and district manager of Davey Tree in King of Prussia, continues to plow through a backlog of work from the ice storm and other winter damage, especially in Chester and Montgomery Counties. “I hated last winter,” he says. “I haven’t had a vacation this year because of it.” Miller and others in the tree business have some precautionary advice for homeowners. It’s no guarantee you’ll escape the ravages of heavy winds, snow, and ice, but it might mitigate the damage …, November 6, 2014: Blight-resistant American chestnut trees take root at SUNY-ESF

Scientists at the SUNY College of Environmental Science and Forestry (ESF) are growing the first American chestnut trees that can withstand the blight that virtually eliminated the once-dominant tree from the eastern United States. Members of the ESF research team recently published three peer-reviewed papers that, along with continuing research, support their conviction that their biotechnology work with a gene originating in wheat makes the American chestnut tree at least as blight resistant as the Chinese chestnut tree that can co-exist with blight with minimal ill effects. “Our goal was to develop an American chestnut tree that has blight resistance equal to that of a Chinese chestnut and we are there. We’ve done it,” said Dr. William Powell, an ESF professor who leads the research project along with Dr. Chuck Maynard. “The leaf assays show it, the small-stem assays show it,” Powell said, referring to the analytical processes the researchers go through to determine the level of blight resistance. “These American chestnut trees are blight resistant …”

Eureka, California, Lost Coast Outpost, November 6, 2014: CHP investigating whether trees were cut illegally for electronic casino billboard

The California Highway Patrol has launched an investigation into the recent removal of trees and brush near Bear River Casino’s new electronic billboard on Hwy. 101. State officials say the vegetation was removed to improve visibility of the sign, despite the fact that a permit for the work had been denied. Late last month, according to emails obtained by the Outpost through a California Public Records Act request, local officials with the California Department of Transportation (Caltrans) asked the CHP to launch a formal investigation after discovering that trees and bushes had been removed near the base of the electronic sign, which lies within the agency’s right of way …

Westchester, New York, Journal News, November 6, 2014: Dreaded emerald ash borer found in Westchester trees

The dreaded emerald ash borer has been detected in Westchester for the first time, the state Department of Environmental Conservation announced earlier this week. The invasive species of beetles, originally from Asia, was discovered in purple DEC traps just north of Peekskill. It has also been found recently southeast of Binghamton, in Broome County, just outside the current state and federal quarantine zone. That zone encompasses all or part of 42 counties in central and western New York, including Putnam and Orange. Rockland is not yet on the quarantine maps, but the northeastern corner of the county is considered at risk …

St. George, Utah, Spectrum and Daily News, November 6, 2014: BLM to sell non-commercial permits to cut Christmas trees

The Bureau of Land Management Utah will sell non-commercial permits to cut pinyon pine and juniper Christmas trees beginning in early November at several offices throughout southern Utah …

walnuttwigbeetle141105York, Pennsylvania, WPMT-TV, November 5, 2014: Beetles killing walnut trees leads to quarantine

The Walnut Twig Beetle is attacking walnut trees throughout the Commonwealth. Most recently it was discovered burrowing in the bark of trees in Drumore Township, Lancaster County. “As the walnut twig beetle pierces into the tree, it deposits a fungus and creates a canker,” said Dana Rhodes, with the Pennsylvania Department of Agriculture. That canker multiplies, causing the disease known as thousand cankers. Eventually all of the tree’s nutrients are sapped, causing it to die …

Bend, Oregon, Bulletin, November 6, 2014: Grower gives Christmas trees hot bath

An Oregon grower is giving its Christmas trees a hot bath before shipping to make sure buyers don’t get slugs and yellow jackets as unexpected presents. The Kirk Co. of Oregon City sends harvested trees on conveyor belts through an enclosed washer to kill or knock off pests, the agricultural publication Capital Press reported Tuesday. “What you’re trying to do with that is control hitchhikers,” said Bob Bishop, a trade specialist with the federal Animal and Plant Health Inspection Service. The trees also get moisturized and stay fresh and green longer, he said. It’s the second year the company has tried the experiment that’s drawing attention from foreign agricultural officials and other Oregon growers who are less likely than Kirk to have the water or electrical capacity to bathe trees. “Growers in general hope it doesn’t come to this,” said Chal Landgren, a Christmas tree specialist with Oregon State University Extension Service …

Lafayette, Louisiana, The Advertiser, November 5, 2014: Snack down: UL trees have yet to bear fruit

Olivia Wineski, a sophomore pre-veterinarian major at the University of Louisiana at Lafayette, had no clue that fruit trees grew on the campus as a way to offer healthful, free snacks to students between classes. “I think that’s pretty cool,” Wineski said. “It’s a healthy option, and the fact that it’s free definitely is a perk.” The only problem is that the fruit trees planted on the campus about three years ago bear little to no fruit yet because they are too small. Others haven’t survived …

Houston, Texas, Chronicle, November 5, 2014: Editorial – Respect the trees

Dr. Seuss’ Lorax spoke for the trees, because the trees had no tongues. Trees also lack a collection agency, and that is where City Hall comes in. As first reported on, workers in the dead of night felled six mature oaks last week at a Wendy’s along Kirby Drive. Houston might as well echo with the call of “timber” as the march of construction dooms plenty of impressive trees on private property. Hundreds of years of arboreal history fall victim to the rise of stucco siding, and there is little anyone can do about it. But these trees on Kirby belonged to the public. Planted by Trees for Houston volunteers in a city right-of-way more than a decade ago, Wendy’s new owner had no right to tear them down without permission. Money may not grow on trees, but their value should be apparent to everyone. Trees improve property rates, bring life to neighborhoods and add a healthy sense of green to the gray of our city’s sprawling concrete. The man responsible for this defoliation, Ali Dhanani of Austin-based Haza Foods LLC, should have to write a hefty check to help replace what he stole from the city. Irresponsible businesses want to treat Houston like their own personal playground – for better or worse – and City Hall must make an example of the perpetrators …

New York City, Science Recorder, November 5, 2014: Invasive beetles are literally sucking the life out of New York City trees

New York state’s ash trees are all at risk of being infested by a small green beetle, the invasive emerald ash borer (EAB), according to the state’s Department of Environmental Conservation. The species, native to Asia and Russia, first came to the US in 2002, where it first showed up in Michigan. It is now currently resident in 24 New York counties, with its presence in Westchester and Broome counties confirmed on November 3, 5 years after it first arrived in NY. Luckily, the outbreaks are currently small, with just 2% of New York’s forests home to the creatures. To combat the species’ spread, the DEC says the state is pursuing a Slow Ash Mortality Program (SLAM). In a statement, the Commissioner of the DEC, Joe Martens, said that the program involves limiting the spread of the beetle, as well as researching methods to get rid of the pest for good …

vote141105Baltimore, Maryland, Sun, November 4, 2014: Plant trees for a better democracy

As the dust settles on the 2014 mid-term election and the parties analyze why more Americans didn’t come out to vote, it’s time to recognize that political involvement does not come with an on/off switch. There are lessons to be learned from the example of thousands of citizens in Baltimore and around the country who participate in community-sponsored initiatives to plant trees. Yes, trees. Citizens join these efforts to make their communities greener and more resilient to floods, but it turns out digging in the dirt can be a viable way of getting people involved in the practice of democracy. Literally putting roots in the ground gets people more involved in other aspects of community life …

Philadelphia, Pennsylvania, Inquirer, November 4, 2014: Borers branch out from ash trees

Bad news in the bug department: The emerald ash borer, a tiny, glitter-green insect from China expected to kill virtually all ash trees in the East – unless they are treated with expensive chemicals – may have a new target. The U.S. Department of Agriculture confirmed recently that the borer had attacked the white fringe tree, which is in the same family as not only the ash, but forsythia and lilac. Experts don’t know quite what to make of the find yet, other than that it is worrisome.

Science Daily, November 4, 2014: Felling pine trees to study their wind resistance

Technicians of the Basque Institute for Agricultural Research and Development NEIKER-Tecnalia in Bizkaia, Spain, have in recent days been felling trees to simulate the effect of the wind in mountains in the Bizkaia locality of Artzentales. Forestry experts of the French Institute for Agricultural Research INRA together with technicians from NEIKER-Tecnalia and the Chartered Provincial Council of Bizkaia felled radiata pine specimens of different ages in order to find out their resistance to gales and observe the force the wind needs to exert to blow down these trees in the particular conditions of the Basque Country. This experience is of great interest for the managers of forests and will help them to manage their woodlands better and incorporate the wind variable into decisions like the distribution of plantations, or the most propitious moment for felling the trees …

Biloxi, Mississippi, Sun Herald, November 3, 2014: Biloxi trees leave city at odds over development

The Biloxi council called a special meeting for Nov. 3 at 4 City Hall to consider strengthening the city’s tree ordinance. Prompting the meeting is an application to cut down 37 protected trees for a new hotel on Beach Boulevard. More than 100 trees have been lost for development in the last year, and some residents say that’s already too many. They are calling for the return of a citizen tree committee in hopes of saving more trees. The city hasn’t had a tree committee since 1999, said Eric Nolan, city arborist. The volunteer committee often didn’t meet, he said, because not enough members could attend to achieve a quorum …

Trenton, New Jersey, Times, November 4, 2014: Opinion – Street trees are far from a shady investment

Autumn is upon us. This time of year, we experience fall’s arrival and we take comfort in the crisp evenings and enjoy the splendor of autumn color. Walking or driving through town is a delight for the senses. This benefit of trees — this experience — provides warm feelings and emotions and creates priceless memories. We all have fond memories of traveling along a boulevard lined with grand street trees that form a welcoming natural archway of tree canopy above us.  As the leaves show their glorious, changing colors, let’s pause to ask ourselves: Are we investing enough time and money in our street trees? Street trees —trees planted between the sidewalk and the road — are perhaps the most valuable city trees, and it is vitally important that local communities manage them well. Street trees are a valuable community asset. The most visible swath of any community forest is its street trees …

dodder141104San Francisco, California, KPIX-TV, November 3, 2014: Killer alien weed invades Bay Area; Sucking life out of trees, other plants

An invasive, parasitic plant which grows lengthy vines and overwhelms native plants to the point of sucking the life out of them is invading the Bay Area, according to county officials. The Japanese Dodder (Cuscuta japonica), which is not from Japan but rather Southeast Asia is classified as a noxious weed by agriculture officials and has been particularly damaging to oak trees in Alameda County. “Once someone has it, for the most part it stays put, and we got to get it under control before it moves to other places,” Alameda County Deputy Agricultural Commissioner Edmund Duarte said. About a dozen oak trees in Oakland have been invaded by the dodder, and Alameda County’s Department of Agriculture has been keeping an eye on them …

York, Pennsylvania, WPMT-TV, November 3, 2014: Disease detected in Lancaster County trees; Quarantine enacted

Following the detection of Thousand Cankers Disease in Lancaster County, the Pennsylvania Department of Agriculture today enacted a quarantine, effective immediately, restricting the movement of wood and wood products. Lancaster joins Chester, Delaware, Montgomery and Philadelphia counties, which were quarantined in August 2014, and Bucks County, which was quarantined in 2011 …

Ames, Iowa, University if Iowa, November 3, 2014: Bugs don’t always follow the trees to the big city

Adding green spaces to city environments—built by and for humans—isn’t necessarily enough to create biodiversity, a new study suggests. For a new study, researchers surveyed two types of trees in an urban area in Iowa, and recorded the abundance of two insects that interact with them. They found that while there were plenty of the trees—black cherry and black walnut—they didn’t find a corresponding abundance of the insects. In this case, they were looking for the fruit flies that feed on the walnuts and black cherries and a type of wasp that feeds on the flies. “In cities, you might have more trees, but you don’t necessarily have more insects associated with them,” says Andrew Forbes, associate professor of biology at the University of Iowa and an author of the paper in Plos One …

Springfield, Virginia, Sun, November 3, 2014: The kindest cut: the importance of pruning deciduous canopy trees

As the days grow shorter and cooler, winter weather predictions have become a popular topic of conversation. In these days of superstorms and polar vortices, it seems that such conversations are concerned less with “Hot enough for you?” and more with “How many hours did it take you to get home?” or “How long were you without power?” Putting aside for the moment the larger issue of global warming, we might well consider the effects of severe weather on canopy trees and the importance of proper maintenance in preparing them to withstand it. Poorly maintained trees pose a threat to people and property under the effects of high wind, snow and ice. Effective tree pruning targets development of a stable tree structure, removes weak and diseased limbs and branches and maintains an open and symmetrical canopy that accommodates an evenly distributed air flow …

Great Falls, Montana, Tribune, November 3, 2014: Dangerous dead trees targeted for removal

Bill Avey, supervisor of Lewis and Clark National Forest, has signed a decision to remove dead trees lining 203 miles of road in three counties within the Little Belt Mountains, primarily the southwest portion. The trees were killed by mountain pine beetle. They’re considered hazardous because they could fall down, said Dave Cunningham, a spokesman for the forest. “The whole purpose of this is to remove trees that pose a very real threat to public safety on open roads,” Cunningham said …

wettrees141103Redding, California, The Record Searchlight, November 2, 2014: With winter approaching, trees still need water

As California’s drought has dragged on during the past three years, trees all over the state have been under stress, surviving on less water than they are used to. Even with the rainy season approaching, trees aren’t out of the woods, horticulturalists and landscape experts say. Not only have trees been suffering from a lack of rain, but cities and water agencies have imposed watering restrictions that have left landscapes intentionally parched, said Julie Saare-Edmonds, landscape program manager for the state Department of Water Resources …

Lansing, Michigan, State Journal, November 1, 2014: Christmas time in the city: State tree in place

Crews installed Michigan’s official Christmas tree Saturday at the Capitol, marking the start of the holiday season in the Great Lakes State. The 63-foot blue spruce tree, harvested Thursday in Kingsford in the Upper Peninsula, arrived via a large slot-bed trailer Friday just as first snow flakes of blew through the Lansing area in a blustery preview of winter …

Yarnbombing141011Cedar Rapids, Iowa, The Gazette, November 2, 2014: Trees in downtown Iowa City get cozy with annual sweater project

It’s this time of year when the temperature drops and people throw on sweaters to stay warm. And for downtown Iowa City, that includes the area’s many trees. Participants in the annual Tree Hugger Project sewed the last stitches onto their tree sweaters, which are on display throughout the downtown and Northside Marketplace. This year, 125 trees are dressed with their own sweater design …

Riverhead, Long Island, New York, Riverhead News Review, October 31, 2014, Town to developer: Keep those trees alive or we will

The developer of the Shops at Riverhead retail center on Route 58 will be required to post a $100,000 bond to ensure dead trees surrounding the property are replaced, Councilwoman Jodi Giglio confirmed this week. The developer, Brixmor Property Group, is expected to plant new trees and the town will inspect them next year, she said, adding the town will use the bond to redo the work if the trees don’t survive. The Planning Board had required the developer to plant trees along the east and northern border of the shopping center, but many trees along the northern boundary have since died …

Kelowma, British Columbia, November 1, 2014: Trees die near development

Some Kelowna residents are concerned by what appears to be poisoned trees near a housing development in the Mission area.  About 10 trees, which happen to be below a new house in the Woodland Hills Estates development on Westpoint Drive, have had a large hole bored into them and have since begun to die. Alex Harvie said he and his girlfriend frequently walk their dogs through the wooded area below the new development and noticed the holes a while ago. He thinks someone has poisoned the trees. “We couldn’t help but notice ‘Wow, look at those trees suddenly dying,” he said. “They didn’t even bother to try and hide the fact that they drilled holes, they left the shavings there.” Harvie said the Woodland Hills Estates development has been quiet for the past five years or so, but lately work has picked back up. The trees in question are all below one of the homes that is nearing completion …


Case of the Day – Friday, November 21, 2014


truck141121The Andersons, livin’ large in the mountains of … Minnesota? Well, this clan had a nice family place in the backwoods, right up until the time when the land next to theirs got sold to the State.

The State built a wildlife preserve for the flatland touristers, goll-dang-it. Then, the State put up signs to stop visitors — including the neighboring Andersons — from racing their ATVs, cars and pickups up and down the wildlife trails. A year later, the State fenced off the boundaries, right across one of the trials.

The Andersons hired one of them fancy-pants city slickers with an armful of lawbooks. He told them they had a prescriptive easement, that is, a right to run their pickups and cars up and down the WMA trails, because they had done it for so long. The State argued that the recreational use statutes — not to mention Minnesota’s policy of encouraging private recreational use of land (but probably not pickup trucks being driven up and down trails) — meant that no one could acquire a prescriptive easement on recreational lands.

The Court had to balance competing interests, and although one would expect that the judiciary would bend over backwards in favor of a state-run recreational area, it played the case right down the middle. The Andersons won their prescriptive easements, but the court held the easements were not transferable, and it would expire on the deaths of the Andersons named in the suit.

solomonic141121Fairly Solomonic.

Anderson v. State, Not Reported in N.W.2d, 2007 WL 2472359 (Minn.App. Sept. 4, 2007). Since the 1930s, the Andersons had owned a piece of land next to property now owned by State of Minnesota. The state bought its parcel from a private owner in 1989, and created the Halma Swamp Wildlife Management Area. The WMA is managed by the Department of Natural Resources.

The DNR put up signs prohibiting motorized vehicles on the property, and fenced across a trail where it enters the WMA. Because the Andersons had used the trails on what was now state land for more than 60 years, often driving cars, pick-up trucks, and all-terrain vehicles on them, they sued the state, claiming a prescriptive easement. The trial court found the Andersons had a prescriptive easement by motor vehicle over five trail segments in a section of the WMA. The court held that the right is not assignable and will terminate with the lives of the named Andersons. The state appealed.

Held: The Andersons had a right to the prescriptive easement. The Court described an easement as an interest in land in the possession of another which entitles the easement owner to a limited use or use of the land in which the interest exists. Whether a prescriptive easement exists is determined in a manner similar to title by adverse possession.

A prescriptive easement may be found if the person claiming the easement has acted in a manner “hostile and under a claim of right, actual, open, continuous, and exclusive.” Adverse possession may be maintained by “tacking,” when the current adverse possessor obtained the property through transfer or descent from a prior adverse possessor. The state argued that the trial court erred by granting an easement to the Andersons when Minnesota law encouraged landowners to permit public recreation on their land and purports to protect landowners from claims arising from such recreational use. The trial court was not unsympathetic to the argument, but because the recreational-use statute was passed in 1994, it applied only to causes of action arising on or after that time.

goodtimes141121The Court of Appeals agreed, noting that while Minnesota encouraged public use of lands and waters for beneficial recreational purposes since 1961, only in 1994 was the law changed to prohibit the creation of adverse easements on private recreational lands. The Andersons had used the property and trails beginning in the 1930s, and use continued uninterrupted until 2002, when the DNR installed signs, and 2003, when the DNR erected a fence across a trail. The evidence showed that the Anderson’ adverse use of the trails extended for 15 or more years before the state’s ownership of the land.

The state argued, however, that the trial court erred by concluding that the Andersons had established a prescriptive easement because, since recreational use is encouraged by Minnesota law, the element of hostility could not be shown. What’s more, the state contended, the district court erred by determining that respondents’ adverse use of the WMA was visible.

The Court held here was ample evidence that the Andersons developed and used the trails, and it has long been recognized in Minnesota that a person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement. There is no dispute that there were existing trails when the state bought the land in 1989. That fact was sufficient to sustain the trial court’s findings.

A dissenting judge said the Andersons’ use of the land was permitted by statute and state policy, neither inconsistent with the rights of the property owners and was not hostile. Because the Andersons’ use was not hostile, he argued, he reasoned, they have not obtained a prescriptive easement.



Case of the Day – Thursday, November 20, 2014



Snooze141120The whole issue of “conflict of laws” is about as dry as toast, at least until someone’s injury will go uncompensated because the wrongdoer is immune from liability.

In today’s case, Mr. Cain — a Mississippian — worked for a Mississippi tree-trimming company. The company signed on with a Louisiana public utility to trim trees along a right-of-way in Louisiana. Mr. Cain was hurt when his bucket truck came into contact with an electric line, and he collected on workers’ comp from the Mississippi company. But he sued the electric utility for his injuries, too.

We have no basis for saying that the utility was or was not negligent — for his injuries. What we do know is that the utility and Cain’s employer had entered into a agreement which made Cain a “statutory employee” of the utility while he was working on the job, although he really remained an employee of the tree-trimming service. So under Louisiana law, the utility was immune from Cain’s suit. But under Mississippi law, companies couldn’t use the “statutory employee” dodge to avoid liability. The trial court said that Louisiana law applied because the accident happened there. Pretty logical, huh? The U.S. Court of Appeals for the Fifth Circuit in New Orleans didn’t think so.

The Court said that while normally that would be the case, Louisiana state law provided an exception, to apply where the other state’s policies would be seriously harmed by applying Louisiana law. Mississippi had a strong policy in favor of protecting the subcontractor’s worker — and that policy carried the day. The lesson here for companies working across state lines — or hiring out-of-state companies to work in their home states — is to check carefully beforehand to be sure that protective measures like “statutory employees” really will work. What goes on in Vegas stays in Vegas … but what goes on at home sometimes doesn’t really travel well.

Does this make conflict of laws clear to you?  We thought so ...

Does this make conflict of laws clear to you? We thought so …

Cain v. Altec Industries, Inc., Slip Copy, 2007 WL 1814130 (5th Cir., Jun. 22, 2007). Francis Cain, a Mississippi resident, worked for Carson Line Service, Inc., a Mississippi corporation. Carson signed a contract with Washington – St. Tammany Electrical Co-operative (“WST”), a Louisiana corporation, under which Carson agreed to clear rights-of-way for WST’s power lines.

Working on this project, Cain was trimming trees along a power line in St. Tammany Parish, Louisiana, when his aerial truck boom came into contact with an energized WST power line. Cain was badly hurt.

Cain got workers’ compensation benefits under Mississippi’s workers’ compensation law through Carson’s insurance carrier, but that wasn’t enough. He and his wife decided to raise cain with WST, too, so they sued.

WST filed a third party claim against Carson for defense and indemnity. WST filed a motion for summary judgment claiming tort immunity based on the “statutory employer doctrine” in Louisiana’s workers’ compensation law. That law lets contractors agree that a subcontractor’s employees are “statutory employees,” which makes the contractor immune from liability to them. Cain argued that their case was an “exceptional case,” pursuant to La. Civil Code Article 3547. Mississippi law — under which no “statutory employee” exception existed for the companies to hide behind – should govern the claim, he argued. The trial court granted WST’s motion, concluding that Louisiana law applied.

The Cains appealed.

Held:    Mississippi law, not Louisiana law, governed. The Court of Appeals first determined that the laws of Louisiana and Mississippi conflicted. It then found that under Louisiana law, a written contract between a principal and contractor recognizing the principal as the statutory employer of the contractor’s employees was valid and enforceable, making WST immune from civil tort liability. Mississippi law, on the other hand, didn’t recognize and wouldn’t enforce contracts giving tort immunity to a principal sued by a contractor’s employees unless the principal has the legal obligation under the Mississippi Workers’ Compensation Act to secure compensation for that contractor’s employees.

Why all this legal hair-splitting?  An injured worker thought workers' comp was;'t enough ... and was looking for a deep pocket.

Why all this legal hair-splitting? An injured worker thought workers’ comp was;’t enough … and was looking for a deep pocket.

WST had no obligation under the Act. Thus, there was a substantive difference between Louisiana and Mississippi law, requiring a choice-of-laws determination. The Court said that the issue of whether WST was immune from tort liability was an issue of loss distribution and financial protection governed by La. Civ.Code article 3544. Under its mechanical rule, Louisiana law would apply because, at the time of the injury, Cain, who lived in Mississippi, and WST, a Louisiana corporation, were domiciled in different states, and both the injury and the conduct that caused it occurred in one of those states, that is, Louisiana. Thus, the Court said, WST would be entitled to the statutory employer tort immunity afforded it under Louisiana law.

However (and this was the big “however”), article 3547 also holds that where “from the totality of the circumstances of an exceptional case, it is clearly evident under the principles of Article 3542, that the policies of another state would be more seriously impaired if its law were not applied to the particular issue …” the law of the other state will apply. The Court ruled, after comparing the policies and interests of both Louisiana and Mississippi, it was clear the policies of Mississippi would be more seriously impaired if Louisiana law were applied to this dispute than would Louisiana’s if Mississippi law were applied.

Consequently, the Court said, it would apply Mississippi law to this dispute. Thus, WST was not immune from suit.




Case of the Day – Wednesday, November 19, 2014



Lesprit140422Ah, l’esprit d’escalier! Those biting, snappy comebacks we wish we had said at the time. Today’s case is about something akin to that, not rapier ripostes, but rather one of those rather important contract terms — how long the multi-year agreement would last — that both parties kind of wished they had discussed at the time they first made their deal.

And maybe one of them did. To be sure, each probably had what is today called an “exit strategy” in mind. But neither brought it up. And what’s worse, nothing was in writing on the parties’ joint venture to raise and harvest peaches. Samuel Goldwyn was right when he observed that “a verbal contract isn’t worth the paper it’s printed on.” What’s surprising is that their verbal deal lasted as long as it did. Invariably, however, problems ensued. When Miami Valley Fruit Farm wanted to terminate the deal after about 20 years, Southern Orchards protested that the length of the venture was for the useful life of the trees, meaning that the deal would go on until the trees were worn out. It sort of turns the old Stripes line on its head: you can’t go … until all the plants die.

The Court agreed, because that was the only interpretation that made sense to it. You see, without a contract in black and white, everything was pretty gray. Think of how much they saved on lawyers by not writing up a detailed contract. Probably less than 5% what they spent litigating the issue 20 years later …

verbalk140422Miami Valley Fruit Farm, Inc. v. Southern Orchard Supply Co., 214 Ga.App. 624, 448 S.E.2d 482 (Ga.App., 1994). Southern Orchard Supply Co. and Miami Valley Fruit Farm entered into an oral agreement whereby Miami Valley, which owned the 295 acres of land, purchased peach trees, and Southern Orchard planted, cultivated and harvested the trees. Under the agreement, which has been in effect about 20 years, the parties equally divided the net profits from the sale of each year’s peach crop.

After the 1993 peach crop was harvested and sold, Miami Valley told Southern Orchard that it was terminating the oral agreement and that Southern Orchard would not be allowed to cultivate and harvest the 1994 peach crop. Southern Orchard sued for an injunction, arguing that it had made substantial investments in the planting and cultivation of the peach trees and in equipment and packing facilities based on the mutual understanding of the parties that the agreement would continue for the “economic life” of the peach trees.

The evidence showed that after a peach tree orchard is planted, the trees have to be cultivated for years before they mature enough to bear fruit and begin to produce profitable, full crops. Once mature, the trees have an “economic life” for an indefinite period of years, during which they produce profitable crops each year until their fruit production declines to the point where they are no longer profitable and new trees must be planted. The “economic life” of the trees varies based on factors such as the variety of the peach and cultivation techniques. The trees at issue still had years of “economic life” remaining.

Southern Orchard argued the agreement had to last for the “economic life” of the trees in order to provide for recoupment of its expenses. Miami Valley argued there was no agreement between the parties for any specific duration of the contract, that the parties considered the agreement to run from year-to-year, and that in any event the “economic life” of a peach tree could not provide the agreement with a definite term since the duration of the life cannot be determined with any degree of certainty. Accordingly, Miami Valley argued it had the right to terminate the agreement.

The trial court held that there was an enforceable oral contract for Southern Orchard to cultivate and harvest the peach trees on the land at issue for the “economic life” of the trees, and because Southern Orchard had no adequate remedy at law for the breach of the agreement, the trial court could grant injunctive relief, ordering Miami Valley not to interfere with Southern Orchard’s performance of the agreement for the 1994 peach crop. Miami Valley appealed.

stitch140422Held: The injunction against Miami Valley is upheld. The Court of Appeals held that the question as to the length of time the contract remains in force is governed by the circumstances of each particular case. Here, the Court said, evidence showed that the parties intended the employment contract to continue for more than a single crop season. Considering the particular circumstances and expenses incurred to plant, cultivate and harvest the peach trees, the Court found, the parties agreed that the employment contract would continue for as long as the trees produced reasonably profitable crops, the “economic life” of the peach trees.

The old aphorism that a “stitch in time saves nine” is worth recalling here. A little consideration to all of the material terms of the agreement at the outset – maybe a few bucks spent on a lawyer whose forte is thinking about all the “what ifs” that the parties aren’t considering ­– would have saved a lot of time and expense two decades down the road.




Case of the Day – Tuesday, November 18, 2014



Swamppower1341118Georgia Power was building a new transmission line through some swampland. The utility mapped out an area in which, due to environmental considerations, trees had to be cut by hand instead of machine. The area was larger than the minimum required by law. While an employee of one of its contractors was cutting down trees, a branch fell from behind him and paralyzed him.

So what caused the injury, Mrs. Palsgraf? The fact the worker didn’t watch the trajectory of what he was cutting? Just bad luck? His employer’s lousy safety program? Another failure of the Obama Administration? Or the obstructionist GOP?  Or was it the fact – as Rayburn argued at trial – that Georgia Power insisted more trees be cut by hand than the law mandated? Maybe it was the fault of the consumers whose need for more electricity caused the building of the power line? Or perhaps mainstream religion, for rejecting an Amish lifestyle that would eschew electricity?

You get the idea … when someone is badly injured, it’s only natural to look around for someone to blame, someone with deep pockets. And if it’s not the first you’d think of, rest assured that it’s the first thing your lawyer would think of. In this case, however, the Court refused to stretch the limits of causation unreasonably. While not conceding that tree cutting was inherently dangerous, the Court nevertheless said in essence that Rayburn was a consenting adult, and he freely agreed to assume the risks. The lesson, kiddies — and we don’t care what the slick lawyer’s ad on the back of your phone book says — is that someone else doesn’t have to pay every time you get hurt.

Working in the swamp is inherently dangerous ...

Working in the swamp is inherently dangerous …

Rayburn v. Georgia Power Co., 284 Ga.App. 131, 643 S.E.2d 385 (Ct.App. Ga., 2007). Georgia Power set out to build a new transmission line. The coastal plain on which the power line was being built included wetlands and rivers. Because of Army Corps of Engineers concerns with destruction of wetlands, Georgia Power maintained a policy of clearing wetland buffers of trees by hand rather than with machines, which tended to tear up root mats and the ground. As well, the Georgia Erosion and Sedimentation Act required at least a 25-foot buffer to be cleared by hand on each side of a warm water stream, and at least a 50-foot buffer for trout streams, within which vegetation must be cleared by hand. In one case, a Georgia Power environmental supervisor specified a 50-foot buffer because the area was especially sensitive, but his assistant, an environmental analyst, marked in her notebook that they put 100-foot buffers on the stream. She set out flags showing the buffers. At some point, Georgia Power staff moved the wetland buffer to the edge of the right of way.

Caffrey Construction won a contract to clear timber, having taken into account that several areas in the project had to be hand-cleared. While working in a buffer zone, Rayburn was struck from behind by a limb from another tree. Rayburn sued Georgia Power, contending that the company’s negligence caused his injury. The trial court granted summary judgment for Georgia Power, holding that Rayburn’s injury was “the product of a normal risk faced by persons employed to cut down trees.” The court held that the decision to extend the buffer did not cause Rayburn’s injury, the cause of which was either his decision to cut down the tree in the circumstance presented, or else an unforeseen occurrence for which no one was responsible. The court also declined to find that tree-cutting is an “inherently dangerous” occupation or that Georgia Power directed the time and manner of Caffrey’s work. Rayburn appealed.

Held:   Georgia Power was not responsible for Rayburn’s injury. The Court noted that the employer of an independent contractor owes the contractor’s employees the duty of not imperiling their lives by the employer’s own affirmative acts of negligence. However, the employer is under no duty to take affirmative steps to guard or protect the contractor’s employees against the consequences of the contractor’s negligence or to provide for their safety. This is especially true where a plaintiff has assumed the risk.

An injured party has assumed the risk where he or she (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself or herself to those risks. Here, Rayburn argued that Georgia Power owed him a legal duty not to expose him to unreasonable risks of harm by requiring hand-clearing in an area that could have been more safely cleared by machine, and that it breached this duty. He submitted evidence that clearing timber by hand is more dangerous than clearing it by machine. While state regulations only required a 25-foot buffer to be hand-cleared on each side of a creek, Georgia Power marked a buffer line more than 100 feet from the stream.

In fact, power lines themselves can be inherently dangerous ... never mind the construction phase.

In fact, power lines themselves can be inherently dangerous … never mind the construction phase.

Rayburn complained that, despite the option of a safer means of tree cutting, Georgia Power “directed that the work be performed by inherently dangerous methods in extremely hazardous conditions contrary to accepted construction industry standards.” Therefore, he argued, Georgia Power’s decision to hand-clear this section of property regardless of the danger to Caffrey’s employees should make it liable for his injury. But the Court held that notwithstanding all of this, Georgia Power could not have appreciated the dangers better than Rayburn himself did. The Court held that exposing someone to harm generates liability only when the person exposed does not appreciate the harm or is helpless to avoid it, which was not the case here. While Rayburn’s experts concluded that the working conditions were “abhorrent,” the Court said, none of the witnesses said that the conditions were out of the ordinary for that part of the state. If the contractor’s employees can ascertain the hazard known to the entity hiring the contractor, the contractor need not warn the employees of the hazard. Rayburn argued that, even if he knew the general risk involved in felling trees with a chain saw, he did not assume the specific risk that the particular branch that hit him would do so.

Rayburn was hired to cut trees. He had experience cutting trees. He testified that he observed the conditions and would have spoken to his supervisor if he thought they were unsafe. He already knew that cutting trees with a chain saw was hazardous, and therefore Georgia Power had no duty to warn him that he could get hurt by doing the job which presented hazards that he fully understood. He had actual knowledge of the danger associated with the activity and appreciated the risk involved.

Rayburn also argued that OCGA §51-2-5 made Georgia Power was liable for Caffrey’s negligence because the work was “inherently dangerous,” and because it controlled and interfered with Caffrey’s method of performing the job. But the Court said the statute only makes an employer liable for the contractor’s negligence, and here, Rayburn has not established that Caffrey’s negligence led to his injury. Even if he had, Rayburn had not shown that Georgia Power retained the right to direct or control the time and manner of clearing the timber. Georgia Power’s on-site supervisor visited the property once or twice a week, but did not direct the Caffrey employees in how or when to do their jobs. The Court observed that merely taking steps to see that the contractor carries out his agreement by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable.




Case of the Day – Monday, November 17, 2014


fallentree141117When the Santiagos parked on a side street in Vineland, New Jersey, to attend the christening of their god-daughter, they had no idea that Mrs. Santiago was about to get christened with a 60-foot tall maple tree.

It seems that the tree’s roots had girdled  — which is what happens when the roots grow back around themselves and essentially strangle the tree. Girdling is a problem with city trees, the roots of which may grow in confined places. When it happens, trees have no subsurface support, and often fall in conditions that wouldn’t affect normal trees.

That’s what happened to the tree that struck Mrs. Santiago, and her lawyer and expert witness arborist did an excellent job of explaining the problem to the court. But the City won on summary judgment anyway. It seems that the city workers responsible for the trees all testified that they were nothing more than glorified leaf-rakers — one of them, when asked what he knew about trees, responded “[t]rees have leaves, that’s about it” — and none of them knew how to inspect a tree to determine whether it might have girdled roots.

The city workers involved were not the sharpest bulbs on the tree --- or something like that.

The city workers involved were not the sharpest bulbs on the tree — or something like that.

Now you’d think that the fact that city owned the urban tree and its tree people had no idea how to care for them ought to make this case a dunker for the injured Mrs. Santiago. But in New Jersey, the Tort Claims Act requires that a plaintiff show that the city’s failure to act was “palpably unreasonable.” The fact that city’s tree workers couldn’t find the business end of a chain saw turned out to be a fact that favored the city. The Court of Appeals agreed that the city’s decision not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality was not “palpably unreasonable.”

Compare this decision to holdings in other jurisdictions that an urban owner has a heightened duty to inspect his or her trees (see Conine v County of Snohomish, a Washington State decision). Seems if you’re a New Jersey city worker, the less you know, the better off you are. We don’t know much about girdling, but we know nonsense when we read it.

Santiago v. City of Vineland, Not Reported in A.2d, 2007 WL 2935035 (N.J.Super. A.D., Oct. 10, 2007). The Santiagos drove to 8th Street to attend the christening of their god-daughter. As they crossed the street, a 60-foot maple tree fell and struck Mrs. Santiago. She sued the City, claiming it was responsible for the care and maintenance of trees on its property, and was negligent, careless and reckless in permitting a dangerous condition to exist.

girdling141117Mrs. Santiago submitted a report prepared by Russell E. Carlson, a master arborist, saying that the tree broke at its base, a few inches below the surface of the ground, because it lacked a root system sufficient to support the tree. He found that girdling roots had effectively strangled the tree, resulting in decay of the base of the trunk and inadequate development of the root system. Girdling roots form when a root grows in a direction that crosses the trunk of the tree. Ordinarily, roots will grow away from the trunk of the tree but when a root meets an obstruction, it will change direction, and may grow around the edges of the planting pit.

Carlson said that eventually, circling roots will come in contact with the growing tree trunk. The cells of the bark of both trunk and root are compressed. Symptoms of this are a thinning of foliage and reduction of twig growth in the crown, followed by twig and branch dieback. The tree may eventually die above the area of contact. When this girdling condition persists for many years, the roots that normally extend away from the tree may atrophy and eventually decay. While healthy trees usually withstand winds over 70 mph, trees that have lost their structural support at the base can topple in much lower winds, and in some cases when there is no wind at all.

Even when the roots are underground, the expert said there are signs that girdling roots may be present. The trunk of the tree goes straight into the ground, without the normal flare from trunk to roots. Carlson stated that excavation of the soil at the base of the tree is “sometimes necessary” to determine the extent of the girdling. This process could take a few minutes, or several hours, depending on the size of the tree, soil conditions, and the extent and depth of the girdling roots.

Only one of three city employees whose depositions were taken knew anything about trees, and even he had no experience identifying diseased or dying trees. The general supervisor of streets and roads for the City said it would be a hardship both economically and logistically for the City’s Department of Public Works to inspect every tree within the City’s borders, or even within the City’s right of way and on City property, for the multitude of diseases that are capable of causing damage to any or all of the varieties of trees within the City’s borders.

The City moved for summary judgment, arguing that Santiago had not presented sufficient evidence to support a claim under the Tort Claims Act because she did not establish that the City had actual or constructive notice of a dangerous condition. The judge concluded that the City’s actions respecting the tree were not palpably unreasonable. Santiago appealed.

Held: The suit was properly dismissed. The Tort Claims Act provides that a public entity may be liable for an injury caused by a condition of its property if a plaintiff establishes (1) that the property was in dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) a public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The workers in question should have gone to shcool  ...

The workers in question should have gone to shcool …

A public entity is deemed to have “actual notice of a dangerous condition” when it had “actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” In addition, a public entity is deemed to have “constructive notice” of a dangerous condition if a plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Here, Mrs. Santiago had the burden of showing that the City’s action or failure to act was palpably unreasonable. Although the term “palpably unreasonable” is not defined in the TCA, it has been interpreted to mean “more than ordinary negligence, and imposes a steep burden on a plaintiff.” For a public entity to have acted or failed to act in a manner that is palpably unreasonable, it must be obvious that no prudent person would approve of its course of action or inaction. The trial judge correctly determined that the Santiago had not presented sufficient evidence to raise a genuine issue of material fact as to whether the City’s actions in this matter were palpably unreasonable. The City’s public works employees were not trained to identify girdling roots or whether a tree was in danger of imminent failure as a result of such condition. The judge also pointed out that the City had not retained an arborist to “go around and inspect trees for girdling roots and perhaps a myriad of other types of similar problems, which would make a tree unsafe.” Based on the evidence, the judge correctly found that a jury could not find that the City’s failure to have such an inspection program was “patently unacceptable under any given circumstance.”

The evidence showed it is obvious that a regular program to inspect the City’s trees for imminent failure due to girdling roots would require additional manpower and resources. In this case, the City elected not to devote its resources to a program for the regular inspection and maintenance of trees throughout the municipality. Such a determination, the Court said, was not palpably unreasonable.