Case of the Day – Thursday, July 24, 2014


judge140724Yesterday, we reported on the 2008 Gertz v. Estes decision, in which the Gertzes were told to remove their 8-foot tall “spite fence.” Why anyone thought that people who built nail-studded fences, peered at their neighbors with an array of surveillance cameras that the NSA would covet, or heckled the Estes family with a PA system, would be impressed with a court order is a good question. You can just hear them through the loudspeaker:Court order? I don’t need no stinkin’ court order.”

A “spite fence,” after all, isn’t something that one constructs accidentally, or even negligently. Why the Gertzes should be expected to pay attention to some old fool in a black robe …

Hadrian's Wall - Did the Picts think it was a "spite fence?"

Hadrian’s Wall – Did the Picts think it was a “spite fence?”

Ever since the first recorded “spite fence” – not including Hadrian’s Wallwas first used by San Francisco millionaire Charles Crocker to try to force a neighbor to sell his property for the construction of the Crocker Mansion – “spite fences” have required intent.

You have to intend to harass a neighbor with the fence. And if you set out to harass and oppress, it’s not terribly likely that you’re going to be brought up short by some man or woman in a fancy black robe.

Charlie Crocker's fence (highlighted in orange) - definitely a "spite fence."

Charlie Crocker’s fence (highlighted in orange) – definitely a “spite fence.”

The Gertzes ignored the 2008 court order until the Estes family dragged them back into court. That was when the Gertzes suddenly announced that they had lopped off the top two feet of the fence. Now it was only six feet tall, studded with nails and festooned with more surveillance devices than the 38th parallel. “Gee,” the Gertzes told the trial court, “now it’s under seven feet – guess it’s not a ‘spite fence’ anymore.”

The Court did what courts do – used procedural rulings to achieve substantive ends. The Court ruled that the Gertzes were trying an “end run” on the prior decision, when they should have raised the reduced height on appeal. Thus, the Gertz motion was thrown out. The Court made clear that the Gertzes’ real problem was that they hadn’t read the 2008 order carefully: it wasn’t the height of the fence alone, it was the intent and the ugliness that made it a “spite fence.” It was still a “spite fence,” albeit it a shorter one. The fence still had to go.

Gertz v. Estes, 922 N.E.2d 135 (Ind.App. 2010). The unsavory neighbor Gertzes had been told to take down the “spite fence” which separated their home from the Estes property. The fence was a doozy, too – while the Gertzes had gotten permission from the town to build a 7-foot tall fence, they had put up an 8-foot fence just a few inches from the property line, studded it with thousands of nails protruding on the Estes side, painted “no trespassing” and “do not climb” notices all over the fence, and equipped the structure with surveillance cameras. There was a PA system, too, which the Gertzes used to make disparaging comments to and about the Estes family on various occasion.

The Berlin Wall - President Reagan could have said, "Mr. Gorbachev - tear down this 'spite fence'!"

The Berlin Wall – President Reagan could have said, “Mr. Gorbachev – tear down this ‘spite fence’!”

After a bench trial, the trial court found that the “fence was maliciously erected and now maintained for the purpose of annoying the Estes family” based upon the “course of conduct exhibited by Gertze [sic] toward Estes.” Holding that the fence was thus a nuisance, the court ordered the Gertzes to remove it. For good measure, the judge found that the “surveillance of the Estes property and the use of a loudspeaker to harass and annoy Estes constitute[d] an invasion of privacy” and said that all had to go, too.

The Gertzes appealed the trial court’s order, arguing that: (1) the trial court erred by applying the “spite fence” statute to them because they had obtained a local permit for the fence; and (2) the trial court erred by finding that the fence was unnecessary and that the public address system was used to make disparaging comments about the Estes family. The trial court was upheld in Gertz v. Estes, 879 N.E.2d 617 (Ind.Ct.App.2008), and the Indiana Supreme Court denied further review.

On September 12, 2008, the Esteses filed a petition for rule to show cause. The Esteses alleged that the Gertzes had failed to remove the fence, cameras, or public address system and had continued to harass and threaten them. The Gertzes answered by asking the trial court to let them remove the top one foot of the fence rather than the entire fence. The Gertzes said they had already removed the top two feet of the fence, so it was no longer a “spite fence.”

The trial court found that cutting a foot off of the top of the fence didn’t comply with the prior order, because the fence’s height was only one of the factors making it a spite fence. The trial court concluded that the “fence is, and remains, a nuisance.” The Gertses appealed.

Held: The Gertzes’ reduction of the fence’s height didn’t matter: the fence had to go. The Court noted that Indiana Code Section 32-26-10-1, which governs ”spite fences,” provides: “A structure in the nature of a fence unnecessarily exceeding six (6) feet in height, maliciously: (1) erected; or (2) maintained; for the purpose of annoying the owners or occupants of adjoining property, is considered a nuisance.”

Now this is a spite fence.

Now this is a spite fence.

The Court held that the Gertzes were just asking for a mulligan. Their petition was really just a motion for relief from the 2008 judgment under Indiana Trial Rule 60(B), and that rule won’t serve as a substitute for a direct appeal. The Gertzes filed a direct appeal of the trial court’s order requiring them to remove the fence. Although the trial court’s remedy of removal of the fence was an issue available to them, they did not raise any argument on appeal about keeping the fence if they only reduced the height.

What’s more, the trial judge’s order that they remove the fence was not based solely upon the height, but instead on a variety of factors. The appellate court held that the Gertzes showed nothing justifying the extraordinary remedy of modification of the trial court’s judgment.

Meanwhile, the Estes – who had had enough of the expensive litigation – argued that they were entitled to appellate attorney fees because the Gertzes’ appeal was meritless. The court was hesitant to award such fees where the appeal was not “utterly devoid of all plausibility.” The Court said that although “the Gertzes’ brief fails to fully comply with the Appellate Rules and that their argument on appeal fails, we cannot say that their arguments were ‘utterly devoid of all plausibility’.” It refused to order the Gertzes to pay the Esteses’ fees, but cautioned “the Gertzes that future court filings against the Estes family could be considered harassment and result in various sanctions, including but not limited to an award of attorney fees.” The Court “encourage[d] the Gertzes to fully comply with the trial court’s order and protective orders.”

Good luck with that.


And Now The News …





Go to Live Science site to see full-size map

Go to Live Science site to see full-size map

Live Science, July 23, 2014: Trees: Unlikely culprits in ozone pollution

Pollution from forests? As this map shows, trees do emit compounds that can worsen ozone and increase aerosols in the atmosphere.  But the facts are rather complex, no matter what President Reagan may have once said about our forest of “polluters” …

Union County, New Jersey, Independent Press, July 24, 2014: Berkeley Heights Environmental Commission study determines the cost of trees

Over the past three years volunteers under the auspices of the Berkeley Heights Environmental Commission have been carrying out a survey of the trees along the right of way on township streets. When residents see the volunteers measuring the trees, they often ask what’s happening. The easy answer is the township wants to know the condition of the trees, which so far number more than 4,600. But much more is involved …

KYTV, Springfield, Missouri, July 23, 2014: Tree disease wipes out pear, crab apple trees across Ozarks

Trees provide valuable privacy and much-needed shade on hot summer days. A mysterious disease is wiping out many trees around the area, though, and it is not easy to save them. “I’m appalled. I just cannot imagine why somebody didn’t catch this,” Marilyn Richards of Nixa said about the tree disease. Outside Richards’ house you will hear the unmistakable crunch of dead leaves, even though it is the middle of the summer. Richards and many of her neighbors in Nixa are watching their beloved pear and crab apple trees shrivel up and die …

Montreal, Quebec, Gazette, July 23, 2014: Once an asset, now a liability, Beaconsfield home surrounded by ash trees

What sold Patrick and Liane Boyle on the house they bought in Beaconsfield six years ago was its well-treed lot. Their home in Beacon Hill, a leafy neighbourhood just east of St-Charles Blvd. and north of Highway 20, is surrounded by 17 mature ash trees that shade the house in summer and enhance the property’s overall appeal. But with the arrival of the emerald ash borer in southwestern Quebec – including two confirmed infestations in the West Island this spring, one in Pierrefonds-Roxboro, the other in Pointe-Claire – the trees are becoming more of a liability than an asset …

North Coast Weekly Journal, Eureka, California, July 23, 2014: Letter – The little trees matter

Growth in the big trees left behind is unimportant to a commercial forest operator. What’s important to everyone is the relative health of the rest of the forest while it still produces enough lumber to make a profit

Googlefiber140723KMBC-TV, Kansas City, Missouri, July 17, 2014: Google Fiber installation generates some homeowner complaints

As Google Fiber rapidly expands into more Kansas and Missouri cities, mounting complaints about the installation are filed by homeowners who wonder if the promise of super-fast Internet is worth the hassle. “It’s like they just came and took over my property,” one resident said. “I thought that was rude and wrong …”

Dunwoody, Georgia, Crier, July 22, 2014: City tries to referee dispute over neighbors’ trees

Dan and Niki Keiser want to keep trees in their front yard that they’ve enjoyed for the nearly 18 years they’ve lived at the home on Tilly Mill Road adjacent to Kingswood United Methodist Church. Next door, their new neighbors Debi and Nitzan Tzuberi have asked the city to remove trees that they say block their view as they try to safely exit their driveway. On Friday, six trees were removed adjacent to the road, all on church property …

Lincoln, Nebraska, Journal Star, July 19, 2014: Simply Trees: The long lives of trees are complicated

Some trees can live a long time — a very long time — thousands of years, in fact. This seems especially remarkable considering that for most trees, the very thin layer of living tissues just under the bark (the cambium) is put down new every year. A tree more or less regrows itself every year while clinging to the scaffolding of its old wood. And just imagine all the threats an old tree has dealt with since its sprouting: storms, wind, droughts, floods, heat, cold, fires, animals, hungry insects, diseases and, of course, people …

KPIX-TV, San Francisco, July 22, 2014: Diseased Palm Trees Along San Francisco’s Embarcadero To Undergo Costly Removal, Replacement

Some of the iconic palm trees that line San Francisco’s Embarcadero are dying. The tropical trees, infected by a fungal disease that will require both their removal and replacement, are getting some close attention so the disease doesn’t spread …

Medford, Oregon, Mail Tribune, July 17, 2014: Eagle Point homeowner anguished after trees cut

Carole Mercer was shocked to arrive home at her 160-acre Eagle Point ranch last week to find that tree pruners contracted by Pacific Power had, as she described it, “butchered” a row of Australian willow trees. Mercer said the 20-year-old trees, which she watered and grew herself, had been sliced down one side to keep branches away from power lines. Power company officials say the work was necessary and followed national standards for tree trimming …

meriden140722Meriden, Connecticut, Record Journal, July 22, 2014: Bid request shows Wallingford is exploring downtown trees option

A recent bid request could indicate a desire on the town’s behalf to replace some downtown trees with a species other than the Callery pear. The town recently removed 28 Callery pear trees on Quinnipiac Street and replaced them with the same species. Members of the Greening Committee suggested that some of the trees be replaced with another species to provide variety. “Our proposal detailed how installing the right tree in the right place and then maintaining them is cheaper than cutting them down and replacing them on a 15-year cycle,” said a member of the Committee …

Spokane, Washington, Spokesman, July 22, 2014: Columnist: Conserve our tax dollars, not our trees

I got a case of government heartburn when the Spokane City Council voted 6-0 Monday night to start buying only recycled paper. Especially since doing so will cost nearly six grand more a year than the city pays now for politically incorrect old-paper paper. The council members call this going green. To me it’s a typical waste of greenbacks …

Burlington, Vermont, Free Press, July 19, 2014: Trees fall, debate rises in Fairfield

The local selectboard of this rural Northwest Vermont community ordered hundreds of trees chopped down to reduce the risk of hazardous blow downs and power outages such as those caused by a nasty ice storm that walloped the town last December. The mess of that storm is fresh in local memory. Yet not everyone is happy to hear the whine of the saw and the mechanical moan of the wood chipper this summer …

Sandusky, Ohio, Register, July 21, 2014: Melissa meets Melissa, she speaks for the trees

A local reporter goes on the job with SWCD worker taking inventory of city’s trees …

More tree vandalism –

Youngstown, Ohio, Vindicator, July 21, 2014: 29 fruit trees destroyed by vandals

About half of the fruit trees at the Food Forest, which provides free freshly grown fruit to the needy, were cut down overnight. “It came as a shock,” said R. Mason Carratt, who founded the Food Forest on the city’s South Side. Carratt said early today he found 29 of about 50 fruit trees — pears, apples, cherries, plums and peaches — cut with what appears to be pruning shears …

WAVE-TV, Louisville, Kentucky, July 21, 2014: Vandals damage trees, rock wall in Louisville park

Not in our park: That’s the word from leaders at The Parklands of Floyd’s Fork after vandals destroyed new trees and a hand laid rock wall inside the east Louisville gem over the weekend. Monday, park leaders said they want the people responsible for the vandalism arrested. “We can’t let stuff like this stand,” said Parklands Parks Director Scott Martin …

1000oaktree140721Los Angeles Times, July 21, 2014: Thousand Oaks redevelopment sparks public outcry to save the trees

There are trees, and then, when you grow up in a city called Thousand Oaks, there are trees. The oak tree isn’t just in the city seal; it’s in the city’s DNA. So earlier this year, when the owner of a prominent shopping center began chopping down more than 170 trees to make way for progress, Brockwell and many other residents had the same response: “This has to be illegal …”

Cleveland, Ohio, Plain Dealer, July 18, 2014: Beetle infestation taking toll on one town’s trees

It’s hard to believe that something as small as a beetle can kill a tree. But that’s what’s been happening to Medina’s ash trees in recent years. So far, city foresters have removed about 500 dead or dying ash trees infested with emerald ash borer. When all is said and done, the city will have to remove 1,900 ash trees from tree lawns and urban forests …

Phoenix, Arizona Republic, July 18, 2014: Group tries to save downtown Phoenix trees from destruction

Workers have transformed a vacant lot in downtown Phoenix into a temporary nursery filled with Indian rosewood trees. The trees, removed from the construction site of what will become Arizona State University’s Sandra Day O’Connor College of Law, will sit there throughout the summer …

New York Daily News, July 20, 2014: City has removed more than 2,400 damaged trees in Brooklyn since Hurricane Sandy

A tree dies in Brooklyn. That has been the storyline since Hurricane Sandy, whose devastation is still being felt. The city has removed more than 2,400 trees from borough neighborhoods that were flooded during the destructive storm in 2012, and countless others are headed for the chipper as forestry staffers continue to inventory the flood-damaged foliage …

Someday, cars might grow on trees ...

Someday, cars might grow on trees …, July 17, 2014: In fifty years, carbon fiber will be spun from trees

Carbon fiber is one of the strongest and most resilient materials on the market, used in everything from car frames to body armor. It’s also incredibly expensive to make. But one plant biologist says that in fifty years, we’ll be growing it on trees …

Fort Erie, Ontario, Post, July 17, 2014: Trees employ natural defense against virus

High up on the west side of a hemlock was an unusual dense clump. This was an anomaly – an unusual growth called the Witch’s Broom. An air borne virus some years ago reached the upper branches. In order to protect its self the tree grew a great number of miniature tree-like growths …

KBTX-TV, Bryan/College Station, Texas, July 17, 2014: Crepe Myrtle caper – who cut the trees in Northgate?

Who cut the beautiful flowering crepe myrtle trees at a Northgate business in College Station? They were trimmed back so much that one expert says they’re permanently damaged. Now police are investigating. A crepe myrtle caper is brewing in Northgate …

KCRG-TV, Cedar Rapids, Iowa, July 15, 2014: Iowa town treating ash trees with injections

Mount Vernon is a frontline city in the battle against the Emerald Ash Borer. City officials don’t have any cases to report yet, but last year the beetle was discovered seven miles away. To make sure Mount Vernon isn’t next, the city is inoculating about 300 ash trees on public space with an insecticide called TREE-age. It kills Emerald Ash Borer larvae, which live under the bark and destroy trees by disrupting nutrient flows …

Agrinews, Lasalle, Illinois, July 17, 2014: Canker disease threatens walnut trees

Thousand cankers disease recently was confirmed in Indiana, putting the disease threateningly close to Illinois walnut trees. Indiana joins Maryland, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia and eight western states with the disease, which is the result of a complex in which black walnut trees are attacked by the walnut twig beetle …

treeonhouse140717WWLP-TV, Springfield, Massachusetts, July 16, 2014: Some trees are more susceptible to severe weather

Since the beginning of July severe thunderstorms with strong damaging winds have brought down trees across New England and here in western Massachusetts. There are certain trees that are more likely to come down. “A lot of the trees that have been falling that I’ve seen personally and on your broadcast are trees that have two leaders and are attached and that have crotch attachments and it’s a common type of failure,” said consulting arborist Charles McCarthy …

West Island Gazette, Montreal, Quebec, July 16, 2014: Town aims to save remaining ash trees; Proposed bylaw amendment puts more responsibility to fight ash borers on homeowners

Beaconsfield is proposing a bylaw amendment that would require homeowners to report an emerald ash borer beetle presence, and to cut down ash trees on their property if located with a 100-metre radius of a confirmed infestation case. The bylaw amendment aims to limit the spread of the destructive insect within Beaconsfield. There are about 3,200 ash trees on city property and an estimated 10,000 on private property, excluding the local forests …

KTAR Radio, Phoenix, Arizona, July 15, 2014: Tree expert has advice to help protect trees from storm damage

Hundreds of trees have been snapped off or pulled out of the ground during the monsoon. They’ve come down on cars, homes and power lines. There’s no guarantee when it comes to saving trees from powerful winds but there are steps homeowners can take to give trees a fighting chance. Jeff Harper with Harper’s Nursery said pruning trees and not overwatering them is the best way to protect them during Arizona’s monsoon …

North Coast Journal, Humboldt County, California, July 17, 2014: Big trees: Old-growth gurus talk about growing forests for the future

How forest stewardship can promote old-growth functions that benefit “climate, wildlife, water, and a sustained resource economy …

burglar140716KTLA-TV, Los Angeles, July 16, 2014: Vandal sought for cutting down more than a dozen trees in Anaheim Hills

Police were looking for the person responsible for cutting down more than a dozen trees at Ronald Reagan Park in Anaheim Hills. It happened sometime between Saturday night and Sunday morning. Police said 13 trees were chopped down, likely with an ax, and left lying on the ground at the park …

Jackson, Mississippi, Clarion Ledger, July 15, 2014: Oxford unhappy with tree trimming

Dr. Ralph Vance received a big shock recently when he looked out his window at his Old Taylor Road home. He could see a lot farther than he used to be able to and he wasn’t happy about it. The new view came after the Mississippi Department of Transportation knocked down dozens of trees on and near his property to make way for bridge expansion and new roundabouts …

Savannah, Georgia, Morning News, July 15, 2014: Study shows tree canopy shrinking in Chatham County

Three football fields. That’s how much tree canopy Chatham County lost every day on average over the last 15 years, a new analysis reveals …

KECI-TV, Missoula, Montana, July 15, 2014: Historic trees focus of concern in Hamilton construction project

The city of Hamilton is upgrading its water lines for better flow and fire safety. Right now, there’s a $300,000 project on three blocks getting a new main, plus curbs and sidewalks. But what’s getting most attention there are the neighborhood’s signature shade trees. They’re an old story …

twigb140715KOIN-TV, Portland, Oregon, July 14, 2014: Twig beetle killing black walnut trees in Oregon

Jennifer Beugli has lived in her Salem home for 25 years. She’s fallen in love with her towering walnut tree. But about two years ago, the same fungus suspected of killing off other black walnuts in the neighborhood began killing her tree.

Durham, North Carolina, Herald-Sun, July 14, 2014: Keeping your trees healthy in the summer months

Drought stress can kill young or newly established plants, and it can stress mature or established plants to the point where they become vulnerable to other pests or pathogens. Signs of water stress include drooping branches, curling or shedding leaves and premature fruit drop. On mature trees symptoms can include shedding branches and “fluxing,” a condition where brown fluid seeps out of old wound areas, causing discoloration and sometimes a sour smell …

Nixa, Missouri, Express, July 14, 2014: MDC urges proper pruning to help storm-damaged trees

Recent storms have left many trees in need of a little after-storm care. Trees that lost limbs may threaten the safety of homeowners and are at risk for decline or even death. The Missouri Department of Conservation has advice about how to determine which trees are salvageable and how to nurse them back to health …

Model D, Detroit, Michigan, July 15, 2014: After 25 years of growth in the city, the Greening of Detroit comes of age

The average lifespan of an urban tree is just 20 percent what it would be in the wild. For every tree that’s planted in Detroit, four are lost. A number of stressors contribute to this high mortality rate: compacted soil, nutrient deficiencies, and greater susceptibility to pests. Improper pruning doesn’t help matters, and neither do the wounds inflicted by people and machines …

Arkansas Times, July 14, 2014: Whose trees these are, they think they’ll know

Two years ago, new shrubbery at St, Bartholomew’s Church was stolen. Last month, the new pastor planted 20 small evergreens around the church. Seven were promptly stolen. They’ve been replaced. But all 20 have now received some white identifying paint …

southbend140714South Bend, Indiana, Tribune, July 13, 2014: Trees will rebound from storm; ash borer is real threat

You can almost follow the path of the straight-line wind that blasted through two weeks ago. Keller Park remains littered, with roots splayed into the air. The park’s losses add up to six or seven mammoth trees, although it looks like more. Cleanup will end in a couple of weeks at Keller and months later at other area parks. Park officials and tree experts say that the wake of this storm, which gusted up to 80 mph, will prove that a tiny green insect, the Emerald Ash Borer, is more damaging …

Louisville, Kentucky, Courier-Journal, July 11, 2014: Ash Borer wiping out Kentucky trees

Five years after the emerald ash borer arrived in Kentucky from the north where it killed more than 25 million trees, the full force of this Asian invader is being felt across the Bluegrass …

KXAN-TV, Austin, Texas, July 10, 2014:  Trees scorched in Bastrop fires get second life

The wildfires that raged through Bastrop County three years ago left behind thousands of charred, dead trees.  Many of the trees burned in the fire are still standing, but crews are working to remove them so they can be turned into fuel. That is the silver lining. The 27,000 acres of trees will be shredded and become useful again. “It’s turned into a wood-fuel pellet and then it’s exported to Liverpool, England, to a German utilities company called Drax,” said Dennis Parker with Go Green International. “They use the wood pellets to make power, instead of coal, so it’s just converted into clean energy …”

Kansas City Star, July 13, 2014: New trees along Platte County trail are dying or distressed

Bad timing and miscommunication have created a troubled start for trees along the new multi-use 152 Trail in Platte County. Earlier this summer, a 3-mile section of the trail opened between Ambassador Drive and Line Creek Parkway. Hundreds of new trees were planted along the trail near the end of June as a supplement the greenery that already grew in the area. That was not the ideal time for installation. Now, many of the multiple varieties of oak, maple, bald cypress and linden trees are showing distress or look dead …

Wickedlocal, Danvers, Massachusetts, July 13, 2014: Munching moths threaten state’s trees

Ken Gooch, supervisor of the DCR Forest Health Program, sits in a small plane and looks down. Spread below him are the coastlines, hills and forests of the North Shore. “I can see pockets of dead trees,” Gooch said. “This has been probably some of the worst that I’ve seen.” In the last year, Gooch has mapped 16,596 acres of defoliation across the state. And just about all of it caused by one particular insect — the winter moth …

Newton County Times, Jasper, Arkansas, July 1, 2014: The best protection for trees? You

The United States Department of Agriculture (USDA) has designated August as Tree Check Month to keep our trees strong and healthy now and for future generations to enjoy. Even more, it can be a family affair. It’s a chance to teach kids about the impact they can have in saving our nation’s trees from a devastating pest, the Asian longhorned beetle (ALB) …

The, July 12, 2014: Why trees are good – and bad

When you walk into a forest you immediately notice the smell, a woodsy aroma that’s soothing and invigorating at the same time. That aroma comes from gases that trees give off and it’s most noticeable when trees are concentrated in groups. The gases contain biogenic aerosols — particulate matter that originates from plants. When exposed to oxygen in the atmosphere these particulates cling to other particulates in the air, gradually growing larger, forming clouds that reflect the suns heat, cooling the earth and forming raindrops. But there is a bad side to the gases that trees emit also. Trees emit isoprene, a chemical manufactured to protect leaves from oxygen damage and temperature fluctuations. A study recently completed by researchers at the University of North Carolina at Chapel Hill found that isoprene unites with air pollutants such as nitrogen oxides emitted by cars and coal burning plants to form harmful particulates at least partially responsible for lung cancer, asthma, and other lung disorders …

ficus140711San Francisco Chronicle, July 10, 2014: City may be up a tree with falling ficus woes

A tree falls in San Francisco’s Russian Hill neighborhood, but the question is not whether it makes a sound. The question is what can be done to keep such trees from sending splayed branches into busy Hyde Street – as one did Monday evening, toppling over a sport utility vehicle near Union Street and disrupting cable car service. The answer is important, given that the tree was the third in the neighborhood in the past three years to crash down …

Nashville Tennessean, July 10, 2014: Hillsboro Cove developer removed too many trees

The controversial Hillsboro Cove subdivision ran into a hurdle this week as Williamson County planning commissioners withdrew the development’s revised final plat review from its agenda. Grove Park Construction is developing the 34-acre luxury subdivision, where the average sale price for a home will be $1.3 million. But too many trees were removed from the property during construction, violating the county’s vegetation buffer requirements for the development …

WFLD-TV, Chicago, July 10, 2014: Chicago forestry crews to trim more trees in 2014

The city of Chicago is announcing plans to trim 15,000 more trees this year than in 2013. Mayor Rahm Emanuel and the Department of Streets and Sanitation made the announcement this week. Emanuel says the proper maintenance of the city’s estimated 580,000 parkway trees is a “necessary investment” in the city’s neighborhoods …

Wellesley, Massachusetts, Townsman, July 10, 2014: Wellesley developer told to stop work after cutting trees without a permit

A Wellesley developer has been told to cease and desist immediately after he began working on a site, and cutting trees that were omitted from a tree removal plan, before a permit for the work had been formally issued …

WBOC-TV, Salisbury, Maryland, July 10, 2014: Rehobeth tree ordinance would require more shade trees

The Rehoboth Beach Planning Commission will discuss a proposed tree ordinance at Friday’s meeting. This new version attempts to increase and maintain the tree canopy in Rehoboth Beach. Previously, the ordinance required owners of property 5,000 square feet or more to have three trees in their yard. The new ordinance would specify the trees must be shade trees, or 30 feet or taller …, Downers Grove, Illinois, July 9, 2014: Bulk of trees on former Ide tree farm to be mulched, moved off site

While developers of the Timber’s Edge residential subdivision will salvage one acre of spruce and pine trees across the former Ide Tree Farm, the bulk of them will be mulched and taken off the 55-acre property. On Tuesday, the trees – overgrown because they weren’t harvested over the winter – still stood on the property, but by Wednesday construction equipment removed thousands of the trees in just a day’s work …

stopFE140710The Almanac, South Hills area, Pittsburgh, July 9, 2014: Windermere residents protest First Energy clear-cutting trees

Homeowners are protesting First Energy’s plan to clear-cut trees and spray herbicide along a seven mile stretch in Peters Township before the end of August. A First Energy spokesman said the work is mandatory to prevent trees from damaging a transmission line over the next decade. Now residents are organizing a meeting in an attempt to seek a compromise or prepare legal action …

Carmel Valley, California, News, July 9, 2014: Despite complaints, Torrey pines trees unlikely to be removed in Carmel Valley area

A local resident complained to the Torrey Hills Community Planning board in June that she and other homeowners in her community purchased homes sold as “premium ocean view homes” but that view never materialized due a cluster of Torrey pine trees. Board Chair Kathryn Burton told the resident that the planning board does not have any authority when it comes to the trees. According to the assistant deputy director of the open space division and maintenance assessment districts of the parks and recreation department, the San Diego Municipal Code provides certain protections for Torrey pines on public land — they can only be removed for public safety and the health of the tree …, New York City, July 9, 2014: Treeless block ‘stands out like sore thumb,’ residents say

Nearly four months after workers finished tearing up and repaving a highly trafficked Broadway sidewalk to make way for new retail development, residents want to know why no trees have been planted on the block …

Manchester, New Hampshire, Union Leader, July 9, 2014: Nashua talking trees to improve life in city

With more trees being cut down along Main Street this summer, a city alderman is hoping to create a tree policy that will protect and maintain the community’s remaining tree population. 
“Once you cut a tree down, you can’t undo it. Many of the trees in Nashua have been here longer than most of us,” said Alderman-at-Large Diane Sheehan. “We need to be careful with how we change something that is designed to be permanent …”

Mobile Press-Register, July 9, 2014: Should Alabama Power change the way it trims trees in Mobile?

Alabama Power Co. trims just below and around its power lines for safety and reliability, and it works with the city of Mobile’s Urban Forestry Department to meet their expectations, an official with the company said Wednesday. Beth Thomas, external affairs manager in Mobile, admitted that the power company is also aware of public criticism of its tree trimming program

WJZ-TV, Baltimore, July 9, 2014: Toppled trees kill child, injure several at summer camp

A fast-moving storm claimed the life of a 12-year-old boy when trees toppled down onto a group of more than 100 children heading for shelter at a Maryland camp. At least eight other kids were injured …

Asianbeetle140709WCPO-TV, Cincinnati, Ohio, July 8, 2014: Asian longhorned beetle infestation leads to the removal of 49,000 trees in Clermont County

The Asian longhorned beetle continues to terrorize trees and hardwood in Clermont County, Ohio, leading to the removal of over 49,000 trees to prevent further infestation …

KOB-TV, Albuquerque, New Mexico, July 8, 2014: Outdoor rebates offered for maintaining trees

People in the metro have done a great job of conserving water, but in the process some have neglected their trees and they’re in bad shape. Now the water authority is offering what it calls Tree-Bates. Ask anyone who owns trees and they’ll tell you maintaining them isn’t cheap. Virginia Mendoza has 17 on her property, but Virginia didn’t know she could be saving money with “Tree-Bates.” The Albuquerque Bernalillo County Water Utility Authority will reimburse you up to $100 on fertilizer, irrigation equipment or professional tree servicing. It doesn’t cover buying a new tree or removing one …

WSET-TV, Lynchburg, Virginia, July 8, 2014: Bedford County trees could be cut down by power company

They’ve stood for more than two centuries, now three trees in Bedford County could be cut down in a matter of days. The trees are on Byron Davis’ land in Forest. Dominion Virginia Power has a 125-foot right of way on the property. The power company is clearing trees to make room enough to center and rebuild a transmission line. Two of the old trees are within the right of way. The third is just outside …

Medina, Ohio, Gazette, July 8, 2014: Medina losing 1,900 trees to Emerald Ash Borer

Medina residents will be seeing less foliage lining some city streets in the coming years as the city’s Forestry Department battles an invasive insect: the emerald ash borer. Parks Director Jansen Wehrley said the lost ash trees will be replaced with other types of trees. It started in 2012 and over the next three to five years, the city will remove 1,900 ash trees from tree lawns and urban forests in many of the city’s neighborhoods …

Green Industry Pros, July 8, 2014: How to gain a competitive edge with native trees

Incorporating native plants in landscape designs has become a hallmark of sustainable landscaping. It can also prove to be a very effective way to build stronger relationships with your residential clients while keeping competitors at bay. The key is developing the knowledge and skills necessary to become an “expert” on using native plants—something most landscape contractors still lack …

walnutcat140708KHOU-TV, Houston, Texas, July 7, 2014: Walnut caterpillars strip pecan trees in Fort Bend County, Texas

Heidi Keener says her home used to be a pecan farm. “That’s why we live out here,” she says, “because of the beautiful trees and scenery.” But in early June, hordes of walnut caterpillars stripped her trees bare within days. The cold winter, combined with plenty of rain in recent weeks, allowed for the large volume of caterpillars, and that the loss of foliage puts a great stress on the pecan trees …

UPI, July 7, 2014: NBA star Kevin Garnett sued by neighbors for not trimming his trees

The neighbor of NBA star Kevin Garnett has filed a lawsuit claiming that untrimmed trees on the player’s property are obstructing the view of his Malibu home. The “Big Ticket” is facing a big lawsuit from his neighbor because of a construction project he began at his $9.5 million mansion last year …

Holland, Michigan, Sentinel, July 6, 2014: Hundreds of dead, dying ash trees in Holland are coming down

When the work is all done, more than 1,200 ash trees will be removed — and that’s just within the city of Holland. On Tuesday, an active ash tree removal program will begin along 32nd Street. On one block alone, there are 14 trees that have to come down. From Central Avenue to Ottawa Avenue, there are 47 more …

Cary, North Carolina, News, July 7, 2014: Cary’s hemlock trees infested again

Cary officials says a recent inspection of its 235 eastern hemlock trees yielded the discovery of hemlock woolly adelgids, aphid-like insects that can damage trees while feeding on their sap …

WHAG-TV, Hagerstown, Maryland, July 7, 2014: Crews begin trimming and removing trees to prevent power outages

Crews with Asplundh Tree Company began removing trees along Catoctin Hollow Road on Monday for Potomac Edison. They say there are more than 140 trees that are either dead or in the way of power lines where they could fall on to, and as a result, they need to be removed . . .

Worcester, Massachusetts, Telegram, July 8, 2014: 500 Green Hill trees to be removed because of Asian longhorned beetles

Some 500 trees lining a section of a Worcester area golf course are slated for removal as part of the U.S. Department of Agriculture’s efforts to eradicate the Asian longhorned beetle . . .

balsamwolly140707Detroit Free Press, July 3, 2014: Michigan bans fir trees, timber from some states due to pest

Michigan officials have announced a quarantine that prevents the shipment of fir trees and timber products from infested states into Michigan. It’s an effort to keep the state’s estimated 14 million fir trees safe from the balsam woolly adelgid, an insect that can kill the trees …

Lamar, Colorado, Ledger, July 6, 2014: Trees and utility lines: proper placement for safety

When a tree is trimmed or removed near utility lines, it’s for good reason – it is the wrong tree type, and in the wrong place, and could cause interruptions to service. Utility services in the United States have become such an expected part of our daily lives that they are often taken for granted …

Grand Rapids, Michigan, Rapidan, July 3, 2014: Should we keep our trees?

Our community has set firm goals for tree canopy. Green Grand Rapids, the City’s Urban Forest Plan, Climate Resiliency Plan and the Sustainability Plan all highlight the City’s 40% tree canopy goal. It’s not just an arbitrary number to be aimed for; it’s become a symbol of Grand Rapids’ sustainability and environmentally-minded culture. Trees are part of our community fabric and we want more …

Quad City Times, Davenport, Iowa, July 6, 2014: Webinar is all about trees

Because weather patterns over the past couple of years have taken a toll on landscape trees, and because the emerald ash borer is advancing across Iowa, trees will be the theme of a three-part garden webinar starting July 15th offered by the Iowa Master Gardener program and Iowa State University Extension and Outreach …

Bangor, Maine, Daily News, July 5, 2014: Ailing pine trees prompt calls to Maine Forest Service

State forestry officials have been receiving numerous calls about a disease affecting white pine trees, but they say there should be no rush to cut them down because the trees may yet survive …

EAB140703New York Times, June 30, 2014: After the trees disappear – ash forests after Emerald Ash Borers destroy them

This past winter was the coldest Detroit had experienced in 36 years. Across the upper Midwest, cities shivered, and more than 90 percent of the surface area of the Great Lakes froze solid. It seemed like ideal weather to kill an unwanted insect. But it did little to stop the emerald ash borer, an invasive Asian beetle that is devastating ash trees from Minnesota to New York …

WJAC-TV, Johnstown, Pennsylvania, July 1, 2014: Arborists point to hundreds of reasons why trees fall

A tree expert said nobody is to blame for two trees falling on moving vehicles in Somerset County in just a week’s time. Police called both incidents “freak accidents.” But believe it or not, they’re not the only occurrences in Pennsylvania this week. A man was just killed Monday night in Warren County when a tree hit his car. “(PennDOT) tries to keep a regular maintenance interval or schedule so to speak, but they can’t be everywhere at once and this is obviously a big problem,” said Ryan Beeghley. With thousands upon thousands of miles of roadway throughout the state, and even more trees lining them, it’s nearly impossible for the state, or any organization, to continually keep a proactive watch — not to mention there are hundreds of reasons why a tree can fall …

Syracuse Post-Standard, July 2, 2014: Hemlock trees’ worst enemy, the wooly adelgid, found in Skaneateles Lake watershed

A tiny insect that can kill towering hemlock trees has been found in the Skaneateles Lake watershed. The discovery in May of the hemlock wooly adeldgid in the town of Spafford is a disturbing find for homeowners who value the tall hemlocks for their beauty and shade. It’s also bad news for the city of Syracuse, which draws drinking water from the lake …

Global News Canada, July 3, 2014: BC Hydro cuts down trees from private property for safety reasons

A West Vancouver homeowner is irate at BC Hydro for cutting down more than a dozen trees on her property. “We’ve been on the property for 19 years, and they’ve always very nicely trimmed, sometimes over-trimmed, but they always worked with us,” said Darlene Holmes, who owns the home. Not this year. About 15 trees have been taken down by BC Hydro. They say it’s to ensure the trees can’t damage a transmission line that runs next to the home. Holmes claims it could decrease the property value by $200,000 …

Baltimore Sun, July 2, 2014: Rodgers Forge residents rally for trees

Angry Rodgers Forge residents are rallying around nine 100- to 250-year-old trees that could be cut down during expansion of Dumbarton Middle School. Neighbors gathered with signs in support of the trees June 27 despite assurances the day before that the trees will be spared …

treefall140702Cedar Rapids, Iowa, Gazette, July 1, 2014: Down trees keep landscape services busy

Storms are big business for area tree services. Jeff Scherf, owner of JC’s Tree Service in Cedar Rapids, said he has received enough calls since the torrential rain and wind passed Monday to keep him busy for the next two to three months. “I’ve probably received between 150 to 175 calls in 24 hours. My voice mail is full. I can’t even get through it because the phone keeps ringing,” he said. That means he has to prioritize. Trees that are laying on someone’s house or car, or that are in danger of falling on a house, are first in line. Everyone else just has to wait, he said …, June 30, 2014: Project of the Week: How to install a tree ring

As you’re working to improve your lawn and garden, here’s a great project to consider… How about enhancing an existing tree with a tree ring?

CTV News, Winnipeg, Manitoba, June 30, 2014: Trees damaged by weekend storms could pose threat

Nearly 700 trees came crashing down in Winnipeg this weekend as a result of some wicked winds. On Monday, city crews were out with aerial lifts and wood chippers to clean up leftover trees and branches that had fallen, and some that may do so soon …

Moultrie, Georgia, Observer, July 1, 2014: Researchers work to breed cones out of pine trees

A world-renowned University of Georgia turfgrass scientist is embarking on a different research journey — breeding coneless pine trees. 

Wayne Hanna, 71, retired in 2008 after 37 years as a turfgrass scientist who helped breed some of the top turfgrasses used by homeowners and sports field managers today. Now working part-time with the UGA College of Agricultural and Environmental Sciences, Hannah hopes to have similar success studying pine trees …

Waterloo, Ontario, Record, July 1, 2014: Protect your property – prune your trees

Pruning the trees on your property can add curb appeal and enhance your view. However, pruning also improves the health of your trees, while safely protecting your property and those around you. Corrective pruning mitigates safety risks that can arise from storm damage. The service is required when trees begin to grow in a wayward direction, or at an odd angle or shape …

Windsor, Ontario, Star, July 1, 2014: Fight growing in Olde Walkerville to save the trees

Opposition is taking root in Old Walkerville against a city plan to cut down 25 trees as part of a major streetscaping project. Many of the trees will be replaced once Wyandotte Street East, between Gladstone Avenue and Argyle Road, is redone at a cost of $3.8 million, which also includes updating part of Devonshire Road. “We have some very good trees on these blocks and we want them saved,” said Elaine Weeks, managing editor of Walkerville Publishing and an area resident who is leading the charge against the tree-chopping. “It’s ridiculous to even have to be here protesting…”



Case of the Day – Wednesday, July 23, 2014



Would you rather have your insurance agent appear?  Really?

Would you rather have your insurance agent appear? Really?

The Estes, like the rest of us, have probably seen those insipid commercials where the insurance-challenged protagonist signs a major insurance company’s jingle offkey, and his or her local agent magically appears. It never made much sense to us. Meaning no disrespect to insurance – which after all is just a transaction in which you bet something bad’s gonna happen to you, and the insurance company bets it won’t – but if we could warble a stanza and have someone appear, it sure wouldn’t be an insurance agent.

Back to our topic. The article in today’s And Now the News about Google having neighbor problems Kansas City made us think about truly rotten neighbors, you know, the ones without community relations teams and emergency satisfaction 800 numbers. The Estes probably have less of an idea of what a good neighbor is than most people, except to suspect it sure isn’t the people next door to them, the Gertzes. The Gertzes are a little bit weird, and we don’t mean that in a good way.

A dispute about a suburban boundary line ended up with the Gertzes training a battery of surveillance cameras on their former friends, the Estes. If that wasn’t enough, Mrs. Gertz began using a loudspeaker to hurl insults — rather graphic ones which left the court blushing — at the Estes daughters. And then there was the fence.

Robert Frost said that good fences make good neighbors, but he hardly had this fence in mind: an 8-foot tall monstrosity painted orange and black, studded with thousands of protruding nails and large warnings against climbing and trespassing painted on the Estes’ side like so much gang graffiti. In fact, the whole thing looked rather more like the Berlin Wall come to Hebron, Indiana.

LlamasThe Estes sued under the “spite fence” statute. The Gertzes protested that they hadn’t built a spite fence, but rather just a modest enclosure to protect some delicate saplings they had planted, as well as to permit the raising of alpacas and llamas. After all, they didn’t want any errantly roaming cattle to gnaw on the young trees or, for that matter, to let the llamas and alpacas flee to return to South America. The Court wasn’t convinced. After all, the Gertzes’ permit application called the fence “residential,” not “agricultural.” Second, the fence didn’t enclose the young trees, making it useless as a cattle barrier. Finally, the cameras, the loudspeaker and the studded fence — not to mention the testimony of deteriorating relations between the plaintiff and defendant — made it clear to the Court that the fence was erected maliciously.


The Gertzes could hardly let their alpaca herd hotfoot it back to Bolivia, now, could they?

The Gertzes also tried a creative technical argument that because a permit had been issued for the fence, the Indiana “spite fence” statute had been trumped by local approval. The Court noted that the permit was for a 7-foot fence, not the 8-foot plus fence the Gertzes had put up, and anyway, a local permit did not excuse compliance with the statute.

So the court settled matters, and everyone kissed and made up. There was lemonade toasts all around, right? Lest you think that, stay tuned tomorrow for … [drum roll] … Gertz v. Estes, the sequel.

Gertz v. Estes, 879 N.E.2d 617 (Ct.App. Ind., 2008). Oh, the neighbors from hell! David and Nichelle Gertz started out liking their neighbors, Douglas and Susan Estes, but that fell apart. David and Nichelle had multiple surveillance cameras trained on their neighbors — even when they purported to get along — but after the boundary line was disputed, things got so bad that the Estes notified the Gertzses that they intended to install a fence, but before they could do so, the Gertzses built one of their own. The Gertzses applied for and obtained a local permit to build a 7-foot high fence, but the final fence was 8 feet high, 720 feet long, and with thousands of nails protruding on the Estes’ side up to a half inch. The words “NO CLIMBING” and “NO TRESPASSING” were painted in orange and black on the middle horizontal slat, and two more cameras — for a total of seven surveillance cameras — were installed on top of the fence.


The Gertzes also used a public address system to aggravate the Estes, including making “lewd comments” to the Estes’ daughters, which the Court blushingly refused to repeat in the opinion. The Gertzes called the sheriff at least eighteen times to report various activities of Douglas and Susan Estes.

The Estes sued under Indiana’s “spite fence” statute for removal of the fence. The Gertzes testified that the fence was necessary to protect eighteen-inch tree seedlings they had planted. The fence did not enclose any area, but the Gertzes said they intended to enclose the fence at some point so that they could raise llamas, alpacas, or sheep. The trial court found that there was “no justifiable or necessary reason for the fence installed by [David and Nichelle] to exceed six (6) feet . . .” Furthermore, it found that “the fence was maliciously erected and now maintained for the purpose of annoying [Douglas and Susan].” The trial court ordered the fence removed, and the Gertzes appealed.

SurveillHeld:  The fence had to go. The Court found that the evidence and the reasonable inferences drawn from it fully supported the trial court’s findings. As to the Gertzes’ defense that it was for agricultural purposes, the Court observed that their permit application indicated that the “use” of the fence was “residential” and the fence did not form an enclosure, making it useless for livestock. The Court said that the Gertzes’ conduct and the extraordinary nature of the fence overcame David’s assertion that the 8-foot fence was intended to protect eighteen-inch tree seedlings.

Likewise, the fact that a local permit was granted to build a 7-foot wooden fence parallel to the property line did not trump the “spite fence” statute. That statute defines as a nuisance any fence unnecessarily exceeding a height of six feet and maliciously erected for purpose of annoying neighbors. This fence exceeded six feet unnecessarily, and clearly resulted from a deteriorating, antagonistic relationship between the Gertzes and their neighbors. The nails on fence protruding between quarter- and one-half inch from the fence and the surveillance cameras clearly supported the finding that the fence was built out of malice, and was therefore a nuisance.

The Gertzes wisely didn’t challenge the trial court’s order that the PA system had to go, too.

Case of the Day – Tuesday, July 22, 2014


Every good trial lawyer knows how to employ the Chewbacca Defense.

Every good trial lawyer knows how to employ the “Chewbacca Defense” to his or her client’s benefit.

Sometimes you wonder when you read a decision, “What were they thinking?  That does not make sense.”

Today’s case is something like that.  The facts are straightforward enough. Smith sold a gas station-restaurant-bar to Mendonsa, but carefully secured Mendonsa’s promise that he wouldn’t let the trees on the plot get so high that they shaded Smith’s adjacent orchard. Wouldn’t you know it, Mendonsa at some point decided he liked tall trees, or he didn’t like trimming tree, or he couldn’t find his clippers, or something. He let the trees grow, and they shaded four of Smith’s something-berry trees (we have no idea what he was raising in the orchard, but this being California, they probably weren’t plantain trees).

Anyway, Smith sued, and Mendonsa, for some foolish reason, fought the action. The trial court of course found for Smith, and then worked some rump math, figuring the past damages were about $140.00 a year (this was 1952, when a dollar was worth a bit more than now), and multiplied over three years, the damages were $420.00. The Court also enjoined Mendonsa from maintaining trees over 15 feet or branches which were hanging over on Smith’s land.

On appeal, Mendonsa complained that the damage calculations were too imprecise, and that the injunction was unduly burdensome on him. The Court of Appeals disagreed, finding the calculations pretty good for an uncertain case, and anyway complaining that “[t]he wrong was that of the appellants and they are not in a favored position to urge the technical rules governing awards of damages.”

This case may be the legal equivalent of this - what were they thinking?

This case may be the legal equivalent of this – what were they thinking?

Huh? In the words of South Park’s parody of Johnnie Cochran in the legendary Chewbacca defense: “that does not make sense.” If the wrongdoer isn’t entitled to argue that the court has to follow the “technical rules” of assessing damages, then who is? It’s a cinch the plaintiff isn’t going to do anything to restrain the court in calculating damages. This is probably one of those “hard cases make bad law” kind of decisions … but even so, it’s hard to feel much sorrow for Mr. Mendonsa, who should have been enjoined and been made to pay damages.

A deal’s a deal, after all.

Smith v. Mendonsa, 108 Cal.App.2d 540, 238 P.2d 1039 (Ct.App. Cal. 1952). Smith entered into an agreement with Mendonsa concerning the use of a gas station, restaurant and bar he had sold to him. Mendonsa agreed that he would permit no trees to remain on the site which exceeded a height of 15 feet;, and that if any tree got taller than that height, Smith would have the right to remove the same. The purpose of the agreement was to prevent the shading of Smith’s orchard next door. land and to prevent trees on the appellants’ property from overhanging it. Mendonsa let the trees get too tall, and Smith sued to enforce the deal. The trial court agreed with Smith, and awarded him money damages for past violation as well as an injunction prohibiting Mendonsa from maintaining any tree in excess of 15 feet in height or from permitting branches of any tree to overhang the orchard. Mensonda appealed, complaining that the damages awarded weren’t supported by the record and that the injunction was too harsh.

Held:    The damages and injunction were upheld. The Court observed that the record showed that the shading of the orchard trees near the appellants’ property line was detrimental to the growth of the trees themselves and would, during some seasons, decrease the yield of fruit on the affected trees. Four trees were affected, the evidence showed, the Court found, and while the proof of damage was not exact, it nonetheless gave some fairly definite basis for computation.

Mendomsa let the trees get a little too tall ...

Mendonsa let the trees get a little too tall …

With respect to growing crops, the measure of damages is the market value of the probable yield without detriment, minus the cost of producing and marketing, and minus the return actually received. The damages awarded amounted to about $140 per year, and the period of the damage was three years. Additionally, there was damage in that the trees themselves were retarded in growth by the shade.

The Court concluded that the record furnished adequate support for the award made. Anyway, the Court said, Mendonsa was in the wrong, and thus he was not in any position to demand application of the technical rules governing awards of damages. Where a party has suffered damage, the Court held, a liberal rule should be applied in allowing a court or jury to determine the amount, and that, given proof of damage, uncertainty as to the exact amount is no reason for denying recovery.

As for the injunction, the Court held, in cases involving promises as to use of property, injunctive relief — depending upon inadequacy of damages — may be granted. A deal is a deal, the Court seemed to say, and where Mendonsa made the promise to keep the trees trimmed back and then violated it, the award of a perpetual injunction from maintaining any tree in excess of the agreed-upon height and from permitting branches to overhang was not an abuse of the trial court’s discretion.

It is, after all, the duty of the court to encourage the keeping of agreements properly made and to give adequate remedy for breach thereof when it occurs, particularly where breach is deliberate and wrong is willful.


Case of the Day – Monday, July 21, 2014


revveduplikeadeuce140721Hey, none of us really knew what the lyrics were to that great piece of mid ‘70s music by Manfred Mann’s Earth Band (written and first recorded by Bruce Springsteen). You know, Springsteen wrote the second line as “cut up like a deuce.” Not until Manfred Mann rewrote the line to be “revved up like a deuce,” did the mondegreen of the line famously become a reference to a feminine hygiene product.

Anyway, we digress. We’re really talking light and soybeans here.  Last weekend, the vigilent treeandneighborlawblog editors read a book review for a new tome on light pollution called The End of Night.”  It reminded us how soybeans like the dark, and the plight of Farmer Smalley.

Farmer Smalley raises soybeans in Wyandot County, Ohio. When the Ohio Department of Transportation installed high mast lighting at the US 30/US 23 interchange, Mr. Smalley’s soybeans would not flower and flourish under the bright nighttime lights. This is apparently not an unknown effect. He sued the DOT in the Ohio Court of Claims, seeking damages in a self-written complaint.

soybeans140721The Clerk heard the matter administratively, and concluded that the lights were not a nuisance, apparently because of the benefit such lights had for the motoring public. However, the loss of two acres of beans did constitute a constitutional “taking of property” for which he should be compensated. The damages were pretty meager for 2007: $512 plus his $25 filing fee.

Still, the Clerk did not dismiss out of hand the notion that light pollution could constitute a nuisance in some circumstances, those where the social benefit of the light was insignificant next to the interference caused the neighbor.

A few months later, the full Court of Claims reversed the judgment. It held that the Ohio constitution did not permit compensation for consequential damages to property, only for the actual taking of property. Because of that. Farmer Smalley’s loss was not compensable.

Even so, both the Court and the Clerk apparently accepted the notion that the light pollution damaged Smalley’s property. It was just that the damage, however real, could not be compensated.

lightpoll140721Smalley v. Ohio Dept. of Transp., 142 Ohio Misc.2d 27, 869 N.E.2d 777, 2007 -Ohio- 1932 (Ohio Ct.Cl., Mar. 15, 2007). Farmer Smalley has a soybean field next to a four-lane highway intersection. The Ohio Department of Transportation constructed high-mast lighting at the intersection in 2005, and since then, and Farmer Smalley’s soybeans failed to mature during the growing season. Smalley was forced to mow down two acres of failed crop, a failure he attributes to the lighting. He lost about 120 bushels of beans, which — at $6.00 a bushel — were worth $720.

Farmer Smalley sued the DOT in the Ohio Court of Claims. DOT admitted it had installed the mast lighting, which it said was intended to “safely illuminate the expressway.” DOT argued the installed lights “are the safest and most efficient lighting source given the traffic flow and lighting required at interchanges.” It admitted that light did “occasionally bleed onto adjacent property [and] there is little doubt that defendant’s light encroaches upon plaintiff’s property.” It argued, however, that it could not be held liable for any damage to plaintiff’s bean crop caused by its light encroachment. It also argued that Farmer Smalley’s cost to raising the beans was $256.47 an acre, reducing his net loss to $512.94.

Held: The Clerk of the Court held that the light pollution was not a nuisance. However, he found that the actual harm suffered by farmer was different in kind from harm suffered by general public, as required to establish a taking under “Takings Clause” of Ohio Constitution.

It appears that farmer Smalley filed his complaint himself, because DOT flailed about in its defense, as if it wasn’t sure where the farmer was going. It argued at length that its lighting was not a nuisance, because Smalley had offered no proof that DOT was negligent in erecting the lighting. It asked the Court to weigh the benefit that the high mast lighting gave to thousands of motorists against the harm the lights caused plaintiff in destroying two acres of his bean crop.

lights140721The Clerk sagely noted that DOT “… essentially proposed that plaintiff should have to bear a financial burden for his crop loss in a situation where he was legally using his land for a specific valuable purpose and the harm caused was attributable to the acts of DOT.”

He defined an absolute nuisance as a distinct civil wrong arising or resulting from the invasion of a legally protected interest, and consisting of an unreasonable interference with the use and enjoyment of the property of another. Such a nuisance was the doing of anything without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his or her legal rights, or the collecting and keeping on one’s premises of anything inherently dangerous or likely to do mischief, if it escapes, which, escaping, injures another in the enjoyment of his legal rights. A qualified nuisance, on the other hand, was distinguished from absolute nuisance as being dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm which, in due course, results in injury to another.

Considering the utility of the high mast lighting to the motoring public, the Clerk correctly concluded that the lighting was neither an absolute nor qualified nuisance. But that didn’t mean that Mr. Smalley was out of luck. Under the “Takings Clause,” any taking — whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises — entitles the owner to compensation. In order to establish a taking, a landowner must demonstrate a substantial or unreasonable interference with a property right, and such an interference may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises. Something more than loss of market value or loss of comfortable enjoyment of the property is needed, to constitute a taking under the “Takings Clause:” governmental activity must physically displace a person from space in which he was entitled to exercise dominion consistent with the rights of ownership. To constitute a taking actual harm suffered by the plaintiff must differ in kind rather than in degree from the general public.

Later, the full court reversed on different grounds, holding that the Ohio Constitution did not permit compensation for less than a full loss of land.

Nevertheless, the notion that light can constitute a nuisance and that a property owner suffering from light shining onto his or her land from another location, appears to be accepted.


Case of the Day – Friday, July 18, 2014


North Dakota - you can see the gas flares from outer space.

North Dakota – you can see the gas flares from outer space.

Well, campers, it’s been a great week here at treeandneighborlawblog exploring the law of encroachment. And who better to wrap it up than our friends on the North Dakota Supreme Court, here in camp for some R & R after an exhausting term?

North Dakota’s a pretty busy place, you know. It’s the No. 2 oil producer in the country, unemployment there is at a measly 2.6%, 18,000 more people moved there in 2013 than left … and the state’s got so much natural gas that it’s flaring $100 million in natural gas a month that it can’t use.

The natural resources we care about around here, however, are only underground to the extent of their root systems – root systems that, along with branches, can occasionally encroach on the neighbors. And that can be a real pain in the neck. Recently, our guest justices took time  from deciding mineral rights, liability for train derailments, mobile home park regulation and the like, to consider the law of tree encroachment. They did a bang-up job of summarizing the history, policy bases and goals of the various rules, before thoughtfully consigning the Massachusetts Rule’s proscription against lawsuits to what we here at treeandneighborlawblog call the “wood chipper of history.”

Back to the pain-in-the-neck tree.  Dr. Richard Herring knows something about pains in the neck. They’re his livelihood, as long as they’re found in his patients. But this chiropractor had to deal with another pain the neck, too. The property next door, on which sat an apartment building, had a large tree with branches that were overhanging Dr. Herring’s bone-crunching office. He fought back with self-help, trimming branches, cleaning up the debris that clogged his gutters, and raking up the mess the tree made every fall. But he couldn’t keep ahead. Finally, the branches damaged his building, and the debris created an ice dam on his roof that flooded the place.

pain-neck140211The absentee owners and hired managers at the apartment house next refused his entreaties to care for the tree. So he sued, claiming that they had a duty to manage the tree so it didn’t mess up his place. The trial court threw the suit out, telling the good doctor that he could trim the parts of the tree that were overhanging his place, but that was his only remedy.

“Wait,” you say, “that’s the Massachusetts Rule.” Right you are. But, as the North Dakota Supreme Court decided, there are other rules out there as well, including some that it thinks are a whole lot better than the doddering relic from Michalson v. Nutting. It reversed the trial court, holding that a tree owner does indeed have a duty to care for his or her trees so as to avoid damage to others.

In its thoughtful opinion, the Court wrote perhaps as fine a roundup on tree encroachment rules as has yet been written.

Herring v. Lisbon Partners Credit Fund, Ltd., 2012 N.D. 226, 823 N.W.2d 493 (Sup.Ct. N.D., 2012). Dr. Herring owned a commercial building in Lisbon housing his chiropractic practice. The apartment building next door is owned by Lisbon Partners and managed by Five Star. Branches from a large tree located on Lisbon Partners’ property overhang Herring’s property and brush against his building. For many years, Dr. Herring trimmed back the branches and cleaned out the leaves, twigs, and debris that would fall from the branches and clog his downspouts and gutters. He claimed that the encroaching branches caused water and ice dams to build up on his roof, and eventually caused water damage to the roof, walls, and fascia of his building. Herring contends that, after he had the damages repaired, he requested compensation from Lisbon Partners and Five Star but they denied responsibility for the damages.

Encroaching tree roots and branches can sometimes be unsightly

Encroaching tree roots and branches can sometimes be unsightly

Dr. Herring sued Lisbon Partners and Five Star for the cost to repair his building, claiming the companies had committed civil trespass and negligence, and maintained a nuisance by breaching their duty to maintain and trim the tree so that it did not cause damage to his property. The district court granted Lisbon Partners and Five Star’s motion for summary judgment, dismissing Herring’s claims. The court held Lisbon Partners and Five Star had no duty to trim or maintain the tree, and Herring’s remedy was limited to self-help. He could trim the branches back to the property line at his own expense, but that was it.

Held: The trial court’s dismissal was reversed, and Dr. Herring was given his day in court.

The North Dakota Supreme Court began its analysis by observing that the Massachusetts Rule was the original common law on tree law in the United States, holding that a landowner has no liability to neighboring landowners for damages caused by encroachment of branches or roots from his trees, and the neighboring landowner’s sole remedy is self-help: the injured neighbor may cut the intruding branches or roots back to the property line at his own expense. The basis for the Massachusetts Rule is that it is “wiser to leave the individual to protect himself, if harm results to him from the exercise of another’s right to use his own property in a reasonable way, than to subject that other to the annoyance and burden of lawsuits, which would likely be both countless and, in many instances, purely vexatious.

The Hawaii Rule, on the other hand, rejected the Massachusetts approach as overly simplistic. Instead, it held that the owner of a tree may be liable when encroaching branches or roots cause harm, or create imminent danger of causing harm, beyond merely casting shade or dropping leaves, flowers, or fruit. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.

The Restatement Rule, based upon the Restatement (Second) of Torts §§ 839-840 (1979), distinguishes between natural and artificial conditions on the land. Under the Restatement Rule, if the tree was planted or artificially maintained it may be considered a nuisance and its owner may be liable for resulting damages, but there is no liability for a naturally growing tree that encroaches upon neighboring property.

The Virginia Rule, adopted in 1939, makes a distinction between noxious and non-noxious trees. Under the old Virginia rule, a tree encroaching upon neighboring property will be considered a nuisance, and an action for damages can be brought, if it is a “noxious” tree and has inflicted a “sensible injury.”

The district court concluded that under N.D.C.C. § 47-01-12, Herring had a “right” to do as he wished with the overhanging branches and underlying roots of the tree, and therefore this portion of the tree was “just as much the responsibility of the adjacent landowner as it is the owner of the trunk.” In effect, the district court concluded that because Herring had the “right” to the branches above his property, he therefore had the responsibility to maintain them as well.

The state Supreme Court complained that the district court had essentially nullified N.D.C.C. § 47-01-17. That statute expressly provides that when the trunk of the tree is wholly upon the land of one owner, the tree “belong[s] exclusively to that owner.” The district court’s holding that Herring in effect owned the branches above his property was thus contrary to statute. Statutes must be construed as a whole and harmonized to give meaning to related statutes, and are to be interpreted in context to give meaning and effect to every word, phrase, and sentence. The interpretation adopted by the district court did not give meaning and effect to that portion of N.D.C.C. § 47-01-17 which provides that the owner of the tree’s trunk “exclusively” owns the entire tree.

Our thanks to the Supreme Court of North Dakota for its comprehensive opinion ...

Our thanks to the Supreme Court of North Dakota for its comprehensive opinion …

Contrary to the district court’s conclusion that the Massachusetts Rule was more consistent with North Dakota statutory law, the Supreme Court held that the Hawaii Rule more fully gives effect to both statutory provisions. The Hawaii Rule is expressly based upon the concept, embodied in N.D.C.C. § 47-01-17, that the owner of the trunk of a tree which is encroaching on neighboring property owns the entire tree, including the intruding branches and roots. And because the owner of the tree’s trunk is the owner of the tree, the Supreme Court thought he or she should bear some responsibility for the rest of the tree. The Court said “we think he is duty bound to take action to remove the danger before damage or further damage occurs.”

The Supreme Court also observed that “the Hawaii Rule is the most well-reasoned, fair, and practical of the four generally recognized rules. We first note that the Restatement and Virginia rules have each been adopted in very few jurisdictions, and have been widely criticized as being based upon arbitrary distinctions which are unworkable, vague, and difficult to apply … In fact, the Supreme Court of Virginia has … abandoned the [old] Virginia rule in favor of the Hawaii Rule [in] Fancher …”

The Court said the Massachusetts Rule fostered a "'law of the jungle' mentality" among landowners.

The Court said the Massachusetts Rule fostered a “‘law of the jungle’ mentality” among landowners.

The Court also complained that the Massachusetts Rule has been widely criticized as being “unsuited to modern urban and suburban life.” The Massachusetts Rule fosters a “law of the jungle” mentality, the Court said, because self-help effectively replaces the law of orderly judicial process as the only way to adjust the rights and responsibilities of disputing neighbors. The Court observed that while self-help may be sufficient “when a few branches have crossed the property line and can be easily pruned by the neighboring landowner himself, it is a woefully inadequate remedy when overhanging branches break windows, damage siding, or knock holes in a roof, or when invading roots clog sewer systems, damage retaining walls, or crumble a home’s foundation.”

Accordingly, the North Dakota Supreme Court held that “encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.” The rule does not prevent a landowner, at his or her own expense, from cutting away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.

Case of the Day – Thursday, July 17, 2014


Fast growing ... and messy as a 3-year old ...

Fast growing … and messy as a 3-year old …

Long before the Virginia Supreme Court’s decision in Fancher v. Fagella, a little-noticed New Mexico decision grappled with the problems caused by cottonwood trees. They can be majestic, and they were welcome enough to the pioneers that the cottonwood is the state tree of Kansas. But at the same time, there are some arborists (and more than a few homeowners) who label them as dangerous, messy and a tree that should “be removed from most residential property.

Mr. Fox had a cottonwood tree he loved dearly. His neighbors didn’t fall into the same category, however. They hated the constantly shedding tree with the invasive and prolific root system. Like the banyan tree in Whitesell v. Houlton, there was a lot about Mr. Fox’s cottonwood not to like.

A few days ago, we mentioned the time-honored legal maxim that “hard cases make bad law.” It bears repeating here. Like the Whitesell v. Houlton banyan tree, Mr. Fox’s cottonwood generated sufficient horror stories in the trial transcript to explain the trial court’s decision that Mr. Fox’s tree had to go. A more level-headed weighing of the competing property and societal interests was undertaken by the Court of Appeals.

It's beginning to look a lot like Christmas ...except it's June, and the cottonwood is shedding cotton like a plantation in a tornado.

It’s beginning to look a lot like Christmas … except it’s June, and the cottonwood is shedding cotton like a plantation in a tornado.

None of that changed the outcome for Mr. Fox. He had to pay damages, and Abbinetts were free to hack away at the tree’s root system to the full extent of the Massachusetts Rule. But for those of us who admire the process, the Court of Appeals’ thoughtful opinion was a breath of fresh air.

Abbinett v. Fox, 103 N.M. 80, 703 P.2d 177 (Ct.App. N.M. 1985). The Abbinetts and Fox formerly owned adjoining residences in Albuquerque. The Abbinetts sued, alleging that while Fox owned his place, roots from a large cottonwood tree on his property encroached onto their land and damaged a patio slab, cracked the sides of a swimming pool, broke a block wall and a portion of the foundation of their house, and clogged a sprinkler system.

The Abbinetts asked for an injunction against Fox. The trial court found against Fox for $2,500, but denied injunctive relief to force Fox to remove the tree roots. Instead, the Court entered an order authorizing the Abbinetts to utilize self-help to destroy or block the roots of the cottonwood trees from encroaching on their land.  The Foxes appealed the decision.

Cottonwoods are known for their intricate and aggressive root systems

Cottonwoods have intricate and aggressive root systems …

Held:   The New Mexico Court of Appeals grappled for the first time with the Massachusetts Rule, the Hawaii Rule and the Smith v. Holt-era Virginia Rule. Instead, it adopted a modification of all of these, finding that when overhanging branches or protruding roots of plants actually cause – or there is imminent danger of them causing – “sensible harm” to property other than plant life, the damaged or endangered neighbor may require owner of the tree to pay for damages and to cut back the endangering branches or roots. Such “sensible harm” has to be something more than merely casting shade or dropping leaves, flowers or fruit. In so doing, the New Mexico Court anticipated the Virginia Supreme Court’s Fancher v. Fagella holding by about 22 years.

The New Mexico Court also opined that it is duty of a landowner to use his property in a reasonable manner so as not to cause injury to adjoining property. This is the Hawaii Rule. And the landowner who suffers encroachment from the tree of another may — but is not required to — “abate it without resort to legal proceedings provided he can do so without causing breach of peace.” This, of course, is the heart of the Massachusetts Rule. The New Mexico Court called all of these holdings a “modified Virginia Rule,” as indeed it was.

The Court held that a trial court may grant both damages for already incurred injuries and injunctive relief to prevent future harm, where there is showing of irreparable injury for which there is no adequate remedy at law.