Case of the Day – Friday, September 19, 2014


A lone pine ... but not in Lone Pine, California.

A lone pine … but not in Thousand Oaks

Alert reader Sylvan Glade of Thousand Oaks, California, wrote us last week with a very good question. His inquiry is deceptively simple: “I have a 50 year old pine tree and it is now overhanging on the neighbor’s property,” Sylvan said. “He wants it trimmed back. I have refused. Can he legally trim my tree back?”

“Well, sure he can!” the rest of you readers say. After all, you’re fairly expert at the Massachusetts Rule. Normally we would agree. But this is California we’re talking about, so nothing’s simple.

We’ll answer Sylvan’s question over the next three days (actually five, because we don’t work on the weekends), looking at how common-law notions of self-help enshrined in Michalson v. Nutting, the grand-daddy of encroachment cases that gave use the Massachusetts Rule, are applied in California.

In today’s case, Bonde v. Bishop, Mr. Bishop had a big old white oak tree he loved as much as our reader is attached to his pine. But the oak was overhanging his neighbor’s place, and his neighbor wanted it trimmed back. Sound familiar? But Mr. Bishop’s oak had some problems. It shed branches quicker than the NFL can say “domestic violence.”   It had already taken out Mr Bonde’s fence, his garage and (very nearly) his head. Cleaning up after the tree was a daily chore, and the old tree was so dangerous that the Bondes wouldn’t leave their baby on the patio (probably generally a good idea, anyway).

The Bondes asked Mr. Bishop for permission to trim the tree, but he refused and threatened to sue if they so much as touched a single bough. So they sued Mr. Bishop first, asking the Court to declare the tree a nuisance and force him to remove it.

The Court agreed. California does indeed follow the Massachusetts Rule, which meant that the Bondes had the right to trim the tree’s branches overhanging their property. But here, the problem went beyond that. Mr. Bishop’s white oak was a nuisance under California law, the Court held, because of the pervasive damage it caused. The Court, perhaps reacting to the extent of the mess as well as Mr. Bishop’s intransigence, ruled that a tree owner is liable for damage — even insignificant damage — is caused to his neighbor.

So it would appear that our reader’s neighbor would have the right to trim the tree back to the property line. In fact, if the 50-year old pine is a persistent branch-shedder, it might be a nuisance, and our reader’s refusal to let the neighbor trim it could leave him in Mr. Bishop’s position: having to remove the offending branches himself.

But — and this is California, so there’s always an “on the other hand” — as we will see tomorrow, there are limits on what the neighbor can do, even on his own property.

The Bondes could no longer park their kid on the back patio, out of fear that a falling branch would bean him.  The infant was not amused ...

The Bondes could no longer park their kid on the back patio, out of fear that a falling branch would bean him. The bambino was not happy …

Bonde v. Bishop, 112 Cal.App.2d 1, 245 P.2d 617 (Ct.App. Div. 1, 1952). Some of the branches of Bishop’s white oak tree were overhanging Bonde’s property by 25 feet, about 40 feet off the ground. Early one September morning, a large limb broke loose from the tree, smashed through Bonde’s garage and destroyed a section of fence. Bishop said it was not his responsibility, and Bonde’s insurance paid for repair. The tree continually dropped smaller branches on Bonde’s roof, driveway and patio. One small branch almost hit Bondes while he was standing in the middle of his driveway. During the rainy season it became a two-hour job every Sunday to clear tree debris from the gutters and the drainspouts. The Bondes were afraid of the overhanging limbs, and stopped leaving their baby out in the patio.

The debris required the Bondes to sweep the patio and driveway daily and rake the lawn before mowing. They put screens on the gutters so they would not be required to clean them. When Mrs. Bonde told Mr. Bishop that the Bondes desired the tree cut back to their line, he not only refused but warned her that if they had it cut back and damaged the tree in any way, he would sue them. Nevertheless, after the limb fell Bishop had the foliage thinned out. Finally, Bonde sued Bishop, asking the trial court to declare that Bishop’s tree was a nuisance.

The court agreed, and ordered Bishop to abate the nuisance and awarded damages.

Mr. Bishop's white oak dropped branches with regularity.

Mr. Bishop’s white oak dropped branches with regularity.

Held: The Court agreed the tree was a nuisance, and ordered Bishop to abate the nuisance. The Court explained the rule in California generally is that to the extent that limbs or roots of a tree extend upon adjoining landowner’s property, the adjoining owner may remove them, but only to the property boundary line. Nevertheless, the remedy isn’t exclusive. An owner of a tree, the branches of which overhang adjoining property, is liable for damages caused by overhanging branches. The Court said that even insignificant damage is enough for the statute — might this include falling leaves in the fall, one wonders — because the significance of the damages goes to the amount the plaintiff can recover, not to whether the plaintiff has a case on which to sue to begin with.

But, the Court said, absent the tree being a nuisance, no landowner has a cause of action from the mere fact that branches overhang his premises. Instead, the adjoining landowner’s right to cut off the overhanging branches is a sufficient remedy, indeed, the only remedy. In order to obtain a court owner that the tree’s owner do something, an adjoining landowner must show that the tree is a nuisance under the nuisance statutes.

The Court observed sadly that “apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do.”



And Now The News …



EAB140919Chicago, WLS-TV, September 18, 2014: Emerald Ash Borer inoculation saves 5,000 trees

Ninety-three percent of the ash trees inoculated for the Emerald Ash Borer in 2011 and 2012 are still alive and well, according to the city of Chicago. The emerald ash borer is an exotic beetle that has killed tens of millions ash trees in southeastern Michigan alone. Trees are also dying in 21 other states, including Illinois. The Department of Streets and Sanitation inoculated 5,400 ash trees in 2011 and 2012. About 5,000 of those trees remain viable and accepted this year’s treatment, the mayor’s office said …

New York, New York Times, September 18, 2014: For trees under threat, flight may be the best response

The whitebark pine grows in the high, cold reaches of the Rocky and Sierra Mountains, and some individuals, wind-bent and tenacious, manage to thrive for more than a thousand years. Despite its hardiness, the species may not survive much longer. A lethal fungus is decimating the pines, as are voracious mountain pine beetles. Making matters worse, forest managers have suppressed the fires that are required to stimulate whitebark pine seedlings … Traditionally, conservation biologists have sought to protect endangered plants and animals where they live, creating refuges where species can be shielded from threats like hunting and pollution. But a refuge won’t help the whitebark pine, and so now scientists are pondering a simple but radical new idea: moving the trees to where they will be more comfortable in the future …

Queens, New York, The Sunnyside Post, September 18, 2014: New trees, tree guards and plantings coming to Sunnyside’s commercial district

Sunnyside’s commercial district is on its way to looking a whole lot greener. Sunnyside Shines is about to plant an additional 27 trees throughout the business improvement district to ensure that every street is covered. Rachel Thieme, the executive director of the BID, said that the district currently has 126 trees and after the planting there will be 153, which will line Queens Boulevard (38th to 50th Street), Greenpoint Avenue (42nd to Queens Boulevard) and nearby streets …

Kuala Lumpur, Malaysia, The Rakyat Post, September 19, 2014: Moroccan city outlaws olive trees

The town hall in Oujda, a city of half a million in northeast Morocco near the border with Algeria, has ordered the removal of olive trees from all areas, whether it be around private homes, on pavements or in public gardens. The pollen during the flowering season in the spring is “one of the main causes of seasonal respiratory allergies”, said the mayor, Omar Hijra, a professional pharmacist. He told the website Media 24 that olive trees accounted for as much as 90% of all trees planted in some areas. If the trees are not removed by Dec 31, the municipality will carry out the work and charge the home owner, he said …

Rochester, New York, Democrat & Chronicle, September 18, 2014: No plan yet from Irondequoit man who cut down trees

Nine months after illegally clear-cutting more than an acre of trees in an environmentally sensitive area bordering the Genesee River in Irondequoit, Al Gilbert has yet to submit a plan for how he’ll restore the land …

drought140918Sacramento, California, The Bee, September 18, 2014: Landscape experts say Caltrans water-saving projects could harm trees

Gov. Jerry Brown’s January order to cut state-government water use 20 percent rippled through the bureaucracy early this year as high-level officials rushed to find ways to conserve … At Caltrans, Director Malcolm Dougherty issued a Feb. 7 memo that, among other things, ordered a 50 percent reduction in water used on its vast inventory of irrigated-landscape freeway areas … In its effort to save water, however, Caltrans has approved new irrigation systems that arborists say are threatening the lives of mature trees on thousands of acres near California freeways, offramps and rest areas …

Science 2.0, September 17, 2014: Trees love climate change

Last decade, science faced an ecological puzzle: under hotter, drier conditions of global warming, forests should have been penalized but instead the rainforests thrived. It isn’t the first time – the climate change that caused the death of the dinosaurs gave them a big boost also.

 A new study in Nature Communications notes that trees have been growing significantly faster since the 1960s. The typical development phases of trees hasn’t changed but they have accelerated by as much as 70 percent, find researchers from Technische Universität München using long-term data from experimental forest plots that have been continuously observed since 1870 …

Sydney, Australia, Sydney Morning Herald, September 18, 2014: War on trees: time to kill old attitudes

Glen Turner, 51, was killed in active service, shot in the back in a dirt lane 55km north of Moree six weeks ago. Australia usually restricts its wars to other people’s turf. But it was war, nonetheless, of which environmental officer Turner was a casualty: the War on Trees. It’s not only the bush. Tree war is everywhere. Just when we need trees most – just when we darkly grasp the extent to which these woody creatures reverse our planetary delinquency – we focus our anger upon them. As though they’re the ones at fault; as though they reify our guilt …

Salem, Oregon, Salem Weekly, September 17, 2014: Neighbors object to “clear cutting” historic trees

Salem Hospital plans to cut more than forty trees on the 8.42-acre parcel it purchased in 2010 from the School for the Blind along Mission Street. Among the trees are nine several-hundred year old Oregon White Oaks which were once part of the ancient woodland that covered the area. The trees were growing before the first European settlers arrived in the 1800’s. Thus far, the City of Salem has approved the hospital’s plan to remove the trees and install in their place a 264-space parking lot, a rehab center and an enlarged a maintenance shed, by allowing a variance to city laws that protects the trees. A neighborhood association, however, wants the trees to live …

Entomology Today, September 17, 2014: Peeking at the playbook of Asian trees may help stop the Emerald Ash Borer

In just the last decade, the emerald ash borer (EAB) has killed tens of millions of ash trees in North America and is a growing threat to European ash. However, Asian ash species are not affected by the EAB. As a part of an effort to save the multi-billion dollar ash resources, scientists at The Ohio State University are launching a crowdfunded project to discover the genes that allow Asian ash trees to resist the insect …

Binghamton, New York, Press and Sun-Bulletin, September 17, 2014: Insects put region’s hemlock trees at risk

A growing infestation of an invasive insect species is putting hemlock trees around the region in danger. The hemlock woolly adelgid, an insect that feeds at the base of hemlock needles, was first detected in Broome County in 2011 and has since spread across much of the county’s southern portion, from Union to Windsor, according to the New York State Department of Environmental Conservation. If left untreated, most trees infested with the insect eventually die …

doral140917Miami, Florida, WSVN-TV, September 16, 2014: Doral Park residents hold meeting over view obstruction from trees

Residents living along a prestigious South Florida golf course owned by Donald Trump held a meeting Tuesday night regarding the placement of large trees, which obstruct the view of the golf course from their homes. Mayor Luigi Boria and Vice Mayor Christine Fraga attended the meeting along with many upset residents. Fraga believes the Trump Organization has done nothing illegal. “There is a code that represents what a hedge is. The Trump Organization has met their requirements …”

West Lebanon, New Hampshire, The Valley News, September 17, 2014: Fall is the right time for planting trees

There is disagreement among experts as to the best time to plant trees. Some like spring, saying roots have a longer time to get established before winter. Other say no, if you skip a week or two of watering in the heat of August, you can damage roots or even kill a tree. Fall is safer, they say, because the weather is cooler and often rainy. Experts explain that roots grow and extend in fall, even after leaf drop, right up to the time the ground freezes. That last argument makes sense to me, so I’m in the “plant trees in fall” camp …

Harbor Springs, Michigan, Harbor Light, September 17, 2014: Area resident finds family connection to redwoods; nurtures unique trees here in northern Michigan

To grow stands of 200-foot tall trees, with a lifetime of some 2,000 years, for generation upon generation to view in awe; this is the hope of Dr. Gustav Uhlich of Petoskey as he plants and gifts Dawn Redwoods– which populated the area some 2.5 million years ago– around the Northern Michigan. Uhlich’s story has a strong connection to the majestic trees that have found their way to soils around the world …

Ramona, California, The Sentinel, September 16, 2014: Beetle claims more oak trees in Ramona

The goldspotted oak borer (GSOB) continues to claim the lives of oak trees in Ramona. Latest casualties include two oak trees on the San Vicente Golf Course and a tree in the right-of-way on Archie Moore Road, south of Rancho De la Angel Road. Ramona Community Planning Group voted Sept. 4 to recommend to the county that the tree on Archie Moore be cut down as it is now considered a safety hazard …

Peoria, Illinois, Journal-Star, September 16, 2014: Dead and dying trees on the increase

The droughts of 2011 and 2012 continue to take a toll on tree health. Rhonda Ferree, Extension Educator in horticulture, says that trees can take three to five years to show symptoms from a severe event such as drought. Unfortunately trees under stress are less able to fight off insect and disease problems …

herbicide140916Reuters, September 15, 2014: Dupont to pay $1.85 million after herbicide injures trees

DuPont will pay a $1.85 million penalty to resolve allegations that the global chemical company did not properly disclose the risks of using one of its herbicides, leading to widespread damage to tree species through several U.S. states …

Decatur, Illinois, Herald-News, September 16, 2014: Beetle begins to lay waste to Macon County ash trees

Two years after its presence was first detected in Macon County, emerald ash borer continues to gnaw away at the city’s trees. In some areas, effects of the small metallic green beetle have been noticeable, said city forester Randy Callison. In others, the devastation caused by the invasive species could be several years away. But there is little question that it’s coming …

Redlands, California, Daily Facts, September 15, 2014: Tips for caring for native oak trees

One aspect that drew me to Redlands six years ago was its old trees — the Italian stone pines, the more-than-100-year-old eucalyptus tree and especially our majestic oaks. How lucky Redlands residents are to have so many trees that are older than any of us, having been planted or nurtured by our city’s earliest residents. It’s easy for me to get frustrated when they’re not properly pruned or cared for …

Melbourne, Florida, Florida Today, September 13, 2014: Residents upset about chopped down trees

Sturdy trees — like fences — make good neighbors, say residents along the Melbourne-Tillman Canal. So folks along the stretch of the canal just west of Babcock Street already pine for the solitude they lost when the water control district cut down a large stand of pines, oaks and other trees to clear the way for a maintenance path …

New York City, WCBS-TV, September 15, 2014: Multimillionaire movie star, U.S. Senator, want taxpayers to replace $2.5 million in Long Island trees lost to Sandy

Billy Crystal says Long Beach needs its trees back. The actor, along with Sen. Charles Schumer (D-N.Y.), called Monday for the federal government to foot the bill for replacing more than Long Island 2,500 trees lost in Superstorm Sandy …

drought140915Los Angeles, Los Angeles Times, September 13, 2014: Trees are undergoing stress in California’s continuing drought

While dutiful homeowners have been severely limiting — or ceasing — the watering of their lawns and gardens to comply with drought restrictions, one potential fallout is sometimes overlooked: the health of the residential tree canopy …

Louisville, Kentucky, Louisville Courier Journal, September 14, 2014: Whatever became of painted trees

Maybe you remember painted trees, or have seen photos. People would “paint” tree trunks white, generally from the ground up to as far as a child could reach. It was pretty common back to 1890, and quite likely long before. At one time, mostly from the 1940s through the mid-’60s, it seemed like nearly everyone painted their trees. In fact, I’m told if someone didn’t, they stood out as odd …

Southgate, Michigan, The News-Herald, Monday, September 15, 2014: Trees need regular maintenance to remain healthy

I believe that most of us tend to take our trees for granted. They provide shade in the summer and home to birds and other wildlife. Imagine a barren neighborhood without any trees whatsoever; not a pretty sight. We really don’t pay much attention to our trees until something goes wrong. In order to ensure healthy trees, they need regular maintenance just like any other plant …

Los Angeles, Los Angeles Times, September 8, 2014: San Diego homebuyers get an unwelcome feeling

A former “mom of the year,” unhappy that her family was unsuccessful in buying their dream home, embarked on a continuing battle to harass the new buyers into leaving. She faces felony charges as a result …

Tyler, Texas, Morning Telegraph, September 13, 2014: Potential property line, trees issue may disturb Garden of Peace area

Memorial trees planted at a local cemetery were inadvertently located on the wrong side of the property line. Now they are at risk of being destroyed for a construction project

kidder140912Vancouver, British Columbia, September 11, 2014: Burnaby mayor says lawsuit over trees not a tactic to block Kinder Morgan

The mayor of Burnaby, B.C., says his city’s lawsuit against Kinder Morgan over the removal of trees during work related to the Trans Mountain pipeline is not a legal tactic designed to stall — and ultimately stop — the project. But Mayor Derek Corrigan acknowledges his opposition to the proposed Trans Mountain expansion wouldn’t change if the company abandoned its plan to tunnel the pipeline through Burnaby Mountain, which is home to a treasured conservation area. The city filed a lawsuit this week in B.C. Supreme Court asking for an injunction to prevent the company from conducting any work that destroys trees or disrupts parkland …

San Diego, California, Reader, September 11, 2014: Coronado eucalyptus trees destined for doom

Kirby Watson has resided in the shade of the eucalyptus trees on Coronado Island’s E Avenue for over 45 years. She said she was devastated when she received a letter from the City of Coronado last week informing her that several of the trees on her block were destined for removal. Watson was saddened by the idea of losing the trees that she considered central to her neighborhood, but was more disturbed by the city’s handling of the issue. “I just got my letter on Saturday and here we are on a Wednesday,” Watson said on September 10. “The whole thing happened without any notice whatsoever …”

Wallingford, Connecticut, Patch, September 11, 2014: Trees on Center Street in Wallingford will come down as planned

Despite a public outcry against the town’s plan to cut down 38 trees along Center Street, Public Works Director Henry McCully has decided that things will proceed as planned. McCully, who is also the town’s tree warden, said he reviewed testimony from last week’s public hearing, which about 24 residents attended, and talked with some business owners before making the decision, according to the New Haven Register. Mayor William W. Dickinson Jr. agreed with McCully’s decision and told the Meriden Record-Journal that the trees, which were planted in the mid-1990s, are too large and removing them can improve the downtown area …

Jetson, September 11, 2014: Supercapacitors made of trees

Supercapacitors are high-power energy storage devices with far-reaching industrial applications, such as electronics, automobiles and aviation. However one of the main reasons why they have not been adopted more widely is the high cost and the difficulty of producing high-quality carbon electrodes needed to build them. But a team of scientists at Oregon State University has made a discovery that could change all that. They found a process by which cellulose heated in a furnace in the presence of ammonia can be turned into fundamental building blocks for supercapacitors. Cellulose is Earth’s most abundant organic polymer and one of the key components of trees. In other words, trees could one day be instrumental in creating high-tech energy storage devices …

Bryan Station, Texas, The Eagle, September 12, 2014: Use sheet metal to keep squirrels off pecan trees

If a pecan tree is free-standing, that is, not touching other trees, power lines, etc., you can put a sheet metal collar in place around its trunk to keep the critters from the pecans. Keep it loose so that it won’t girdle the tree over time …

Tucson, Arizona, Center for Biological Diversity, September 11, 2014: Press release: Litigation reins in misguided Army Corps program to cut trees from levees

Conservation groups today successfully ended their litigation against the U.S. Army Corps of Engineers after the Corps suspended its controversial program requiring removal of all trees and shrubs from levees and after Congress passed a new law requiring the Corps to comprehensively review its guidelines governing vegetation on levees. Friends of the River, the Center for Biological Diversity and Defenders of Wildlife dismissed their 2011 lawsuit in federal court that challenged the implementation of the Corps’ policy in California, on the basis that levee vegetation in California provides important habitat for endangered fish, birds and other wildlife, and its removal would reduce levee safety …


Nassau County, New York, Long Island Herald, September 10, 2014: The trees must go

The Village of Rockville Centre rustled up some trouble recently when it sent notices to residents requesting that they remove trees along roads that are going to be repaved. About four miles of roadway are scheduled to be resurfaced in the coming months as part of the village’s annual roadwork program. The Department of Public Works left letters in the mailboxes of some residents along those stretches of road, informing them that the trees could pose problems and should be removed. But some of the trees are healthy, and residents are angry that the village is trying to force their removal …, September 10, 2014: Space lasers could help scientists see carbon trees

Lasers, 3-D imagery and outer-space surveillance sounds like cutting room floor fodder of a scrapped Austin Powers film, but it’s all part of NASA’s latest effort to map the Earth’s forests and gain a better understanding on climate change. Dubbed Global Ecosystem Dynamics Investigation lidar, the laser instrument will be designed to hitch a ride aboard the International Space Station. Once aboard, it will pump out large-scale 3-D imagery of forests …

Lorain, Ohio, The Morning Journal, September 9, 2014: Sheffield council authorizes removal of nuisance pants from residences

Sheffield Village council unanimously passed an ordinance Sept. 8 authorizing the removal of nuisance or diseased trees, shrubs and landscaping from residences. The ordinance applies specifically to plants in the right of way that could pose a hazard to residents. With the passed ordinance, Sheffield Village is now applying this law to city streets to keep residents, trucks and city services safe, and keep the village out of liability, Hunter said. This means that plants are prohibited in the right of way or in the middle of tree lawns that can potentially block street views from driving turns and cause accidents …

Montreal, Quebec, September 10, 2014: Diversify when replacing ash trees, expert says

A local forest ecology expert is advising West Islanders to consider diversification if and when they opt to replace their ash trees threatened by an insect infestation. Jim Fyles, the department chair of Natural Resource Sciences at McGill University’s Macdonald campus in Ste-Anne-de-Bellevue, said there is a long list of possible replacement options in light of the emerald ash borer threat in the region …

Hagerstown, Maryland, WHAG-TV, September 10, 2014: Stephens City residents upset over appearance of trees in town

It has been the talk of the town; residents of Stephens City are embarrassed over how their community looks to the public. “They look bad,” said Elizabeth Fravel, a resident. Driving through town, the appearance of the trees are hard to ignore with many of them drooping down or sliced in the middle. According to Town Manager Mike Kehoe, the cable television company, Shentel, cut the trees down this past June without the town’s approval. “About two weeks later, I was on vacation. They came back, and the trees were pretty much cut horrendously in my opinion and we got a lot of complaints about the appearance,” said Kehoe. He said Shentel does not even provide service to Stephens City, something that has been making residents even more angry …

Coeur d’Alene, Idaho, Press, September 10, 2014: ‘I speak for the trees’

Linda Meyer likens what’s happening to her property to the Dr. Suess book “The Lorax.” “When they get done, I’m going to make a big sign that says: ‘The Grove of The Lifted Lorax,'” she said, pointing down her property line where hundreds of her Ponderosa Pine trees have been removed during the past couple of weeks.  Meyer’s husband, Bruce, said the trees are being removed legally for the most part, but the way it has been handled is causing a neighborhood dispute. When the Meyers purchased their house on Fernan Hill Road they knew their neighbors had a view easement. Now they are exercising their right to remove the Meyers’ trees …

yoda140910Albuquerque, New Mexico, The Republic, September 8, 2014: Yoda, a 650-year-old tree, succumbs to New Mexico’s latest drought

Yoda, a 7-foot-tall Douglas fir on the lava flows south of Grants, died this summer at the age of 650 or so. An icon for scientists studying the history of New Mexico’s climate, Yoda survived many a drought. But the tree couldn’t get through the latest one, said University of Tennessee professor Henri Grissino-Mayer …

Walworth County, Wisconsin, Gazette, September 10, 2014: Trees about to turn Wisconsin into color tour

Wisconsin’s trees are starting to paint hillsides, trails, shorelines, parks and backyards into an autumn kaleidoscope, and state forestry officials say if the weather cooperates it could be a spectacular fall color season. Unlike last year — when parts of Wisconsin saw scattered trees turning color prematurely and even drop their leaves in mid-August due to the dry summer — this year trees have enjoyed adequate rainfall and have grown beautiful and healthy foliage …

Newark, Ohio, Advocate, September 10, 2014: Nature does best job of planting trees

The Ohio Nature Conservancy planted 1,600 trees recently in the Big Darby Headquarters Nature Preserve. The Arbor Day Foundation mailed out packages of ten tiny trees, five different types, to members. Good news? Yes, but in the larger context of overall natural complexity, these token gestures pale against other activities …

Lansing, Michigan, WILX-TV, September 9, 2014: Tenants tired of trees falling on homes

RuthAnn Moore’s living room looks more like a construction site than the heart of her home. “I was shocked,” Moore said. “And I was scared.” She and her husband Dennis were home Friday night when a branch fell on their roof. They say this can’t be a permanent fix, right after an interview with RuthAnn, one of the pieces of wood holding up the roof fell when RuthAnn brushed past it. “Right now I don’t think my trailer’s a safe trailer to live in,” Moore said …

San Diego, California, KGTV, September 9, 2014: Several Coronado trees targeted for removal: City officials say risk is too great

The City of Coronado gave notice to homeowners on E Avenue saying that within a few weeks, four giant sugar gum eucalyptus trees which have stood for more than 40 years have to go. “It’s not a question of money, it’s about public safety,” said Blair King, Coronado’s city manager. After the city received a complaint, it hired a certified arborist to survey its eucalyptus trees and concluded that four of them on E Avenue were a huge liability for the city …

powerlines140909West Palm Beach, Florida, WPTV, September 8, 2014: 2 electrocuted while trimming palm trees

Authorities say two men died after being electrocuted while they were trimming palm trees in southwest Florida. Collier County Sheriff’s Office spokeswoman Michelle Batten says the men were electrocuted while landscaping Saturday near a Naples condominium. Batten says the men were working on a 30-foot aluminum ladder that slipped and hit a live power line …

St. Paul, Minnesota, Minnesota Daily, Sept. 9, 2014: Historic fertilizer could help trees, urban farms

For centuries, the indigenous communities of the Americas cut down and burned vegetation, using the remains to fertilize the soil underneath. Now, in locations around the Twin Cities, city leaders are working with a local Native American community and the University of Minnesota to test a modern application of the age-old technique …

The Examiner, September 5, 2014: How to support and protect growing trees from animals and the winter elements

Protect your trees during the winter from the cold, animals such as deer, voles, by wrapping or protecting a tree with a wrap, bark protector, tree guard or shelter. Don’t let the winter damage your trees this year: take steps to prevent damage and loss of trees in your yard …

San Antonio, Texas, Express-News, September 8, 2014: Shade trees for San Antonio

Shade trees are something that most of us just take for granted—if we have them. For those of us who have had them previously and don’t have them now, we really miss them. I even miss raking leaves (of course I’m more than a little weird sometimes.) Some of us “cuss” trees because we can’t get the grass to grow under them. Quit planting grass there! Get some plants that do grow in the shade. There are lots of them …

Auburn, Alabama, The Plainsman, September 8, 2014: New Toomer’s trees have officially taken root

Auburn University fans will now be able to honor Toomer’s Oaks in two new ways. A plan to pay tribute to the University’s history through sections of the fallen Toomer’s Trees has been approved and clones of the trees have been made available for purchase …

Happychicken140908The Poultry Site, September 8, 2014: Happy hens thrive under a million trees

Free range egg producers across Great Britain have planted more than one million trees to create a happy habitat for their hens. Chickens derive from jungle foul meaning they express their natural behaviour when provided with the shade and shelter offered by the trees. Birds will venture further into their range and live a stress-free life, which is good for the farmer and good for their hens. Over the past 10 years, the British Free Range Egg Producers Association’s 400 members have planted in excess of one million trees …

Climate Central, September 7, 2014: Time for trees to pack their trunks?

During the last two springs, contract planters for The Nature Conservancy have spread out through the pine, spruce and aspen forest of northeastern Minnesota. Wielding steel hoedads, they have planted almost 110,000 tree seedlings on public land. Usually foresters plant seedlings grown from seeds harvested nearby, on the assumption that local genotypes are best suited to local conditions. But these TNC workers were planting red and bur oak (which are uncommon in northern Minnesota) from seed sources more than 200 miles to the southwest, and white pine from as far away as the Lower Peninsula of Michigan, 400 miles to the southeast. TNC is anticipating a day soon — within the lifespan of a tree — when a changing climate may make the forest unsuitable for some tree species and varieties that now live there …

Phoenix, Arizona, Arizona Republic, September 7, 2014: Opinion – Improper maintenance another threat trees face

Most landscapers and tree trimmers in Arizona have not been trained in the proper methods of trimming. Trimming trees takes artistry, creativity, and concern for the shape and health of the tree …

Lancaster, Ohio, Eagle Gazette, September 6, 2014:  Mother Nature continues her assault on area trees

We’re receiving contact seemingly every day regarding the decline in appearance of many trees throughout the county. In fact, it’s been happening for a couple of years now, and it’s also happening all over the Midwest. Although several deciduous trees are suffering, it seems needled trees are getting hit the worst. In a nutshell, here’s what’s going on in nearly every case …

Colorado Springs, Colorado, Gazette, September 8, 2014: Chopping scorched Flying W trees a valuable experience for fire crews

Chainsaws roared and charred trees crashed on rain-moistened grass and brush at Flying W Ranch Sunday, as a team of firefighters began the daunting task of clearing nearly 1,600 acres of trees burned in the Waldo Canyon Fire. The mitigation project is a partnership between the Colorado Springs Fire Department and Flying W Ranch, which aims to give firefighters essential certification training and help the ranch clear the blackened trees that serve as stark reminders of the destructive 2012 wildfire …

mistletoe140905Stockton, California, Record, September 4, 2014: Stockton trees still suffering

As I drive around Stockton’s residential neighborhoods, I have noticed many dead or dying “Street Trees” heavily infested with mistletoe …, September 4, 2014: Planting bare root fruit trees in the landscape

Adding a fruit tree on your property allows you to harvest fresh pears, apples or cherries in coming years. Fruit trees are ornamental; producing beautiful spring blooms. Fall and winter is an appropriate time to plant bare root trees in many areas. Some trees will require a few years to produce fruit, depending on the maturity of the tree when planted, but it is worth the wait …

Morristown, New Jersey,, September 3, 2014: Trees loom as issue for proposed daycare center in Morristown

Last winter, traffic concerns trumped a daycare center proposed for Turtle Road in Morristown. Now, trees loom large for a similar application facing the zoning board tonight, Sept. 3, 2014. The Learning Experience wants to open a 10,000-square-foot franchise at the intersection of Normandy Parkway and Madison Ave, to serve 175 children who range from infants to pre-kindergarten age. A use variance is needed because the property, one of the last undeveloped tracts in Morristown, is zoned only for residential development …

Tyler, Texas, KLTV, September 4, 2014: Tyler resident struggles with dead trees damaging his property

For nearly three years one Tyler resident says he’s been forced to deal with damages caused by dying trees that aren’t his. Tree lines along Highway 64 are maintained by TxDOT. Limbs that fall from those trees have landed on top of local homeowner Terry Barrickman’s property, causing thousands of dollars in damage …

Hammond, Indiana, Times, September 4, 2014: Ash borer devastates 150 trees in Pulaski Park

There are 150 dead trees in Pulaski Park, devastated by the emerald ash borer, and they aren’t going anywhere soon. Mayor Thomas McDermott Jr., said they discovered the problem in the spring and with gaming and property tax revenues having plunged “it couldn’t have come at a worse time for us. We understand there’s a problem,” he said. “It’s not anybody’s fault but the ash borer …”

Washington, D.C., WTOP Radio, September 2, 2014: Danger signs can point to falling treestreefall140904

The holiday weekend got off to a tragic start when a tree in Woodbine, Maryland, fell on a 75-year-old man while he was grilling. He was killed; three of his grandchildren were injured. Howard County Fire and Rescue is investigating, but it appears that the tree was rotten and eventually gave way. WTOP’s Garden Editor Mike McGrath calls falling trees and tree limbs “one of the biggest dangers of being outdoors.” He says that they happen a lot more often than most people realize …

Grand Junction, Colorado, Free Press, September 3, 2014: Home & Garden: The many causes of oozing trees

The oozing of sap running down the trunk of a tree is called “fluxing.” Is it frothy flux, bacterial wet wood, pitch from the pinon pitch mass borer, alcoholic flux, the result of boring insects, a fungal root problem, or the result of stress?

Somerville, Massachusetts, Journal, September 3, 2014: Alderman consider placing of Somerville’s trees

Although Somerville is a tree city, people who don’t want trees planted near their houses shouldn’t be forced to accept them, according to city officials …

St. Albans, England, St. Albans and Harpenden Review, September 3, 2014: Destruction of trees on the Abbey Line described as ‘mere vandalism’

The destruction of trees on the Abbey Line has been described as “mere vandalism” by furious neighbors who believe they were not properly consulted. Network Rail carried out the vegetation maintenance from St Albans Abbey station to Park Street between August 9 and August 25. One resident said the works have caught everyone by surprise. “We were not told the full extent of the work and we were expecting shrubs and lower branches to be cut. Instead everything has gone. We were in total shock, which has now turned into anger. We feel misled …”

neighborsue140902Los Angeles, California, KCBS-TV, September 2, 2014: New neighbors sue couple over trees to gain view

A heartbroken couple had to have eight trees on their property cut down after their new neighbors successfully sued, claiming the trees were obstructing the view of the valley below. The trees, which were chainsawed down Tuesday, were the subject of a lawsuit by the recent residents, who said the trees obstructed the view from their new home. Leonie Whitehead, 87, and her husband, 89, have lived in their home in Temecula for over three decades and say the ordeal makes them sick. The neighbors sued both the Whiteheads and the neighborhood association, claiming the trees were in violation of HOA restrictions, which say trees cannot unduly impede views. The Whiteheads, who say they didn’t have the energy or the money to go to court, had no choice but to comply …

Little Rock, Arkansas,, September 2, 2014: Regional quarantine proposed to save ash trees from borer

The ash borer, accidentally imported in Michigan from Asia in 2002, has killed tens of millions of trees in 27 states and Canada and has now been found in six Arkansas counties: Clark, Hot Spring, Columbia, Dallas, Nevada and Ouachita. The Arkansas State Plant Board is proposing a quarantine on the movement of firewood, ash nursery stock and ash logs, sawed logs, pulpwood, mulch and compost in these six counties and 19 other surrounding counties to slow the spread of the ash borer …

Baltimore, Maryland, The Sun, September 2, 2014: Invasive trees sprout from Baltimore buildings

They appear in long-vacant buildings and carefully tended structures. Seeds dispersed by wind and birds take root, needing only water, sun and a pinch of soil. The trees are reminders that Baltimore was once a forest, and, if the trees had their way, would become one again. At least 13 grow from buildings in a four-block area on the west side of downtown. Among them are a pair of broad-leafed paulownia trees that lean from second-floor windows in vacant buildings in the 400 block of N. Howard St. Large and verdant, they appear almost to be mocking the scrawny saplings growing in sidewalk wells …

Seattle, Washington, KIRO-TV, September 2, 2014: Neighbors discover more trees slashed

Seaview neighbors have now counted at least 100 trees that were slashed inside Hutt Park in Edmonds. “I had an inkling that there was more that we hadn’t seen the extent of the damage the vandals have done,” said Laura Martin, who first reported at least 30 trees damaged to parks workers last Thursday. The vandals slashed the bark around the trees — that deprives them of key nutrients for survival. The damage is often fatal for the tree …

Activist turns from fighting big box stores to trees

Activist turns from fighting big box stores to fighting for trees

Springfield, Massachusetts, The Republican, September 1, 2014: Northampton rethinks oversight of its shade trees

Even as the city’s Tree Committee dies a more or less natural, tree-lovers are lobbying to replace it with a professional arborculturist. Enter Lilly Lombard. Lombard, the driving force behind new community gardens created in Florence, has turned her attention to trees. Lombard would like to see a new position at the DPW filled by someone who knows trees. To that end, she has been lobbying Mayor David J. Narkewicz,, co-authored an editorial with City Council President William Dwight and developed a slide show …

Durham, North Carolina, The Durham News, September 2, 2014: Power company has an idea to ease the pain of pruning city’s trees

More often than not, when Duke Energy cuts trees limbs back from its power lines, the neighborhood email lists light up with dismay and complaint about how little is left. There is, though, a way to make those periodic tree trims less drastic, according to Lee Pardue from Duke Energy and Brandon Hughson from the Rainbow Tree Care company in Minnesota. It’s called Cambistat, a chemical that slows the tree’s growth rate while stimulating the tree to grow more roots – resulting in a healthier tree that needs less trimming to keep out of Duke Energy’s cables …

Circle of Blue, September 1, 2014: More Trees Means Less Water for California’s Mountain Rivers

Scientists working in California’s Sierra Nevada mountain range have found a new reason to worry about water availability in the western United States as the planet warms – tree growth. Climate models predict that southwestern states will become drier in the coming decades and that mountain snowpack, an important natural water bank, will decline. But research published today points out that changes in vegetation will also play a significant role in determining future water supplies …

New York City, New York Times, September 2, 2014: Exploring a tree one cell at a time

Not every scientist would choose to spend a peaceful summer Sunday morning perched on a jittery scaffold 40 feet up a red oak tree, peering through a microscope to jab a leaf with a tiny glass needle filled with oil. But Michael Knoblauch, a plant cell biologist at Washington State University, is in the stretch run of a 20-year quest to prove a longstanding hypothesis about how nutrients are transported in plants. He is also running out of time: He’s nearing the end of a sabbatical year, much of which he has spent here at Harvard Forest, a 3,500-acre research plot in central Massachusetts …


Case of the Day – Thursday, September 18, 2014


drivethru140221 There are annoying neighbors and then there are annoying neighbors: but what to do about them? The house next to the Rileys was owned by a landlord who rented it to some dopers. But not just any dopers. This wasn’t the occasional boom box blasting the Grateful Dead at 2 a.m., or even the wafting smell of medical marijuana. Nope, the neighbors here were good capitalists, appearing to run a brisk retail operation, with traffic at all hours of the night and unsavory customers. Imagine a McDonald’s drive-thru window, but handing out nickel bags instead of Big Macs.

The traffic was accompanied by the screeching of tires, the occasional and casual vandalism toward the Rileys’ property, cursing and shouting, and the discharge of firearms. Someone even shot the Rileys’ dog.

Shooting the Rileys dog was just plain wrong.

Shooting the Rileys dog was just plain wrong.

Now we’ll put up with a lot, but we won’t put up with that. You shouldn’t shoot a dog. The Rileys felt the same. They complained in winter 1999, but nothing changed. The police raided the place, but all they found was some personal-use marijuana. The Rileys complained to landlord Richard Whybrew again. The Attorney General complained to Mr. Whybrew. Nothing happened. Mr. Whybrew said the tenants were paying their rent, so he wasn’t going to do anything. Apparently, he believed that money talks, and neighbors walk.

So the Rileys sued. The trial court threw out their claims that the landlord had maintained a nuisance and that the Rileys had suffered emotional distress. But the Court of Appeals reversed, holding that negligent infliction of emotional distress was part and parcel of a nuisance claim — getting around a Tennessee rule that the claim had to be supported by expert medical testimony — and that the Rileys had clearly made out a claim that Whybrew was maintaining a nuisance, with enough evidence in conflict with his denials to get to trial. As for the dope-peddling neighbors? They moved out when they were served with the Rileys’ lawsuit. After all, protecting your stash is what’s it all about.

Riley v. Whybrew, 185 S.W.3d 393 (Ct.App.Tenn. 2005). The Rileys lived in a house in a subdivision next to a house Richard Whybrew leased to the Parkers. Problems ensued.

nuisance140221 Shortly after the Parkers moved in, the Rileys began experiencing problems with their tenant neighbors. A high number of unknown persons would come to the Parkers’ house at all hours of the day and night, with horns honking, tires squealing and loud voices. They would drive up, engage in a brief conversation or transaction with a resident at the Parkers’ home, and leave after a few minutes. The Rileys overheard many conversations about the sale of drugs, as well as frequent profane and abusive language. On several occasions, firearms were discharged at the Parkers’ residence at various times during day and night. Some activities were directed toward the Rileys: chemicals were put in their gas tanks, a laser pointer was aimed at Timothy Riley, personal property was stolen from the Rileys’ home, and when the Rileys were seen by the Parkers or their visitors, they were taunted, cursed at or stared at menacingly. The Rileys’ dog was even shot by a visitor to the Parkers’ home.

A month later, the police conducted a raid on the Parkers’ residence, and Marina Parker was arrested for possession of marijuana. Despite the arrest, the disturbing activities at the Parkers’ home continued. As a result, the Rileys employed an attorney to notify Whybrew of the problems. In February 2000, the attorney sent Whybrew a letter informing him that his rental property was “being used for illegal activities, in violation of the housing and zoning codes, and probably in violation of the terms of [the] lease.” Later that month, Whybrew received a letter from the director of the Narcotics Prosecution Unit of the Office of the Shelby County Attorney General about the drug trafficking. The letter noted that the amount of controlled substance found at the Parkers’ home was not enough to compel Whybrew to evict the Parkers, but stated that Carter wanted Whybrew to be aware of the situation. A year later, the Rileys again complained to Whybrew, who said the Parkers had a lease and paid their rent on time, and he did not plan to take action against them.

The Rileys sued Whybrew, the Parkers, and ten “John or Jane Doe” defendants, seeking damages for infliction of emotional distress and asking for abatement of the nuisance. Whybrew asserted that the other defendants were the sole cause of any injuries suffered by the Rileys. Whybrew maintained that the Rileys failed to state a claim upon which relief could be granted and asked the trial court to dismiss the complaint. The trial court granted summary judgment to Whybrew.

The Rileys could have used this sign ...

The Rileys could have used this sign …

Held: The case was reinstated, and the Rileys were entitled to a trial. The Court of Appeals found that a material question of fact existed as to whether Whybrew negligently allowed the tenants’ illegal behavior to continue, and that issue precluded summary judgment against the Rileys on their nuisance claim. The Court agreed that even if Whybrew had had knowledge of his tenants’ illegal activities – including drug use, discharging firearms and harassment – his failure to stop the Parkers’ activities could only be characterized as negligence. Thus, as a matter of law, it could not constitute the intentional infliction of emotional distress.

However, the claim of negligent infliction of emotional distress was related to the claim of negligence for landlord’s failure to abate the nuisance caused by the Parkers’ illegal activities, and as such, the Rileys’ claim for damages for emotional distress was not a stand-alone claim, and could be heard even absent expert medical testimony as to their damages. Most importantly, the Court ruled, while Whybrew argued that there was no breach of any duty to the Rileys because there was no proof that he was aware of the Parkers’ illegal activities until February 2000 (and the Parkers moved from the residence after being served with this lawsuit two months later), it disagreed and held that the Rileys had established a genuine issue of material fact on the claims of maintaining a nuisance and negligent infliction of emotional distress, sufficient to withstand a motion for summary judgment.

The case went back to trial.


Case of the Day – Wednesday, September 17, 2014



aspirin140917Today’s case is the septic equivalent to the old doctor’s advice of “take two aspirin and call me in the morning.”

Mrs. Hubbell was a resident of Xenia, a small city in southeastern Ohio (Motto: One of America’s only cities to start with ‘x’”). One unfortunate day, Mrs. Hubbell discovered that ‘x’ didn’t just stand for “Xenia.” It stood for ‘x’crement, too.

When Mrs. Hubbell’s basement, bathroom and kitchen all started filling up with some pretty nasty effluent from the sewer line, she called the emergency help line the City of Xenia maintained for homeowners with such smelly problems. But it was the weekend, and the sewer department worker on duty wasn’t too keen on going out in the rain to check out her problem. He figured that it was just the rain backing things up, and if it were really bad, Mrs. Hubbell would call again.

Well, it was really bad, and Mrs. Hubbell did call again an hour later, to catalog all of the types of malodorous waste bubbling into rooms all over her house. That time, the worker did come. When he and his assistants pulled a manhole cover off the sewer main around the corner, a fountain of filth erupted and the liquid waste in the Hubbell home started draining away. It turned out that tree roots had jammed up the sewer main, and the City’s maintenance program hadn’t gotten around to clearing them away.

Mrs. Hubbell was unhappy at the Sewer Department’s lackadaisical response to her problem, so she sued. The City claimed it was immune under Ohio’s governmental immunity statute, because its inspection program was an exercise in discretion. True, the Court agreed, but there was nothing requiring any special expertise in the lazy worker’s refusal to respond when Mrs. Hubbell reported a problem. The problem, the Court said, is that almost everything required some discretion, and to accept the City’s argument meant that everything a governmental entity did would be immune.

Erupting effluvient ...

Erupting effluvient …

Here, the City had a kind of a contract with its residents. The City offered an emergency number, and the implied deal was that if a local taxpayer called, the City would respond. The worker’s decision to let the stink build — to be sure, it was a real problem worthy of his attention on a Sunday afternoon — could easily be negligence. The Court refused to deny Mrs. Hubbell her chance to prove that to a jury.

Hubbell v. Xenia, 175 Ohio App.3d 99, 885 N.E.2d 290 (Ct.App. Ohio 2008). Water and sewage began flowing into Mrs. Hubbell’s home through drains in a shower, a toilet, and a bathroom sink. Believing that the stinking problem was likely caused by a malfunction in the sewer system maintained by the City of Xenia. She called the City’s emergency services, and the call automatically transferred to the Xenia Police Department. The police paged an on-call sewer and waste maintenance worker, but he refused to do anything, suspecting that the problem was likely the result of heavy rainfall that day.

The sewage and dirty water continued to flow into Mrs. Hubbell’s home, and she desperately placed a second call for help several hours later. This time, the on-call worker decided to respond and investigate the problem, and a service crew was brought in.

Hubbell’s home is located at the intersection of Monroe and Home Avenues. The house is connected to the sewer main on Home Avenue, which in turn connects to the main on Monroe Avenue. The service crew examined the Home Avenue main line and found it was flowing freely, but when they removed the Monroe Avenue manhole cover, the back-up into Hubbell’s house promptly subsided. The crew removed tree roots that had invaded the main. Sewer Department officials conceded that the roots may have contributed to the blockage.

Hubbell sued, alleging that Xenia was negligent in maintaining and operating its sewer line because it failed to inspect the Monroe Street main, allowing the line to become obstructed and clogged by tree roots and collected refuse, causing the back-up into her home. She also said the sewer condition constituted a nuisance for which Xenia was liable. Xenia claimed it was immune from liability under the Political Subdivision and Tort Liability Act. The trial court refused to throw the case out, and Xenia appealed.

Held:  The City was not entitled to have the case dismissed without trial. Generally, the Court said, where a municipal corporation assumes the management and control of a sewer, it is required to exercise reasonable diligence and care to keep the system in repair and free from conditions which will cause damage to private property. The municipality’s failure to do so may make it liable for damages caused by its negligence.

However, a municipal corporation’s liability is nevertheless subject to the defense of governmental immunity provided by §2744.01 of the Ohio Revised Code, if any of the five exceptions or one of the defenses to immunity set out in the statute apply.

digging140917Here, the Court ruled, Xenia’s ongoing inspection and cleaning of its sewer lines was entitled to governmental immunity because the execution of the program involved judgment and discretion as to how extensive and in what manner the program would be executed. However, routine decisions requiring little judgment or discretion and which, instead, portray inadvertence, inattention, or neglect, are not covered by the statute’s grant of immunity.

The City maintenance worker’s decision not to respond to Mrs. Hubbell’s call regarding sewer back-up incident, due to his belief that her problem resulted from excess rainfall, wasn’t an act of judgment or discretion for which city was entitled to governmental immunity. Instead, the City’s contractual agreement with its residents to provide emergency services to those to whom it provided sewer services gave rise to duty to perform such emergency services with ordinary care.

When one undertakes a duty to perform an act, and another reasonably relies on that undertaking, the act must generally be performed with ordinary care. A genuine issue of material fact existed, the Court said, as to whether the City was negligent in its performance of its duty to provide emergency services to Mrs. Hubbell, and that matter could only be settled at trial.


Case of the Day – Tuesday, September 16, 2014


Potatotruck140220When land is conveyed from one party to another without any limitations whatsoever, the conveyance is done in “fee simple absolute,” or just “fee simple” for short. The conveyance usually says that the land is conveyed “unto the said party of the second part and its successors and assigns forever,” or words to that effect.

At the time the railroad came through a part of Idaho (think “Famous Potatoes” ) in the late 19th century, a lot of landowners thought they were conveying their land to the railroad in fee simple. But their deeds had not just the magic “fee simple” language, but also a “habendum clause.” A “habendum clause” is a clause in a deed that defines the extent of the interest being granted and any conditions affecting the grant.

Legal mumbo-jumbo?  Not when the facts changed.

Legal mumbo-jumbo? Not when the facts changed.

In the case of the Idaho deeds, the conveyance language transferred title to the railroad “to have and to hold all and singular the tenements, hereditaments and appurtenances as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever.” Yeah … yadda, yadda, yadda, how lawyers like to natter on and on … None of this gibberish seemed important for a century, during which time the trains puffed up and down the track. But when the rail line was torn up, suddenly the old documents became very interesting.

Under the National Trails System Act, the government can convert an old railroad right-of-way into a recreational trail without the rail line being deemed to be abandoned. That’s what happened in Idaho. But some of the landowners whose properties were transected by the abaondoned right-of-way, talked to a smart lawyer. She said, “these old documents aren’t deeds, they’re just easements for a railroad.” That was an important distinction – the easements weren’t for the benefit of some granola-munching hikers, but rather for rolling stock.

The Federal Court of Claims had a tough task. The Idaho Federal District Court had already ruled that such deeds were conveyances in fee simple, which meant that the owners who abutted the railroad had no means of reclaiming the land. The problem was that the interpretation of the deeds was a matter of Idaho law, and the Idaho Supreme Court had never reached the precise issue. The Court of Claims carefully parsed other Idaho decisions and decided that, based on its treatment of other cases, the Idaho Supreme Court would rule — if it had been asked to do so — that the references in the deeds to the “perpetual right of Way for said second party’s Rail Way Line” limited the purpose of the conveyance, and therefore made the deed a grant of a mere easement, not perpetual ownership.

With two federal courts disagreeing on what Idaho jurists would say if asked, it’s likely that the state courts themselves ultimately will have to resolve the issue by ruling definitively on the question.

Abandoned right-of-way

Abandoned right-of-way

Blendu v. United States, 79 Fed.Cl. 500 (2007). Owners of land abutting or traversing an abandoned railroad right-of-way contested the government’s using the right-of-way as a recreational trail pursuant to the National Trails System Act, claiming that the government’s action effected a taking of their property without just compensation in violation of the Fifth Amendment.

The predecessor landowners had deeded land to the railroad about a hundred years before, with deeds that contained language in the granting clauses that convey all estate, right, title and interest in the property to the railroad, but also contained habendum clauses “to have and to hold all and singular the tenements, hereditaments and appurtenances as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever.” Under the Act, the government could convert abandoned railroad rights-of-way to trails without the use constituting an abandonment of the right of way. However, Blendu and the plaintiff property owners argued that under their deeds, they had really just given easements – not a deed in fee simple – and the cessation of rail service did not permit the government to use the easement of a trail. They moved for summary judgment in the U.S. Court of Claims, and the government cross-moved for summary judgment, arguing that the deeds were a conveyance of the property in fee.

Held: Under Idaho law, a deed which contained a granting clause which quitclaimed certain real estate to the railroad and a habendum clause stating that railroad held the real estate “as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever,” the deed only conveyed an easement and not fee simple title.

The easement was for rolling stock, not for Birkenstocks.

The easement was for rolling stock, not for Birkenstocks.

The Court said that the use of the term “right of way” in the habendum clause unambiguously reflected an intention to convey an easement, overcoming Idaho’s statutory presumption in favor of a fee simple interest. The Court of Claims concluded the distinction between the granting clause and the habendum clause had not been made by the Supreme Court of Idaho, but the Court of Claims believed that the Idaho Supreme Court cases found the presence of the term “right of way” in any substantive part of the deed to be determinative. The deeds in this case contained the term “right of way” in the habendum clause, thus unambiguously reflecting an intention to convey an easement and overcoming Idaho’s statutory presumption in favor of a fee simple interest. As further evidence of the conveyance of an easement, the Court said, the deeds contained a designation for use of the right of way for the Railroad’s “railway line.”




Case of the Day – Monday, September 15, 2014


An arborist defendant's nightmare - the troop of Brownies your client's tree toppled onto.

An arborist defendant’s nightmare – the troop of Brownies your client’s tree toppled onto.

Arboriculture professionals pride themselves at being expert at what they do, which is – generally put – to manage trees. Management may be trimming, preservation, or in many cases, removal of trees. Often, how the tree is to be treated depends on the arborist’s expert opinion of the condition of the tree, and the threat (if any) that the tree poses to persons or property.

A lot can depend on the arborist’s opinion. If an examination of a tree misses a defect or disease, and the tree ends up falling on a troop of Brownies who happen by on the public sidewalk at just the wrong time, the unlucky arborist will end up with a lot of ‘splainin to do.

The U.S. Court of Appeals for the Seventh Circuit handed down a decision last week that involved not a single tree. Nevertheless, the decision should serve as a caution to arborists, landscapers and tree trimmers – not to mention those who hire them.

It seems that small-time grain handler ConAgra Foods, Inc. (September 12th market capitalization $13.73 billion) had a problem with a wheat pellet storage bin. Grain can be tricky stuff, generating a lot of dust as well as carbon monoxide. Both of these like to explode with little provocation. The technical people call it “deflagration,” more of a low-level snap and crackle than a high-level detonation “pop” – but to the man or woman on the street, it’s an fairly destructive bang.

ConAgra knew just what to do when one of its grain bins in Chester, Illinois, started heating up spontaneously. It called in an expert in “hot bins,” sort of a Red Adair of wheat silos. The company, West Side Salvage, went to work on the unstable grain bin, but only after a delay occasioned by contracting procedures and West Side’s other business commitments.

The delay proved the project’s undoing. West Side tried to salvage some of the wheat pellets in the bin, but removal of the grain let more oxygen into the bin, and the instability increased. West Side’s supervisor called firefighters to stand by, but while he awaited their arrival, he sent several workers for one of West Side’s subcontractors into the bin through a tunnel to retrieve tools. While they were doing so, the grain dust exploded, seriously injuring them.

Everyone knows that an owner is not responsible for the negligence of an independent contractor. Everyone also knows that the owner may be liable if it does not provide the independent contractor with a safe place to work. The district court agreed that ConAgra had done just that, and that West Side was negligent in sending the employees into the dangerously unstable grain bin. It smacked ConAgra and West Side jointly with $18 million in damages for negligence.

ConAgra appealed, arguing that it was not liable for any damages to the subcontractor employees, because West Side knew what it was getting into. Besides, its contract with West Side provided that west Side would indemnify ConAgra from any West Side negligence. West Side, anxious to have a company with ConAgra’s deep pockets around to share the $18 million, retorted that ConAgra failed to reveal material information to it about the unstable grain bin. Furthermore, West Side’s indemnification of ConAgra may have been written into the contract, but West Side had never signed the document.

Your customer hired you because you're an expert at  what you do.  You have to act like one.

Your customer hired you because you’re an expert at what you do. You have to act like one.  If something goes wrong, you’ll surely be judged like one.

The Seventh Circuit was baffled. The injured workers complained that ConAgra had provided them with a dangerous workplace? Of course it did, the Court said. The whole point of hiring a “hot bin” expert was that the bin was dangerous. The Court held that where an owner hires an independent contractor to remedy a dangerous situation, the owner would not be held liable if the feared disaster came to pass. Such a policy would only discourage people with serious or dangerous problems to hire experts to get them fixed.

The Court has just as little patience with West Side’s complaint that ConAgra had failed to disclose information to it about the grain bin’s condition. West Side didn’t exactly say that ConAgra had provided false information. In fact, it admitted that ConAgra adequately answered all of the questions it had put to its client. The problem, West Side argued, was that ConAgra had other information about the dangerous grain bin – specifically, temperature readings from earlier in the month – that it failed to volunteer.

The Court expressed incredulity at the claim. West Side was a self-professed expert in “hot bins.” ConAgra was not. An owner like ConAgra was entitled to assume that when an expert like West Side is hired, the expert will ask for all the information it deems important. In this case, ConAgra did not end up sharing liability with West Side simply because it didn’t answer questions that were never asked.

The Court seemed almost perplexed by West Side’s argument that it had never gotten around signing the contract with ConAgra, so it wasn’t bound by the provision that it indemnify ConAgra from damages resulting from its negligence. That hardly mattered, the Court said. West Side began the work, whether it signed the contract or not. That was enough to signify that it had accepted the contract terms.

So what’s the takeaway for arboriculture professionals? First, be sure the contract is completely negotiated and signed the way you want it. If you leave it for later but begin work now, a court may conclude you had accepted terms you thought were still being negotiated. Second, you’re an expert at what you do. Be certain to gather all of the information you need for the job. When the tree falls on that Brownie troop, you can’t hide behind the owner’s failure to give you information about the condition of the tree that you never asked for.

Jentz v. ConAgra Foods, Inc., Case No. 13-1505 (7th Cir. September 9, 2014). A grain bin in Chester, Illinois, exploded in April 2010, injuring three workers.  The month before, ConAgra Foods – the owner of the bin, which was part of a flour mill – discovered a burning smell coming from the storage vessel, which contained wheat pellets. ConAgra hired West Side, which claimed expertise in handling “hot bins.” When work began, West Side hired A&J Bin Cleaning to do some of the tasks. Two of the injured workers, John Jentz and Robert Schmidt, were employees of A&J. The third, Justin Becker, was employed by West Side itself.

ConAgra wanted to salvage as much of the grain as possible, but as pellets were removed from the top more oxygen reached wheat composting at the bin’s bottom. West Side decided to remove some grain via side tunnels. On April 27 West Side detected smoke coming from the bin. Its crew sprayed water on the pellets and used an air lance to try to discover the smoke’s source; the effort failed. Mel Flitsch, West Side’s foreman, told ConAgra to call the fire department. Waiting for firefighters to arrive, Flitsch sent Jentz and Becker into a tunnel, instructing them to remove tools that might impair firefighters’ access. While they were there, the explosion occurred. They were severely injured but survived. Schmidt, who was in an elevator nearby, also was injured, but less seriously.

A Federal district court jury awarded $180 million in damages against ConAgra Foods and West Side Salvage. ConAgra contended that liability rested on West Side, which it had hired to address problems in the bin. For its part, West Side did not contest liability to the workers but contended that it does not have to reimburse ConAgra for the cost of repairing the facility. The injured workers contend that both ConAgra and West Side must pay the full verdict.

The dust may just deflagrate and not really detonate - but it's mighty impressive nonetheless.

The dust may just deflagrate and not really detonate – but it’s mighty impressive nonetheless.

Held: The Court of Appeals held that ConAgra was not liable. Normally, the appellate panel said, employees of an independent contractor cannot obtain damages from the owner of the premises at which the contractor was working. The injured workers contended that ConAgra nevertheless was liable for failing to provide West Side with a safe place to work. ConAgra responded that of course the grain bin was unsafe — that’s why West Side had been hired to begin with. ConAgra relied on the principle that someone who engages an independent contractor to redress an unsafe condition is not liable when the feared event occurs.

The Court agreed, pointing out that Illinois law held that “in a case involving negligent rendition of a service [by an independent contractor] … a factfinder does not consider any plaintiff’s conduct that created the condition the service was employed to remedy.” Here, ConAgra may have delayed in hiring West Side (it rejected other companies for lack of liability insurance), and it may not have provided all of the information about the bin it had, but that does not matter. The evidence showed that West Side was hired to deal with a hot bin, and all liability therefore is on its account. Having hired a self‑proclaimed expert in hot bins, ConAgra was entitled to assume that West Side would ask for whatever information it needed. The Court said that “[p]eople who hire lawyers rely on them to ask for information material to the situation, and no court would hold a client liable to his lawyer for failing to reveal spontaneously something that the lawyer never asked about; similarly people who hire specialists in controlling the risks of grain storage are entitled to rely on them to know what matters and ask for the material information.”

Finally, ConAgra signed and tendered to West Side a contract containing a promise by West Side to indemnify ConAgra for any damage caused by West Side’s negligence. The jury concluded that West Side is liable under this promise, but West Side argued that it did not return a signed copy of the contract to ConAgra. It agreed to undertake the job, and set to work, but did not sign on the dotted line. The district judge thought this irrelevant, because performance usually is as good as a signature as a way to accept a proposed written contract. The Court of Appeals agreed. Knowing the proposed terms, West Side began the work. That was as good as a signature on the dotted line.


Case of the Day – Friday, September 12, 2014


clinton140912Back when George Stephanopoulos was a mere flack for President Bill Clinton, and not yet a respected television commentator for ABC, he defended his boss to a skeptical Larry King as having “kept all of the promises he intended to keep.”  The malefactors in today’s case apparently intended the same.

In order to get a zoning variance to add on to their newly-purchased estate in the tres chic village of Centre Island, New York (once home to Billy Joel and his $32.5 million shanty), the Comacks promised not to let the shrubs and trees obstruct anyone’s view of Oyster Bay. Believing their sincere pledge, the Village OK’d the proposal.

A few years later, the bushes were high and the trees were leafy, and the Comacks said something to the effect of, “Promise? What promise? Oh, that promise … It’s … uh … kind of unclear what we really intended to promise. Let’s just forget the whole thing.” Or something like that.

Sometimes, as nice as the trees may be, the view without them is even better.

Sometimes, as nice as the trees may be, the view without them is even better. (Editor’s note: this photo was not taken at the Comack’s – it is illustrative only)

The Village elders didn’t forget it, soreheads that they apparently were, and sued the Comacks. The trial court found for the Comacks, but the court of appeals reversed and required the Comacks to keep their word. The appellate judges apparently could figure out what the meaning of “is” was.

Incorporated Village of Centre Island v. Comack, 39 A.D.3d 712, 834 N.Y.S.2d 288 (N.Y.A.D. 2 Dept., 2007). In 1999 the Comacks purchased property in the village of Centre Island and sought a variance to maintain and enlarge the pre-existing, nonconforming home on the lot. Specifically, they sought to build a second story addition over the existing garage and to change the roof line. The proposed expansion and changes would have necessarily affected the neighboring properties’ existing views of the waters of Oyster Bay.  And, Centre Island being a ghetto of the fabulously well-to-do, unobstructed views of all that their wealth had enabled them to accumulate were rather important to the residents.

In consideration for the granting of the variance, the Comacks signed a “Declaration” that provided “[a]ll open views from points off the premises to Oyster Bay shall remain in their present unobstructed state … [n]o trees or major shrubs shall be planted on lots 85 and 86 with the exception of minor shrubs and bushes which if allowed to grow to full height would not impede the aforesaid open views. Any shrubs or plants which if allowed to grow to maturity would exceed three feet in height will require the approval of the village building inspector for compliance with the intent of the declaration …” 

Remember Johnny Nash?  Are you really that old?  Johnny obviously didn't live near the Comacks, or he would never have written the song.

Remember Johnny Nash? Are you really that old? Johnny obviously didn’t live near the Comacks, or he would never have written the song.

The variance was granted, but a few years later, shrubs and trees planted by the Comacks began obstructing neighbors’ views of the Bay. The Village sued. The trial court agreed with the Comacks that the “Declaration” was vague, and the case should be dismissed. The Village appealed.

Held: The trial court was wrong. It was the Village’s complaint that should be granted, not the Comack’s request that it be dismissed. Contrary to the trial court’s determination, the language of the “Declaration” and, in particular, the first provision thereof, was not “imprecise and vague” so as to render it unenforceable. Instead, the “Declaration” — read as a whole to determine its purpose and intent — is clear that the Comacks made a deal. In consideration for the granting of the variance, the Comacks agreed to maintain “[a]ll open views from points off the premises to Oyster Bay … in their present unobstructed state.”

Because there is no ambiguity, the “Declaration” must be enforced according to the plain meaning of its terms. The Court held that to the extent that certain shrubs and trees planted by the Comacks obstructed “open views from points off the premises to Oyster Bay,” these violate the “Declaration.” The Court sent the case back to the trial court to determine whether the Village was entitled to damages, and whether the Comacks should be ordered to cut down certain shrubs and trees from the subject property that obstructed “open views from points off the premises to Oyster Bay.”