Case of the Day – Friday, August 22, 2014

REALITY BITES

Sure, you can get your land contract out of a box, and save a few bucks.  Just ask Mr. Jackson how that's likely to work out for you ...

Sure, you can get your land contract out of a box, and save a few bucks. Just ask Mr. Jackson how that’s likely to work out for you …

Sometimes, reality bites. Not just the movie, but real life. It especially bites when the very steps a prudent man takes to protect himself become the evidence on which a court relies to put him in the jeopardy he sought to avoid.

So it was with Mr. Jackson. He sold some land by land installment contract (also known as contract for deed or installment sale agreement) to Mr. Smith. Pay attention, because land contracts have become much more popular in the last five years. A land installment contract lets a property owner safely sell land with seller financing. The buyer puts down a small (sometimes no) down payment, with an agreement to make monthly payments for a period of time until the purchase price has been paid. At that time, the seller (sometimes called the “vendor”) transfers the land to the buyer (called the “vendee”).

Land installment contracts usually aren’t very good deals, not because the terms are oppressive or one-sided, but because they represent transactions that are really financing of last resort. The vendees are often barely able to handle the payments and little more able to manage the rigors of home ownership. In our experience, many if not most land installment contracts result in evictions or foreclosure (depending on the state laws).

Perhaps because of the likelihood that the property will fall into disrepair or the vendee will default, many vendors want land contract documents that provide them with as much control over their properties as possible. This is understandable. What is less understandable is that sometimes, the more control a vendor reserves to himself or herself, the less safe he or she becomes.

In today’s case, the vendor understandably required the vendee to buy insurance on the place that named the vendor as a named insured. That made sense. After all, the vendee only had paid about 17% of the purchase price, meaning he didn’t have a very big stake in the place. But the vendor wanted to be sure the vendee did what he was supposed to, so the vendor drove by the place on a nearly daily basis, and he bought insurance for the place himself. The vendee reimbursed him, but the arrangement was at odds with what the contract required. Partly because the vendee knew how closely the vendor was watching the place, he checked with the vendor about alterations and modifications before he undertook them.

When a 10-year old boy riding a bike was struck and killed, the boy’s mother blamed obstruction in sight lines caused by untrimmed trees on the property. After a suitable period of mourning, she sued. She went after not only vendee Smith but after Mr. Jackson, too. He controlled the property, she claimed. The trial court disagreed and dismissed him from the suit.

The Court of Appeals reversed. The facts that the vendee had paid so little and Mr. Jackson had cared so much about the condition of the property — and especially because he had gotten his own insurance even though the agreement dictated that Smith would do so — suggested to the Court that there was a real question of fact as to whether Mr. Jackson had control of the premises and, therefore, might be to blame for the tree that had never been trimmed and which allegedly obscured the young boy’s view of oncoming traffic. The Court returned the case to the trial court for a jury’s consideration.

Poor Mr. Jackson. Normally, vendors aren’t liable for the conditions of premises they have conveyed pursuant to land installment contracts. But vendors want the best of both worlds, to have control over their property until they’re paid while not being liable for anything that goes wrong. Mr. Jackson was like that. He probably thought he was being very prudent in approving changes, in making sure insurance was in place, and in driving by like a stalker in Hollywood Hills. Instead, his caution only made the Court suspect that he had retained a lot more control than the typical vendor.

There’s a lesson here. If you sell pursuant to land contract, get a good lawyer to write as strong a contract as is prudent.  Then, enforce the contract. Stick to the deal.  If you want to deviate from its terms, sign a written amendment.  Don’t start “rewriting” the deal by your conduct.

There's no making light of the sad fact that a 10-year old boy died, the tragedy that set this lawsuit in motion.

There’s no making light of the sad fact that a 10-year old boy died, the tragedy that set this lawsuit in motion.

Scheible v. Jackson, 881 N.E.2d 1052 (Ct.App. Ind. 2008). Jackson sold a parcel to Smith under a land installment contract. Smith lived on the premises. In early 2005, Jackson received a certified notice from the City of Columbus about saplings growing on the property that had to be removed. Jackson gave the notice to Smith, who took care of the problem.

However, a mature tree on the property hung over the sidewalk, the tree lawn and a part of 7th Street’s westbound lane. Branches of the tree drooped quite low, touching or almost touching the grass. One summer day, Mrs. Scheible’s ten-year-old son, Travis, was riding his bicycle on the sidewalk along the north side of 7th Street. Just west of the tree, Travis started to cross the street. The leaves and branches of the tree obstructed his view. A motorist struck Travis’ bicycle, killing the boy.

Travis’ mother sued Jackson and Smith. She alleged Jackson and Smith both exercised control of the property and that they owed a duty to the traveling public to maintain the property in a reasonably safe condition. Jackson moved for summary judgment, arguing that he owed no duty of care to Travis. The trial court agreed. Mrs. Scheible appealed.

Held:   The Court reversed the dismissal of Jackson. The Court, noting that young Travis was not on the property when he was struck, admitted that as an initial matter, it appeared that a vendor is not liable for physical harm caused to others outside of the land by a natural condition of the land. However, the law was clear that a possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

The Court focused much more on control that it did on mere possession. The evidence — taken in a light most favoring Mrs. Scheible (which it must be when summary judgment is being considered) suggested that Jackson retained substantial control. Smith, who lived on the land and was buying it under land contract, had paid only a small portion — about 17% — of the total price. He testified he consulted with Jackson on major alterations, and discussed removal of the tree that allegedly obstructed Travis’ view before the tree was cut down, after the accident. The Court said it wasn’t clear whether Smith just advised Jackson or actually had to obtain his approval for alterations. To be sure, Jackson maintained a substantial interest in the property as well as a financial stake: he testified he drove by the property often.

Standards for sightlines at intersections are well established.  As a general rule, landowners do well to be aware of them.

Standards for sightlines at intersections are well established. As a general rule, landowners do well to be aware of them.

The Court held that where a person retains control of property, regardless of the contents of the land installment contract, liability may still attach. The Court said that “[o]ne who assumes the control and management of property cannot escape liability for injuries by showing a want of title in himself.” The fact of a land-sale contract, the Court said, is not itself dispositive as to the vendor’s non-liability.

What’s more, the fact that Jackson and Smith deviated from the precise terms of the contract bothered the Court. The contract terms provided Smith would carry insurance on the property, with the Jacksons and Smith being named as insureds. However, Jackson kept his existing insurance policies on the property in place. He paid the premiums and Smith reimbursed him. The Court held that this meant that Jackson’s use of the property was insured, but Smith — the person Jackson asserted to have been the only one with control of the property — had no coverage at all. The Court found it ironic that Jackson sought to avoid responsibility for the condition of the property, yet maintained two insurance policies on which he was the sole insured. Along with other elements of the case, the Court held, Jackson’s insuring himself to the exclusion of his vendee, Smith, supported the reasonable inference that Jackson controlled the property.

Summary judgment was reversed and the case was sent to trial.
TNLBGray

And Now The News …

Typewriter

 

fallingtree140822Detroit, Michigan, Detroit News, August 22, 2014: Inspect your trees for their danger potential

One of the great charms of older neighborhoods is the stately centennial trees that line the streets. But aging trees can become hazards if they are not cared for. Bob Polomski, Ph.D., from the Clemson University School of Agriculture, Forest and Environmental Science and a certified arborist, created the following checklist to teach homeowners how to examine their trees for defects that could cause damage or injury to property and humans along with those dreaded power outages …

AOL.com, August 20, 2014: “Give trees a chance …” – Teen takes to the trees in protest

“Those trees are beautiful but I didn’t go up for those trees, I went up there for this community and what this community is destined to be.” Chiara D’Angelo, 19, climbed 70 feet up a tree on Bainbridge Island in Washington state to protest plans for a shopping center that would require cutting down more than 800 trees. And her community is backing her up …

Salem, Oregon, Statesman-Journal, August 22, 2014: Water trees deeply now – wait for fall to fertilize

Soil and weather conditions, as well as the amount of competing grass around the tree, dictate how much water to give your new tree and how often. This year, with the heat, make sure you water all your trees and shrubs deeply this summer. In general, trees need the equivalent of 1 inch of rainfall per week from June through September …

The Economist, August 23, 2014: A clearing in the trees

In 1998 Fernando Henrique Cardoso, then Brazil’s president, said he would triple the area of the Amazonian forest set aside for posterity. At the time the ambition seemed vain: Brazil was losing 20,000 square kilometres (7,700 square miles) of forest a year. Now, less than 6,000 sq km of Brazil’s Amazonian forest is cleared each year. In May the government and a group of donors agreed to finance ARPA for 25 years. This matters because of Brazil’s size: with 5m sq km of jungle, it has almost as much as the next three countries put together. But it also matters for what it may signal: that the world could be near a turning point in the sorry story of tropical deforestation …

Appleton, Wisconsin, Post-Crescent, August 21, 2014: How to properly plant trees and shrubs

Fall is actually the best time of year to plant woody plants, for numerous reasons. However, how we plant them actually becomes more important than when. An improperly planted tree, no matter when it is done, eventually will succumb or show signs of trouble. Avoiding common planting mistakes is much more vital than worrying about when to get it in the ground …

Hampton Roads, Virginia, WTKR-TV, August 21, 2014: Neighbors can’t agree whether or not several trees should stay in their community

More than 200 willow oak trees in Suffolk – should they stay or should they go? Neighbors don’t seem to agree. “My trees really don’t give me any problems,” said Russell Bullock, resident of the Harbour View Community. “They’re there. I’d like to see them take them out before they grow too big,” said Gene Seward, who also lives in the community …

aussietree140821The Courier, Wentworth, Australia, August 21, 2014: Residents capture sad moment 10 trees in South Head Cemetery at Dover Heights were lopped by Waverley Council

Save Christison Park Action Group member and resident Ericka van Aalst took pictures of the trees being removed last week. Ms van Aalst said it had resulted in a loss of greenery for residents and animals. The trees were removed by Waverley Council, which manages the cemetery. A council spokesman said it decided in 2011 to remove the old trees because they were damaging the sandstone retaining wall …

Dallas Morning News, Dallas, Texas, August 20, 2014: Be careful not to overwater trees

A properly planted Chinese pistache tree shouldn’t need additional water more than weekly. If the leaves are yellowing on a new tree, you’re probably watering it too much …

Inter Press Service, Washington, D.C., August 20, 2014: U.S., Brazil nearing approval of genetically engineered trees

The U.S. and Brazilian governments are moving into the final stages of weighing approval for the commercialisation of genetically engineered eucalyptus trees, moves that would mark the first such permits anywhere in the world …

KCBS-TV, Los Angeles, August 20, 2014: Residents Of Downey neighborhood pine for 26 giant trees that had to come down

Residents of one Downey neighborhood are lamenting the fact that 26 giant pine trees had to come down. The trees, many planted more than six decades ago, are causing foundation damage in homes up and down Muller Street. Their over-sized roots are literally tearing up many sidewalks. On Wednesday, crews began cutting down and cutting away the trees …

KTLA-TV, Los Angeles, August 20, 2014: Be waterwise Wednesdays – Trees & the drought

Trees need extra help during drought conditions. Do not water near the trunk unless you’ve planted the tree within the last four or five years. Instead, water the area under the drip-line (edge of the branches) where the tree’s root system extends. Water slowly, this allows water to adhere to soil particles on its way down …

albizia140820KITV, Honolulu, August 19, 2014: Albizia trees: A menace

Officials with the US Forest Service, Hawaiian Electric Light Company as well as government officials and the Invasive Species Council met today to talk about the need to tackle the Albizia tree problem. “These trees are really a menace and we have to work together to get rid of them over time. It is expensive and people need to understand that government is not going to be able to get rid of every Albizia across the state. But we can start with those trees and those spans of trees that are causing the most harm to the electricity infrastructure, U.S. Sen. Brian Shatz said …”

CBS Moneywatch, August 19, 2014: Some trees face “extinction” threat

North America is at a crossroads when it comes to the future of its forests. Several new and devastating tree diseases are moving across the continent and, thanks to globalization, are also starting to crop up elsewhere around the world …

Los Angeles Times, August 19, 2014: Shorter fruit trees bred to cut farm labor costs

When it comes to growing peaches and nectarines, farmers are often encumbered by one of the most important tools of the trade: ladders. Setting-up and moving them to prune or harvest trees can consume half a worker’s day. Moreover, the contraptions are dangerous – one of the reasons why peach and nectarine growers pay 40% more for workers’ compensation insurance than grape growers. Now researchers at UC Davis are breeding a solution – miniaturized stone fruit trees that produce the same yield as traditional trees but take the ladder out of the equation …

National Geographic, August 19, 2014: Mystery solved – how snakes climb trees

When climbing a tree, a snake thinks ”safety first,” according to new research published Tuesday in Biology Letters. Instead of gripping the tree with just enough force to keep from sliding back down, snakes overcompensate and grip with a force that far exceeds what’s necessary. Researchers think that in doing this, snakes are choosing between getting up the tree more easily and decreasing their risk of falling …

grass140819Phys.org, August 18, 2014: Trees and shrubs invading critical grasslands

Half of the Earth’s land mass is made up of rangelands, which include grasslands and savannas, yet they are being transformed at an alarming rate. Woody plants, such as trees and shrubs, are moving in and taking over, leading to a loss of critical habitat and causing a drastic change in the ability of ecosystems to produce food—specifically meat …

Lincoln, Nebraska, Journal Star, August 16, 2014: Understanding chlorosis in trees

Many gardeners are familiar with chlorosis, a nutrient deficiency that affects the production of chlorophyll, the green pigment found in leaves. The symptoms are fairly easy to recognize: pale green to yellow leaves with green veins. Sometimes the edges of the leaves or spaces between the veins die and turn brown. The root cause of chlorosis is a deficiency of certain micronutrients, usually iron or manganese, but solving the problem is complicated because several factors are involved …

Park City, Utah, Record, August 15, 2014: Aspens threatening Park City’s history are now history

Trees that threatened a piece of Park City’s history are now history themselves. The Park City Museum hired a firm called Low Stump Tree Service to remove aspen trees that endangered the historic aerial tramway towers climbing a hillside close to the route of the Town Lift. The towers are among the most visible remaining relics of Park City’s silver-mining heyday given the location, which stretches from Park Avenue to the Park City Mountain Resort slopes …

Seattle, Washington, West Seattle Herald, August 18, 2014: Wondering what happened to trees along Fauntleroy Way

The trees along Fauntleroy Way, spanning the length of Fairmount Park were cut down last week causing many people to inquire with the Herald as to why. We got the definitive answer from Joelle Hammersted of Seattle Parks: “The trees were removed for hazard. The species and growth of the tree has made them unreliable.” They were pruned to mitigate hazards and slated for removal as part of the sidewalk replacement program in 2015 in cooperation with SDOT …

Tulsa, Oklahoma, World, August 18, 2014: TIST: Up with trees

Tulsa natives Ben Henneke and his wife Vanessa didn’t set out to change the world but they have, one village, one farmer, one tree, at a time …

Notice 140818Savannah, Georgia, Morning News, August 16, 2014: Savannah’s aging trees get ax

City trees are being removed at a good clip this year — 424 were taken down from January to June — but if you’re thinking that tally has risen because of a $9.5 million settlement in December between Savannah and a woman injured by a falling tree limb, you’re wrong, a city official said. While the department is safety-minded, he emphasized the cluster of tree removals has a more mundane explanation: Many of Savannah’s trees are getting old and decrepit at the same time …

Science World Report, August 17, 2014, What causes trees to grow tall? The link between height and climate.

How tall do trees grow and what causes them to go? That’s a good question and now, scientists have found that climate may be the main limiting factor when it comes to the height of trees. Both resource allocation and hydraulic limitation can play a role when it comes to tree growth. But many scientists have been puzzles when it comes to finding out which factor, or what combination, actually sets maximum tree height. They’ve also wondered how their relative importance varies in different parts of the world. That’s why researchers decided to look a bit more closely …

Milwaukee Journal Sentinel, August 16, 2014: Start-up Whole Trees LLC creates strength in lumber

Madison-based Whole Trees LLC harvests trees that are too small for stripping and sawing into lumber. The company then peels the bark, treats the logs to prevent fire and insect damage, paints them and takes other steps to convert the timber into beams and columns. That process creates building materials that are much stronger than conventional lumber, and match the strength of steel beams and columns, said Amelia Baxter, president of Whole Trees …

Sacramento, California, Bee, August 17, 2014: Viewpoint: More trees, better health

When the temperature heads into the triple digits here in the Sacramento Valley, people walk on the shady side of the street and park their cars under trees whenever possible. They know trees make life more comfortable, but do they know trees help make them healthier? Research connecting trees and human health was almost nonexistent before 2000 and has increased dramatically since – and the findings are remarkable …

New York Daily News, August 17, 2014: City pruning wrong trees, wasting tax dollars, report says

The city’s pruning program has been barking up the wrong trees, a new audit shows. Controller Scott Stringer’s office found that contractors hired by the Parks Department were pruning some trees that didn’t need to be cut back — and didn’t prune other trees at all. “I don’t have to go out on a limb to tell you that our city’s performance is unacceptable,” Stringer said Sunday. “Tax dollars are wasted, property is damaged, and worse, people are injured and sometimes even killed when trees are not properly cared for …”

rot140815Rhinelander, Wisconsin, Lakeland Times, August 14, 2014: Troublesome Torpy trees cut down

Minocqua’s public works department on Wednesday cut down five potentially hazardous trees in Torpy Park. At least two trees showed signs of decay when they were cut down. A swarm of black ants could be seen scurrying on the stumps and ends of the tree trunks. Parts of tree cores were also rotten …

Chicago Tribune, August 14, 2014: Replacing trees in Wheaton could cost $1.2 million

It may cost the city of Wheaton more than $1.2 million to restock its parkway trees, an impact of the emerald ash borer infestations in the area. That’s on top of another estimated $855,000 over the next fiscal year to remove more ash trees, city officials said …

Slate.com, August 14, 2014: Studies link forest with upper respiratory illness

Several studies have suggested that tree-filled settings can reduce stress or boost mental health. Now, new research is going further: Late last month, a study published in the journal Environmental Pollution suggested trees prevent 850 deaths a year and save billions in health care costs. And that isn’t even the starkest link the U.S. Forest Service has made between trees and human health …

San Francisco Chronicle, August 14, 2014: Vandals tearing up trees in Golden Gate Park

There are no witnesses. There is no surveillance video. There are no fingerprints. And the victims definitely can’t tell police what happened. Vandals have been tearing up trees and smashing property in Golden Gate Park, a recurring issue that San Francisco police say has no easy solution. Police documented three attacks by vandals last weekend – two reports of damaged benches and trees at the AIDS Memorial Grove and one report of a city parks department truck getting its windows smashed …

Reuters, August 14, 2014: Plan to sell burned California trees sends sparks flying

Long, heavy logging trucks, swaying with the weight of charred California pines, wind through the forest near Yosemite National Park, part of an effort to clean up from last year’s devastating wildfires even as new blazes break out this summer. But as the U.S. Forest Service prepares to release plans this month for selling thousands of the burned trees to logging companies, conflict is brewing with residents who say the trucks are dangerous and environmentalists who fear the project is just an excuse for making money …

elm140814Seattle, Washington, Times, August 13, 2014: A fight for urban trees: Seattle’s wealthier neighborhoods leafier

The benefits of trees — from their grace and beauty to their gifts of cool, clean air and stress relief — are well-known and documented in study after study. Yet as the city grows, it is struggling to hold onto its trees, especially in poorer areas. Trees can increase property value, benefit the environment and even lift people’s mood and improve human health. Yet lower-income neighborhoods in Seattle tend to have fewer trees …

My Suburban Life, Downer’s Grove, Illinois, August 13, 2014: La Grange Park continues to work on diseased trees

At the end of July, La Grange Park’s Public Works Director Brendan McLaughlin removed a sign on a local elm tree which stated, “Please Don’t Cut Me Down. I am the most beautiful and tallest tree in all of La Grange Park.”  The sign was posted on an elm tree located on Woodlawn and Dover avenues, according to Public Works receptionist Becky Srejma.  According to Srejma, the resident whose tree was fliered told the department they have no issue with the tree being taken down, as it has Dutch elm disease and it is deteriorating quickly. “The last thing [the village] wants to do is cut down a tree,” she said. About 20 or 30 years ago, when La Grange Park experienced an outbreak of trees with Dutch elm disease, the village replaced most of them with ash trees, according to Srejma. Now the village is dealing with those trees, again, and the plague of the emerald ash borer …

KOVR-TV, Sacramento, Californbia, August 13, 2014: Cutting back on drought watering could bring death to your trees

California’s drought is creating the real threat that trees could lose their limbs and come crashing down.  If you’ve stopped watering your lawn, you may be killing your trees. While lawns are easy to replace, trees take years to go …

Manila, Phillipine Daily Inquirer, August 14, 2014: Destruction of coconut trees affecting Philippine cuisine

Walking through the pathway going toward San Pablo, Laguna’s Lake Pandin, our guide pointed to the sparse coconut trees around us. He blamed the coco lumber business for the decreasing number of trees in a province otherwise known as coconut country. With a sigh, he added that absentee landlords don’t seem to care at all. Our hosts said Quezon province now has more coconut trees than Laguna. But both provinces are really in danger of not having any coconut trees left. It has been reported that a scale insect identified as Aspidiotus rigidus has been killing the trees by blocking the leaves’ openings so the tree cannot produce the food it needs. The problem hit home when the man who delivers buko (young coconut) every other day said he wouldn’t be coming for three weeks. I thought he was on vacation but at the wet market last week, there was also no buko to buy …

coconutbeetle140813KHON-TV, Honolulu, August 12, 2014: Navy removes trees destroyed by coconut rhino beetles

Dozens of damaged trees on Oahu are being cut down Wednesday because of an invasive pest known as the coconut rhinoceros beetle. Navy officials will start removing as many as 170 trees from Mamala Bay Golf Course at Hickam Air Force Base on Wednesday …

KTBC-TV, Austin, Texas, August 12, 2014: Dead trees in Bastrop pose hazard

The Bastrop Wildfire has left plenty of dead and dying trees. Some residents say they’re becoming road hazards. The brittle trunks gave way due to the drought and recent storms blowing into the area. Organizations are working together with city and county agencies to remove dangerous trees. It’s just that the trees outnumber the manpower …

Hopkinton, Massachusetts, Crier, August 13, 2014: Holliston criticizes solar company for cutting trees by trail

Charles Rail Trail near Hopping Brook Road last month were in for a surprise: The normally tree-shaded area was completely bare to make room for a neighboring solar farm. Solect Energy, a Hopkinton solar energy company, is building a solar farm on Hopping Brook Road on a property that borders part of the Upper Charles Rail Trail. According to the Rail Trail Committee – which oversees the town’s portion of the trail – GLM Engineering of Holliston set up markers to protect trees and wetlands surrounding the property …

KRQE-TV, Albuquerque, New Mexico, August 12, 2014: Bagworm swarm chews up ABQ trees

Fall came early to Kit Carson Park this year. A whole row of sycamore trees lining an edge of the park stand bare or browning, looking like they’re in rough shape. The ground is littered with dead leaves, many chewed up. If you know what to look for, the culprit isn’t hard to spot. It’s hanging from silk threads, tree bark, fences, garbage cans, fencing and even speed limit signs in the park. A pesky pest known as a bagworm is responsible, a kind of caterpillar that feasts on tree leaves and then uses them as part of a protective cocoon. This year, there are more bugs than usual …

WCBS News Radio, New York City, August 12, 2014: Nearly 200 oak trees being removed in Seaford

Nearly 200 old oak trees are being chopped down along a mile-and-a-half stretch of Seamans Neck Road in Seaford, upsetting many residents. County officials say the trees have damaged the sidewalks beyond repair, posing a pedestrian hazard. The oaks need to be removed so new sidewalks can be built, officials said …

hottree140812Bend, Oregon, Bulletin, August 12, 2014: Are your trees too hot?

The dog days of summer are here. We still have plenty of time to spend enjoying the lush foliage in our yards, but with the weather report calling for higher temperatures, extra care needs to be given to our trees. Summer temperatures can be hard on trees, especially landscape trees in urban areas …

Rhinelander, Wisconsin, The Lakeland Times, August 11, 2014: Problematic Torpy trees to be removed from Minocqua park this week

A town crew will remove five trees in the park during the week of August 11. Experts have determined that the trees are in a state of decline and pose a risk to public safety. Minocqua had considered contracting the entire tree removal process to a private firm, but determined town workers could manage parts of the job. “We’ve got the equipment, we’ve got the manpower,” an official said. “We’re actually going to take (the trees) down ourselves …”

KTBS-TV, Shreveport, Louisiana, August 11, 2014: An insect infestation threatens Ark La Tex Crape Myrtle trees

Area Crape Myrtle trees are under attack from a condition known as “Bark Scale,” which is really a small insect. It probably infected our trees when transplanted trees were brought to our area. Ricky Kilpatrick of the LSU Ag Center tells KTBS “The Crape Myrtle Bark Scale showed up several years ago in the Dallas area. A couple of years later it showed up here. Which has been about 4 years ago when it showed up here in the Shreveport Bossier area and it has exploded since then … “

St. Louis Post-Dispatch, August 11, 2014: Cold winter may be cause of apple trees with no apples

The most likely reason why apple trees are not bearing fruit this year was cold weather injury that occurred when temperatures dropped well below zero this past winter. As long as the trees remain healthy and they receive enough sun, they will bear again …

Everett, Washington, Tribune, August 12, 2014: Mayor directs staff to preserve trees during cleanup


Everett Mayor Ray Stephanson has directed city parks staff to halt the planned removal of about 80 trees at American Legion Memorial Park. 
“After a lot of careful consideration and heartfelt conversations with park neighbors, I’ve asked our staff to work with the Department of Ecology to preserve the Legion Park trees during the upcoming arsenic cleanup,” the Mayor said …

aspens140811Idaho Falls, Idaho, Statesman, August 11, 2014: Aspen trees disappearing across West

Groves of aspen are unmistakable in East Idaho. But the most widespread tree in North America is disappearing. East Idaho’s aspen community, once estimated to cover 40 percent of the region’s forested areas, has declined by an estimated 60 percent in the past 100 years, while Arizona has seen a 90 percent decline during that time, said Aren Eddingsaas, chairman of the science and technology committee for the Eastern Idaho Aspen Working Group …

Albany, Georgia, Herald, August 8, 2014: City of Albany has trees removed to protect power lines

The tree removal is the start of a new combined effort between the electric utility, the City of Albany, the Georgia Department of Transportation (GDOT) and Keep Albany Dougherty Beautiful (KADB) to identify and remove troublesome trees that can adversely affect safety and then replace the trees with new, easier to maintain foliage. “It’s just so dangerous having those old trees growing into the power lines,” said Albany Mayor Dorothy Hubbard. “We can’t predict the weather and if these trees or limbs came down in a storm it could create an emergency situation.” Mindful of those who would be concerned about how trees being cut down could affect the aesthetics of the city, Hubbard said new trees would be planted that would be easier to maintain and still add beauty to the street …

Kelowna, British Columbia, Capital News, August 10, 2014: Different trees create different types of shade

Trees are the largest, and generally longest-lived plant in any landscape. They need to be placed carefully so they can grow to mature size. It’s important to place them an adequate distance from buildings and walkways. They also need to be able to grow to full height without running into power lines, clothes lines or obscuring a desirable view. Trees planted in the wrong place may require costly pruning to keep them within space limitations. Often this destroys the look and the health of the tree …

mlive.com, Bay City, Michigan, August 8, 2014: Trees already changing color: Is Mother Nature sending us a message?

Some trees in northern Michigan are already starting to show patches of fall color. Is that a message from Mother Nature that Old Man Winter may be arriving early this year? Probably not. An isolated tree here and there is not an extremely alarming sign. A local arborist said that if an entire hillside was starting to change color, he would consider it very abnormal right now. But currently most of the sightings of fall color are single trees sticking out visually in mostly green stands of trees …

Los Angeles Times, August 9, 2014: Improvised devices help water drought-stricken L.A. trees

Los Angeles officials and environmentalists have begun deploying emergency low-tech watering devices to try to save trees in desperate need of water during the drought. The improvised contraptions, called drought response irrigation pods or “irricades,” are made with hollow, plastic traffic barriers and filled with recycled water that slowly trickles into the soil through attached soaker hoses …

Muncie, Indiana, Star-Press, August 8, 2014: Expert: Walgreens, CVS stub and starve trees

It looks more like a landscape war than a pharmacy war between Walgreens and CVS at the intersection of Jackson Street and Tillotson Avenue. And the wounds are self-inflicted. The city’s landscape ordinance required both pharmacies at the time they were built to install trees and other plants along the street. But CVS has neglected its landscape to the point that its trees along Tillotson are dead. Meanwhile, Walgreens again has topped its trees into stubs with little or no green left …

Phys.org, August 11, 2014: Drought could reverse drop in Nevada tree beetles

Scientists say there’s been a significant reduction in the amount of Nevada forest under assault from bark beetles and similar bugs, but they fear lingering drought will further weaken trees and make them more susceptible to future attacks …

Spruce140808Detroit, Michigan, News, August 8, 2014: Spruce trees under siege in lower Michigan

“What’s wrong with my blue spruce?” is the lament of homeowners throughout Michigan. The U.S. Forest Service Christmas Tree Pest Manual lists 20 pest problems on blue spruce, and that’s just for starters. According to research by the Plant Pathology Department at Michigan State University, all species of spruce trees, including the beloved Colorado blue, are experiencing a decline throughout Michigan’s lower peninsula. According to Michigan State University’s records, the needle cast and branch dieback that began about seven years ago have reached epidemic proportions.  The canker diseases are the most problematic. Research shows fungicides are generally ineffective, so the only treatment is removal of infected branches along with improved circulation and tree vigor …

Ogden, Utah, Standard Examiner, August 8, 2014: Homeowner upset over downing of Kaysville trees

The over-the-backyard-fence forest area Kerry Robinson has lived next to for 12 years came falling down on Wednesday, much to his chagrin. But Kaysville city officials defend the project, saying it was the trees or the city’s culinary water supply …

Joliet, Illinois, Herald News, August 8, 2014: Will Co. replaces infected ash trees

Residents in Will County are seeing massive changes in their municipal treescapes as villages and cities compete for the best ways to remove and replace ash trees infested with the emerald ash borer beetle. The beetle has spread to most communities in Will County. And while each municipality is different in its approach to the ash infestation problem, they will all be vying for the best trees from local and out-of-area nurseries …

Hartford, Connecticut, Courant, August 8, 2014: The stately trees of Middletown’s Indian Hill Cemetery

Indian Hill is one of the most picturesque cemeteries in the state. A product of the “America Beautiful” movement – promoting “rural environment and serene landscaping for public places” – the cemetery attracts young and old with its serenity and natural beauty. Like many cemeteries, college and university campuses and old estates, Indian Hill is full of old trees …

measuring140807Durango, Colorado, Herald, August 6, 2014: Trees have age-old answers

The first old-growth forest conference to be held in Southwest Colorado brought to Fort Lewis College this week foresters, climate researchers, tree-ring and ancenstral Puebloan experts, silviculturists and just plain folks who like to measure trees and climb trees for fun. A common interest – the preservation of old-growth forests that are threatened today by wildfires, droughts and insect infestations – unify them …

Detroit, Michigan, News, August 7, 2014: Trees are root of discord in Huntington Woods

To preserve the look and feel that makes Huntington Woods an attractive place to live, city officials want to discourage homeowners from taking down trees that are not diseased or dying. But a new ordinance that requires homeowners to get permits, pay fees and consult experts first has many residents stumped about the city’s motivation …

KREM-TV, Spokane, Washington, August 6, 2014: Which trees in Spokane withstood Saturday’s windstorms best?

At Webster Park, the first windstorm knocked down three mature ponderosa pine trees. They all ended up pointed north, an evidence of the direction that powerful wind blew on July 23.
 
City of Spokane lead arborist Jeff Perry said the trees that went down were among the tallest in the park, but because they were so tall, they had more leverage. Those physics combined with rocky soil below caused the trees to snap at the roots and pivot in a socket …

Saskatoon, Saskatchewan, PhoenixStar, August 6, 2014: Group seeks city’s special trees

“They’re not all big trees with huge trunks,” but they’re all special, and they deserve to be recognized, Richard Kerbes said. That’s why the SOS Elms Coalition is updating its decade-old Tree Tour Guide for Saskatoon. It was originally meant to encourage an appreciation of the urban forest, but over the years a lot has changed, Kerbes said. A notable tree may have become surrounded by its growing neighbours, or may have been cut down …

St. George, Utah, Independent, August 7, 2014: Opinion – Protection of city trees forces council to face reality on code enforcement reform

The July 31st council meeting may come to be known as the day maturity arrived at City Hall. Even the young, inexperienced Councilman Hughes may have come to realize that code enforcement is part of the balancing act that keeps individual property rights in line with serving the greater good of the city. Finally, the fear of the class action lawsuit filed against the city was put in proper perspective when the city shade tree ordinance was presented before the council …

Bloorst140806Toronto, Ontario, National Post, August 5, 2014: Peter Kuitenbrouwer: Three years ago $20M was spent planting London Plane trees along Bloor. Now almost half are dead

In 2007 workers tore up Toronto’s Bloor Street for a $20-million rethink, of which merchants paid $10-million and the city $10-million. Backhoes dug holes two metres deep and workers planted 134 London Plane trees. The work dragged on for four years; the street, with new granite, flowers and trees, reopened in 2011. Unfortunately, three years later there is bad news on Bloor. Of the trees, 79 are alive and 55 are dead. And that is after local merchants paid to replace 19 dead trees this spring …

Nature World News, August 5, 2014: Climate change said to be good, bad and worse for trees

Past research has shown that forests will, in some ways, will benefit greatly from the anticipated increase in carbon dioxide levels across the globe. However, a new study has found that negative disturbances in forests are on the rise, becoming more common and causing a significant amount of trouble and confusion about these all-important ecosystems …

AgAlert, August 6, 2014: Opinion: ‘Bonus depreciation’ rules should extend to trees, vines

In 2002, President Bush signed a bill that put in place a policy known as “bonus depreciation.” Bonus depreciation, which allows companies to deduct an additional 50 percent of the value of an investment in the first year on top of the regular depreciation schedule, has spurred great economic activity by allowing businesses to invest in the future, grow and hire more workers with the money that would otherwise go straight to the government bureaucracy. Bonus depreciation encourages job creation and economic growth. Under current law, tree and vine farmers have not been able to benefit from this business-friendly tax policy. They must wait until a tree or vine produces a commercially viable crop to claim the depreciation value on their investment, eliminating the incentive to invest in future crops. This lag can be detrimental to their choice to invest in new property and grow new trees and vines …

Smithville, Missouri, Herald, August 5, 2014: Watering shade trees

Want your shade trees to live long, healthy lives? Here’s how to water them when they’re young and during dry spells …

Jacksboro, Texas, Gazette, August 5, 2014: Oak wilt affects county trees

Trees are a valuable commodity that provides a whole host of benefits from fruits and nuts to a place to gather and enjoy the comfort provided by a tree’s shade. However, many in Jacksboro County may have noticed a number of Live Oak trees dying due to oak wilt, a fungus that will cause a yellowing of leaves, with eventual defoliation (loss of leaves), and loss of the tree generally over a 1-6 month period …

drought140805Merced, California, Sun Star, August 4, 2014: Drought watering regulations may leave trees high and dry

New state water regulations approved last month by the State Water Resources Control Board call for steep cutbacks in lawn watering and other water uses. Dead trees are very quickly showing to be collateral damage …

Everett, Washington, The Herald, August 4, 2014: Plan to remove 90 trees from Legion Park concerns neighbors

A city plan to remove trees from Legion Memorial Park has stirred up concerns from neighbors. There are more than 100 trees in the park, many of them decades old. But an announcement that as many as 90 of them might be removed is a bit too much to bear for some people …

KIRO Radio, Seattle, Washington, August 4, 2014: The trees have eyes; surveillance in the forest captures illegal activity

When you walk into a store, step on an elevator or wait at a bus stop, you can expect that a camera is watching. Now, even people enjoying the great outdoors in the Mount Rainier area could be captured on video …

Watertown, New York, Daily Times, August 4, 2014: Village mayor and trees waiting on spray option

Potsdam’s evaluation of what to do with its much loved downtown Manchurian pear trees has stalled. The mayor said Monday he won’t make a decision until he gets a clearer picture of the spraying option from St. Lawrence Nurseries, to try to keep the trees from bearing fruit …

Winston-Salem, North Carolina, Gardening Examiner, August 4, 2014: Use small trees as a focal point in the landscape

Gardeners often use a specimen tree in the landscape as a focal point to draw attention to a particular area. Use an unusual or showy plant because of its flowers, fruits, form, exfoliating bark or some combination of these. Designers sometimes use small trees as shrubbery, but keep in mind, these become tree size if allowed to grow in their natural form. Use one of these great plants as a specimen in your landscape …

calfire140804Fox News, August 3, 2014: Question after huge wildfire: Remove dead trees and replant, or let nature take its course?

Nearly a year since a historic wildfire charred a huge swath of California’s High Sierra, debate rages over what to do with millions of dead trees left in its wake: truck them to lumber mills or let them decay in place …

Sidney, Ohio, Daily News, August 3, 2014: USDA – Check trees for damaging pests

While there has been no evidence yet of the Asian longhorned beetle in Shelby County, Ohio, the United States Department of Agriculture Animal and Plant Health Inspection Service (APHIS) has asked residents to check their trees this month for signs of the pest. The bug has destroyed more than 130,000 trees in Ohio, New York, New Jersey, Massachusetts and Illinois since it made its incursion into the United States in 1996 inside wood-packing material from Asia …

Thiruvananthapuram, India, The Week, August 4, 2014: Sunderbans trees losing capacity to absorb CO2?

The vast mangrove forest in the Sunderbans delta of southeastern India is fast losing its capacity to absorb carbon dioxide, one of the main greenhouse gases, from the atmosphere due to rise in the salinity of water, rampant deforestation and pollution, a study has found. The mangrove forest, marsh grass, phytoplanktons, molluscus and other coastal vegetation in the world’s largest delta are the natural absorbers of carbon dioxide (CO2), according to the study …

Smithsonian magazine, July 31, 2014: Removing just a few trees can lower tropical animal biodiversity

It’s easy to understand how the clear-cutting of vast tracts of tropical forest might be bad. After all, the loss of all those trees is bound to also take out many of the animals that made that forest their home. So selective logging—in which just at most 20 trees are removed from a single hectare of land (10,000 square meters, about the size of two football fields)—would seem to be a no-brainer improvement. But a new study published this week in Current Biology is adding to evidence that this type of timber removal can still be destructive. Zuzana Burivalova of ETH Zurich and colleagues found that taking out just three or four trees in a hectare of tropical forest can halve the number of mammal species present. Logging six or seven trees can do the same to amphibians …

Kitchener, Ontario, Daily Record, August 1, 2014: Tree failure – know the risk

While trees, in all their majesty, are a beautiful addition to any landscape, they’re also a potential safety hazard. Decay and extreme weather, such as wind and ice storms, can cause trees to break or fall, causing severe damage – and even fatalities – in their wake. Likewise, trees can grow in wayward directions, posing the risk of interfering with structures, such as buildings, street lamps and dangerous high-voltage power lines …

sawfly140801KUSA-TV, Denver, Colorado, July 29, 2014: Sawfly infestation kills Colorado trees

They look like caterpillars and they’re eating their way through trees in Douglas and Elbert Counties. One woman, who lives on 60 acres in Elizabeth, says she is dealing with an infestation of redheaded pine sawflies, an insect that feeds primarily on Ponderosa Pine trees and has a 3-week lifespan. “They grow bigger and become a whitish color and they have demolished several of our trees in just a couple of days,” says homeowner, Robin Carlson, “You can hardly see them so if you’re looking on your trees, you have to look carefully …”

Dubai, Abu Dhabi Media, August 1, 2014: Two and a half times more water used to irrigate palm trees than needed

Studies tracing the flow of sap in date palm trees have shown that farmers are using more than twice as much water as is needed to irrigate the plants. In Abu Dhabi, irrigation of date palm trees uses about a third of the groundwater spent on major crops, which has a serious impact on the sustainability of water resources …

Lansing, Michigan, Michigan State University Extension Service, July 31, 2014: Locust Leaf Miner cause of browning roadside trees

Dramatic browning of Black Locust, a common roadside tree in the lower peninsula of Michigan is being caused by a small leaf-mining beetle (Odontota orsalis.) This small (one-eighth of an inch long), colorful beetle deposits eggs inside black locust leaves where the larvae feed, creating leaf mines that eventually turn the leaves brown. Heavy infestations cause entire trees or groups of trees to turn brown. “If this has happened to trees on your property, don’t panic and cut them down,” says Dr. David Smitley of MSU Extension Service. Late season browning or defoliation may weaken trees, but it rarely kills them …

Autoevolution, July 31, 2014: Trees could provide power and carbon fiber for cars in the future

Our cars need to be even more lightweight in the future to use fuel more efficiently, be it electricity or biofuel. Luckily, with further research, lightweight materials and even fuel can be offered by trees …

Fast Company, July 31, 2014: Trees are heroes: they save hundreds of lives a year

It’s long been known that trees help clean the environment, but until recently their exact value hasn’t been well understood. Initiatives like i-Tree and OpenTreeMap have begun to help visualize all of the good that trees do for us, and now a new paper goes even further. As well as quantifying the value of a tree in taking pollution out of the air, it also sums the actual health benefits to humans. The upshot is that, in 2010, America’s trees saved 850 lives and prevented about 670,000 cases of severe respiratory problems, according to the research …

USA Today, July 30, 2014: Yosemite fire expands, threatens giant sequoia trees

A fire on the western side of Yosemite National Park expanded to 3,545 acres Tuesday, threatening a grove of giant sequoia trees and limiting access to the park … The fire was temporarily cutting off some access points to the park, a big tourist draw during the summer, closing Big Oak Flat Road and parts of Highway 120. Three campgrounds were also closed. Within the park, the Merced Grove of giant sequoia — the huge, ancient trees closely related to redwoods — was threatened, according to the U.S. Forest Service …

These are not the same beavers, but authorities believe they bear a resemblance to the culprits ...

These are not the same beavers, but authorities believe they bear a resemblance to the culprits.

Global News Canada, July 29, 2014: PEI beavers blamed for felling tree that damaged couple’s car

Police say a beaver is to blame for felling a tree that collapsed onto a car driven by Quebec tourists in Prince Edward Island on Saturday. The Mounties say the rodent had been gnawing at the large tree next to Highway 16 at Priest’s Point, near Souris, before it fell at about 2 p.m. The driver told investigators he saw the tree falling onto the roadway but he was unable to avoid it as it crashed down onto his vehicle …

mysuburbanlife.com, Downer’s Grove, Illinois, July 30, 2014: ComEd has a plan before it trims trees by power lines

When it comes to trimming trees, ComEd appears to be taking a kinder, gentler approach. The utility plans to perform “mid-cycle vegetation management activities” on Joliet’s southeast side during August, September and October. Years ago, when ComEd’s tree trimming policy was ‘cut first and apologize later,’ such an announcement might have elicited fear and concern among homeowners with a lot of trees near power lines. “They used to just top them,” said Jim Teiber, city arborist for Joliet. But times have changed …

Winter Park, Florida, Observer, July 30, 2014: Winter Park says it can’t replace all of its dying trees

Tree codes put in place over the past 50 years could prevent Winter Park from replacing two-thirds of the dying trees it removes along city streets. Assistant City Manager Michelle Del Valle and City Arborist Dru Dennison told the Winter Park City Commission that the city plans to remove 2,205 dying trees along roads between fiscal years 2014 and 2017 – a safety measure to prevent branches from falling on cars and residents. But only 934 of those trees will be replaced due to current regulations, Dennison said, including a minimum planting distance of 6 feet from underground sewer and water lines …

Fox News, July 30, 2014: The Tree of 40 Fruit is exactly as awesome as it sounds

A hybridized fruit developed by a artist turned farmer yields 40 different types of fruit …

Blisstree, July 30, 2014: Trees help you live a longer and happier life, so go out and hug one

You can make fun of tree-huggers all you want, but they’ll have the last laugh. That’s because they’re living longer and happier lives than you, according to a study published in the journal Environmental Pollution. The research shows that the closer you live to trees, the better off you are …

Arizona Republic, July 30, 2014: Why some trees snap in the wind and some trees don’t

Did you ever hear the fable of the oak and the reed? It has been around since ancient times in various forms, but the moral is always: It’s better to bend than to break …

Owls140730Nicosia, Cyprus, Mail, July 29, 2014: Baby owls at risk after trees drastically pruned

Overzealous pruning of eucalyptus trees in the Armenian cemetery in Nicosia near the Ledra Palace check point have raised fears over the fate of rare long-eared baby owls which were nesting in the branches of the trees …

IGN, July 29, 2014: The 10 greatest movie trees!

The greatest trees ever to star in pictures … and, yeah, the Wizard of Oz talking apple tree’s one of ‘em …

CKOM Radio, Saskatoon, Saskatchewan, July 29, 2014: SaskParks says trees at Regina Beach were assessed for health and rot

Two trees at Regina Beach have been granted a stay of execution. “We’re going to be hiring an independent arborist that’s licensed to re-assess the tree,” said Marty Halpape, Director of Southern Park Operations with Sask Parks.

Previously a group of parents and kids at Regina Beach had been told that the trees were being cut down because one kid had fallen off and been hurt while climbing. Now SaskParks says the risk assessment was done due to determine the health of the tree …

Treehugger, July 29, 2014: Opinion -Trees don’t need warning labels – adults need to relax

Controversy has erupted over the fate of a tree at Regina Beach, Saskatchewan. A child fell out of the tree and broke a leg, and now the municipal maintenance crew has announced its intention to cut down the tree – for ‘safety reasons.’ This decision follows a ‘risk assessment’ completed by Saskatchewan Parks that obviously deemed the tree a safety hazard …

nature.com, July 30, 2014: Fat rules! Plump trees win under drought

The long-held assumption that the storage of starch and related compounds helps plants cope with drought stress is now supported by much needed experimental evidence … (You have to pay to read this one)

Tuoi Tre News, Ho Chi Minh City, Vietnam, July 29, 2014: Trees with exported beans ‘massacred’ in central Vietnam

Trees that bear beans with medicinal properties in central Vietnam’s Quang Nam Province are being poached, with several people killed in the process …


EABvaccine140729Baraboo, Wisconsin, News Republic, July 28, 2014: Treating trees: Bicyclists, city battle ash borers

When it comes to battling emerald ash borers, the best defense is a good offense. The city of Baraboo launched a pre-emptive strike this year, treating 178 ash trees in hopes of staving off the invasive beetles. In recognition of the city’s efforts, a statewide bike tour promoting tree health stopped in Baraboo on Monday afternoon …

Washington, D.C., Washingtonian magazine, July 28, 2014: Tree whisperers: Meet the DC employees who watch over our trees

It may come as a surprise to some Washingtonians that they live in a forest, albeit an urban one, or that last year the nonprofit American Forests named the District one of the nation’s ten best cities for urban forests. If DC can boast that trees are winning the war against concrete, it’s because fellow arborists have many days when they plant or save more trees than they lose—the direct result of a commitment the city made nearly 15 years ago …

Harlan, Kentucky, Daily, July 28, 2014: Trees already preparing for winter

Even though we are in the hottest period of summer, it’s hard to believe that trees are already starting to prepare for winter. During the month of August and September, many trees will begin to shut down by gradually reducing active growth and preparing to go dormant during the winter months …

Arlington Heights, Illinois, Daily Herald, July 28, 2014: Despite neighbors’ protests, Rolling Meadows says owner can cut down trees

Some Rolling Meadows residents are mourning the loss of old-growth trees cut down Friday and Saturday from property in their northwest side neighborhood, but city officials say the land’s owner was within his rights. Neighbors especially wanted three centuries-old oaks at 4500 Fairfax Ave. saved, said Karen Reynolds, who lives across the street. One was left standing, but stripped of so many limbs she fears it will not survive. “People bought homes here because the area is heavily wooded,” said her husband, Stan Reynolds. “(The land owner) could have gotten a lot of money building maybe fewer houses on wooded lots …”

Texas A & M, Agrilife, July 28, 2014: Drought-stricken trees offer study platform for AgriLife Research scientists

Severe drought across Texas since 2011 has produced a unique opportunity for Texas A&M AgriLife Research scientists to gain a greater understanding of the decaying process of trees and the effects on the surrounding ecosystem. Under the new grant-funded project, the rate of tree disintegration will be monitored through a combination of airborne, unmanned aerial vehicle lidar and terrestrial lidar scanning. Lidar, from Light Detection and Ranging, is a remote-sensing technology that uses laser light to measure the distance from sensor to target and create a three-dimensional model of forest vegetation, in this case …

trees140728

metro.us, New York City, July 28, 2014: First national study measures trees’ impact on health

Those trees taking up precious sidewalk real estate are earning their keep. In the first nationwide study of trees’ impact on air pollution, the U.S. Forest Service found that trees save more than 850 lives annually and prevent 670,000 serious respiratory complications. Though trees only contributed to an average air quality improvement of less than 1 percent, they are responsible for an estimated savings of $6.8 billion annually in health spending, according to the study …

New York Daily News, July 27, 2014: Five majestic trees chopped down in shocking Bayside Hills arborcide

Four ash trees and one American sycamore were felled from the former Keil Brothers Garden Center site. It will cost $340,000 to replace the city-owned trees, which were at least 30 years old, officials said …

Pickering, North Carolina, News Advertiser, July 28, 2014: Ugly monstrosity visible after Hydro One cuts down trees in Pickering

Pickering residents who live near a Hydro One transfer station aren’t enjoying the view, after hundreds of trees were cut down to improve security around the site. Hydro One recently removed about 300 mature trees surrounding a large transfer station on Dixie Road, north of Finch Avenue. A company spokeswoman says the trees were cut down after an attempted break-in …

New York Times, July 27, 2014: Column: Protecting trees from dog urine

Street trees, especially in New York City, live a hard life …

Toronto, Ontario, National Post, July 25, 2014: Editorial: Kill the trees before they kill us

This summer, the National Post editorial board presents readers with a special series of articles on the everyday menaces that may kill or permanently disfigure you. Earlier this year, a child fell out of tree in Regina Beach, a small town in south central Saskatchewan, and broke a leg. In response, CBC News reported on Wednesday, the provincial Ministry of Parks, Culture and Sport is planning to cut the tree down, lest other children suffer similar accidents. This is the correct step. Not only will it prevent this leafy monster from hurting any more children, it will serve as a warning to other trees in the Last Mountain Lake recreational area. The message is clear: Hurt a child, face the chain saw …

Joyce Kilmer -  "Trees" poet was probably an "x-y" chromosome carrier ...

Sorry, Bill … “Trees” poet Joyce Kilmer was probably an “x-y” chromosome carrier.

Calgary, Alberta, Herald, July 24, 2014: Columnist: Lovely trees are backdrop for landscape plan

Citing poet Joyce Kilmer and “her” poem about trees, columnist Bill Brooks lists all the reasons why homeowners should plant trees …

Tallahassee, Florida, Democrat, July 24, 2014: Think twice before chopping down dead trees

What is the most important tree in the forest? Tallahasseean Jim Stevenson, former chief naturalist of Florida State Parks and chief of the Office of Resource Management, would say it is any dead one. Living trees obviously provide food, shelter and places to rear the next generation of wildlife. Dead trees do all of that and more …

Niagara This Week, Thorold, Ontario, July 25, 2014: Residents want action on replacing beetle-ravaged trees

They said it was coming, and now the destruction of the Emerald ash borer is becoming all too evident for homeowners in many parts of Thorold. Residents of one street, aghast at the sight of trees ravaged by the iridescent little beetle, have called on the city to do something about the deteriorating state of ash trees on their boulevards …

Bolivar, Missouri, News, July 24, 2014: Troubles with pear trees

Almost daily, starting in April, while out and about, people ask about trouble with pear trees. Anyone who owns ornamental pear trees or intends to plant them should become more fully informed on the following complex set of problems …

Washington Post, July 24, 2014: Deadly fungus spreads in Everglades, killing trees

A fungus carried by an invasive beetle from southeast Asia is felling trees across the Everglades, and experts have not found a way to stop the blight from spreading …

Azom.com, July 25, 2014: Novel cost effective process to transform unwanted forest trees into structural building material

Without management of natural waste such as fallen timbers too small to be milled, forests risk insect and disease infestation and high concentrations of fuel buildup or fire. Current international economic conditions deter such management due to low market values for small trees …

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 …

io9.com, 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 … treeonhouse140717

WWLP-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 … burglar140716

KTLA-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 … twigb140715

KOIN-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 …

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Case of the Day – Thursday, August 21, 2014

THEY DO THINGS FUNNY IN LOUISIANA

Things are different in Louisiana. It’s the only state in America not to have a legal system based on English common law. Counties are parishes, county commissioners are “police juries,” and when a party loses in court, it may file a devolutive appeal.  

The bridge was washed out ...

The bridge was washed out …

But Louisiana has a lot of trees and thus generates substantial neighbor and tree law. Today’s case is a little different, a case of a large farm seeking to get a county (parish) road – long closed due to a bridge being washed out – declared abandoned, so that ownership reverted to the farm. The evidence was all over the map, including minutes of the parish government showing an intent — albeit a desultory one — to get the bridge fixed and the road reopened, recall of the people who lived around and near the road as to when it was closed, and even a tree expert, who dated a tree growing up through the roadbed of the abandoned stretch of highway.

The trial court weighed all of the conflicting evidence, and concluded that the weight of it supported a finding that the parish had abandoned the road more than 10 years before, meaning that ownership reverted to Richland. The appellate court didn’t necessarily agree, but appellate courts review lower court decisions deferentially. Here, the standard was whether the trial judge’s findings were reasonable, based on the record, and the court of appeals said they were.

Louisiana law is different ...

Louisiana law is different … (Dramatic re-enactment of actual Bayou State courtroom proceeding).

Richland Plantation, Inc. v. East Feliciana Parish, 973 So.2d 179 (La.App. 1 Cir. 2007). The Parish of East Feliciana maintained a public road running north from Richland Creek to Louisiana Highway 422 through property owned by Richland Plantation, Inc. In 2005, Richland sued, maintaining that the Parish had abandoned the road. Richland alleged that public use and maintenance had been terminated for more than ten years, and therefore the road was abandoned and full ownership of the property reverted to it.

The Parish claimed the road was temporarily closed in December 1996 because the bridge across Richland Creek was unsafe. In September 2001, the Parish filed a petition for expropriation of some of Richland’s land for the bridge, and a judgment was rendered in its favor in March 2005, but was later reversed. The Parish said the expropriation suit established that it did not have any intention of abandoning the road.

Trial witnesses had varying recollections of when the road was closed. Photographs of the gravel road south of the bridge where it was still open and maintained were compared with photographs of the closed area of the road, which was overgrown with plants and seriously eroded. The bridge railings were twisted and bent, and the wooden planks were rotted and broken. A forester testified for Richland that one of the trees in the roadbed had been growing there for eleven years; a cross-section of the trunk showing its growth rings was submitted into evidence. In addition to witnesses’ testimony, the record included some bridge inspection reports, as well as the minutes from Parish meetings, showing when and why the road had been closed and when the expropriation process to rebuild the bridge was approved. The trial court agreed with Richland, and the Parish filed a devolutive appeal.

Held: The road was declared to have reverted to Richland. The Court said that under Lousiaina law, the public may own the land on which the road is built or merely have the right to use it. The courts have held that maintenance of a road by a Parish for three continuous years gives rise to a “tacit dedication” of the road to public use by its owner. Abandonment of a public road must be evidenced by (1) a formal act of revocation in accordance with Louisiana statute, (2) relocation of the public road by the governing body, or (3) clear and well-established proof of intent by the governing body to abandon. Nonuse of a strip of land as a public road or street for a period in excess of ten years may also result in termination of the public use.

The road not taken ... and ultimately abandoned ...

The road not taken … and ultimately abandoned …

Because the Parish didn’t execute any formal act of revocation and its meeting minutes showed its intent was to rebuild the bridge and re-open the road, the Court concluded there was no proof of any intent to abandon this roadway. Thus, the only means by which the Parish’s servitude of public use of the roadway could be terminated was by factual non-use for more than ten years. Within that period, even occasional use or use by only one person constituted public use.

Reviewing the record to determine whether a reasonable factual basis for the trial court’s findings, the Court held that while there were obviously some conflicting stories about exactly when and how the northern portion of Ellis Road was closed, there was reasonable factual basis in the record for the trial court’s finding that the road had not been used for over ten years and was, therefore, abandoned by the Parish.

Richland’s licensed forester testified concerning the age of a tree that was located in the roadbed of the old road, and determined from dendrochronology how long the tree had been there. He determined that the tree growing in the roadbed was 11 years old when it was cut in June 2006, thus dating the abandonment of the road at over 10 years.

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Case of the Day – Wednesday, August 20, 2014

SURVIVOR – LAWSUIT ISLAND

Life (and law practice) sometimes imitates art. It may be a stretch to label the long-in-the-tooth CBS series, Survivor, as art, but any number of great artists, authors and composers were unappreciated during their day, just as the Survivor writers currently allege that they are unappreciated.  Maybe some day, Survivor will be studied by college students as a paradigm of our day. Scary, isn’t it? Arthur C. Clarke once predicted just such a thing

But our point – just like contestants are voted off the island in Survivor, weak cases are many times voted off the docket, so to speak, by summary judgment. Summary judgment is a mechanism for a judge to decide cases where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Mr. Stack said the "depression" was big and obvious to Mr. Hernandez ...

Mr. Stack said the “depression” in the yard was big and obvious to Mr. Hernandez … Something like this, maybe?

In today’s case, Stack was trimming Hernandez’s trees at Hernandez’s invitation. While working on a lawn with spotty and bumpy grass, Stack tripped on a small depression and broke his leg. He sued, of course – who wouldn’t? His suit alleged that Hernandez should have been aware of the depression and should have warned him of it. He didn’t have any proof that Hernandez was aware of the depression, and the Court very nearly granted summary judgment for Hernandez. But it concluded that a reasonable juror conceivably could — after hearing witnesses and cross-examination — conclude that Hernandez should have known about the depression, and should have either warned Stack or filled it in himself.

So after the summary judgment challenge, Stack remained a “survivor” — leaving it to a jury to vote his case off the island later.

Stack v. Hernandez, Not Reported in A.2d, 2007 WL 1893617 (Conn.Super.Ct., June 12, 2007). Stack was trimming trees at the defendant’s property at the invitation and permission of the defendant. While doing so, he stepped in a depression in the front lawn and broke his leg.

... it turned out the hole was considerably smaller ...

It turned out the hole was considerably smaller …

The depression was about 4 inches wide and 3 or 4 inches deep. Stack’s right toe went into the depression and stopped. The lawn was bumpy and had yellow patches in it. Stack did not see the depression before he stepped into it. Hernandez had no actual knowledge of the depression. He performed normal maintenance on the lawn himself but had never noticed the hole.

Stack sued Hernandez for negligence, alleging that Hernandez failed to remedy the depression in the lawn or to warn him of it, even though he knew or should have known of its presence. Hernandez filed for summary judgment on the grounds that there was no genuine issue of material fact on the issue of notice.

Held: Summary judgment was denied. The Court observed that summary judgment is not well adapted to negligence cases, where, as here, the ultimate issue in contention involved a mixed question of fact and law.

The Court said Mr. Stack's case barely stacked up ... but enough to get the matter to trial.

The Court said Mr. Stack’s case barely stacked up … but enough to get the matter to trial.

The conclusion that a defendant was negligent is necessarily one of fact. A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.

The existence of actual or constructive notice is a question of fact. Although Hernandez argued there was no evidence from which a judge or jury could conclude that he had actual or constructive notice of the depression or that it was a danger of which Stack was entitled to be warned, the Court found Stack’s allegation strong enough to survive a summary judgment motion.

The Court characterized Stack’s claim as weak, but conceded that a reasonable person could conclude that the depression in the lawn was a “danger” which Hernandez should have discovered and remedied with a reasonable inspection. The Court observed that a party has the same right to submit a weak case as he has to submit a strong one, and gave him his day in court to submit it.

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Case of the Day – Monday, August 18, 2014

BUYER’S REMORSE

What do you get when you cross a lousy businessman with a careless homeowner? In today’s case, you get a whopper of a lawsuit.

The job's not finished until the paperwork's done.

The job’s not finished until the paperwork’s done.

The lousy businessman was Jeff Davis, who may well be a very good arborist but clearly was lacking is paperwork and billing skills. The shocked homeowner was Ron Sexton, who — to put it charitably — was woefully (and conveniently) forgetful, not to mention rather unforgiving.

Ron had hired Jeff to trim trees in 2002, and he paid the invoice, which had been figured at $1,200 (although he couldn’t remember ever seeing the bill he paid). He hired Jeff again the following year, but Jeff not only didn’t prepare a written proposal or estimate, he couldn’t even be sure he had told Ron the price would be the same as the year before.

For his part, Ron kept expanding the scope of the work, appearing frequently as the crews worked to suggest additional trimming. By the time Ron was done changing the job to encompass all 60 trees on his land, Jeff’s crews had 14-1⁄2 days of work in, presenting Ron with a bill for $17,400.

You’d think that Jeff would have said something to Ron about how the bill was mounting up. For that matter, you’d think Ron might wonder at some time during the two weeks of tree work how much it was all costing him. But neither Dumb nor Dumber questioned anything until the bill arrived in the mailbox. And then, Ron refused to pay.

Like every state, Kansas has a consumer practices act, intended to protect consumers from unscrupulous businesses that prohibit unconscionable acts and deceptive practices. And even if Dorothy isn’t in Kansas anymore, that doesn’t mean that the state’s restrictions are over the rainbow: just about all states have unfair or deceptive acts and practices statutes, consumer protection statutes, consumer fraud statutes or the like. The laws are well intended, but as our homeowner hero proves today, the likelihood that they can be used for mischief is high.

Here, we suspect that Ron didn’t feel like a defrauded consumer until some lawyer suggested that some KCPA claims would be a dandy way to beat paying Jeff. So Ron claimed Jeff had violated the KCPA by deceptive practices (not telling him how much it would cost and trimming well beyond the scope of the work in order to jack up the price) and unconscionable acts (performing unnecessary work and not giving Ron his money’s worth). The jury didn’t buy it — especially the whopper that he didn’t know it was $1,200 a day because he hadn’t gotten last year’s bill, which he had managed to pay without seeing — but it did apparently find that the value fell somewhat short of $17,400, because it awarded Jeff Davis only $6,500.

Never trust your case to a panel of people who aren't smart enough to be able to get out of jury duty.

Never trust your case to a panel of people who aren’t smart enough to be able to get out of jury duty.

And here, we encounter a popular fiction: juries are wise and Solomonic. They’re not, often hurried, bored, a collection of weak-willed people bullied by one or two strong ones, even just plain stupid. But juries as fact-finders are the foundation of our legal system, and appellate courts protect that foundation with a most deferential standard of review. Typlcally, an appeals court won’t overturn a jury’s findings of fact unless no rational juror — even taking the evidence in a light most favorable to the winner — could have made the decision the jury handed down.

Here, just about everything in the record was contradicted. But assuming the jury believed evidence in favor of Davis Tree — and the appeals court made that assumption — it could have come to the conclusion it reached. Interestingly, the Court of Appeals seems to have been less than thrilled with the jury’s verdict even while showing it deference, asking cryptically, “Would the evidence also support contrary inferences? Yes, but that is simply not the question which we are called upon to decide.”

Everyone was a loser here, especially because all of this could have been avoided with a written estimate from the arborist and a careful written record of change orders maintained throughout the job. The homeowner was negligent to the point of recklessness as well, but … well, he’s the customer. Expect them to be foolish or to try to beat the contractor out of his or her price. The tree professional has to prepare for the naïve and the cunning customer alike.

Davis Tree Care v. Sexton, 197 P.3d 904 (Ct.App. Kan., 2008). In 2003, Ron Sexton hired Jeff Davis, doing business as Davis Tree Care, to trim the trees at his house. It was a big job, over 60 trees trimmed with a final bill of $17,400. When Sexton refused to pay, Davis sued him for breach of contract and unjust enrichment. Sexton counterclaimed under the Kansas Consumer Protection Act (KCPA), alleging deceptive practices and unconscionable acts. Sexton had used Davis Tree the year before, for which he was billed $1,200 per day. He denied having seen the 2002 invoice and denied the 2002 job was priced on a per day basis, but he admitted he had paid the same amount as was shown on the invoice. He maintained that Davis had never told him the 2003 job would cost the same as the 2002 work, and that was “willful misrepresentation of a material fact” under the KCPA.

Sexton and Davis Tree agreed the work was intended to include removing two trees and removing an oak tree branch, but Sexton said he didn’t ask for anything else. Davis testified Sexton also wanted some general trimming and that he came out from time to time and pointed out additional work he wanted done. Sexton argued there was no need for general trimming because that was what Davis Tree had done the year before. The trial court found against Davis Tree on the contract claim, but it awarded Davis Tree $6,500 on the unjust enrichment claim. As for Sexton’s creative KCPA claims, the court found that Davis Tree had committed neither deceptive practices nor unconscionable acts.

Sexton didn’t appeal the $6,500 he was found to owe Davis Tree on the unjust enrichment claim, but he did challenge the findings that Davis Tree had not violated the Kansas Consumer Practices Act.

ToocloseHeld: Davis Tree had not violated the law. Because the trial court jury had found for Davis Tree, the appellate court had to consider the evidence in a light most favorable to the tree trimmer. If the evidence so viewed supports the verdict, the appellate court will not intervene to disturb the verdict. The question on appeal, the Court said, was whether there was evidence to support the jury’s findings against Sexton’s claims.

The issue was whether Jeff Davis believed Ron Sexton knew the price and requested added tree trimming services. There was ample evidence that he knew what he had paid the year before, and that Davis believed he knew the price would be the same in 2003. Likewise, there was plenty of evidence that Sexton had asked for extra services. Based on that, a rational jury could have found from the record that Davis Tree did not willfully conceal or misrepresent the price or scope of the work.

Under the KCPA, a supplier shall not engage in deceptive acts or practices, including the willful use in a misrepresentation of “exaggeration, falsehood, innuendo or ambiguity as to a material fact,” the willful failure to state a material fact, or the willful concealment of a material fact. Such practices are violations regardless of whether the consumer has, in fact, been misled. Here, the evidence supported that Jeff Davis of Davis Tree believed he and Sexton had discussed price and that Davis believed Sexton knew the price for the 2003 job would be the same as the prior year — $1,200 per day. Likewise, the evidence supported the inference that Sexton requested additional trimming services. That, the Court said, was sufficient to find Davis Tree did not willfully conceal or misrepresent the price or scope of the work.

Sexton also claims the trial court erred in finding Davis Tree did not commit unconscionable acts in violation of the KCPA. He argued that because KCPA cases were so “fact sensitive,” the appellate court had to conduct an “unlimited review” of findings that certain conduct was not unconscionable. But the Court disagreed, holding that the standard is “abuse of discretion,” that is when no reasonable person would take the view adopted by the trial court. This is especially true where the credibility of witnesses is central to resolution of the case. Credibility determinations will not be reweighed on appeal.

The KCPA prohibits a supplier from engaging in an unconscionable act in connection with a consumer transaction. In determining whether an act is unconscionable, a court considers a nonexclusive list of circumstances “which the supplier knew or had reason to know,” including whether when the consumer transaction was entered into, the price grossly exceeded the price at which similar property or services were readily obtainable in similar transactions by similar consumers, and whether the consumer was able to receive a material benefit from the subject of the transaction.

Sexton argued that the Davis Tree invoice lacked documentation, and compared it to invoices for other Davis Tree customers which differed both in amounts charged and in how specifically the tasks were described. Davis Tree cited the extensive equipment and complex procedures required to trim the large number of trees on the Sexton property over the claimed 14-1/2 days of work. The trial court found that “just looking at $1200 a day for three people and the equipment, the Court … does find that it has not been established by a preponderance of the evidence that the price was grossly exceeding the value of what was being provided.”

Davis Tree Service learned a costly lesson

Davis Tree Service learned a costly lesson

The Court of Appeals found essentially that Sexton had not sustained his burden of proof. The trial court found there were three people working on the project, using a number of machines and at least two of the people climbing trees with their gear. Even Sexton admitted to seeing the equipment and work being done. However, the trial court noted, Davis Tree’s failure to prepare specific proposals was “a bad way to run a business,” and “more of a poor business that was run by Mr. Davis and not an unconscionable act or an intentional misleading business. Just bad business practices.”

At trial, in support of the claim that he did not receive a material benefit under the KCPA, Sexton argued the work Davis Tree claimed to have done was the same as done the previous year and, therefore, unnecessary, or that Davis Tree charged for work not done, and that Sexton did not receive the benefit of the full $17,400 charged. But as the Court noted, the jury did not order Sexton to pay the full $17,400 charged. The jury’s verdict against Sexton was for $6,500, and that was not challenged on appeal.

The trial court found there was little evidence to show what the value of the work actually should be, but it considered the evidence of the number of people and amount of equipment involved to conclude $1,200 a day was not excessive and, therefore, not unconscionable. The Court of Appeals couldn’t say that no reasonable person would agree with that ruling. Thus, the trial court’s ruling that Sexton received a material benefit would not be disturbed.

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Case of the Day – Friday, August 15, 2014

A SLOPPY AND LAZY TRIAL JUDGE

You have to appreciate the careful prose of an appellate court. In today’s case, a case brought in 1999 was still sputtering on eight years later, and the Rhode Island Supreme Court thought it knew why.

Never-ending litigation ... Rhode Island style

Never-ending litigation … Rhode Island style …

After a few pointed comparisons of the case to Jarndyce v. Jarndyce, the Supreme Court wondered what the Dickens was going on. The trial court took its time writing a decision — about five years — leading the Supreme Court to mention in a note, “We are mindful of the inordinate delay of the decision of the trial justice, which this Court does not favor.”

Beautiful understatement! The Supremes were saying to the trial judge, ‘Hey, dude, you’re lazy!” Of course, in the decision, the high court also implicitly said, “Hey, dude, you’re incompetent, too.” The reason for that was the trial judge’s failure to make the findings the Supreme Court needed to adequately review the decision.

A court speaks through its opinions, and when the trial court doesn’t make findings of fact, no one wins. The winner doesn’t know why he won, the loser doesn’t know why he lost, and the rest of us can’t derive any useful guidance from the case. In this case, an unusual argument in the battle over the location of an easement arose. The easement holder claimed the prior owner had obstructed the easement — a driveway — and told the easement holder to shift everything a few feet to the south. This is called an easement by substitution. There was testimony that suggested an easement by substitution had been created. But the trial court couldn’t be bothered to make any findings on the issue, leaving everyone to puzzle whether something hadn’t been proven, some witness hadn’t been believed, just what?

Perhaps a little burninating in the Ocean State?

Perhaps a little burninating in the Ocean State?

So the case, after eight years, landed back at the trial court level. Maybe the owners will settle or all die, or Rhode Island will be devoured by an tsunami, or the court will be consumed by an angry dragon … anything that will spare this poor trial judge from having to do his duty. We can only hope.

Nardone v. Ritacco, 936 A.2d 200 (Sup.Ct. R.I., Dec. 3, 2007). Nardone’s property bordered Lawton Foster Road. Ritacco owned an adjacent parcel of land behind Nardone’s property with no frontage on Lawton Foster Road. In 1965, Nardone’s predecessor-in-interest, Ralph C. James, Sr., granted Ritacco a 50-foot right-of-way along the northern boundary line of what is now Nardone’s property. The right-of-way for ingress from and egress to Lawton Foster Road, has been the subject of many years of litigation.

On Memorial Day 1999, Ritacco cut trees and vegetation within the right-of-way. Nardone sued for a temporary and permanent injunctive relief to prohibit Ritacco from cutting the trees and from trespassing on Nardone’s land. The trial court entered a preliminary injunction and later found Ritacco in contempt of the order by cutting trees and vegetation outside the right-of-way. A key issue was the location of the right-of-way. In addition to arguing that the right-of-way was not originally located along the northern boundary of Nardone’s property but rather inside the boundaries of the land, Ritacco also asserted two alternative claims for relief: the existence of an easement by prescription as well as an easement by substitution over plaintiffs’ driveway. The trial court decided for Nardone, clarifying that the right-of-way was located along the northern boundary of Nardone’s property. Nardone appealed.

Held: A remand was necessary to determine whether Rotacco had acquired an easement by prescription or by substitution over Nardone’s driveway. The Supreme Court held that the trial court had properly found that the right-of-way over Nardone’s land was located on northern boundary of the land. The deed itself placed right-of-way “along the northerly boundary line” of the premises, and Nardone’s expert witness testified that, upon examining property, the boundaries were clear and right-of-way was located along the northern boundary of property. Ritacco’s expert had said that the deeds were not clear, but he hadn’t inspected the property itself, and the trial court’s discounting of his testimony was therefore reasonable.

Does this pass for judicial garb in Rhode Island?

Does this pass for judicial garb in Rhode Island?

However, Ritacco had also claimed that he had acquired an easement on land inside the Nardone boundaries by prescriptive easement. The trial court had ruled against him without a trial, but the Supreme Court ordered a remand for trial on the issues. The Supreme Court held that the trial court hadn’t addressed the issue of Ritacco’s permissive use of driveway, let alone determine whether sufficient factual support existed to conclude that permission to use driveway was given by Nardone or his predecessors-in-interest. A party who claims an easement by prescription bears the burden of establishing by clear and convincing evidence actual, open, notorious, hostile, and continuous use under a claim of right for at least ten years. Here, the Court ruled, the trial judge had failed to make the specific findings of fact upon which he baseed his decision. When that happens, the trial court risks reversal or remand unless the record yields a full understanding and resolution of the controlling and essential factual and legal issues.

Here, there were unaddressed issues that were raised in pleadings and testified to at trial, including Ritacco’s testimony that perhaps Nardone’s predecessor-in-interest had granted him an easement by substitution. When the owner of a servient estate closes with a wall or other structure the original easement and points out another way which is accepted by the owner of the dominant estate, the new way may become the easement by substitution. The Supreme Court said that testimony indicated that James may have granted Ritacco an easement by substitution. However, the trial court failed to determine whether sufficient factual support existed to conclude that an easement by substitution was granted.

Case of the Day – Thursday, August 14, 2014

MEANWHILE, BACK AT THE RANCH …

ranch… that confounded sodbuster neighbor just done cut the power line with his plow. In the fire that swept across the plain, the trees planted in a windbreak went up like Roman candles, and the ranch hands couldn’t stop the conflagration. Sure, the farmer was negligent, but to what extent?

One of the first things new law students learn is the lesson of Hawkins v. McGee, the “case of the hairy hand,” in which we find that the measure of damages is the difference between the value before the breach or the negligence, and the difference after the breach. Nebraska law in this case held that if the trees were used for residential or recreational purposes, the damages are the replacement cost of the trees up to the value of the real estate. But if they were just used for agricultural purposes, the Hawkins v. McGee formulation is fine.

hairyhandHere, replacement of the trees would cost over $270,000, but the reduction in value of the farmland was only $30,000. David Spicer, owner of the ranch, tried to bootstrap himself into qualifying for the “recreational” formulation by arguing that not only did he use the windbreak for the usual agricultural purposes, but he relied on it for recreational purposes as well, including for his kids’ 4-H projects. The 4-H projects argument was especially touching, except that David Spicer’s youngest kid was 25 years old.

The trial court granted summary judgment on the damages question, holding that the replacement cost exceeded the value of the land, and that $30,000 was adequate to compensate for the loss of the trees. The Court of Appeals ruled, however, that whether the trees were recreational in nature or agricultural in nature was a question of fact, and the trial court was wrong to resolve that question without a trial.

The issue of how to value the loss of trees – especially where the value of the tree to the homeowner is due to noneconomic reasons such as beauty, sentimentality or recreational value, arises often, and for good reason. The aphorism in real estate is that value of a home depends on location, location, location. Much could be said of trees as well. The mighty oak that shades the plantation house is worth far more than its identical twin standing a quarter mile into the woods behind the fields. Determining exactly how much more may require juries to consider not so much stumpage prices as the quality of 4-H projects.

Spicer Ranch v. Schilke, 15 Neb.App. 605, 734 N.W.2d 314 (Neb.App., 2007).  Schilke farmed leased land next to the Spicer Ranch. While he was plowing one day, he cut a power line leading to some irrigation pumps. A fire resulted, which — before it burned out – destroyed a windbreak on Spicer Ranch consisting of red cedar and juniper trees, and located about five hundred yards from the ranch house. Spicers used the windbreak, which was on a 110-acre tract of land, in the normal fashion of slowing the wind, providing shelter for cattle, for calving, for horses and for general farm use. David Spicer – mindful of how damages were figured in cases such as these – also maintained that he used the trees for recreational purposes including his kids’ cataloging the trees for 4-H projects (except it turned out that his youngest child was 25 years old). Spicer sued for negligence, which was pretty much conceded.

Claiming the windbreak was worth $270,000 was just so much puffery ...

The Court found that Spicer’s claim that the windbreak was worth $270,000 was just puffery …

In an affidavit to the trial court, Spicers’ expert valued the windbreak at $270,000 for replacement of the trees. But the trial court granted summary judgment to Schilke, finding that to value the trees on the 110-acre tract at $270,000 far exceeded the value of the real estate involved. The trees included only made up a small percentage of the tract, the Court found, and that small percentage of land  likewise would not be permanently damaged because of the loss of the trees. The trial court awarded Spicer Ranch $30,000 as the highest amount of damages suffered by Spicer Ranch.

The sodbuster was relieved.  The rancher was not, and appealed.

Held: Summary judgment was reversed on the damages issue. Spicer Ranch argued the district court erred in using a “before and after” measurement of damages. Instead, it said, to determine compensatory damages for destroying trees and for related damage to the land – where the owner of land intends to use the property for residential or recreational purposes – the owner is not limited to the difference in value of the property before and after the damage or to the stumpage or other commercial value of the timber, but instead may recover the cost of reasonable restoration of the property to its preexisting condition or to a condition as close as reasonably feasible.

The Court of Appeals noted that the trial court’s implicit rationale for its calculation of damages is that the land was used for the farming business, not for any recreational purposes, apparently because of the age of the youngest child was then 25 years old. The trial court’s finding failed to account for the material question of fact as to whether the windbreak was used for residential and recreational purposes, as stated in David’s affidavit, or whether the windbreak was simply a “normal and average farm windbreak,” as could be implied from David’s deposition testimony and as stated in the affidavit of a real estate appraiser. The Court of Appeals noted that measure of a plaintiff’s damages would depend upon the evidence presented at trial and might require alternative instructions, depending upon the jury’s determination of contested factual issues. Because a material issue of fact existed, the Court of Appeals held, summary judgment with respect to damages was improper.

Even under the “before and after” theory of damages used by the trial court, the evidence revealed a range of damages — not just a fixed, undisputed figure of $30,000. The trial judge made a factual finding when he awarded Spicer Ranch $30,000, which he said  “is the highest amount of damages suffered by the Ranch according to the before and after damage appraisal.” He should have simply determined whether a material issue of fact existed with respect to damages, and – if one did – set the case for trial. The matter had to be returned to the trial court.

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