Case of the Day – Tuesday, January 27, 2015

ILLEGAL CONTACT

RefIt’s Super Bowl week, and we celebrate by considering one of the Cardinal rules of trespass. Today we’re discussing illegal contact.

Usually illegal contact, that is, trespass to trees — where someone enters someone else’s land and cuts down trees without any right to do so — are pretty cut and dried. But not all trespasses are clear-cut (to turn a pun).

In today’s case from Louisiana, a party bought a piece of land from the tree owner’s sister, but conditioned the purchase on being able to get rid of some trees on the boundary line with the tree owner.  The owner  – no doubt a Patriot – signed a contract entitling the buyer to cut down trees on the boundary. The problem was that the contract was imprecise as to how many, or where exactly the trees were. The only thing that was clear was that the parties agreed that wild Broncos couldn’t pull him over to cut down the tree owner’s prize old live oak.

Too bad the owner didn’t watch the tree-cutting crew like a Seahawk. The buyer’s contractor was kind of a Buccaneer.  He cut down 12 trees and, although he was told not to, he trimmed the live oak pretty aggressively. The owner cried “Deciduous foul!” and lawsuits flew like yellow hankies. He sued the buyer, Raven that he hadn’t given permission to do anything like that. He wanted treble damages for the wrongful cutting.

The Eastview Patriots of Georgetown, Texas - they won't be playing this weekend, but then, their footballs all are inflated to 12.5 lbs.

The Eastview Patriots of Georgetown, Texas – they won’t be playing this weekend, but then, their footballs all are inflated to 12.5 lbs.

The court awarded about $5,000 in damage for the cut branches on the live oak, but it disagreed on the treble damages. The Court said that the ambiguous contract seemed to contemplate that the 12 trees would be cut down, and there was no basis for any recovery on those. As for the injured live oak, it was damaged but still standing. The statute awarded treble damages for cutting down trees, and the trimming — although a violation of the contract — wasn’t something for which treble damages could be awarded.

The plaintiff felt deflated over the whole episode.

Distefano v. Berrytown Produce, LLC, 973 So.2d 182 (La.App. 1 Cir., 2007). Distefano owned a 2-acre vacant tract of land along Church Street. Berrytown Produce, LLC sought to buy a piece of land next to the Distefano tract to operate a produce business. That land was owned by Rose Millican, DiStefano’s sister.

A line of trees on Distefano’s land blocked the view of the Millican tract approaching it from the highway. Berrytown conditioned its purchase on obtaining Mr. Distefano’s permission to remove trees from his property. So Distefano authorized Berrytown in a written agreement to remove all trees on the property line dividing the Distefano and Millican tracts, except for a live oak tree. Berrytown hired Kemp Richardson to perform the clearing work. Richardson cut and removed 12 trees from the Distefano and Millican tracts, and he cut a significant number of branches from the live oak tree on Mr. Distefano’s tract.

Distefano filed a timber trespass action against Berrytown and Richardson, saying the defendants cut and removed five trees from his property and cut branches off the live oak tree without his permission. Distefano tried to recover damages under Louisiana Revised Statute 3:4278.1, commonly referred to as the “timber trespass” statute, that imposes a penalty of three times the fair market value of trees on people who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property. Distefano also claimed restoration damages and damages due to the decrease in the value of his land, and further urged that defendants’ cutting activities caused him to suffer non-pecuniary damages.

At the conclusion of a bench trial, the court found that the agreement between Distefano and Berrytown contemplated the cutting and removal of all trees on the Distefano property that had been actually cut down. The court found that the parties clearly understood that the live oak tree was not to be cut, and awarded Distefano $6,045.00 for the unlawful removal of branches from his live oak tree, accepting expert testimony setting the fair market value of the live oak tree at that amount. The court declined to award treble damages, finding the treble damage provision inapplicable because the tree itself had not been cut down and removed, and because there was insufficient evidence of the fair market value of the limbs removed from the tree.

Distefano appealed, challenging the court’s finding that he consented to the cutting down of five trees from his property and the denial of his treble damage claim.

The Boothbay High School (Maine) Seahawks.  They have this Sunday off, too ...

The Boothbay High School (Maine) Seahawks. They have this Sunday off, too …

Held: The trial court’s decision was upheld. The Court found that the contract called for the cutting of “all trees on the dividing property line” between the Distefano and Millican tracts, “with the exception of the live oak tree located on or near the property line.” A witness attested there were no trees on the property line itself, but there were trees close to the property line that hung over the property line, and those were the trees Berrytown wished to have removed. Distefano contended that the parties never contemplated the removal of any trees not located exactly on the common property line, but other witnesses disagreed, and the trial court’s findings of fact were found to be reasonable.

Distefano contended that the trial court should have ordered the defendants to pay treble damages. Louisiana Revised Statute 3:4278.1 imposes a penalty of three times the fair market value of the trees on those persons who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property without the landowner’s consent. But, the Court said, no tree was cut down without permission. Instead, the oak tree was trimmed without permission, and the cut trees were taken pursuant to the agreement. Although contrary to the contract, the Court ruled, because the oak tree was not cut down, the statute did not authorize treble damages under the facts of this case.

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And Now The News …


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laser150127Lyon, France, Euronews, January 26, 2015: Laser scanning trees

Trees do the vital job of absorbing carbon dioxide, which contributes to global warming, and producing oxygen. But at the moment, the only way to measure how much carbon is stored in a tree is to chop it down and weigh it. So a new technique is being developed, which uses a terrestrial laser scanner to make 3D maps of forests right down to the nearest millimeter, which can then be used to determine how much carbon is stocked in any given forest (video)…

LaCrosse, Wisconsin, Tribune, January 26, 2015: Study shows city losing streetscaping trees

Curbside trees are exposed to salt and chemicals, heat coming off pavement in summer, snow kicked up by passing plows and other vehicles in winter. Any grates, boxes or protective fencing simply seems to become a magnet for trash or worse. Vandals snap off branches or take shots at the trunk. A new study of city streetscaping showed 16 of 21 trees planted along Third Street between Vine and Pearl streets in 1999 have died, a 76 percent mortality rate. The handful that survive appear to be in decline, said Matthew Nett of the city’s Engineering Department …

Charlotte, North Carolina, WCNC-TV, January 26, 2015: Charlotte’s aging trees creating a danger

Charlotte’s city arborist warns that trees around the city are aging and dying, which can have a dangerous impact. Over the weekend, a tree fell on Randolph Road, knocking out power to hundreds of Duke Energy customers. The tree’s collapse was likely the result of root rot, according to city arborist Don McSween. “I try to get the message out all the time,” said McSween. He says root rot is often caused when construction work like building a sidewalk or digging for utility pipes, damages a tree’s root structure. (video) …

New York City, thestreet.com, January 26, 2015: Insurance for downed trees

When a tree goes down, you’re probably wondering who will pay for the cleanup and any necessary repairs. The answer is: “It depends.” You’ll need to check your homeowners insurance policy, says Chris Hackett, director of personal lines for the Property Casualty Insurers Association of America (PCI). If a tree doesn’t do any damage, your policy isn’t likely to pay for its removal. To qualify for a claim, the fallen tree must have caused damage to structures that are outlined in your home insurance documents. “If your tree falls over in the middle of your backyard and it doesn’t knock over a fence or hit the roof of your house, you’re on your own,” he says …

London, England, Daily Mail, January 26, 2015: Hedge and shoulders above the rest: Neighbors caught in mother of all disputes after row of trees grows to 65ft tall

Two men are locked in a legal battle over a 65ft hedge which it’s claimed ruined the view of their picturesque Scottish valley. The neighbors in Elgin, Moray, have enlisted lawyers in the dispute after the hedge’s owner refused to cut a row of trees to half their height – a job which it is claimed would cost £10,000. It is the first ‘hedge rage’ case of its kind in the rural region, thanks to new powers which were originally brought in under England’s Anti-Social Behavior Act in 2010 …

maple150126The Examiner, January 26, 2015: Maples – the trees that can make you happier and healthier

Almost everyone knows maple trees produce some very sweet food, maple syrup and maple sugar. While there are species of maples native to Europe and Asia, only North Americans made maple syrup or sugar from their sap. It may be because the maples here, sugar maples and red maples in particular, have a higher concentration of sugar in their sap or it may be that our climate has weather more suited to a concentrated sap “run” in the early spring …

Berkeley, California, Daily Californian, January 25, 2015: Campus team collaborates on research showing decrease in diversity of California trees

A new collaborative study conducted by researchers from UC Berkeley, UC Davis and the U.S. Geological Survey shows that large trees in California’s forests are on the decline, while the prevalence of smaller trees is increasing. Led by former UC Berkeley postdoctoral fellow Patrick McIntyre, the research reveals that the decrease in large trees is due to water stress that has been happening since the 1930s. Increasing temperatures, changes in water availability and loss of carbon remain concerns for the issue of forest composition throughout California. “There has been a shift in California in the fundamental structure of forests,” McIntyre said …

Decatur, Illinois, Herald-Review, January 25, 2015: Take a good look at your trees

Sometimes during winter, the outside temperatures warm up enough to make you want to go outside and enjoy the sunshine. We understand these warm days may not last very long, but it is refreshing to get out of the house, at least for a while. The next time one of these days comes along, you might want to do a little checking of your trees and shrubs. Since most trees lose their leaves during the winter, you can now see clearly the branches and be able to spot any problems that might have cropped up …

Harrisburg, Pennsylvania, Patriot-News, January 24, 2015: Clearing of trees in recent years pays off with few power outages from snowstorm, PPL spokeswoman says

Snow blanketing the midstate early Saturday caused power outages for about 100 PPL customers, mostly in in West Lampeter Township in Lancaster County. A handful of Met-Ed customers in Dillsburg also lost power from damaged equipment, according to the company’s website. The impact from the storm in the 29 counties covered by PPL was minimal, said Teri MacBride, a PPL spokeswoman, in part because of proactive tree trimming by the company near power lines and equipment. Outages from vegetation have dropped 43-percent in the past three years, MacBride said. “We’ve done a lot of clearing of trees and the number of associated problems is way down,” she said. “We’ve also invested in upgrading and modernizing our electrical distribution system.”

bigtree150123Science Recorder, January 22, 2015: California drought reaches critical level, killing unprecedented number of trees

In an article published on Tuesday in the Proceedings of the National Academy of Science (PNAS), Patrick J. McIntyre and his colleagues examined historical (1930s) and contemporary (2000s) surveys of 46,000 square miles (120,000 km2) of California forests. What the authors found was that large trees (trees larger than two feet in diameter) had declined by nearly 50 percent and “contemporary forests” showed an increased dominance by oaks over pines. The authors write that their study findings “were associated with increases in climatic water deficit, suggesting that water stress may be contributing to changes in forest structure and function across large areas …”

scan150123Washington, D.C., National Public Radio, January 22, 2015: Ecologist’s airborne scanners see the forest and the trees — all of them

In today’s world it can be easy to feel like there’s nothing left to discover, that all the blank bits of the map have long been filled. Gregory Asner begs to differ, and he’s developed a lab in the sky to prove it. In the Carnegie Airborne Observatory, Asner has designed a one-of-a-kind, ultra high-tech, airborne laboratory — inside a twin-turboprop plane. It offers a faster, more exhaustive way to map land, from the deserts of the American southwest to the deepest depth of the Amazon. The findings have opened up a whole new field of ecological surveying — and now, 10 years into the making, Asner is attracting worldwide attention from governments bent on making better decisions about the environment …

Augusta, Georgia, Chronicle, January 22, 2015: Winter is the best time to plant new shade trees

Fall and winter is always the best time of the year to plant shade trees. Getting them started correctly makes all the difference in the world for healthy trees. Inserting a tree properly into your landscape’s ecological system is critical. Fortunately, the best way to plant a tree involves only a few steps. Get off to a good start. Trees mirror the site in which they live. Poor sites usually mean poor trees. If a tree is put in a place that is poorly drained or in hard compacted soils, they probably won’t do well …

Wired magazine, January 22, 2015: The most ancient and magnificent trees from around the world

The Bowthorpe Oak is a massively thick, millennium-old tree in Lincolnshire, England that once was rumored to hold three dozen people in its enormous, hollowed-out trunk. Beth Moon photographed the leafy giant some 15 years ago and was struck by its solemn nobility and overwhelming presence. Thus began a pilgrimage that would take her around the world to document the planet’s most ancient trees. The series and corresponding photo book, Ancient Trees: Portraits of Time, is a collection of beautiful, stoic images that feel suspended in time. Though our distant ancestors left the shelter and safety of trees some 3.5 million years ago, Moon’s work points to our enduring affinity for—and exploitation of—really, really big trees …

ice150122Chicago, Illinois, Tribune, January 21, 2015: For trees and shrubs, ice can be bigger threat than snow

It’s not always a blizzard that does the damage in winter. Sometimes it’s a different kind of bad news: ice storms. Ice storms are less frequent than snowstorms in Chicago, but they bring special hazards to both people and trees. When cold rain falls and freezes as ice, it sticks to bark and branches more easily than snow does, according to Jake Miesbauer, research arborist at The Morton Arboretum in Lisle. Ice is heavy, and small branches can break from the weight when the ice coating is only a fraction of an inch thick. Wind increases the damage, Miesbauer says …

Savannah, Georgia, Morning News, January 22, 2015: City partners with Georgia Power to replace trees

The city of Savannah is joining forces with Georgia Power this week on a project to improve the streetscape and reduce tree-related problems on Savannah’s eastside. On Wednesday, city and Georgia Power crews began removing 18 sweet gum trees on Harmon Street between Anderson and Waldburg streets and replacing them with 24 crape myrtles. The sweet gums interfere with power lines, requiring regular maintenance to trim and cut back limbs, said Gordon Denney, interim director of the city’s Park and Tree department …

Detroit, Michigan, WWJ-TV, January 21, 2015: DTE hit with $54M lawsuit for cutting trees in suburban neighborhood

A $54 million dollar lawsuit has been filed against DTE and a tree contractor. The basis of the lawsuit contends that hundreds of century old hardwood trees in Bloomfield Hills were cut down without residents authorization or notification by DTE last year. Inge Gray is one of about 20 residents suing. “When it happened in December, I was in a frenzy, I was in a panic to get it to stop, they had mass amounts of trucks there, and they took down these trees in a manner of days … it just happened so quick there wasn’t even much time to react – so I felt they were going at this in a ‘cut now, apologize later’ way,” said Gray …

Missoula, Montana, KECI-TV, January 21, 2015: Missoula city forester seeks public comment on aging trees

The head of the Urban Forestry Program with Missoula Parks and Recreation says the trees are aging and it’s time to look for the next steps. The management plan is just a draft right now. It’s extensive, over 70 pages, but the plan outlines the direction and goals of the Urban Forestry Program for the next 30 years …

Chico, California, News Review, January 22, 2015: PG&E vs. trees continues: Utility company continues effort to down trees in Oroville

The ongoing fight over the removal of 13 trees that front the Oroville Cemetery on Feather River Boulevard will last at least until the end of the month, based on Butte County Superior Court Judge Stephen Benson’s order on Wednesday (Jan. 21). The trees are the last of 242 slated to be cut down by PG&E, which claims the trees’ roots pose a danger to underground gas lines …

Richmond, Kentucky, Register, January 20, 2015: Don’t top your trees

When a tree grows too large for the space it is in, people often feel it should be topped. Topping is the drastic removal or cutting back of large branches in mature trees. These cuts often stimulate new vigorous growth. At one time, this was thought to be an acceptable way to reduce the height of a tree. Researchers have now found that this practice is extremely bad for the tree …

Salem, Oregon, Weekly, January 21, 2015: Salem Hospital may be harming its living trees

Observers are concerned about the way Salem Hospital is handling earthmoving equipment during construction on the former Oregon School for the Blind grounds. They say that the work might damage historic trees. An urban forester says they may be right. The hospital cut 32 trees earlier this month and is now grading the 8½-acre property – uneven because it is the site of an ancient river – for parking, behind a blue construction fence …

phillyash150121Philadelphia, Pennsylvania, WCAU-TV, January 20, 2015: Philadelphia removes Ash Trees ahead of destructive beetle’s arrival

The Philadelphia Department of Parks and Recreations is starting to chop down the city’s ash trees in preparation for the emerald ash borer’s arrival in the county. The invasive beetle from Asia has been marching east after landing in the U.S. Midwest more than a decade ago. “We have confirmed positives in Montgomery and Bucks counties, so at this point, it’s most likely (in Philadelphia), we just haven’t confirmed it yet,” said Lawrence Barringer, an entomologist with the Pennsylvania Department of Agriculture …

Natural News, January 21, 2015: Did you know pine trees can be used as food, medicine and survival equipment?

The pine is one of the most useful trees on the planet, providing food, shelter, medicine and fuel. Knowing how to utilize this versatile resource could someday be the key to your very survival if you find yourself alone in the wilderness. There are many species in the pine family (or genus Pinus), and they can be found virtually everywhere in the world. Here are just a few of the many uses for pine trees (or conifers) …

Vancouver, British Columbia, The Province, January 20, 2015: Young maple trees suffer vandalism on residential streety

Loggers are supposed to ply their trade in the woods, not on West 29th Avenue in Vancouver. But someone with saw skills took down 17 maples in the 500-block West 29th some time between midnight and 5 a.m. on Jan. 7, and the Vancouver Parks Board is intent on finding the culprit. When Howard Normann, the manager of urban forestry for the city, visited the scene he was caught off guard. “I don’t get it,” he recalls thinking. The trees, which were planted in 2010, were about 4.5 to six meters in height and their trunks were about 10 to 15 centimeters thick. Norman said they were all cut down between waist and knee height, except for one that was close to a trailer on a nearby construction site …

Galion, Ohio, Inquirer, January 20, 2015: ODNR removing hazardous trees at Mohican State Park

The Ohio Department of Natural Resources (ODNR) will remove hazardous trees from Mohican State Park and Mohican-Memorial State Forest in Ashland County beginning on Tuesday, Jan. 20. At times, parts of the park or forest, including the campground, gorge overlook, will be closed temporarily. The removed trees will be cut into firewood and made available for residents to pick up for their own use. Free firewood may be collected between the hours of 10 a.m. and 6 p.m. starting on Sunday, Feb. 1, and ending on Wednesday, April 1. The firewood will be located at the Class A campgrounds in the entrance parking lot, and additional locations may be designated once the process begins …

Salt Lake City, Utah, KTVX-TV, January 20, 2015: Invading insect may devastate Utah’s ash trees

Foreign invaders that have killed 50 million in the United States are on their way to Utah. Before you panic, we’re talking about insects that have killed 50 million trees. It’s a tiny green Asian beetle known as the Emerald Ash Borer and as that name would indicate, it only eats and lays its eggs in ash trees. Originally introduced by Asian packing material in Michigan in 2002, Emerald Ash Borers have spread throughout the East Coast and Midwest. Now according to Meridith Perkins of the Utah Division of Forestry, arrival of the insect in Utah is imminent. “The Emerald Ash Borer is now on our doorstep,” Perkins told ABC4 News. “Last year it was found in Boulder, Colorado and I think that was the wakeup call for people here in Utah …”

calforest150120Los Angeles, California, Times, January 19, 2015: Water stress takes toll on California’s large trees, study says

Drought, fire-suppression techniques and changes in land use have made California forests denser with smaller trees and more susceptible to fast-moving wildfires, a study to be released Tuesday has found. Researchers at UC Berkeley, UC Davis and the U.S. Geological Survey compared tree surveys conducted between 1929 and 1936 with surveys conducted between 2001 and 2010. They found that large tree density fell across California, with declines of as much as 50% in the Sierra Nevada highlands, the south and central Coast Ranges and Northern California. At the same time, the density of smaller trees increased dramatically …

Reno, Nevada, KOLO-TV, January 19, 2015: Warmer temps impact trees & grass

Local arborist Dale Carlon is counting trees for the city of Reno. He’s about halfway through the roughly 24,000 trees, and lately he’s noticed more than just numbers. “This is a Callery Pear Tree. What’s happening right now, and you can see, these buds starting to get fuzzy and preparing to open. It’s the fact we’ve has this long period of warm weather,” says Carlon. He says his recommendation, if warm temperatures are ongoing for more than ten days at a time, and they are, is: it’s time to give those trees a little water. He recommends using a soaker hose and watering the circumference of the tree until the ground is saturated …

Lincoln, Nebraska, Journal-Star, January 17, 2015: Conifer needles are gradually replaced by new ones

With all the disease, insect and weather problems facing Nebraska trees, the changes and losses that are natural, gradual and necessary are worth noting and understanding. Among those changes, for conifers, is the gradual loss of old needles as new ones replace them. Although most conifer trees are considered evergreens, they eventually shed their leaves (needles) just like deciduous trees. What makes them evergreen is their leaves persist more than one year before falling. Since new needles are added every year, there is always an overlap between green needles and those that are due to fall. Most pine trees retain their needles for three to four years before dropping. Depending on the species, however, the period of retention can range anywhere from two years for some faster-growing types to more than 15 years for slower growers like bristlecone pine. In the Midwest, the evergreen with the most prominent needle drop is white pine. Every fall these trees are sprinkled with yellow needles. People who notice this for the first time often assume the trees are sick or dying …

eCanada, January 18, 2015: Study says Emerald Ash Borer will feed on other trees, too

The emerald ash borer (EAB) was first detected in Michigan in the early 2000s. It on feeds ash and other trees, and has done extensive damage in the last fifteen years since its arrival in Northern parts of the American continent. At this point in time, the EAB is causing problems in 19 States in the US and is causing extensive damage in woodland in Ontario. Now, it has been discovered that the EAB is not limited to feeding only on ash trees. The EAB has adapted an appetite for whitefringe trees, and other close relatives to this species such as forsythia, privet and lilacs could be affected as well, but does not affect species such as maples and hickory that are not related or similar to the ash …

Watertown, New York, Daily Times, January 20, 2015: Freeze pops: Exploding trees and other myths

When temperatures dip well below zero Fahrenheit, especially if they fall precipitously, things pop. Wood siding creaks. Frozen lakes and ponds emit ominous groans, snaps and booms that reverberate through the ice. If you live in a wooded area, you’ve probably heard trees popping and cracking during a deep freeze. It’s an eerie sound on an otherwise still night. Native peoples from northern regions were very familiar with this sound, and some even named a winter month in honor of it. The Lakota call February cannapopa wi, “moon when trees crack from the cold.” The Arapaho consider December the tree-cracking time; for the Abenaki, it’s January. I once found a reference in a novel to exploding trees. In the book, a lost teen boy survives a northern winter that’s so cold, trees explode into smithereens as if dynamited. I’d lived through winters with minus-40 temperatures but had neither seen nor heard of exploded trees. What did this author know that I didn’t?

fightfortree150115Chicago, Illinois, WFLD-TV, January 15, 2015: Neighbors clash over removal of trees in Downers Grove

Residents along Maple Avenue all can agree about how much they care for Downers Grove. “Trees help make this street a neighborhood,” said Scott Lazar. The disagreement comes over how to save a historic house without destroying Maple Avenue’s beautiful trees. “The whole neighborhood is suffering because of one house and that’s concerning,” said Kathy Hebert. She adores the tree that sits in front of her house. But half of it she said will have to be cut as the street isn’t wide enough for the historic Edwards house to make it’s trip to a new location three blocks down. “When it meant using a chainsaw to hack up 40 feet of my tree, that’s not ok …”

Huffington Post, January 15, 2015: Florida doesn’t need trees

Florida is the land of the palm trees, sunshine and beautiful beaches. It boasts one of the most diverse flora and fauna in the country. One would think that the establishment would want to protect this precious resource – that being the environment. But the answer, sadly, is a resounding no. It’s not cost-effective to protect the diverse swamplands, endangered wetlands and forest that thrive in the state. After all, the protection and conservation of natural wonders don’t pay for election campaigns. One prime example of how little importance is given to the Florida environment is happening in Miami-Dade County — home to Miami and 2.6 million residents. One of the world’s rarest forests, the Pine Rocklands, boasting several endangered plant and animal species, will soon have a Walmart built over it. A total of 88 acres of the endangered Florida Pine Rockland Forest will be cut down, paved over and filled with concrete to make way for this big box retailer. It is estimated that less than 2% of the original ancient forest remains today – and 88 acres of it are about to be permanently destroyed …

Turlock, California, Journal, January 15, 2015: Spaces left by monumental TUSD trees to be filled

The spaces left by the immense American Elm trees in front of the Turlock Unified District Office, which were sentenced to removal due to disease, will soon be filled with new trees that will hopefully carry on the historical integrity of their antecedents. TUSD director of maintenance and operations Scott Richardson reports that he has been meeting regularly with Jay DeGraff, owner of The Greenery Nursery and Garden Shop, to decide on a proper layout and tree variety that will be going in place of the recently removed American Elm trees. “There are a couple varieties that we are considering,” said Richardson. “Our goal is to keep the historical integrity of how the district building has always looked, but we also want to pick a tree that is disease resistant …”

The idea of tying warm clothing to trees in bitter cold places heats up

The bitter cold temperatures taking over many towns and cities in North America have prompted a pay-it-forward scheme to help strangers keep warm. The practice of tying hats, scarfs, mittens and gloves to trees, with a note explaining that the items are there for the taking, was started with a “scarf bombing” in Easton, Pennsylvania. The Facebook group called Chase the Chill, the Original, describes itself as “an annual graffiti/yarn bombing event that distributes scarves in public places so that those in need — regardless of income and without any qualifiers — can help themselves …”

Charlotte, North Carolina, Observer, January 15, 2015: Check for hazardous branches in bare trees

For much of the year, an oak tree is clothed densely in leaves, its framework of large limbs and smaller branches concealed, along with a squirrel nest or two. But all is revealed now and it is quite a spectacle, especially when the sky is right. Yet, while admiring this beauty, it pays to look for anything amiss. I mean cracked or broken limbs and branches that could pose a hazard in windy weather. Look for them and get a certified arborist to take action. When they fall, broken limbs are hazardous to people and property. So this is not something to ignore, especially now when you can get a clear view of the branch structure. You will see the obvious ones, and an arborist up in the tree may find more to deal with …

PHSB150115Discover Magazine, January 14, 2015: What is killing California’s trees, and what can you do about it?

The great thing about living in a major port city such as Los Angeles is having access to ideas and goods from the around the world. However, the port of LA, and by extension every trade conduit branching off from there, takes the chance on cargo containers carrying an invasive species. In 2003 one such species, the polyphagus shothole borer (PSHB), was spotted in Whittier, a suburb of Los Angeles. In the intervening decade it has quickly spread to many of the trees in southern California …

Syracuse, New York, Post-Standard, January 14, 2015: Onondaga County plans to borrow $1 million to begin cutting down 44,000 ash trees

Onondaga County plans to borrow $1 million to begin removing and replacing ash trees threatened by the emerald ash borer. The county Legislature’s Environmental Protection Committee on Thursday will review the initial environmental report on the plan to cut down 44,000 ash trees and to issue bonds to pay for for the first $1 million. All of the trees are on county-owned property, mostly along roads. The entire cost of the project is estimated to be $13.5 million. Committee Chairman Michael Plochocki, R-Marcellus, said it’s not clear yet where the rest of the money will come from. The state Department of Environmental Conservation also announced today it will give the county $25,000 toward the ash program …

Hackensack, New Jersey, Bergen County Record, January 14, 2015: Developer seeks to replace fewer trees than required

A developer seeking to build five new houses has asked the River Vale Planning Board for permission to replant fewer trees than is required by town code. Bear Brook Builders, LLC has applied to build the homes in the forested area between Westwood Avenue and Blauvelt Street. If the application is approved by the planning board, the company would be responsible to plant as many as 275 trees to replace trees uprooted during construction of the homes as part of a township ordinance. The ordinance requires that builders replace uprooted trees with nursery stock, at least 2.5 inches in diameter, and guaranteed for two years. In addition, larger trees must be replaced by a number of trees determined by the sizes of those uprooted …

Phys.org, January 14, 2015: Root hydraulic conductance linked to trees’ post-transplant recovery

Survival of field-grown trees grown for transplanting into landscapes depends on many factors, such as transplant timing and tree size. Species-specific characteristics also contribute to trees’ ability to withstand and survive environmental stresses. In a newly published study researchers report on the relationship between tree roots’ hydraulic conductance—the roots’ ability to take up water from a growing medium and transport the water to other parts of a tree—and post-transplant recovery. The study was also designed to determine whether size and transplant timing affects trees’ transplant recovery …

Westchester, New York, Journal-News, January 14, 2015: One of the oldest White Ash trees in the Country taken down in Sparkil

See the photo gallery …

A contractor from Sullivan, a tree removal company, removes a White Ash tree that was over 350 years old, one of the oldest and largest recorded trees in Sparkill on Jan. 14, 2015. The tree died two years ago and had to be taken down because of its proximity to a road and business.

A contractor from Sullivan, a tree removal company, removes a White Ash tree that was over 350 years old, one of the oldest and largest recorded trees in Sparkill on Jan. 14, 2015. The tree died two years ago and had to be taken down because of its proximity to a road and business.

Bonham, Texas, North Texas e-News, January 14, 2015: Common problems with trees

Trees, in most situations, come with any number of issues, most being insignificant and easily managed. For instance, Live Oaks tend to create canopies which hang very low, often causing clearance issues. Pecans have weight issues that can cause limb failures. Sweet Gums have very sinister seed pods that can cause havoc when walking around them. The list goes on. The problem I am talking about today is house pests, mainly in the form of squirrels, rats, raccoons, and ants. As we all know, squirrels and trees go together. Ants and trees go together. Raccoons and trees go together, and, yes, rats and trees go together. If all these fuzzy little critters stayed in the trees, we wouldn’t need to talk about it at all. However, they don’t stay in the trees, and a lot of them would like nothing more than to set up housekeeping in YOUR house!

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Sonoma, California, Union-Democrat, January 13, 2015: Drought killing area’s trees

Getting dead trees cut down and removed from a piece of property can cost hundreds to thousands of dollars in Tuolumne and Calaveras counties, and it’s an expense more residents may find themselves paying this year. Drought, overgrowth, competition for scarce water, disease, and bark beetles appear to be killing more and more trees in the Mother Lode — evergreens and deciduous — and concern is rising among local foresters, arborists and researchers. “I am finding that the conifers are taking it very hard, primarily the Ponderosa pine,” said Scott Nye with Twain Harte Tree Service. “They are dying by the dozens. There were 77 trees on the property just across the street from me, 77 dead trees in the last two months. So I’m cutting like crazy. Dead pines …”

Philadelphia, Pennsylvania, AP, January 13, 2015: Seeing the forest and the trees at the Pa. Farm Show

Forestry contributes $19 billion to the state economy each year. It provides $2.2 billion in salaries and wages to 60,000 employees, according to the Pennsylvania Department of Agriculture. Each year for more than a decade, the forestry industry has been on display at the Pennsylvania Farm Show, bringing awareness and education about one of the state’s largest industries. This year, that display got a major face lift …

Modesto, California, Bee, January 13, 2015: Modesto paid $500,000 for trips and falls, fallen trees, other mishaps in 2014

Modesto paid more than $530,000 last year to settle lawsuits and claims filed against it by people who were injured after tripping and falling on uneven sidewalks, whose cars were smashed by falling tree limbs and for other injuries and damage they attributed to the city and its workers. The biggest payout was $370,000 to end a discrimination lawsuit filed by former police Sgt. Carlos Castro, and the smallest was $17.97 to a woman whose mailbox was damaged when workers removed a city tree. In all, the city paid $530,703.07 to resolve 64 claims and lawsuits. The money came from the city and not insurance …

Chico, California, Enterprise-Record, January 12, 2015: Oroville Cemetery trees remain as parties return to court

An uncertain status quo remains for 13 elder trees in front of Oroville Cemetery as parties fighting over their fate returned to the Chico courthouse Monday. The citizen group Save Oroville Trees asked Butte County Superior Court Judge Stephen Benson to stay a Dec. 30 temporary restraining order that potentially cleared the way to allow PG&E to remove the elm and sycamore trees on Feather River Boulevard. In a separate, related case, the group’s attorney, Richard Harriman, also asked the judge to prevent PG&E from removing the trees until a more thorough review was conducted …

Examiner.com, January 13, 2015: Three reasons we’re all like trees

Every Christian needs to realize they are not self sufficient and cannot stand on their own. The Christian life is built around a relationship, first with God and then with others. We are dependent on that fellowship with others in order to grow in our faith and to insure our Christian walk is stable. Trees and you exist to benefit others Trees serve a lot of useful functions. They provide shade in the summer and piles of leaves in the fall to jump into. They make a good place for a rope swing or to tie a hammock onto. The list of the ways trees benefits others is endless ..

Ohio State to Oregon: "We hug trophies, not trees."

Ohio State’s Brutus Buckeye to Oregon: “We hug trophies, not trees.”

Portland, Oregon, KGW-TV, January 6, 2015: Buckeye tree from 1958 Rose Bowl thrives at UO campus

One souvenir from the 1958 Rose Bowl game between the University of Oregon and Ohio State is thriving at the UO campus in Eugene. It’s a 57-year-old Buckeye tree, standing tall in front of the Lillis Business Complex. The presidents of each college made a friendly wager on the game, and the loser would have to give the winner a gift. Legend has it that the governors of each state were involved in the bet, as well. “We wagered a Douglas Fir, and they wagered an Ohio Buckeye,” said Jane Brubaker, campus landscape designer at UO. Oregon lost the game, but the Ohio State president was so impressed with how the Ducks played that he sent a tree to Oregon, anyway …

Los Angeles, California, Daily News, January 12, 2015: Volunteers fix trails, plant trees in Big Tujunga five years after Station Fire

A furnace of intense heat didn’t just incinerate the trees on 161,000 acres of the mountains above La Cañada Flintridge and Sunland-Tujunga in the fall of 2009. It awakened the aliens. Arundo. Spanish broom. Tree of heaven. These foreign plant species, that once laid dormant in the soil, came alive as a result of the 2009 Station Fire. Today, they are still wreaking havoc on streams and trails …

Midland, Texas, Reporter-Telegram, January 13, 2015: After the Storm: Take the right steps to care for trees

The past two weeks have seen rain, ice, wind and freezing temperatures combine in a way not seen in Midland for a very long time. One look around at our parks, neighborhoods and yards, and the damage caused by this arctic blast is all too evident. How do we recover from this storm, and where do we go from here?

wellingtontrees150113Wellington, New Zealand Dominion-Pot, January 13, 2015: Trees trashed after Wellington stag party

A stag do participant allegedly trashed $3000 worth of trees in a dramatic exit from a Wellington bar after being told he was too drunk to be there. The 29-year-old man was arrested and charged with wilful damage after a police officer caught him taking out his frustration out on eight trees in planter boxes that decorate Forresters Lane, which runs off Tory St in central Wellington. Photographs of the trees show their tops have been snapped off …

Phys.org, January 12, 2015: Vanishing big trees put Australia’s urban wildlife in peril

Across Australia – and the world – the future of large old trees is bleak and yet large trees support many species such as birds and small mammals, says Mr Darren Le Roux, a PhD student at the ARC Centre of Excellence for Environmental Decisions (CEED) and The Australian National University. As cities lose their large old trees, native wildlife that depends on large trees for food and shelter will also be in jeopardy. This calls for urgent intervention to stop declines, including reducing the potential risks posed by large trees to people and property, he says …

Opelika150112Opelika, Alabama, Opelika-Auburn News, January 11, 2015: ‘Part of progress’: Trees to be cut on course, increase airport safety

For years, a thick line of trees has formed a jagged silhouette separating Indian Pines Golf Course and the Auburn University Regional Airport’s runway 18. Many of the trees — roughly 1,000 – are slated to be cut down in an effort to increase flight safety on the runway and comply with Federal Aviation Administration guidelines. “With the trees as they are now, I’ve had passengers after we land say, ‘Wow we’re pretty close to those trees,’” said Ron Pilz, director of air transportation for Auburn University. “And the answer is yes, we are pretty close to those trees. What the airport wants to do is to take down the trees so it will allow the FAA to establish an instrumental approach into that runway, which we currently do not have at night. That’s significant to us …”

Binghampton, New York, Press & Sun-Bulletin, January 10, 2015: Humans, trees have vital relationship

Photosynthesis and respiration are the two essential processes that allow life to exist. As humans, we breathe in air, which contains oxygen. Oxygen is essential for us and all other animals to survive. Once we breathe in oxygen, our body uses it, along with sugar that we get through eating, to produce energy, which then allows us to be active. This process is known as respiration. During respiration, both energy and a gas known as carbon dioxide are produced. When we breathe out, the carbon dioxide that is produced is released into the air …

Portland, Oregon, Oregonian, January 10, 2015: Tips to properly pruning fruit trees: OSU Extension workshops ask ‘how much fruit do you eat?’

Anyone who buys or inherits a fruit tree faces the intimidating crossroads of how, when and if they should prune. “It’s one of the most difficult things for people to understand,” said Ross Penhallegon, horticulturist with Oregon State University’s Extension Service. “Ultimately, they make a few cuts and think, ‘Oh, I’m going to hurt the tree’ and run back into the house to watch TV.” But without the proper maintenance, production of fruit falls off, diseases increase and frustration goes off the chart. The key at that point is to clear out the center of the tree to let sunlight in, or cut the tree down and plant four dwarf varieties that get to be 10 feet rather than 40 …

Charleston, South Carolina, Post and Courier, January 9, 2015: DOT logging hundreds of trees in I-26 median

Some 54 acres in the Interstate 26 median are being clear-cut because of deaths and injuries caused by cars leaving the road and striking trees. Contractor Cherokee Inc. of Columbia is logging 11 miles of the interstate in areas between Interstate 95 and Summerville, said Behling Guess, state Department of Transportation resident construction engineer …

Plymouth, Massachusetts, Wicked Local, January 11, 2015: Burial Hill –Expert says trees and stones have equal value

In the aftermath of the selectmen’s decision to approve the removal of almost two dozen trees from Burial Hill, what would an independent expert have to say sight unseen about the criteria the town used in making its decision? Michael Trinkley is the director of the Chicora Foundation (CF), a South Carolina-based, nonprofit, heritage-preservation organization with an established reputation in cemetery preservation …

Richmond, Virginia, Associated Press, January 11, 2015: Project aims to honor Civil War dead with 620,000 trees

From Thomas Jefferson’s Monticello in Virginia to Pennsylvania’s Gettysburg, an ambitious memorial is slowly sinking roots: the planting of 620,000 trees representing the Civil War’s human toll. With only about 2,000 trees in the ground, the goal of the nonprofit Living Legacy Project will likely extend well beyond the Civil War’s Sesquicentennial, which concludes this year. The project is undaunted, with 8,000 plantings scheduled in 2015. Organizers already are looking ahead to another milestone for completion of the $65 million memorial. “What I personally envision is 50 years from now, when this country commemorates its bicentennial of the Civil War, these trees will be in full bloom,” said Shaun Butcher, spokesman for the project. “Future generations can visit this region and see that there is a national memorial for the Civil War fallen …”

moneytree150109Des Moines, Iowa, Iowa Farmer Today, January 8, 2015: Financial returns good for growing trees

When planning crops, foresters speak in years, not months. Even so, results of a study by Trees Forever show promise for several agroforestry crops suitable for Iowa soils and climate. The study was funded by the Leopold Center for Sustainable Agriculture. Jeff Jensen, Northwest Iowa field coordinator for Trees Forever, examined six agroforestry crops: hazelnut, black walnut, chestnut, aronia berry, Christmas tree and elderberry. “The simple truth is that we need more perennials on the landscape for many reasons — to improve water quality, reduce flooding and sequester more carbon, to name a few,” Jensen said in a news release. “Trees can provide all of these benefits plus nuts, berries, biomass, seed and wildlife. The idea is that if these crops also could provide some kind of return to the farm family, they would more likely be adopted …”

Fayetteville, Arkansas, KFSM-TV, January 8, 2015: City workers trim trees around Lake Fayetteville where jogger was injured

Parks and Recreation workers are cutting back 10-15 feet of trees and brush from trails around Lake Fayetteville, in an area where a woman was hit by a tree branch and severely injured in November.City officials said the incidents are unrelated, but injured jogger Candice Carlsen said she doesn’t think that’s true. “I think the timing is interesting, and I think that indicates that they recognize there’s an issue and they have a duty to protect the people that are using their paths,” Carlsen said. Carlsen was hit by a falling limb while she was jogging, crushing her leg and putting her in the hospital for weeks. She has had four surgeries, and is beginning physical therapy this month. As of now, she still isn’t able to walk on her own (video report) …

Breaking Energy, January 8, 2015: Over/under regulated: If trees could talk

East Run Hellbenders Society, an environmental organization, motioned to join an ongoing lawsuit in Pennsylvania on behalf of Little Mahoning Creek. Not an organization named “Little Mahoning Creek,” but on behalf of the actual waterway and “all the water and land ecosystems that feed into it.” The group says it is invoking the “Rights of Nature Doctrine,” which is something that one thinks up while tripping on a gallon of mushrooms and watching a Disney movie marathon …

Nanaimo, British Columbia, January 8, 2015: City of Nanaimo looking for people responsible for cutting park trees

Tips are coming in after the City of Nanaimo turned to the public to help find whoever illegally felled trees in the north end. Twelve trees, including two alders, two Douglas firs and eight western large leaf maples – all species native to the Island – were destroyed in a section of parkland on the north side of Laguna Way near Universal Place.  Alan Kemp, city urban forestry coordinator, said the cutting, reported by the owner of a neighboring property in early December, would have taken several hours to carry out. From queries around the neighborhood Kemp estimated the felling happened in mid November. “He didn’t do a really professional job, but he did a pretty good job because he felled everything and laid it all down, away from hydro lines and did back cuts and that kind of stuff,” Kemp said …

Waco, Texas, Tribune, January 8, 2015: Nursery to replenish Waco’s ‘urban forest’ with park trees

Trees in Waco’s parks and public spaces have taken a beating in recent years from wind, drought and disease, but a project is afoot to replenish the “urban forest.” The city of Waco is preparing to plant 700 saplings at a new city tree nursery near Waco Regional Airport, with plans to begin transplanting them in about five years. Ultimately, the city nursery could have as many as 7,000 young trees and produce about 500 trees a year, city park Superintendent Burck Tollett said …

falltree150108Jacksonville, Florida, WJAX-TV, January 7, 2015: Trees being cleared by FDOT contractors fall on 2 parked cars

No one was hurt Wednesday evening after a tree smashed down on top of two parked cars in Mandarin. It happened around 7 p.m. on Claire Lane. The Florida Department of Transportation said one of its contractors was clearing trees as part of the Interstate 295 express lanes project. FDOT said that company is responsible for reviewing the accident and taking action to make things right with those cars’ owners (video story)…

Muskegon, Michigan, Chronicle, January 7, 2015: First ash trees fall in mass-cutting at Bay City State Recreation Area

The first ash tree fell with a crackle and boom on Wednesday morning at the Bay City State Recreation Area, smashing against the snow-covered parking lot and sending a white cloud of frost into the air. The roughly 3-foot-in-diameter tree was the first of about 540 set to be cut down at the state park, 3582 State Park Drive in Bay County’s Bangor Township, as part of what’s being called the largest mass removal of trees in Michigan state park history. The trees, ranging in size from 20 to 100 feet tall, all were infested by the dreaded emerald ash borer and are being removed for safety reasons, according to park officials …

New York City, Riverdale Press, January 7, 2015: Nearly 100 trees axed at retirement home

Residents of Arlington Avenue and surrounding streets are lamenting a perceived “environmental tragedy” in their neighborhood. In November and December, workers removed nearly 100 large trees from the grounds of the Cardinal O’Connor Clergy Residence at 5655 Arlington Ave., a home for retired priests. The undertaking was part of an ongoing expansion to provide more housing for the city’s retired clergy. “Everyone in the area of Arlington Avenue between West 256th to West 259th streets is upset by the cruel and tragic devastation,” said resident Jon Allen. Several residents questioned whether the trees, including some large oaks standing at over 100 feet tall, had been legally removed. They pointed to the residence’s location in one of the city’s Special Natural Area Districts, or SNADs …

Saginaw, Michigan, WEYI-TV, January 7, 2015: Hundreds of trees will be removed due to emerald ash borer infestation

A project to remove hundreds of trees from a Bay City park has begun. The tree removal is due to infestation by the emerald ash borer. Some trees at the Bay City State Recreation area are 100 feet tall. It’s estimated more than 500 trees will be taken down (video story) …

Powerline Blog, January 5, 2015: Guess what, Mom? Trees like CO2

To wonder whether higher levels of carbon dioxide might stimulate more rapid plant growth—perhaps even in the tropics!—is one of those heresies that brings down instant condemnation from the climatistas, and yet a few brave scientists have decided to study and measure the topic. Last week the Proceedings of the National Academy of Sciences (PNAS) published “Effect of increasing CO2 on the terrestrial carbon cycle,” by two professors from CalTech and one from the National Center for Atmospheric Research in Boulder …

Denver, Colorado, KUSA-TV, January 7, 2015: Vandals chop trees along bike trail

Police are trying to solve a Christmas mystery: who cut down nearly two dozen trees along the Cherry Creek Bike Trail in Cottonwood Park? “By the time we had ended our tally, we were at 22 trees worth about $22,000,”Officer Dawn Cashman said. Police believe whoever cut the trees down did it quickly. An officer was patrolling in that area around 9:30 a.m. on Christmas. By 10:30 a.m., police got a call from someone walking along the path reporting the vandalism (video story) …

Paulding, Ohio, Progress, January 7, 2015: Planting the right trees to meet your needs

Trees are a vital part of our community and wildlife in Paulding County. Trees can provide you with shade, a serene atmosphere, provide natural cover for vital wildlife, as well as increase your property value. According to the USDA Forest Service, “Healthy, mature trees add an average of 10 percent to a property’s value.” Planting trees are a true investment in not only our environment, but your property for the future …

EAB150107Saginaw, Michigan, WNEM-TV, January 6, 2015: 540 infected trees scheduled to be cut down at state park

A local state park will have a little more space on Wednesday after crews will start the process of cutting down hundreds of trees. The emerald ash borer is a beetle and an invasive species that is killing the trees and forcing their removal. “I grew up on this beach and it’s just gone,” Jeff Deming said. Deming said he frequently visits the Bay City State Recreation area in Bay County, but he’s devastated by the fact that more than 500 trees are scheduled to be cut down …

Lewisburg, Pennsylvania, Daily Item, January 6, 2015: 170 trees to be felled in two Lewisburg parks

The emerald ash borer has claimed about 170 trees in two Lewisburg parks, which will be felled this month to prevent further spread of the pervasive pest, officials of the Shade Tree Commission and recreation authority announced. All trees in Hunt Park and about 75 percent of trees in the Lewisburg Area Recreation Park will be cut down …

Niagara Falls, New York, Gazette, January 5, 2015: Group working to identify trees of historical significance in the Lewiston area

There are residents in Lewiston who predate the first European to write of Niagara Falls, who saw the British armies alongside the Huron Native Americans storm the Stella Flats to burn the village and who watched enslaved African-Americans walk to freedom on the Underground Railroad. They are “witness trees,” a project taking place under various stewardships in communities across the country. Now in Lewiston under the guidance of Norm Machelore, Bruce Sutherland, and Lee Simonson, the trio wants to bring the region’s deep-rooted history to visitors and residents with the help of the trees …

Lafayette, Indiana, WLFI-TV, January 6, 2015: Authorities: Man, 71, dies while sinking trees into lake

Authorities say a 71-year-old man has died while sinking Christmas trees into a southwest Michigan lake to improve the habitat for fish.  The Cass County sheriff’s department says Larry Malsch of Cassopolis was in a boat on Shavehead Lake around 11 p.m. Monday when it capsized. The lake is in Porter Township, just north of Indiana …

lean150107Redding, California, KRCR-TV, January 6, 2015: Leaning trees not always dangerous

Along the Sacramento River Trail, trees lean over the pathway in different locations; however, city officials said they are not dangerous. The City of Redding Parks Department has certified arborists that regularly inspect trees on city property. “There is a lot of leaning trees on the trail, but we checked most of those and they are not an issue at this point,” said Paul Anderson, superintendent for the City of Redding Parks Department …

Sonora, California, Union-Democrat, January 6, 2015: Courthouse trees in question: Public safety risks may bring changes to historic square

An advisory commission to the Tuolumne County Board of Supervisors recommended Monday that up to four nearly 80-year-old trees be removed from Courthouse Square in downtown Sonora because they pose risks to public safety. The Tuolumne County Historic Preservation Review Commission met at 4 p.m. Monday in the County Administration Center, across the street from Courthouse Square, to provide input for the county Board of Supervisors on an estimated $40,000 park maintenance project proposed to occur this winter. County Administrator Craig Pedro has said the main goals of the proposed project are to improve safety and the park’s overall health, as well as address concerns that have been raised by city business owners regarding unwanted activity at the park …

Worcestertrees150106Worcester, Massachusetts, Telegram & Gazette, January 5, 2015: More trees in Worcester’s Green Hill Park to be removed due to Asian longhorned beetle risk

In the battle against the Asian longhorned beetle, more trees will fall. After more than 500 trees within three acres on the perimeter of Green Hill Park were removed last summer, the Asian Longhorned Beetle Eradication Program is now calling for host trees within 48 acres inside the park to be removed. Not all trees within those 48 acres will be cleared, just the 13 species of trees that host the invasive beetle, according to the U.S. Department of Agriculture’s acting project manager for the eradication program Ryan Vazquez …

Jacksonville, Florida, WTLV-TV, January 5, 2015: Tearing down trees for a faster commute

The Florida Department of Transportation has started a project that would create “Express Lanes” on the First Coast. That includes a stretch of I-295 from the Buckman Bridge to I-95. To get the work done, thousands of trees are being taken down. That part of the project will continue for seven more months. Kevin Tincher has lived near I-295 in Mandarin for years. “When we moved here you could see or hear nothing from the highway – now we can wave at people as they pass,” he said …

New Orleans, Louisiana, Defender, January 5, 2015: Trees please

Some New Orleanians are beginning to convert their Douglas Firs into Mardi Gras Trees. However, most locals are wondering what to do with the shedding Christmas trees in their living rooms. Today, Mayor Mitch Landrieu and the City reminded citizens that tree recycling programs will be available this week. The discarded cheer will be repurposed to protect the coast and the wetlands. In a statement, Landrieu said, ”New Orleans is earning a solid reputation as an eco-friendly city, and this service is one of the ways our residents can help protect and restore our environment,” said Mayor Landrieu. “Together, we can stop thousands of trees from being needlessly disposed in a landfill when it can be reused to provide critical support in helping preserve our cherished wetlands …”

USA Today, January 5, 2015: Video – Used Christmas trees are like catnip for zoo lions

A British Zoo is once again inviting residents to turn in their used Christmas trees to be used as playthings for the zoo’s African Lions …

Phoeniz, Arizona, KTVK-TV, January 5, 2015: Residents of Surprise community fight to save trees

Some residents in Surprise are fighting to keep some trees from being cut down in their neighborhood. About 100 neighbors from the Sarah Ann Ranch community stood together to form a human chain on Sunday. Their goal? To keep the citrus trees near 175th Avenue and Cactus from being cut down by APS for a project approved decades ago. New power lines are going in and the trees are in the way. Frustrated neighbors say they didn’t know about the project, and believe the new power lines will ruin the view and landscape …

duluthtrees150105Duluth, Minnesota, News Tribune, January 4, 2015: Report: Trees will not survive work along 4th Street

An arborist’s report doesn’t bode well for the survival of the trees that now line Duluth’s East Fourth Street. St. Louis County is laying plans to rebuild the road, and the city will seize the opportunity to replace failing water lines and other critical infrastructure. Even though the proposed new street won’t be any wider than the existing one, arborist Manuel Jordan observed that “The scope of the work for the proposed project results in the inevitable loss or relocation of all boulevard trees.” The report could spell a death sentence for nearly 200 trees growing along a 2-mile stretch of road …

Vancouver, Washington, Columbian, January 4, 2015: Vancouver gets tough on violators of rules on topping trees

The owner of Sunrise Bagels wasn’t aware he was about to run afoul of city rules when he hired an arborist to top trees outside his downtown Vancouver store and bakery. Years ago, Don Kosterow bought the six European hornbeam trees and paid to have them planted next to the sidewalk outside his business, 808 Harney St. They grew so tall that they were obscuring the name of his business on his building, and he had the trees topped. Then came a warning letter from the city: Replace the damaged trees or be fined. Failure to pay the fine would be punishable by jail. In a Dec. 9 response to Charles Ray, the city’s urban forester, Kosterow wrote that his trees were well-groomed and healthy. “Customers can now see our sign from the street and the trees can be easily decorated,” Kosterow wrote. “We do not need a lecture regarding the value of a city canopy. We bought, planted and cared for the trees … the city did not …”

Hazleton, Pennsylvania, Standard-Speaker, January 5, 2015: Forestry officials seek to protect state trees from damaging insects

An insect with the ungainly name of Hemlock woolly adelgid poses a grave threat to the eastern hemlock tree and state forestry officials are mounting an effort to combat it. The Department of Conservation and Natural Resources is honing a conservation plan to save the eastern hemlock, the official state tree since 1931. It will rely on cooperation from private landowners who own a considerable amount of forest acreage in Pennsylvania …

Charleston, South Carolina, Post and Courier, January 4, 2015: Opinion – Grand trees deserve protection

There are many reasons the City of Charleston has ordinances to protect trees: their beauty, their important environmental role, the homes they provide for birds and other animals and their cooling shade. Often there is only one real reason developers want permission to cut them down anyway: The trees are in the way of their plans and the profit those plans are expected to generate …

Cary, Illinois, My Suburban Life, January 4, 2015:

During the course of the winter, workers from Trees “R” Us Inc. will be going through town. In the course of several minutes, the workers apply a saw toward the bottom of an ash tree to bring it down. The logs are hauled away and some of the limbs are put through a wood chipper and turned into mulch. The scene will repeat itself over and over in Cary as the village removes the remaining 1,800 ash trees in town to combat the infection of emerald ash borer. “Like every other town out there, our ash trees are in decline,” Public Works Director Erik Morimoto said …

CO2150102London, U.K., Daily Mail, December 31, 2014: Carbon dioxide emissions help tropical rainforests grow faster: Study shows trees absorb more greenhouse gas than expected

Tropical forests are growing faster than scientists thought due to rising levels of carbon dioxide in the atmosphere. A NASA-led study has found that tropical forests are absorbing 1.5 billion tons of carbon dioxide every year as they photosynthesize and grow. And this is far more than is absorbed by the vast areas of boreal forest that encircle the Arctic …

New York City, ABC News, December 31, 2014: NY couple complained about neighbor so much they were arrested

A Cooperstown, New York, couple, who often complained about their neighbor to a district attorney, were taken by surprise when charges were filed against them. Paul Sohacki and Katherine Gannon live on 12 scenic acres in Otsego County, New York. They say their neighbor Gene Ellis, who lives on more than 50 acres, attempted to steal their land. It all started, the couple recalls, because Ellis’ driveway crossed a sliver of their land. “He never asked permission. He said, ‘You’re not going to prevent us from driving on this driveway,’” Gannon told ABC News’ “20/20.” “He was redefining the border closer and closer to our house. We had to get the land surveyed and see who owned what,” Sohacki told “20/20 …”

Detroit, Michigan, News, January 1, 2015: Bay City-area park to lose hundreds of ash trees

Hundreds of trees will be chopped down at a state park in Bay County, victims of infestation by the emerald ash borer. “It’s a shame that so many people who are used to the level of shade we had over there will now have a lot less of that — a dramatically less amount of shade,” said George Lauinger, manager of Bay City State Recreation Area. “I guess you could say I’m one of them because I love having a wooded park,” Lauinger told the Bay City Times. The work could begin next week on more than 500 trees if the ground is frozen enough to support heavy equipment …

Columbus, Indiana, The Republic, January 1, 2015: Old oak trees from Berea College forest providing timber for Mayflower II repair

Just before Thanksgiving, a special load of Kentucky timber began a two-day pilgrimage to Massachusetts. The 30-foot planks will become a part of history that stretches back to the founding of America. The wood was the first of what is likely to be several batches of boards destined for the Mayflower II at Plimoth Plantation, a living history museum affiliated with the Smithsonian and dedicated to the English Pilgrims and their 17th-century colony at Plymouth, Massachusetts. During winter 2012, the Coast Guard discovered that a major refit of the Mayflower II would be required. But where to get all the wood? To rebuild the 90-foot hull of the four-masted, square-rigged sailing ship would take very long, three -to four-inch-thick boards, without any knots, as well as specially shaped wood for ship parts like futtocks and knees, none of which can be obtained at a lumber yard. Enter Terry Conners, University of Kentucky forestry professor. “I was thinking, ‘They need some white oak.’ Because a ship is basically an inside-out barrel — with bourbon you want to keep the liquid on the inside, with a ship you want to keep the water out. It has to be both strong and watertight …”

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Case of the Day – Monday, January 26, 2015

HEY, BUDDY, THAT’S PERSONAL!

personal150126When most people think about lawsuits, they focus on who won and who lost. But as important about issues of liability – who owes whom and why – can be question of how much the who owes the whom.

The win-loss is important, but ask the New England Patriots: even if you win, if the final score isn’t decisive enough, it can … well, leave you feeling a little deflated.

So often, we don’t just talk about liability – we talk about how the damages are figured, too. A case we worked on a few years ago shows us why that’s important.

A tree service company sent a crew to an address to remove a maple on the front lawn. Instead of going to 1553 Main Street, the crew mistakenly went to 1533 Main Street. That house, coincidentally, also had a maple tree in its front lawn, a magnificent and healthy specimen that the homeowner loved very much.

You can guess what happened. While the homeowner was obliviously toiling in his of-fice 10 miles away, the tree cutting crew made short work of the beautiful maple. When the owner arrived home that evening, his arboreal pride and joy was nothing but a stump and some sawdust.

There was no question about liability: the tree service company goofed. But how much to pay for the tree? Stumpage value makes no sense. The homeowner wasn’t raising the tree to sell the timber. Replacement cost for the tree might be a fairer measure. However, the largest tree that could be planted for the homeowner – with costs of a few thousand dollars – will not begin to replace the lost tree.

In our homeowner’s case, the measure of damages we finally settled on was a real estate appraisal that concluded that the value of the home had been lessened by about $17,000 by the removal of the mature tree.

Today’s case considers what might happen if the removal of the trees does not diminish the value of the property. A man named Chung bought a parcel of land for a home.  When he had a tree cutting service clear the land for construction, the cutters crossed the line onto Rora Park’s land, and removed about 560 trees.  The decision only implies this, but it appears that the “accident” might not have been accidental at all.  Rather, Chung may have steered the cutters in the wrong direction in order to improve the view from his land.

Whatever the reason, the liability was certain.  The problem arose because removing 560 trees didn’t really decrease the value of Rora Park’s land at all. Hard to believe, but then, Alaska is a pretty big place.  So Ms. Park demanded restoration damages, payment of the cost of restor-ing the property by planting new trees.  That would have been about $400,000.  The trial court granted damages equal to the cost of replanting 50 trees, but the Alaskan Supreme Court reversed.

It seems that if the wronged property owner doesn’t have a “reason personal to the land-owner for restoring the trees,” an Alaskan court won’t use that measure of damages.  In this case, Ms. Park waxed eloquent about how that she had once had cancer, and “this natural beauty of my yard is [a] healing spot for me, and . . . after work I come by, see my property and see the natural beauty and the trees and all that[. W]hen I [saw] that all cut out it just [made] me very – [it] just [broke] my heart, and then very angry . . .”  Unfortunately for her, she later tried to downplay how often she visited the property.

The trial court wouldn’t let her have it both ways, and found that she hadn’t justified restoration damages. But, apparently troubled by Ms. Parks’ neighbor getting away with a fast one, the trial court nevertheless awarded her restoration damages anyway. It may have seemed like justice, but it wasn’t the law.

Chief Justice Oliver Wendell Holmes, Jr.

Chief Justice Oliver Wendell Holmes, Jr.

The Alaskan Supreme Court said that restoration damages could be awarded only if Park had a “reason personal” for restoring her property. Because she failed to prove she had such a reason, she ended up being entitled to pretty much nothing.

There’s something not right about letting a slippery character like Chung pull a fast one, cut down 50 of the neighbor’s trees for a better view, and not have to pay damages for it. It reminds one of a quotation attributed to Oliver Wendell Holmes, Jr:  This is a court of law, young man, not a court of justice. 

Chung v. Park, 339 P.3d (Sup.Ct. Alaska, 2014). Landowner Rora Park sued her neighbor Christopher Chung for trespass, alleging that he cleared about 50 trees from her property without permission. The trial court found that the tree cutting did not diminish the property value and that there was no reason personal to the landowner for restoring the trees. But the trial judge nevertheless awarded damages equal to the cost of restoring 50 trees on the property.

Ordinarily, a landowner damaged by a trespass may recover either the loss in property value or reasonable restoration costs. But restoration costs are inappropriate if they are disproportionate to the loss in property value, unless there is a reason personal to the landowner for restoring the land. We thus conclude that we must vacate this award.

Chung hired a company to build the foundation of his new house. As part of that project, the contractor agreed to clear trees and other vegetation from the lot. Aerial photographs indicate that some trees were removed from Park’s property near the border of Chung’s lot between August 2008 and the end of September 2008, and more trees were removed between 2008 and 2009. The trees appear to have been removed more or less directly behind the house built on Chung’s property.  Timber debris, presumably from the cleared trees, was also discovered buried on Park’s property.  An expert witness hired by Park estimated that 562 trees were cleared from about a third of an acre of Park’s property.  He calculated that it would cost over $400,000 to restore the property to its former condition. But Chung’s expert witness testified that the market value of Park’s property was likely not affected by the removal of trees.

The trial court found Chung liable for the trees removed from Park’s property. Although the court acknowledged that Park had not proved that the tree cutting reduced the value of her property and found that Park had no reason personal for replacing the trees, it nevertheless concluded that “it would be reasonable both aesthetically and legally to award damages that would permit replacement of trees on that first portion of the lot that can be clearly shown to have been scraped clean as of September 27th, 2008.” The court therefore awarded Park the cost of replacing 50 trees, $23,500. Because the court found that Chung’s trespass was intentional, it awarded treble damages under AS 09.45.730.

Chung appealed.

trespasstimber150126Held:    The Alaska Supreme Court vacated the damage award.  It held that a party who is injured by an invasion of his property not totally destroying its value may choose as damages either the loss in value or reasonable restoration costs. But reasonable restoration costs are an inappropriate measure of damages when those costs are disproportionately larger than the diminution in the value of the land and there is no reason personal to the owner for restoring the land to its original condition. A reason personal is one that is “peculiar or special to the owner.”  The Court said “We require the landowner to demonstrate a reason personal because we believe it indicates circumstances where the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.”

During trial in this case, Park tried to establish a reason personal for replacing the trees that Chung had allegedly removed. She talked about having had cancer, and relying on her property as a “healing spot for me.” But she also downplayed her visits to the property later in the trial. As a result, the court found that Park had not established a reason personal for restoring her property.

According to the unrebutted testimony of Chung’s expert witness, the removal of trees from Park’s property did not appreciably affect the value of her property.  The trial court accepted that testimony in its findings of fact.  Therefore, the Supreme Court concluded, the damages the trial court awarded – $23,500 before trebling – were disproportionate to the diminution of the property value.  The Court said that the trial court could award restoration damages only if it found that Park had a reason personal for restoring her property.  Because it did not, the trial court’s award of compensatory damages that exceeded the diminution in the market value of Park’s property was not appropriate.

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Case of the Day – Friday, January 23, 2015

I FEEL PRETTY, OH SO PRETTY …

Hawkins v. McGee - the case of the hairy hand

Hawkins v. McGee – the case of the hairy hand

There’s always a tension between the value that a lover of the land places on his or her trees and the price tag affixed to those same trees by the green-eyeshade crowd of financial experts testifying in some cold courtroom.

The general rule is that the measure of damages when trees are wrongfully cut should be the difference between the value of the property before the trees were removed and the value after the trees are taken down. Fans of the ol’ case of the hairy hand (Hawkins v. McGee) from law school remember the general diminution of value concept. Notwithstanding this staple of first-year contracts class, courts in many states have carved out exceptions to the rule for situations just like today’s case.

The problem usually arises when only a relatively few trees of limited commercial value are removed or destroyed. In today’s case, an Episcopal Church lost 22 small trees when a contractor dumped too much fill dirt – taken from a road construction project – around their bases. The Church proved in court that replacing the trees — a couple cherry trees and a score of red oaks — would cost just over $17,000. But the trial court threw the case out, because it believed that the replacement costs weren’t relevant. Rather, the trial court said, the Church was obligated to prove how much less its land was worth with the trees gone.

The "tree volcano" ... pile dirt around the base, and suffocate the sapling.

The “tree volcano” … pile dirt around the base, and suffocate the sapling.  The Church lost 22 trees this way.

Holy birch bark! The problem was that the worth of the property hadn’t fallen much, it being close to a road and of limited use (there’s not that much of a market for church properties). But the Church didn’t want the diminution in property’s value for its collection plate: it wanted its trees back. The Minnesota Supreme Court had mercy on the Church, holding that where the trees served a function that was primarily aesthetic, replacement cost was a fair calculation.

Sometimes justice can’t be done by using the cold, analytical diminution-of-value approach. Occasionally, the wronged owner just plain likes the trees that had been taken, and who’s to say that because the loss may be measured psychologically rather than economically, the damaged party shouldn’t be compensated. We always thought that in such cases, the wrongdoer should be held to lose much of his or her moral standing to complain about how injured the injured party is. In this case, the Court said, that the owner’s enjoyment of the trees might not be quantifiable in a real-estate-value analysis just didn’t matter. (The second case we studied in law school, Peevyhouse v. Garland Coal & Mining Co., has always illustrated the mischief that can be done when a court ignores the aesthetic expectations of the wronged party).

The decision is necessary in the world of tree law, because otherwise, too many cases would founder on the rocks of damages: too many malefactors could cut down too many trees, and the likely penalties, even with treble damages available, would not deter the conduct.

Rector, Wardens & Vestry of St. Christopher’s Episcopal Church v. C.S. McCrossan, Inc., 306 Minn. 143, 235 N.W.2d 609 (Sup.Ct. Minn. 1975). When the Minnesota Department of Highways took about 8/10ths of an acre from St. Christopher’s to enlarge the intersection, the church lost its existing access and part of its parking area. The Rector hired C.S. McCrossan to construct a new parking space and access road.

irrelevant150123A grove of trees was located at the north end of the lot. In the process of grading, McCrossan dumped fill around the base of the trees, which the church argued caused the trees — two black cherry trees and twenty red oaks — to suffocate and die. The church’s expert testified that because of the variety, size, and condition of the trees, they had a total value of $17,267.
The church asserted that the grove of trees not only acted to screen the area from heavy traffic on two sides, but also gave the area a natural, pleasing, aesthetic, wooded atmosphere. The trial court directed a verdict for C.S. McCrossan on ground that church failed to prove damage based on diminution in value of real estate.

The church appealed.

Held:  The decision was reversed. The Minnesota Supreme Court ruled that the proper measure of damages for negligence in suffocating the trees was the replacement cost of trees rather than merely the loss of value of the real estate, notwithstanding the inability of the church to prove that destruction of trees diminished the value of the property as a whole. The replacement cost of trees that have an aesthetic value to the owner as ornamental and shade trees or for purposes of screening sound and providing privacy may be considered in determining damage incurred from the destruction of the trees, to extent that the cost is reasonable and practical.

Although evidence may be presented in rebuttal that the effect on the value of land as a whole is minimal, it is for the jury to balance elements of damage in arriving at a just and reasonable award.

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Case of the Day – Thursday, January 22, 2015

DOING YOUR DUTY

We don't know ... in fact, we're not sure who he is.  But the Rhode Island Supreme remained firmly in control - although with teeth gritted - in today's decision.

We don’t know … in fact, we’re not sure who he is. But the Rhode Island Supreme remained firmly in control – although with teeth gritted – in today’s decision.

Robert E. Lee, a man torn between duty to country and to his home state, once saidDuty is the most sublime word in our language. Do your duty in all things. You cannot do more. You should never wish to do less.”

Judges must remind themselves of that often, as they are called upon to apply laws they believe are ill-conceived in cases where the outcome seems less than just to them. The Rhode Island Supreme Court faced that unpleasant task recently, being required to send an injured citizen home empty-handed after an accident at a state facility. The Rhode Island statute in question, the State’s Recreational Use Statute, gives unusually broad immunity to governmental units, classifying the people who use parks and other facilities as little more than trespassers.

Agree or not with the Court’s discomfiture at treating a user of a state recreational facility as a trespasser, one must nevertheless admire the Court’s careful application of the law, coupled with its repeated solicitation of the legislature to correct what a majority of the state’s high court sees as short-sighted policy. Clearly, the judges didn’t like what the law compelled them to do … but they saw the only remedy for that as laying with the legislature.

Labedz v. State, 919 A.2d 415 (Sup.Ct. R.I. 2007). Antonina Labedz was walking along a concrete path at Scarborough Beach, a state-owned beach located in Narragansett, Rhode Island. She tripped on an uneven surface and fell to the ground, breaking her wrist. She sued, alleging the State was negligent in “permitting a dangerous uneven condition to exist on a portion of walkway and failing to warn invitees … of the dangerous condition on the premises.” The trial court found that the State was shielded from liability by virtue of the Recreational Use Statute. Labedz appealed.

How did Ms. Labedz miss that hole?  Or was the City negligent?  We'll never know, because sovereign immunity stopped this lawsuit in its tracks.

How did Ms. Labedz miss that hole? Or was the City negligent? We’ll never know, because sovereign immunity stopped this lawsuit in its tracks.

Held:   The State was not liable. Labedz argued that the Supreme Court should reverse prior cases which gave the State broad exemption from liability. But the Court rejected her position, noting that it had been unequivocal in its view that the unambiguous language of the 1996 amendment to the Recreational Use Statute clearly reflects the General Assembly’s intent to extend to the State and municipalities the limitations on liability afforded by that statute, most recently in Lacey v. Reitsma. The Court took the opportunity again to note its “concern about the troubling result that we felt obliged to reach by virtue of our reading of the Recreational Use Statute, and we urged the General Assembly to revisit the provisions of that statute concerning state and municipal immunity.” The Court felt uncomfortable with a statute that classified users of state and municipal recreational sites “as though they were trespassers.”

judge151022Labedz also argued that the trial court was wrong to grant summary judgment where the State could have been found liable if its conduct had been willful or malicious. She had alleged as much in her complaint, but she advanced no evidence to support her claim. But Labedz argued that it was the jury’s duty to find whether the conduct had been willful or malicious, and the trial court shouldn’t have taken away that duty by granting summary judgment without a trial. The Court ruled that if the facts were not genuinely disputed, as in this case, the law is pretty settled that a trial court may proceed to determine the existence of any legal duty without assistance from the jury.

Here, Labedz couldn’t point to any evidence that suggested the State acted willfully or maliciously, as those terms are used in the Recreational Use Statute. Summary judgment for the State was appropriate, albeit not cheerfully granted.

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Case of the Day – Wednesday, January 21, 2015

FALL IN MOOSE RIVER, MAINE

Not Bullwinkle -- Moose River is named for a generic moose, we understand.

Not Bullwinkle — Moose River is named for a generic moose, we understand.

Drive up U.S. Route 201 a pretty good way, up past Jackman and Wood Pond, and you’ll eventually happen on beautiful little Moose River, Maine, population 219. Located about 10 miles as the crow flies from the Canadian border, the little town is everything simple and natural that a harried city dweller could imagine about such a bucolic place.

Being a little backwater has some disadvantages.  Too small for municipal buildings, the town officials are expected to greet the public and transact the town’s business from their homes. That’s what Elizabeth Bell, the town clerk, did.  One January day in 2004, Linda Rodriguez – who had just moved there from Arizona and perhaps was unfamiliar with the concept of winter – was leaving Ms. Bell’s home cum office when she slipped on the steps. Unfortunately, the handrail was missing. Ms. Bell had noticed it was wobbly, and her hubby removed it for repair.  Being a spouse of the male persuasion, he hadn’t quite gotten around to fix it yet. The playoffs were on the weekend before, you know.

Ms. Bell didn’t have homeowners’ insurance against claims for personal injury because she believed “neighbors don’t sue … neighbors.”  Oops.  It turns out that some of them – the ones from Arizona –  do.  Ms. Bell defended by claiming that she was protected by governmental employee immunity.  The Town, on the other hand, argued it was her house, and the Town had no control over it, so it had no liability. We guess it’s “every dog for himself” when the subpoenas start flying.

Ms. Rodriguez - having just moved in from sunny and hot Arizona - apparently was surprised to find the white stuff was slippery.

Ms. Rodriguez – having just moved in from sunny and hot Arizona – apparently was surprised to find the white stuff was slippery.

The trial court found that Bell was not immune from liability but the Town was. On appeal, the Maine Supreme Court agreed that Ms. Bell’s failure to replace the handrail had nothing to do with her government function. As for the Town, the Court said, like it or not, Ms. Bell’s place was a public building and the Town could be liable for negligence. And judging from the comments on the news report, some Maine residents see it as another case of “flatlanders” messing things up in Maine.

Rodriguez v. Town of Moose River, 922 A.2d 484 (Sup.Ct. Me., 2007). The Town of Moose River has a population of about 230 residents. Like other small towns in Maine, the Town does not own an office building suitable for conducting Town business. As a condition for holding office, the Town required the town clerk to conduct official duties at her personal residence. The Town conducts its selectmen’s meetings at a selectman’s home.

In March 2000, Bell was elected town clerk and tax collector. Accordingly, she opened her home to the public to conduct Town business. The Town brought its computer, file cabinets, desk, and office supplies to Bell’s home. She placed a sign on the side of her house, which read, “Moose River Town Clerk and Tax Collector.” Bell received about $300 per month as compensation for her work for the Town. During an average year, approximately 200 people would enter Bell’s home to conduct Town business.

Moose River isused to different day-to-day hazards than steps without handrails.

Moose River is used to different day-to-day hazards than steps without handrails.

On January 23, 2004, Rodriguez went to Bell’s home with her husband and two children to register two motor vehicles. Rodriguez had called Bell beforehand to schedule the appointment. There was some snow and ice on the sides of the steps leading into Bell’s home, but the middle of the steps was clear. During the registration process, Rodriguez had to leave Bell’s home to retrieve her checkbook. After conducting her business, Rodriguez exited the home carrying one of her children in a car seat. She fell when she stepped down to the middle cement step outside of Bell’s home. Rodriguez injured her leg as a result of the fall.

Prior to Rodriguez’s fall, there had been a handrail on Bell’s front steps. Bell’s husband had removed the handrail when he noticed that it was wiggling. Bell did not check with the Town before removing the handrail. Rodriguez sued Moose River and Bell, claiming they had been negligent in failing to properly maintain Bell’s property. Rodriguez argued that had there been a handrail in place, it could have assisted her in walking down the steps or she could have grabbed it to prevent her fall. The trial court denied Bell’s motion for summary judgment, holding that she was entitled to discretionary function immunity. The trial court granted the Town’s motion for summary judgment, finding that Bell’s residence was not a “public building” pursuant to the immunity exception of the Maine Tort Claims Act, 14 M.R.S. § 8104-A(2). Bell and Rodriguez both appealed.

Held:  Bell was denied immunity, and the dismissal of the Town as a defendant was reversed. The Maine Supreme Court said that whether discretionary function immunity applies depends on whether the challenged act, omission, or decision (1) necessarily involves a basic governmental policy, program or objective; (2) is essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of them; and (3) requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. Of course, the governmental agency involved possesses the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision.

The question with respect to Bell’s entitlement to discretionary function immunity, the Court said, was whether Bell’s failure to install or replace the handrail on her front steps constituted a discretionary act “reasonably encompassed” by her duties as the town clerk and tax collector. Generally, operational decisions, such as those regarding the safety or maintenance of premises, fall outside the scope of discretionary function immunity, unless those decisions serve some other government policy or purpose. Here, Bell’s decision on the handrail did not involve a basic governmental policy related to performing duties as the town clerk, was not an act essential to the realization or accomplishment of such a policy, and did not require her to exercise a policy evaluation, judgment, or expertise. Rather, Bell’s choice not to replace the handrail resembles a decision ordinarily made by the general population, relating to the duty of care a landowner owes to the people who enter upon his or her property. Thus, she was not entitled to discretionary function immunity.

steps150121However, Bell was entitled to limited liability as a government employee. Pursuant to 14 M.R.S. §8104-D, the personal liability of an employee of a governmental entity for negligent acts or omissions within the course and scope of employment are subject to a limit of $10,000 for any claims arising out of a single occurrence. Because Bell was required to open her home to the public as part of her duties as town clerk and tax collector, the Court found, her failure to replace the handrail on her stairs was an act within the scope of her employment.

As for the Town, the Maine Tort Claim Act holds that governmental entities are liable for negligent acts or omissions in the construction, operation or maintenance of any public building or the appurtenances to any public building. For all intents and purposes, Bell’s home functioned as a public building as well as her private residence. By its plain meaning, a “public building” is “[a] building that is accessible to the public; esp[ecially] one owned by the government.” BLACK’S LAW DICTIONARY 1243 (7th ed.1999). The function a building performs and its character in relation to the public are important factors in determining whether a building is “public.” Here, the residents of Moose River had no choice but to go to Bell’s home to perform legally necessary Town business, such as registering motor vehicles and paying taxes. Bell put a sign on her home, allowed residents to come into her home to conduct official Town business, and did not restrict her hours of service. The Court concluded that on the specific facts of this case, Bell’s home was a “public building” within the meaning of the Tort Claims Act.

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Case of the Day – Tuesday, January 20, 2015

TRESPASSERS W

trespassers-w150120Trespass … the concept has been around for a long time. The Israelites trespassed in the Promised Land. Just ask the residents of Jericho. The Romans trespassed throughout the known world. The Pilgrims trespassed on some prime real estate, as the descendants of the Wampanoag tribe will attest. Piglet, Winnie the Pooh’s sidekick, explained to the befuddled bear that his ancestor, “Trespassers William,” whom was remembered in the Hundred Acre Wood by a memorial sign emblazoned with “Trespasser W.”

Most famously, Jesus advised us to forgive those who trespassed against us. Alas, as today’s case illustrates, that advice – like much of His teachings – are honored in the breach.

Trespass is most readily defined as unauthorized personal intrusion on land in possession of another by a wrongdoer, or by his failure to leave such land, or by throwing or placing something on such land, or by causing the entry of some other person onto such land. Because the law of trespass pops up time and again in tree cases – where some canny lawyer tries to turn the intrusion of branches over or roots under the property of another person into a trespass – it’s a good idea to brush up on the doctrine every now and then.

sodarockwine150120So pour yourself a glass of Soda Rock cabernet sauvignon, vintage 2010, and consider a recent case involving boundary dispute between Napa Valley vineyard and adjacent winery operators. About 15 years ago, Ken and Diane Wilson bought a decrepit century-old winery building north of San Francisco. Over a decade, they restored it into a thriving winery, complete with tasting rooms and amusements for oenophiles.

The rear of the winery building backs up to a vineyard belonging to Belle Terre Ranch, with a pathway or “avenue” between. A line of oak trees runs behind the winery within about four feet of the building. Thanks to the ubiquity of satellites (look up and smile!), we are able to easily understand the layout, and thus the nature of the Wilsons’ problem with the neighbors.

sodacreek150121During the reconstruction, the Wilsons regularly used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment involved in the reconstruction. Belle Terre also used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain, because it was just trying to be neighborly. Belle Terre’s permission to use the avenue was not intended to be perpetual, but rather just “to repair the winery.”

When the Wilsons applied for permits to complete the winery renovation, Belle Terre raised concerns with the county about trespass by wine-tasting patrons. One of its concerns was that a “survey should be done before a permit is issued.”

Knowing they would need a survey to plan the reconstruction, in January 2003 the Wilsons commissioned a surveyor. His survey showed the Belle Terre-Soda Rock boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

Five years later, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, which was settling on the grapevines, damaging the crops. Wilson replied that the property line was about nine feet out from the winery, saying he had had it surveyed. After this confrontation, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, and it closely corresponded to the line of oak trees.

Belle Terre had an attorney write a letter to the Wilsons in August 2008, telling them to stop trespassing on Belle Terre’s property. When the Wilsons continued to use the avenue, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages.

The Wilsons claimed they owned the nine-foot strip of land, and denying they were claiming any interest in Belle Terre’s property. At trial, however, the Wilsons claimed in the alternative a prescriptive easement over the disputed strip of land.
The trial was a battle of the surveyors. When the dust settled (on the grape leaves, no doubt), the trial court found in favor of Belle Terre, and issued judgment quieting title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees in the amount of nearly $117,000 under Code of Civil Procedure § 1021.9.

sodacreek2-150121On appeal, the Wilsons argued vociferously against the propriety of the $1.00 in damages, for the very good reason that if there were no damages awarded, there could be no attorney’s fees awarded.

The California Court of Appeals upheld the judgment in favor of Belle Terre Ranch, ruling that the Wilsons were permanently enjoined from trespassing in Belle Terre’s vineyard. Likewise, the Court said, where there’s a trespass, there are always damages, even if they’re not proven. Property owners possess a “dignitary interest in the inviolability” of their property rights, the Court said. Thus, “every trespass is an invasion of a legal right of another and carries with it the right to nominal damages,” even if actual damages weren’t proven.

Such damages were not proven, in this case, probably because damages were an afterthought to Belle Terre – it started out the case just wanting a court to tell Wilsons to swill their wine somewhere besides on the “avenue.” We suspect that only when their lawyers’ bills started skyrocketing past $10,000 to $50,000 to north of $100,000, did the notion of getting someone else to pay the mouthpiece take hold.

About then, we surmise, someone in the offices of Belle Terre’s lawyers found a provision in California law that held that in “any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.” The law was intended to give farmers and ranchers a meaningful remedy for damage caused by trespassers breaking through fences to take motor vehicles onto private property. The statute was designed “to enhance the ability of ranchers to sue trespassers for damages, particularly in those cases where the rancher must now either compromise a significant portion of a valid claim by suing in small claims court … or by spending a major share of the recovery to pay his or her attorney.” Sweet! Suddenly, money became a driver in the case, at least enough money to pay learned counsel.

Because Belle Terre did not focus on damages, the trial court just found nominal damages of a buck. That was enough, the judge said, to assess the $117,000 in legal fees against the Wilsons.

Not so, the Court of Appeals held. After a lengthy opinion that appeared to be thoroughly crushing the Wilsons’ grapes, the Court revered the legal fees holding, thus turning a Mad Dog 20/20 opinion into a Clos Des Papes Chateauneuf-du-Pape 2012. The Court concluded that Cal. CCP § 1021.9 permitted the award of attorney fees only where there had been real damages, not just nominal or assumed damages.

Here, the Court said, the parties were primarily litigating a boundary dispute upon which a trespass claim depended, not the classic trespass case that an aggrieved rancher on a budget might need Cal. CCP § 1021.9 in order to pursue. There was no evidence of actual damage to the Belle Terre vineyards, and thus, while the $1.00 nominal damages stood, the attorney fees did not.

The lesson here – never overlook the benefit of proving actual damages. No doubt Belle Terre started out disclaiming any interest in proving damages. Had it proved even a dollar’s worth of damage from dust on the vines, ruts in the avenue, or anything else, its legal fees would have been covered.

Belle Terre Ranch, Inc. v. Wilson, Case No. A137217 (Ct.App.Cal. 1st Appel. Div., Jan. 13, 2015): Ken and Diane Wilson bought a rundown century-old winery building near Healdsburg, California, in 2001. Over a 10-year period, they restored it and opened a winery and retail operation.

The winery building backs up to a vineyard belonging to Belle Terre Ranch, with an unpaved “avenue” between them. A line of oak trees stands behind the winery within about four feet of the building. During the reconstruction, the Wilsons used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment. At the same time, Belle Terre used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain about the Wilsons’ usage for construction, but the permission was not intended to be perpetual.

The Wilsons commissioned a survey in order to plan the reconstruction of the winery. The survey showed the boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

In about 2008, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, which was settling on the grapevines, damaging the crops. At this time, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, and it closely corresponded to the line of oak trees.
After Belle Terre’s demands that the Wilsons stop using the avenue went unheeded, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages. The trial court found for Belle Terre, rejecting the Wilsons’ survey as flawed. It quieted title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees of about $117,000.

Napa Valley - idyllic, except when litigation rears its ugly head.

Napa Valley – idyllic, except when litigation rears its ugly head.

The Court of Appeals upheld the judgment in favor of Belle Terre Ranch, enjoining the Wilsons from trespassing in Belle Terre’s vineyard. It held that Belle Terre met its burden of proving the Wilsons intentionally, recklessly or negligently entered Belle Terre’s property or caused another to do so. There was evidence the Wilsons continued to trespass on Belle Terre’s property even after Belle Terre’s lawyer sent them a letter demanding that they cease. Trucks engaged in the Wilson remodel were photographed trespassing on Belle Terre’s property even past the nine-foot disputed area, and a dumpster used for the Wilson construction was placed over the nine-foot line. Belle Terre testified that the Wilsons discharged what appeared to be “gray water” onto Belle Terre’s property and also destroyed a wildlife habitat. A construction worker from Soda Rock also was seen trespassing into Belle Terre’s vineyard. The Wilsons argued there was “no evidence” linking the work performed by “unidentified construction workers” with the Wilsons’ land or improvements, but the court called this argument “patently absurd.”

The Court held that every trespass upon real property the law presumed nominal damages where actual damages are not shown. “Because property owners possess a ‘dignitary interest in the inviolability’ of their property rights. The Court said that damages, even though nominal, are considered necessary to support a judgment in a trespass tort action since it is essentially an action for damages.

However, the nominal damages will not support an award of legal fees. Here, nominal damages were awarded without proof of actual injury to real or personal property. Based on the plain language of the statute, the Court concluded an award of attorney fees is not available on the facts before us.

trespassers-w2-150120Nominal damages have been described as “symbolic” and are often awarded “[w]here there is no loss or injury to be compensated but where the law still recognizes a technical invasion of a plaintiff’s rights or a breach of a defendant’s duty.” In this case, Belle Terre did not present any evidence of damages to personal or real property nor were compensatory damages claimed in the prayer for relief. The Court said that award of nominal damages in the trespass action was intended to redress intangible harm to the “dignitary interests” of the landowner personally, and not injury to the land or to his personal property. In this case, the parties were primarily litigating a boundary dispute upon which the trespass claim depended. Although the Wilsons’ acts of trespass onto Belle Terre’s land arguably supported an award of nominal damages, the Court said, there is no evidence of any actual damage to Belle Terre’s property that would trigger the provisions of section 1021.9.

In cases falling within the intent of the statute, there must be some tangible harm done to real or personal property as a result of the trespass.
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