Case of the Day – Thursday, July 2, 2015

FUN WITH TREE LAWNS

 

paradewatch140703Confusion reigns over who owns and controls the tree lawn, that strip between your front sidewalk and the street. With July 4th coming up, we’ll hear the same question we hear every year: can I, Harry or Harriet Homeowner, keep parade watchers off my beautiful tree lawn (or, in the alternative, can I reserve the best seats for my family and friends)?

We can’t answer that, but we can again remind you that generally speaking, it’s your tree lawn (subject to the rights of the city to maintain its right-of-way). That’s what the Miller-Lagro family established in today’s case. It seems that they arrived home one day to find that the electric utility and its tree trimming subcontractor had butchered the trees on their tree lawn. This being America and all, they sued, citing a Minnesota statute giving them the right to treble damages for wrongful cutting on their property.

The trial court sided with the utility, holding that because the tree lawn was land dedicated to the road right-of-way, the Miller-Lagros could not recover.

The Court of Appeals reversed.

The Minnesota Supreme Court sided with the Miller-Lagros. It held that they had standing under common law and the statute. Sure, the Court said, their interest in the trees was subordinate to the right of the city, as exercised by the electrical utility in its utility line maintenance function. But the utility’s rights to trim, derived from the city’s right-of-way maintenance rights, existed only to the extent that the trimming was reasonable and necessary.

The Miller-Lagros had the right to their day in court to prove that the trimming was unreasonable.

Depending on the number and nature of the people perched on your tree lawn, you may find it ill advised to loudly assert your right to exclusive possession of your tree lawn.

Depending on the number and nature of the people perched on your tree lawn, you may find it ill advised to loudly assert your right to exclusive possession of the space for the duration of the parade.

Normally, a landowner owns property to the center of the roadway passing the land, including the tree lawn. Obviously, the public has the right to occupy the roadway and sidewalks for their intended purpose, to transit across the land. However, there is no similar public purpose that would let people occupy the tree lawn. It seems to us that a landowner has the exclusive right of possession to the tree lawn, subject only to utility easements and rights-of-way (if the city wants to widen the street, you’re probably out of luck). As for the sofa, beer refrigerator, umbrella and roped-off area that some people from the other side of town have erected on your tree lawn (with the parade still a day away): they’re trespassers.

That’s the legal end of it … of course, there are social and political consider-ations in evicting them as well, especially if the patriarch of the parade squatters is 6’5”, 290 lbs. and goes by “Bubba.”

You’re on your own. Happy 4th of July.

Miller-Lagro v. Northern States Power Co., 582 N.W.2d 550 (Sup.Ct. Minn. 1998). When Heidi Miller-Lagro and Kent Lagro returned to their home in Medicine Lake on the afternoon on October 21, 1992, they were shocked to discover that Northern States Power Company and Asplundh Tree Company had cut down several trees that were located on the city right-of-way between their lot and the paved roadway. The Lagros sued NSP and Asplundh, who promptly submitted surveys showing the trees were on land that was dedicated as public roadway in 1887 and property of the City of Medicine Lake, not property of the Lagros.

Celebrate and enjoy the 4th of July, honoring the purpose of the day. (Photo of flag hanging on the fence of St. Paul church, next to the World Trade Center, taken in spring 2002).

Celebrate and enjoy the 4th of July, honoring the purpose of the day. (Photo of flag hanging on the fence of St. Paul church, next to the World Trade Center, taken in spring 2002).

The trial court granted NSP’s and Asplundh’s motion for summary judgment, concluding that the Lagros lacked standing and could not recover because the trees were not located on their property. They appealed, citing Minn.Stat. §561.04, that stated “[w]hoever without lawful authority cuts down or carries off any … tree .. on the land of another person, or in the street or highway in front of any person’s house, … is liable ….” The Court of Appeals reversed, holding that the statute did apply, remanding the case for further proceedings on the issue of whether NSP had lawful authority to cut down the trees.

Held: The Miller-Lagros control the tree lawn. The Minnesota Supreme Court held that homeowners had standing under both common law and wrongful tree removal statute to bring a claim for removal of trees located on the tree lawn in front of their residence by a utility company’s contractor.

The homeowner’s interest in the trees is subordinate to the right of the city, as exercised by the electrical utility in its utility line maintenance function, to trim or cut trees in performance of its public works, the broad grant of authority provided by the statute governing utility’s maintenance of its lines, and the corresponding city ordinance. However, the statutes do not divest the property owner of ownership or control of the tree lawn, but rather only give] utility companies the lawful right to trim or remove trees to the extent that the trimming is reasonable and necessary for purpose of constructing, using, operating, and maintaining lines.

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And Now The News …

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pepco150702Washington, D.C., WTOP Radio, July 2, 2015: Pepco tree trimming puts area neighborhoods on edge

Pepco’s aggressive tree trimming and removal near power lines has ignited bitter opposition in neighborhoods, particularly in Potomac and Rockville, Maryland. But Pepco insists it must cut trees to keep power flowing after severe weather. Birgit Stuart, of St. Michael’s, Maryland, doesn’t like the way Pepco crews went after the trees in her mother’s Rockville backyard this week. “It was their tactics and their attitude and the fact that they were terrorizing an 83-year-old widow, in not allowing her in her own backyard to watch what they were doing,” Stuart says. Pepco has easement rights and the Maryland State Public Service Commission has ordered that Pepco transmission lines be clear of trees and limbs in order to boost electric service reliability, particularly after severe storms. But Stuart says the tree-cutting crew that showed up at her mom’s house Monday morning included at least two security officers who, she charges, acted like bullies …

Rockaway, New Jersey, Record, July 1, 2015: Commercial building owner sues Ramsey for planting trees

A company that owns a commercial building on Lake Street has filed a lawsuit against the borough for planting trees near the property without its permission. According to court documents filed this month, Ramsey Ivy Properties is claiming that the borough’s Shade Tree Commission violated an agreement that said the commission must provide “advance notice of any plan for the planting of trees” on the property.Ramsey Ivy Properties owns a lot on Lake Street known the Pavilion. The borough owns an abutting parcel, known as the Gateway to Ramsey Property, situated between the Lake Street lot and Route 17. In the lawsuit, which was filed in Superior Court in Hackensack on June 19, the property owner is seeking reimbursement for its legal fees and the possible removal of commission members. Ramsey Ivy Properties is also asking for a court order requiring the commission to provide a tree-placement plan to its arborist and, if necessary, to remove and relocate trees the borough planted without permission …

San Francisco, California, SF Weekly, July 1, 2015: San Franciscans are tired of caring (and paying) for the City’s trees

In 2011, San Francisco began making property owners responsible for maintaining the trees along the city’s sidewalks. Facing a $380 million general fund deficit, City Hall had to slash budgets somewhere, and trees don’t compete well against priorities like transportation, homelessness, or policing. Since then, nearly 7,000 trees have been transferred, with another 12,657 on the list. Meanwhile, citizens have fomented a kind of slow-growth rebellion. On May 17, almost three dozen Mission District residents calling themselves Friends of Folsom Street Trees sent a letter to Mohammed Nuru, director of Public Works, urging a repeal of the transfer program on the grounds that it puts trees at risk and is based on outdated economics. Even more galling: “[Public Works] does not discuss that this plan makes property owners liable for public safety and damage caused by the street trees that [Public Works] planted …”

(File photo)

(File photo)

Scranton, Pennsylvania, WNEP-TV, July 1, 2015: Tree kills Bushkill man on way to work

A tree came down Wednesday morning in the Delaware Water Gap National Recreation Area and crushed the roof of a car. The driver in that car was on his way to work and was killed. That 80-foot tree fell down along Route 209 around 6 a.m. Wednesday, taking the life of a man from Bushkill who was on his way to work in New Jersey. That part of Route 209 in the Delaware Water Gap National Recreation Area was hammered by storms. The tree fell across both lanes and onto the car, killing the driver. “The trees were also filled with water, so combine that with the wet soft ground on a slope and that seems to be what caused the tree to come down,” said Delaware Water Gap National Recreation Area spokesperson Kathleen Sandt …

Lakeport, California, Lake County Record Bee, July 1, 2015: State to OK logging of dead, dying trees

The California Board of Forestry and Fire Protection adopted an emergency regulation for the removal of dead and dying trees at their June meeting. The adoption was made in response to the ever-growing number of drought-related dead and dying trees across the State that are mounting concerns over intensifying wildfire conditions. Under the regulation, drought has been added as a condition that can constitute an emergency action. This will allow individual landowners or Registered Professional Foresters (RPF; for projects that require an RPF) to apply for an exemption to cut and remove dead and dying trees of any size without the typical timber harvest plan preparation and submission requirements as well as completion and stocking report requirements. The US Forest Service, Forest Health Protection Program conducted special early season aerial surveys of Southern California and the Southern Sierras in April to get a preliminary assessment of forest conditions in some of the most severely drought-impacted areas of the State. Approximately 12.5 million dead trees were identified — 4 times that of all of California’s tree die-off in 2014. In 2014, an estimated 3.3 million trees died throughout the state, nearly double 2013 mortality rates …

 

oretree150701New York City, Daily News, June 29, 2015: Man killed when tree falls on car driving along historic Columbia River Gorge highway in Oregon; baby survives

A scenic Sunday drive along a historic Oregon highway turned tragic when a tree crashed onto a car, killing a man and hurting two passengers but miraculously leaving a 1-year-old baby unscathed. The Washington state man was driving east along the Historic Columbia River Highway just before 3 p.m. Sunday when a dead tree crashed down from a hillside, smashing into a maroon sedan, Multnomah County Sheriff’s Office Lt. Steve Alexander told the Daily News. The man, who has yet to be publicly identified, was killed, while two women were taken to the hospital with minor injuries. The baby, strapped into a back seat car seat, was unharmed, Alexander said …

Jacksonville, Florida, Times-Union, June 30, 2015: Editorial: Tragedies caused by falling trees must be prevented

Justice will finally be served for 18-year-old Aubrey Stewart, who was paralyzed when a mammoth limb fell on him. The incident occurred four years ago despite repeated calls to the city to remove the rotting tree. Florida Gov. Rick Scott recently signed a special bill that will allow the city to pay Stewart and his parents — Aubrey’s 24-hour caretakers — $3.3 million because of the city’s negligence. The special bill was needed because that amount exceeds the dollar figure state law says cities could pay in such situations. This tragic case is cautionary. The neighborhood had known the old oak — located on city-owned property — was dying at least two years before it dropped its giant limb on Aubrey Stewart. All the neighbors had called the city repeatedly to urge that it be cut down …

loraintree150701Cleveland, Ohio, WEWS-TV, June 30, 2015: Tree loggers unexpectedly drop tree into woman’s yard in Lorain damaging carport, fence

Lori Riegel-Kapalin keeps an eye on her retired neighbor, Juanita Stutt, often, chatting next door. Jaunita lives between Lori and Lori’s parents in Lorain. But, Lori had her eyes out Juanita’s back window Monday as she saw, and heard, a crash from what has always been known as King’s Woods behind their West 12th Street homes. “Amish workers were back there cutting trees,” said Riegel-Kapalin. “I heard a loud crash and I looked up and saw the power lines shake from the tree falling against them. I told her (Juanita) that she needs to run to the front of the house, it’s coming toward us.” Kapalin said the West Woods had been owned by the West family for many decades, but had recently been owned by Lorain National Bank. After having gone through Lorain Common Pleas Court, the property is currently under court-appointed control through an attorney, James Africa …

jaxtree150701Jacksonville, Florida, WTLV, June 30, 2015: Condition of tree determines where liability falls

Recent storms and high winds have left Michelle Carn to pay a $1,000 insurance deductible after a neighbor’s tree fell on her property. The Northside homeowner on Washington Avenue is frustrated. After all, the home next door is vacant and she has not been able to find the owner of it or the tree that fell on her home. “I just have to eat it. There is nothing I can do,” said Carn of the deductible cost, left with no option other than to make a claim on her homeowner’s insurance. “This is a question that comes up all the time,” said Matt Carlucci, a long term State Farm agent who said the question of liability is a question he is often asked when a tree falls. Carlucci said it depends on the health of the tree. “If my tree is green and healthy, has green leaves like all the trees around here, then your policy is going to have to pay for any damage to your home,” said Carlucci. “[You pay] nothing if the tree is diseased or rotten; the property owner bears responsibility for damage caused on a neighbor’s property …”

Kansas City, Missouri, WDAF-TV, July 1, 2015: Metro family says tree that fell on home is city’s responsibility

A Kansas City family is afraid to go home after a big tree fell on it during Thursday night’s storm. The family says it`s the city`s responsibility to remove, but the city disagrees (video report) …

 

development150629Seattle, Washington, KING-TV, June 29, 2015: Neighbors worried development makes trees lethal

The sounds of development echo through trees in Snohomish County near Lynnwood. They’re sounds of progress to some, and disaster to others. “Homes would be built right at the base of these trees,” Roberta Johnson said. Next door to Johnson’s property is what will be a 90-lot neighborhood called Silver Peaks. Snohomish County Code allows them to grade within two feet of Johnson’s towering fir trees. They also plan to bury the roots of 12 trees that tower at least 120-feet high. Pacific Ridge Homes, the developer, plans to use controversial aeration tubes to feed the roots oxygen. “We don’t know if [the trees will] fail tomorrow or a year or two years or five years, but they will fail,” said Johnson’s arborist, Anthony Moran. Moran is one of three who submitted reports to the county. He believes the tree roots will suffocate and eventually send the trees toppling down onto the new development’s homes …

Wheeling, West Virginia, WTRF-TV, June 29, 2015: AEP is making efforts to reduce tree-related outages

Three years after a massive “derecho” or straight line wind storm swept across ten states and left 4.3 million customers without electric service, including the Ohio Valley, Appalachian Power is making efforts to reduce tree-related outages. In the wake of the derecho and “Superstorm Sandy” that struck four months later, the W.Va. Public Service Commission ordered all the state’s electric utilities to submit a plan to reduce tree-related outages. The PSC approved Appalachian’s cycle-trimming vegetation management plan in March 2014, and as part of a May 2015 rate case order allowed $44.5 million annually in cost recovery for the program. The program calls for a six-year phase-in period in which all of the company’s West Virginia distribution circuits are cleared end-to-end, after which every circuit will be trimmed on a four-year cycle …

treefall150630Woodbury, New Jersey, South Jersey Times, June 29, 2015: ‘Lumber’ing threats: N.J. officials always on the lookout for trees hanging over power lines

Whatever thought you gave to utility poles in the past, it probably pales in comparison to your opinion of the things now in the wake of last Tuesday’s storm that left thousands of South Jersey residents in the dark for 72 hours and counting. The storm that lasted all of about 20 minutes brought down limbs, trunks and entire trees over electric lines, substations and utility poles. One might think this possibility has been considered before — and they would be right, but what’s being done to prevent future long-term outages? “NJDOT is responsible for all tree trimming along state roads and continually cuts back vegetation to keep excessive growth from our roadways,” Kevin Israel, a state transportation department public information officer, said Friday via email. This spring, power company JCP&L launched a tree-trimming effort along its power lines that spanned more than 3,000 miles across central and northern New Jersey. Atlantic City Electric, which has been in overdrive since last Tuesday, took similar steps post-Hurricane Sandy …

Phys.org, June 29, 2015: Can pollution help trees fight infection?

Trees that can tolerate soil pollution are also better at defending themselves against pests and pathogens. “It looks like the very act of tolerating chemical pollution may give trees an advantage from biological invasion”, says Dr Frederic E. Pitre of the University of Montreal and one of the researchers behind the discovery. Unexpectedly, whilst studying the presence of genetic information (RNA) from fungi and bacteria in the trees, the researchers found evidence of a very large amount of RNA from a very common plant pest called the two-spotted spidermite. In fact, 99% of spidermite RNA was in higher abundance in trees without contamination, suggesting that the polluted plant’s defence mechanisms, used to protect itself against chemical contamination, improves its resistance to a biological invader. “This higher spidermite gene expression (RNA) in non-contaminated trees suggests that tolerating contamination might ‘prime’ the trees’ defence machinery, allowing them to defend themselves better against pests, such as spidermites,” says Pitre …

Yahoo.com, June 29, 2015: Five useful methods for removing a tree stump

There are several reasons to go to the trouble to remove a tree stump. If you look across your yard, you probably want clear, open space, and the room to rethink planting trees and landscaping. You also want to make sure your family and guests don’t trip over an old stump that might end up covered in taller grass or weeds. Some stumps are more difficult to remove than others, and it depends on the age of the stump and the type of tree. For example, pine trees usually have roots that are closer to the surface of the ground than a deciduous tree whose roots are large and usually run deep into the ground. You can go the chemical route or the purely physical labor route, and there are pros and cons to each …

 

cleanup150629Woodbury, New Jersey, South Jersey Times, June 28, 2015: What you need to know about tree removal after the storm

After Tuesday’s storm, many residents in Washington Township and its surrounding areas were left with devastating amounts of damage to their homes and properties. For a large number of residents, fallen trees crashed down on home structures and are left on properties and in roads throughout the area. When forces of nature damage our homes, it is important to know how to begin the recovery process …

Wilkes-Barre, Pennsylvania, Times Leader, June 27, 2015: Gyspy moth infestations left widespread defoliation throughout the region. Will trees survive?

Perhaps it’s not a bad thing that Luzerne County didn’t participate in the state’s gypsy moth control program this year. If history is any indicator, allowing the population to “boom” one year may cause it to crash the next. That’s the way Wilkes University biology professor Ken Klemow sees it. The cost to spray for gypsy moths isn’t money well spent, he said, advising it’s best to bite the bullet for a year, let the invasive pests go through their life cycle and it should crash the following year. That’s what happened during an infestation in the late 1980s that Klemow said was even worse than the current event …

Mineral Wells, Texas, Index, June 28, 2015: Only God can make a tree

Here in the West Cross Timbers region of Texas we are fortunate to have a rich diversity of mixed hardwood forest. A bit less spectacular than East Texas forests, most of our trees aren’t quite as large. Yet, we have some beautiful specimens, including the largest pecan tree in Texas located about three miles north of Weatherford. Sadly, over the past decade or more, I have lost much of the large virgin growth timber down here on the “pore farm.” Being situated on the Brazos River, there are many splendid pecans, walnuts, cottonwoods, American elm and live oaks along the river bottoms. Farther away from the river and into deep sandy upland soils are many large “old growth” post oak, cedar elm, and black jack oak trees, as well as an assortment of less common species …

treecrew150629Sacramento, California, KOVR-TV, June 26, 2015: Tree removal crew stops possible fire, helps evacuate mental-health facility

A tree removal crew happened to be in the right place at the right time, helping avert disaster at a mental-health facility. James Morgan was almost done with his tree removal job, not expecting an even bigger task ahead. “I was here, and I looked back and right there in that crack, I seen smoke,” he said. He thought of the patients on the other side of the wall and jumped into action, getting his three-man crew to help him evacuate the facility. “There was wheelchairs and walkers and things like that,” he said. They got all the patients and staff out before Morgan tried to handle the smoke, which turned out to be electrical equipment overheating …

Little Rock, Arkansas, Arkansas Democrat, June 27, 2015: When should I have my trees inspected, trimmed?

Question: I have a large pine in my front yard, an oak in the back and my neighbor has a massive oak tree with branches directly over my home. Some of its leaves are starting to touch my roof and I’m wondering what kind of maintenance or trimming, if any, this tree might need.
Answer: It sounds like what’s needed in this case is a sprucing up or a little maintenance to get some limbs away from the home’s roof and possibly away from some power lines,” says Terry James, owner of James Tree Service of North Little Rock. “Most of the time, there’s a three- to four-year cycle between trimming and regrowth, he explains. “Some customers call me every year while others call me as needed,” says James, whose father founded the business 50 years ago. “But I would recommend that those with large trees in their yards have an inspection done every two to four years …”

Napa, California, Napa Valley Register, June 26, 2015: Estimating water needs for drought-stressed trees

On the subject of trees and drought, last time I concluded with the sentence: “Maintain mulch layer thickness and irrigate when necessary.” That raises the question: “What is the meaning of “necessary”? Naturally, it depends on factors like tree species, tree size, geographical region, season, and microclimate. Digging into the subject, I reviewed a major source of technical guidance for landscape professionals: “WUCOLS III, Water Use Classification of Landscape Species,” a guide for estimating the irrigation water needs of landscape plantings in California. (U.C. Cooperative Extension, for the California Dept. of Water Resources, August 2000) Reviewing its 147 pages, including information about evapotranspiration, coefficients for crops, landscape plants, species density, microclimate, irrigation efficiency, and plant types, I gleaned information that should be useful to the homeowner who is stopping or reducing landscape irrigation but wants to save valued trees …

 

crook150626Burlington, New Jersey, South Jersey Times, June 25, 2015: Need a tree removed? Beware of shady contractors, experts say

In the wake of severe thunderstorms that ripped through South Jersey Tuesday night, hundreds of homeowners awoke the following morning with one thing at the top of their to-do list — get toppled trees cleaned up and off their properties. But as with many services that come in high-demand following big weather events, the tree-removal business can attract less-than-reputable contractors looking to make a quick buck, and experts say consumers should be on high alert. “You’re dealing with people who have had a heck of a hard time, they want [a tree removal] done fast and a lot of the time they won’t check credentials or insurance,” said Tim Schwarzhoff of R&L Tree Service on Wednesday afternoon as he assessed a tree that had fallen into the living room of Medford resident Paul Cavanaugh’s Christopher Mill Road home …

Tulsa, Oklahoma, World, June 26, 2015: Serial tree-killer ordered to pay $83,000 in restitution

A Tulsa chiropractor pleaded guilty to poisoning several south Tulsa families’ lawns and was sentenced to 30 months’ probation Thursday. James Dohnalek, 63, pleaded guilty to malicious injury to property and was sentenced by District Judge William LaFortune to serve 30 months of probation and to pay restitution of $83,157.16. Dohnalek was also ordered to stay at least 1,000 feet away from the victims’ residences. Phyllece and Patrick Clare watched a large healthy oak tree, as well as multiple crape myrtles, a redbud tree, a Japanese maple and multiple hedges and flowers, die in their front yard near 111th Street and Sheridan Road in 2013 and 2014, according to a police affidavit. After testing soil samples, they found a large amount of herbicide, along with some type of fuel mixture …

winter150626Phys.org, June 25, 2015: Some forestlands cool climate better without trees, study finds

Forests worldwide are increasingly used to store carbon as a way to slow climate change, but a Dartmouth-led study finds that some wooded areas may be more valuable without trees, allowing the cleared landscape to reflect rather than absorb the sun’s energy. In other words, it’s better to have snow-covered ground act as a natural mirror if you want to use some forestlands to cool the climate. The findings don’t promote deforestation but suggest that carbon offset policies ignore a key way that forests interact with the atmosphere – namely surface reflectivity, or albedo – especially in high altitude areas with slow-growing trees and frequent snowfall. The findings appear in the journal Ecological Applications …

Kennewick, Washington, Tri-City Herald, June 25, 2015: Why fruit are dropping from trees

Earlier this month, some gardeners wondering why small apples were dropping from their trees. This is called fruit drop, and there are three types: Fruit drop early in the season is linked to pollination. Apples and pears require cross pollination for fruit to form. Cross pollination is the exchange of pollen from the flowers of one variety to the flowers of a different variety of the same type of fruit. Cross-pollination is needed for fruit development to occur in many tree fruit, like apples and pears. If this doesn’t happen, viable seed do not form. For fruit to develop, the seeds within the fruit need to be viable because they produce growth-regulating chemicals that develop the fruit. As a result, fruit that start to develop will drop from the tree …

Los Angeles, California, Times, June 25, 2015: Dying trees may force a new outlook on irrigation during drought

The needles on the redwoods that welcome visitors to Griffith Park have faded to brown over the last two years. Laura Bauernfeind has watched the trees slowly die and workers eventually arrive, chain saws buzzing, to fell the husks one by one. “I would be lying if I said it was not disheartening,” said Bauernfeind, principal forester with the Los Angeles Department of Recreation and Parks. “We dedicate our careers here to sustaining our park trees.” The unrelenting drought that has ravaged parts of California’s forest land is now taking a toll on the trees that line urban parks, boulevards and backyards. According to a parks department survey ending in April, as many as 14,000 trees in L.A. parks — about 4% of the total — may have died during the last year of drought. The year before that, officials said only about 1% of trees were found dead. In a normal year, the tally would be even less. Scientists say the death of so many trees could drive up temperatures, wreak havoc on habitats and limit the capture of water. They expect that even more trees could wither as Californians struggle to comply with new conservation rules …

burnpalm150625Houston, Texas, KHOU-TV, June 24, 2015: Arsonist believed to be targeting Galveston palm trees

Someone is intentionally setting palm trees on fire, according to the Galveston Fire Marshal. Investigators do not yet have any suspects. Palm trees decorate medians and tower over traffic on Broadway. They even shade some Galveston homes with rich, green canopies, the kind of comfort lost in Hurricane Ike years ago. Now, there’s a new threat: arson. “What the hell,” asked Susan Bradley, who lives and works in Galveston. “Why? What’s the purpose?” The most recent palm tree arson happened at 33rd and Post Office two weeks ago, authorities said. Still, the fire marshal sees it happening all over the island on both public and private land. In all, 12 palm trees have been torched since last year …

Savannah, Georgia, Savannah Morning News, June 24, 2015: Sizzling Savannah heat putting younger trees at risk

With an increased number of days with triple-digit temperatures in June and a smaller amount of rain, the importance of watering new and young trees has increased across the Savannah area. Not only have temperatures been unseasonably warm, but also trees closer to the asphalt experience ambient temperatures (the temperature immediately surrounding an area) up to 20 or 30 degrees warmer than the normal air temperature because of the asphalt’s heat radiation. Trees need about 1 inch of water per week, Karen Jenkins, with the Savannah Tree Foundation, said. That can be measured using common household items such as a screwdriver, which can be stuck in the ground to see if the deeper soil is moist. When watering with a sprinkler system, a tuna can may be placed next to the tree you want watered. If the can fills within the week, then the tree likely is adequately watered …

deadpine150625Fresno, California, Bee, June 24, 2015: As drought drags on, here’s how trees will suffer

“June drop” on citrus, “July dieback” on redwoods, and “summer/sudden limb drop” (SLD) on large healthy trees are natural occurrences in the plant world. But with this fourth drought year, the severe crop loss of June drop, the amount of redwood dieback and the frequency of sudden limb fall may increase significantly as trees struggle to deal with limited water supplies to their roots and with high transpiration rates during the hottest months …

Philadelphia, Pennsylvania, KYW-TV, June 24, 2015: If a tree falls, who makes the insurance claim?

Across the region, cleanup is underway following last night’s wild weather. Many home and car owners are dealing with aftermath of downed trees. If you’ve experienced tree-related damage, 3 On Your Side Consumer Reporter Jim Donovan has information on filing an insurance claim for repairs. Trees down in yards, trees down on houses, trees on top of cars — it’s inevitable after a powerful wind storm. But what’s covered by your insurance, and what’s not, depends on a number of factors …

Gainesville, Florida, Sun, June 24, 2015: Experts say golf course trees are not diseased

Golfview residents had three tree experts examine a stand of loblolly pines that were marked for removal after the University of Florida had said that some of the trees appeared to be diseased and could pose a health risk to surrounding trees. But the three experts found no sign of disease in the nine trees, all of which are at least 80 feet tall and around 100 years old. “We would be wise to treat these particular trees with respect and see them as a highlight of the conservation area,” said Meg Niederhofer, the city of Gainesville’s arborist for two decades. The nine loblollies are adjacent to the seventh green of the Mark Bostick Golf Course at UF, and are part of the 8.5-acre Bat House Conservation Area. The UF Lakes, Vegetation and Landscaping Committee had approved their removal in January at the request of golf course managers who said shade from the trees was preventing the grass from growing in winter months …

Saginaw, Michigan, WNEM-TV, June 24, 2015: Dead trees and city property leave Pinconning parent concerned Patti Morgan,

Pinconning, is concerned about a dead tree. “We had a storm and we had a branch fall,off the tree that ripped the power mass out of our house and when Consumers came out, I asked them if [their] responsibility to take care of the tree or if it the town’s and she said it’s the towns,” Morgan said. The dead trees are in the small patch of grass between the sidewalk and the street. It’s technically public property, but the responsibility for maintenance leaves the mother of two looking for answers. “I don’t want my 2- or 4-year-old playing on the side walk, for fear that apiece of bark or branch is going to fall,” Morgan said …

canada150623Bloomberg Business, June 23, 2015: What’s killing Canada’s pine trees?

Deep in the woodlands of Western Canada, a war is being waged against an insect the size of a grain of rice that threatens to spread to pine forests stretching eastward to the Atlantic Ocean. Since the late 1990s the mountain pine beetle, or Dendroctonus ponderosae, has attacked and killed hundreds of millions of commercially valuable pine trees in British Columbia, Alberta, and parts of the western U.S. The insects attack the trees by boring beneath the bark, where they feed and spread a blue-stain fungus, which becomes a food source for their larvae and inhibits the trees from increasing resin output to fend off the beetles. While warmer winters, a result of climate change, have allowed beetle populations to explode in some areas, the government of Alberta isn’t giving up the fight to contain the damage. But in British Columbia, where the infestation has dramatically depleted mature timber supplies, large Canadian companies have been looking south of the border and aggressively acquiring U.S. lumber operations to meet demand …

Boulder, Colorado, Daily Camera, June 23, 2015: Hard freeze catches up to trees across Boulder, Broomfield counties

There used to be a beautiful apricot tree in Lonny Frye’s Boulder backyard, one that provided shade for his picnic table and a home for his bird feeders. But as spring wore on into summer, Frye noticed that his tree wasn’t leafing out. “It looks like winter out there,” he said. “It’s sad to see a tree just die like that.” Frye, who lost several other trees in his downtown Boulder yard, is not alone. The effects of a sudden November cold spell are being felt across the Front Range this month as homeowners mourn the loss of beloved mature trees and tree removal companies struggle to keep up with the increase in business. Much of last fall’s weather was mild, but on Nov. 11 temperatures plummeted into the single digits and stayed there, or dipped below zero, for several days, according to city of Longmont forester Ken Wicklund …

sequoia150624Portland, Oregon, KGW-TV, June 23, 2015: Developer agrees to sell sequoia tree property in Eastmoreland

A Portland developer said he has reached a verbal agreement with neighbors in Eastmoreland to sell them the property where three giant sequoia trees sit. Vic Remmers, with Everett Custom Homes, told KGW he would not disclose the terms of the agreement, but he hopes to have a deal with neighbors finalized by the end of the week. Neighbors were upset over the plan to cut down the trees near Southeast 36th and Martins Street. “I think they’re beautiful,” said neighbor Cindy Simpson. “They should be preserved …”

Scranton, Pennsylvania, WNEP-TV, June 23, 2015: Rotting rees cause trouble

Storms Tuesday morning are partly to blame for a tree falling on two cars in Luzerne County. While no one was hurt, there’s concern about more trees falling in the same area, next time potentially landing on one of the surrounding homes or worse. People who live nearby hope something can be done soon, to prevent a more serious situation from happening …

Sacramento, California, Capital Public Radio, June 23, 2015: Regulations would allow removal of drought-killed trees

Twelve and a half million trees are dead, most of them in southern California and the southern Sierra Nevada. That’s four times more than all of the tree die-off in 2014 and it doesn’t include many of the hardwood species that are also likely dying. The Board of Forestry and Fire Protection says its taking an unprecedented step of allowing public and private landowners to remove dead and dying trees of any size without following typical timber harvest plan requirements …

dutch150623Fargo, North Dakota, Forum, June 22, 2015: Dutch elm disease claiming Fargo trees again this year

Warm weather has settled in the Fargo-Moorhead area, which means some trees are showing signs of Dutch elm disease, an ailment that dehydrates them. The disease has affected more than 70 trees in Fargo so far this year, and that number is expected to rise. Between 300 and 500 trees in the area contract the disease each year, said Fargo City Forester Scott Liudahl. Once the disease is found, the tree is marked and removed. Dutch elm is a fungal disease, typically contracted when elm bark beetles lay their eggs inside the bark. In trying to cut off the spreading fungus, the tree blocks its own water supply, said Greg Nelson, northwest regional director for the Minnesota Department of Natural Resources. “It kind of strangles itself,” he said. Once one tree contracts the disease, others can get it via the root system …

Albuquerque, New Mexico, KRQE-TV, June 22, 2015: Shady future: City landscaping rule changes could bring more trees

City planners are now proposing a change to city landscaping codes, and it could bring more shade in return. On Albuquerque’s sunny summer days, almost anyone will agree that the city heat can be brutal. “It’s damn hot!,” said Paul, an Albuquerque man walking up Central through Nob Hill on Monday. “It’s a lot dryer now here than it used to be.” “It’s too damn hot,” said James Dubrieo, who trekked through the 100 degree temperatures on Lomas downtown. Catching some shade is a must in the heat, but there are a lot of places throughout Albuquerque where there’s nothing to be found overhead. City planners like Russell Brito say tha lack of shade is a big part of what’s keeping Albuquerque really hot. In 2014, a research group called “Climate Central” said that Albuquerque had the second most intense “heat island effect” in the U.S. A “heat island” is described as an urban area that has considerably higher average temperatures than surrounding rural areas. “All of that pavement absorbs the heat and then radiates it at night when the sun goes down,” said Brito, manager of the Albuquerque Planning Department’s “Urban Design & Development” division. The city wants to change the city’s “heat island” status now. They’ve been proposing new landscaping codes that could bring more trees to private development city wide …

limb150623Atlanta, Georgia, Journal-Constitution, June 22, 2015: ‘Mama, I tried, I tried,’ says sister of teen killed by tree limb

There was nothing 13-year-old Jada Drayton could do. She was at the park with her older sister La’Rena and 1-year-old nephew when in an instant, everything changed. “(Jada) heard a crackling sound, and she turned around and called for Bubblez,” the girls’ mother told The Atlanta Journal-Constitution on Monday. Bubblez — the nickname given to La’Rena Drayton by her grandmother — answered her sister and scooped up her little boy Friday at a Polk County park. That’s when a large tree limb seemed to fall out of the sky, hitting both the 16-year-old mother and her son …

Decatur, Illinois, Herald-Review, June 22, 2015: Labels make everyone a tree expert at Rock Springs

Poet Joyce Kilmer wrote “I think I shall never see, A poem lovely as a tree.” He wrapped up his little ditty in 1913 with this last verse: “Poems are made by fools like me, But only God can make a tree.” God, however, wasn’t much into labeling stuff. But now the Macon County Conservation District has stepped into the breach with a bold effort to graft 21st century technology onto the subject of tree identification. The result is notebook-sized black and white metal labels tacked onto trees at the Rock Springs Nature Center. The dot-patterned labels are examples of QR (Quick Response) codes which can be read with any cellphone or tablet equipped with a QR code reader (a free download from various sources). Armed with their trusty technology, Nature Center visitors stride up to a labeled tree, scan the code, and tap into a forest of knowledge. The label itself does give the tree’s common name in English — honey locust, red mulberry, hackberry and so on — but the QR code does much more: it explains what the tree’s leaves and seeds look like, where it likes to grow, the branch of the tree family it comes from and lots more information, complete with accompanying pictures …

Examiner.com, June 22, 2015: Cigarette butts that become trees and flowers: Beneficial or detrimental?

That smoking is harmful goes without saying: What many do not know is that cigarette butt waste continues to cause harm after it is flicked away carelessly. The toxic, non-biodegradable remnants of cigarettes contribute to approximately 1.69 billion pounds of waste each year, much of which shows up as the world’s number one litter, appearing on streets, sidewalks and in storm drains. The toxicity of cigarette butts is harmful to wildlife. Further, the filter’s spun fibers, made initially as a measure in the ‘50s and ‘60s as a way to make cigarettes safer, are made of cellulose acetate. Since the material does not readily break down, it is often found in the stomachs of fish, birds and animals that have unwittingly mistaken the butts for food. That is why many innovators have been trying to find solutions to combat the damage that comes out of cigarette smoking. An Indian company called Karma has created special cigarette filters that contain seeds so that smokers “are not littering anymore, but planting trees.” The filters are made from a biodegradable pulp containing no harmful chemicals that might otherwise inhibit the growth of the seeds contained within the paper. The pulp based paper is also made well enough to protect the seeds so that they are able to grow once they are flicked away …

congress150622New York City, Daily News, June 20, 2015: Postal worker dies when lightning strike rips tree from N.C. congressman’s property down onto mail truck in storm: officials

A 43-year-old postal worker died on her route Saturday when a lightning strike ripped a tree on a North Carolina congressman’s property down on top of her mail truck, officials said. The tree smashed her vehicle and pinned her inside as a storm moved through the area at about 4:45 p.m. in Denver, around 30 miles northwest of Charlotte, according to the Lincoln County Sheriff’s Office. Emergency personnel pronounced the mail carrier dead at the scene on Norman Court off Lakeshore Road North, officials in the sheriff’s office said. The 60-foot oak tree plunged down from a property owned by Congressman Patrick McHenry (R-NC) next to Lake Norman in the Westport community, The Charlotte Observer reported. A spokesman for Rep. McHenry told the Daily News that he and his wife are “praying for the victim and her family as they mourn the loss.” The congressman was visiting family out of state on Saturday but heard about the tragic accident from neighbors, Jeff Butler said in an email …

Salem, Oregon, Statesman-Journal, June 21, 2015: Salem considers Urban Tree Commission to protect street trees

In 2013, the Salem City Council believed there was a problem with the tree code. Problems had arisen when city-owned street trees were removed from outside a U.S. Bank at 302 State Street and many Salem residents protested. So council members and city staff set out to rework the code and remove any perceived confusion. City staff and a citizen advisory committee collaborated for more than two years looking for solutions. And they believed they found one big solution: creation of an Urban Tree Commission. There’s one problem. Salem Mayor Anna Peterson is opposed to the creation of the commission. In her remarks at a recent council meeting, Peterson cited costs and recruitment to explain her opposition. “I see hours and hours of staff time. I am determined that this council will stop bleeding money,” Peterson said …

bugs150622Washington, D.C., Post, June 19, 2015: Tiny, silver flies deployed to save East Coast hemlock trees

For decades, the East Coast hemlock forests stretching from Georgia to southern Canada have been ravaged by a tiny invasive insect called the hemlock woolly adelgid. The bugs nest on the branches of the hemlocks, and have turned acres of once deep-green forests into plots of dead, gray trunks. But now, a team of scientists, funded by the U.S. Forest Service, is recruiting new forces to fight the invader: tiny, silver flies native to Washington State, which feed on the pest. “It’s pretty exciting,” said Kimberly Wallin, one of the team’s leaders from the University of Vermont and the USFS. “The offspring are surviving, and they’re able to locate the hemlock adelgids …”

London, UK, Daily Mail, June 21, 2015: Asian wasps swarm threatens trees: Invaders that target sweet chestnuts leaving them susceptible to disease spotted for first time in the UK

Chestnut trees are under threat after an outbreak of Asian wasps was spotted for the first time in the UK. The Forestry Commission issued an alert yesterday after a sighting of the oriental chestnut gall wasp (OCGW) was confirmed at Farningham Woods, Kent. Sweet chestnut trees, or Castanea, are under threat from the tiny wasp, whose larvae cause growths called galls to form on the leaves, leaving the tree susceptible to disease. The pest, which is up to 3mm long and has a black body, translucent wings and orange legs, is parthenogenetic, meaning males are not needed to reproduce. The wasps have no sting and pose no risk to humans, pets or livestock. The galls can be controlled with insecticide but this is unlikely to help in outbreaks. Another option is to fell and burn affected trees …

Parkes, NSW, Australia, Champion Post, June 22, 2015: Nine unsuitable trees to go

Having caused damage to sewer pipes, footpaths and fences, nine mature trees in Middleton Street will be removed and replaced by a species more suitable to the area. Parkes Shire Council agreed to a request from Southern Cross Care to have five trees growing adjacent to the eastern boundary of the retirement village along Middleton Street removed. However, following inspection of the trees by Council’s Parks and Gardens Coordinator David Ramsay, it was decided to remove nine trees – seven mature yellow box, one sugar gum and one silky oak. The total cost is estimated at $3240. Because Southern Cross Care raised the matter with council by indicating the trees were likely to affect future development and associated infrastructure they advised they were prepared to contribute $1800 towards the costs …

banner150619Sydney, Australia, Morning Herald, June 19, 2015: Canterbury Council investigates poisoning of Earlwood gum trees

“What a view!” a real estate listing for the Harry Seidler-designed apartment complex along the Cooks River in Earlwood gushed. “Magnificent panoramic city skyline and sweeping valley and river views,” another enthused. Now several of the gum trees that filtered that view have been poisoned and an investigation is under way to determine if it was an unfortunate mistake or wanton vandalism. The eight poisoned blackbutt gums form a mini-forest around the complex on Homer Street which looks out over the Cooks River, Marrickville Golf Course and through to the CBD …

Ocala, Florida, Southeast AgNet, June 18, 2015: An App for what to spray on citrus trees to keep bugs at bay

Florida has nearly 70 million citrus trees on more than 531,500 acres. Now imagine trying to figure out what pesticide to spray on each of those trees to keep them safe from citrus greening. University of Florida researcher James Tansey says the answer is as close as your Android smartphone with a new app developed with ZedX, an information technologies company based in Pennsylvania. The free phone program allows citrus farmers to enter in about a dozen variables — like the type of crop, insect pressure, harvest date, previous spray history, and whether the crop will be for fresh fruit or juice and for export or domestic markets — to determine the best pesticide to use. There are also record-keeping options, and the app keeps track of sites with gps …

fire150619Palm Springs, California, KESQ-TV, June 18, 2015: Grapefruit Fire devours nearly $5 million worth of church palm trees

Flames shot more than 150 feet in the air as the Grapefruit Fire in Thermal swallowed acres of thirsty vegetation near Grapefruit Blvd and Avenue 58. “I see a big mushroom in the sky and flames,” said Francisca Berdugo who lives just a half mile east from where the fire sparked around 2 p.m. “It’s dry out there, the trees got less water this year. The palm trees are dry and they’re carrying the fire,” said Cal Fire Captain Lucas Spelman. Fanned by strong winds and temperatures climbing to a record 119 degrees, the fire at one point jumped Grapefruit Blvd, prompting more road closures and evacuations …

Boise, Idaho, Idaho Press Statesman, June 18, 2015: Patches of Boise National Forest trees infested with beetles

Western pine beetle and pine engraver beetle are actively infesting ponderosa pine trees across some areas of the Boise National Forest. Aerial detection surveys conducted by the U.S. Forest Service have recorded a three-fold increase in ponderosa pine mortality with approximately 5,900 acres impacted. The majority of trees affected occurred west of High Valley, with pockets of infested trees also in the Sage Hen Reservoir area. Another area with an increase is Boise Basin in the vicinity of Placerville and Centerville. More ponderosa pine mortality is expected this year, especially in areas of high tree density or with weakened trees due to dry conditions and where fires occurred in the last few years ...

Fresno, California, Bee, June 18, 2015: Felled trees at Clovis shopping center will be replaced

It’s been about 10 years since the Trading Post Shopping Center has thrived as a Clovis shopping site. Today, the transition of the center at Clovis and Herndon avenues is obvious, but so far, it’s not being looked upon favorably. Most of the old trees — about 90% by one city official’s estimate — have been chopped down. But new trees will blossom at the 119,000-square-foot center that was once home to a Save Mart supermarket and CVS. City Planning Director Dwight Kroll said the developer must meet city codes, which require 50% shade coverage of the parking area in 10 years. “We prefer not losing trees, but those trees have been damaged through pruning, and we would allow them to add trees as if it was a brand new center,” he said …

dallas150618Westerville, Ohio, This Week News, June 17, 2015: City holds line on tree regulations: Felled trees must be replaced

With sizable trees being cleared from development sites across Westerville this spring, residents are expressing concern over the loss of foliage in the longtime Tree City USA. But Westerville for years has had a plan in place to protect its overall tree canopy, city officials said. And it enforces a stringent policy requiring developers to replace the trees they cut down when new developments go up. Within the city code is an entire section about tree replacement, and the requirements are very specific. Trees less than 12 inches in trunk diameter must be replaced one-for-one with new trees, while trunks between 12 and 18 inches in diameter must be replace two-for-one. The larger the removed trees are, the more replacement trees are required, to a maximum of six replacement trees being required for every single tree with trunk diameter of 30 inches or more …

Lake Oswego, Oregon, Review, June 17, 2015: Drought hits Douglas-fir trees hard

Many Oregonians have noticed widespread damage in landscape and forest trees this spring — and weather may be the culprit. “Browning or dieback is often caused by weather-related stress, sometimes in combination with pests and diseases,” said Glenn Ahrens, a forester with Oregon State University’s Extension Service. Douglas-fir trees are the most common victims, he said, but stress due to weather is affecting many tree species and a variety of problems are showing up. On some Douglas-firs, branches and tops are turning red or brown. Sometimes, the entire tree dies. Older trees typically have milder symptoms. “This sudden mortality or ‘flaring out’ of branches and tops is a classic symptom of drought in conifers,” Ahrens explained …

poison150618Sydney, Australia, Daily Telegraph, June 18, 2015: Attacks on trees by axe-wielding tree poisoner at Clontarf Reserve spark massive outrage

An axe-wielding tree poisoner has tried to kill ten trees at a waterfront park. Last year the same mature trees, plus seven others, suffered a similar “tomahawk style” attack at Clontarf Reserve. In both attacks, the trunks of the trees which included 16 norfolk pines and a single fig tree, were slashed with an axe at waist level and had poison poured into the wounds. After the latest incident, four of the trees were so badly vandalised they are at risk of dying. Manly Council general manager Henry Wong said the only reason someone would attack the trees would be to improve their view over Middle Harbour. “If they don’t like trees in our parks, they should move somewhere with fewer trees,” he said …

Dallas, Texas, KTVT-TV, June 17, 2015: Land developer facing big fines for cutting down Keller trees

A North Texas home developer is discovering how important trees are to one city. Now the mistake could cost the company, big time. To prepare an area for a future residential addition, workers with Silveroak Land Development cut down more than 190 trees on the property, without a permit. Another 30 to 40 trees were taken out on a second property. The company president told CBS 11 News it was “just a mistake.” Multiply the fines and occurrences and the penalty has now reached the hundreds of thousands of dollars. In order to make room for 20 homes in the future Oakbrook Hills addition in Keller, construction crews cleared pecan, cottonwood and oak trees. Neighbors like Heather Rainey thought a lot of trees would stay, not only because it’s ecologically responsible but fiscally positive. “I don’t know what they’re doing with it now. When you came in and took all the trees out, that’s a lot of the price of land… when you get a wooded lot like that.” Any tree not in the way of a road or utility, was marked on a map as protected, or needing a permit to clear. The land and lot clearing happened across town in Keller too. That time the location was on property where Silveroak plans to build its headquarters …

Cleveland, Ohio, WKYC-TV, June 17, 2015: Four signs your tree might be in trouble

Dead branches, discolored leaves and trunk wounds can all be signs that you have a tree with a problem. Trees become more susceptible to toppling over after it rains. The rain causes the ground to loosen, which can lead to a tree falling on your property. So how can you spot a problem tree? Jim Casciano, owner of Jim’s All Seasons in Parma, says the biggest reason he sees trees coming down is due to saturation from heavy rains. Casciano says pines are particularly susceptible because of their shallow root systems …

vanc150616Vancouver, British Columbia, Sun, June 16, 2015: More trees illegally chopped down in Vancouver’s Dunbar neighborhood

More healthy trees have been illegally chopped down at a house under construction in Dunbar, the 13th such incident in the upscale neighborhood on Vancouver’s west side in a year. City officials were alerted by neighbors on Monday about three more trees being cut down at 3854 West 38th Ave. The Douglas fir trees were behind tree protection barriers when they were stripped of their branches and chopped down. The incident was the second at that address, after six trees were cut down in November in what landscape architect Judith Blake Reeve described an “arboristic homicide.” “We will be pursuing the maximum fines in this case,” Brian Jackson, the city’s general manager of planning and development services, said on Tuesday. The maximum fine is $10,000 per incident …

Orange County, California, Register, June 16, 2015: A decision to spare Laguna Beach trees comes out of left field

A debate over whether 28 newly planted eucalyptus trees should be yanked from a slope near the local high school to preserve nearby residents’ million-dollar views took a bizarre twist last week – soaring out of left field. In a reversal of its May decision to uproot the trees, the Laguna Beach Unified School District board voted this month to preserve the trees at least until the board can resolve how to stop hard-hit baseballs from dangerously flying over a nearby fence and onto neighbors’ property. The connection? Solving the errant-baseball problem may involve reconfiguring the high school’s ball field, which could affect the landscaped slope where the eucalyptus trees are planted. The board trustees’ initial decision last month to uproot the trees followed residents’ complaints that the saplings would ultimately grow as high as 80 feet and are on the Fire Department’s list of flammable trees to avoid …

hotsaw150616Sacramento, California, Capital Press, June 16, 2015: Drought-empowered bug infestations killing trees in Sierra

Drought is taking a toll on California forest lands, weakening trees and making them more susceptible to deadly attacks from pests, according to a university study. U.S. Forest Service aerial monitoring surveys in 2015 showed a large increase in tree mortality in the southern Sierra Nevada, as an estimated 10 million dead trees were spotted in more than 4.1 million acres of public and private land, according to the University of California’s Division of Agriculture and Natural Resources. The lack of water is leaving trees without the pitch necessary to prevent beetles from burrowing into the tree through the bark, leading to an infestation that overcomes the tree, explained Susie Kocher, a UC Cooperative Extension advisor …

New York City, Yareah magazine, June 16, 2015: The Oldest Trees In New York City

New York is the capital of the world, speaking about arts, entertainment, writing or music. But this amazing city has other surprises. It has marvelous parks full of iconic lakes, sculptures, and trees. What is the oldest tree in New York? The Queens Giant in Queens, and the Clove Lake Colossus in Staten Island have rivaled for long time. The Queens Giant is located in Alley Pond Park, it’s the second-largest public park in Queens, New York City. It occupies 655.294 acres (265.188 ha), most of it acquired and cleared by the city in 1929. The Queens Giant is an old Tulip Poplar (Liriodendron tulipifera). As of 2005, the tree measured 133.8 feet (40.8 m) tall and is probably 350-400 (and possibly as many as 450) years old. It’s surrounded by a metal fence on all sides to protect it, and a hill and a sign describing the tree stand in front of it …

Fort Myers, Florida, News Press, June 16, 2015: Should LCEC replace trees whacked from the power lines?

When Sharon Loomis moved into her Cape Coral home in 1989, her young son planted three small trees in the backyard. The number was significant, Loomis said, because he said one was her, one was his sister and one was for him. Now there is only one. The Lee County Electric Cooperative’s tree-trimming contractor cut the other two down. “They were olive trees. They were huge and they were so beautiful,” Loomis said. LCEC told Loomis the trees had to be trimmed because they interfered with the power lines. And because they didn’t want to have to come out and trim all the time, they wanted to take the trees out …

camera150616Sacramento, California, KOVR-TV, June 15, 2015: Citrus Heights residents crying foul over neighbor’s surveillance camera pointed at their hot tub

Residents at a Citrus Heights apartment complex want something done about a prying eye pointed towards their hot tub from behind a neighbor’s fence. Is it legal to point a surveillance camera over the fence into a neighboring yard? According to a legal expert we spoke with it’s probably not a crime since the camera does not peer through any holes. However, it makes residents at the Foxborough Apartments feel uncomfortable. “There is a creepy camera right there pointing at the hot tub,” said Andrea Bryant, a resident at Foxborough. Bryant doesn’t want to go into her apartment’s hot tub anymore after noticing the camera while she was in the hot tub. “One of my neighbors said, “Did you know you’re being recorded?” And I said, “What do you mean?” He said, “Look at that camera,’” said Bryant. It was looking right at her. “It’s totally an invasion of privacy. It’s very uncomfortable,” she said …

Lafayette, Louisiana, KATC-TV, June 15, 2015: Pruning trees for hurricane season

A tree canopy is like a sail. If you can increase air circulation inside the canopy, the wind passes through it much more easily, and doesn’t stress the tree (video report) …

protect150616Biloxi, Mississippi, Sun Herald, June 15, 2015: D’Iberville puts a high price on protected trees

It will cost developers and homeowners who cut down a protected tree in D’Iberville, and the bigger the tree, the more they will spend. The city council amended the tree ordinance last month and set tough new mitigation requirements on a graduated scale, depending on the size of the tree. A protected tree 8 inches in diameter must be replaced with 12 trees. A 14-inch diameter protected tree would cost three trees plus three more for every 2 inches, requiring that 21 new trees be planted. “That’s 21 trees at $100 a pop,” said Mike Mullins, public works director and city arborist …

Boise, Idaho, Idaho Press-Tribune, June 15, 2015: Trees across Treasure Valley hit with frost damage

Harsh weather from last November has destroyed members of several tree varieties in the Treasure Valley in southwest Idaho. The director of field operations for Idaho Tree Preservation, Terri Ham, says the trees she has examined this spring at homes across the Valley have shown little growth. “A majority of the canopy is dead or attempted to leaf out, then wilted or just appeared and never really grew properly,” Ham said. “The tissue was actually damaged from exposure or temperature or something to do with the environmental factors of what we believe to have been around that Nov. 13 snowstorm.” According to the National Weather Service, the first two weeks of November saw highs in the upper 50s and 60s. By the third week, lows had suddenly dropped in the 10s and 20s. The types of trees most affected by the severe weather include stone fruit trees, English walnut, willow, maple and hibiscus …

Cadillac, Michigan, WWTV, June 15, 2015: Spruce Budworm could be threatening Michigan evergreen trees

State officials say the Spruce Budworm could be threatening evergreen trees in Northern Michigan and the Upper Peninsula. The insect has attacked forests in the eastern U.S. and Canada over the last century. Spruce Budworms feed on shoots produced by trees like Balsam Fir, White and Black Spruce and Pine …

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Case of the Day – Wednesday, July 1, 2015

STRAINED RESULT IN GEORGIA

It may be a great car wash ... but we can't see the road.

It may be a great car wash … but we can’t see the road.

Every morning, we look to the left and right as we pull onto the main street, only to stare into an ill-placed car wash sign. The First Armored Division could be rolling into town, and we couldn’t see it the M1A1s coming before they flattened our Yugo.

So every morning we wonder whether the sightline obstruction might not make someone liable to our next of kin when the inevitable happens. As it did one rainy night in Georgia.

A car had a chance encounter with a dump truck at a Georgia intersection. The pickup driver perished. Investigators suspected that untrimmed shrubs on vacant property at one corner of the crossroads, as well as a “curvature” in the road, made the intersection dangerous. The intersection had experienced several other accidents due to visibility.

Truck-carIn the aftermath of the tragic auto accident, the victim’s survivors sued the Georgia Department of Transportation, claiming it had a duty to keep trees and shrubs from a vacant lot trimmed back to protect the sight lines at the intersection in question. The trial court disagreed.

On appeal, the Court agreed that as a matter of law, DOT had no duty to maintain the intersection. But it did have a duty to inspect. It seemed that an issue of fact existed as to whether the vegetation had encroached on the highway right-of-way. But the Court discounted the plaintiff’s expert opinion that encroachment had occurred, because DOT contended it didn’t know where the right-of-way began, so who knew?

The result seems to turn summary judgment on its head, letting DOT off the hook without a trial when a real fact issue ­– the location of the highway right of way – remained. We were left as confused about liability afterwards as we were beforehand. And we still can’t see down the street.

Welch v. Georgia Dept. of Transp., 642 S.E.2d 913 (Ct.App. Ga., 2007). Addie D. Welch was killed when her vehicle hit a dump truck at an intersection. A policeman said the overgrown bushes on the northwest corner of the intersection contributed to the accident. A sheriff’s department investigator said overgrown shrubs on the vacant property and a “curvature” in the road combined to make the intersection dangerous. Several other accidents due to visibility had occurred previously at the intersection.

Welch’s expert witness said that a driver’s line of sight was obstructed by overgrown shrubs and trees on the northwest corner of the intersection. The expert said that the overgrowth extended two feet into the Georgia DOT right-of-way, and that DOT was responsible for maintaining the line of sight. The expert also said American Association of State Highway and Transportation Officials’ (AASHTO) guidelines for that intersection require a line of sight of 430 feet. Because of the overgrown vegetation, Welch’s line of sight was between 143 and 277 feet.

line_of_sight2After the accident, DOT employees helped remove the overgrowth. Claiming that trees and shrubs on the property adjacent to the intersection were negligently maintained and obstructed her line of sight, Welch’s estate and surviving children and grandchildren sued the Georgia DOT. DOT moved for summary judgment, arguing that state law precluded plaintiffs’ claim, or in the alternative, that plaintiffs presented no evidence that Welch’s line of sight was obstructed. The trial court granted DOT’s motion, and Welch appealed.

Held: DOT was not liable. The Court ruled that DOT was immune under OCGA § 32-2-2. That statute gives DOT has the general responsibility to design, manage and improve the state highway system. But, where state highways are within city limits, the DOT is required to provide only substantial maintenance and operation, such as reconstruction and resurfacing, reconstruction of bridges, erection and maintenance of official department signs, painting of striping and pavement delineators and other major maintenance activities.

Although the road Welch was on was a state highway, the intersection lay within the corporate limits of Quitman. Accordingly, DOT was required only to provide substantial maintenance activities and operations. Those activities, the Court said, did not include the maintenance of shrubbery and vegetation. Thus, the statute did not impose a duty on DOT to maintain the shrubbery. But Welch also argued that another statute, OCGA §50-21-24(8), made DOT liable for failing to inspect its right-of-way. In order to prevail on this claim, the Court said, Welch had to show that the vegetation extended into DOT’s right-of-way. DOT argues that the overgrowth was on private property.

Although Welch’s expert believed the vegetation encroached on the DOT right-of-way, the Court agreed with DOT’s view that the extent of the right-of-way couldn’t be ascertained without using courthouse records and surveyors. Because Welch’s expert had not relied on DOT testimony to opine that vegetation extended into the right-of-way, and the Court found that the evidence was uncertain as to the location of the right-of-way, Welch’s expert’s opinion that vegetation extended into the right-of-way was disregarded, and plaintiff was found not to have established DOT’s liability.

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Case of the Day – Tuesday, June 30, 2015

GREAT EXPECTATIONS

Yes, my dear, 2-1/2 baths, cathedral ceilings throughout, and a three-car garage!

Yes, my dear, 2-1/2 baths, cathedral ceilings throughout, and a three-car garage!

Great expectations? What the Dickens might those be?

We’re talking about the great expectations that new homebuyers so often harbor. After all, what are developers selling if not dreams? Real estate people don’t even pretend that they’re doing anything but. Look at the housing bubble.

Well, it’s gone on ever since the dawn of our great nation. Today’s case is an illustration of what can happen in the fallout of a dream. A subdivision planned in Meriden, Connecticut, in the 1930s included a number of beautiful streets that were never built. Nevertheless, the Doucettes and their predecessors had always used what would have been a street to get access to the garage at the back of their narrow lot … at least until their neighbor announced he was going to build a motorcycle gang hangout where the driveway lay, and it would have to go.

The Doucettes didn’t think much of this idea. Matters ended up in court, where the Doucettes were held to have an implied easement which was roughly the size of the proposed street (to the extent handy for their ingress and egress). The neighbor complained that the Doucettes could have built a driveway from the front of the house, but the Court said that didn’t matter. Because buyers are buying the dream, they have a legitimate expectation that streets are going to be built. It’s enough that the original maps as recorded in the land records showed the street and the Doucettes found it “reasonably necessary for the use and normal enjoyment” of their land.

The Doucettes had a serviceable driveway.

The Doucettes had a serviceable driveway.

Doucette v. Burnham, Not Reported in A.2d, 2007 WL 2363856 (Super.Ct. Conn., Aug. 2, 2007). The Doucettes owned a house on a narrow lot, so narrow that the garage behind the house was sited sideways, with the garage doors facing the property of their neighbor to the east, Mr. Burnham. The lots were on a development that had been laid out in the 1930s, and which planned a street behind the homes to be known as Francis Street. Francis Street was never built, let alone dedicated to public use, but ever since the homes were built, a driveway located along what would have been Francis Street connected the Doucette’s garage to the public thoroughfare, Carl Street. This driveway lay on the part of Burnham’s land that would have been Francis Street (if there had been a Francis Street).

Prior to the dispute, Jeffrey Doucette took care of the portion of Burnham’s land that would have been Francis Street, trimming the trees, removing leaves, seeding, fertilizing and mowing the lawn, plowing the snow, and adding processed stone to the already existing driveway. Over many years, Burnham’s would-be Francis Street land had been used by the Doucettes and others in the neighborhood for parking cars and as an area to walk, play, and ride bicycles.

Burnham, however, wanted to build a clubhouse ... you know, just to have a few friends over every now and then.

Burnham, however, wanted to build a clubhouse … you know, just to have a few friends over every now and then.

Friction began when Burnham bought a large neighboring lot and made plans to develop it commercially. He told the Doucettes he planned to build a clubhouse for a motorcycle gang right where their driveway presently lay, a proposal that did not meet with approbation. Burnham proceeded to tear out the wide drive that had been there, straightening it along the centerline of the unbuilt Francis Street (which put a sharp 90-degree turn in the drive) and narrowing it to 8 feet in width with a berm on either side. The Doucettes could have installed a driveway down one side of their home (where there was about 9 feet between the house and the boundary), but they would have had to take out three mature trees to do so, and the drive would have been quite narrow.

The Doucettes sued Burnham, seeking an injunction and a ruling held they had an easement implied by the original plat maps to use the right-of-way that would have been Francis Street.

Held: The Doucettes were entitled to an injunction. The Court held that the issue of whether a map creates an easement by implication is a question of law. Under an equitable estoppel theory, an implied easement exists when the owner reasonably anticipated the use of the streets disclosed on the map that would prove beneficial to him. Also, a lot owner may acquire an implied easement by virtue of a map under an implied covenant theory, if the anticipated use of the street served as an inducement to the purchase of the lot. Under either theory, the owner doesn’t have to show that such an easement is necessary in order for the implication of its existence to arise, but rather only must show that the easement is highly convenient and beneficial for the enjoyment of the portion granted.

The reason that absolute necessity is not essential, the Court held, is because fundamentally such a grant by implication depends on the intention of the parties as shown by the instrument. It is not strictly the necessity for a right of way that creates it. Thus, the Court said, in determining whether an easement by implication has arisen the Court examines (1) the intention of the parties, and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate.

Here, the Court said, although the Doucettes could have had access to their garage over their own property by removing three trees and repositioning or restructuring the building, access over the Francis Street route is highly convenient and beneficial to the Doucettes for the normal enjoyment of their land. Based upon a review of the maps and deeds entered into evidence, as well as the circumstances giving rise to the easement in this case, the Court found that the Doucettes had an implied easement for ingress and egress to their garage over Burnham’s land on Francis Street. The rule in Connecticut is that while some benefit to the dominant estate must be shown to establish the right to an easement implied from a map, generally, the easement itself is not limited to such as is reasonably or materially beneficial to the grantee. The court must consider any language on a map or other instrument as a matter of law and consider that legal language in light of the surrounding circumstances involving the facts of the case.

meant150630The implied easement in this case arose from documents recorded in the land records. Therefore, the Court held, it must follow the intentions of the grantor of the implied easement at the time it was granted, even though the circumstances have changed significantly since 1939 when the original map was recorded. Based upon the maps, deeds and circumstances that existed at the time Map 388 was created in 1939, the Court said, Francis Street was clearly intended to provide ingress and egress to the Doucettes’ garage, as though it was a public highway. The physical scope of the easement for ingress and egress was clearly established by the description of Francis Street on the map and recorded in the land records. Therefore, to the extent that the Doucettes had used Burnham’s land on Francis Street in the past to access their garage, they had not overburdened their right to do so as the owners of the dominant estate.

However, the Court said, because the original purpose of the easement over Francis Street was to provide ingress and egress to the Doucettes’ garage, the scope of the their use of the easement must be limited to the normal and natural activities that may be conducted on a residential roadway, including parking and for ingress and egress to the Doucette property by foot or bicycle. But roadways, the Court held, are not intended to be used as a playground or for conducting other social activities. Therefore, the easement was not intended to provide the Doucettes with access to a park or to open space, for their general use without limitation, so kids could not be playing on it.

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Case of the Day – Monday, June 29, 2015

SKIN OF HER TEETH

skin150629We’ve seen several of these mutual acquiescence cases recently, for no apparent reason. Over the years, memories fade … and what usually began as a mistake or a matter of convenience — such as when two parties build a fence that’s not right on the proper boundary line, but decide to let it go — becomes the de facto boundary line.

In today’s case, Ms. Shoemake (she seems to be missing an “r”, doesn’t she?) established that a broken-down fence had become her property’s boundary by mutual acquiescence, but only by the skin of her teeth. The evidence that one of the former neighbors had agreed to the fence as the boundary was remembered only by Ms. Shoemake. The former neighbor remembered the conversation, but not the crucial concession.

The Court of Appeals wasn’t all that sure, but under the relaxed standard of review appellate courts give the fact-finding by trial courts, decided by a 2-1 margin that Mrs. Shoemake had shown then fence line to be a boundary by acquiescence. But a plaintiff shouldn’t try too many times to win on such a tissue-thin showing.

There’s always the chance that someone else might remember it differently. And then, the trial devolves into a “swearing contest.”

gvtwork150629Boyster v. Shoemake, 272 S.W.3d 139, 101 Ark.App. 148 (Ark.App. 2008). Teresa Shoemake owned land next to James Boyster. A boundary-line dispute arose in summer 2005 when several of Teresa’s hunting dogs went missing on her property. When she went to the disputed area on her four-wheeler to find the dogs, Ms. Shoemake saw that an old fence that had stood there for about 65 yesars had been cut, rocks had been picked up, and trees had been cut down.

Mrs. Boyster told Teresa that the Boysters had surveyed the property and discovered that the fence line was not on the boundary. Shoemake described the fence as an old, rusty strucgture that had grown into the trees. She said the fence had been on the property her entire life. Her grandmother acquired the property in 1942.

Ms. Shoemake recalled visiting the property often, and she said that in the 1960s, the property on the other side of the fence was used as pasture land. She never saw anyone other than her family use the property south of the fence. Her family’s side of the fence contained trees, which had not been used for anything other than Christmas trees and recreation.

This would have been good advice for Ms.Shoemake and her neighbor ...

This would have been good advice for Ms.Shoemake and her neighbor …

Ms. Shoemake said that Bryan Tatum, the Boysters’ immediate predecessor in interest, acknowledged the fence line as the boundary line in a conversation with her, and asked if he could dig across her property and install a water line. Others testified that they had always believed the fence line was the boundary. The trial court found that Ms. Shoemake established a boundary line by acquiescence and quieted title to the disputed tract in her name. Boyster appealed.

Held: Ms. Shoemake had proven that the fence line was a boundary by mutual acquiescence. The Court said that mere existence of a fence or some other line, without evidence of mutual recognition, cannot sustain a finding of boundary by acquiescence. However, silent acquiescence is sufficient, as the boundary line is usually inferred from the parties’ conduct over so many years. A boundary by acquiescence may be established without the necessity of a prior dispute or adverse use up to the line. For a party to prove that a boundary line has been established by acquiescence, that party must show that both parties at least tacitly accepted the non-surveyed line as the true boundary line. The mere subjective belief that a fence is the boundary line is insufficient to establish a boundary between two properties.

Not the kind of "self-serving" the court had in mind ...

Not the kind of “self-serving” the court had in mind …

Here, Boyster complained that Shoemake failed to present any evidence that Boyster or any of his predecessors in interest considered the fence line to be the boundary. But the Court observed that Shoemake said that Tatum acknowledged the fence as the boundary line. While this was rather “self-serving” testimony, it was within the province of the trial court to find whether Teresa’s evidence was credible. Besides, other testimony from Shoemake and her witnesses established that no one north of the fence used the property south of the fence and that property north of the fence was pasture, while property south of the fence was woods. The Court concluded that Ms. Shoemake had presented sufficient evidence – just barely enough –to establish that Boyster and his predecessors in interest recognized the fence line as the boundary between the two properties.

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Case of the Day – Friday, June 26, 2015

BUYING TROUBLE

An adverse possession action can often devolve into a pissing contest ...

An adverse possession action can often devolve into a pissing contest …

The Walls never imagined that when they bought the overgrown half-acre next to an old church that they were buying boundary trouble. After all, their neighbors were Baptists. As long as the Walls didn’t drink or dance or carouse, it should be heavenly.

It wasn’t. As soon as Mr. Wall started clearing the trees and brush, the Church complained he was encroaching on their land. Being a careful kind of guy, Mr. Wall stopped until he could have an expert check it out. It turned out he wasn’t on the Church’s property, so he kept clearing the land.

The Church wasn’t willing to forgive Mr. Wall his trespasses, which the brethren steadfastly believed were continuing. The Baptists sued, arguing that while maybe earthly authorities said it was the Walls’ land, the Church had acquired it over the years by adverse possession. The Walls moved for summary judgment, asking the trial court to throw the Church’s case out because there were simply no facts supporting the Church’s argument was that the area was so overgrown, it would have been impossible for the Church to have possessed the disputed land.

When a party files for summary judgment, it is incumbent on the other side to show with affidavits and other documentary evidence that genuine questions of fact exist. Here, the Church opposed the Walls’ motion with three affidavits of long-time members that seemed to be pretty much “cookie cutter” claims, mere conclusory recitations that the Church had openly, continuously and hostilely possessed the disputed land for years.

Remember that part about bearing false witness? The trial court wasn’t impressed: it threw out the affidavits because the witnesses didn’t adequately describe the fence or claim they were familiar with the boundaries.

The Court of Appeals reversed, finding that affidavits were detailed enough to show that a real question existed whether the Church had possessed some of the Walls’ property. But then on rehearing, the Court reversed its own reversal, holding that the affidavits permitted two equally reasonable inferences as to whether the fence was located on the neighboring landowners’ property. That being the case, the Court said, the affidavits did not create a genuine issue of material fact warranting submission of the case to the jury. Someone could only speculate or guess whether the fence was located on the neighboring landowners’ property or on the church property.

Cookie cutters - great for baking, not so good for affidavits.

Cookie cutters – great for baking, not so good for affidavits.

The moral to the story: it’s never a good idea to file conclusory affidavits. Detail is good, and the more facts you can aver, the better. Here, the Church’s lawyer wrote some mirror-image affidavits that were short enough on fact and long enough on conclusion (and confusion) that the Church got its case tossed.

Springfield Missionary Baptist Church v. Wall, 993 So.2d 469 (Ala.Civ.App. 2008). Springfield Missionary Baptist Church owned land next to a half-acre parcel owned by Robert and Melissa Wall. Robert began clearing the land when the Church contacted him, contending that he had torn down a boundary-line fence and some trees on Church property. Concerned about the allegation, he double-checked the boundary line and determined that he had not crossed it. He then continued with his clearing.

The Church sued the Walls to quiet title to a portion of the Walls’ property. The Walls moved for a summary judgment, arguing that the Church’s deed did not give it title to the disputed strip of land, as the Church had alleged in its complaint. Even it had, the Walls said, the allegedly destroyed fence had not encroached onto the Walls’ property such that it could claim adverse possession of a portion of the Walls’ property up to that fence, because neither of the surveyors who had surveyed the properties and determined the boundary line had indicated an encroachment of any kind on either survey. Finally, the Walls also argued that their property had been “overgrown” and heavily wooded at the time it was purchased in November 2005 and that, because it was in such a condition, no part of it had been susceptible to being used in a manner that could establish adverse possession of any part of the property.

The Church retorted that the fence that the Walls had destroyed had served as a boundary line between the two properties. It said it had used the property up to the fence as a parking lot and that it had used the area up to the fence for more than 60 years, thus establishing adverse possession of the disputed “strip.”

The Church submitted the affidavits of three long-time church members. In nearly-identical affidavits, two of them said they had been members of the church since 1928 and 1934, respectively. Both said that the Church has claimed ownership the property encompassed by the legal description set out in the 1995 survey, and the Church had in continuous, actual, open, notorious, and peaceful possession of said land from at least the year 1928 to the present time. Regarding the fence, they both said it had been located on the property as long as they could remember.

Another affidavit submitted in opposition to the Walls’ motion for a summary judgment was signed by another member. She said the Church had been in its present location for over 20 years and that she has been a member of the church for over 20 years. She averred that the old fence removed by the Walls had been in place as long as she could remember and served as the boundary line.” According to her, “the church parking lot went all the way to the fence line,” and that she had walked the boundary line marked by the fence many times.

The trial court struck the affidavits submitted by the Church on the grounds that the affidavits only stated conclusions regarding adverse possession instead of making statements of fact that would support a conclusion that the Church had adversely possessed the disputed property. The affidavits failed to adequately describe the fence, and the affiants failed to testify that they were familiar with the legal boundary line of the property.

In addition to striking the affidavits, the trial court determined that the church had failed to provide substantial evidence of an encroachment on the Walls’ property. It granted summary judgment in favor of the Walls.

The Church appealed, arguing that it presented substantial evidence creating a genuine issue of material fact and thus presented sufficient evidence to preclude the entry of the summary judgment.

Holy Moses!  Nothing in these tablets about a fence, either ...

Holy Moses! Nothing in these tablets about a fence, either …

Held:  The Court of Civil Appeals reversed the trial court in a decision in September 2007, but then, in January 2008, reversed its prior reversal, upholding the trial court. The Court of Appeals ultimately held that the summary judgment affidavits submitted by church members did not present solely conclusory statements so as to warrant striking the affidavits in their entirety. However, the affidavits didn’t create a controversy that required the case to go to the jury.

The affidavits permitted two equally reasonable inferences as to whether the fence was located on sacred ground – the church land – or on the Wall’s land. This would heave a factfinder to only speculate or guess whether the fence was located on the neighboring landowners’ property or not.

The Court observed that it was only where evidence points equally to inferences both favorable and unfavorable to the party moving for summary judgment that it lacks probative value, and its use to support one inference more than another, when in fact it will support both with equal plausibility, becomes mere conjecture and speculation.

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Case of the Day – Thursday, June 25, 2015

THE BOUNDARY TREES OF WALTER PRIDDY


mitty140808You know how free association goes. This being summer and all, we were groovin’ (a 60s term, kiddies) on an old Lovin’ Spoonful hit yesterday, “Summer in the City.

Although operating without a lot of the mental stimulants that were so freely available during the Summer of Love, we nonetheless started pondering the line “Back of my neck gettin’ dirty and gritty.” “Gritty” rhymes with “pretty,” which rhymes with “Priddy.” And there you have it. Thinking a lot about tree law (as we do), we recalled Walter Priddy.

“Oh, yeah,” you say, “that guy James Thurber wrote about. The secret life and all … The Ben Stiller movie …” No, not ‘Mitty.’ We’re talking ‘Walter Priddy.’ No “secret life” that we know of, but something just as fascinating – a line of boundary trees, an unhappy neighbor, a homeowner’s association, counterclaims. Our meat and potatoes, you know.

It ought to be rather obvious — a court can only decide issues that have been placed before it, and can only order remedies which address the causes of action that it has found to have merit. Courts sometimes lose their way, though, as did the California trial court in today’s case. The Boussiacoses (pronounced “them”) complained that the Priddys’ line of shade trees along their common boundary were a nuisance, messed up the Boussiacoses’ deck, and violated the homeowner’s associations’ rules. The Priddys argued that the trees did no such things, and anyway, the Boussiacoses’ deck had been built without homeowner’s association permission, constituted a nuisance itself, and violated the rules.

The trial court decided that neither side was right. Now your average observer would conclude that the decision meant that the Boussiacoses kept their deck and the Priddys kept their trees. But the trial court decided that the Boussiacoses must have reached an oral “understanding” (and we don’t know how an “understanding” surrounded by quotation marks differs one that isn’t in quotes) with the owners before the Priddys that the trees would be kept trimmed.  Now, mind you, the Boussiacoses hadn’t argued that there was such an “understanding,” or that if there was it should be treated like some kind of enforceable agreement. But the trial judge – quite proud of his “solution” – decided that the phantom “understanding” should bind the Priddys anyway. He crafted a decision that let the Boussiacoses keep their deck provided the Priddys got to keep their trees, but the trees had to be hacked off at the height of some wrought-iron fence that was apparently part of the landscape.

Solomonic, you say? Not really. Remember that King Solomon never really intended to cut the baby in half. Plus, that decision at least directly addressed the issue the two warring women had placed before the King and no more – that questions being exactly whose baby the subject infant was. Here, the trial court found that there was nothing wrong with the trees and nothing wrong with the deck, but he ordered the trees trimmed anyway. It’s kind of like being charged with bank robbery, being found not guilty by the jury, but being sentenced to 5-10 years in the pen anyway because the judge thinks you probably cheated on your taxes.

In this dramatic re-enactment, King Solomon faces a tough decision.

In this dramatic and plastic re-enactment, King Solomon faces a tough decision – how to divide the bambino.

The Court of Appeals thought as little of the trial court’s decision as we do. It made short work of the trial court’s order. Because no one had raised the issue of whether there had been an understanding (or “understanding”) about the trees between the plaintiffs and the prior owners of defendants’ place, the trial court couldn’t find there had been one and enter an order accordingly.

Boussiacos v. Priddy, 2007 WL 4306835 (Cal.App., Dec. 11, 2007). The Boussiacoses sued their next-door neighbors, the Priddys, for statutory nuisance and violation of their mutual homeowners association’s covenants and rules. They alleged the Priddys maintained trees which blocked the Boussiacoses’ view along the parties’ shared property line. The Priddys counter-sued, alleging nuisance and violation of the covenants and rules , because the Boussiacoses had apparently built their deck without the homeowners association’s approval.

Following a bench trial, the trial court found that neither party had proved any of the claims raised in the pleadings. However, the trial court entered judgment anyway, requiring the Priddys to maintain the trees at specified heights in accordance with an “understanding” allegedly entered into by the Boussiacoses and the previous owners of the Priddys’ property. He also ruled that the Boussiacoses could keep their deck. The Priddys appealed, arguing that the trial court couldn’t enter a judgment where it hadn’t found the Boussiacoses’ underlying claims to have any merit.

No pruning for the Priddys

No pruning for the Priddys

Held: The trial court’s “judgment” was thrown out. The Boussiacoses had asserted only two claims against the Priddys, statutory nuisance and violation of the homeowners’ association’s covenants and rules. Because the trial court concluded on the record that the Boussiacoses failed to prove either claim, the Court of Appeals said, the judge was without any legal authority to make findings regarding an “understanding” between the Boussiacoses and the previous owners of the Priddys’ property. Such an “understanding” wasn’t alleged in the pleadings. The judge could not conclude that this understanding was enforceable against the Priddys, and could not enter a judgment which imposed tree-trimming maintenance obligations on the Priddys.

The Court of Appeals held that a trial court’s award of relief must be based on a pleaded cause of action. Trial courts are more arbiters than gods. Here, the trial court transcended the limits of its authority. Because the record did not show that the enforcement of any agreement between the Boussiacoses and the previous owners of the Priddys’ property was before the court, the trial court erred by awarding the Boussiacoses relief on that basis.

Groovy appellate decision, we must say.
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