Case of the Day – Tuesday, May 21, 2024

Posted on May 21, 2024 by TLRoot tagged.

SHORT AND SWEET

There have been more than a few recurring themes in our posts over the past decade-plus. Some of the most repeated are (1) hire a lawyer when you should have one, such as anytime you feel the need to sue someone; (2) courts follow prior decisions – called stare decisis – in order to bring certainty to the law; and (3) the Massachusetts Rule has traditionally been the law of the land, and while that has been changing, it is still the “go to” rule in most places.

Alas, Virginia Scott is not one of our regular readers. Had she been back in 2010 (and yes, we were around then, when people were still surfing the Web with their Packard Bell 286s sporting 56K modems), she would have consulted a lawyer about the mess that trees belonging to her neighbor, Julie, were making in her yard. She would have told the lawyer that she wanted damages for the dropped leaves and twigs, and she wanted to be compensated for what she paid tree trimmers to cut the offending branches and roots back to her property line.

The lawyer would have said, “Nothing doing,” or words to that effect, which would have saved Virginia the cost and aggravation of trying a do-it-yourself lawsuit against Julie. As well as having her hat handed to her by the trial court and the court of appeals.

“But,” Virginia wailed, “the law is stupid. It should be changed.” Notably, that argument has worked some places – Virginia, Hawaii, North Dakota – but Virginia had no idea how to press for modification of the rule, and the Court was unimpressed.

At least the Court of Appeals kept it short and sweet. As we will be…

Scott v. McCarty, 41 So.3d 989 (Fla.App. 4 Dist. 2010). Virginia Scott owned property next to Julie McCarty’s place. Dr. Julie had some pretty lush trees – this being Florida, plants like to grow there – and eventually some of the branches were overhanging Virginia’s place, and the roots were intruding underground.

Virginia sued the Doc for the damages Julie’s trees caused her property and for the cost of trimming the branches back to the property line and digging up the intruding roots. Apparently, having spent so much on damage repair and tree trimming, Virginia decided to save money on a lawyer and represented herself.

The trial court dismissed her complaint forthwith, citing the Florida common law rule that “a possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner’s own expense, any encroaching tree roots or branches and other vegetation which has grown onto his property.”

This rule not seeming right to Virginia, she appealed.

Held: Virginia’s case was properly dismissed. The Court of Appeals said that the reason for Florida’s common-law rule “was that it was wiser to leave the individual to protect himself than to subject the other to the annoyance of actions at law which would likely be innumerable.”

On appeal, Virginia acknowledged that the common-law rule, first adopted in the 1987 Florida appellate case Gallo v. Heller, was the prevailing law, but she asked the Court to “take a different course.” The Court refused to do so, saying that “the Gallo view is the predominant view in the country… [and] departing from the precedent would invite further litigation between neighbors on this issue, which as a public policy matter should be avoided.”

– Thomas L. Root

And Now The News …

Posted on May 21, 2024 by TLRoot tagged.

Virginia Mercury, May 20, 2024: Documenting and preserving Virginia’s largest, most revered trees

Virginia is home to nearly 80 national champion big trees, consistently placing the commonwealth in the top five states with the most documented champion trees, or trees that have grown to be the largest specimens of their particular species. The Virginia Big Tree Program, coordinated by the Department of Forest Resources and Environmental Conservation at Virginia Tech, maintains a register of the largest specimens of over 300 native, non-native and naturalized tree species in Virginia. The trees are ranked based on a scoring system that takes into account their trunk circumference, overall height and average crown spread. Anyone can measure, or hunt, big trees and submit their findings for nomination by the Virginia Big Tree Program. Trees that are national contenders can be nominated by the National Champion Tree Program, coordinated by the University of Tennessee Knoxville’s School of Natural Resources. “A lot of people oftentimes think that in order to find a giant champion tree that you’d have to be out in the wilderness somewhere, but that’s not the case,” said Eric Wiseman, associate professor of urban forestry at Virginia Tech and program coordinator for the Virginia Big Tree Program…

Stamford, Connecticut, Advocate, May 20, 2024: Gov. Ned Lamont, neighbors could face tree-cutting fines in Greenwich this week

Gov. Ned Lamont and his neighbors could be fined this week for illegally cutting down trees last year in a protected wetland in town. The town’s Inland Wetlands and Watercourses Agency will meet at 2:30 p.m. Wednesday to discuss Lamont’s case and those of his neighbors, according to an agenda published on Monday. The meeting will be conducted virtually. At least 180 trees were cut down on land owned by Lamont, his neighbors the Viks and a neighborhood association – the Ashton Drive Association – last November, according to the IWWA. The workers also crossed over a property line during the course of their work and cut down trees on land owned by INCT LLC and Ashton LLC without permission. One INCT LLC consultant concluded that 375 trees were cut down on the shared land near Lamont’s home, leaving the character of the woods “destroyed by the clearing activities…”

Live Science, May 20, 2024: Tree rings reveal summer 2023 was the hottest in 2 millennia

Last year’s summer was the hottest in 2,000 years, ancient tree rings reveal. Researchers already knew that 2023 was one for the books, with average temperatures soaring past anything recorded since 1850. But there are no measurements stretching further back than that date, and even the available data is patchy, according to a study published Tuesday (May 14) in the journal Nature. So, to determine whether 2023 was an exceptionally hot year relative to the millennia that preceded it, the study authors turned to records kept by nature. Trees provide a snapshot of past climates, because they are sensitive to changes in rainfall and temperature. This information is crystalized in their growth rings, which grow wider in warm, wet years than they do in cold, dry years. The scientists examined available tree-ring data dating back to the height of the Roman Empire and concluded that 2023 really was a standout, even when accounting for natural variations in climate over time…

Indianapolis, Indiana, Star, May 14, 2024: It’s bird migration season in Indiana. Plant a native tree to keep biodiversity alive.

My relationship with trees has always been one of admiration. Growing up in Gettysburg, Pennsylvania, I was surrounded by them. One, the Witness Tree, held a special allure for Gettysburgians and fans of American history. Despite this admiration, it is only in recent years that I have begun to truly appreciate the impact these magnificent sentinels can have on my wellbeing. Upon moving to midtown Indianapolis in the early 2010s, my wife and I were fortunate to buy a home in Oliver Johnson’s Woods, a small neighborhood with some fantastic old trees. One of the beauties of my neighborhood is that it developed organically over time. The layout of the houses and landscaping plan was not contrived to maximize profits and minimize diversity. The houses don’t match, nor do the trees, and this is what makes it so magical…

Seattle, Washington, Times, May 19, 2024: Beetles killing more trees in WA, likely due to drought

Washington had fewer dead or dying trees last year, but beetles that feed on dry trees caused greater damage across the state, a concerning trend for environmental officials. The state’s annual forest health survey from the Washington Department of Natural Resources and the U.S. Department of Agriculture Forest Service found Washington’s forests are suffering from increased heat, drought and wildfires, making them more susceptible to deadly beetles that feed on bark. Glenn Kohler, a forest entomologist at DNR, said it’s hard to tell for sure if the drought is causing the beetle populations to spread, but it is likely. “I think they’re just breeding up in drought-stressed trees and moving to other drought-stressed trees,” Kohler said. “As long as these drought effects remain, I anticipate we’ll see more…”

New York City, Curbed.com, May 16, 2024: Walking Around New York City With a Tiny Saw

The citizen street-tree pruner must live by certain rules: Sharp, clean tools are a pruner’s best friend. No climbing — all of your tree maintenance must be done with two feet on the ground. (“Never stand on a ladder, nor a trash can.”) You are an ambassador of street trees, so keep the peace. If someone is mad at you for cutting down a wayward branch, even after you’ve explained that actually you are very specifically licensed to perform random acts of tree upkeep, “stop pruning and walk away.” Best to avoid the fight, as “this is a big city with many other trees that need you.”On a rainy May morning, I am standing at the gates of Greenwood Cemetery with seven other pruners-in-training to learn this sacred code. It wasn’t easy to get here. “Last year I tried to sign up and I didn’t have my credit card with me so I had to run downstairs and get it — but when I came back upstairs, it was all gone,” Curlene Nelson, an IT worker from Queens, said of trying to get a spot in Trees New York’s citizen-pruner class. “This time I was ready.” A deluge of interest often means the website crashes when sign-ups go live…

Hannibal, Missouri, KHMO Radio, May 19, 2024: 100’s of Reports of Invasive Tree-Killing Bug in Missouri

This is potentially very bad news for trees in Missouri. Suddenly, there are hundreds of reports in Missouri of an invasive pest that is responsible for the deaths of millions of trees every single year. This nasty bug isn’t supposed to be in Missouri or any part of America. The USDA National Invasive Species Center says it’s native to Russia, China, Japan, and Korea. It’s the Emerald Ash Borer and the report map now suddenly shows numerous sightings in Missouri. The USDA calls the Emerald Ash Beetle in Missouri “one of the most destructive invasive species in North America” and they’re not wrong. These invasive bugs have caused a damage path in the Missouri tree population…

Time, May 19, 2024: Masked Defendants Face Steep Cost of Damage for Allegedly Felling Famous 150-Year-Old Sycamore Gap Tree

Two men accused of cutting down the majestic Sycamore Gap tree concealed their faces from cameras as they arrived at court Wednesday but inside the courtroom they couldn’t hide from the cost of the damage they allegedly caused. A prosecutor said the value of the roughly 150-year-old beloved tree that was toppled onto Hadrian’s Wall in northern England last year exceeded 620,000 pounds ($785,000). “This is a case that will be instantly recognizable to you, indeed anyone hearing the charges read out,” prosecutor Rebecca Brown said in Newcastle Magistrates’ Court. “The prosecution say the tree was deliberately felled on Sept. 28 last year and the resultant fall damaged Hadrian’s Wall, a UNESCO World Heritage Site. The prosecution say these defendants are responsible as part of a joint enterprise…”

New York City, The New York Times, May 15, 2024: The Unusual Evolutionary Journey of the Baobab Tree

Baobabs are one of the most charismatic trees on Earth, thanks in part to their unusual appearance. Their cartoonishly thick trunks are conspicuously oversized relative to their diminutive crowns, earning them the nickname “upside-down trees.” They can also live for thousands of years, contributing to their prominent place in cultural traditions and works of art. For all the tales told about baobabs, though, their origin story has remained a mystery. Scientists have debated for years how baobabs wound up in the places where they grow. Eight species exist around the world, and their distribution, like the trees themselves, is unusual: One species occurs across much of mainland Africa, while six are in Madagascar. The last is found faraway, in northwestern Australia…

San Luis Obispo, California, Tribune, May 16, 2024: Is it legal to cut down a tree on SLO property? You have to follow these rules, city says

From California sycamores to coast live oaks, trees are part of a leafy legacy in San Luis Obispo. The city’s commitment to its urban forest has been recognized by the Arbor Day Foundation’s Tree City USA program for 40 years. “The city places a high value on trees and the benefits they provide for our urban and economic environment,” including shade, cooling and air quality, said Walter Gault, San Luis Obispo Urban Forestry Program coordinator and city arborist. “The code is written so they can be protected or preserved.” What should you do if you want to cut down a tree on private property? Reddit user dr_beez_e recently asked, “My next-door neighbor has a dead tree that is clearly a hazard to either me or their tenants. I’ve told them about it multiple times and nothing gets done about it. My question is, where can I report this?” “No person shall cut down, remove or destroy any tree, or cause the cutting down, removal or destruction of any tree” on private property, city law says, without first obtaining a tree removal permit…

Salt Lake City, Utah, KSL-TV, May 16, 2024: ‘A forest of dead trees’: University of Utah study looks at new insect killing Utah’s fir trees

A small, invasive insect is setting up shop within Utah’s long-stressed conifer forests and wreaking havoc on some portions of the state’s subalpine fir population. First introduced in the Pacific Northwest around a century ago, the balsam woolly adelgid — commonly referred to as BWA — comes from central Europe and can only travel via wind or by latching onto birds and other animals. It was first detected in the Beehive State in 2017 and has been spreading around the Wasatch Mountains, visibly affecting many of the popular recreation canyons outside Salt Lake City. New research from the University of Utah and the U.S. Forest Service has documented the current extent of the BWA infestation and created a model for predicting its severity around the Uinta-Wasatch-Cache National Forest…

Lake Tahoe, Nevada, Tahoe Daily Tribune, May 16, 2024: Is the death rate of Tahoe trees getting better or worse?

Earlier this year, the USDA/USFS Aerial Detection Monitoring sector released the R5 ADS Final Report (aka the 2023 Aerial Detection Survey Results for Region 5) highlighting the tree mortality rate in California. Since insects and disease play a critical role in shaping forest ecosystems, the USFS annually performs aerial surveys over tree-dense lands to create maps that track areas having recent defoliation, conifer/hardwood mortality, and other damage. In its 2023 Report, they found an overall increase in mortality in Eldorado and Tahoe National Forests and in the area managed by Lake Tahoe Basin Management Unit…

West Hartford, Connecticut, we-ha.com, May 15, 2024: West Hartford Tree Warden: Boulevard Trees to Remain

Several dozen West Hartford residents, as well as representatives from the town and Eversoure, gathered early Monday afternoon on the corner of Boulevard and Four Mile Road, attending a public hearing regarding the proposed removal of 22 Bradford Pear trees, and on Wednesday morning, John Phillips, the town’s director of Public Works and also West Hartford’s tree warden, announced Wednesday morning that the trees along Boulevard will not be cut down. “After considering the entire record including documentary evidence, written comments submitted by residents of West Hartford and testamentary evidence, the West Hartford Tree Warden has decided to keep the Bradford Pear trees on the Boulevard, despite their contact with power utility lines for the time being,” Phillips wrote… The trees along Boulevard – part of the backbone of the town’s electrical grid – were originally being trimmed as part of Eversource’s annual maintenance efforts, and about a half dozen of them had already been trimmed this spring. When he saw how the trees looked, and knew they were right below the wires, Phillips said he had a conversation with Eversource and asked about removing the trees because regular trimming on their schedule wasn’t enough to keep the trees from quickly growing back into the utility wires…

Lake Charles, Louisiana, KPLC-TV, May 15, 2024: Who’s responsible if your neighbor’s tree falls and damages your property?

Right now many are dealing with downed trees and limbs – some, maybe, from your neighbor’s tree that fell and damaged your property. The law on who is liable is not as clear in Louisiana as it is in some other states. So who is responsible if your neighbor’s tree falls in your yard or on your fence causing damage? It may depend on the condition of the tree. Southwest Louisiana Law Center attorney La Koshia Roberts said if it’s a tree that was rotted, it may be your neighbor’s responsibility. “The neighbor whose property was damaged by that tree falling would likely have to prove that there was some known damage or condition, defect or ruin of that tree which caused it to fall. One of the things the property owner in this scenario would have to do is, first of all, file an insurance claim,” she said. Roberts said the insurance claim would start an investigation which would help determine who is responsible…

Austin, Texas, KXAN-TV, May 15, 2024: How leaky pipes help trees thrive on UT Austin’s campus

Who knew leaky pipes could be a good thing? That’s the findings from new research out of The University of Texas at Austin’s Jackson School of Geosciences. Researchers found between 25% to 50% of the water running through Waller Creek — which crosses along UT Austin’s campus — is the product of leaky city pipes, UT officials said in a release. Those leaks provide a gift, allowing the creek to help nourish trees along its banks, even during drought conditions. The UT research team’s work determined this is one of the “unintended positive effects” of urbanization — but added this benefit doesn’t cancel out some drawbacks, like pollution or heightened concentrations of illness-causing bacteria. Those findings were published in the Natural Partner Journal Urban Sustainability. “Those negative effects are not canceled out,” Jay Banner, a professor in the Jackson School of Geosciences and the director of the Environmental Science Institute, said in the release. “One has to weigh the unintended positive consequences with the expected and long-shown negative consequences…”

Chattanooga, Tennessee, WRGB-TV, May 13, 2024: An unexpected act of kindness saves man from costly tree removal after storm

A man in Ooltewah was faced with an expensive cleanup after his 125-foot-tall White Oak tree fell. Two tree service companies have offered to help. Brian Swanson watched in awe as Aaron Spangler and Holden Woods got to work. “He’s hired us before, and I feel like the lord was just telling me to bless somebody, and we tried to help Brian out today,” said Holden Woods, owner of Top Notch Tree Management. The two are business owners. Woods owns Top Notch Tree Management, and his partner Spangler runs Spangler Tree Service. Swanson called around to other tree companies and was told a project of this size could cost him $10,000. But, no worries. Woods and Spangler got right to work…

ABC News, May 13, 2024: Invasive emerald ash borer endangers cultural keystone tree species

In northern Wisconsin, April Stone is carrying on a centuries-old Ojibwe practice of basket making. She uses wood from the black ash tree, a cultural keystone species that’s now under threat from the invasive emerald ash borer. Yet for Stone and other tribal artisans, protecting black ash trees – and their cultural and ecological value – is critical. Basket making, she said, empowers and connects people. “This kind of work teaches humility and patience and respect and courage and love and wisdom, all of those sacred lessons that helped our people continue on in their existence for thousands and thousands of years,” Stone said. The emerald ash borer has proliferated across 36 states, the District of Columbia and five Canadian provinces, according to the U.S. Forest Service. The green, wood-boring beetle – native to Asia and which was first discovered in the U.S. in 2002 – is considered one of the most destructive invasive species in North America, killing trees within three to five years of infestation, the federal agency reports…

Evanston, Illinois, RoundTable, May 12, 2024: At This Time: The city’s tree clouds

Jennifer Roberts and Jim Iorio show the backyard trees that they covered with netting to protect them from cicadas. “We planted all these trees last year and the cicada-apocalypse is coming,” said Roberts, who lives on the 1400 block of Dempster Street. Naturalists recommend covering new woody plants with netting to keep cicadas away this spring. “Maybe it will be nothing in a couple of week; maybe it will be devastating,” said Iorio. “This way we will be protected.” The couple, like most residents in town, love trees. Said Roberts: “They are majestic. They are bigger than me. They are going to last longer than me. And they clean the air and soften the wind…”

Cambridge, Massachusetts, Cambridge Day, May 12, 2024: Another 70 trees killed in Cambridge, and for what?

The MBTA had Northern Tree Service cut down at least 70 public trees May 4 in an Alewife flood zone. Northern mobilized a massive fleet of workers and machines to cut down the trees on a weekend when agencies are closed because, with nearly century of experience, it knew permits are needed in wetland buffer zones. Unlike other Cambridge property owners, the MBTA does not need city permits to cut down trees. One would have hoped that since Northern works also for the city, it would have told the MBTA about the collapse of our tree canopy and advocated for restraint. This was an urban wild across the street from the Alewife MBTA garage. There are parking structures on each side and it backs onto a canal for overflows of raw sewage into Alewife Brook. It’s a depression that floods with raw sewage during large rainstorms, preventing the sewage from flowing onto streets, sidewalks and paths and into the abutting Healthpeak Properties parking garage basement. The raw sewage then either flows out the canal or is absorbed into the ground, naturally sanitized by the trees and other plants…

Baltimore, Maryland, The Bay Journal, May 13, 2024: After slow start, urban tree planting in Maryland picks up steam

As a famous poet once said, spring is when one’s fancy turns to thoughts of love. It’s also a time to get young new trees in the ground. For Camerio Graves, a crew leader for the Baltimore Tree Trust, the two go together. “I love what I do,” he said as he staked and mulched a Princeton elm, one of a half-dozen or so large saplings his crew was planting along a treeless stretch of McClean Boulevard in northeast Baltimore. “It’s not just a job.” All across Maryland, community groups, nonprofits, government contractors and countless volunteers are turning out this spring to plant thousands of trees in neighborhoods like this. They’re working to fulfill Maryland’s Tree Solutions Now Act passed in 2021, which calls for planting 5 million trees statewide by 2031. It’s a massive undertaking, but one aimed at helping the state deal with a changing climate. As trees and the canopy they provide grow, they absorb climate-warming carbon dioxide, provide cooling shade from extreme heat and soak up potential floodwaters…

Washington, DC, Post, May 10, 2024: The city made him hide his boat — so he had it painted on his fence

When the city of Seaside, Calif., ordered resident Etienne Constable to build a fence to cover the boat parked in his driveway, he complied. But the puckish way he did it — hiring his artist neighbor to paint a realistic mural of the same exact boat on his fence — has brought him viral attention. “We kind of hit the sweet spot between following the rules and making an elegant statement to the contrary,” says Constable. Constable, who works in business development, has lived in the same house in Seaside for 29 years. For most of that time, his boat trailer — often with a boat attached — has sat in his driveway without issue. But in July 2023, he received a letter from the city, asserting that the municipal code requires that boats and trailers be “screened on the side and front by a six-foot-high fence,” and threatening him with a citation and a $100 fine if he failed to comply. (The Washington Post has reviewed the letter.) To Constable, the letter came out of nowhere. The ordinance itself is not new. He hadn’t heard any complaints from neighbors, and he’s kept the boat, which he named Might as Well and uses to fish “as often as I can,” for four years in his driveway…

Tampa, Florida, Tampa Bay Times, May 13, 2024: This disease is the latest threat to Florida’s vulnerable mangrove trees

Mara Skadden knew something was wrong when the leaves suddenly turned yellow. Hundreds of young mangrove trees at a Brevard County plant nursery that had looked healthy days earlier were droopy and weak. Within days, Skadden said, nearly 400 died. “It was very, very fast,” said Skadden, the director of science at the restoration nonprofit Marine Resources Council. “To be honest, I thought my plants weren’t getting enough nutrients. But the fact that they were dying at an unprecedented rate made me think something else was going on.” She contacted researchers at the University of Central Florida, who took samples in February. The culprit, their analysis found, was a cocktail of disease-causing fungi that scientists have identified in several countries across the globe, from Vietnam to Colombia…

Los Angeles, California, Laist, May 12, 2024: So There’s Something Arborists Say We Should Stop Doing To Trees. It’s Called ‘Topping’

Here’s an unassailable fact: Trees are awesome. Among the laundry list of benefits, they provide shade in our increasingly warming weather, they clean the air, prevent soil erosion, reduce noise pollution. That’s not all. “They’re good for us mentally, psychologically and socially,” said Bryan Vejar, a senior arborist at the environmental organization TreePeople. Like all good things, trees need to be nurtured and maintained. And for many Southern Californians, a not uncommon sight of maintenance we’ve seen takes the dramatic form of trees having their canopies and branches cut off. “This is sadly a very common practice…. I should say malpractice, honestly,” Vejar said. “Once you notice it and start to understand the hazards and harms of ‘topping,’ you’ll see it everywhere.” Rachel Malarich, L.A.’s forest officer, said topping has indeed become more pervasive…

Madison, Wisconsin, Wisconsin Public Radio, May 10, 2024: Invasive tree-killing beetle likely in every Wisconsin county

State forest health experts say it’s likely an invasive tree-killing beetle has spread to every county in Wisconsin — the insect already killing most ash trees in roughly one-third of the state. The emerald ash borer originates from east Asia, and it was first found in Wisconsin in 2008. The pest has killed tens of millions of ash trees nationwide. The emerald insect lays eggs in the bark of ash trees, and its larvae burrow tunnels and feed off the trees. An infestation is difficult to detect early on as the beetle is usually present for three to five years before trees start to decline or die. The Wisconsin Department of Natural Resources recently discovered emerald ash borer, or EAB, in Washburn and Taylor counties. The only place where the invasive beetle hasn’t been detected is Burnett County. Paul Cigan, an agency forest health specialist, said it’s reasonable to assume the pest will be found there this year or next. “In the north, we’re still accumulating EAB infestations and impact is continuing to grow and ramp up,” Cigan said. “Overall in the future, ash is unlikely to be as common as it is now…”

Case of the Day – Monday, May 20, 2024

Posted on May 20, 2024 by TLRoot tagged.

MOVING THE CHEESE

There’s a great old adage in the law that goes something like “When your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on the law and the facts, pound on the table.” Today’s case is one in which an inventive lawyer tried just that, albeit without much result.

We’ve worked a lot with the old Restatement rule, now on its way out, that a landowner is not liable for physical harm caused to others outside of the land by a natural condition of the land. That rule, when it was a rule, came with a proviso. If the person possessing the land was in an urban area, he or she was liable for physical harm resulting from failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

In today’s case, a tree in the lush tropical paradise fell onto a road and crushed a ’77 Mercedes – a pretty nice ride – leaving the plaintiff’s lawyer with a problem. The evidence showed the collapsed tree was rotten, all right, but that none of the decay was visible from the exterior. So arguing that the tree’s owner should have inspected the tree was a loser because even if he had done so, the owner would not have seen the decay and recognized the danger.

The plaintiff’s lawyer recognized that to win this one, he’d have to move the cheese on the defendant. So he quickly rolled out a second argument: Even if the common law (and more specifically here, the Restatement on Torts) did not impose liability without fault (that is, strict liability), the court should impose it here simply as a matter of public policy. “Public policy” is a fancy way of saying something should or should not be done because… well, because it is just common sense. So, the argument went, it did not matter if tree owner Al Gerard followed the rules as they existed now because the rules needed to be changed retroactively, all the way back to the day the tree fell.

It’s sound public policy, the plaintiff’s lawyer argued, that is, good common sense.

“Common sense?” the Court asked incredulously. If urban owners are strictly liable for any tree that falls, it responded, then their reaction to the rule will simply be to cut down all of their trees. And where would be then? Sorry about the Mercedes, the Court said, but we’d be even sorrier about the trees.

Marrero v. Gerard, Civil No. 249/1989 (Terr.Ct. V.I., Dec. 12, 1989) 24 V.I. 275. Vic Marrero was driving his Mercedes along the East End Road in Estate St. Peters, Virgin Islands. Suddenly a tree stood on property owned by Al Gerard fell on Vic’s car. Vic claimed the car was damaged (not hard to believe) as was his psyche (harder to believe).

Norm Nielsen, who was Al’s neighbor and worked with Vic, was first on the scene. The base of the tree was inside Al’s fence, but the rest was on the road. Norm said the tree was “dry” where it broke off, “kind of rotten but green on top.” The evidence, which included photos taken by the traumatized Vic, failed to establish that a visual inspection of the tree would have disclosed that it was rotten at its base and in danger of toppling.

Held: The Court held that the facts did not show Al to be negligent, because he appeared to have no reason to know that the tree was unstable and would fall.

Vic, however, argued that even if Al was not negligent, he should be held strictly liable for any damage the tree caused. Vic cited the Restatement of Torts (Second), which provided in section 363 that:

(1) except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

Vic relied on subsection 2, arguing that Al – owning trees in an urban setting – had a duty to Vic to inspect the trees. The Court ruled that whether the property on which the tree was located was urban or rural might be debatable but ultimately was irrelevant. Even if the urban standard applied, the Court said, and even if Al had adhered to the standard, “the weakened condition of the tree was not apparent upon a visual inspection, so that it matters not whether the area was urban or rural. Perhaps a core sampling of the tree would have disclosed the problem, but such an effort, particularly when weighed against the likely risk, is far too onerous a burden to place upon a landowner.”

The Court held that the Restatement did not impose strict liability, that is, liability without fault, in circumstances like these. All § 362(2) does is to apply a more specific standard of care to an urban landowner, but still within a negligence realm.

Unfazed, Vic argued that the Court should apply its own strict liability standard to this case, as a matter of public policy. The Court demurred, saying that in its view, sound public policy was reflected in the Restatement’s standard. The Court said that a landowner should have the duty to inspect for, discover and remedy patently hazardous natural conditions on his or her property that may cause harm to others outside the land. But where the decay is internal, and therefore not discoverable upon reasonable inspection, to “impose a rule of strict liability would be to declare, in effect, that any tree which is large enough to fall over the boundary of one’s land will subject its owner to liability in the event that a hidden weakness causes it to topple and cause damages off the land.” That would just lead prudent landowners to cut down their trees, the Court concluded, “thereby accelerating the already lamentable deforestation of the territory.”

The Court agreed that the community should be protected from reasonably foreseeable dangers, but the community – both local and worldwide – “also has a compelling interest in the protection and preservation of the environment. The same concern and sensitivity that we are just beginning to bring to the massive problem of the destruction of the Amazon rainforest, for example, should also apply to the relatively minute and particular circumstances of this case. No reasonable gain would be derived from adopting a rule of strict liability here, particularly when weighed against the potential ecological and aesthetic implications of such a decision.”

– Tom Root

Case of the Day – Friday, May 17, 2024

Posted on May 17, 2024 by TLRoot tagged.

RECREATIONAL USE STATUTE AND NATURAL DEFECTS

It’s hard to enjoy an idyllic sunset when you can’t get to the lakeshore. Recreational use statutes make it easier.

A landowner really has no natural incentive to let people freely enjoy his or her land. You have a nice pond and woods, and, being as you’re a nice person, you let the birdwatchers’ society wander around looking for the white-throated needletail. Next thing you know, one of them steps into a prairie dog hole, and you’re being sued.

But public policy is strongly in favor of getting people out to enjoy nature’s bounty. For that reason, virtually all states have passed some version of a recreational use statute. These statutes hold generally that a landowner only has a duty not to be grossly negligent to people using his or her unimproved land without charge for recreational activities. They are intended to encourage the opening of private land – unspoiled natural areas – for free recreational use by shielding landowners from liability for the most common forms of negligence.

Today’s case raises an interesting question under the Texas Recreational Use Statute. In this case, the City of Waco had a park that included limestone cliffs. A boy was sitting on the cliffs when a portion collapsed, causing him to fall to his death.

A user might anticipate he could fall off a cliff – but not that it would give way.

The City argued it couldn’t be held liable under the statute, because it did nothing to cause the defect in the cliffs. The Court of Appeals agreed with the boy’s mother, however, that it wasn’t necessary for the landowner to cause the defect if the defect was so latent, that is, hidden, that the recreational user would not reasonably be aware of it. That one might accidentally fall off a cliff was foreseeable, the court admitted. But it wasn’t open and obvious that the cliff one was sitting on would suddenly give way.

Because the defect wasn’t obvious, all the boy’s mother had to do was advance in her pleading some allegation of gross negligence. In her complaint, she argued that the City was aware others had been hurt by falling rocks, and it had reports warning of the danger of collapsing cliffs. Those reports recommended the City post warning signs, but it didn’t do so. The court said that those allegations were good enough to make out a claim under the recreational use statute.

Kirwan v. City of Waco, 249 S.W.3d 544 (Tex.App 2008). Debra Kirwan’s son, Brad McGehee, was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the City of Waco, when the ground beneath him gave way and he fell about 60 feet to his death. Kirwan brought a wrongful death suit against the City, alleging a premises defect.

A firefighter who responded to the scene of Brad’s fall testified that an average person would “probably not understand that the ground could give way underneath them.” The trial court threw out the suit, holding that Kirwan had not: (1) “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or (2) “raised a genuine issue of material fact.” Kirwan appealed.

Held: The suit was reinstated and sent back for trial. Kirwan challenged whether Texas Civil Practice & Remedies Code § 75.002(c) – the state recreational use statute – requires that all premises defect claims be based on a condition created by the defendant, thus barring any claim based on the existence of a natural condition that the defendant happened to know about. Under the recreational use statute – intended to encourage landowners to open their property to the public for recreational purposes – a landowner’s duty to a user is no greater than that owed to a trespasser, the very limited duty to not injure anyone willfully, wantonly, or through gross negligence.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy’s life.

The law is clear that a landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, an owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But the appeals court held that the recreational use statute permits claims based on natural conditions as long as the condition is not open and obvious, and the plaintiff furnishes evidence of the defendant’s alleged gross negligence. Here, the court said, the crumbling rocks and cracks on the cliff that gave way did not conclusively prove that the danger of the unstable cliff rock was open and obvious. Crumbling rock may alert the average person to the risk of slipping and falling, but certainly not that the ground will simply fall apart beneath him. The court ruled that unstable cliff rock is not necessarily an open and obvious condition that a person might reasonably expect to encounter.

To state a claim under the Texas recreational use statute, Kirwan had to allege sufficient facts to show that the City of Waco was grossly negligent. The pleadings need only provide a plain and concise statement of the cause of action sufficient to give the defendant fair notice of the claim involved. In her pleading, Kirwan alleged that the City was actually aware of the dangerous condition on the cliff, that other park patrons had died or been seriously injured by the condition of the cliffs, that the City received a report from its own expert warning of dangerous rock falls and advising the City to post signs warning of potentially fatal rock falls, and the City’s failure to do so, in fact, to warn or guard against this danger at all amounted to gross negligence.

The court agreed that Kirwan plainly alleged the City’s conduct amounted to gross negligence. The City’s complaint that the pleading didn’t allege that the City had created the condition was meritless: where a claim is based on hidden natural conditions, such as the structurally unstable cliff rock in this case, a plaintiff need not plead that the City was grossly negligent in creating a condition.

– Tom Root

Case of the Day – Thursday, May 16, 2024

Posted on May 16, 2024 by TLRoot tagged.

THE RV LIFE

Fun … but not that sturdy …

Carefree RV living. Groovin’ on the high life in your boyfriend’s parents’ backyard, roughing it in a Coleman camper… what fun!

At least it was fun until an unexpected storm blows through, and a devastating derecho lays waste to your suburban Buffalo neighborhood (I’m guessing this was the well-documented Labor Day 1998 Derecho event). A branch broke off a tree in during the blow, and it fell on the camper, injuring Mary Simet and apparently writing the final chapter of her relationship with beau Randy Newman (no, not that Randy Newman).

Derechos are very much in the news. One just marched through Iowa last week, kicking up a massive dust storm some likened to the Middle Eastern “haboob.” But our focus here is not on the dust or the tornadoes it spawned, or even on the derechos that have hit metro areas like Philadelphia or Nashville. Instead, our focus is not even on the breeze itself, but rather on the legal winds that followed the storm.

Mary sued Coleman. Its flimsy camper couldn’t absorb the impact of a massive tree branch in a windstorm, imagine that! And for good measure, Mary named her soon-to-be ex-boyfriend and his parents, claiming that the branch was rotten and they should have cut it off, or not put the camper there, or warned her, or prevented the storm, or… or something. You know the drill. I’ve been injured. Therefore, someone’s gotta pay! And that’s when your lawyers start looking around for defendants who have insurance.

It’s worse than that, Bucko – she sued you, too. Relationships often end badly, but seldom this badly.

After the storm, of course, the Lehmans and their neighbors cleaned up. Mary’s alert and well-read lawyer complained that the cleanup wasn’t done because waste had been laid to the neighborhood or any reason so pedestrian as that. Instead, he bloviated that the cleanup was a grand conspiracy to destroy evidence his client needed for her lawsuit, a disreputable legal maneuver known as “spoliation of evidence.” The trial court, amazingly enough, agreed, but nevertheless concluded that because the evidence that had not been spoliated showed that any rot on the limb was not clearly observable, the Lehmans (and the broken-hearted Randy) were off the hook. And the whole derecho event was an act of God for which the Lehmans – including the Facebook-relationship-status “single” Randy – could not be blamed.

Wow. Sued by your own girlfriend. Now that’s what I call getting dumped.

Simet v. Coleman Co., Inc., 839 N.Y.S.2d 667 (N.Y.A.D. 4 Dept. 2007). Mary Simet suffered catastrophic injuries during a severe storm when a tree limb blew onto the camper in which she was sleeping with her boyfriend at that time, Randy Newman.

The camper was owned by Linda (Randy’s mother) and her husband, David, and was located in their backyard. The limb, located approximately 30 feet from the camper, broke during an unusually intense storm with high winds, known as a “derecho.” Mary and Randy were unaware of the approaching severe storms when they retired to the camper and, indeed, the first severe storm warning wasn’t issued until after the storms had passed through the area.

The Lehmans had no notice that the tree from which the limb broke was decayed or defective. Mary’s expert opined that–regardless of whether the tree appeared to be healthy–the Lehmans would have been advised by an arborist to secure the limb if they had retained an arborist to inspect their trees.

On the advice of their insurance carrier and as part of a neighborhood cleanup after the storm, the Lehmans removed the branch and the camper, which remained after photographic evidence was collected.

Mary sued Randy and his parents and moved to strike their answer based on their alleged spoliation of that evidence. The trial court struck the Lehmans’ answer because of the spoliation but then granted summary judgment for them anyway and threw out Mary’s case.

Mary appealed, and so did the Lehmans.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998. “Derecho” is a term derived from Spanish for “straight,” and is characterized by intense straight-line winds.

Held: The Court of Appeals held that striking the Lehmans’ answer based on spoliation was not warranted, that the Lehmans were entitled to summary judgment, and the falling limb was an act of God that precluded Randy’s liability.

The Court found that the Lehmans removed the limb and camper not to frustrate the plaintiffs but only after their insurer gave permission and as part of a neighborhood effort. They had carefully photographed it before disposing of it. At most, the spoliation of the evidence was negligent, and the remedy striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence deprives the moving party of the ability to establish his or her case. That wasn’t the situation here.

Furthermore, the Lehmans weren’t liable to Mary Simet. The Court held that they did not create the dangerous condition with respect to her presence in the camper, and did not have constructive notice that the tree from which the limb broke was decayed or defective. No one was on notice a storm was coming. The fact that an arborist, if one had been hired, might have advised the Lehmans to secure the limb is irrelevant. New York law requires that the manifestation of tree decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.

Finally, the falling of the tree limb during the storm was an act of God that precluded Randy’s liability, with whom Mary was staying in the camper at the time.

– Tom Root

Case of the Day – Wednesday, May 15, 2024

Posted on May 15, 2024 by TLRoot tagged.

MR. NATURAL

Do you remember the 60s? If so, you weren’t really there. Still, you may know someone whose brain was not so addled by the Summer of Love that he or she has forgotten Robert Crumb’s famous counter-culture cartoon character, Mr. Natural. Mr. N. was a bearded mystic guru who spouted aphorisms on the evils of the modern world, his most famously puzzling one probably being “Keep on Truckin’.”

Contrary to the cachet that Mr. Natural gave the notion, there was never that much virtue in being natural. That certainly has been true in the development of modern arboriculture law. There was a time when the common law made a substantial distinction between the natural and the, dare we say, artificial. If you had a tree on your land that had sprouted and was nurtured without your help, like the dozens of volunteer maple tree sprouts we yank out of our daylilies every year, the tree could do as it wished – grow, shed branches, attack the neighbor’s sewer lines with its roots, even decay and fall on the neighbor’s car – while you were exonerated of any responsibility. On the other hand, if your great-grandpa had planted the elm tree out back a century ago on returning home from the Great War, and it has become diseased and rotted (as trees are wont to do), the common law made you responsible for whatever damage its decay may cause.

You can imagine the furball this rule has caused. Who could tell whether your great grandfather planted that tree before catching influenza and cashing in? And for that matter, what possible should the agency by which the seed got into the ground have on whether a property owner ought to shoulder some duty to third parties for the condition of his or her property?

As society changed and the population shifted to urban and suburban living, courts have had the opportunity to question the rationale for the natural/artificial dichotomy more often than ever. Today’s case is an excellent example of how appellate courts grappled with the issue.

One note: Despite the fact that the overwhelming reason for the damage to the Rowes’ house was that the McGees shirked their responsibility for the diseased tree, the Court found that the victims themselves had a very small role in the overall negligence. Under the old tort law doctrine of contributory negligence, if a defendant were 99% negligent, a plaintiff was only 1% negligent – contributorily negligent, we used to say – the plaintiff collected nothing. Zero. Nada. Zip. Bupkis.

The pernicious “contributory negligence” doctrine gave way in the late 20th century to “comparative negligence,” a much more sensible approach in which the percentage of negligence is weighed by the jury. If a defendant is 70% negligent and the plaintiff 30% negligent for the plaintiff’s injuries, the damage award is cut by 30%. Much more rational.

Rowe v. McGee, 5 N.C.App. 60, 168 S.E.2d 77 (N.C.App. 1969). Noah and Jeanette McGee sold a tract of land to Chuck, who built a house on it and promptly sold it to Ed and Josie Rowe. The McGees held on to a second tract of land which adjoined the Rowes’ new premises.

An oak tree stood on the McGees’ land, a towering old thing that was hollow, partially rotten and leaning in a manner that suggested sooner or later it would fall. The tree was completely natural: no evidence suggested any landowner had planted or nurtured it. The oak was in this decrepit condition when Chuck bought the neighboring plot. Part of the McGees’ deal with Chuck was that he would remove the tree, but he did not. Instead, he completed the house and sold it to the Rowes, with the tree still leaning toward the new house.

The Rowes found it hard to enjoy their spanking-new, thoroughly modern luxury home with this next-door Sword of Damocles looming outside their living room window, so they demanded that the McGees eliminate the hazard. The McGees told the Rowes they wanted the great oak reduced to sawdust; they would have to do it themselves. The Rowes agreed to take it down.

Sadly, as of the night of April 22, 1967, they had not yet done so. That night, Mother Nature resolved the problem, blowing the decayed oak right onto the Rowes’ living room sofa and new RCA color TV.

The Rowes sued the McGees for damages. The trial court agreed the McGees had a duty to remove the tree and were responsible to the Rowes for damages. However, because the Rowes told the McGees they would remove the tree and did not, they were found to be contributorily negligent, so they were awarded nothing. The Rowes appealed.

Held: Because the McGees knew that their oak tree was decayed and liable to fall and damage Ed and Josie’s house, the McGees had a duty to eliminate the danger, and could not with impunity place the burden to remove the tree on the Rowes.

The Court of Appeals admitted that there were no North Carolina cases on the precise issue, and the state of the law – as reflected in The Restatement of the Law of Torts – was that “where a natural condition of land causes an invasion of another’s interest in the use and enjoyment of other land, the possessor of the land containing the natural condition is not liable for such invasion.” Thus, the Court said, at least historically, the law relieved the McGees of any obligation for mischief caused by the old oak.

The term “’natural condition’ comprehends trees which are the result of a natural condition,” the Court said, “not trees which have been planted by man.” But, as the Court conceded, it often was difficult to determine whether the tree’s origin was natural or artificial.

Ironically, in concluding that the natural-artificial distinction no longer mattered, the Court found direction in a case from Massachusetts, that flinty home of the self-reliant Massachusetts Rule. It cited a Bay State case in which a defendant owned a vacant lot with a large, dead elm tree. When a branch from the tree fell across the property line and hit a neighbor, the Massachusetts Court held that keeping such a tree near a property line constituted a private nuisance, observing that

public policy in a civilized community requires that there be someone to be held responsible for a private nuisance on each piece of real estate, and, particularly in an urban area, that there be no oases of nonliability where a private nuisance may be maintained with impunity.

In the Rowes’ row with the McGees, our North Carolina Court concluded that the greater probability of injury to other people or their property imposes a higher degree of care upon the owner of the tree or structure. In this case, the Court said, “Where the defendants knew that the tree on their property was decayed and liable to fall and to damage the property of Edward and Josephine, we think and hold that the defendants were under a duty to eliminate the danger and could not with impunity place such burden to remove the tree on Edward and Josephine.”

But the Court said the trial judge was right to give the contributory negligence instruction because the Rowes told the McGees that they would remove the tree but did not, so the Rowes still took nothing.

– Tom Root

Case of the Day – Tuesday, May 14, 2024

Posted on May 14, 2024 by TLRoot tagged.

A PRESCRIPTION FOR TROUBLE

We all know about adverse possession, that peculiar legal doctrine that holds in essence that if you’re brazen enough to trespass on someone else’s land continuously for a period prescribed by statute, the property becomes yours. In most places, such as Pennsylvania, the period is 21 years long. So for 20 years, 11 months and 31 days, you’re a squatter. The next day, you’re landed gentry.

It seemed to me like judicially-sanctioned theft when I learned about adverse possession in law school (so long ago that over twice the statutory period has passed since I walked those hallowed halls). The theory, my property professor droned, was that public policy favored productive use of the land, and taking over a piece of land from an owner careless enough to let you take it over put it to more productive use,\ and thus should reward the taker. So if I like my piece of country property as a preserve for the birdies and little critters, and you want to bulldoze it for a new Starbucks, you win. The whole notion seems as cockeyed to me now as it did when I was a well-scrubbed and wide-eyed first-year law student back in the halcyon days of the 1970s.

To claim adverse possession, you have to show that your occupation of the land was open, notorious, hostile and adverse to the interest of the owner a continuous period of whatever the statute prescribes, say 21 years as an example. Some might say that if you built your Starbucks on my forest plot, and I did nothing about it for that long, I deserve to lose my land. To which I might reply that the law does not seem to offer much protection to someone when his or her property can be lost to another person simply because the thief gets away with it for long enough.

But if I thought adverse possession was screwy, I was hardly prepared for its little brother, a prescriptive easement. Adverse possession is occupation of the land. A prescriptive easement is a mere use of someone else’s land without exclusive occupation. My kids cut through the neighbor’s side yard for years as a shortcut to the church. I still do it when I’m running late. If now, 28 years after the neighbor’s house was built, he put up a fence to stop us, should we be able to claim a right to have the fence removed so that we can continue to save five minutes getting to worship? What we would have, we could argue, was a prescriptive easement.

I once had a client who was about to build a garage on a piece of his land. The power company sued, because lines that went behind his property for years had been slightly rerouted so that they crossed a corner of his place. The electric company said it had moved the lines a convenient 23 years before, and now it had a prescriptive easement, which limited my client’s use of a quarter of his property to a vegetable garden.

We stared down Reddy Kilowatt in that case, because we located an aerial photo of the town from 20 years before that showed the electric company was bluffing, and the lines had not been moved as of that date. My client sold the electric company an easement over 50 feet of backyard for about $30,000. Happy ending.

As much as I dislike the whole notion of prescriptive easements, I admire creativity. I always thought of such easements as being created by the deliberate actions of humans. My kids cut across the neighbor’s lawn. The power company restrung its lines. But the plaintiffs in today’s case showed creativity I lack. Here, they claim a prescriptive easement not because of what they did, but because of what their tree did. Because the limbs and roots of a tree they owned grew into a neighboring property and remained there for more than 21 years, they argued, they had thus obtained a prescriptive easement that would prevent the neighbor from doing anything to the tree.

It’s as if the Massachusetts Rule had an expiration date.

At first blush, it seems to ring all the prescriptive easement bells and seemed pretty doggone clever. But after thinking about the whole notion for long enough, the appeals court wisely said it simply did not make sense.

Koresko v. Farley, 844 A.2d 607 (Pa.Cmwlth. 2004). The Koreskos bought property with a line of trees on one boundary, all of which had been there for more than 21 years. The trees hang over the boundary with the neighboring property containing a house, owned by M.J. Farley Development Co. Inc. Farley had submitted a subdivision plan seeking to divide the property into two plots and build a second residence on the newly formed plot.

The subdivision plan proposed to place a water line and driveway near the boundary trees. Upon learning of the proposal, the Koreskos sued in equity seeking injunctive relief and, of course, money damages. In their complaint, the Koreskos claimed the driveway and trench would damage the root systems of the boundary trees. Among their claims, the Koreskos alleged unreasonable interference with their prescriptive easement. They claimed that because their trees’ roots and branches encroached on the subdivided property for over 21 years, a prescriptive easement existed for the tree roots and branches, and that development of the property would unreasonably interfere with that easement; and

After the trial court held that “Pennsylvania does not and will not recognize an easement for tree roots or overhanging branches,” the Koreskos appealed.

Held: Pennsylvania will not recognize a prescriptive easement created by the growth of a tree.

A prescriptive easement is a right to use another’s property that is not inconsistent with the owner’s rights and which is acquired by a use that is open, notorious, and uninterrupted for a period of 21 years. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

The law holds that overhanging tree branches are a trespass. In Pennsylvania, a landowner has the right either to compel the removal of overhanging branches or to engage in self-help. However, the Restatement notes that a continuing trespass is not a trespass at all if the actor causing the trespass has obtained an easement by adverse possession, and ponders openly whether the continued presence of encroaching tree branches, held openly, notoriously, hostilely, and continually for 21 years would create a prescriptive easement in the airspace which they hang.

If this were the case, the Court said – noting it could find no Pennsylvania law which would indicate that a prescriptive easement was not available in this situation – a landowner who suffers actual harm for the first time during the tree owner’s 22nd year of hostile ownership would be precluded from seeking any remedy whatsoever, even self-help. However, the Court said, if an action is available without a showing of damage – and a trespass action assumes damages, so it can be brought whether the trespasser has actually injured the victim’s property or not – the landowner has no reason to complain if a neighbor’s tree causes damage after the prescriptive period has run because he or she could have sued at any time during the 21-year period.

The Court held the Koreskos failed to state a claim for prescriptive easement as a matter of law. No Pennsylvania case has held such easements are cognizable, the Court said, and other jurisdictions have reasoned that such should not be recognized. Finally, the potential of widespread uncertainty occasioned by such easements convinced the Court that they should not be recognized as a matter of public policy.

The Restatement holds that to be adverse, a use must be open and notorious, for the protection of those against whom it is claimed to be adverse. It enables them to protect themselves against the effect of the use by preventing its continuance. This requirement may be satisfied by a showing that either the landowner against whom the use is claimed has actual knowledge of the use or has had a reasonable opportunity to learn of its existence.

Encroaching tree parts, the Court held, by themselves do not establish “open and notorious” use of the land. Neither roots below the ground nor branches above the ground fairly notify an owner of a neighbor’s claim for use at the surface. In the absence of additional circumstances, roots and branches alone do not alert an owner that his or her exclusive dominion of the ground is challenged. This is no different from prior legal decisions that already held that the known presence of windows near a lot line does not create a prescriptive easement for light and air.

In a Kansas decision, an appeals court in the Sunflower State held that an easement by prescription cannot be acquired by overhanging tree branches, said:

The result reached here will be distasteful to all who treasure trees. The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each owner’s rights insofar as that is possible. Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.

The Koresko Court said, “We agree with this reasoning and holding… and we expressly adopt it in Pennsylvania.”

Finally, the Court considered the consequences of the holding urged by Koreskos. Trees growing over property boundaries and streets, around utility lines, and under sidewalks are common in Pennsylvania. “A decision suggesting that the prolonged presence of these tree parts assures their unreduced continuation could cause uncertainty,” the Court held. “Both the extent of the prescriptive easement and its effect on public and private use are problematic. As a matter of sound public policy, we decline to recognize a new estate which offers uncertainty and invites clarification through litigation.”

– Tom Root