Case of the Day – Friday, April 28, 2017


camelhorse140429Encroachment – not the football kind, the tree kind. Encroachment governs the rights of adjoining property owners when the trees on one of the properties encroaches on the property of the other. Overhanging branches, invasive root systems, falling debris … those kinds of problems.

Monday, we explored one of the two different approaches to encroachment under American law, the “Massachusetts Rule” that landowners are limited to self-help – but not lawsuits – to stop encroaching trees and roots. Yesterday, we looked at the other end of these 50 United States, and the “Hawaii Rule,” a holding that a landowner could sue for damages and injunctive relief when a neighbor’s tree was causing actual harm or was an imminent danger to his or her property.

Between the two competing rules, Virginia found herself firmly straddling the line. The fair Commonwealth may be for lovers, but it was also for temporizers. The landmark Old Dominion case on the issue, Smith v. Holt, hailed from the 1930s, holding that the Massachusetts Rule applied unless the tree in question was (1) causing actual harm or was an imminent danger; and (2) “noxious.” This holding brings to mind the maxima camel looks like a horse designed by a committee.” Frankly, Smith v. Holt had “committee’ written all over it. It seemed to hold that the Massachusetts Rule applied except where it didn’t. And what did “noxious” have to do with anything?

hoist140715The Virginia Supreme Court finally addressed the confusing situation several years ago in Fancher v. Fagella. There the Court found itself hoisted on its own “noxious” petard. Everyone could agree that poison ivy was noxious, and most people could agree kudzu was noxious. But how about a cute little shade tree? Shade trees are definitely not in the same league with poisonous or entangling pests, but yet, a cute little shade tree can come out of the ground harder and do more damage than poison ivy or kudzu ever could.

Take the tree in Fancher. It was a sweet gum, a favored landscaping tree as well as a valuable hardwood. But for poor Mr. Fancher, it was Hydra covered in bark. Only halfway grown, Fagella’s sweet gum’s roots were already knocking over a retaining wall, kicking up patio stones, breaking up a house foundation and growing into sewers and even the house electrical system. Fancher sued for an injunction, but the trial court felt obligated to follow Smith v. Holt. There was just no way that a sweet gum tree could be noxious, the local court held, and thus, it would not help the frustrated Mr. Fancher. But the Virginia Supreme Court, wisely seeing that the “noxious” standard was of no help in these cases, abandoned the hybrid rule of Smith v. Holt, an unwieldy compromise that had already become known as the “Virginia Rule.” The Court – noting that the “Massachusetts Rule” was a relic of a more rural, bucolic age – decided that the “Hawaii Rule” was the better fit for modern, crowded, helter-skelter suburban life. It sent the case back to the trial court, instructing the judge that the court should consider whether an injunction should issue.

This decision fits neatly into what we have been considering for the past week on negligence and nuisance. Here, the tree had become a nuisance, possibly because Fagella had not cared for the tree before it began damaging the neighbor’s property. All the tree had ever done is what trees do – it grew. And grew and grew. It was healthy, perhaps amazingly so, but Fagella was ordered to shoulder the cost of damages caused not because it was dangerous, or dead, or anything other than an inconvenience.

Like the decision or hate it, you could see this coming. From an age in which trees grew and lived and died, and effects of the life cycle were not chargeable against the landowner, we may be arriving at a point where trees aren’t much more than big, woody pets, with their owners responsible for whatever the tree may naturally do.

Fancher v. Fagella, 650 S.E.2d 519, 274 Va. 549 (2007). Fancher and Fagella were the owners of adjoining townhouses in Fairfax County, Virginia (a largely urban or suburban county west of Washington, D.C., and part of the Washington metropolitan area). Fagella’s property is higher in elevation than Fancher’s, and a masonry retaining wall runs along the property line to support the grade separation. Fancher has a sunken patio behind his home, covered by masonry pavers.

treeonhouse160322Fagella had a sweet gum tree located a few feet from the retaining wall, about 60 feet high with a 2-foot diameter trunk at its base. Sweet gums are native to the area, and grow to 120 to 140 feet in height at maturity, with a trunk diameter of 4 to 6 feet. The tree was deciduous, dropping spiky gumballs and having a heavy pollen load. It also has an invasive root system and a high demand for water.

In the case of Fagella’s tree, the root system had displaced the retaining wall between the properties, displaced the pavers on Fancher’s patio, caused blockage of his sewer and water pipes and had begun to buckle the foundation of his house. The tree’s overhanging branches grew onto his roof, depositing leaves and other debris in his rain gutters. Fancher attempted self-help, trying to repair the damage to the retaining wall and the rear foundation himself, and cutting back the overhanging branches, but he was ineffective in the face of continuing expansion of the root system and branches. Fancher’s arborist believed the sweet gum tree was only at mid-maturity, that it would continue to grow, and that “[n]o amount of concrete would hold the root system back.” The arborist labeled the tree “noxious” because of its location, and said that the only way to stop the continuing damage being done by the root system was to remove the tree entirely.

Fancher sued for an injunction compelling Fagella to remove the tree and its invading root system entirely, and asked for damages to cover the cost of restoring the property to its former condition. Fagella moved to strike the prayer for injunctive relief. The trial court, relying on Virginia law set down in Smith v. Holt, denied injunctive relief. Fancher appealed.

Held: The Supreme Court abandoned the “Virginia Rule,” adopting instead the “Hawaii Rule” that while trees and plants are ordinarily not nuisances, they can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. Then, injunctive relief and damages will lie. The Court traced the history of the encroachment rule from the “Massachussetts Rule” — which holds that a landowner’s right to protect his property from the encroaching boughs and roots of a neighbor’s tree is limited to self-help, i.e., cutting off the branches and roots at the point they invade his property — through the modern “Hawaii Rule.” The Court noted that Virginia had tried to strike a compromise between the two positions with the “Virginia Rule” set out in Smith v. Holt, which held that the intrusion of roots and branches from a neighbor’s plantings which were “not noxious in [their] nature” and had caused no “sensible injury” were not actionable at law, the plaintiff being limited to his right of self-help.

Invasive_rootsThe Court found the “Massachusetts Rule” rather unsuited to modern urban and suburban life, although it may still work well in many rural conditions. It admitted that the “Virginia Rule” was justly criticized because the classification of a plant as “noxious” depends upon the viewpoint of the beholder. Just about everyone would agree that poison ivy is noxious. Many would agree that kudzu is, too, because of its tendency toward rampant growth, smothering other vegetation. But few would declare healthy shade trees to be noxious, although they may cause more damage and be more expensive to remove, than the poison ivy or kudzu. The Court decided that continued reliance on the distinction between plants that are noxious, and those that are not, imposed an unworkable and futile standard for determining the rights of neighboring landowners.

Therefore, the Court overruled Smith v. Holt, insofar as it conditions a right of action upon the “noxious” nature of a plant that sends forth invading roots or branches into a neighbor’s property. Instead, it adopted the Hawaii Rule, finding that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to adjoining property, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. The Court was careful to note that it wasn’t altering existing law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.

The Court warned that not every case of nuisance or continuing trespass may be enjoined, but it could be considered here. The decision whether to grant an injunction, the Court held, always rests in the sound discretion of the chancellor and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. In weighing the equities in a case of this kind, the chancellor must necessarily first consider whether the conditions existing on the adjoining lands are such that it is reasonable to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots. In the absence of such a duty, the traditional right of self-help is an adequate remedy. It would be clearly unreasonable to impose such a duty upon the owner of historically forested or agricultural land, but entirely appropriate to do so in the case of parties, like those in the present case, who dwell on adjoining residential lots.

– Tom Root


And Now The News …


CBS News, April 27, 2017: Beloved 600-year old tree that witnessed history is taken down

Memories are all that remain of a 600-year-old white oak tree that was believed to be among the oldest of its kind in the nation. Workers finished removing the tree — which had a circumference of 18 feet and a branch spread of roughly 150 feet wide — from the grounds of the Basking Ridge Presbyterian Church in Bernards on Wednesday. About 50 people clapped and cheered and the church’s bells rang as the tree’s large stump was pulled out. The tree was declared dead after it began showing rot and weakness during the last couple of years. When it’s life cycle ran out, the church began taking down the tree to prevent it from falling on its own and damaging the Revolutionary War headstones below it…

Columbia, Missouri, KOMU-TV, April 27, 2017: Owner of “Big Tree” says vandalization is hurting it

Boone County’s iconic “Big Tree” is being damaged by vandals spray painting its base, according to its owner, John Williamson. Chemicals in the paint can damage the tree, but Williamson said taking it sometimes causes more damage to the tree than the spray paint itself. “Unfortunately, there’s no good way to take that off. It would really be harder on the tree to remove any paint or anything like that.” That hasn’t stopped Williamson and friends from covering up the spray paint. He and a friend, Ana Lopez, put mud over the spray paint to keep the tree looking in its best shape possible. “It’s a constant battle of educating people,” Lopez said on how to prevent future vandalizing of the tree. “That’s all we can really try to do, is educate people. Hopefully people will want to keep the tree alive a little longer and not continue to abuse on it.” Big Tree, which sits just south of the small town of McBane, is more than 300 years old. At 74 feet tall and 294 inches in circumference, it is the biggest bur oak tree in North America. It is not known how much longer the tree has until it dies…

Chicago, Illinois, WBEZ Radio, April 27, 2017: Why you should care that tree species are going extinct

April 28 is Arbor Day, and experts report that tree species are vanishing at a rate of 1 out of 10. Recently, Botanic Gardens Conservation International (BGCI) released two years of research that found there are 60,065 tree species left in the world and that more than half of all tree species only occur in a single country. This lack of biodiversity could become catastrophic for the survival of trees species, that we depend on to maintain life on our planet. We talk about efforts to save many of the world’s trees from extinction with Nicole Cavender, vice president of Research and Conservation and Murphy Westwood is director of Global Tree Conservation at Morton Arboretum…

San Jose, California, Mercury News, April 27, 2017: Menlo Park: Hundreds of trees face PG&E’s ax

As many as 560 trees in Menlo Park could face the ax through a PG&E pipeline safety program. While roughly 200 trees on private properties are still being assessed, at least 100 in the public right of way are slated for removal, as well as approximately 262 on private lots. Of those private trees, 93 are heritage trees. Public Works Director Justin Murphy said none of the 200 trees being assessed are heritage trees. PG&E is offering to pay the city up to $327,500 for the trees’ removal — $1,500 per street tree, $1,000 per heritage tree and $500 per non-heritage private property tree. Murphy said he didn’t know how the prices were arrived at, but they came out of discussions between city and PG&E officials…

Oakland, California, East Bay Times, April 26, 2017: Lafayette residents see red over PG&E tree removals

A group of residents is pushing back against a deal between the city and Pacific Gas & Electric allowing for the removal of hundreds of trees on public and private property. Arguing the tree removals will impact Lafayette’s environment “for generations,” Save Lafayette Trees is asking the city, PG&E and the East Bay Regional Park District to create a plan to shield the gas pipeline along the Lafayette-Moraga Regional Trail, or move it so the trees won’t have to be cut down. About 500 supporters have signed the group’s petition asking the city council and PG&E to take action. The group wants the utility to release a detailed map of all 272 trees in Lafayette the utility plans to cut down, and post removal signs on the trees for 60 days. It also wants the city to notify each resident with an affected tree on their property that “they’re under no legal obligation to sign removal agreements with PG&E under state law…”

Midland, Texas, KMID-TV, April 26, 2017: Tree pollen stuffing Basin residents

High winds not too fun at a rapid speed and they can cause more problems than just blowing away possessions despite West Texas not having many trees. “The wide open spaces allow the wind to carry that pollen further. So, we’re all susceptible,” says Dr. David Davison. Dr. Davison knows the effects high amounts of tree pollen can have on the human body. “I like to think of it as starting at the top of the body and working down. The first area would be your eyes. Tree pollen can cause allergic conjunctivitis,” says Dr. Davidson. Pollen then moves to cause irritation in your nose, mouth and chest. Dr. Davison say’s that over the counter drugs such as Benedryl and Claritin can help treat allergy symptoms. Those with asthma should have their inhalers with them at all times. “A severe level would mean you really do have trouble breathing and you should get to the nearest emergency room if that happens,” says Davison…

Louisville, Kentucky, Courier-Journal, April 26, 2017: Louisville sells airspace over Seneca Park, gets better deal on trees than residents

Louisville has reached a $235,000 deal with airport officials to permanently sell airspace over part of Seneca Park, forever limiting tree and building heights extending from the end of two runways at Bowman Field. The new airspace easement and agreement covers an area off Pee Wee Reese Road, and a portion of the golf course for a total of about 30 acres, officials said. It also allows for trimming and removal of trees along city rights of ways on portions of Alanmede Road, Carson Way, Drayton Drive, Seneca Boulevard and Taylorsville Road and is part of what airport officials call their Bowman Field Airport Safety Program.City and airport officials described the deal as beneficial to both…

Forbes magazine, April 26, 2017: Where the streets are paved with green: Counting urban trees

I am a big fan of trees. Apart from the fact that they are beautiful, they also offer multiple benefits to cities (as I mentioned in a previous article). For a start, they lower the ambient temperature by absorbing shortwave radiation, and using much of it to evaporate water from their leaves…. A very useful thing at a time when the ‘urban heat island’ effect is putting unparalleled demand on energy supplies (mainly for air-con). Of course, trees also absorb CO2 from the atmosphere and produce oxygen, and their roots can help mitigate flooding during storms. In addition, there is widespread scientific consensus that green spaces have a positive impact on the health and well-being of a city’s residents. In short, cities need more trees. This isn’t news to anyone – in fact in in 2015, the World Economic Forum’s Council on the Future of Cities included ‘increasing green canopies’ in urban areas as a priority for the coming years. So now they’ve teamed up with researchers at MIT’s Senseable City Lab, to build an online database of urban trees, called Treepedia

New York City, Staten Island Advance, April 25, 2017: More tree-sparency under new city law

Talk about tree-sparency. The Parks Department post information about tree pruning, removals, planting and tree-related sidewalk inspections and repairs online under a bill from Minority Leader Steven Matteo that was signed into law by Mayor Bill de Blasio on Tuesday. De Blasio said the law will help “make government more effective.” “We’re making government more responsive, more efficient and a little more transparent,” Matteo (R-Mid-Island) added. The city’s pruning program is responsible for some 650,000 street trees citywide, including roughly 76,400 on Staten Island. The Parks Department must post quarterly reports on tree maintenance under the new law, including where and when the city plants and prunes trees or removes stumps, as well as the status of that work…

Die Hard Survivor, April 25, 2017: 3 ways the pine tree is one of the most versatile survival resources available

Survival situations require that you use whatever is at your disposal to gain control of and master your situation. During a survival situation, it is highly likely that you will have a very difficult time getting the nutrients, protein, vitamins and minerals you need to stay healthy. Other routine items we take for granted, like shelter, bedding and basic medicine will also become very difficult to secure. Luckily, in just about every area of the world, nature has given us an extremely versatile resource that addresses much of the above: the pine tree. Pine is prevalent virtually everywhere in North America and it can serve as many different survival and everyday functions if utilized properly…

Baltimore, Maryland, Sun, April 25, 2017: Tree planted on Queen Anne’s school pitcher’s mound may be a prank, police say

Authorities on Maryland’s Eastern Shore say someone planted a tree and scratched “Earth Day 2017” in the dirt on the pitcher’s mound of a high school baseball field in what may be a senior prank. The Queen Anne’s County sheriff’s office said in a statement on its Facebook site that the incident was noticed Saturday at Queen Anne’s County High School in Centreville. They say the tree sapling still had the $139.99 price tag attached. Police say the field has since been repaired and they are investigating the planting as a senior prank. They initially said the damage to the field could amount to more than $2,000…

Greensboro, North Carolina, WGHP-TV, April 25, 2017: Are trees around your home at risk of falling during a storm?

Heavy rain has caused flooding and brought down trees across the Piedmont. Tree removal professionals say now may be a good time to consider cutting down dead or diseased trees before heavy rain brings them down. They say a tree risk assessment will allow them to see if trees in your yard are at risk of falling. Colfax-based company Dillon Lawn and Tree Service spent part of Tuesday removing at-risk trees from Tom Harrison’s home in Greensboro. “There was just too much potential danger for falling on the house or a car, or God forbid some child [could] be walking by and get hit by a tree,” Harrison said…

St. Louis Park, Minnesota, Patch, April 23, 2017: More tree vandalism in the Twin Cities reported

City officials in the Minneapolis suburb of Robbinsdale have discovered several trees that they say have been intentionally damaged in Lakeview Terrace Park. At least one of the damaged trees will likely not survive, according to authorities. “The City takes pride in maintaining an urban canopy and doesn’t take the crime lightly,” officials said in a statement. “We ask that if residents see something, say something by calling 911.” Since March, the Dakota County Sheriff’s Office has been investigating recent damage to several large, mature black cherry trees in Eagan’s Lebanon Hills Regional Park…

Boston, Massachusetts, Globe, April 23, 2017: N.J. community reluctantly bids farewell to 600-year-old tree

For hundreds of years, an imposing white oak tree has watched over a New Jersey community and a church, providing protection from the blazing summer sun, and serving as a scenic backdrop for thousands of photos. According to legend, it was once a picnic site for George Washington and the Marquis de Lafayette. But the tree — believed to be among the oldest in the nation — is not long for its place in the church graveyard that it’s called home for 600 years. Crews are due Monday at the Basking Ridge Presbyterian Church in Bernards to begin removing the tree. The two to three days of chopping and pulling will draw attention from residents of a bedroom community about 30 miles west of New York that has long celebrated its white oak. It’s been the place to go for formal photos, a landmark for driving directions, and a remarkable piece of natural history…

Hagerstown, Maryland, Herald-Mail, April 23, 2017: Potomac Edison to continue trimming trees across Tri-State area

Across the Tri-State area in the coming months, residents can expect to see continued efforts by Potomac Edison to trim trees away from power lines as part of the company’s approximately $39 million vegetation-management program, officials said. The electric company works to clear limbs from power lines to help reduce tree-related outages, company officials said. Since the beginning of the year, tree contractors have cut limbs away from more than 600 miles of distribution and transmission lines, according to a news release from the power company. The work is being planned for another 2,250 miles of lines by the end of the year, the release said…

Tampa, Florida, Tampa Bay Times, April 23, 2017: Proposed update to Tampa tree protection rules designed to add clarity, predictability

As a young lobbyist for the Builders Association of Greater Tampa, one of Bob Buckhorn’s first tasks in the mid 1980s was to work on the city’s evolving tree code — a subject that rarely fails to combine technical detail with passionate advocacy. Today, three decades later, Buckhorn is still working on it. An update of the city’s tree and landscape code is headed to a City Council workshop Thursday, about a year behind the schedule City Hall set in late 2015. “It’s a complicated process, and we wanted to make sure we did it right,” Buckhorn said, “but, yes, it did take longer than I had hoped.” In 2012, an Economic Competitiveness Committee appointed by Buckhorn called Tampa’s tree code vague and unorganized, with unrealistic, inflexible and unnecessarily expensive rules. But before officials rewrote the code, they commissioned a $200,000 update of the city’s tree canopy study. Done by University of Florida and University of South Florida forestry experts, the study found that Tampa’s tree canopy is “very young,” with a small percentage of trees with large-diameter trunks, said Bob McDonaugh, the city’s top economic development official. And there’s not a lot of diversity, making the canopy more susceptible to storm damage, disease and pests…

Jackson, Michigan, Citizen-Patriot, April 20, 2017: Massive oak tree splits in half, smashes several Jackson garages

A large, double-trunk oak tree came crashing down on Jackson’s west side Thursday afternoon, crushing a handful of garages along N. Brown Street. Firefighters with the Jackson Fire Department responded to the 200 block of N. Brown Street just before 4 p.m. April 20, where the towering tree, which had split down the middle, had obliterated one resident’s garage and severely or partially damaged three others. Jackson Fire Capt. Bob Walkowicz, who was on scene with city inspectors around, confirmed three of the structures hit by the falling tree had been condemned by the city. “The inspection department is taking pictures and they’ve already condemned the three structures, the three garages,” Walkowicz said. “They will need further attention (but) we have secured the power to … two garages, where they’re not any threat; the power’s not still on to them…”

New Orleans, Louisiana, WWL-TV, April 20, 2017: Thieves pulling trees out of the ground in Broadmoor

Tuesday, four olive trees were reported stolen, uprooted right from the ground from South Prieur, and General Taylor. Just two blocks down, the same thing had happened to Karen Chustz’s magnolia trees. “One day I’m picking up trash something looks different, and I see a huge hole,” Chustz’s said. “So somebody had stolen three of my trees right out of the ground and left two.” Angered, she gave the other plants to neighbors so thieves wouldn’t have a chance to finish the job. “At the time they had been planted for a year and a half, and so they were so so high,” she said. Of course, some might say, they’re just plants, it’s not a big deal. Owners like Chustz say they’re still personal property and they mean something…

NAS Patuxent River, Maryland, Tester, April 20, 2017: Pax River American elm tree may help save species

From coast to coast, American elms were the tree of choice to line Main Street USA because of their spreading canopies that gracefully arched across roadways and shaded residents below. “Cedar Point Road aboard NAS Patuxent River was also once lined with American elm trees from Route 235 to the water, and along Millstone Road from Cedar Point to Millstone Landing,” said Kyle Rambo, Pax River’s conservation director. “They were a very common tree here, but we’ve lost hundreds of them on the installation due to Dutch elm disease.” Dutch elm disease is a lethal fungus that was introduced in the United States by accident in the 1930s via infected logs from Europe. Spread by bark beetles, it has been responsible for the deaths of American elm trees by the hundreds of thousands throughout the country. “We’ve been watching them go and it’s a painful thing to see; like a piece of America that’s disappearing,” Rambo said. “There are some elms left on Cedar Point Road but you can tell they’re sick. They’re bigger, gnarly-looking trees with dead limbs and sap weeping down the sides of the trunk. There are some expensive treatments, but once the fungus has spread within them, it’s really a losing battle…”

Belen, New Mexico, News-Bulletin, April 20, 2017: Armstrong arrested, cited for defending large trees

A Belen man was arrested Monday afternoon after he says he was trying to save trees from being cut down in his neighborhood. Pete Armstrong, 69, a member of the city’s planning and zoning commission, a member of the Belen Rotary Club and a past president of the Greater Belen Chamber of Commerce, was taken into custody by Belen police and has been charged with one count of assault, a petty misdemeanor. Armstrong brought a piece of one of the trees that were cut down by a company contracted by the city to cut down trees to Monday’s city council meeting. He told the council he would do it again if he could save just one more tree. “There is nothing wrong with it,” Armstrong told the councilors Monday as he held up the large piece of tree for them to see. “It was in front of my neighbor’s yard.” Armstrong, a retired landscaper, told the councilors about his arrest, saying he was talking to the contractor that the city hired to take down trees in his neighborhood. He said it was the eighth large tree that the city had cut down in a week…

Seattle, Washington, KCPQ(TV), April 19, 2017: Tree-cutting West Seattle homeowners fined $440,000; city warns it could have been even more

The city of Seattle is taking a stand against cutting down city-owned trees. Now, West Seattle homeowners who admitted to chopping down dozens of green space trees will have to pay. That price tag for two families is $440,000 as part of a settlement agreement announced Wednesday. The more 70 trees, each about six inches in diameter, used to grow on a steep slope above Admiral Way in West Seattle. The city says the neighbors simply wanted a better view. Trees are a vital resource,” says City Attorney Pete Holmes, “and this settlement puts people on notice that we will not allow any unauthorized cutting of city-owned trees.” This is the partial city view from the front deck view that Marty and Karrie Riemer have at their home where 35th Avenue SW dead ends into the green space. The neighbors across the street, Stanley and Mary Harrelson, face the identical penalties. No one was home at either house when Q13 News reached out for reaction to the settlement. In what amounts to about $6,000 per chopped down tree, it’s a price the city attorney Pete Holmes says is actually a good deal. Holmes says they would have levied much larger fines against the homeowners if the two families didn’t name 11 other neighbors who may have been a part of this and another separate clearing of trees nearby. The second clearing of trees brings the felled tree count to a total of around 150. These 11 neighbors now face similar charges and fines in a new revised legal complaint…

Canandaigua, New York, Daily Messenger, April 19, 2017: Trees to take root in Victor

The tree-killing emerald ash borer made its way into Victor Municipal Park, damaging numerous ash trees in the 47-acre park. Now that crews with the town and village have removed those diseased trees, the ground is ready for planting. On Saturday, April 29, volunteers will dig in for the annual Village of Victor Arbor Day celebration. As in previous events, everyone is invited to join in. Forty trees will be ready to take root in the park on Paparone Drive. The mix of new trees will include: European larch, concolor fir, Norway spruce, London planetree, swamp oak, catalpa, river birch, dawn redwood, elm, Kentucky coffeetree and hackberry…

Ask Ghost, April 19, 2017: How is this even possible, giant tree relocated in India

Finding it hard to digest this VIDEO asGiant Tree Relocated in INDIA is the craziest thing I have ever seen. India is well known for its love for nature, but this time they raised the standards to next level by saving this old tree. This tree in India grew old and helped countless citizens of Nagpur City. But when Nagpur Metro Train route crossed the land already occupied by this amazing tree, Nagpur metro rail corporation limited (NMRCL) decided to do something unthinkable for this amazing tree. Instead of killing or chopping it down for the standing between the Metro Train Route. NMRCL decided to relocate the tree to a nearby spot…

Los Angeles, California, LAist, April 19, 2017: Southern California’s trees are dying, and the effects could cost $36 billion

Let’s clear up misconceptions first: Los Angeles is not a desert. Los Angeles is a semi-arid zone with a Mediterranean climate. The distinction may sound small, almost semantic, but when you look to the hills or the undeveloped lands north of the Valley you don’t see sand dunes, you see oak trees and chaparral. Los Angeles and the rest of Southern California has spent the better part of a century building up its vegetation (a drive down the tree-canopied streets of Bel Air or Pasadena’s Oak Knoll will make this readily apparent), but all that may be changing. The Southland is in the midst of a massive tree die-off. “We’re witnessing a transition to a post-oasis landscape in Southern California,” Greg McPherson, supervisory research forester at the U.S. Forest Service, said, notes the Los Angeles Times. “Many of the trees we grow evolved in temperate climates and can’t tolerate the stress of drought, water restrictions, higher salinity levels in recycled water, wind and new pests that arrive almost daily via global trade and tourism, local transportation systems, nurseries and the movement of infected firewood.” One of these pests is the polyphagous shot hole borer beetle, already found in parts of the Southland. McPherson conducted a recent survey that concluded that the effects of this single beetle could kill off 38% (27 million) of trees throughout Los Angeles, Orange, San Bernardino, and Riverside counties, causing irrecoverable losses to the ecosystem and some $36 billion in economic damages…

CBS News, April 18, 2017: Capitol Hill worker killed by falling branch

A freak accident has taken the life of a Capitol Hill worker. “It is with deep sorrow that we announce the passing of Architect of the Capitol employee, Matthew McClanahan, following an accident on the U.S. Capitol Grounds,” Stephen T. Ayers, the architect of the Capitol, said in a statement Tuesday afternoon. “A large branch of an American Elm fell and struck Matt, who was working nearby on an irrigation pipe. Matt was a talented, dedicated pipefitter in the Maintenance Division of Capitol Grounds. Please keep his family, friends and colleagues in your thoughts and prayers during this difficult time.” McClanahan is survived by his wife, Lauren, and their children Evie and Andrew. He was transferred to a local hospital after being removed from under the tree by the fire department employees and EMS technicians, according to WUSA. The accident happened around 9:15 a.m…

Wausau, Wisconsin, WSAW-TV, April 18, 2017: Thieves stealing trees as demand for birch furniture and home decor skyrockets

Candle holders, coffee tables, coat racks and even bed frames all made of white birch are fueling a bizarre case of tree thefts– primarily in northern Wisconsin and Minnesota. Parks, forests and even private lands have fallen victim. “Most likely it’s going to lodges, cabins, more rustic feeling homes,” said Scottie’s Interiors owner Lecia Marks-Franson. Harvesting the white birch trees without a permit or on land that isn’t owned by the harvester, is illegal. Wisconsin Department of Natural Resources Warden Supervisor Dave Walz said incidents of birch theft cases are on the rise…

Bismarck, North Dakota, KXMB-TV, April 18, 2017: Tree Study Brings New Species to Western North Dakota

“Can’t complain about getting free trees,” says Williston City Forester, Bruce Johnson. And cities like Minot, Bismarck, Dickinson and Williston will be getting plenty of them. As part of a tree study conducted by the NDSU Extension Service, 20 tree varieties will be planted to test whether they will survive in the region. In Williston, homeowners who have previously had a diseased boulevard tree removed from their home will get priority. “This year, we want to use our open boulevards. Trees that were lost to Dutch Elm disease over the last 15-20 years. That way the homeowners don’t have to come up with any money themselves and plant trees in the boulevard,” says Johnson…

Chesapeake, Virginia, AP, April 18, 2017: Tree trimmer dies after being shocked by power line

Police say a tree trimmer has died after being shocked by a power line. WAVY-TV reported Tuesday that the man was suspended in a tree removing some limbs Monday afternoon. One of the branches was touching the man when it also struck a live wire. Police in Chesapeake confirmed the death on Tuesday. Authorities identified him as 39-year-old Muhammad Yahya Abdur-Raheem. He lived in Newport News. Dominion Virginia Power says he worked for Lucas Tree Experts, which the agency contracted for removal services. WAVY said the company has not responded to a request for further comment…


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Case of the Day – Thursday, April 27, 2017


springsnow160321The days are warmer, but our early morning dog walks can still be nippy. Before the warm days of May are upon us next week, we should talk about what happened during a dog walk on a different cold spring day a few years ago in Utah.

Landscaper Superior Property Management Services, Inc., had been hired by the Waterbury Homeowners Association to landscape and maintain the grounds at beautiful Shanty Acres. The parties had a standard contract, one that – among other things – called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season.” Elsewhere, the contract directs the landscapers to “trim . . . small and lower branches” on trees.

The contract was just a formality. Superior has been in business since the sequoias were seedlings, and its crews knew what needed to be done. They often went beyond the literal terms of the contract, which – as was typical for landscaping contracts – were not especially detailed. Over the seasons, Superior maintained Shanty Acres very well, and the contract was repeatedly renewed. The Happy Homeowners Association was indeed happy.

Then one cold, spring day, condominium resident Colleen Hill ventured outside to walk her dog. When she followed the cavorting canine onto the lawn, she tripped over a basal shoot growing from a tree root, fell, and hurt herself. She sued both Superior and the Association, claiming that Superior owed her a duty of care because of what it agreed to do in the contract. Superior, she alleged, was negligent in not trimming the basal shoots.

But how could Superior owe Colleen Hill a duty? Its contract was with the Association, and the Association thought Superior had done a fine job. True, Superior prided itself on doing more than the contract called for, but that was what a good landscaper did. Thus, Superior’s crews normally trimmed basal roots … but if Colleen’s complaint was to be believed, it appears Superior’s workers may have overlooked the shoots that proved a snare to her feet.

Superior should have trimmed the exposed roots, Colleen said, whether the contract said it should or not ...

Superior should have trimmed the exposed roots, Colleen said, whether the contract said it should or not …

The courts finally concluded that Superior owed Colleen no duty. Its obligations were to the Association, and those obligations were those spelled out in the contract, not what additional services Superior might gratuitously provide. The landscaper won in the end, but only after four years of expensive litigation.

So what does the professional arborist or landscaper learn from Superior’s legal travails? The first lesson is to read the contract form he or she is using. Does it adequately define the services being provided? If the arborist will be performing more services than those described in the contract, those probably should be described in the contract.

At minimum, the contract should clearly provide that any services provided beyond those required by the contract are being provided as a courtesy only, and that the contract does not establish a duty between the arborist and anyone other than the client.

Will this be enough to save the arborist from frivolous lawsuits? Probably not in this society. But an ounce of careful contract drafting now may be worth a pound of lawyers later.

Hill v. Superior Property Management, Inc., Case No. 20120428 (Utah Supreme Ct., 2013). Superior Property Management had held the contract to maintain premises for the Waterbury Homeowners Association for years. The form contract called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season” and to “trim . . . small and lower branches” on trees. After resident Colleen Hill, while walking her dog one early spring day, tripped on a growth from a tree root, she sued Superior for negligence because it had not trimmed the root.

Held: The landscaper didn’t owe Colleen a duty of care. As the Supreme Court of Utah observed, the “law draws a critical distinction between affirmative acts and omissions. As a general rule, we all have a duty to act reasonably in our affirmative acts; but no such duty attaches with regard to omissions except in cases of a special relationship.”

The Court agreed that sometimes, such a special relationship might be rooted in a contract. But it held that neither specific obligation in the contract – the obligation to mow the grass weekly and edge bi-weekly “throughout the normal growing season,” or the obligation to “trim . . . small and lower branches” on trees – created a duty flowing from the landscaping company and the injured property owner.

Lesson: No contract is the ultimate contract, but that doesn't mean you shouldn't try for comprehensiveness in drafting ...

Lesson: No contract can plan for every contingency, but that doesn’t mean you shouldn’t try for comprehensiveness in drafting whenever possible …

The Court noted that “in the first place, it is not at all clear that mere failure to perform would sustain liability in tort. A breach of contract, after all, typically gives rise to liability in contract … Even assuming that Superior’s maintenance contract could sustain a tort duty, moreover, there is still no basis for liability here, as neither of the provisions required Superior to perform the acts it is now charged with omitting.” The Justices analyzed the contract provisions, pointing out that the accident happened in early spring, outside of the “normal growing season.” What’s more, the dictionary definition of “branch” is “a stem growing from the trunk or from a limb of a tree” or a “shoot or secondary stem growing from the main stem.” Therefore, the Court reasoned, “the ‘branches’ to be trimmed under Superior’s maintenance contract are protrusions from the main trunk only, not separate shoots stemming from the tree’s roots. Superior could not be in breach for failing to trim back those shoots.”

Maybe so, argued the homeowner, but regardless of what the contract may have said, the landscaper’s obligations “were not comprehensively detailed in its maintenance contract, but encompassed acts that it habitually engaged in over time.” The Court rejected this dangerous notion, declaring that there “is no room in our law for a tort duty arising from course-of-performance acts that are nowhere provided by contract.” The Justices reasoned that “where a duty is rooted in the express language of a written contract, the parties are on notice of their obligations, and are in a good position to plan their activities around them. That is not at all true for … extracontractual, course-of-performance acts relied on” by Ms. Hill. “If we were to impose a duty in connection with those acts,” the Court said, “we would establish a troubling perverse incentive. A party facing a tort duty in connection with any undertaking not required by contract would be discouraged from such undertaking. And a disincentive for gratuitous service benefiting another is not the sort of conduct that our tort law ought to countenance. In any event, to the extent injuries ensue from negligence in the performance of such activities, liability would properly be governed by a different branch of our tort law – by the standards governing liability for a voluntary undertaking, a theory we … find unavailing.”

– Tom Root


Case of the Day – Wednesday, April 26, 2017


condiments150309You know people like this. They leave restaurants with their pockets bulging from stolen packets of sugar, jelly or ketchup. They return from a vacation with a valise full of shampoo, conditioner, soap and teabags, boosted from every hotel on their itinerary. When they move from a house, they be sure to pick it clean of light bulbs, curtains, and even the unused toilet paper rolls left on the dispensers. In rare cases, they even uproot garden plants as they leave.

When you have folks like this over for dinner, you should audit your silverware before they leave.

The late Mr. Thomas was that kind of guy, probably a man with a closet full of mini-shampoo bottles, Bob Evans jelly tubs, and McDonald’s sugar packets. He was quite a thrifty guy. Maybe there’s a better word to use than “thrifty.” A word like “light-fingered.”

However you would describe him, after he signed the deal to sell his Iowa farm to Mr. Laube, but before he surrendered possession, Mr. Thomas thought he just might thin the timber a bit by cutting down and selling about a hundred walnut trees. True, the walnuts weren’t really ready for harvest – the 20-year old trees were only about halfway to an age where they should be harvested – but Mr. Thomas could hardly see the sense of leaving all of that nice hardwood for Mr. Laube to cash in on a couple decades after closing.

Mr. Laube sued. Sadly, while he won the case, he was butchered on damages. There was no question that Mr. Thomas was liable. After all, the contract of sale didn’t reserve any timber rights to the seller. But the issue was the value of the trees that had been removed.

Generally, there are several ways to figure damages for loss of trees. Where the trees are for a special purpose, such as for windbreaks, shade or ornamental use, the measure is usually the difference in value of the real estate before and after the destruction of the trees. Where the trees have no special use beyond being marketable timber, the measure of damages is the commercial market value of the trees at the time of taking. Where the trees can feasibly be replaced, the measure of damages is the reasonable cost of replacement.

The Court ruled that the value of the 100 immature walnut trees was their present-day value at the mill, despite Mr. Laube’s lament that they would have been worth so much more had they been 20 years older. The Iowa Supreme Court admitted that Mr. Laube had a point – he had been deprived of trees that had great potential value, something that giving him present commercial value didn’t recognize. But the Court said that the law had never allowed such damages, and it didn’t intend to do so here. The Court speculated – and that’s exactly what it was – that it “was perhaps to address this criticism that the legislature provided for treble damages in Iowa Code section 658.4.”

When taking all of the lightbulbs from your just-sold house, be sure to wear gloves so as to avoid being burned. The only one who should be burned by this process is the unwitting buyer.

     When taking all of the lightbulbs from your just-sold house, be sure to wear gloves so as to avoid being burned. The only one who should be burned by this process is the unwitting buyer.

Poppycock. Punitive damages are intended to punish, not make up for deficiencies in the law of compensatory damages. Farmer Thomas did not profit from his selling of the walnut trees on his way out the door, but Mr. Laube was hardly made whole.

Laube v. Estate of Thomas, 376 N.W.2d 108 (Sup.Ct. Iowa, 1985). In 1983, the Thomases contracted to sell a farm to Mr. Laube. Possession was to pass on March 1, 1984. Although no timber rights were reserved to the Thomases, they removed about 100 walnut trees from the tract between contract and closing. There was no question of liability; in fact, at trial Thomases offered to confess judgment for $1,000. The offer was refused.

The trial court awarded Laube the commercial value of the trees at the tie they were cut. Laube appealed.

Held: The measure of damages used by the trial court was correct.

The walnut trees were timber or forest, not used for a windbreak or ornamental purposes. The trees had stood at two sites on the farm, one a low-level area near a stream and the other in a permanent pasture. The 100 in question were smaller, presumably inferior for marketing purposes. The evidence showed that it was not a practical marketing time for the trees in question. At an age of 20 years, they would not mature so as to reach their reasonable marketing potential for another 20 years. Mr. Laube argued he should be awarded damages that took the current market price, considering the size and quality of trees 20 years hence, then discounting the figure appropriately to reach the present value.

It's he present-day value of the commercial timber that matters.

It’s the present-day value of the commercial timber that matters.

The Supreme Court admitted that “especially [in] the showing of the inappropriateness of cutting the trees at their stage of semi-maturity, there is at first blush an attractiveness in plaintiffs’ contention that a routine allowance of only log value is inadequate. On the other hand their suggested recovery does not conform with any recognized measure of damages for loss of trees.” Where the trees were put to a special purpose, such as for windbreaks, shade or ornamental use, the measure is usually the difference in value of the realty before and after the destruction of the trees. Where the trees had no such special use, the measure is the commercial market value of the trees at the time of taking. Where the trees can be replaced, damages are the reasonable cost of replacement.

Here, the Court said, the commercial value of the trees was the appropriate measure of damages. It suggested that the law provided for treble damages in Iowa Code § 658.4 to help adjust for the unfairness of situations such as the one in this case. However, it would not take into account future value in setting compensatory damages.

– Tom Root


Case of the Day – Tuesday, April 25, 2017


pinkyswear150204Hey, kids! Remember “cross my heart and hope to die?” How “swear on a stack of Bibles?” Even you’re too young for those old chestnuts, you all know what a “pinky swear” is.

Sadly, Robert Grey Johnson, Jr., does not. Mr. Grey Johnson lived in tony Monarch Bay Terrace, on the Pacific Ocean between Long Beach and San Diego. The community is governed by the Monarch Bay Terrace Property Owners Association, a type of local quasi-governmental regulatory body that gives despotism a bad name. A few years ago, Monarch Bay POA and Grey Johnson became embroiled in a dispute concerning his alleged installation of various “unapproved” trees on his property, and his failure to properly trim and maintain all of his trees so they didn’t impede either use of the sidewalks adjacent to his property or – more important when the “starter houses” in your neighborhood sell for over a million bucks – the ocean views of his neighbors.

To settle that earlier case, Grey Johnson promised to abide by a settlement that spanned more than 20 pages. He said he abide by Monarch Bay’s “Covenants, Conditions and Restrictions” and seek prior approval of any trees planted on his property. He conceded that Monarch Bay POA’s board of directors would have “sole discretion” to determine the proper height of any tree, or whether any new or existing planting constitutes a view impediment or a nuisance – and that its decisions would be “final.” Finally, Grey Johnson promised to remove certain trees, trim or top other trees, as necessary, to maintain them at rooftop level; and pay a fine of $250.00, plus $500.00 in attorney fees to Monarch Bay.

crossedfingers150206No one looked behind Grey Johnson’s back while he signed off on the deal, or they might have seen his crossed fingers. A few years later, after Grey Johnson had failed to trim his trees as he promised, the parties were back in court. The POA wanted the trial judge to enforce the deal. Grey Johnson, who channeled Joyce Kilmer, argued that he should not be required to “top” the tree that some of his neighbors characterize as an impediment to their ocean views, even though he earlier agreed to do that very thing.

The court was unimpressed. Kilmer, the judge pointed out, didn’t say that trees were lovelier than ocean views – just poems. Grey Johnson offered fifty shades of justification for not honoring the deal, but the court saw through them. After the trial court upheld the deal, he took his plea to the Court of Appeals, which wisely observed that “this case is not about whether Johnson should be required to top his tree – or whether Kilmer would have approved of his doing so. It’s about whether Johnson’s voluntary agreement to do it is legally enforceable, even though he doesn’t want to do it anymore. It is.”

Our hats are off in homage to the salesmanship of the lawyer who convinced Grey Johnson that he ought to bankroll this turkey. Had Grey Johnson come to us, we probably would have uncreatively told him to “keep your word… you signed the deal, now live with it.” Which, come to think of it, is exactly what the Court of Appeals told him.

The moral? Lawyers often say that a “bad settlement is better than a good lawsuit.” True, but that settlement is more than a technicality on the road to ending some pesky litigation. Courts presume the parties understand what they’re signing, and won’t later entertain deviceful arguments for ignoring the plain terms of the deal.

It's a pretty fine view - what you'd expect for ocean vistas that start round $2.5 million.

It’s a pretty fine view – what you’d expect for ocean vistas that start around $2.5 million.

Monarch Bay Property Owners Ass’n v. Johnson, Case No. G043518 (Ct.App. 4th Div. Cal., Oct. 19, 2011). Johnson, a homeowner in Monarch Bay, became embroiled in a dispute with the Monarch Bay Property Owners Association over his installation of various “unapproved” trees on his property, and his failure to properly trim and maintain other trees to ensure they were not impeding use of the sidewalks adjacent to his property, or the ocean views of his neighbors. In 2008, the parties settled the dispute with a lengthy settlement agreement, in which Johnson promised abide by the community’s Covenants, Conditions and Restrictions, and would seek prior approval of any plantings on his property. He also agreed that the POA’s board of directors would have sole discretion to determine the proper height of any trees, or whether new or existing trees constitutes a view impediment or a nuisance. Johnson promised to remove some trees and trim others as necessary to maintain them at roof level, and to pay a modest fine. The parties agreed that a particular Canary pine “will be inspected” nine months after the date of settlement to determine whether it creates any view impediments. If it does, it would be further trimmed – but only if a “neutral arborist” (paid by Monarch Bay) determines that doing so would not permanently injure the tree. The settlement specified that the POA could enter a judgment against Johnson if he didn’t comply.

Right after signing the settlement agreement, Johnson removed and trimmed trees as he had promised to do. However, when Monarch Bay inspected his property nine months after the settlement, it determined that he had failed to properly maintain the trimming of his existing trees, and also that the Canary pine appeared to be impeding the views of his neighbors. The POA concluded that Johnson was in breach of the settlement agreement, and sought entry of judgment against him.

Monarch Bay’s motion for entry of judgment was filed just over one year after the settlement date. Johnson opposed the motion, arguing that he was in compliance with the terms of the settlement agreement, but that Monarch Bay had breached it by “fail[ing] to inspect the Canary pine within the nine month period of the agreement.” Johnson also argued that Monarch Bay had provided no evidence that further trimming of the Canary pine would not endanger it, and that the stipulated judgment was too “vague” and lacking in objective standards to be enforceable.

The court denied the POA’s motion, without prejudice, because it lacked sufficient supporting evidence to establish Johnson’s breach of the agreement. The POA refiled its motion for entry of judgment five months later, supported by additional evidence, including the declaration of a neutral arborist, and declarations of neighbors attesting to view impairment. Also included with the moving papers was a copy of the stipulated judgment which the court was being asked to enter. Johnson again filed opposition. The trial court entered judgment for the POA on December 29, 2009.

Johnson appealed.

Held: The POA was entitled to its judgment. Johnson asserted two primary bases for challenging the stipulated judgment which arose out the prior settlement. First, he claims the court was without jurisdiction to enter an order enforcing the parties’ settlement pursuant to Code of Civil Procedure section 664, because Monarch Bay’s motion was brought more than one year after the date of the settlement, in violation of a provision requiring that the case be dismissed no later than one year after the settlement date. And second, Johnson claimed that the terms of the judgment as entered are materially different from those he stipulated to. Neither argument is persuasive.

stackofbibles150204The Court ruled that the settlement agreement did not actually require that the case be dismissed within a year after the settlement date – or at all. Instead, what the provision Johnson relies upon does is prohibit dismissal of the case for a period of time. But even if settlement had imposed a deadline or dismissal of the case, Johnson would have waived any right to rely upon it by failing to enforce it prior to entry of judgment. Until the case was actually dismissed – which this one never was – the court retained jurisdiction to enter judgment.

The Court also held that Johnson’s argument concerning the specific terms of the judgment ignored the plain fact that, as part of the settlement agreement, Johnson expressly stipulated to the exact terms of the judgment to be entered against him if he failed to comply with his obligations under the settlement agreement. While Johnson may be unhappy with its terms, the Court held, it is too late for him to raise that issue now.

Finally, Johnson also challenged the trial court’s award of about $60,000 in attorney fees incurred by the POA in enforcing the settlement agreement. The Court of Appeals agreed, holding that “the parties specifically provided in their stipulated judgment for an additional award of attorney fees incurred by Monarch Bay ‘in enforcement of the stipulation,’ which would equate to the fees expended to obtain entry of the stipulated judgment. Nor did the court err by including in its award the fees Monarch Bay incurred in its first motion to obtain entry of judgment. The court explicitly denied the first motion “without prejudice, ” thus signaling that the issue of whether Monarch Bay was entitled to such a judgment was yet to be determined – in other words, that neither party had yet won nor lost the fight. The court’s fee award, entered after Monarch Bay ultimately prevailed, was consistent with that approach: One fight, one victor – and to the victor went the spoils.

– Tom Root


Case of the Day – Monday, April 24, 2017


crash150303Mr. Elder drove his dump truck onto the Union Pacific tracks in Nephi, Utah — a town, not a soft drink — where he was promptly hit by what the Utah Supreme Court described as a “ninety-one car train.” It’s unlikely 78 cars or 23 cars or even just a set of GE diesel-electric locomotives would had a less deadly result.

Mr. Elder was killed, and his widow set off trying to find someone to pay for it. She sued the Railroad and the City, suggesting that someone should have trimmed the trees near the tracks so her husband could have seen the train. The UP, which was quite adept in its own right in blaming others for grade-crossing mishaps, had a great excuse: the railroad didn’t own the trees to begin with.

It seems that no one ever remembered to give the Union Pacific title to its right-of-way, due to — what else? — a federal government screw-up back in the 19th century.  However, the ever-resourceful Mrs. Elder argued, the Railroad had acquired all of the land under and around the tracks by prescriptive easement. She was thus in the unusual position of arguing in the lawsuit that the defendant Railroad was entitled to own a big piece of land on which it had been squatting for a hundred years — and was therefore liable for not keeping up the land it had never claimed it owned — all at the same time.

Pretty creative lawyering! But the Utah Supreme Court held Mrs. Elder had no standing to claim the UP’s prescriptive easement on its behalf, probably because the Court suspected she didn’t have the Railroad’s best interests at heart.  Imagine! As for the City, the Court agreed it had no duty under statute to trim the trees, but it observed the City did have a common law duty to Mr. Elder. The case was sent back to figure out whether that duty required it to trim the trees obscuring the crossing.

Elder v. Nephi City ex rel. Brough, 164 P.3d 1238 (S.Ct. Utah, 2007). Shelley Elder was killed on a Union Pacific Railroad railway track in Nephi City, Utah, when the dump truck he was driving was struck by a freight train. His widow sued, contending that her husband’s death was caused by the negligence of Union Pacific Railroad and the City of Nephi.

The tracks may have been a little obscured by trees, but not quite like this.

The tracks may have been a little obscured by trees, but not quite like this.

According to Mrs. Elder, her husband would not have lost his life had a line of trees located parallel to the railroad tracks not obscured his vision of the train. The trees were situated on land owned by the City of Nephi, but Union Pacific owned the tracks and operated the train. The Railroad had no recorded property interest in the ground where the trees were located. The trial court summarily dismissed Mrs. Elder’s wrongful death claim, ruling as a matter of law that neither Nephi nor the Railroad owed a duty to Mr. Elder to assure that the trees did not impair motorists’ ability to observe approaching trains. She appealed.

Held: The Railroad had no property interest in the trees and was under no duty to remove them. While the City of Nephi owed no statutory duty to Mr. Elder, it did owe a common-law duty to him, and the case had to be reversed on that point.

As for the Railroad’s right-of-way through Nephi, the UP route was acquired by prescriptive easement rather than by statute, and thus did not extend to land bordering tracks, including the land on which the offending trees stood. Under the Federal Townsite Act of 1867, the United States conveyed by patent to a probate judge the land within the city limits, including the railroad crossing area. Because this conveyance occurred before Congress passed the Railroad Right of Ways Acts granting railways a right-of-way through public lands, the statute could not have conveyed the right-of-way through Nephi.

Mrs. Elder claimed that the Railroad’s prescriptive easement extended not only to the railbed, however, but also to the land on which the trees stood. The Court ruled that while it wouldn’t rule that out, Mrs. Elder lacked standing to make a prescriptive easement claim on behalf of the Railroad. Standing to bring a quiet title action to perfect title is limited to parties who could acquire an interest in the property created by the court’s judgment or decree. What Mrs. Elder sought to do was to stick Union Pacific with the prescriptive easement as a way-station on the road to making the Railroad liable for her husband’s death.

As for the City of Nephi, the Court said, municipalities owe a duty of reasonable care to ordinary people, and this duty extends to travelers upon their highways. The scope of a governmental entity’s common-law duty to persons using roadways under its control extends beyond the boundaries of the thoroughfare. A governmental entity does not undertake a duty to remove vegetation from private land that may obstruct the vision of motorists utilizing its roadways; nor does a private party bear a common-law duty to keep roadways free of visual obstructions caused by vegetation growing on his land.

Crossing 150303The Court ruled that the Utah statute requiring landowners to remove vegetation “which, by obstructing the view of any operator, constitutes a traffic hazard,” did not impose on city a duty on the City to monitor railroad crossings for visual obstructions. U.C.A. § 41-6-19.  Rather, the City’s statutory obligation to remove the trees would have been triggered by receipt of notice from the department of transportation or a local authority that an investigation had deemed the trees to be a traffic hazard, and city did not undertake any such investigation itself.

Nevertheless, the Court said, a genuine issue of material fact remained as to the allocation of duties between the City — which owned land near railroad tracks that contained irrigation ditch and trees which sprouted from the ditch embankment — and the irrigation company, which maintained irrigation ditch along the land pursuant to an irrigation easement. The common-law duty of a governmental entity to safeguard those who travel its roads may extend to visual hazards located on its land outside the bounds of the roadway itself, and the mere fact that an easement existed did not automatically assign that common-law duty to the servient estate. The issue of whether the City or the irrigation company was responsible for tree trimming, and whether the City breached its duty to the late Mr. Elder, precluded summary judgment.

– Tom Root


Case of the Day – Friday, April 21, 2017


       It was such a safe vehicle … so it must have been the tree’s fault.

Times change and trees grow. That’s the lesson in today’s case.

Mr. Paredes was driving along I-805 in the driving rain, transporting his daughters in a superannuated Volkswagen with bald tires. He lost control of the VW and it slid down a bank, colliding with a eucalyptus tree located about 25 feet from an on ramp. His 6- and 9-year old daughters died in the accident, and he was badly hurt.

Normally, one would shake his or her head and observe that Mr. Paredes maybe was going too fast, or driving a junker in weather that was too bad, or perhaps engaging in risky conduct by relying on bald tires. But this being America, it had to be someone else’s fault.

Mr. Paredes blamed Caltrans, the California Department of Transportation. It was the agency’s fault, because the trees were closer to the on ramp than permitted by Caltrans standards, and in fact shouldn’t have been there at all. Only problem was, when the trees were planted, they complied with all standards. Even today, they were more than 30 feet from the road and 25 feet from the on ramp. In other words, Caltrans may have set in motion the factors that caused the damage, but it didn’t create it negligently: the construction complied with all standards when built.

Under the law, the agency had to have actual or constructive knowledge of the dangerous condition. Splitting hairs, the Court found that Caltrans knew that the trees were planted where they were planted: after all, Caltrans had planted them. But, the Court said, Caltrans didn’t have knowledge that the trees, located as they were, were dangerous.

It strikes us as maybe parsing things a little too finely. But as we’ve said before, hard cases make bad law. Here, the jury may have gone off on a frolic, and — notwithstanding all of the expert testimony — figured that Mr. Paredes was a little too much at fault to be entitled to much. The Court of Appeals, which is legally disposed to defend a jury verdict anyway, may have agreed.

Driving 60 mph in a beater of a car with bald tires through heavy rain? So exactly who was negligent here? Some workers who planted a tree 15 years ago or the idiot who jeopardized his most precious possession — two little girls — in his haste to get somewhere?

Mr. Paredes claimed the trees were too close to the road ...

Mr. Paredes claimed the trees were too close to the road …

Paredes v. State, 2008 WL 384636 (Cal.App. Feb. 14, 2008). Marco Paredes was injured and his two daughters killed when Paredes lost control of his vehicle in heavy rain, after which the vehicle slid down an embankment and struck a eucalyptus tree. Paredes claimed that California Department of Transportation (Caltrans) employees created the dangerous condition by creating the slope and planting eucalyptus trees within 30 feet of the on ramp without protecting them with guardrails, demonstrating negligence per se as well as placing Caldrons on notice of the defect.

The jury disagreed. It found that the property was in dangerous condition at the time of the accident and was a substantial cause of Paredes’s injury and the death of his children, but it nonetheless concluded that the State did not have actual or constructive notice of the condition in sufficient time before the incident to protect against it. The jury also found the dangerous condition was not caused by a negligent or wrongful act or omission of a State employee acting within the scope of employment.

Paredes appealed.

Held: The verdict against Paredes was upheld. The Court of Appeals observed that California law held that except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The law, the Court said, plainly requires a finding that a public entity’s negligent or wrongful acts created a dangerous condition. It does not impose liability for mere creation of a dangerous condition. In this case, the jury was instructed that the plaintiffs had to establish that negligent or wrongful conduct by a State employee acting within the scope of employment created the dangerous condition. The Court concluded that substantial evidence from State’s expert, as well as Paredes’ own experts, supported the jury’s finding that State did not act negligently or wrongfully in planting the accident trees on the slope along the accident site.

The State’s expert explained that the standard applicable at the time of the planting was Caltrans’s “clear zone principle,” which required only that trees be planted 30 feet beyond the traveled way of the I-805 mainline and 20 feet from the on-ramp. For that matter, Paredes’ expert agreed the accident tree was over 31 feet from the edge of the traveled way of the I-805, and 25 feet from the edge of the traveled way of the nearby on-ramp. Another expert explained that a fixed immovable object under the Caltrans clear zone standard was a tree having a trunk with eight inch diameters or greater. The State’s expert testified that a guardrail would not have been required at the site of the accident tree applying standards prevalent at the time of trial.

The testimony of a single witness may be sufficient to establish substantial evidence, the Court said, and here, the jury as the exclusive judge of credibility was entitled to believe defendant’s witnesses.

Someone should have told Mr. Paredes this ...

Someone should have told Mr. Paredes this …

The Court also concluded that substantial evidence supported the jury’s finding that State did not have actual or constructive notice of the dangerous condition. A public entity has actual notice of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. A public entity has constructive notice of a dangerous condition only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Here, State employees planted the accident tree as well as other trees on the embankment. But the Court refused to fault the jury’s finding that the public property was in a dangerous condition at the time of the accident required it to also find the State had notice of that condition. On the evidence here, the jury could have concluded that the planting of the young eucalyptus tree on the embankment was not dangerous in 1979 or 1980 when that project was completed, but became dangerous only when its trunk grew to a larger diameter. Thus, while State may have had notice of the physical condition it had created — the presence of trees on the slope — the jury was entitled to conclude it did not have notice that the condition was dangerous. Substantial evidence supported such a conclusion, the Court held.

– Tom Root