ALWAYS SHOW UP

Not showing up may not make you all that interesting … but it could lighten your wallet.

The Pitts had a nice piece of undeveloped land in the Utah outback, next to the Pine Meadows Ranch. Mr. and Mrs. Pitts weren’t exactly obsessive about checking on their land. After all, what could possibly go wrong with a chunk of meadow and pine trees?

Well, some lousy neighbors, for one thing. While the Pitts lived in the city, the people at Pine Meadows Ranch turned the Pitts’ rural paradise into … well, the pits. Pine Meadows Ranch dumped its trash on the land, drilled a well — for what, the decision doesn’t mention — and cut down a number of trees. When the Pitts finally discovered the perfidy of their adjoining landowner, they sued.

Pine Meadows Ranch never answered the suit, and the trial court — after waiting a suitable period of time — granted default judgment. The court then took Howard Pitts’s testimony, who said the land was worth $16,000 before the trespass but was “totally ruined” afterward (with the trees constituting $5,000 of the total), and granted judgment for $36,000. The 36 large ordered in the judgment finally got the Ranch’s attention.

On appeal, the Ranch complained that the dog ate its summons or some such nonsense. The Court of Appeals didn’t forgive the Ranch’s non-appearance, but it did reverse the damages. The Court thought Pitts’ conclusory testimony about the value of the trees and land was a little too light on fact to support the award. Additionally, during the damages hearing, the trial court noted that $36,000 was probably too much, but maybe it would get the non-appearing Defendant’s attention. From that aside the Court of Appeals suspected that maybe the trial judge had assessed $36,000 to punish a no-show.

The case went back down for a new hearing, but the important lesson is this: not showing up does not endear a defendant to a court.

Mr. Pitts wasn’t sure how many trees had been cut, but he said the property was ruined.

Pitts v. Pine Meadow Ranch, Inc., 589 P.2d 767 (1978).  The Pitts alleged that Pine Meadows Ranch or its agents intentionally and willfully trespassed on their unimproved real property, used it as a junkyard and a garbage dump, drilled a well in the middle of it, and destroyed a number of beautiful trees. The Pitts claimed damages equal to the full market value of the real property, $16,000, of which $5,000 was the value of the trees, for which they claimed treble damages under Utah Statute § 78-38-3, along with $10,000 in punitive damages.

The Ranch didn’t answer the complaint, and the trial court granted default judgment. After that, the court took Howard Pitts’ testimony under oath and granted judgment for the amount prayed for: $36,000. The Ranch moved to vacate the judgment, which was denied.

After the Pitts started trying to collect on their judgment, the Ranch appealed.

Held: The default judgment could not be attacked, but the damage award had to be set aside. No evidence showed the market value of the plaintiffs’ property after the trespass, on which to base a finding of malice or wanton destruction of property.

The Court observed that the measure of damages for trespass on real property and destruction of the property is generally the difference between the value of the property before and after the trespass. Where there was no evidence of the market value of plaintiffs’ property after the trespass except a statement that the property was “totally ruined,” nor where any evidence had been provided upon which to base a finding of malice or wanton destruction of property, the defendants were entitled to a new hearing on the damages issue.

The Supreme Court said Mr. Pitts’ bare statement that the destroyed trees constituted $5,000 of the property’s value was the only evidence supporting the treble-damage award. Under these circumstances, the Court said, it did not find sufficient credible evidence to support the $36,000 judgment.

The record showed that the trial court thought the $36,000 to be too much, but suspected they might respond “to a judgment of this size.” The Supreme Court found that the trial court entered judgment in that amount because the defendants had been dilatory, and he thought a large judgment would bring them into court. When the defendants responded to the large judgment, the trial court refused to overturn it because doing so at that time would be an injustice to the plaintiff.

Damages have to be based on stronger evidence than that.

– Tom Root

I CAN’T SEE FOR MILES AND MILES…

Here’s a strange little case from Big Sky Country. Landowner Wilber (who, if we read between the lines correctly, was an impatient man who preferred to reap that which he did not sow, if you get our meaning) was unhappy that his downhill neighbor had a tree that had grown tall, and thus interfered with his view.

Wilbur found a lawyer, to whom he complained, “I can’t see for miles.” The lawyer, Who was happy enough to take Wilbur’s money, whispered delusions of legal grandeur in Wilbur’s ear. “If the neighbors’ tree kept you from seeing the July 4th fireworks,” the attorney whispered, “then the tree is a nuisance. And if the neighbors did not remove the tree to suit you, then they’re malicious! If the tree is overhanging your yard, your neighbors are trespassers!”

Believing his highly paid but under-informed counsel, Wilbur sued. The trial court bounced the suit because (1) Wilbur had no common-law right to a view; (2) a naturally growing tree cannot be a nuisance; and (3) the neighbors are not trespassers because their tree’s roots and branches have encroached.

Wilbur appealed, and the Montana Supreme Court ultimately heard the case. That’s where the strangeness began. The Supreme Court agreed that Wilbur had no right to a view and that the healthy, naturally growing tree was no nuisance. But it held that Wilbur’s trespass claim, because the tree encroached, was adequately pled and would survive early dismissal.

We tend to think that the Court agreed only that Wilbur’s claim that the neighbors had caused the tree to encroach was, if true, a good claim. If Montana suggests that a tree’s encroachment itself constitutes a trespass if an owner does not take active steps to stop the encroachment, the holding goes far beyond even the Hawaii Rule or Fancher v. Fagella.

If, on the other hand, Montana suggests that such encroachment, if not halted by an owner who knows of the encroachment and the damage to another’s property, is trespass, this may not be much different from the Hawaii Rule, just worded differently. After all, an encroaching tree that damages the neighbor’s property may well be a nuisance. Whether it is trespass or nuisance, the responsible landowner is liable for the damage. That is how the Hawaii Rule operates.

Martin v. Artis, 366 Mont. 513 (Mont. 2012). Wilbur Martin resides in the South Hills subdivision in Missoula. Keith and Gloria Artis’s property lies immediately below and abuts Wilbur’s property, with a boundary fence separating the properties.

The Artises had a tree, a nice large tree that grew over the years so that it blocked a substantial portion of Wilbur’s view of the city, valley and mountains. In fact, horror of horrors, on Independence Day 2010, for example, Wilbur and his guest could see virtually none of the South Gate Mall fireworks display because the Artis tree blocked the view. Wilbur said the tree’s obstruction was “offensive to his senses, was an infringement upon the free use of his property, interfered with his comfortable enjoyment of his property, and diminished the aesthetic and monetary value of his property.” He said the tree was a nuisance, and the Artises intended it to be one.

If that were not enough, Wilbur alleged that the tree’s roots were encroaching onto his property and were starting to buckle the boundary fence. What’s more, he claimed, branches from the tree encroached onto his property and overhung the common boundary fence. He declared the encroachment to be a trespass.

The Artises had tried to accommodate. Wilbur admitted that after he contacted them about the tree, they had “cut a few branches from the tree,” but he nonetheless asserted that Artises “know their tree is growing over the fence onto Wilbur’s property and is buckling his fence, but refuse to do anything to stop it; that such trespass is continuing.”

Finally, alleging that Artises knew or should have known the alleged facts, Wilbur accuses them of actual malice and demands punitive damages.

Artises filed a motion to dismiss the complaint, arguing that a naturally growing tree is not a nuisance or trespass as a matter of law. The district court agreed and dismissed Wilbur’s feverish litany of abuse.

Wilbur appealed, and the case reached Montana’s Supreme Court.

Held: Wilbur had no right to an unobstructed view, and a naturally growing tree cannot constitute a nuisance. However, Wilbur adequately pled trespass because he claimed the tree encroached and the Artises knew it.

The statutory definition of nuisance provides that anything which is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance.” Section 27-30-101(1), MCA (2009). Although § 27-30-101(1), MCA, allows anything to constitute a nuisance, a nuisance claim must still plead a factual foundation that satisfies governing legal standards. “A nuisance action may be based upon conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous,” the Court said. A nuisance may either be a nuisance per se or a nuisance per accidens. A nuisance per se, or at law, is an inherently injurious act, occupation, or structure that is a nuisance at all times and under any circumstances, regardless of location or surroundings. A nuisance per accidens or in fact “is one which becomes a nuisance by virtue of circumstances and surroundings.”

Likewise, the Court said, a nuisance may also be classified as either absolute or qualified. An absolute nuisance is ” a nuisance, the substance… of which is not negligence, which obviously exposes another to probable injury.” A qualified nuisance, on the other hand, is a nuisance dependent on negligence that consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm, which, in due course, results in injury to another.

Montana law has never held that a nuisance claim would lie for any obstruction of view whatsoever. Here, Wilbur alleges that a tree, in the course of its natural growth, has risen tall enough to obstruct his view. Although the complaint broadly claims that Artises’ tree has reduced the aesthetic and monetary value of Wilbur’s property, interfered with his comfortable enjoyment of his property, and offended his senses, the claim’s entire factual basis is that a tree has obstructed his view through natural growth. The assertion that Artises’ naturally growing tree has obstructed Wilbur’s view does not constitute, as a matter of law, “conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous,” the Court said, or “an inherently injurious act or a condition which “obviously exposes another to probable injury.” The District Court properly granted the Artises’ motion to dismiss Martin’s nuisance claim.

The trespass is another matter, the Court held. Trespass is “the entry of another person or thing that obstructs a property owner’s exclusive possession. A party need not establish actual harm or damages in a traditional trespass action.” One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in possession of the other, or causes a thing or third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

The “intent” element of trespass is fulfilled when an actor desires the consequence of his act, or when he believes the consequences are substantially certain to result from his act. Here, the Court said, Wilbur’s complaint alleges a trespass because the Artises’ tree extends over the shared fence and the roots grow onto his property. The complaint alleges that the tree’s roots have damaged Wilbur’s property. Regarding intent, Wilbur claims allege that the Artises “know their tree is growing over the fence onto the property and is buckling his fence but refuse to do anything to stop it,” that Artises’ conduct is motivated by malice or is in willful, wanton and reckless disregard of Wilbur’s rights” and that Artises are guilty of actual malice “because they had notice and knowledge of the alleged facts.”

Although the Artises argue that Wilbur’s complaint fails to plead an intention to trespass by way of their tree, the Supreme Court concluded that “for purposes of an M.R.Civ.P. 12(b)(6) motion to dismiss, intent was adequately pled.”

– Tom Root

SHE SURE GOT HER BELL RUNG

A young girl and her friend sneaked onto church property to play. While they were doing what young kids do when they’re where they shouldn’t be, the girl rang a bell. The bell fell, injuring her foot. When kids trespass and do stupid things, how do the parents respond? Why, they sue the landowner, of course.

In this case, it was a local Catholic Church getting sued – unusually enough – for something that had nothing to do with sex abuse. Despite the Diocese’s obvious relief at being sued on behalf of a child plaintiff who wasn’t complaining about a priest, the Church nonetheless argued that it enjoyed immunity under Wisconsin’s recreational use law.

In a strange analysis, the Court of Appeals disagreed. Reba was hurt when she pushed on the bell, and the Court held that her pushing the bell wasn’t related to the game she and her friend had been playing. The Court said that it was mischief. Plus, the Court said, the Church wasn’t really recreational property, and it didn’t invite people to use it that way. In fact, it took steps to keep kids from playing there. Because Reba was engaging in mischief as a trespasser, and because the Church was arguably acting responsibly to prevent this kind of conduct, it owed Reba a greater duty than if it had left the place wide open. This probably applies the recreational use statute correctly, but it doesn’t make much sense as a matter of public policy.

            Remember Winnie the Pooh? “Trespasser William” young Reba was not …

Fortunately, under Wisconsin law, the Church would have owed a trespasser only a duty to refrain from willful, wanton, or reckless conduct, about the same result the Church would have gotten from applying the recreational use statute. Unfortunately, a jury found the Church had engaged in such conduct and awarded the plaintiff money damages.

You might think that you have no duty to a trespasser wandering onto your property. Guess again.

Fargo ex rel. MacArthur v. United Nat. Ins. Co., 739 N.W.2d 490 (Wis.App., 2007). A child playing house on church property was injured when she tried to push on a bell, which fell and injured her. The girl sued the St. Ignatius Catholic Church through her parents for negligence, and a jury awarded her damages. St. Ignatius appealed, arguing it was entitled to immunity under the Recreational Use law, Wis. Stat. § 892.52.

Held:  The award of damages to young Miss Fargo was affirmed. The recreational immunity statute limits property owners’ liability toward others who use their property for recreational activities. The statute defines recreational activity as “any outdoor activity undertaken for exercise, relaxation or pleasure…” It lists 29 specific recreational activities but instructs that “recreational activity” should be liberally construed in favor of property owners to protect them from liability.

To determine whether a person was engaged in a recreational activity under the statute, the Court said, a fact-finder should consider the totality of circumstances surrounding the activity, examining the intrinsic nature of the activity, the purpose of the activity — including the injured person’s subjective assessment of the activity — and consequences of the activity. A court should also consider the nature of the property, including whether the owner intended the property for recreational use, and the injured person’s reason for being on the property.

     The Church should have posted this sign.  Um … on second thought, maybe not.

Here, St. Ignatius argued it was entitled to immunity because young Reba Fargo was injured while playing house with a friend on church property, and this was a recreational activity. The Court disagreed. Instead, it ruled that Reba was injured when she pushed the bell, which fell on her foot. The Court held that pushing the bell wasn’t related to the game she had been playing. Rather, viewed objectively, she was trying to move a large, stationary object by pushing very hard.

The Court concluded that this independent act was mischievous because Fargo was trying to move an object that was not designed to move. Wisconsin law holds that mischievous conduct is not recreational activity. What’s more, given the nature of the property, St. Ignatius was a church, not a playground or other place where recreational activity would usually occur. The church made attempts to limit children playing on its property. While not determinative, that fact was an appropriate factor in the recreational-use analysis.

Considering all of the factors, the Court concluded that Reba Fargo was not engaged in a “recreational activity” within the meaning of the Recreational Use statute. Thus, St. Ignatius was not entitled to immunity.

– Tom Root

DO YOU KNOW THE MUFFIN MAN?

So who lived on Byrum Lane-O?

No, it wasn’t the Muffin Man, but the Clarks. They had assembled several parcels of land into a pretty nice cattle spread and homestead along the Jefferson River. And they had always used Byrum Lane. The road passed across their land, across the Dwyer Place and ultimately back to some more of their land and up to their house.

Back in the 1960s, the land around the Byrums’ cow palace was subdivided into smaller lots for homes, on almost none of which (other than the Clarks’ place) had been built. Meanwhile, all the landowners and their guests used Byrum Lane, and had for a long while. The County had even maintained the road sporadically.

But then came the legal drama. When the Clarks completed their new home, the Dwyers (or maybe the Dwyers’ descendants, who were the parties to the case) told the Clarks they couldn’t use the road anymore. The Clarks sued, arguing they had a prescriptive easement. A prescriptive easement is much like adverse possession (the doctrine that lets an especially brazen and long-term trespasser gain title to your land). However, unlike adverse possession, a prescriptive easement isn’t about ownership; rather, it’s about the right to use someone else’s property. If you have used someone else’s driveway openly, notoriously, adversely, continuously and without interruption for the period of time required by statute, an easement in your favor has been created just by force of your chutzpah.

In this case, the Clarks had used Byrum Lane without permission for years, as had their predecessors, and as had just about everyone else. The County even maintained it for a while, seemingly unsure whether it was a public right-of-way. The specific issue before the Supreme Court was whether the prescriptive easement extended to the Clarks’ use of Byrum Lane to reach a house on a parcel that didn’t exist when the prescriptive easement came into being. The Court said they could. The land had been subdivided before the prescriptive easement came into being, so the Dwyers had reason to think that if an easement had come into being prescriptively, it could be used to reach one of the homes which were contemplated on the vacant lots.

Clark v. Heirs and Devisees of Dwyer, 339 Mont. 197, 170 P.3d 927 (Mont. Supreme Court, 2007). The Clarks owned real estate they acquired as several tracts over a seven-year period beginning in 1979. The Dwyers owned real property that bordered a piece of the Clark land with railroad tracks acting as a visible property line. The Dwyer property was bordered on the east by a county road named “Waterloo Road” and on the north by a roadway known as “Byrum Lane.”

Byrum Lane extended from Waterloo Road, across the Dwyer property, and across the northern border of the Clarks’ property, which lay between the Dwyer land and property owned by George and Virginia Byrum, before continuing onto the Byrums’ property southwest of the Clarks’ land. In essence, Byrum Lane dissects the Clarks’ land.

The Byrums used Byrum Lane under two recorded easements in their favor. The portion of Byrum Lane crossing the Clarks’ land is a recorded 60-foot-wide roadway and utility easement. The portion of Byrum Lane from Waterloo Road over the Dwyer property is a 30-foot-wide road and utility easement. This portion of Byrum Lane crosses the Dwyer property from Waterloo Road for about 834 feet before reaching the Clarks’ property.

Historically, Byrum Lane was used by the Clarks and their predecessors to access the tracts the Clarks had purchased. From 1979 to 1986, Byrum Lane served as the Clarks’ sole access to their house. From 1986 to 1991, the Clarks used Byrum Lane to feed livestock, load hay, and move equipment. Later, after they built a new house in 1988 on one of their tracts that previously had no residence, the Clarks continuously used Byrum Lane (although they also had access to their house by way of a roadway from Waterloo Road).

The Clarks claimed a prescriptive easement along Byrum Lane, allowing them to access their land over the Dwyer property. Following trial, the court found that Byrum Lane had been used by the public and Clarks’ predecessors since the early 1900s, had been maintained by the county road department on occasion, was generally known as a public road which the public had a right to use long before the Dwyers purchased their property, and had been used without permission by the Clarks and Byrums (as well as others) since the time the Dwyers bought their land. The Dwyers and Byrums argued that the Clarks didn’t have the right to use the road to reach a residence on a tract that hadn’t had one when the prescriptive easement came into existence.

The trial court disagreed, saying that all owners of the road were put on notice in the 1960s that the road was intended to service residences when the subdivision of the property into various tracts took place. The court concluded that the Clarks established the elements of a prescriptive easement, an open, notorious, exclusive, adverse, continuous, and uninterrupted use of the roadway for at least five years. The Dwyers appealed.

Held: The Supreme Court upheld the trial judge. The Dwyers complained that the trial court had no business making findings about the road’s public-use nature. The Supreme Court disagreed, holding that although the action involved an alleged private easement, the public-use findings served only to give credibility to the private easement claim and had no other legal effect.

To establish a private prescriptive easement, the Court said, a party must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the claimed easement for the full five-year statutory period required by Montana Code § 70-19-404. Open and notorious use is a distinct, positive assertion of a right that is hostile to the owner’s rights and brought to the owner’s attention. Once a prescriptive easement is established, the easement holder is limited to the use and frequency of use established during the prescriptive period. If an easement is not specifically defined, it is considered to be of a size that is reasonably necessary and convenient for the purpose for which it was created, and not more. Once established, a prescriptive easement “runs with the land,” meaning the benefit or burden passes automatically to successors.

Applying these principles, the Supreme Court found that the Clarks had a prescriptive easement to use Byrum Lane. The right to use the private prescriptive roadway easement provided subdivision access extended to the Clarks’ and other tracts, lands that never had residences. The Court said the tracts were subdivided before the prescriptive easement arose, and subdividing them put all landowners on notice that the disputed roadway was intended to service all residences. Furthermore, the disputed roadway had been used to service parcels for several decades.

– Tom Root

DIAMONDS ARE FOREVER – EASEMENTS, NOT NECESSARILY…

Easements are fairly easy to grant. A blank piece of paper, a wild notion that some right should be given to your neighbor, a notary public to make it all legal, and maybe a fifth of good whisky to make you sufficiently reckless, and you can blot your title for a good long time.

How long, you ask? How about “perpetually,” the answer usually goes. But not always. Normally, one would hope that the easement was drafted precisely enough to specify its duration, or at least leave the intent of the grantor clear. But not always.

Young law students learn quickly enough in contract law that where a time for performance is not specified, a “reasonable” period of time is assumed. A “reasonable time” varies according to subject. If I promise the neighbor kid I will pay $20.00 to have my lawn cut, the little layabout cannot wait two months before showing up with the mower expecting the deal to still apply. On the other hand, if I agree with a neighbor that if he plants an apple tree on my land for me, he can have half of the apples, he can wait 15 years before showing up with a basket, and I have no beef with him.

So it is with easements. In today’s case, neighbors granted mutual easements a half-century earlier, relating to maintaining a fence, letting one cross the other’s property, and letting one party cut timber on the other’s land. No term was specified. When the fence maintenance and property crossing continued for 50 years, the court had no problem. But the timber harvest was clearly, according to the court, intended to be accomplished in the short term. The holder of the timber harvesting right could not wait two score and ten before arriving with his saw.

You snooze, you lose.

Lewison v. Axtell, 195 N.W. 622 (Supreme Court, Iowa, 1923). Ollie Lewison and Oscar Axtell owned tracts of land on both sides of the Iowa River. The prior owners of both properties had signed a contract many years before – in fact, 20 years before the predecessors sold their land to Ollie and Oscar – that granted easements for the construction and maintenance of a fence along Ollie Lewison’s tract, as well as a right for Oscar Axtell to pass through Lewison’s property. In exchange for the fence, the prior owner of Oscar Axtell’s tract was given the right to trim timber and brush from certain areas of the Ollie Lewison property.

When Ollie and Oscar took possession of their respective tracts, neither deed mentioned the easement contract.

The fence remained in place for many years, during which time Ollie Lewison had allowed Oscar Axtell to cross his property. However, when Oscar Axtell decided to remove timber from Ollie Lewison’s property, Ollie sued to prevent Oscar from doing so, claiming that too much time had elapsed for him to exercise that right. The trial court ruled in Ollie’s favor.

Oscar Axtell appealed.

Held: Oscar was not permitted to cut any timber on Ollie’s land.

The Supreme Court of Iowa defined the sole issue as being “whether the [defendant] now has a right to remove timber or brush from [the plaintiff’s property].” In Iowa, the Court said, “contracts for the purchase of growing trees must remove the same within the time specified, and, if the contract is silent as to time, then within a reasonable time after the contract becomes effective.” In this case, the Court found that Oscar Axtell was required to have removed the trees within a reasonable time, and – given that he had been in possession of his tract for more than 30 years without doing so – his attempt to do so was no longer reasonable.

The Supreme Court conceded that the question could have gone either way, but its conclusion was buttressed by the fact that some rights in the contract – such as the right to build a fence and for Oscar Axtell to pass across Lewison’s land – were described as “perpetual,” but the right to cut the timber was devoid of any language suggesting the original parties had foreseen, when signing the contract a half-century earlier, that the timber harvesting would extend into perpetuity as well.

– Tom Root