Case of the Day – Tuesday, April 21, 2026

Posted on April 21, 2026 by TLRoot tagged.

ADVERSE POSSESSION BY COMMITTEE

Weyerhaeuser Co. bought a big old farm in southeastern Oklahoma for timber operations back in the 1980s. No sooner had it harvested its last tree than the next-door neighbor, Brantley, started taking advantage of the absentee owner.

Not so fast, Mr. Brantley ... it's not quite that easy.

Not so fast, Mr. Brantley … it’s not quite as easy as all that.

Over a 20-year period, Brantley claimed, he had grazed his cattle on the place, even running off hunters authorized to hunt there and denying access to Oklahoma Wildlife officers who had a deal with Weyerhaeuser to open the place as a recreation area. But the farm was a big place, and there were a lot of players. Brantley’s father grazed his cattle on the place, too, for a while, but unlike his boy, Père Brantley had a lease from Weyerhaeuser. Brantley’s brother — cut from the same cloth as Brantley himself — grazed his cattle on the place and claimed a piece of it, too. Even Oklahoma State University had a lease from Weyerhaeuser to use part of the farm as a research facility.

Finally, the time came when Weyerhaeuser was ready to resume timber and gravel operations. it found Brantley to be underfoot, so the company sued him in trespass to remove him from the place. Brantley claimed he owned the place under the doctrine of adverse possession.

No, the Court said, he did not. Adverse possession requires, among other things, that the possession of the land be exclusive. Brantley’s possession of the place was more communal, the Court observed, with other actors coming and going all the time. You just can’t have a committee of people commonly possessing a place adversely. Where two people have entered onto a piece of land, the one who has the better title is the one in possession. And in this case, that was the guy who occupied the land as the lessee. Brantley’s Dad, who had leased the land from Weyerhauser, was the one in possession. Not his piratical son.

Weyerhaeuser Co. v. Brantley, 510 F.3d 1256 (Ct. App. 10th Cir., 2007). Sherrill Farm is located in a scenic portion of southeastern Oklahoma, along the Mountain Fork River and near the Arkansas border. Weyerhaeuser had owned the farm since the early 1980s, at least the entire period of the dispute. Young Carl Brantley claimed he had begun grazing livestock on Sherrill Farm as early as 1980-81, although he had never had permission to use it. Since then, Brantley said he had built corrals, feed troughs, and fences on the property. He also removed brush, applied fertilizer, harvested wheat, and maintained roads. Although he installed a locked gate on the farm in the early 1980s, he never paid property taxes on the land. Brantley claimed his adverse possession of Sherrill Farm began in the winter of 1987-88 after Weyerhaeuser last harvested a stand of trees on the property.

During the years Weyerhaeuser used the area for its timber operations, it permitted others to use Sherrill Farm. Brantley’s father had a grazing license on Sherrill Farm from 1983 to 1992. In 1987, Weyerhaeuser leased parts of Sherrill Farm to Oklahoma State University. OSU planted two research sites in the southern part of Sherrill Farm but made no use of the northern half. OSU complained to Weyerhaeuser about damage to its research plantations caused by livestock and built a fence to protect them, but it did not seek to have Brantley’s cattle removed from Sherrill Farm entirely. OSU asked Brantley to cease grazing in the leased area, but Brantley was uncooperative. OSU also maintained its own locked gate to Sherrill Farm. Because of this alternative access, Brantley’s gate never prevented OSU or Weyerhaeuser from accessing Sherrill Farm.

In 1998, Weyerhaeuser and the Oklahoma Department of Wildlife Conservation included Sherrill Farm in the Three Rivers Wildlife Management Area. According to the agreement, the general public could access Sherrill Farm for hunting, fishing, and other recreation. Brantley’s locked gate prevented a state wildlife officer from accessing Sherrill Farm during some visits. Brantley testified he saw hunters on the property during this time and asked them to leave. In 2003, Weyerhaeuser granted an easement to another landowner to access her property across Sherrill Farm, but Brantley refused to allow access to the easement through his gate.

You can’t adversely possess by committee …

Oklahoma State’s lease terminated in 2004. Weyerhaeuser had to resume timber production and begin gravel mining, but Weyerhaeuser said Brantley’s presence delayed these activities, resulting in monetary damages. In 2006, Weyerhaeuser sued Brantley for trespass.

Brantley asserted adverse possession or prescriptive easement as affirmative defenses. After a trial, the district court entered judgment in favor of Weyerhaeuser. Both parties appealed. Brantley argued he possessed the land adversely, and Weyerhaeuser complained it should have been awarded $200,000 in lost profits.

Held: Weyerhaeuser’s judgment was upheld, but not the lost profits. Under Oklahoma law, to establish adverse possession, Brantley had to show that his possession was hostile; was under a claim of right or color of title; was actual; was open; was notorious; was exclusive; and was continuous for the full 15-year statutory period.

Weyerhauser owns or controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum's rush.

Weyerhauser controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum’s rush.

The Court found that Brantley did not have exclusive use of the property for 15 years – that length of time being the Oklahoma standard (your home state’s period may vary), and thus failed to establish adverse possession of the land. During the 15-year period, Brantley’s father held a grazing lease on the property, Oklahoma State conducted activities on the property, Weyerhaeuser conducted activities such as road maintenance and gravel sampling on the property, the land was part of a wildlife area managed by the State and open to the public, horses not belonging to Brantley grazed on the property, and Brantley’s own brother also claimed grazing rights to property by adverse possession. To show exclusive possession, Brantley had to show an exclusive dominion over the land and an appropriation of it for his own use and benefit. Two persons cannot hold one piece of property adversely to each other at the same time, the Court said, and where two persons have entered upon the land, the one who has the better title will be deemed to be in possession.

However, Brantley did not have to pay the $200,000 special damages for trespass. A forest manager’s testimony that, but for the presence of Brantley’s cattle, the property owner would have netted $200,000 in profits from gravel mining — based on 150,000 tons during the first year and 300,000 tons during the second year — was held by the Court to be too uncertain and speculative to support a damage award for lost profits. But the award of $10,000 against Brantley based on Weyerhaeuser’s lost timber sales was reasonable: Weyerhaeuser had previously used the property for timber harvesting, and the property was currently suitable for planting and harvesting. Weyerhaeuser’s witness was a certified forester who had submitted an affidavit identifying the methodology for his damage calculations.

– Tom Root

And Now The News …

Posted on April 21, 2026 by TLRoot tagged.

Knoxville, Tennessee, WVLT-TV, April 20, 2026: Tree trimming is key to keeping the lights on, KUB says

Trees and overgrown vegetation are responsible for at least half of KUB’s power outages, according to the Knoxville Utilities Board, which says that’s why its tree trimming and vegetation management work runs year-round. Nick Bridgeman, a team lead in KUB’s vegetation management program, said KUB maintains a large system serving more than 220,000 electric customers and covering more than 5,000 miles of overhead distribution lines. “Overall, at least 50% of our outages are caused from vegetation,” Bridgeman said. “Vegetation management is a really important part of what we do here at KUB to make sure that we can provide safe and reliable services for our customers.” KUB said the biggest goals are safety and reliability—reducing the chance that limbs contact lines during day-to-day conditions or during storms…

Miami, Florida, WFOR-TV, April 20, 2026: Miami residents demand halt to tree removal permits as city defends process amid flooding fears

A growing group of Miami residents is urging city leaders to immediately pause tree removal permits, warning that widespread tree loss could worsen flooding and heat, while officials insist current policies remain intact and properly enforced. The push comes in a scathing letter signed by dozens of residents and sent Monday to Mayor Eileen Higgins, City Manager James Reyes and members of the Miami City Commission. The letter, organized by a member of Sierra Club Miami, calls for an immediate stop to certain permits until a committee of experts and stakeholders can weigh in on reforms. “Literally our trees are getting slaughtered,” said Sandy Moise, a Miami resident and Sierra Club Miami member. Moise and others argue the city is allowing too many trees to be cut down, raising concerns about environmental and quality-of-life impacts across neighborhoods. Experts say those concerns are not unfounded. “We feel the effects on heat,” said Chris Baraloto, associate director of Florida International University’s Institute of the Environment. “Now that it’s starting to rain again, we’re going to see the effects manifest themselves in stormwater…”

Discover Wildlife, April 19, 2026: It rains poison, blinds on contact – and its fruit could kill: Inside the ‘Tree of Death’

The nickname of this species – the ‘Tree of Death’ – tells you everything you need to know about its lethality. Native to the Caribbean, Florida, the Bahamas, and parts of Central and South America, the Manchineel can grow as tall as 15 metres, with every part of the tree containing strong toxins. Stand underneath its branches during rainfall and you can expect your skin to blister. Rub its sap in your eyes and temporary blindness is likely to ensue. It’s no surprise that we deemed it the most poisonous tree in the world. However, eat one of its small, apple-shaped fruits and the consequences will be even worse – in his journal, 18th-century explorer Nicholas Cresswell wrote: “They are rank poison. I am told that one apple is sufficient to kill 20 people…”

Washington, DC, PoPville.com, April 20, 2026: DDOT Started Spraying Ginkgo Trees Overnight!!

From DDOT: “The District Department of Transportation (DDOT) will begin the annual spraying of the female ginkgo street trees on Sunday, April 19, 2026. The spraying will occur overnight from 9:00 p.m. through 6:00 a.m., weather permitting. The annual spraying serves to reduce the formation of mature ginkgo fruit, which emits an offensive smell when it falls on sidewalks and roadways. DDOT will use the same spray it has used for the past 20 years, Shield-3EC 24(C)…

Tallahassee, Florida, WCTV, April 20, 2026: Risk of toppling trees increasing as months-long drought continues, Tallahassee arborist says

As an extreme drought continues throughout the Big Bend and South Georgia, a local arborist is warning that trees are feeling the stress. Mike Cross from Fielder Tree Service says this is the worst drought they’ve seen, and because of that, it’s important to be proactive to avoid a tree falling on your house or your car. He says that because the drought has lasted so long, trees are showing signs of stress, and they are essentially shutting down. He says trees don’t necessarily die overnight; it’s more of a slow decline, but since the drought has lasted several months, we’re right in the thick of it…

Syracuse, New York, Post-Standard, April 20, 2026: Volunteers plant 3,500 native trees to protect Skaneateles Lake

Thousands of brightly colored ribbons fluttered in the warm breeze blowing across an old farm field in Skaneateles on Saturday, marking spots where 3,500 saplings would soon take root. More than 160 volunteers planted eight native tree species, including River Birches, Swamp White Oaks, Red Maples, Sugar Maples, Silver Maples, Sycamores, White Oaks, and Tulip Poplars. “Planting native trees is one of the best ways to help clean up our rivers and lakes,” said Patrick Lynch, executive director of the Central New York Land Trust, a conservation nonprofit that organized the event…

Southern Farm Network, April 20, 2026: The beauty of the fringe tree in North Carolina landscapes

I can vividly recall the first time I ever laid eyes on a “Fringe Tree” (Chionanthus virginicus), also known as “Grandfather’s Beard.” I was driving to cover a NASCAR race at Charlotte Motor Speedway in May in the 1980s. (They bloom in April now.) The specimen was in full, glorious bloom in the front yard of a house somewhere on Highway 49 near the Uwharrie Mountains. I said, “Whoa, what is that?” I had an expert who had all the answers to our gardening questions, so I discussed it with my first WPTF Weekend Gardener co-host, Erv Evans. I described the magnificent flowers on this small tree or large shrub, and Erv knew immediately what I was talking about, of course. A perfect specimen cloaked in a mass of sinewy, creamy-white flowers is a sight to behold. They form a cloud of 4- to 8-inch-long panicles that resemble an old man’s beard. The more spectacular flowers are found on the male tree. There is an exceptional specimen in my neighborhood along my daily walking route, and I always get a kick out of seeing this showy bloom each spring…

San Francisco, California, Chronicle, April 14, 2026: Oakland council balks at nearly $1M fine to property owner who cut down 38 trees on Claremont Ave.

What began as a City Council hearing on a nearly $1 million fine for a man who city arborists said cut down protected trees on his Claremont Avenue property escalated into a heated debate about whether Oakland’s leaders would enforce their own laws. It ended without a decision — and the council will take it up again next month. The Tuesday hearing centered around Matthew Bernard and Lynn Warner, who city arborists say chopped down 38 mature trees without permits in 2021 and 2022 across their land, an adjacent city property and on neighbors’ lots. One arborist called it “the most egregious illegal tree removal case” in decades. Bernard, who was born in Nigeria and immigrated to the United States in 2001, said he and Warner wanted to build a future home for their family on the Oakland hills lot, and did “everything in their willpower” to respect the city’s laws. He said that he had acted on advice of an arborist to remove trees at risk of falling, or igniting during a wildfire. Bernard’s neighbors have also sued him over the trees that he cut on their property. The Oakland City Council was split — with some aligning with environmental advocates who felt the city needed to show it would not allow trees to be removed without consequences, and other council members expressing sympathy for a couple trying to navigate city permitting…

London, UK, BBC, April 13, 2026: Why are trees dying beside a major road and how can it be fixed?

National Highways is to trial a new way of planting trees alongside roads after admitting its “performance on tree planting has not been good enough”. Many thousands of trees have died since it planted 860,000 saplings between Cambridge and the A1, after completing the A14 upgrade in 2020. A further 165,000 trees and shrubs were planted between 2022 and 2023, and people nearby even took to planting their own trees along part of the road’s embankments. So what goes wrong after trees are planted – and can it be fixed?
National Highways. For decades, the A14 in Cambridgeshire was synonymous with slow-moving traffic, jack-knifed lorries and very long delays. That changed with the completion of a £1.5bn road improvement scheme, a 12-mile (19km) Cambridge to Huntingdon three-lane carriageway. About 270 hectares (670 acres) of habitat, including 40 native tree and shrub species, was planted as part of the project. In part, this was to mitigate for the removal of the many existing mature trees in the path of the re-routed road. “Trees are the soft estate along the highways and have multiple functions, including as a visual screen to hide it from surrounding landscape,” said Neil Davies, the chairman of the board of trustees at the Arboricultural Association, a charity which promotes awareness of tree care. “It can provide environmental screening, for noise for example, and it has a habitat and landscape value, including linking up with established habitats…”

London, UK, Guardian, April 14, 2026: ‘Nothing but tree skeletons’: record-breaking wildfires devastate US cattle country

In a normal year, the vast grasslands that roll across the American Great Plains would be starting to green. But at the center of the US, where most of the nation’s beef producers graze their herds, this spring brought fire instead of moisture, leaving more than a million acres black and barren. Multiple blazes raged across Nebraska, where the records for the annual acreage burned were obliterated in a single month. The state logged the largest blaze ever recorded when the Morrill fire cascaded across more than 642,000 acres (260,000 hectares) before it was contained in March. Fire is not a stranger to this region early in the year, when precipitation is low, grasses are dry and dormant, and strong winds howl through the open flats. While other parts of the American west face their biggest fire threats in summer and fall, grasslands are more primed to burn in the spring. In recent years, however, the risks have sharply risen, along with the size and impact of bigger blazes. “There is a changing wildfire dynamic in this region,” Dr Dirac Twidwell, a rangeland ecologist at the University of Nebraska, said, describing how a cycle of extreme conditions can create more catastrophes. Stronger summer storms seed the grasses that cure by winter. If there’s no protective snow cover, that browned vegetation ramps up fire risks – especially when the winds begin to blow…

New York City, The New Yorker, April 7, 2026: The Forest Service “Reorganizes” Under Trump

On a recent morning in central Vermont, where I live, it was raining, and the wood frogs had just begun to chorus. The sap run from the maple trees has started to dwindle as the branches begin to bud out. There is a timeless quality to a New England spring (or as timeless as anything can be in an age of rapid climate change), and part of that timelessness is the United States Forest Service, whose land boundaries I wander across most days on rambles through the woods. For more than a century, the Forest Service has been a fairly stable fact of life across vast swaths of the American landscape. Which is why last week, though in the big cities it was barely noticed amid the noisy horror of the war in the Middle East, there was much talk in rural America about the Trump Administration’s sweeping changes to—really, a gutting of—the Service, which operates under the purview of the Department of Agriculture. The Service’s regional headquarters will vanish, along with most of its research facilities and experimental forests—and also quite likely the sense of mission that has animated the agency for more than a century. The Forest Service controls a hundred and fifty-four national forests and twenty national grasslands—at a hundred and ninety-three million acres, that’s the second-largest land base, public or private, in the country, trailing only the Bureau of Land Management, which runs the nation’s federal rangelands. Sometimes the national forests are confused with the (much smaller) national-park system, which is understandable—often those parks butt up against the forests, and the uniforms of the two services look a little alike, and that’s before we’ve even considered the Fish and Wildlife Service. But, if you see people driving a minty-green pickup, they’re from the Forest Service, a job that implies a very particular history.The agency’s antecedents date to the nineteenth century, but it was at the beginning of the twentieth, under President Theodore Roosevelt, that it came into its own. Its first chief was Gifford Pinchot, a close friend of Roosevelt’s, who believed in protecting the country’s natural resources to help power its growth—he wanted there to be plenty of trees for the industrial needs of the country. “Unless we practice conservation, those who come after us will have to pay the price of misery, degradation, and failure for the progress and prosperity of our day,” he said. In his time, however, Pinchot’s biggest confrontation was with the forces of what might be called “preservation,” saving forests not for their industrial potential but for their intrinsic meaning and beauty…

Case of the Day – Friday, April 20, 2026

Posted on April 20, 2026 by TLRoot tagged.

I NEED THE MONEY, MAN

The old fence marked something … just not the boundary.

Poor (and we mean that quite literally) Mr. Hartshorne. He and next-door neighbor Coldsnow had had some disagreements about the property boundary about 25 years ago or so, and it’s fair to conclude that the Hartshornes probably don’t ask the Coldsnows over for tea and crumpets all that often.

In the late 90s, Mrs. Hartshorne went to her reward. Her death left Mr. Hartshorne saddled with debts, and he sold some of his timber to pay for it. He probably should have had his property surveyed (which would have cut into the timber profits, meager though those might be). Instead, Widower Hartshorne just told the logger that he could log to the old fence, which the Hartshornes had always thought was the property boundary.

It wasn’t. You know how these things go.

Sadly, had the timber sale been enough to cover Mr. Hartshorne’s debts, no one would ever have discovered that some of the trees he sold had actually belonged to his neighbor. But the proceeds were a little light. Thus, Mr. Hartshorne divided his property in order to sell some of it off.

When you divide property, you have to line up a surveyor to measure things out. The survey showed Mr. Hartshorne that the old fencerow was not the boundary after all.

His neighbor, Coldsnow (perhaps aptly named for all the sympathy he showed a poor widower), found out the same and realized that this meant that some of the trees Hartshorne’s logger had cut were on his land. Coldsnow sued for trespass, seeking treble damages under the Ohio treble-damages-for-timber-trespass statute. The jury agreed with Coldsnow that the cost to restore or replace the timber was $11,500.00 and that Hartshorne was reckless. The damage award trebled to $34,500.

Hartshorne complained that the proper measure of damages should have been the decrease in value of Coldsnow’s land, and anyway, he wasn’t reckless. He had just made a mistake, and regular negligence did not support treble damages under the statute.

The Court of Appeals didn’t buy it. Coldsnow’s successful conflation of a few isolated border skirmishes over an eight-year period into a boundary war convinced the Court that Hartshorne — knowing of Coldsnow’s prior aggressiveness in enforcing the boundary — should have gotten a survey. Frankly, we suspect that Mr. Hartshorne must not have cleaned up very well for court, because there’s very little in the written decision that supports a conclusion that he acted recklessly, and thus, no other reason the Court should have oppressed him so.

We don’t think much of this decision. The Court is saying, in essence, that the more unreasonable your neighbor is, the more careful you’re required to be. It certainly makes it hard to define a community-wide standard of care. Because I live next to a sweet old lady who would let me sell her front door if I wanted to, I should be held to a lower standard of reasonableness? That simply does not make sense.

Knowing that your neighbor is a curmudgeon is hardly a basis for saying that your failure to take his cantankerousness into account is reckless conduct.

Coldsnow v. Hartshorne, 2003-Ohio-1233, 2003 WL 1194099, 2003 Ohio App. LEXIS 1163 (Ct. App. Columbiana Co., Ohio, March 10, 2003). Coldsnow sued Hartshorne for cutting down some of the trees on Coldsnow’s property. Hartshorne began cutting down some trees in 1991, one of which was near the fence line between his and Coldsnow’s property. At the time, Coldsnow complained to Hartshorne about cutting down that tree, and Hartshorne stopped cutting down trees near the fence line. In 1995, Hartshorne had problems with people trespassing on his land to hunt. In response, Hartshorne bought some “no trespassing” signs and placed them all around his property. He also spray-painted orange circles on trees near the signs to bring them to people’s attention. Some of the trees he spray-painted were on Coldsnow’s property. Coldsnow complained about the signs and the spray paint to the Hartshornes. In 1997, Hartshorne’s wife died, and to pay the bills from her illness, Hartshorne decided to log and sell some of the trees on his property. He hired a forester, to do the logging and agreed to evenly split the profits with the forester.

Lawyers always advise their clients to dress well for court. Maybe Mr. Hartshorne ignored his attorney's advice. What else would account for this whacked decision?

Lawyers always warn their clients to dress well for court. Maybe Mr. Hartshorne ignored his attorney’s advice. What else would account for this whacked decision?

Hartshorne asked the forester to selectively harvest the forest in order to thin out the canopy to allow smaller trees to grow more quickly. He also showed the forester the property lines and asked him to only log trees more than 15-20 feet away from those lines. He did not have his property surveyed before hiring the forester, instead just showing him an old fence line which Hartshorne believed was the property line. Coldsnow became aware of the tree harvesting when Hartshorne’s property was being surveyed, so a portion of it could be sold as another means of paying off his wife’s debt. Coldsnow hired a surveyor, who found that some of the stumps from harvested trees were on Coldsnow’s property. Coldsnow sued, claiming trespass and a violation of §901.51 of the Ohio Revised Code, and Hartshorne claimed adverse possession, a claim that was dismissed before the end of the trial. The jury returned a verdict in favor of Coldsnow in the amount of $11,500 as the cost of restoration or replacement and found Hartshorne had acted recklessly. Accordingly, the trial court granted judgment in the amount of $34,500. Hartshorne appealed.

Held: The jury verdict was upheld. The Court found the jury’s damages award was reasonable. Hartshorne argued that the proper measure of damages was the diminution of the value of the real estate because of the logging. But in a case involving a violation of O.R.C. § 901.51, the Court said, the restoration/replacement cost of the trees is a proper measure of damages when the injured party intended to use the property for residential and/or recreational purposes, according to their personal tastes and wishes. As Coldsnow used his property in this way, the Court held, he did not first need to show a diminution in the value of the land before receiving restoration damages.

The Court also found that the jury’s conclusion that Hartshorne acted recklessly was not against the manifest weight of the evidence, because the evidence showed that Hartshorne had a history of ignoring the boundary line between the properties.

– Tom Root

Case of the Day – Friday, April 17, 2026

Posted on April 17, 2026 by TLRoot tagged.

CRUISIN’

Huey Lewis and Gwinneth Paltrow covered Smokey Robinson’s 1979 hit, Cruisin’, in a duet recorded in 2000. For most of you, that’s ancient history. But people like me, however, remember what we were doing when Smokey’s version first made the charts. Seems that ’79 was a pretty good year…

But we’re not cruisin’ down Memory Lane here. Instead, the cruisin’ we’re talking about today is all about trees. You’re surprised? You shouldn’t be – that’s what we do.

An interesting decision from the United States District Court for the Southern District of Illinois contains a trove of judicial findings of fact and application of law in a timber trespass case, including an explanation of timber cruising. The Court presided over a trial of an overzealous timber harvester, whose timbering activities went beyond the owner’s property and took 231 of Uncle Sam’s trees formerly attached to the Shawnee National Forest.

Now you’d think that 231 trees would be a trifling to a government that can approve multi-trillion One Big Beautiful Bills without reading the fine print, and then spend it all within about three weeks. But nothing’s too petty to escape the eagle eye of the United States Attorney.

The case is interesting not so much because the Court wisely slapped down the tree cutter’s claim that the Government had to show he intended the trespass (read our discussion a few days ago of Stukes v. Bachmeyer on that subject) — but because the Court carefully describes the technique of timber cruising and differentiates between stumpage value and timber value. You should read the full case: the Court finds tree cutter Kosydor liable through a carefully constructed wall of direct and circumstantial evidence, it finds against the Government on unjust enrichment, and it gives a shaky analysis of why the suit against Kosydor was filed within the statute of limitations.

And if you’re of a mind to read more, the U.S. Forest Service has a detailed handbook on tree cruising available for downloading, as well as some pretty slick software.

United States v. Kosydor, 2007 U.S. Dist. LEXIS 61621, 2007 WL 2409557 (S.D.Ill., Aug. 21, 2007). Larry Griffin, a conservation officer for the Illinois Department of Natural Resources, went to Terry Foster’s property to investigate a deer hunting complaint. He noticed timber cut from what appeared to be the Shawnee National Forest. At the time, the boundary line between Foster’s property and the Shawnee was not marked, and no survey had ever been conducted to establish it.

After Griffin reported matters to the U.S. Forest Service, the agency conducted a survey to establish the actual boundary line between Foster’s property and the Shawnee. Once the boundary was marked, the Forest Service initiated a timber cruise.

Timber cruising includes identifying tree species, taking stump diameter measurements, taking measurements from the stump to the top of the tree left on the ground, taking measurements of any logs left on the ground, and recording measurements on a tally sheet. A total of 231 tree stumps were counted on the Shawnee property in the area adjacent to Foster’s property. Information regarding each stump was recorded, including its species, its diameter, and the distance from the stump to the corresponding treetop left in the woods.

Kosydor owned and operated a timber logging business. He contracted with Foster to harvest timber from Foster’s land. His agreement provided for a 50/50 split of proceeds generally, with a 70/30 split on walnut veneer in favor of Foster. Although Kosydor, who was aware that Foster’s property bordered the Shawnee, denied cutting any trees in the National Forest, one of his employees testified emphatically that he had cut trees from the Shawnee National Forest under Kosydor’s direction.

As for the owner, Mr. Foster was unaware of anyone else other than Kosydor doing logging off of those areas during the period of time that he has lived there. The only reasonably available route for accessing and removing the wrongfully cut timber passes over Foster’s property and within very close proximity to his residence.

Held: Kosydor was liable to the government under the Illinois Wrongful Tree Cutting Act. The Court found that Kosydor had voluntarily assumed responsibility for determining the boundary line between Foster’s property and the Shawnee, despite a provision in their contract that Foster would be responsible for doing so, and that he was responsible for the entire logging operation. The Court noted that to prevail on the WTCA claim, the government had to prove that Kosydor intentionally cut or knowingly caused to be cut trees belonging to the United States, which he did not have the full legal right to cut.

Kosydor argued that the government had to prove he intended to trespass on National Forest land, but the Court disagreed. All the United States had to do, it held, was to prove he intended to cut the trees that happened to belong to the Government. Kosydor’s allegedly innocent mistake as to the location of the boundary line, the Court said, was not a defense to the WTCA claim. The Court observed that it is rational that the burden of establishing boundaries be placed on a defendant who orders wood to be cut. Otherwise, it would be advantageous for a defendant to cut now and worry about tree boundary lines later, since the maximum financial burden he would face would be the stumpage value of the severed trees.

One purpose of the WTCA is to discourage timber cutters from cutting trees without thoroughly checking out the boundary lines. The Act is meant to discourage not only the malevolent timbermen but also errant timbermen.

Under the WTCA, stumpage value is used to determine the timber’s underlying value. Stumpage value and timber value estimates, the Court said, both depend upon timber volume estimates, which in turn are based upon the raw data collected in the field by timber cruisers. Put another way, estimating the value of timber taken in a trespass involves a three-step process. First, a timber cruise is conducted, and measurements are taken in the field. Second, the collected measurements are then converted into volume estimates using established mathematical formulas. Third, those volume estimates are then converted into value estimates.

The distinction between timber value and stumpage value only comes into play during the third step of the process. Stumpage value is the value of standing trees or what one might pay for the right to cut and remove trees. Timber value is the value paid by mills for cut logs. In this case, the Court held, the stumpage value was about $12,500, reduced from the Government’s estimate by 10% to give Kosydor the “benefit of the doubt.” Because the trebling of stumpage value is mandatory under the Illinois WTCA, the total loss was about $37,500.

The Government had already reached a separate peace with Foster, who paid $18,000 to make his problem go away. This was deducted from the judgment, and Kosydor was ordered to pay about $19,500.00.

– Tom Root

Case of the Day – Thursday, April 16, 2026

Posted on April 16, 2026 by TLRoot tagged.

YOU’LL GET NOTHING AND LIKE IT

We’ve all had it happen to us. Our next-door neighbor gets drunk and rams his bulldozer into our best shade tree, gouging it up pretty badly. Then we have to sue, and while the torn-up grass he left behind and shrubs he rolled over get paid for, we get nothing for the tree. All because he wounded it but didn’t kill it.

What? You say it hasn’t happened to you? OK, but it did happen to Mike and Melissa in Huron County, Ohio. When neighbor Bob Tite got a little tight and rammed their tree, the trial court told them they’d get nothing for the wounded walnut, because it’s not dead. Dead trees we can figure the cost of, but a wounded tree… Well, it may die sooner instead of later, but who can say? The trial court said the damage is “speculative.”

Speculative? If Mike or Melissa had been rammed by the tight Mr. Tite, they would have been able to collect for their injuries without having to die first. And trees are people, too, right? Well, maybe not, but a tree probably shouldn’t have to die before a property owner can get compensation for damage to it.

Tinney v. Tite, 2012-Ohio-2347 (Ct.App. Huron Co. 2012). One summer day, Mike and Melissa Tinney heard a loud noise outside of their house. When they looked out through the window, they saw their across-the-road neighbor, Bob Tite – quite inebriated at the time – sitting on his bulldozer lodged hard up against a sizeable black walnut tree in their back yard. Deep ruts across their lawn and two smaller trees splintered on the ground marked the path the bulldozer had taken.

The Tinneys sued Bob for the damage. Their certified arborist expert said the damage to the walnut covered 25 to 30 percent of the tree’s circumference. He testified that the extent of the damage “ruined” the tree because, although it would not kill the tree immediately, it would result in “a slow decaying process” that would eventually compromise the structural integrity of the tree and cause it to become a hazard. The arborist was unsurprised that the tree was still producing leaves one year after the incident. He said the wound was starting to develop a callus as healing progressed, but the tree would weaken over time because the wound would not heal completely before decay set in. He could not say that the tree would die from the wound, but he said that the tree’s structural integrity is likely to become a dangerous factor in the future.

The Tinneys also called a witness who had a degree in landscape horticulture. He said the severity of the damage would probably stress the tree out and eventually the old walnut would die. He testified that as the years progressed, the Tinneys could expect more decay and more branches showing signs of decline. He said the tree’s decline and potential death was “not an immediate thing. It’s going to take some time” because “it’s a long process for this tree to decline.”

Bob’s sister testified in support of her brother, however, testifying that she saw the damaged black walnut the summer after the incident, and it looked “healthy, green, and alive” despite the wound on the trunk.

The Tinneys won a judgment of $3,410.00. The award covered the lawn and the saplings but included nothing for the wounded but still living walnut tree because the trial court found that giving them damages for the walnut tree’s injury would be “potentially temporary and speculative at best” since “its appearance remains the same.”

The Tinneys appealed.

Held: The Tinneys were entitled to damages for the injured walnut tree.

The Court observed that most decisions involving O.R.C. § 901.51 – the Buckeye State’s statute on wrongful cutting of trees – involve situations in which trees have been completely cut down, making it considerably easier to determine the full extent of the damage. In this case, the tree was still alive, though it was not guaranteed to remain so for decades to come. Nevertheless, the Court said, temporary damages to vegetation are recoverable, because it is a “fundamental rule of the law of damages is that the injured party shall be fully compensated.”

As a general rule, speculative damages are not recoverable. An award of damages must be shown with a reasonable degree of certainty and in some manner other than mere speculation, conjecture, or surmise. However, the Court ruled, if an appellant “establishes a right to damages, that right will not be denied because the damages cannot be calculated with mathematical certainty.” Even when permanent damages are awarded for trees that were cut down, temporary damages may still be awarded if the permanent damages alone do not fully compensate the plaintiff.

Both of the Tinneys’ experts testified it was reasonably certain that the tree was permanently damaged because it would not heal before decay set in. The Tinneys furnished precise calculations on the reasonable restoration value of the property. Therefore, the Court ruled, they had shown “with a reasonable degree of certainty what would be required to reasonably restore their property. The damages to the tree must have had some value, but the plaintiffs were awarded nothing, even if just a nominal amount for the temporary trespass onto their property.”

The Court of Appeals sent the case back to the trial court to calculate damages for the wounded walnut tree.

– Tom Root

Case of the Day – Wednesday, April 15, 2026

Posted on April 15, 2026 by TLRoot tagged.

TRIVIAL PURSUIT

Anyone who follows the law (or, for that matter, reads this blog) must from time to time read about a case that seems… well, just so trivial.

What can we say? Lawyers have to eat, too, and some of our brethren and sistren in the bar will take some ridiculous cases, just because the monied defendant will pay nuisance value to make the case go away.

Sometimes, hard to believe, a case is too trivial even for the court. In today’s case, we review one of three fact patterns from three separate apparently trivial cases that were wrapped into a single New York Court of Appeals decision (the Court of Appeals being New York’s highest court). If you’re a glutton for punishment, you can go right to the decision and read about the other two cases included in the decision, both of which involved falling on staircases. The fact pattern we’re focusing on is sufficient to provide an excellent illustration of the trivial defect doctrine.

As the Court puts it in the decision’s preface, “it is usually more difficult to define what is trivial than what is significant.” The trivial defect doctrine differs from the ancient legal maxim “de minimis non curat lex,” which – as my beloved high school Latin teacher, Emily Bernges, would have explained – translates as “the law does not concern itself with trifling matters.” Usually, “de minimis non curat lex” applies when the injury is insignificant, i.e., a hotel guest asked for a king-size bed and got a queen-size bed instead. The trivial defect doctrine, on the other hand, applies where the injury is quite real, as in victim-plaintiff Lennie Hutchinson’s trip and painful fall over a small protrusion in the sidewalk. No one doubted that Lennie was good and truly hurt. Instead, the question was whether the defect he tripped over was trivial. Thus, the “de minimis non curat lex” situation attends where the defect is real but the injury is trifling. The trivial defect doctrine applies when the obverse is the case.

Certainly, at first blush, it seems easy enough to dismiss Lennie Hutchinson’s complaint that he tripped over something a fraction of an inch wide and another fraction high. But as we’ll see, invoking the Trivial Defect Doctrine is not always easily done.

Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 19 N.Y.S.3d 802 (Ct.App. N.Y. 2015). Leonard Hutchinson was walking on a concrete sidewalk in the Bronx when his right foot “caught” on a metal object protruding from the sidewalk, and he fell, sustaining injuries. Hutchinson sued Sheridan Hill House Corp., the owner of a building abutting the site of Leonard’s fall. Under the New York City Administrative Code, Sheridan was responsible for maintaining the sidewalk in a reasonably safe condition.

Leonard described the metal object as being “screwed on in the concrete” and gave rough estimates of its dimensions. Sheridan’s attorney had the sidewalk inspected and found the object, cylindrical in shape, projected “between one eighth of an inch… and one quarter of an inch” above the sidewalk and was about five-eighths of an inch wide.

The trial court granted Sheridan summary judgment on the ground that it lacked notice of the defect. The appellate court affirmed, holding additionally that the metal object’s “minor height differential alone is insufficient to establish the existence of a dangerous or defective condition.”

Leonard took the case to New York State’s highest court, the Court of Appeals.

Held: The defect Leonard complained of was trivial as a matter of law and thus not actionable.

The Court said a defect alleged to have caused injury to a pedestrian may be trivial as a matter of law, but such a finding must be based on all the specific facts and circumstances of the case, not size alone. Indeed, a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it “unreasonably imperils the safety of” a pedestrian.

Liability does not turn on whether the hole or depression that causes a pedestrian to fall constitutes a trap. Many factors may render a physically small defect actionable, including a jagged edge, a rough, irregular surface, the presence of other defects in the vicinity, poor lighting or a location – such as a parking lot, premises entrance/exit, or heavily traveled walkway – where pedestrians are naturally distracted from looking down at their feet.

Liability from physically small defects is “actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot,” the Court said. “Attention to the specific circumstances is always required.”

Finally, the Court said that under the trivial defect doctrine, a defendant seeking dismissal on the ground that the alleged defect is trivial must first show that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact.

Sheridan met its burden by producing measurements indicating the metal protrusion was only about a quarter inch high and 5/8ths inch wide, together with evidence of the surrounding circumstances. Hutchinson tried to show features of the defect that would magnify the hazard it presented, arguing it had a sharp edge, was irregular in shape, and was firmly embedded in the sidewalk, so that “it could snag a passerby’s shoe.” Hutchinson argued he should not be required to look at his feet while walking on the sidewalk.

The Court was unimpressed. It said the characteristics Hutchinson identified were common to sidewalks. Instead, the Court said, the “relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.”

Here, the metal object protruding only slightly from the sidewalk was in a well-lit location in the middle of the walk at a place where a pedestrian “would not be obliged by crowds or physical surroundings to look only ahead.” The object stood was not hidden or covered in any way so as to make it difficult to see. Its edge was not jagged, and the surrounding surface was not uneven. Taking into account all the facts and circumstances presented, “including but not limited to the dimensions of the metal object,” the Court said, “we conclude that the defect was trivial as a matter of law.”

– Tom Root

Case of the Day – Tuesday, April 14, 2026

Posted on April 14, 2026 by TLRoot tagged.

LIGHTNING AND LIGHTNING BUGS

I was talking to my son in Texas (OK, texting, because he’s a 30-something, and texting instead of talking – sort of using the telegraph instead of the telephone – is what people under 40 do) about the standing water in the flat land that constitutes his extended back yard. It reminded me of Texas’s flat land that seems to this Midwesterner to go on forever – and that Texas is a place where a husband can shoot his wife’s lover, and the wife’s the one who gets charged.

That makes me a little gratified when what could have devolved into a gunfight ends up with the misbehaving defendants coming up on the short end of a jury verdict instead, and at the same time, a little pleased to bring you a Texas case.

This case — a perfect illustration of the problem we’ve talked about before with verbal contracts — shows the horrors that result when complex deals aren’t written down. Bachmeyer and the Stukeses made an oral deal: Bachmeyer could graze his herd on their land if he would spend his time and money fixing up their place. He did, to the tune of about $8,186.00, but clearly, some event must have intervened to sour the deal because the Stukeses refused to let Bachmeyer’s longhorns graze. “Be that way,” Bachmeyer may have replied, “but give me back the $8,186.00 I spent.” Strangely, they refused to even do that.

The other side in today’s hearing reminds us of the Stukeses, but that’s another story.

Bachmeyer sued, and the Stukeses obligingly counterclaimed, raising a host of complaints against him about trespass, shoddy fence-building, cutting down too many trees… the works. The trial thus turned into a regular furball, complicated further by the lack of a written agreement that would have settled a number of issues.

Things got even messier because it turned out the Stukeses didn’t do much better choosing lawyers than they did writing contracts. Their attorney let the trial court give a whacked-out jury instruction on the meaning of “trespass,” one which essentially required the jury to find that Bachmeyer intended or negligently trespassed, instead of merely intending the act that led to the trespass.

Mark Twain once observed that “[t]he difference between the almost right word and the right word is really a large matter — it’s the difference between lightning and a lightning bug.” And was he ever right! At law, one has trespassed if he or she intends or negligently enters onto the real property of another. That is, if you step off a public sidewalk onto my lawn in order to let a group of nuns pass, you have trespassed. You intended to take the step that you took and intended to end up on my grass. It matters not that you were being polite, or that it was for a good reason, or that the Pope would have wanted you to do so. It’s trespass.

If however, you remained on the sidewalk, but the nuns grabbed you and threw you bodily onto my lawn, you did not trespass – not that nuns would ever do such a thing.

The instruction the court gave led the jury to think that Bachmeyer had to intend that his incursion on the property was a trespass. If turned trespass into a “state of mind” offense that it has never been. The upshot of the wrong instruction — just the almost right words in almost right places — as well as the Stukeses’ lawyer being asleep at the switch, was a judgment against the defendants. The Stukeses were told to cover Bachmeyer’s $8,186.00 and, for good measure, to pay Bachmeyer’s legal fees in the amount of $17,500.00.

The Court of Appeals wasn’t terribly sympathetic… except on the fee award, which it sent back for reduction and recalculation. Speaking of fees, we bet that the Stukeses’ lawyer had some trouble collecting his.

Stukes v. Bachmeyer, 249 S.W.3d 461 (Tex.App., 2007). Bachmeyer and the Stukeses owned neighboring properties. They entered into an oral agreement to allow Bachmeyer to use the Stukeses’ property to graze cattle in exchange for Bachmeyer‘s agreement to replace the fence separating the two properties, to remove brush, and to otherwise improve the Stukeses’ property. The total value of Bachmeyer’s material and labor was $8,186.00.

When the Stukeses didn’t pay him, he sued. The Stukeses counterclaimed breach of contract, negligence, trespass, promissory estoppel, and a declaratory judgment. They claimed Bachmeyer failed to perform his services in a workmanlike manner because portions of the property had been flooded unnecessarily, requiring repairs to roadways and replanting of pasture; Bachmeyer removed trees that he wasn’t authorized to remove; Bachmeyer removed vegetation in a manner that left the property uneven and unsuitable for pasture; Bachmeyer failed to fertilize and to control weeds, or he did so in an improper manner; Bachmeyer installed fencing unevenly so that it encroached on the boundaries of the property; Bachmeyer damaged the Stukeses’ tractor; and Bachmeyer altered the natural terrain of the property in a manner that directed excess water runoff onto the Stukeses’ property.

The case was tried to a jury that found in Bachmeyer’s favor on all claims. The trial court entered a judgment ordering that the Stukeses take nothing by their counterclaims, that Bachmeyer recover actual damages from the Stukeses in the amount of $8,186.00 plus interest, and that Bachmeyer recover attorney’s fees in the amount of $17,500.00 for trial and $4,000.00 more if the Stukeses appealed.

The Stukeses promptly did appeal, claiming that the evidence was legally and factually insufficient to support the jury’s negative findings on trespass and negligence claims and that the evidence was legally insufficient to support the jury’s finding on Bachmeyer’s attorney’s fees.

Held: The verdict on trespass and negligence was upheld. It turned out that the trial court gave the jury a bad instruction on trespass. Trespass to real property occurs when a person enters another’s land without consent. To recover trespass damages, a plaintiff must prove that (1) it owns or has a lawful right to possess real property, (2) the defendant physically, intentionally and voluntarily entered the land, and (3) the defendant’s trespass caused damage.

But the trial court gave the jury a bum instruction. It told the jury that “[o]ne who intentionally trespasses upon land in possession of another is subject to liability whether or not the actor causes harm to the other. A trespass may also be committed through negligence.” The jury paid attention and found that Bachmeyer did not intentionally commit a trespass and that he did not negligently commit a trespass.

The problem was that negligence is not a required element of a trespass cause of action. What’s more, while a plaintiff has to prove that the defendant intentionally committed the act that constituted a trespass, the plaintiff doesn’t have to show that the defendant intended a trespass. If Bachmeyer had tripped on a tree root and fallen over the boundary, the act would not have been a trespass. But if he walked over the boundary — even if he didn’t know the boundary was there — he would be trespassing, because he intended the action, walking, that resulted in the invasion of the property. The jury charge, however, required the jury to find that Bachmeyer either intentionally or negligently committed a trespass.

The Stukeses did not object to these instructions. They were, therefore, required to show more than simple trespass, and the Court of Appeals was duty-bound to assume that the charge correctly stated the law. As for alleged overflow of water onto their land from Bachmeyer’s land, the Court ruled the Stukeses were heist by their own petard: they were unable to prove that Bachmeyer had negligently or intentionally trespassed with the water onto their land. As for the wandering fence, the Stukeses argued it encroached on their property in places. Bachmeyer testified he and the Stukeses had agreed on the encroachments. The Court held that the mere fact that the fence encroached on the Stukeses’ property was insufficient to establish that Bachmeyer intentionally or negligently trespassed. The jury was free to believe or disbelieve Bachmeyer’s testimony that the parties agreed to place the new fence as closely as possible to the old fence and that he did so. The Court deferred to the jury’s resolution of this credibility issue.

The Stukeses also argue that Bachmeyer trespassed by unnecessarily cutting down trees on their property. A landowner who intends to have timber cut on his property owes a duty to adjoining landowners to ascertain the property line of adjoining land with diligence and care. Here, the Court said, the Stukeses and Bachmeyer agreed that to replace the old fence, some of the trees would have to be removed. Bachmeyer testified that he told the Stukeses that he would have to remove some of the trees to put up a straight-line fence and that the Stukeses agreed to the tree removal. It is undisputed that Bachmeyer had the right to remove trees on the Stukeses’ property to construct the new fence. Whether he negligently or intentionally exceeded that right, the Court said, was inherently a fact question. The jury had factually and legally sufficient evidence to conclude that he did not.

– Tom Root