Case of the Day – Thursday, September 20, 2018

A GAME OF INCHES

Baseball, they say, is a game of inches. So are boundary trees, called “line trees” in the State of Pennsylvania (which, by the way, is called a “Commonwealth”).

Life imitates art, we guess, because last weekend we hauled away our 25-year old shed. We are replacing it with a newer, larger shed – complete with electricity, windows, and (if I have anything to do with it) a beer refrigerator. Behind the shed on or near my property line stands a line of arbor vitae. They weretiny little shrubs when the next-door neighbor two owners ago planted them. Now, they’re monsters.

I need to trim back a few of the arbor vitae before the concrete pad for the new shed gets poured. Having read some of the cases I have reported on over the past few weeks, I found the iron pin on one end of the property line and the post on the other, and ran a line through the trees. Sure enough, two of them have grown across the property line. Lucky for me, the ones I need to trim are still solidly anchored completely on my neighbor’s land. Those I can trim back, exercising my Massachusetts Rule rights.

It seems strange that it’s a matter of inches differentiating the trees I can trim with abandon and the trees that I cannot touch without my neighbor’s permission. (I have a great neighbor, so it is probably not a problem, but the issue is puzzling and irritating to me anyway, in an academic and legalistic way).

My situation is like the one in today’s case, which pits a car wash against a restaurant, over a row of pine trees that may or may not be on the boundary. Because of the vagaries of how the pines grew along the property line, no one really won: the restauranteur wanted the trees gone, and the car wash owner wanted the trees to remain.

In the end, some of the trees stayed, some did not. And it was all a game of inches…

Wolfinger v. Moates, 7 Pa. D. & C.4th 220 (Pa.Com.Pl. 1990). A line of pine trees separated the Wolfinger Car Wash property from the Moats restaurant property. Bill Moats received complaints from his patrons about the pine trees, which encroached on his parking lot, scratching cars and dropping pine cones everywhere, damaging his mower.

Bill decided to cut down the trees. He told his neighbor, “Suds” Wolfinger, what he planned. Suds was shocked. He liked the trees, because his customers parked under them, using the shade while they wiped down their cars. He asked Bill not to cut them.

Bill did anyway, taking down four of the 13 trees on his first day wielding a chainsaw. Suds raced to his lawyer, and together they raced to the courthouse for a temporary injunction. After Bill was forced to stop, Suds tried to make thr injunction permanent.

The court found that the two tracts of real estate shared a common boundary line, and 13 trees stood on or near the line. A survey showed that the first five trees, including the ones Bill had cut down, were all on his property. Lucky Bill. The next three straddled the boundary, which the Court referred to a “line trees.” Tree No. 9 was on Bill’s land, but some bark on the flare touched the boundary line. The last four trees were all on Bill’s land.

Held: Bill was not allowed to cut the three trees that straddled the boundary.

Pennsylvania law made it unlawful “for any owner or owners of any undivided interest in timber land within this Commonwealth to cut or to remove, or to cause to be cut or removed, from the said land, any timber trees, without first obtaining the written consent of all co-tenants in said premises.”

The Court held that the statute dictated the result that the owners of adjacent tracts of real estate own all trees growing on their common boundary line as tenants in common. Tenants in common are prohibited from unilaterally cutting down or removing such commonly owned line trees.

Applying the general rules of law governing tenancy in common, the Court held, “we conclude neither adjoining real estate owner may remove a tree growing on a common boundary line. Consequently, in the case at bar, notwithstanding the fact that only inches of the trunks of trees 6, 7 and 8 are on the boundary line between the properties of the plaintiffs and defendants, those trees are jointly owned by plaintiffs and defendants. Therefore, defendants may not remove them.”

Suds was not satisfied. He argued that Tree No. 9 was commonly owned as well because the bark of the trunk of that tree touches the boundary line. Citing the Illinois case Ridge v. Blaha, the Court held that the critical question was “whether any portion of the trunk of the elm tree grows on plaintiff’s property… ‘The law… is determined by the exact location of the trunk of the tree at the point it emerges from the ground.'” The fact that the bark of Tree No. 9 touched the line, the Court said, was insufficient to create a tenancy in common.

Trees 1 through 5 and 9 through 13, therefore, were Bill’s sole property. He could cut them down as he wished. But the injunction would become permanent on Trees No. 6 through 8, leaving them to provide both shade and pine cones.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, September 19, 2018

THE OYES DON’T HAVE IT

You wonder how a kerfluffle over some lilac bushes and a bridal wreath bush in a backyard can end up in the state supreme court. I mean, even back in 1983, legal fees were not insignificant. These bushes were on the back boundary of a couple of properties, so we’re not even talking curb appeal.

Regardless, Raymond Oye did not like the shrubs on the property line. He and his wife thought they were ugly. Neighbor Lou Ann Patterson did not. But Ray started tearing them out anyway. When Lou Ann protested, Mr. Oye said ‘Nay’.

There ensued a trial, an appeal and a trip to the Supreme Court in Lincoln, Nebraska, the principal purposes of which seemed to have been to enrich some lawyers and reach a result Mr. Oye should have seen coming like a freight train through a tunnel. Now mind you, we have no problem with enriching lawyers. We sort of see it as a happy ending. But not everyone feels that way, nor should they.

More than once, we’ve told would-be clients to save their money and suck it up, because they weren’t going to win. We often quote the old legal saw, “A bad settlement is better than a good lawsuit.” It’s an enduring aphorism, probably because it’s true.

In this case, the Oyes didn’t have it, and never did. Compromise with Ms. Patterson would have been much cheaper.

Patterson v. Oye, 214 Neb. 167, 333 N.W.2d 389 (Supreme Ct. Neb. 1983). Lou Ann Patterson owned a piece of property next to Ray and Jeanette Oye’s place. Their backyards abutted on a 132-foot north-south line, with Lou Ann’s property being slightly higher at the boundary line. Lou Ann’s house was built by Truman Clare in 1955, and she bought it in 1972. The Oyes’ residence was built in 1956 by Elmer Larsen, who planted lilac bushes and some beautiful bridal wreath on the south third of the boundary line.

Both Elmer and Truman said the bushes contributed to their privacy and improved the general appearance of their backyards. When Elmer sold the property to Lou Ann, the bushes were at least six feet high and had spread out by natural growth. Some other bushes grew on the property line, and Elmer trimmed them, but he never claimed to own the bushes.

Between 1973 and 1977, Lou Ann and the Oyes both maintained the bushes, although the Oyes performed more work than did Lou Ann. Nevertheless, Lou Ann considered the bushes to be growing on the boundary line and to be common property. She said that they provided her privacy and added to the aesthetic value of the property. The Oyes claimed that they owned the bushes inasmuch as Elmer had planted them and they had done most of the caring for the bushes. In fact, Ray Oye claimed that in 1973, Lou Ann told him she thought the hedge belonged to him.

The Oyes considered the brilliant purple of the lilacs and delicate whites of the bridal wreath to be ugly. Ray wanted to remove the hedge and build a rock wall, partly to divert runoff from his land. So Ray started to work, removing about 48 feet of bushes at the north end of the boundary line before Lou Ann objected. The neighbors’ efforts at compromise failed, so Lou Ann sued, alleging trespass and asking for damages and an injunction.

As of the time of trial, the remaining bushes were 12 to 18 inches wide at their base, growing on the boundary line, and were untrimmed, spread out and intermingled with other growth. The cost of replacing the bushes Ray had torn out was from $300 to $1,500.

The trial court found the  shrubs were on the boundary line, and issued an injunction against Ray and Jeanette cutting any more of the bushes. The court further ruled the Oyes owed Lou Ann $400.00 in trespass damages.

The Oyes appealed.

Held: A tree, standing directly upon the line between adjoining owners so that the line passes through it, is the common property of both parties, and neither owner may cut and destroy it without the consent of the other. When one common owner threatens damage to a commonly-owned tree or shrub, a court may issue an injunction to prevent the damage.

Traditionally, where the tree trunk impinges upon the lot line, “and when the respective owners have for years jointly cared for the tree, and divided the expenses of protecting it… then each has an interest in the tree sufficient to demand that the owner of the other portion shall not destroy the tree.” The equities in a boundary tree favors the shade and other benefits of a tree.

The Supreme Court of Nebraska found that Lou Ann and the Oyes owned the bushes growing on their common boundary line as tenants in common, and that the Oyes wrongfully removed and destroyed about 48 feet of those bushes, for which the trial court properly assessed $400 in damages. The Court found that if the Oyes continued on their course of conduct, they might “harm, damage, or destroy some or all of the remaining bushes growing on the boundary line, which would cause irreparable damage to plaintiff and unnecessary litigation, and that the terms of the trial court’s injunction are equitable.”

The Oyes argued that the injunction would impose years of unreasonable future hardship on them, and invite abuse from Lou Ann. The Court was unmoved: “Defendants are reminded that the law provides avenues of relief in the event they feel aggrieved. Where there is a change of circumstances they may apply to the court to vacate or modify the decree.”

To channel the late Rodney King, Mr. and Mrs. Oye, can’t we all just get along?

– Tom Root

TNLBGray

And Now The News …

Raleigh, North Carolina, News & Observer, Sept. 18, 2018: A tree crew battles to clean up after Hurricane Florence, one house at a time

Kathy Matthews awoke around 4:15 a.m. Monday to a tremendous crash and leapt to her window to find an 80-foot pine only feet from her face and barging into her kitchen. Six hours later, Umberto Castillo was on the other side of the window, astride the trunk, trying to figure out what to do about it with his chainsaw. It would take a crew of eight men, four trucks and a crane to get the pine off the Matthews’ house and into the street where it could be chopped up and hauled away. For Jimmy Everett, it was one of three houses in the Triangle his tree service handled Monday, whiling away the day on local jobs while waiting for the call to head down east. Everett Tree Service has two crews working in Fayetteville and this one in the Triangle, but their real work will begin when insurance claims start coming in from Jacksonville and Wilmington. Everett was hoping to have been down there as early as Saturday night, but the slow movement of Hurricane Florence and blocked and flooded roads have conspired to push that back. And back. And back…

Indianapolis, Indiana, WRTV, Sept. 18, 2018: Indy mom saved thousands of dollars after RTV6 story prompts action to clean up downed tree

An Indianapolis mother has a clean yard days after calling RTV6 to help figure out who’s responsible for removing a tree she says was dumped there. Ashley Lamb says the tree on her property fell on power lines near Kenwood Avenue and West 32nd Street a few weeks ago. Indianapolis Power and Lights came out to fix the power lines and trimmed the tree, throwing the debris in Lamb’s yard. She reached out to RTV6’s Graham Hunter last week to get help cleaning it up, saying she didn’t believe it was her responsibility because it was IPL’s mess. A spokesperson from IPL told RTV6 their crew trimmed the tree and left the debris because it was an “emergency situation” and state regulations say they don’t have to clean it up. And it wasn’t IPL that came to the rescue. “I woke up this morning and met with the gas company, and he said that by 11 it would be cleaned up and sure enough, they came out and within 35-40 minutes it was all gone,” said Lamb. A Citizen’s Energy crew that fixed a gas line in the area from the incident came back out Tuesday morning and took care of the tree, even though it wasn’t their responsibility…

Bloomington, Indiana, Indiana Daily Student, Sept. 18, 2018: What’s that awful smell on the way to class? It might be a Ginkgo tree.

Less than a week away, IU’s fall comes with a distinct and rather unpleasant reminder that it has officially arrived. If you have walked past Maxwell Hall or the Student Building in the later months of the year, your senses have likely been overwhelmed by an obnoxious odor. The source of the smell is not from someone who forgot to clean up after their furry friend, but rather IU’s infamous Ginkgo trees. “I had a class near them, and I purposely walked out of my way to avoid them,” sophomore Niki Pizzato said. “The Ginkgo trees are the worst and should be nowhere near here.” Adorned with fan-shaped leaves, these trees stand tall and mighty near the Dunn’s Woods. The smelly giants are hard to miss mixed in among the American Beech and Red Maple trees. “The female trees are the ones that give off the smelly fruits in the fall,” said John Lemon, Jordan Hall Greenhouse supervisor. When stepped on or left to rot on the ground, these apricot-like fruits emit an odor that has been likened to the smell of vomit, dead fish or canine droppings…

Chicago, Illinois, Tribune, Sept. 18, 2018: Park Ridge aldermen deny property owner’s appeal to cut down four trees at ‘Shibley oaks’ site

Several burr oak trees believed to be remnants of a 19th century savanna will remain standing — for now — on a piece of privately owned Park Ridge property following a vote by aldermen Monday night. The City Council voted to reject an appeal filed by 819 Busse Highway LLC that sought the removal of four trees at the northeast corner of Busse Highway and Shibley Avenue, property that has been dubbed “Shibley oaks” by residents. Initially, the property owner had applied to have all 15 trees on the largely vacant, .75-acre site cut down, but only three were approved by Park Ridge’s city forester, city documents showed. Later, 819 Busse amended its request to be allowed to remove five of the 12 remaining trees, but, at Monday’s appeal hearing before the City Council, that number was further reduced to four after additional testing occurred. Aldermen, following the two-hour appeal process, unanimously rejected the removal of three trees and voted 5-2 against the removal of a fourth tree that stands partially in the path of a sidewalk. In the case of the sidewalk tree, aldermen Nicholas Milissis and Marc Mazzuca noted that the studies suggested the tree actually is in a poor enough condition to warrant removal…

Gainesville, Florida, Sun, Sept. 17, 2018: Tree-cutting methods decried and defended

Leslie Evans said she understands why trees need to pruned near where she lives on Northwest 78th Avenue outside of Gainesville. “We appreciate it because we have limbs down,” Evans said. “They fall on people, cause property damage.” But Evans was alarmed when she looked outside her window over the weekend and saw how the oak trees were being cut on the stretch of Northwest 78th Avenue from County Road 235 to County Road 241. “Never before have we seen trees cut like this,” she said. Evans took cellphone photos as evidence of limbs being shredded indiscriminately. By not making straight cuts, Evans said, the oaks run the risk for possible disease. “It’s just terrible seeing the canopy being cut that way,” Evans said. Alachua County Engineer and Public Works Director Ramon Gavarrete said the trees were cut due to public safety concerns for drivers who use the road…

Indianapolis, Indiana, WRTV, Sept. 17, 2018: Woman off the hook for fines from tree left in yard by IPL; still may be responsible for cleanup

An Indianapolis woman won’t be facing a fine over a downed tree left on her property, but she’s probably going to have to clean it up herself. The tree was initially on the woman’s property when it fell on power lines near Kenwood Avenue and West 32nd Street a few weeks ago. Indianapolis Power and Lights came out to fix the powerlines and trimmed the tree, throwing the debris in the woman’s yard. She reached out to RTV6’s Graham Hunter last week to get help cleaning it up, saying she didn’t believe it was her responsibility because it was IPL’s mess. A spokesperson from IPL says their crews trimmed the tree and left the debris because it was an “emergency situation” and state regulations say they don’t have to clean it up. Initially, the Marion County Health Department had issued a notice to the family saying they had 12 days to clean the tree up or they could face fines up to $2,500 per day. But the health department says they decided to close the case after finding out that IPL had trimmed the tree and left it in the family’s yard…

Washington, D.C., Post, Sept. 17, 2018: Scientists thought they had created the perfect tree. But it became a nightmare.

Carole Bergmann pulls her small parks department SUV into an aging 1980s subdivision in Germantown, Maryland, and takes me to the edge of an expansive meadow. A dense screen of charcoal-gray trees stands between the open ground and the backyards of several houses. The trees are callery pears, the escaped offspring of landscape specimens and street trees from the neighborhood. With no gardener to guide them, the spindly wildlings form an impenetrable thicket of dark twigs with three-inch thorns. Bergmann, a field botanist for the Montgomery County Parks Department, extricates herself from the thicket and in the meadow shows me that what I take to be blades of grass are actually shoots of trees, mowed to a few inches high. There are countless thousands, hiding in plain sight in Great Seneca Stream Valley Park. If it were not cut back once a year, the meadow would become like the adjacent screen, wall upon wall, acre upon acre of black-limbed, armored trees worthy of Sleeping Beauty’s castle. “You can’t mow this once and walk away,” said Bergmann, who began her 25-year career in the department as a forest ecologist but has been consumed by an ever-pressing need to address the escape of the Bradford pear and other variants of callery pear, a species that originated in China, along with other invasive exotics…

Cleveland, Ohio, Plain Dealer, Sept. 14, 2018: Cleveland considering new rules to protect the Forest City’s trees, expand the tree canopy

The city is considering new rules aimed at preventing removal of trees at development sites and expanding the Forest City’s tree canopy.
The rules are part of legislation now before Cleveland City Council. They would require developers to submit tree preservation plans before development projects could proceed and provide for civil penalties for damaging trees or removing them without approval. “This gives the urban forestry the authority, the ability, to put a dollar value on our trees,” Councilman Matt Zone, one of the ordinance’s sponsors, said in an interview. The ordinance would require tree preservation plans be prepared before development projects on one acre or more of land and any development project for four or more apartments, condominiums or townhomes on any sized lot…

Atlanta, Georgia, Journal-Constitution, Sept. 16, 2018: ‘He was a fighter in the beginning’: 3-month-old killed when tree falls on home

A 3-month-old boy died when a saturated pine tree fell and crushed a mobile home in Gaston County. Police said the tree landed on the home on Moses Court near Dallas around 12:45 p.m. Sunday. The child, identified by his family as Kade Gill, was taken to the hospital where he was pronounced dead. The family was home in the living room when the tree landed on the home, family members said. “He was unresponsive,” father Olen Gill said. “As I approached the room, I see them pumping on his chest, and that time, I knew that it wasn’t good.” Olen Gill said his wife Tammy Gill was holding Kade on the couch when they were struck by the tree. “The tree had divided us,” Olen Gill said. “I’m in the kitchen and she’s in the living room on the couch…”

Odessa, Texas, American, Sept. 16, 2018: Tree roots pose little risk to home foundation

Fortunately, trees roots are lazy. Despite the hype, they usually pose no real risk to your home’s foundation when the trunk is at least a modest distance away from the structure. Generally, the minimum tree planting distance from a foundation is ten feet. However, to ensure that you can sleep well at night, you could plant it just a few feet further away. Still, when planting a tree only six feet from your home, your home will probably not experience any foundation damage. It’s difficult for homeowners to find solid information on the risk factors. The disagreement among good arborists is probably due to individual experiences, their understanding of how roots grow and historic differences between building codes. Roots grow where conditions are favorable. They’ll almost always grow away from solid objects. This tends to benefit homeowners when it comes to foundations. Most building codes require foundations to be poured at least twelve inches deep. Roots can easily lift sidewalks, driveways, and other shallow concrete structures as opposed to a foot-deep foundation supporting the substantial weight of an eight-foot brick wall buttressed by other walls…

San Diego, Union-Tribune, Sept. 16, 2018: The march of the tree root marauders

One of the great surprises in community mediation is how much distress trees cause in neighborhoods. And the tree problems you cannot see are usually more vexing than the ones you can. Above ground, a tree is a resplendent gift from nature. If it starts growing too large for its surroundings, there usually is ample time to anticipate the damage and plan on mitigation. Below ground, tree roots can be marauders that destroy infrastructures where no one is looking. By the time wreckage becomes apparent, repair bills could be substantial – and they won’t get any smaller with the passage of time. An early step in any conflict management is to reframe the dispute as a shared problem the parties can tackle together. When we pool ideas and assets, we can generate solutions that wouldn’t surface in us-vs.-them legal channels. Such cooperation is useful when grappling with invasive trees because the rules of this game are jumbled. Assigning individual liability can be as bewildering as it is contentious. California tree laws are clear about one thing: The health of a live tree takes precedence over the property rights of a person. From there, the legal landscape gets tangled…

Beijing, China, Xinhua News Agency, Sept. 16, 2018: Growth rings in trees synchronize on planetary level, scientists say

The growth rings in tree trunks are synchronized on a planetary level, according to recent findings by scientists at Italy’s National Research Council (CNR) and Padua University. Thanks to a four-year study named COSMIC, the scientists said they now have a precise method for dating past atmospheric events that occurred on a global scale, and can equip themselves in case they repeat in the future. “Year after year, plants record everything that happens on the planet,” researcher Mauro Bernabei from the CNR Institute of Tree and Timber (IVALSA) told Xinhua. “We discovered that there are no holes in this chronological sequence…”

Charlotte, North Carolina, WBTV, Sept. 13, 2018: Charlotte’s tree canopy problematic during Florence

If you drive down almost any road in Myers Park, the first thing that may strike you is the large tree canopy. “This is the whole reason Myers Park exists is tree canopy,” said Ed McLamb, a Myers Park resident. “We feel like the canopy defines the neighborhood,” said Mary Engle, who lives along Queens Road West. Although beautiful, during storms, the big trees can cause major problems if they come down. Many trees in Myers Park are well over 100 years old, and with saturated ground, many won’t be able to remain standing. “If we have a significant amount of wind, more are going to blow over,” said McLamb. He remembers Hurricane Hugo. “We lost a huge tree in our backyard. Trees were all over the road. You couldn’t go anywhere,” said McLamb. Residents like Mary Engle do their best to care for the trees year round. “We have our trees checked every year. We check for dead limbs and the health of the tree because if it falls, it will probably fall right on the house,” said Engle…

Washington, D.C., WJLA-TV, Sept. 13, 2018: Warning signs your trees are at risk

Crews with Adirondack Tree Experts were busy on Thursday. “We probably have had more people calling saying, ‘Hey, I’ve had a dead tree on my property for quite some time and now I’m concerned that the hurricane is coming and it’s going to fall on my house,” said owner, John Anna. Anna started Adirondack Tree Experts in 1994. He says the more rain we get, the more that homeowners need to be aware of their trees. “Any tree is a concern when the ground is wet,” he said. “Any tree.” He says taking care of your trees and keep a close eye on them is crucial…

Sonora, California, Union-Democrat, Sept. 13, 2018: Twain Harte Homeowners concerned about accelerated PG&E tree removals

Pacific Gas and Electric’s accelerated wildfire risk reduction program, with more than 100 contractors trimming trees and cutting down trees near power lines in numerous neighborhoods in Tuolumne County, have raised concerns this week among Twain Harte residents. Jim Johnson, vice president of Twain Harte Homeowners, showed where at least 17 trees have been marked for trimming or removal on a neighbor’s property near his place on Strauch Drive just north of Twain Harte Golf Club. “These are healthy trees,” Johnson said Thursday. “Half of them are cedars, which beetles don’t like. The sad thing is a tree like this, a healthy 150-foot Ponderosa, there doesn’t seem a need to cut that.” Twain Harte Homeowners have about 800 members in the Twain Harte area, Johnson said. On Wednesday, John Kinsfather, the president of Twain Harte Homeowners, sent an email to Alisha Lomeli, a vegetation management representative with PG&E…

Scientific American, Sept. 13, 2018: New tree species discovered — and declared extinct

Sometimes you don’t know what you’ve got until it’s gone. In 1951 a member of the Nigerian Forestry Service collected specimens of a rare tree in the highlands of northwestern Cameroon. It was soon identified as a member of the Vepris genus, a group of 80 or so large tree species that range throughout the African continent and the islands of Madagascar and Zanzibar. Unfortunately, the specimens were incomplete, and full identification of the species was not, at the time, achieved. Now, nearly 70 years later, the species has been named—just in time to etch that name on its tombstone. A paper published Aug. 24 in the journal Willdenowia identifies the species as Vepris bali and declares its likely extinction due to agricultural development in the tree’s only known habitat, the Bali Ngemba Forest Reserve. Researchers examined the original specimens and used molecular phylogenetic studies to identify the new species. The authors—from Royal Botanical Gardens, Kew and the University of Yaoundé I—note that previous attempts to locate this species and complete the 1951 specimen, including “repeated targeted efforts” between the years 2000 and 2004 and at least six other studies, failed to turn up any sign that the tree still exists…

Columbus, Ohio, Dispatch, Sept. 12, 2018: 18-year-old Ohio woman dies after tree strikes car she was riding in

An 18-year-old college freshman has died after the car she was riding in was crushed by a falling tree. Sydney Kleptach died Monday at an Akron hospital, one day after the tree fell onto the car driven by her father. Kleptach and her father, Brian Kleptach, 48, were traveling in a 2017 Chevrolet Malibu around 4:15 p.m. Sunday when the car was struck by a falling tree in the 3700 block of Everhard Road NW in Stark County. Sydney was a 2018 graduate of GlenOak High School and a student at the University of Mount Union, where she was majoring in biology and French and on the women’s soccer team. According to her team biography, she was the president of GlenOak’s National Honor Society, lettered twice in soccer and earned four academic letters, and served as a student ambassador and board of education representative. She also earned several academic and athletic awards. And logged more than 900 hours of community service while in high school…

Atlanta, Georgia, WXIA-TV, Sept. 12, 2018: Worried about Florence knocking trees on your home? Here’s what to do

While it’s likely too late to get trees near your home removed, there are some things you should do now to prepare. “We’re getting a lot of phone calls. I’ve got five people in the office answering phones, and they have been busy all day today,” Patrick George, owner of Heartwood Tree service said. “Everybody wants their tree that they’ve been worried about for months and months taken down today (Monday) or tomorrow (Tuesday).” But unfortunately, George says theirs is not a same-day industry.  “Our crews are booked it for several weeks out,” he said. But there are some things you can do now. “Prune your trees to make them a little bit smaller,” George suggested. “That gives them the same amount of strength but less weight that they have to hold up and less wind resistance.” George said he’s admittedly worried about this hurricane season in particular. “We’ve had good regular rainfall; we haven’t had that much serious heat, so the trees have been growing like crazy, they’ve got these giant sails that pick up all this wind…”

Curiosity.com, Sept. 12, 2018: You Can Find Clones of Isaac Newton’s Apple Tree All Over the World

History is full of apocryphal stories — tales like the one of George Washington and the cherry tree, or Marie Antoinette and her infamous dessert suggestion. In all likelihood, they aren’t actually true, even if they play an important role in how we understand these historical figures. Probably the most famous apocryphal tale from science is that of Isaac Newton and the falling apple that inspired the theory of gravity. As it turns out, that story might be more legit than you’d expect. And the proof is in a scattered forest of apple trees growing all over the world to this very day…

Daytona Beach, Florida, News-Journal, Sept. 12, 2018: NSB: 16 trees too many to cut down for planned neighborhood

Sixteen historic trees skirted death Tuesday night when commissioners took city staff’s recommendation and told the developer of a property off Old Mission Road to find a way to save them. The vote was 4-1. “Sorry, gentlemen,” Mayor Jim Hathaway told officials representing KWD 43 Investments, “you’re going to have to come back with another plan.” The Coral Gables-based land owner had asked permission to tear down the oaks on their property at the corner of Old Mission Road and Eslinger Road before they build on the parcel that sits south of State Road 44. The site, according to a historic tree removal application, has 55 such trees on the property. Staff recommended leaders deny the developer’s request and require a change in design to save at least some of the trees…

Looking for an older news story we featured on this page? Check our Prior News Links page.

TNLBGray140407

Case of the Day – Tuesday, September 18, 2018

RIGHT THING, WRONG REASON

The right things usually get done for the wrong reasons. The Internet, which knows all (or soon will, according to the AI people), attributes the aphorism to James Carville, but I remember the same line being penned by Washington columnist Drew Pearson in a political potboiler of his, The President, which I read as a lad in the summer of 1971.

Sorry, James, When it comes to credit for this particular witticism, you didn’t build that.

Today’s case is a reminder to all the states that claim the Massachusetts Rule, the Hawaii Rule, the Virginia Rule and so on that there is nothing new under the sun. Well before those rules came into being, the Washington State Supreme Court grappled with the encroachment issue, and reluctantly decided an early version of the Hawaii Rule: where there is encroachment and that encroachment causes “sensible harm,” the adjoining landowner may either trim back the offending branches and roots, or sue to force the tree’s owner to do it.

Ironically, settling the law (the right thing to do) probably got done for the wrong reason (bad blood between neighbors). We have seen how the Massachusetts Rule began in Michigan. Now, it seems the Hawaii Rule may have started in Washington.  Sorry, Hawaii, you didn’t build that.

Truly, there’s nothing new under the sun.

Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (Supreme Ct. Wash. 1921). A.L. Ryland had owned his place for many years when new neighbors, the Gostinas moved in next door. A.L. had a Lombardy poplar tree growing about two feet from the Gostina property, and a fir tree in the rear of the property, also about two feet of the division fence. On top of that, A.L. maintained a creeping vine, growing in a rustic box on top of a large stump, a few feet from the division fence, and some raspberry bushes and a rosebush growing near the property line.

About a year after they moved in, the Gostinas had their lawyer write to A.L. to tell him the branches of his fir tree were overhanging the Gostina property and dropping needles, and that A.L.’s ivy was running under the fence and onto the Gostinas’ lawn. The lawyer demanded that A.L. cut off the branches of the fir tree at the point where they crossed the boundary line, remove the ivy from the Gostinas’ property, and to keep the tree and ivy from encroaching ever again.

A.L. was unimpressed, so the Gostinas brought a suit for abatement of a nuisance. (And we thought foolish litigation was a recent phenomenon!) A.L. argued that the lawsuit was merely for spite and vexation, and that the Gostinas knew the tree and ivy were there when the moved in. Only after a neighborly disagreement, A.L. claimed, did the Gostinas sue.

The trial court did not care about any such nonsense, holding that where branches of trees overlap adjoining property, the owner of the adjoining property has an absolute legal right to have the overhanging branches removed by a suit of this character.

The Gostinas appealed.

Held: A.L.’s tree and ivy were a nuisance, and the Gostinas’ claimed damages, although ridiculously minor, were enough to permit them to maintain a nuisance action against A.L. Ryland.

The Court agreed that under Washington law, trees and plants growing into the yard of another constituted a nuisance, “to the extent to which the branches overhang the adjoining land. To that extent they are technical nuisances, and the person over whose land they extend may cut them off, or have his action for damages, if any have been sustained therefrom, and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

From ancient times, the Court said, it has been a principle of law that the landowner has the exclusive right to the space above the surface of his or her property: “To whomsoever the soil belongs, he also owns to the sky and to the depths. The owner of a piece of land owns everything above it and below it to an indefinite extent.” On the same principle, the Court held, the branches of trees extending over adjoining land constitute a nuisance, at least in the sense that the owner of the land encroached upon may himself cut off the offending growth.

A property owner may not “maintain an action against another for the intrusion of roots or branches of a tree which is not poisonous or noxious in its nature. His remedy in such cases is to clip or lop off the branches or cut the roots at the line.” What it came down to, the Court held, was that “the powerful aid of a court of equity by injunction can be successfully invoked only in a strong and mischievous case of pressing necessity” and there must be “satisfactory proof of real substantial damage.”

Here, the Court said, what the Gostinas complained of was “so insignificant that respondents did not even claim them or prove any amount in damages–but simply proved that the leaves falling from the overhanging branches of the poplar tree caused them some additional work in caring for their lawn; and that the needles from the overhanging branches of the fir tree caused them some additional work in keeping their premises neat and clean, and fell upon their roof and caused some stoppage of gutters; and that sometimes, when the wind blew in the right directions, the needles blew into the house and annoyed the occupants. We cannot avoid holding, therefore, that these are actual, sensible damages, and not merely nominal, and, although insignificant, the insignificance of the injury goes to the extent of recovery, and not to the right of action.”

Since the Gostinas had the statutory right to bring an action for abatement of a nuisance, and had shown some “actual and sensible damages, although insignificant,” they are entitled to go forward with the suit. “The remainder of the trees will doubtless shed their leaves and needles upon the respondents’ premises,” the Court prophesied, “but this they must endure positively without remedy.”

The Court was not really that fooled: this was a spite suit, but that alone was not disqualifying. While the Gostinas’ action against A.L. “has some appearance of being merely a vexatious suit,” the Court said, A.L. did “admit that the tree boughs do overhang respondent’s lot to some extent. There is sufficient foundation in fact to sustain a case…”

– Tom Root

TNLBGray

Case of the Day – Monday, September 17, 2018

BLINDED BY THE LIGHT

revveduplikeadeuce140721None of us really knew what the lyrics were to that great piece of mid ‘70s music by Manfred Mann’s Earth Band (written and first recorded by Bruce Springsteen). You know, Springsteen wrote the second line as “cut up like a deuce.” Not until Manfred Mann rewrote the line to be “revved up like a deuce,” did the mondegreen of the line famously become a reference to a feminine hygiene product.

But we digress. We’re really talking light and soybeans here. Recently, the vigilent treeandneighborlawblog editors read a book review for a new tome on light pollution called The End of Night.” It reminded us how soybeans like the dark, and about the plight of Farmer Smalley.

Farmer Smalley raises soybeans in Wyandot County, Ohio. When the Ohio Department of Transportation installed high mast lighting at the US 30/US 23 interchange, Mr. Smalley’s soybeans would not flower and flourish under the bright nighttime lights. This is apparently not an unknown effect. He sued the DOT in the Ohio Court of Claims, seeking damages in a self-written complaint.

soybeans140721The Clerk heard the matter administratively, and concluded that the lights were not a nuisance, apparently because of the benefit such lights had for the motoring public. However, the loss of two acres of beans did constitute a constitutional “taking of property” for which he should be compensated. The damages were pretty meager for 2007: $512 plus his $25 filing fee.

Still, the Clerk did not dismiss out of hand the notion that light pollution could constitute a nuisance in some circumstances, those where the social benefit of the light was insignificant next to the interference caused the neighbor.

A few months later, the full Court of Claims reversed the judgment. It held that the Ohio constitution did not permit compensation for consequential damages to property, only for the actual taking of property. Because of that. Farmer Smalley’s loss was not compensable.

Even so, both the Court and the Clerk apparently accepted the notion that the light pollution damaged Smalley’s property. It was just that the damage, however real, could not be compensated.

lightpoll140721Smalley v. Ohio Dept. of Transportation, 142 Ohio Misc.2d 27, 869 N.E.2d 777, 2007 -Ohio- 1932 (Ohio Ct.Cl., Mar. 15, 2007). Farmer Smalley has a soybean field next to a four-lane highway intersection. The Ohio Department of Transportation constructed high-mast lighting at the intersection in 2005, and since then, and Farmer Smalley’s soybeans failed to mature during the growing season. Smalley was forced to mow down two acres of failed crop, a failure he attributes to the lighting. He lost about 120 bushels of beans, which — at $6.00 a bushel — were worth $720.

Farmer Smalley sued the DOT in the Ohio Court of Claims. DOT admitted it had installed the mast lighting, which it said was intended to “safely illuminate the expressway.” DOT argued the installed lights “are the safest and most efficient lighting source given the traffic flow and lighting required at interchanges.” It admitted that light did “occasionally bleed onto adjacent property [and] there is little doubt that defendant’s light encroaches upon plaintiff’s property.” It argued, however, that it could not be held liable for any damage to plaintiff’s bean crop caused by its light encroachment. It also argued that Farmer Smalley’s cost to raising the beans was $256.47 an acre, reducing his net loss to $512.94.

Held: The Clerk of the Court held that the light pollution was not a nuisance. However, he found that the actual harm suffered by farmer was different in kind from harm suffered by general public, as required to establish a taking under “Takings Clause” of Ohio Constitution.

It appears that farmer Smalley filed his complaint himself, because DOT flailed about in its defense, as if it wasn’t sure where the farmer was going. It argued at length that its lighting was not a nuisance, because Smalley had offered no proof that DOT was negligent in erecting the lighting. It asked the Court to weigh the benefit that the high mast lighting gave to thousands of motorists against the harm the lights caused plaintiff in destroying two acres of his bean crop.

lights140721The Clerk sagely noted that DOT “… essentially proposed that plaintiff should have to bear a financial burden for his crop loss in a situation where he was legally using his land for a specific valuable purpose and the harm caused was attributable to the acts of DOT.”

He defined an absolute nuisance as a distinct civil wrong arising or resulting from the invasion of a legally protected interest, and consisting of an unreasonable interference with the use and enjoyment of the property of another. Such a nuisance was the doing of anything without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his or her legal rights, or the collecting and keeping on one’s premises of anything inherently dangerous or likely to do mischief, if it escapes, which, escaping, injures another in the enjoyment of his legal rights. A qualified nuisance, on the other hand, was distinguished from absolute nuisance as being dependent upon negligence 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.

Considering the utility of the high mast lighting to the motoring public, the Clerk correctly concluded that the lighting was neither an absolute nor qualified nuisance. But that didn’t mean that Mr. Smalley was out of luck. Under the “Takings Clause,” any taking — whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises — entitles the owner to compensation. In order to establish a taking, a landowner must demonstrate a substantial or unreasonable interference with a property right, and such an interference may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises. Something more than loss of market value or loss of comfortable enjoyment of the property is needed, to constitute a taking under the “Takings Clause:” governmental activity must physically displace a person from space in which he was entitled to exercise dominion consistent with the rights of ownership. To constitute a taking actual harm suffered by the plaintiff must differ in kind rather than in degree from the general public.

Later, the full court reversed on different grounds, holding that the Ohio Constitution did not permit compensation for less than a full loss of land.

Nevertheless, the notion that light can constitute a nuisance and that a property owner suffering from light shining onto his or her land from another location, appears to be accepted.

– Thomas L. Root

TNLBGray

Case of the Day – Friday, September 14, 2018

YOU PAYS YOUR MONEY AND YOU TAKES YOUR CHANCE

We have seen two divergent views on boundary tree ownership, the Colorado view that it depends on the intent of the property owner, the Illinois view that it is a simple matter of where the tree is growing, and the Connecticut view that both owners can hack at the branches and roots of a boundary tree with abandon.

Today, a Georgia court adds to the mayhem. In its view, a boundary tree is not the common, undivided property of either owner. Instead, it is owned in “severalty,” a term only a lawyer could love that means. Owner A is exclusive owner of the parts of the tree on her property. Owner B is exclusive owner of the parts of the tree on his property. In addition (and this is a big addition), each owner is deemed to have granted an “easement of support” to the other, meaning the owner cannot do anything to his or her side of the tree that would kill the other side.

This sounds a lot like the Connecticut rule, except that the owners could mess a little with the trunk, as long as it does not make a mess of things on the other side. What is really interesting is that the case focuses on each owner’s obligation to not the tree become dangerous to the other. That’s an aspect of boundary tree ownership we haven’t contemplated before.

Just maybe Georgia has something here. We would be more amenable if it could be described without employing the term “severalty.”

But what does this suggest if you’re in one of states that is not Connecticut, Minnesota, Georgia, Illinois or Colorado? Well, in that case, you pays your money and you takes your chance.

Willis v. Maloof, 184 Ga.App. 349 (Ga.App. 1987). Mike Maloof was severely injured when a tree fell on him. Throughout the over thirty years he and defendant Bill Willis had lived as next-door neighbors, Mike had always assumed the tree belonged to Bill. It turned out that Mike was wrong: the tree actually grew on the boundary between their properties. Mike claimed the tree was diseased and that Bill should be liable in negligence for failure to remove or remedy the hazard created by the tree. The jury could not reach a verdict, and the trial court denied Bill a directed verdict.

Bill appealed.

Held: Adjoining landowners of a boundary tree do not own the tree as tenants in common, but instead, each owner holds an interest “in severalty” on the part of the tree which rests on his or her side of the line, with an easement of support from the other. Thus, the Court said, Bill is entitled to a directed verdict in his favor, and owes Mike nothing.

The Court admitted that the issue of ownership and control over a boundary tree was one that had never been decided Georgia. The Court analogized the issue to the rule applicable to party walls. By owning the part of the tree on his or her property, each of the landowners “has an interest in that tree, a property in it, equal in the first instance to, or perhaps rather identical with, the part which is upon his land; and in the next place embracing the right to demand that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole.”

Like the case with a party wall, the parties owning a boundary tree have a duty to maintain the tree and take reasonable steps to guard against any hazardous condition the tree may pose.

In this case, the Court said, Mike had presented no evidence that Bill had breached his duty to maintain the tree. The owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition. He or she has no duty to “constantly check all… trees for non-visible rot as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.” Bill worked around the base of the tree often as he cultivated a vegetable garden in his yard near the tree, year after year. He denied any knowledge that the tree was diseased and denied seeing any evidence which would lead him to suspect the tree was unhealthy.

Mike’s expert, who inspected the tree after it fell, testified that at least three visible conditions told him the tree was diseased and posed a hazard. The bark at the base of the tree curved under instead of outward, indicating to the expert that the tree was virtually devoid of roots. A cavity or hollow in the side of the tree and fungus growing on the bark indicated to the expert that the tree was decaying. The expert said that in his opinion the average person’s “attention would have been drawn” to these conditions.

The Court didn’t bite. “Even assuming defendant should have noticed these conditions, the appellate panel found, “no evidence was presented from which a jury could find that defendant should reasonably have known the tree was diseased. The expert witness presented testimony from which a jury could find that the tree was in fact diseased. However, the testimony of the expert witness did not establish that a layman should have reasonably known the tree was diseased.”

Even though each owner had exclusive right to the part of the tree on his side of the boundary, the distinction was not relevant in regard to the duty to maintain a single, indivisible tree. The disease in this tree was systemic and not confined to one side of some imaginary line. Therefore, the duty to maintain the tree could not be apportioned on some pro-rata basis depending upon that percentage of the girth of the tree which grew on either side of the property line.

Bill’s only duty was that of the reasonable man. The law did not charge him with an expert’s understanding about the inspection, care and maintenance of trees. Even Mike admitted he did not think the tree in question was dangerous or defective. Several other neighbors also testified the tree was bearing green leaves at the time it fell and did not appear to be diseased. Because Mike failed to present any evidence that Bill was or should have been aware that the tree was hazardous, Bill was entitled to a directed verdict should have been granted.

– Tom Root

TNLBGray

Case of the Day – Thursday, September 13, 2018

NIGHT OF THE ATTACK ROOSTERS

madrooster170227There is little doubt that we in this country enjoy pampering like nowhere else. Animals we once ate for sustenance (or because they tasted good) are now our pets: not only dogs and cats, but Vietnamese pot-bellied pigs, hedgehogs, and even emotional support ducks.

And when we jet off to LA for the Oscars, or Cannes for the movies, or even Munich for Oktoberfest, we need a pet sitter to watch our precious Fluffy. Someone like Josie Gilreath, Professional Pet Sitter.

Come to think of it, Josie – a proud member of the National Association of Professional Pet Sitters (motto: “The ONLY national non-profit organization for professional pet sitters”) – might not be available. She’s still convalescing after a particular harrowing pet sitting experience after an encounter with Bruce and Jodi Smith. While watching the Smith’s chickens, Josie was injured by the Smiths’ attack rooster, who was apparently doing what attack roosters do, which is attack. The kerfluffle left Josie with a serious infection having long-term consequences.

Josie sued, complaining that the Smiths were liable, but the trial court wasn’t buying it. Maybe it was Josie’s 9 years of experience as a professional pet sitter. Maybe it was the sign in the Smiths’ yard that said “CAUTION – AREA PATROLLED BY ATTACK ROOSTER SECURITY CO.” Maybe it was the fact Josie had worked for the Smiths before, and had been warned, “Rooster Will Attack!” Of course, it could have been that Jodi Smith had advised Josie to use a garbage can lid for defense against the rooster.

Whatever the reason, the court held Smiths had not withheld any information from Josie, and that by taking the pet-sitting job, Josie had assumed the risk that the rooster would assault her. Thus, she collected nothing.

sign170227Interesting story, one might think, if you own a rooster. True enough, but there’s a tree lesson here. Josie held herself out as a specialist in pet sitting. Like a homeowner who knows she has a danger tree and hires a tree service to remove it, the Smiths had no duty to give Josie any special warnings. Ordinarily, the Court said, “there is no duty to give warning to the members of a profession against generally known risks.”

Josie was a professional pet sitter with 9 years of experience, and admitted she had a responsibility to educate herself about the animals she takes care of, yet failed to do so for roosters. The Smiths cannot be blamed, the Court held, if Josie failed to inform herself of those risks.

Likewise, a tree service hired to remove a dangerous tree has no right to expect the homeowner to warn of dangers associated with the job.

Gilreath v. Smith, Case No. A16A1747 (Ct.App. Georgia, Feb. 17, 2017). While pet sitting for Bruce and Jodi Smith, Josephine Gilreath was attacked and injured by the Smiths’ rooster, which caused a serious infection with long-term consequences. Gilreath sued, but the trial court granted summary judgment in favor of the Smiths on the ground that Gilreath assumed the risk. Gilreath appealed.

Held: Josie Gilreath cannot collect, because she assumed the risk.

For 9 years, Josie was self-employed as a pet sitter doing business as Crabapple Critters. During that time, she took care of “horses, dogs, cats, all sorts of animals.” Josie belonged to the National Association of Professional Pet Sitters, an organization so august that it even has a website. Although she had worked briefly on two farms, taking care of horses, prior to working for the Smiths, Josie did not have any training or experience with chickens. As a pet sitter, Josie has a responsibility “to a point” to educate herself about the kind of animals she would be working with, but that prior to accepting the job with the Smiths, she had not done any research on how to care for roosters and had not heard anything about their temperament.

For several years before the incident, the Smiths had three dogs and some chickens, including at least one rooster named Sam. The chickens, including Sam, were kept in a coop that had two signs on it, one that said “WELCOME” and one that said “CAUTION AREA PATROLLED BY ATTACK ROOSTER SECURITY CO.” Sam had previously attacked Jodi Smith and her mother, but the Smiths never told that to Josie.

Josie provided pet sitting services to the Smiths twice before, including taking care of the chickens. Once, the Smiths hired Josie to watch the animals for four days, and instructed her on feeding the chickens. This included, among other things, opening the door to the coop to fill up the water dishes. Jodi Smith told Josie, “You do not have to fill them up if you feel uncomfortable with Sam the Rooster. I use a garbage can lid to separate myself from him.” Another time, Jodi gave Josie a note to “Just throw food into cages. Rooster will attack!”

The third time, the Smiths gave Josie no further instructions, but asked her to collect eggs from the chickens. When she tried to do so, the rooster attacked. It was ugly.

The Court held that Josie assumed the risk of injury, because she fully appreciation of the danger involved and without restriction of her freedom of choice either by the circumstances or by coercion, deliberately chose an obviously perilous course of conduct.

The Smiths were obligated to show that Josie had knowledge of the danger; understood and appreciated the risks associated with such danger; and voluntarily exposed herself to those risks. The Court said the knowledge does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

Here, the Court said, Josie had been warned of the relevant danger during her prior pet sitting, that the rooster would attack and that a garbage can lid was useful for controlling the rooster. Josie claims that if she had known that the rooster had actually attacked Jodi Smith and Jodi’s mother, she “probably” would not have taken the job. But the Court said that was a distinction without a difference: being warned that the rooster “will attack” is the same as having been warned that the rooster had attacked in the past.

Josie has no evidence the Smiths had superior knowledge of the risks associated with the danger. Although the Smiths knew that the rooster had attacked two people, there is no evidence that they knew that the rooster could cause wounds or infections of the sort that Josie suffered. Ordinarily, there is no duty to give warning to the members of a profession against generally known risks. And Josie, an experienced and professional pet sitter, admitted that she had a responsibility to educate herself about the animals she takes care of yet failed to do so for roosters. “The Smiths cannot be blamed,” the Court said, “if Gilreath failed to inform herself of those risks.”

Finally, the Court said, Gilreath admitted that she chose to take the job knowing that she had been told that the rooster would attack. She admitted that she could have turned down the job but chose not to. The Court found Gilreath had equal knowledge of the danger and risks and acquiesced in exposing herself to the risk without taking any precautions.

– Tom Root

TNLBGray