Case of the Day – Friday, February 23, 2018

THE GRASSHOPPER AND THE ANT

grasshopper140314Perhaps the problem with America these days is that too many people want something for nothing. President Trump wants respect. Nancy Pelosi wants the half of Americans who pay nothing in federal income tax to get even more. And we all want the people we disagree with – and face it, they’re all wrong – to shut the hell up.

Here’s a Vermont case about someone else who wanted something for nothing, a modern take on the grasshopper and the ant. About 50 years ago, the brothers Stanley partnered up to buy some woodland. But only industrious brother George, a busy little worker ant, ponied up the cash for the place, paid the taxes, paid the rent, and managed the affairs of the woodland. Grasshopper John was too busy doing whatever grasshoppers do.

After about 45 years of this, ant George started getting tired of grasshopper John never paying his fair share. Ant George was out a lot of investment, and he decided it was time to pay it back. So he sold the timber on the land for about $46,000.

Suddenly, grasshopper John was very interested in the goings-on, and he sued ant George. But he didn’t just want half of the proceeds. Surely that would be unfair. Instead grasshopper John hires three wise old owls as expert witnesses, and they opine that the timber was really worth anywhere from $60,000 to $80,000. Plus, he retained the services of a foxy old lawyer, who told him he could get treble damages for ant George’s wrongful cutting of the timber (plus a legal fee for the fox).

foxylawyer140314The trial court suspected that John was more snake than grasshopper, but it nevertheless didn’t have much choice but award him half the value of the timber. The court selected the lowest of the various estimates given by the several owls who testified as experts, still awarding the grasshopper one half of the $61,785 value of the timber. The court refused treble damages.

The grasshopper was furious! He had been denied what was fair, namely all of it! He wanted the timber valued at $80,000, with his one-half share trebled to $120,000. Fortunately, the wise Supreme Court upheld the trial court, finding that treble damages for wrongful cutting don’t apply where one owner of the land — even if he’s an industrious ant — gives permission. Still, the ant lost $31,000 of his $46,000 to his brother, the grasshopper, whose investment had never amounted to a farthing.

grasshopperb140314The moral, boys and girls, is that a slothful existence and a good lawyer beats hard work and careful investment any day.

Stanley v. Stanley, 928 A.2d 1194 (Sup.Ct. Vt., 2007). Some 50 years ago, brothers John and George Stanley bought a perpetual lease of a 100 acre wooded lot in Victory, Vermont. Defendant George paid the entire purchase price, but the brothers owned the lot as tenants-in-common. From the beginning of their ownership, George paid the annual rent as well as property taxes when they were assessed.

In 1965, he received money from Portland Pipe Company for the right to lay pipe across the property. In the spring of 2002, he hired a logging contractor to harvest and sell the trees from the lot. The logging operations were completed that summer. George didn’t discuss the logging operation with plaintiff John until after it was completed. George figured that “since he had been paying all the expenses relating to the property, he should be able to make the decisions relating to the land.” George got $45,803.32 for the timber removed from the lot. When John learned that timber was being cut, he took pictures of the operation and tried to reach George — who had neither an iPhone nor broadband — without success.

John didn’t try to stop the logging, but after it was over, he sued his brother, seeking an accounting, partition, treble damages under 13 V.S.A. §3606, costs of the action and attorney’s fees. While he couldn’t afford to share the expense of the land with his brother, John apparently found his checkbook when it came time to hire expert witnesses. He presented testimony from three experts on the value of the timber cut. Thomas Hahn, a private consulting forester, presented two different methods of determining the value of the timber cut from the property, the prevailing market price of a unit of wood in the summer of 2002 based on trade publications (using which he concluded that the value of the timber was $61,785.79), and the “timber cruising” or “sampling” method that would support a finding that the fair market value of the timber was $82,000. Stanley Robinson reviewed the logging contractor’s summary of mill slips and trip tickets, and Alan Bouthelier on his observations from visiting the property prior to the logging. The testimony of these two experts supported a finding that the fair market value of the timber cut was approximately $80,000.

woodpile140314The trial court refused to rely on Hahn’s “sampling” method, dismissing it as too speculative. Instead, it found that the fair market value of the timber cut was $61,785.79, and that plaintiff was entitled to half of this amount. It also ruled that the treble damage statute does not apply to actions between tenants-in-common for the sale of common property, and granted a request for partition. Following the hearing, George gave John $22,901.66, half of what he had been paid for the timber.

None of this was good enough for the rapacious John. So he appealed.

Held: The trial court was affirmed. The Supreme Court held that Vermont’s timber trespass statute — which reads in part that if a person cuts down trees belonging to another person “without leave from the owner,” the injured party can recover treble damages — is plain and unambiguous. The Court said that the statute’s language presupposed that the injured party had ownership rights to the exclusion of the party from whom treble damages are being sought.

The statute is a punitive one, intending to deter intentional trespass and wrongful taking of another’s timber. Because George had an undivided ownership interest in the trees at the time of the logging, the treble damages statute simply does not apply. He simply was not among the intended targets of the statute, those “‘tree pirates’ and ‘arboreal rustlers’ who trespass on another’s property and remove timber to which they have no right.”

John also argued that the trial court erred when it held that the “timber cruising” or “sampling” method of determining the quality and quantity was too speculative. The Supreme Court held that because the trial court, after evaluating several different methods, relied on testimony of the expert as to one of the methods to determine the fair market value of the timber cut and sold, the Supreme Court would not second-guess it on whether it could have used an alternative method.

– Tom Root
TNLBGray140407

And Now The News …


Chicago, Illinois, Tribune, February 22, 2018: Battling buckthorn: Regional tree initiative enlists help from homeowners to eradicate invasive plant

Collectively, Chicago region forest preserves, including those in Lake and Cook counties, spend more than $1 million annually to eradicate buckthorn and honeysuckle, two of the area’s most invasive plants, according to the Chicago Region Trees Initiative. But the population of these species, especially buckthorn, continues to expand, said Matt Ueltzen, a restoration ecologist with the Lake County Forest Preserves. Indeed, 42 percent of Lake County’s tree landscape is buckthorn, the highest percentage in the region, with Cook County coming in second at 32 percent, according to the initiative. Those figures include not only the natural areas managed for the public by forest preserve districts and others, but also land owned by parks, businesses and homeowners. Seventy percent of the trees in our region are on private land, according to Lydia Scott, director of the Chicago Region Trees Initiative, which focuses on Cook, DuPage, Kane, Kendall, Lake, McHenry and Will counties…

Angola, Indiana, Herald-Republican, February 22, 2018: Man injured in tree work mishap dies

A Fremont man has died as a result of injuries he suffered in a Feb. 6 tree-trimming accident in Bethel Township in Branch County, Michigan, on Tuesday. Brian Thompson, 56, sustained a fractured skull in the accident, Branch County Sheriff’s Office authorities say, after he was hit in the head by a falling tree the afternoon of Feb. 6. Thompson was flown from the scene off of Clearwater Road near Cranson Road by an air ambulance and was taken to Parkview Regional Medical Center for treatment. Thompson died at Parkview. Thompson was a farmer and had worked at Dexter Axle, Fremont…

New Brunswick, New Jersey, Rutgers University, February 22, 2018: Trees have sex? Rutgers researchers have all the answers

A few years ago, Rutgers researcher Jennifer Blake-Mahmud was working on a botany project in Virginia when colleagues pointed out a striped maple, a common tree in the understory of mountain forests from Nova Scotia to Georgia.  “They told me, ‘We think it switches sex from year to year, but we don’t know why,’ and I said, ‘No way! How can that be?’ Blake-Mahmud said. “And that was when I decided I needed to find out what was going on.” In research published in the journal Trees: Structure and Function, Blake-Mahmud reports that striped maples not only change their sex periodically, but that they can wait until the last minute – three weeks before flowering – to do it. The switch appears to be triggered by physical damage, which can prompt a branch to flower female if it’s cut off a male tree…

Kalispell, Montana, Flathead Beacon, February 22, 2018: Mitchell to stand trial in June for destroying county-owned trees

Flathead County Commissioner Phil Mitchell is scheduled to stand trial in June, nearly a year after he was charged with felony criminal mischief for allegedly killing six cottonwood trees at a public park near his home on Whitefish Lake. Mitchell was previously set to stand trial this month, but prosecutors and the defense filed a motion to reschedule the trial for June as they continue to prepare their cases… According to court records, on July 11, a Flathead County Parks and Recreation Department employee found six dying or dead cottonwood trees in a half-acre county-owned park known as Lake Park Addition just south of Whitefish Lake State Park. The trees appeared to be girdled, a tactic that involves removing a thick strip of bark ringing the tree’s circumference, causing the tree to die. The Flathead County Sheriff’s Office opened an investigation into the destruction in July and retained an arborist who determined it would cost more than $30,000 to replace the trees…

Hartford, Connecticut, Courant, February 21, 2018: Jon Lender: State would pay $6.25 million in 2007 Parkway deaths caused by tree’s fall

State officials have agreed to pay a $6.25 million settlement to end a decade-old legal case arising from the deaths of physician Joseph Stavola and his wife, attorney Jeanne Serocke-Stavola, on June 9, 2007, when a 70-foot tree fell on their Volvo as they drove on the Merritt Parkway in Westport. Their sons, then 9 and 7, witnessed their parents’ deaths from the back seat. A three-page settlement agreement of a pending Superior Court lawsuit against the state was filed with the General Assembly Tuesday by the office of Attorney General George Jepsen. It was signed by lawyers for the state and the family of the surviving sons, James and William Stavola — who after the tragedy were brought up by Joseph Stavola’s brother and sister-in-law in the Hartford area. Tuesday’s filing starts a formal approval process under which the state House and Senate will have three alternatives: vote to endorse the settlement; reject it by a three-fifths vote in each chamber; or do nothing, which would result in automatic approval of the settlement after 30 days…

Honolulu, Hawaii, KHNL-TV, February 21, 2018: Task force working on removing hazardous trees on Big Island

A task force says it is working on eradicating albizia trees on the east side of Big Island within the next several weeks. The Hawaii Tribune-Herald reported Monday that the Hawaii Island Albizia Task Force has planned four control projects costing $1 million. Big Island Invasive Species Committee Manager Springer Kaye says the first project is nearly complete. The first project targeted all albizia within 328 feet (100 meters) of a 1-mile (1.6-kilometer) stretch of the Puainako Extension where the more 100 feet (30.5 meters) tall trees have caused significant traffic hazards…

University of California – Riverside, February 20, 2018: Tropical trees use unique method to resist drought

Tropical trees in the Amazon Rainforest may be more drought resistant than previously thought, according to a new study by researchers at the University of California, Riverside. That’s good news, since the Amazon stores about 20 percent of all carbon in the Earth’s biomass, which helps reduce global warming by lowering the planet’s greenhouse gas levels. In a study published Monday in the journal New Phytologist, a team led by Louis Santiago, a professor of Botany & Plant Sciences, found that tropical trees in Paracou, French Guiana have developed an unusual way to protect themselves from damage caused by drought. The trees make use of an abundance of living cells around their xylem to conserve and redistribute water in drought conditions. The xylem (the scientific name for wood) is the non-living tissue of a plant that transports water and nutrients from the soil to the stems and leaves. Santiago said studying drought in one of the wettest places on Earth might seem counterintuitive, but recent droughts, including record heat and drought during the 2015-16 El Niño, are already threatening the Amazon Rainforest. If trees die because of those droughts, the carbon they store will be released into the atmosphere, where it will further exacerbate global warming…

King, North Carolina, The Stokes News, February 21, 2018: Frustration of a tree farmer

I have been a tree farmer for over 50 years. I am approaching the age of 77 and I remember reading “Weekly Reader” as required reading when I was in the fifth grade. One of the frequent articles in the “Weekly” was about how good it was to plant trees and the amount of money you could make off thinning pulpwood and cutting of saw timber. It encouraged young people to be good conservationist like the President encouraged with the WPA and CCC programs, during the Great Depression. I have never been so disappointed at anything I have ever done as to plant trees and lose four percent per year so the economic royalist can profit from the creation of the oversupply of trees resulting in cheap prices of trees and allowing great profits going to the saw and pulp mills. President Trump has made an effort to reduce “dumping” of timber and lumber from Canada into the United States in an effort to reduce the oversupply. As a result of the lobbying efforts of the mills, the tree farmer has been given more regulations and fines if we don’t plant trees. Many mills have sold off their tree farming lands because it is easier to pay lobbyist to force the private landowner to grow trees at a loss than to grow it themselves. Once a landowner plants trees, it takes 40 years or more to grow merchantable timber. Some small amount of pulpwood may be cut after 20 to 25 years. A tree farmer can’t decide to get out of their tree crop after one year for they make a commitment for 40 years until the trees are mature. Most tree farmers will have one timber harvest in a lifetime and are not fully informed of what is happening to them…

Watertown, New York, Daily Times, February 20, 2018: North country researchers seeking to produce ‘sweeter’ maple trees

Could cloning create “sweeter” maple trees that could ultimately reduce the cost to produce syrup? That’s what maple researchers here are trying to find out, using funding from the Northern New York Agricultural Development Program. “If producers can plant and harvest from trees with naturally higher sugar sap concentrations, productivity would increase and costs would decrease,” Cornell University plant pathologist Keith L. Perry, director of the Uihlein Foundation Seed Potato Farm in Lake Placid, said in a release. “If we can clonally propagate what are known as ‘sweet trees,’ there would be an opportunity to establish a nursery crop industry as well.” “We’re glad we have the support of the senators to do this kind of work up north,” added Michele E. Ledoux, coordinator of the Northern New York Agricultural Development Program, which is funded through the state Senate and administered through the state Department of Agriculture and Markets. “The potential for maple sugar in Northern New York is phenomenal.” Mrs. Ledoux, also executive director at Cornell Cooperative Extension of Lewis County, said the research project, while unique for maple, is similar to research done here and elsewhere on potatoes and other plants and trees to improve production…

Chicago, Illinois, Tribune, February 20, 2018: After removing dead tree from garden, can that wood be used in fireplace?

In response to the question about using a dead white ash tree for firewood: Winter is a good time to remove large dead ash trees, as well as do some pruning, as there will be less impact on the garden since the ground is frozen and perennials are dormant. Perennials right next to the stump may get damaged when the stump is ground out. If you plan to plant perennials or small shrubs in the same spot as the stump, ask the vendor to grind the stump extra deep. Remove the resulting wood chips and replace with garden soil when the weather permits. Dig the whole stump out if you want to plant a replacement tree in the exact same spot. Otherwise, shift the new tree over a bit to save on digging the stump out. Another thing to consider is the increase in sunlight once the trees are removed. Some of the existing garden plants may need to be moved to a shadier spot in the garden, while others that were struggling in the shade may perform considerably better with the additional sun. Your white ash was likely killed by an insect called the emerald ash borer that has decimated the ash tree population in the Chicago region over the last few years, with white ash (Fraxinus americana) being the last to go. Very few ashes will survive the damage caused by this insect unless the tree is being treated with an insecticide. It is best to remove the dead ash tree in your garden this winter as the potential for falling limbs increases quickly for ash trees once they die. You will be able to use the wood from dead ashes in your fireplace, but do not transport the ash logs out of Illinois. Let your arborist know that you would like the logs cut into firewood length. Consider renting a log splitter if there is a large volume of wood to split…

The Dalles, Oregon, Chronicle, February 20, 2018: City: Good time to trim trees, bushes

The City of The Dalles is encouraging residents to trim trees on or near their properties that block public walkways and streets. Except in the downtown area, property owners or occupants, not city staff, are responsible for trees on their property or on the right-of-way next to their property, according to information provided by the city. Check trees and shrubs that extend over sidewalks, streets and alleys. Mid-February through mid-March is a good time of year to make your property safe, city staff said. Proper pruning is important for the health of trees and shrubs. The Arbor Day Foundation offers a series of “Ask an Arborist” how-to videos to demonstrating the ABCs of pruning. Other resources can be found on the internet or by consulting professionals…

Savannah, Georgia, WSAV-TV, February 20, 2018: Tree cutting on I-16 and I-95 helps driver safety

You may have noticed trees being cleared from the medians along I-16 and I-95. According to the Georgia Department of Transportation, the goal is driver safety. “Over the last three years, we have seen 472 fatalities from striking trees which we consider fixed objects,” says GDOT spokesperson Jill Nagel. “Sixty percent of fatalities is motorists leaving their lane and crashing and fifty percent are hitting fixed objects.” Removing these trees Nagel says will save lives. “We are trying to clear the road ways so when someone departs from their lane, we are giving them more room of a clear zone.” But cutting was not the original idea.“We were talking about maybe thinning out. But because of the age of these mainly pine trees, we couldn’t thin them out because the root systems are all grown together…”

United Press International, February 19, 2018: ‘Loneliest tree in the world’ offers evidence of Anthropocene’s beginning

Scientists have discovered evidence of the beginning of the Anthropocene, the newest geological epoch. The evidence came in the form of a “golden spike” found in the heartwood of the “loneliest tree in the world.” Though scientists have shown that humans have been influencing the planet’s ecosystems for thousands of years, many consider the sudden spike in radioactive carbon caused by the testing of nuclear weapons in 1950s and 1960s the mark of humanity’s newly dominant role as chief driver of climatic change. Now, scientists have found direct evidence of that golden spike in a lone tree, a Sitka spruce found on Campbell Island, which lies in the middle of the South Ocean. The spruce is called the loneliest tree in the world because the next nearest tree lies 125 miles away in the Auckland islands. “The impact that humanity’s nuclear weapons testing has had on the Earth’s atmosphere provides a global signal that unambiguously demonstrates that humans have become the major agent of change on the planet,” Christopher Fogwill, a professor of glaciology and palaeoclimatology at Keele University, said in a news release. “This is an important, yet worrying finding…”

Omaha, Nebraska, KETV, February 19, 2018: Wind topples giant tree onto cars neighbors claim city was supposed to have removed

Neighbors who live on Lincoln Street near 30th said a large tree that fell should have been removed months ago. Alissa Miller said she was in the shower around 11:00 am Sunday when she heard the news. “My roommates’ boyfriend was banging on the door, ‘hey there’s a tree on your car,’ are you kidding me?” Miller said. The large tree and many broken branches landed on top of two cars parked in the street. ‘The wind took it is what broke it today,” Miller said. Miller and her roommates said the city marked the tree with a green “X”, meaning it should be removed, and had even put up a warning sign last fall. “Eventually it blew away and the city never came back to take the tree down,” Lilly Pitts said…

Yahoo Finance, February 19, 2018: Plant the right tree in the right place this spring

Georgia Power works every day to keep reliability high across the state and, with Georgia Arbor Day marking the start of the spring planting season this month, the company encourages customers to make the right landscaping choices around homes and businesses. Planting the right tree in the right place may help decrease the likelihood of a power outage in the event of a storm while ensuring that power lines are clear of trees and brush provides also easier access to the company’s power lines, which means quicker power restoration after a storm. Georgia Power recommends dividing your yard into three specific planting zones – the Tall Zone (trees 60 feet or higher), the Medium Zone (trees no taller than 40 feet), and the Low Zone (trees and shrubs no taller than 25 feet). Trees and shrubs in the Low Zone may be planted 15 feet from electric utility wires. In addition to helping customers select the right trees to plant, Georgia Power maintains 160,000 line acres and 24,000 miles of transmission and distribution lines under guidelines set by the Federal Energy Regulatory Commission (FERC) and the North American Electric Reliability Corporation (NERC). These maintenance activities are an essential piece of the company’s commitment to ensuring reliable service for 2.5 million customers in every corner of the state…

Centralia, Washington, Chronicle, February 19, 2018: Centralia Closes Fort Borst Park Playground Due to Risk From Dying Trees

The city of Centralia announced Friday it would close the Fort Borst Park playground as of this afternoon, citing concerns from an arborist regarding the stability of two ailing Douglas firs and forecasted stormy weather for the weekend. “The area will be taped off for public safety,” city attorney Shannon Murphy-Olson wrote in an email. “The city is in the process of contacting a tree removal company to make arrangements for topping of the tree(s) of concern.” Certified arborist Ray Gleason, of Cascade Tree Experts, spoke in the public comment portion of Tuesday’s Centralia City Council meeting expressing grave concern for the safety of children at the playground, along with frustration at a perceived lack of interest in the problem on the part of city staff. “I’m extremely concerned and I hope that everyone is,” he said Tuesday. “There’s probably greater than 50 branches directly on top of that swing set … I cannot believe this has been allowed…”

Mother Nature Network, February 15, 2018: Tree rings reveal our past — and our future

Trees are timekeepers. Count the concentric growth rings circling the heartwood of a chopped log and you’ll know a tree’s age. It’s a fun fact, for sure, but tree-ring dating (technically known as dendrochronology) goes far beyond determining how old a tree is. Trees are also meticulous record keepers of climatic conditions. By unraveling the rich data stored in tree rings, scientists can do everything from dating archaeological sites and preventing forest fires to documenting planetary history and offering a crystal ball into our environmental future. “Trees are natural archives of information,” says Ronald Towner, an associate professor of dendrochronology and anthropology at the Laboratory of Tree-Ring Research at the University of Arizona in Tucson. “They stand in one place for a long time, sort of recording in their rings the environment around them. Anything that affects a tree — precipitation, temperature, nutrients in the soil, fires, injuries — can show up in the rings…”

San Jose, California, Mercury News, February 15, 2018: Whose is bigger? Two Northern California colleges claim world’s tallest campus tree

Nearby colleges and universities commonly have football team rivalries, but in Humboldt County they compete to have the largest growing tree on campus. College of the Redwoods and Humboldt State University don’t compete athletically but the CR Forestry and Natural Resources program is coming after HSU’s claim last year that they have the world’s tallest tree on a college campus. This week, CR students measured what could be the largest tree by diameter on a college campus in the United States. However, these things are hard to keep track of because there’s not a Guinness World Record for the tallest or largest by diameter trees on college campuses, CR forestry professor Tim Baker said. “Basically, we don’t know,” he said about the largest on-campus tree designation. “We were throwing it out there in response to HSU saying they had the world’s tallest tree [on a college campus] because they don’t know either…”

Great Lakes Echo, February 15, 2018: Discarded Christmas trees a weapon against Asian carp

Canada’s Royal Botanical Gardens sit near the western end of Lake Ontario, just a short drive from the U.S. border. When the weather is warm, visitors come to see acres of gardens with roses, lilacs and other collections in bloom. In the winter, it’s much quieter. But scientists stay busy, protecting wetlands from destructive carp. And they’re using an unusual weapon: Christmas trees. Ecologist Andrea Court walks across Grindstone Creek, which is frozen solid. In each hand is a discarded Christmas tree stripped of all of its festive ornaments. Holding the base of the trunks, she drags the trees behind her, leaving a pathway of twigs, pine needles and pieces of brown bark. Her face is red from exposure to temperatures that hover near the freezing mark. “This job is very weather-dependent, so you go when you can,” she says…

London, UK, Daily Mail, February 15, 2018: Researchers use new laser scanning tech to `weigh´ trees



New laser scanning technology is being used to “weigh” trees, in a project which could help more accurately assess the role forests can play in tackling climate change. Lasers are used to collect hundreds of thousands of points of data a second from the canopy, which are processed to build a three-dimensional picture of the tree revealing its structure and its volume, which allows estimates of mass. For example, one sycamore tree in Wytham Woods near Oxford was found to have nearly 11km (6.8 miles) of branches, double that of much taller tropical trees measured as part of the study, the researchers said. It is hoped the information will give a more accurate picture of the amount of carbon absorbed by forests, as part of efforts to reduce greenhouse gases, as well as help predict how trees might respond to climate change…


Staten Island, New York, Staten Island Advance, February 14, 2018: Staten Island nature: The many lives of a dead tree

In natural woodlands, fallen and decaying trees are much more noticeable in winter than in summer when surrounding vegetation distracts attention. Though these trees are no longer alive, they provide shelter and sustenance for many other organisms in the woodlands. In natural environments, dead trees and other decaying plant materials play a vital role in the recycling of nutrients and the development of topsoil that is necessary for a forest to go through a natural succession of ecosystems. Even before they fall to the ground, most dead trees are already serving as an apartment for a wide variety of life, from micro-organisms to vertebrates. The start of a tree’s downfall often begins when the bark is damaged, allowing fungi and bacteria to enter. The dead heartwood in the center of a tree is often exploited by these decomposers. In many cases, the center of a healthy-looking tree is almost entirely hollowed out many years before it dies…

Barf Blog, February 14, 2018: Risk assessment ‘tolerable’ for tree that killed woman

Risk assessments are fraught with value judgements scientists make when choosing the upper and lower boundaries of numerical ranges and the assumptions made, especially those involving human behavior. Conrad Brunk (right) and co-authors explored this in the 1991 book, Value Judgements in Risk Assessment. For the many food safety risk assessors and analysts out there, a New Zealand tree may offer a lesson. A tree in Rotorua, known as Spencer’s Oak, was deemed to be of a “tolerable” level of risk when it came down in a Jan. 2018 storm and killed a woman. The 150-year-old oak, believed to be around 23m tall, blocked Amohia St, trapped 56-year-old Trish Butterworth in her car. She died at the scene. The risk assessment of the tree has been revealed in documents released by Rotorua Lakes Council to Stuff under the Local Government Official Information and Meetings Act. Benn Bathgate reports that in a tree assessment report from an arboricultural contractor dated February 28, 2017, Spencer’s Oak and a second tree were assessed. “The assessed risk levels for these trees all fall the tolerable level,” the report said…

Kenwood, California, Kenwood Press, February 15, 2018: Questions surround fire damaged tree and vegetation removal

As PG&E is looking to wind down its aggressive post-fire tree culling program, Sonoma County is ramping up a federally-funded project that aims to take down fire-damaged trees along 90 miles of roads if they pose a danger of falling into county roadways. While the initial survey for the program is finished, the number of trees targeted is not yet available. Adobe Canyon Road homeowner Patti Everett became aware of the county project when a survey crew showed up at her home – the last house before the Sugarloaf State Park entrance – and put aluminum tags on many of her second- and third-growth redwoods surrounding an auxiliary structure that burned in the October fire. Her home is intact. “It’s very, very sad,” Everett said, noting that redwood trees are fire resilient and that many of those tagged by the county’s consulting firm, ACRT, don’t seem to be damaged or even in the county’s right of way. “I want to make sure that none of them are taken down by accident,” Everett said…

Forbes, February 14, 2018: Tax-favored money grows on trees

A tree entrepreneur profiled in Forbes inspired me to look for publicly traded firms in the same line of work. There are more than a few, and they tend to be organized as real estate investment trusts. If you want growth in your portfolio, standing timber is not a bad way to get it. Lumber barons get to treat their profits from harvesting wood as low-taxed capital gains. That cushy deal extends to shareholders in forest-product companies organized as REITs. Potlatch (PCH), for example, paid out $1.53 a share last year, all of it classified as long-term gain. When it completes a pending acquisition, this REIT will have 1.9 million acres of timberland and ample opportunity to make that dividend greener. Rayonier (RYN), another tree REIT, owns, leases or manages 2.7 million acres. Its $1 dividend last year was 100% capital gain…

Cleveland, Ohio, Plain Dealer, February 13, 2018: South Euclid’s Tree Commission could take on a larger role; trees planted at Oakwood

Trees are a nice addition to any city, but they can occasionally be the subject of a dispute. To that end, City Council’s Service Committee met Monday evening to discuss a change in procedure regarding tree-centered disputes. In the past, if there was a problem concerning a tree on public property, the city’s arborist, Dean Grida, would make a decision on the matter. The committee, however, recommended to a full council vote a change that would have the nine-member South Euclid Tree Commission resolve such disputes. Committee chairperson and Ward 4 Councilwoman Jane Goodman said the amendment came about because of a recent incident. “A resident in the Cedar Center neighborhood who loves trees and lives on a corner lot decided she would plant an orchard of fruit trees on her tree lawn,” Goodman said. “That creates a hazard…”

Marin, California, Independent Journal, February 13, 2018: Tiburon committee nixes tree cutting proposal

A proposal to cut down 42 trees in Tiburon seems to be headed to the chopping block. The Tiburon Parks, Open Space and Trails Commission on Monday voted 4-0 to recommend that the Town Council deny the proposal, and to instead come up with a compromise to save some of the trees. Commissioner Philip Feldman was absent. The proposal to remove 21 blue-gum eucalyptus, 15 Italian stone pine and six Monterey pine trees near the McKegney Green soccer field off Tiburon Boulevard was pitched as a fire risk and safety solution. Residents Ron and Duffy Hurwin, who applied for the tree removal as the McKegney Green Knoll Native Tree and Plant Restoration Project group, pointed to the Oakland Hills fire of 1991 as an example of how eucalyptus trees fuel wildfire. They also argue that limbs from eucalyptus trees fall without warning and are dangerous in an area frequented by youth. Commissioner Jim Wood said while that testimony is compelling, the method is “extreme. It has to be denied just on the pure love of trees…”

Naperville, Illinois, Daily Herald, February 13, 2018: Naperville tree preservation project offers wood for artists

Creative types who want to join the ranks of the woodworkers, furniture producers, guitar makers and brewers who are carrying on the legacy of a 250-year-old tree can get a piece of it on Saturday. The Naperville Parks Foundation, which is leading an art-based preservation project featuring the former Hobson Oak, is offering kiln-dried wood from the tree from 9:30 to 11:30 a.m. at 224 N. Washington St. in Naperville. Artists who commit to create pieces of art or furniture for charity auctions beginning this fall can pick up their raw material for free during Saturday’s event. The wood is part of the second batch to be kiln-dried after the tree was cut down in November 2016, said Mary Lou Wehrli, a Naperville Parks Foundation board member…

Dubois, Pennsylvania, Courier Express, February 13, 2018: Removal of 180 mature ash trees changes the face of 2 Lancaster County parks

The giants have been felled in Lancaster County Central Park and its neighbor, D.F. Buchmiller County Park. About 180 large and doomed ash trees were taken down in a salvage cut that has resulted in a startling change in appearance to the popular Central Park. Large yellow stumps dusted with sawdust and shorn at ground level now border roads, playgrounds, pavilions and picnic tables throughout the 544-acre Central Park on the southeast edge of Lancaster city. The smaller 79-acre Buchmiller Park, along Willow Street Pike, had a handful of ash trees removed. The trees that have been cut over the past two months are the ones deemed to be a safety hazard to park users and motorists…

 

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

TNLBGray140407

Case of the Day – Thursday, February 22, 2018

NO GOOD DEED…

Regular readers of this blog – all three of you – know by now that one of the benefits to Harry and Harriet Homeowner that flow from hiring an independent contractor to remove a tree is that when things go south on you, such as the tree falls on somebody’s house or a tree service employee takes a header from 100 feet up, you aren’t liable.

This isn’t always true. If Harry and Harriet have superior knowledge of the particular latent danger which causes an injury to the contractor, they may be liable. Likewise, if Harry can’t keep his nose out of things, and starts participating in the tree removal, he may be liable for injuries resulting from injecting himself into the contractor’s work. Generally (and reasonably), however, the law protects people who hire the experts and then leave them alone to do their jobs.

So what was Tony Cox’s problem? First, he was a tightwad, not wanting to drop a grand on removing a hazardous tree. So instead hiring the experts, he decided to cut it down himself. After all, he had a saw and gravity to assist him. What could go wrong?

Then, there was Tony’s acrophobia. To solve this problem, he recruited his neighbor Dick Strayer. Dick wasn’t afraid of heights. He climbed radio towers for a living (usually using a safety rig that attached to the towers). Plus, he cut down trees on the side.

Hey, Dick, Oscar Wilde (or maybe Clare Booth Luce, who knows for sure?) said no good deed goes unpunished. What do you suppose he meant by that?

Dick and Tony began cutting. Dick was in the tree, because Tony, as we mentioned, was afraid of heights. Dick was sawing away on a limb when something happened. No one really saw the accident, but everyone saw Dick, as well as the decayed limb he had been sawing, on the ground.

Of course, a lawsuit ensued, because otherwise we would not be writing about this tragedy-in-a-teapot to begin with. Dick claimed Tony was liable for his injuries because Tony did not tell him the limb was rotten, and Tony was actively participating in the tree-removal job. Lucky for Tony, the court was convinced that Dick’s tree experience and his position astraddle the rotten branch made the hazard open and obvious to Dick. What’s more, the court held, Tony did not owe Dick any duty under the participation exception to a property owner’s general lack of duty to an independent contractor, because while Tony was on the crew, he did not “actively participate” by directing the activity that resulted in Dick’s injury.

Strayer v. Cox, 38 N.E.3d 1162 (Ct.App. Miami Co., 2015). Richard Strayer was injured while attempting to cut down a tree located on the property owned by his neighbor, Anthony Cox. Dick Strayer had some qualifications for the job: he been involved in various types of residential and commercial construction, and had been employed climbing cell phone towers. Prior to the accident, he had climbed trees 20 to 25 times to cut them down.

At some point, Tony decided that he wanted to remove a 25’ tall tree in his front yard. Tony presumed it was dead, and he balked at the $1,000 estimate from tree services to remove the tree. So he told Dick he wanted to take the tree down, and asked Dick to help because he was afraid of heights.

Dick first inspected the tree, and thought it looked “okay,” although he later admitted no one short of a tree expert could have told that any of the branches were rotting, and Tony would have had no way to determine if there was rotting or damage to any of the limbs.

At one point, Dick’s feet were on the base of the tree (where a branch met the trunk), and he was standing in the middle of a series of big limbs about 12 feet up. Dick began cutting a branch with his chainsaw. The next thing he knew, he had fallen to the ground, riding the rotted-out branch all the way down. As a result of the fall, Dick hurt his left ankle, which required surgery.

Dick sued, but the trial court granted summary judgment for Tony and his insurance carrier. Dick appealed.

Held: Dick’s lawsuit was thrown out. The appellate court ruled that  the trial court did not err in rendering summary judgment in Tony’s favor. The court held that the undisputed facts showed Tony had no duty to protect Dick from an open and obvious hazard on Tony’s property. Furthermore, Tony did not owe Dick any duty under an exception to a property owner’s general lack of duty to an employee of an independent contractor. Tony did not “actively participate” as required for application of this exception by directing the activity that resulted in Dick’s injury, by giving or denying permission for the critical acts that led to Dick’s injury, or by exercising sole exclusive control over a critical variable in the working environment.

The Court said, “It is fundamental that in order to establish a cause of action for negligence the plaintiff must show the existence of a duty, a breach of that duty, and an injury proximately resulting therefrom. The status of the person who enters upon the land of another ( i.e., trespasser, licensee, or invitee) defines the scope of the legal duty that the landowner owes the entrant.” Here, Dick was an invitee, someone who rightfully came onto Tony’s property by invitation, express or implied, for a purpose beneficial to Tony, to wit, the removal of the tree.

An owner owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that invitees are not unnecessarily and unreasonably exposed to danger. However, the Court observed, the owner does not act as an insurer of an invitee’s safety and owes no duty to protect invitees from open and obvious dangers on the property. Open and obvious hazards are those hazards that are neither hidden nor concealed from view and are discoverable by ordinary inspection. The question is always whether an invitee exercising ordinary care under the circumstances would have seen and been able to guard himself against the condition.

“Liability only attaches when an owner has ‘superior knowledge of the particular danger which caused the injury’,” the Court wrote, “as an ‘invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate’. The open and obvious doctrine is determinative of the threshold issue, the landowner’s duty. In the absence of duty, there is no negligence to compare.”

Dick was barred from recovery because the deteriorating tree was an open and obvious hazard that he freely ascended. He was in a better position to assess the safety of standing on the branch. Naturally, the Court held, Tony had no duty to warn Dick about dangers of which Tony was unaware, such as that the limb Dick was cutting was deteriorating from the inside, decay that was not observable from the outside. In addition, the court observed that Dick had significant experience with cutting trees and that the risk of encountering deteriorating branches was open and obvious.

Dick also argued that Tony should have contacted a certified arborist prior to removal to conduct a risk assessment of the tree. He claimed Tony’s failure to have a risk assessment conducted violated American National Standards Institute (ANSI) sections Z133 and A300, part 1 and 9, which require that any tree being worked on “undergo a tree risk assessment for tree worker safety.” But the court ruled that homeowners like Tony are not subject to the requirements of ANSI, even if the standards were not voluntary to begin with (which they are).

Even if the ANSI standards were somehow to apply to a Harry-Homeowner-tree-removal job, the court ruled, “Ohio courts have held that summary judgment may be granted in cases where building code violations are open and obvious ‘because the open-and-obvious nature of the defect obviates the premises owner’s duty to warn.” The hazard of climbing on the tree limb in a tree with dead branches was open and obvious.

Finally, Tony’s participation on the job did not make him liable to Dick. One who engages the services of an independent contractor, and who actually participates in the job operation performed by such contractor and thereby fails to eliminate a hazard which he, in the exercise of ordinary care, could have eliminated, can be held responsible for the injury or death of an employee of the independent contractor. Here, testimony of the parties indicated that if anyone directed the activities that day, it would have been Dick, who was the individual experienced in cutting down trees and using chain saws. The record was devoid of any indication that Tony directed Dick to do anything on the day of the accident, or even that Tony had any prior experience with chain saws or with cutting down trees.

Dick “directed the activity which resulted in the injury or gave or denied permission for the critical acts that led to the… injury.” The cause of Dick’s injury, in his own words, was that the limb on which he stood fell, taking him down with it, because the limb “was rotted.” Tony had no role in the injury, and thus no liability.

– Tom Root

TNLBGray

Case of the Day – February 21, 2018

THE ODD COUPLE

odd150925What is it with some neighbors? These folks — an “odd couple” of neighbors if ever there were such — lived next to each other in a pretty good Iowa City neighborhood for over 20 years. And they were always at each other’s throats.

Ironically, it was the Felix Ungar neighbors who were the victims. Apparently the Oscar Madisons were unhappy with two trees that stood entirely in the Felix property, but had branches overhanging the Oscars. So what, you wonder, and for good reason. The Oscar property was such a mess that a couple leaves and twigs hardly mattered. However, all of you loyal readers know the answer: under the Massachusetts rule, the Oscars can trim the trees’ branches back to their property line. In fact, borrowing from Virginia and Hawaii, maybe the Oscars could sue the Felixes, alleging that the trees were a nuisance.

Nothing that subtle for our heroes. Instead, the Oscars came onto the Felix property and simply cut the trees down. There. That settled that!

Well, not really.

The Felixes sued. The trial court was clearly appalled at the brazenness of the Oscars. It observed with some amazement that in order to cut down the trees, the Oscars “had to intentionally trespass on [Felixes’] property to cut down the trees and that is exactly what they did.”

The Court rendered its opinion accordingly. What the Oscars did was a trespass, pure and simple, and the damages in a trespass are the costs to restore the property. Those costs were the cost to replant trees about as mature as the two 50-foot tall trees that were removed. On top of that, the Court imposed treble damages under Iowa Statute 658.4 for “willfully injuring any timber, tree, or shrub on the land of another.” The Court held it applied because the Oscars “willfully trespassed” in order to cut down the trees.

They're after your trees ...

They’re after your trees …

We don’t want to be critical, because the Oscars clearly were bad actors here and deserved what befell them. However, courts need to be careful not to get out in front of their statutes. The trial court, in its ire, focused on the wrong “willfully.” Treble damages applied when the Oscars “willfully injured” the trees, not when they “willfully” trespassed. Under the court’s mangled standard, the treble damage statute would have applied if the Oscars willfully sneaked onto the Felixes’ property to smash a jack-o-lantern, but accidentally trampled on Mrs. Felix’s prize rose bushes in their haste to run home. It’s not the willful trespass, it’s the willful chainsaw that matters.

Luckily for the Felixes, the error made no difference. Any way you apply the “willfully” here, the Oscars are liable. They willfully trespassed, willfully fired up their chainsaws, and willfully undertook arboreal mayhem. Game, set, match.

Wunder v Jorgensen, Not Reported in N.W.2d, 2004 WL 3569694 (Iowa Dist., 2004) (unpublished). The Wunders and the Jorgensens lived next to each other in a wooded neighborhood on Iowa City’s west side for over 20 years. During this period, their relationship was acrimonious, with the Wunders continually upset about the debris, both natural and manufactured, which the Jorgensens allowed to build up on or over their common boundary. Among other complaints, the Wunders complained that the Jorgensens erected a lean-to next to an outbuilding, essentially on the property line, which the Jorgensens used to keep garden tools.

pos150925Two trees stood on the Wunders’ property, scotch pines or Canadian hemlocks, with branches that extended over the Jorgensen property. The Jorgensens knew the trees were on Wunders’ lot because they had built the lean-to roof around one of the trees. The trees disappeared one day, setting the Wunders to wondering. Suspecting the Jorgensens, the Wunders sued. And small wonder.

Held: The Jorgensens were liable. The Court found that the Jorgensens had knowingly and willfully cut down two mature trees which they knew to be on Wunders’ property. The Court found the conduct to be inexcusable, noting that the “Jorgensens had to intentionally trespass on Wunders’ property to cut down the trees and that is exactly what they did.”

The Court found that the replacement cost for the trees was $4,061.40. The measure of damages for trespass is replacement cost, and treble damages — awarded if trees are willfully cut down on another’s property — apply in this case, the Court said, because, Jorgensen willfully trespassed on Wunders’ property to cut down the Wunders’ trees.

The Court threw in an observation for the Jorgensens: if trees are replanted, the Jorgensens ought to be informed that the general rule is that an adjoining landowner may cut off growth which intrudes on his or her property … but not more.

– Tom RootTNLBGray

Case of the Day – Tuesday, February 20, 2018

A DEFENDANT MUST BE FOUND

About a decade ago or so, my daughter Leslie – fresh out of college – was spending a year in Vladivostok, Russia, on a Fulbright Fellowship. Along with learning to play the balalaika and sampling dozens of varieties of vodka, she learned that your average Russian is a lot like your average American.

One evening, she and a friend were crossing the street at an intersection when a young Russian couple, in a hurry to pick up their son from daycare, were sitting impatiently behind a driver turning left. The light changed, the left-turner turned, and – just like just about every driver in the world, the young Russian husband burst through the light, now red. Unfortunately, he collided with my daughter, who went up on the hood of the car, and then slid to the ground. At some point in Leslie’s unplanned flight, her leg was broken.

The driver and his wife were distraught at what their negligence had caused, and they bundled my daughter into the back seat of the car and drove her to an emergency unit. The next day, Leslie’s Russian friends visited her in the hospital, and during all of the talk about the accident, someone asked Leslie whether she had filed a police report. My daughter already knew from the State Department that she would have come back to the United States for treatment, American confidence in Russian medicine not being that high. So Leslie told her Russian friends it was just an accident, and there would be no point filing a report with the Primorsky Krai Directorate for Internal Affairs (we know them as Управления МВД России по Приморскому краю).

Leslie’s Russian friends were appalled. “But, but… ” one of them sputtered, “he must be punished!”

They’re just like us. When there is a terrible accident, any good plaintiff’s lawyer knows that you tell the jury the story with just the right amount of drama and pathos, and pretty soon, the jurors are looking around the courtroom for someone to blame. After all, there was injury and suffering and pain. Someone must pay!

But’s not the way real life is. You can ask Cassandre and Rachele, who the young daughters of Joel Baudouin. Joel was driving his mother and the girls down New Jersey’s Garden State Parkway late one dark and stormy night, when an 80-foot tall hickory tree fell on his car. Joel and his mother perished. The girls were injured.

The girl’s mother sued on their behalf, naming a thundering herd of defendants, including the New Jersey Turnpike Authority, a public entity established in 2003 to operate the Garden State Parkway. Mom alleged the Turnpike Authority negligently failed to “properly maintain, remove, inspect, secure or otherwise properly care for the rotting, falling, dead and decaying trees adjacent to the roadway in the area of the accident.”

Everyone agreed the Turnpike Authority lacked actual notice the hickory tree was rotten (as it surely was). The only issue was whether the Authority had constructive notice of the tree’s deteriorated condition, and that turned on whether the Authority’s “drive by” inspection program was reasonable. And this is where governmental units, vulnerable to lawsuits only to the extent permitted by state tort claims act, need only show they have used their discretion in a reasonable way. Here, no matter how much Mom’s tree experts argued that a 360-degree walk-around was the only acceptable was to inspect a tree (and such an inspection would have discovered the dangerous hickory tree), the court agreed that the extent of the inspection task and the resources available to the Authority required that the Turnpike Authority be held to a lesser standard.

We are often adjured not to let the perfect become the enemy of the good. Under state tort claim statutes, that rarely happens.

Baudouin v. New Jersey Turnpike Authority, Case No. A-3903-13T2 (Super.Ct. N.J., Mar 1, 2017) 2017 N.J. Super. Unpub. LEXIS 1085, 2017 WL 1548708. Just after midnight on Christmas, 2008, Joel Baudouin was driving southbound on the Garden State Parkway. His mother sat next to him, while his two daughters sat in the backseat. A hickory tree, measuring eighty feet high and twenty-one inches wide, fell across the three southbound lanes of the Parkway and crushed the front passenger compartment of the car. Joel and his mother were killed. The children, who were initially trapped inside the backseat, were injured.

The kids’ mother filed a civil suit against a number of public entities and one private contractor. Finally, only the Turnpike Authority remained. The plaintiffs argued the Turnpike Authority negligently failed to “properly maintain, remove, inspect, secure or otherwise properly care for the rotting, falling, dead and decaying trees adjacent to the roadway in the area of the accident.”

The trial court granted summary judgment to the Turnpike Authority, holding the plaintiffs failed to produce evidence showing the Turnpike Authority had “actual or constructive notice” of the tree’s deteriorated condition.

Mom and the girls appealed.

Held: The Turnpike Authority was not liable. At the time of the accident, the Authority was responsible for inspecting the 172-mile long Parkway, which was tree-lined over much of its length both northbound and southbound and in the median and had more than 300 tree-lined shoulder miles to inspect. In order to accomplish this, the Authority employed what it called the Hazard Tree Inspection Program, which “consists of making periodic ‘windshield inspections’ of the trees that can impact the roadway,” according to the Authority’s witness. The Authority’s inspectors inspected Parkway trees while seated in the front passenger-seat of a car that drove at approximately ten to fifteen miles per hour along the shoulder of the Parkway. If something was spotted that indicated a potential serious problem with a tree, the driver was would stop the vehicle so that the tree could be inspected further. At that point, a determination would be made as to what, if anything, had to be done with the tree and at what priority based on the seriousness of the problem.

Of the 554 trees listed in the January 2007 Hazard Tree Inventory, only five trees were identified in the vicinity of where the accident occurred. Three trees were identified as high priority and two were marked as immediate priority.

Mom’s experts examined the fallen tree, and concluded it was rotten to the core. Both said the decay was only visible from the side of the tree away from the road, and they said a walk-around with a 360-degree close visual inspection of individual trees was the only method sanctioned by the industry. They did not address the Authority’s contention an individualized walk-around inspection was not applicable to a six-lane 172-mile long road with 300 miles of shoulder space.

These guys might walk 500 miles, but the Turnpike Authority’s inspectors were riding…

The Superior Court noted that the Legislature intended the New Jersey Tort Claims Act “to serve as ‘a comprehensive scheme that seeks to provide compensation to tort victims without unduly interfering with governmental functions and without imposing an excessive burden on taxpayers.'” The purpose of the TCA is to shield public entities from liability, subject only to the TCA’s specific liability provisions. Thus, the Superior Court ruled, when a court is required to balance the liability and immunity provisions of the TCA, “immunity is the rule and liability the exception.”

The TCA defines a dangerous condition as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” The Superior Court said, “80-foot tall trees are not inherently dangerous. The Garden State Parkway is a three-lane wide highway, running 172 miles north and south, with 300 miles of shoulder. The eighty-foot tall hickory tree that fell at milepost 151.5 on December 25, 2008, is one of thousands, if not millions, of similar trees abutting or near both sides of the Parkway. Neither this record nor the Parkway’s history suggests that this tragedy occurs frequently.”

Given the length of the Parkway and the number of trees involved, the Court held, “it is patently unreasonable to expect the Turnpike Authority to conduct [walk-around] inspections. Therefore, as a matter of law, we conclude that, at the time of the accident, neither the Parkway nor the trees situated nearby constituted a dangerous condition under N.J.S.A. 59:4-1(a) because they were used with due care in a manner in which it is reasonably foreseeable that they would be used.”

Under the New Jersey TCA, a public entity has constructive notice of a dangerous condition “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” N.J.S.A 59:4-3(b).  The mere existence of an alleged dangerous condition is not constructive notice of it.

– Tom Root

TNLBGray140407

Case of the Day – Friday, February 16, 2018

THE DOMINATRIX

Hardly anything can sow discord among neighbors like an easement. Rarely described with much specificity or limited as to use by a detailed statement of purpose, easements cause problems for the holder. Or the grantor. Or often, both.

Where the easement is for the benefit of an adjacent property owner, we talk about the dominant estate – the property being benefitted – and the subservient estate, which is the property (or property owner) burdened by the easement.

In today’s case, the Dzingles bought a landlocked parcel of land about 60 years ago, and – in order to get back and forth from the road – bought an ingress easement from their neighbor. As the name implies, the easement, 25 feet wide and containing a “trail,” was intended to let the Dzingles get to and from their property. The property was held by the Marilyn Dzingle Trust, making her sort of the Dominatrix.

The mind is fallible, especially where the owner of the subservient estate (cool term, right?) sells the property to someone else, someone like Jim Platt. Jim knew what he was buying, and he wasn’t the kind of guy to spend a lot of time poring over deeds and those appurtenances, principal places of beginning, heirs and assigns, and all of the legal mumbo jumbo. He knew the Dzingles had a driveway going over his land, and who needs to know any more than that?

Jimbo, that’s who. When Dzingle cleared vegetation from either side of his drive (but within the 25’ limit of the easement), Platt objected that the Dzingles had diminished the value of his property. When Platt dropped a dumpster next to the driveway, crowding the use of the road, the Dzingles objected right back. Platt said, “Sure, I’m encroaching on the easement, but you still have enough room to get by.”

Well, enough was finally enough. When the Dzingles wanted to build a modular house, they needed 22 feet of clearance to haul the pieces in. Those of us who are good at math can figure that this should be fine, with 1½ feet of clearance on each side. Well, yeah, except for Jimmy’s dumpster, and he would not move it.

So the Dzingles took Jimmy Platt to school, this class being held in a courtroom, where Jimmy Platt finally figured out what all that fine print on the deed really meant.

Dzingle Trust v. Platt, Case No. 330614 (Ct.App. Mich., Feb. 14, 2017) 2017 Mich.App. LEXIS 227. The Dzingles had contentedly enjoyed their landlocked 59 acres for nigh on 50 years, partly because they had had the foresight to buy a 25-foot ingress easement from their neighbor. But time passed, and after Jim Platt bought the subservient estate, the parties began feuding about what rights the dominant estate had over the easement.

The deed granting the easement stated that it was “an easement for ingress and egress over a parcel of land 25 feet wide…” and referred to an attached survey for the exact location of the easement. The survey clearly identified the location of the easement and indicated that the “existing trail lies entirely within easement.”

The Dzingles placed gravel in the easement and cleared vegetation to use it for ingress and egress, and to improve his attached residential property with a water well and pond, which required large trucks to use the easement. They planned to build a modular home on the property, but delivering the modules would require 22 feet of clearance, just within the easement’s 25-foot width. Jim complained that the Dzingle’s vegetation cutting within the easement “unreasonably burdened my property and eliminated my use of the property.” For their part, the Dzingles complained that Jim Platt’s placement of a dumpster in the easement did not let them use the full 25 feet for ingress and egress. That may be so, Jim said, but it did not keep the Dzingles from ingress or egress.

The Dzingles sued for a declaratory judgment regarding their rights to remove obstructions to bring the modular home onto thep roperty and asking the trial court to order Platt to remove his dumpster and any other obstacles from the easement. The trial court granted summary judgment to the Dzingle, holding they were entitled to the full 25-foot easement, and clearing brush from the easement was not an addition or improvement to the easement. The trial court rejected Jim Platt’s argument that the Dzingles’ proposed use of the easement would materially increase the burden on his estate, because their rights as the dominant estate to ingress and egress on the easement were paramount to Platt’s rights to wildlife and natural beauty. Finally, the trial court ruled that Platt must remove his dumpster from the easement because it was inconsistent with the Dzingles’ rights to ingress and egress.

Jim Platt appealed.

Held: The Dzingles’ rights extended to the whole 25 feet of the easement, and those rights included trimming vegetation so that the easement was usable for its intended purpose. It’s a rough lesson for a subservient estate holder to learn, but the dominant estate holder’s “rights are paramount to the rights of the soil owner to the extent stated in the easement grant.” The language of the instrument that granted the easement determines the scope of the easement holder’s rights.

In this case, the deed grants the Dzingles an easement for “ingress and egress.” The deed does not define ingress and egress, so the Court referred to a dictionary to determine the common meaning of the terms. “Ingress” is the “right or ability to enter; access,” and “egress” is defined as the “right or ability to leave; a way of exit.” Thus, an “ingress-and-egress easement” is an easement that grants the right to “use land to enter and leave another’s property.” Thus, the Court concluded, the deed expressly granted the Dzingles the rights to enter and leave their property, and the right to do so is paramount to Jim Platt’s rights in the same property.

What’s more, the easement gives the dominant estate “all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement.” While the dominant estate’s exercise of the easement must place as little burden as possible on the subservient estate, still “the making of repairs and improvements necessary to the effective enjoyment of an easement… is incidental to and part of the easement.”

A repair maintains an easement in the condition and uses it was in when the easement was made. Improvements, on the other hand, are alterations to an easement, and alterations are not permitted unless necessary for the effective use of the easement, unless they unreasonably burden the servient tenement.” Here, the Dzingles offered evidence that clearing vegetation, placing gravel in the easement, and using the easement to allow large trucks to improve the Dzingle acreage, and were consistent with use of the easement since the easement was granted. Thus, thr Court said, the Dzingles “presented evidence that removing vegetation and leveling would maintain the easement in the condition and uses it was in when the easement was granted. Platt presented no contrary evidence that clearing or leveling were outside the easement’s scope or changed the easement’s character.”

Finally, the Court said, any rights in the grant of an easement must be reasonably construed. The Dzingles have a right to reasonable ingress and egress, but they are not entitled to an unobstructed right-of-way. However, the Court said, the evidence showed that Jim’s dumpster intruded into the easement, and the Dzingles showed they needed at least 22 feet of the 25-foot easement for clearance to move the modular home pieces onto the property. Jim Platt may use the easement as long as his use does not interfere with the Dzingles’ right of ingress and egress. However, the Court said, because the Dzingles need the vast majority of the easement for ingress clearance and the dumpster intrudes into the easement, Jim Platt must move the dumpster.

– Tom Root

TNLBGray140407