Case of the Day – Wednesday, July 26, 2017


Remember that Disney World earwormWe are the World?” Hold that tune in your head as an especially annoying mnemonic device, to remind you that trees that grow on the boundaries between properties generally belong to us all, at least all of us who own the properties on which the tree sits.

Well, maybe just about everywhere except Colorado.

In this case, one neighbor mistakenly planted trees entirely on the property of his neighbor, at least by a few inches. You know what happens when trees grow. These grew so they stood astride the boundary line of the properties.

cutdowntreesAt least that’s where they stood until the neighbor cut them down. The Rhodigs claimed the trees that grew on both properties were owned as tenants in common. This was important, because the traditional rule was that trees straddling a boundary belonged to both parties as tenants in common. Neither party could cut down the trees without the consent of the other. The Supreme Court of Colorado held that whether the trees grew on the boundary wasn’t as important as what had been the agreement between the parties when the trees were planted. There has to be meeting of the minds as to the planting, the care, or even the purpose of the trees, the Court said, because without an agreement, one party cannot have an ownership interest in something affixed to someone else’s land.

A spirited dissent argued the tradition English rule — that held that trees straddling a boundary belonged to both parties as tenants in common — makes more sense. Certainly, it saves a lot of judicial hair-splitting as to agreements and courses of dealing between two neighbors who were now in court.

The dissent may yet have its day. Last January, the Colorado Supreme Court granted certiorari in Love v. Klosky, Case No 16SC-815, on the question of whether the Court should overrule its decision in Rhodig v. Keck. So by the end of this year, we may have to unlearn everything we’re learning today. We shall see.

Rhodig v. Keck, 161 Colo. 337, 421 P.2d 729, 26 A.L.R.3d 1367 (Sup.Ct. Colo. 1966). The Rhodigs sued Roy Keck for malicious and wanton destruction of four trees which allegedly grew on the boundary line between the Rhodig and Keck properties. Keck admitted removing the trees but alleged that they were completely on his property and that he had the right to destroy them.

The problem seems to be that boundary trees, once planted, seldom stay small

The problem seems to be that boundary trees, once planted, seldom stay small.

When the Rhodigs purchased their property, there were two trees standing near the lot line. In 1943 Rhodig planted two more trees in a line with the first two. Later one of the original trees died and the Rhodigs replaced it. In 1962 Keck, wishing to fence his property to the south of Rhodigs, had a survey made of the lot line. This showed that one tree was entirely inside Keck’s property by three inches; a second tree, 18 inches in diameter, extended four inches onto Rhodigs’ land and was 14 inches on Keck’s lot; a third tree, eight inches in diameter, extended two inches onto Rhodigs’ land and was six inches on Keck’s lot; the fourth tree, which was 16 inches in diameter, was growing five inches on Rhodigs’ land and 11 inches on Keck’s lot. As a result of the survey, Keck removed the trees. Incidentally, the Rhodigs had done their own survey 10 years earlier, and their findings matched those of Mr. Keck. In fact, they had tried to buy a strip of land with the trees from Mr. Keck without success.

The trial court granted Keck’s motion to dismiss at the close of plaintiffs’ case, finding that the Rhodigs had failed to establish that they were owners of the trees. The Rhodigs appealed.

AxeHeld: The Court held that the Rhodigs’ contention that they and Keck were tenants in common of the trees did not hold. It said “the trees in question, when planted, must necessarily have been wholly upon Keck’s property and no agreement or consent was shown concerning ownership. The mere fact that the Rhodigs testified that they owned the trees and maintained them is not sufficient evidence to permit a recovery. This is so because they could not own something affixed to Keck’s land without some agreement, right, estoppel or waiver. Apparently a test in determining whether trees are boundary line subjects entitled to protection is whether they were planted jointly, or jointly cared for, or were treated as a partition between adjoining properties. In the instant case none of these attributes was proved by the plaintiffs.”

The Court held that one of the trees — being wholly on Keck’s land — was not involved in the dispute at all. As to the other three trees, the Court said, the Rhodigs had failed to prove a legal or equitable interest in them, meaning that the legal owner of the land — Mr. Keck — had the right to remove the encroachment.

The judgment was affirmed.


The California Civil Code sets out the common rule, one not followed in Rhodig v. Keck.

Two of the justices dissented, arguing that the majority of the Court had sanctioned conduct on the part of Mr. Keck which constituted a trespass and the destruction of co-owned property. Citing early English common law holding that (1) a tree which stood on a property line made the adjoining owners tenants in common of that tree, and (2) if one of the co-owners cut the whole he was liable for damages to the other, the dissenters argued that the Rhodig trees should come within that well-established rule. “To come within these rules a tree need not have been placed on the property line for the purpose of forming a border or boundary,” the dissenting justices said. “A tree which stands on a property line in a state of nature or one which has been planted by man is treated in the same way.”

– Tom Root


And Now The News …

Austin, Texas, Statesman, July 25, 2017: Dozens of people tell House committee to scrap tree bill

Dozens of Texans told the House Urban Affairs Committee on Tuesday to let their own communities set local tree and land use regulations. The panel heard testimony for more than five hours on three bills. House Bill 77 by state Rep. Drew Darby, R-San Angelo, would require cities to allow builders to have the option to pay a fee instead of dedicating parkland “as a condition of approval for the development of real property.” Darby said the intent behind the bill is to give builders a choice, especially when dedicating parkland is not feasible. Supporters of the bill, builders in particular, said a fee option would allow them to get the most out of their land. But opponents, mostly city officials not wanting the state to preempt local rules and residents who like trees and parks say such local ordinances contribute to quality of life…

Springfield, Ohio, News-Sun, July 25, 2017: Springfield warns neighbors to be wary of unlicensed tree workers

Springfield leaders have warned residents to look out for unlicensed tree workers after weekend storms caused damage in local neighborhoods. Early morning storms tore down trees and damaged roofs in the Northern Estates neighborhood on Saturday. A 52-year-old tree in Xena Haley’s front yard had limbs thrown from it. It had to be torn down immediately because it was a hazard, Haley said. “My tree had full branches hanging down off my tree, big branches,” she said. But she didn’t want to hire just anyone to do the job, she said. She made sure the company was licensed…

Pasadena, California, Star-News, July 25, 2017: Protestors decry Alhambra housing project that would destroy 229 trees at retirement home

Plans to raze a 92-year-old church and remove 229 mature shade trees to make way for a townhome project prompted a march with signs and songs of protest at the steps of City Hall on Monday night. Waving signs that read, “Represent us, not lobbyists” and “Save Our Trees,” the 25-person group wanted the City Council to order a rigorous environmental review of the project, as well as an arborist’s report with the aim of saving as many trees as possible. Owner TAG 2 Medical Investment and its developer, St. Clair Partners in Irvine, are seeking approval from the city to knock down the church, most of the trees and rows of older cottages — once part of the Scripps Kensington Retirement Community — to build attached housing and office buildings on the 12-acre property at 1428 S. Marengo Ave. After the City Council gave its initial blessing June 12, opponents were surprised when two weeks later, the council pulled the project from its agenda when it came back for a second reading…

Center for International Forestry Research, July 25, 2017: Moving past tree planting, expanding our definition of forests and restoration

What is a forest? And how do you restore one? These seemingly simple questions were interrogated – with a focus on solutions – during a panel discussion at the 2017 Association for Tropical Biology and Conservation Meeting, recently concluded in Merida, Mexico. A group of experts on Latin American forests examined both the conservation and restoration of secondary forests from a variety of angles, including the ecological, political and social dimensions of such spaces. Beginning with the premise that “secondary forest regrowth following agricultural land use represents a major component of human modified landscapes across the tropics”, the panel emphasized the essential role of secondary forests for humans living in proximity, as well as for restoration initiatives and international goals, such as the United Nations Aichi Biodiversity Targets…

Jacksonville, Florida, WJAX-TV, July 24, 2017: 5 vital steps to take before hiring tree trimming service

After another potential victim called News4Jax to sound off on a local lawn business accused of ripping off elderly women, the I-TEAM discovered that this line of work is largely uncontrolled in Florida. For weeks, more people who paid Hilton Long Lawn and Tree Service to do work have come forward, saying he took their money and never completed the work.On the business card, Hilton Long Law and Tree Service offers its license number. But the I-TEAM went to track that down and learned the number just proves that the company paid city taxes and is allowed to do business in Jacksonville. But the I-TEAM also uncovered the legitimacy of the business and many like it are regulated by no one. “He talked about what good Christians they were and how reliable their work was going to be, gave me his insurance certificate,” Linda Milford said. “I thought I’d done everything I should.”Milford is one of several local women who called the I-TEAM to complain about unfinished or damaging work by Hilton Long Lawn and Tree Service…

Louisville, Kentucky, Courier-Journal, July 24, 2017: Louisville business group stays neutral on tree protection ordinance

The largest business organization in Louisville won’t be taking a position on a proposed tree protection ordinance. Greater Louisville Inc., the metro chamber of commerce, had been urging voluntary approaches to grow and protect the city’s tree canopy, instead of a new ordinance designed to better protect street trees in Louisville. But it has recently decided to be neutral on the proposed ordinance, said Sarah Davasher-Wisdom, chief operating officer of GLI, in a written statement. That news comes as the Louisville Metro Council’s Public Works, Parks, Sustainability and Transportation Committee will hold a public hearing on the proposed ordinance… Councilwoman Cindi Fowler, D-14th District, chairs the committee and said she wants to hear from the public, whether they support or oppose the ordinance. The ordinance has been designed to help Louisville restore a tree canopy that’s been devastated by storms, age, disease and insects — and to help reduce urban heat and fight air pollution…

Austin, Texas, Statesman, July 24, 2017: Two Views: Texas tree ordinances are eminent domain in all but name

During the current special session, the Texas Legislature will address the seemingly simple question: Who owns the tree in your backyard? Nearly 50 municipalities in Texas have ordinances preventing landowners from removing trees from their private property without receiving the city’s permission — and they often require property owners to pay a fee to mitigate the loss of trees. Gov. Greg Abbott made restricting these local ordinances a priority. But such tree ordinances already have questionable legality. The Texas Constitution has a provision — the Takings Clause, which echoes the Fifth Amendment to the U.S. Constitution — that states when government takes private property for a public use, it must pay just compensation to the landowner. Municipalities with these tree ordinances have trampled the constitutional commitment to private property rights. In their efforts to regulate trees on private property, these cities have prevented Texans from making full use of their private land by requiring them to keep trees on their property against their will. This establishes a government taking for a public use, though these cities have not provided their citizens with just compensation, as constitutionally required…, July 24, 2017: Lake Tahoe tree deaths double since 2015

The Tahoe Fund today announced a campaign to raise $36,000 to support a project designed by UC Davis scientists to improve forest health in the Basin.  Despite the record-breaking snowfall in Tahoe this past winter, tree mortality remains a major issue. Due to drought and bark beetle infestations, tree mortality more than doubled from 35,000 in 2015 to 72,000 in 2016. Tahoe Fund is partnering with scientists at UC Davis Tahoe Environmental Research Center to help repopulate the hardest hit areas along the north shore of Tahoe with native sugar pine trees. “While a lot of attention goes to our beautiful lake, Tahoe would not be the same without our fabulous forests,” says Amy Berry, Tahoe Fund CEO. “It is heartbreaking to see our mountains turning red with dying trees. With the support of donors, we have the opportunity to help by replanting sugar pines to provide diversity and stability to our forests.” Scientists at UC Davis Tahoe Environmental Research Center plan to collect seeds from more than 100 different sugar pine trees around Tahoe. Over the course of the next year they will grow these seeds into 10,000 seedlings that can be planted in areas with the greatest mortality rates.  The 10,000 seedlings will be distributed to public agencies to be planted along the north shore in both California and Nevada. The program also includes distribution of thousands of seedlings to private homeowners who have experienced tree loss…

Little Rock, Arkansas, KATV, July 23, 2017: Complaints against Tree Man growingA promise…an extension…but still no refund for an elderly Arkansas couple. Seven-On-Your-Side surprised Omar Rivers…”The Tree Man”…outside his

Benton motel room three weeks ago. And to no one’s surprise…Omar has failed to keep his word. And since our first story on June 30th we have learned of another homeowner who says he paid Omar Rivers only to never see him again. “You ain’t gonna put me on TV, are you?” a surprised Rivers asked back in June. “Maybe.” “Huh?” “Maybe.” “Don’t do that now,” pleaded Rivers. “It depends on what happens in this case.” “Oh yeah…I’ll get the job done,” pledged Rivers. “I get the job done don’t put me on TV. Deal? (laughs)…”

Houston, Texas, Chronicle, July 23, 2017: Senate panel okays tree-cutting proposal

A bill designed to obliterate local tree-cutting ordinances was approved Sunday by a Texas Senate committee after members exempted homeowners associations from having to comply. Even so, opponents said the measure would likely prohibit Houston’s highly touted new tree district from taking effect. “If you have communities that are named after trees, I would be concerned,” said state Sen. John Whitmire, D-Houston, after a revised version of the bill was taken up for approval by the Senate Business and Commerce Committee during a rare Sunday meeting. Whitmire said he thinks that property owners in local communities should have the ability to make the call on what trees can be trimmed or cut down, rather than “people in Wichita Falls, in East Texas” — a reference to other senators on the committee who voted for the bill…

Springfield, Massachusetts, Republican, July 23, 2017: Warwick Town Forest expansion will protect black gum trees

The Franklin County hilltown pf Warwick hosts a rare black gum swamp, and now the plant habitat will be protected. State Senate President Stan Rosenberg, D-Amherst, on Friday announced $100,000 to expand the Warwick Town Forest by 97 acres, ensuring that the tree species and its surrounding ecosystem will prosper. Black gum, also known as black tupelo or sourgum, tends to grow in acidic peat bogs, often alongside red maples. The slow-growing tree with furrowed bark produces small flowers and a tiny sour fruit. However, it generally reproduces through root and stump sprouts. Some of the trees can be 300 to 500 years old, according to the Massachusetts Division of Fisheries and Wildlife.  In 1925, Warwick voted to purchase 100 acres at the corner of Hockanum and Wendell roads, creating the town forest. Nearly a century later, the North Quabbin region, stretching into New Hampshire, is known for its large, unbroken areas of forest habitat…

Clemson, South Carolina, Extension Service, July 23, 2017: Never bury the roots or bark of trees

One of the least favorite sentences to come out of my mouth is “You damaged/killed your tree.” This past week I visited a home where they had a large beautiful dogwood in center of their front yard, but now it has a few large dead limbs. About a year ago they moved a few inches of soil in a fairly large circle around the trunk of the tree and planted roses. What they did not realize is that bark and roots need to breathe and even large trees have shallow root systems. Tree roots are near the soil surface so they can breathe and if you add more soil on top you are in fact drowning the tree roots. Usually it takes a few years for a tree to decline but their dogwood was old, faced the heavy rains of the last couple of years, and was in direct full sun. Dogwoods like partial shade, moist but not wet soil, and older trees (like me) cannot take the stress they did when they were young. Another very poor horticultural practice, volcano mulching or the piling of mulch at the trunk of a trees, can be seen all over Florence. I call volcano mulching the pink flamingo of gardening because it is out in your front yard signaling to everyone that passes that you don’t really know much about gardening…

Anaheim, California, Orange County Register, July 20, 2017: Seal Beach resident to pay city $250,000 for 153 trees destroyed in park

Seal Beach resident Rocky Gentner has agreed to pay the city $250,000 to settle its lawsuit over the destruction of 153 trees in Gum Grove Park last year. On March 19, 2016, tree trimmers hired by Gentner mowed down the Brazilian pepper trees behind his home on Crestview Avenue, a residential street bordering the 11-acre park. In a brief telephone interview with the Orange County Register after the demolition, Gentner said, “They weren’t trees, they were bushes – and they were dead.” But Seal Beach City Attorney Craig Steele disputed that assessment, saying the “trees were alive when they were cut.” “It’s just total disregard for the park,” said Mike Varipapa, the councilman who represents the neighborhood. Last summer, the city sent Gentner a letter demanding reimbursement for the “unpermitted, illegal” clearing of trees — some of which were small offshoots of mature trees…

Wallingford, Connecticut, Record-Journal, July 20, 2017: Palm trees don’t satisfy zoning requirement, Wallingford planner says

Since Cariati Developers planted palm trees along its building earlier this summer, president Donnie Cariati says the public has shown a lot of interest. “People seem to really enjoy them,” Cariati said. “They’re stopping and taking pictures. It adds character and it’s different.” The company planted about 18 palm trees along the perimeter of its property at 70 N. Plains Industrial Road. Cariati said he planted the palm trees to meet landscaping requirements imposed by the Planning and Zoning Commission. As a condition for a special permit last year, the company was required to improve landscaping on the property, including planting trees. When someone applies for a special permit, the commission will sometimes approve the permit on the condition that the applicant updates its landscaping…

Belfast, Maine, Republican Journal, July 20, 2017: City needs better plan for sidewalks, large trees, officials say

Piecemeal sidewalk repairs and tree maintenance isn’t cutting it, but it might be necessary while the city makes a long-term plan, city officials said July 18. Deliberations about a large maple tree at 220 Main St. have stretched over several City Council meetings. Douglas Beitler, who bought the property this month, has asked to have it removed because of rot. The council, which has a history of trying to save shade trees, was hesitant to declare the tree finished after conflicting advice from arborists who said, despite a seam of rot on the side facing away from the street, the roughly 150-year-old tree is still strong. Green’s Tree Service submitted a quote to remove the tree for $5,000. The city’s tree maintenance budget is up this year to $11,000 from $8,000, but several councilors argued that won’t be nearly enough considering the number of trees of the same age as the one in question…

Wrangell, Alaska, Sentinel, July 20, 2017: Newly found fungus could threaten Southeast Alaska trees

A fungus that damages trees is making its way through the state of Alaska. The fungus, spruce bud blight, has left damage in Southcentral and Interior Alaska, and now has been discovered for the first time in the southeast part of the state. The infection was discovered in Southeast Alaska in late June, the first reported sighting in the region, CoastAlaska News reported Thursday. The blight infects Sitka spruce, one of the most common trees in Southeast Alaska’s rainforest…

San Francisco, California, KTVU-TV, July 20, 2017: Prop E means San Francisco now picks up $19M tab to trim trees

If you live in San Francisco and have a tree in front of your house, you know how expensive it can be to maintain it and the sidewalk, which can buckle when roots grow out of hand. For the first time, the city is picking up the tab to keep residents’ trees trimmed and sidewalks fixed at a cost of $19 million a year. On Wednesday, in sunny Noe Valley, tree trimming crews stood by with a cherry picker, wood chipper and harnesses as Public Works rolled out its “Street Tree SF” program, a voter-backed initiative that places the maintenance of the city’s 125,000 street trees under city care. Vince Shortino lives on 23rd Street near Castro Street where crews got busy trimming his 25-foot-tall Chinese elm tree which has fanned out so much, it’s entangled in power lines. To trim it himself, would have cost at least $500. “Now it’s starting to damage the sidewalk a bit, maybe the street, could be some sewer lines under there we’re not sure,” said Shortino. In the past, he, along with hundreds of other homeowners, would have had to have coughed up more than ten thousand dollars to repair buckled sidewalks and sewer lines pierced by invasive roots…

Sacramento, California, KXTV, July 19, 2017: The Detwiler fire X factor: dead trees

The Detwiler Fire exploded in size over the last few days, but this fire may behave differently because of what it is burning. Let’s go back to the beginning of the 2011 winter season to understand what is happening. Following the last big rain and snow season in 2010-11, the Sierra and California had all the water it needed, and life was good. Beginning the following season, the pattern changed and we began a four-year major drought. The Central and Southern Sierra was hit especially hard with very warm temps and dry conditions. This was the bark beetle’s opportunity to take off and it did. Various droughts and warm winters are allowing the bark beetle in the Sierra and Rockies a rare opportunity to grow it’s population. Cold wet winters will cut the populations down, but we have seen the same thing all over the west. The bark beetles burrow into the trees and kill pines and other species. The result is a patchwork of healthy forests with millions of dead and dying trees intermixed, making the problem difficult to manage…

Battle Creek, Michigan, Enquirer, July 19, 2017: After more power outages, Consumers Energy is trimming trees on Battle Creek’s south side

After more outages than usual, Consumers Energy will trim trees around power lines on Battle Creek’s south side. In a news release, the city of Battle Creek said the affected area — between Capital Avenue Southwest and Riverside Drive near Beckley Road — has seen four tree-related power outages since April. That’s compared to a total of six outages in the prior two years. The company’s contractor may begin trimming at the end of the week, the city said. The work is expected to take a week to complete. Most of the work will take place south of East Hamilton Lane. Neighbors in these areas already should have received notification of the work, the city said…, July 19, 2017: Growing better trees faster

A new research collaboration could significantly increase the quality and economic productivity of one of the UK’s largest crop outputs, Sitka spruce conifer trees. Using a breeding technique called ‘genomic selection’, researchers from the Universities of Oxford and Edinburgh and from Forest Research, an agency of the Forestry Commission, hope to accurately identify, at a very early age, fast growing trees with superior timber quality. In doing so, the ‘Sitka Spruced’ research initiative could improve the economic value of future spruce plantations in the UK. In addition, by enhancing the quality of the wood, harvests are more likely to meet the changing construction specifications required to build our houses. The Sitka spruce is the UK’s primary timber species, with over 35 million Sitka trees planted in the UK each year. It is the third largest crop by area of cultivation in the UK, after wheat and barley, and accounts for around £1bn of the industry’s £2bn annual revenue. Fast growing and suited to the moist climate of western and northern Britain, the species produces a versatile white wood, with uses from paper making, to building construction. It takes around 40 years from planting before most Sitka spruce trees are harvested, and only a proportion of those trees meet the stronger, higher value construction grades. The project will scan hundreds of trees for variations in their DNA and then match those variations with fast-growing trees that produce superior timber. This will enable scientists to screen the DNA of the trees, to identify the fastest growing, with the best quality timber…

Grit, July 19, 2017: What you should know before planting fruit trees

Growing your own food is a fulfilling and delicious process. Having fruit trees means that you have the opportunity to enjoy fresh, sweet fruit during harvest time and then throughout the year, assuming you can or jelly your fruits for later. Planting fruit trees can be a relatively simple process as long as you are informed and educated about the trees that grow best in your area. Below are a few things to know before planting fruit trees so that you can successfully grow and harvest fruit. One of the best things about deciding to plant fruit trees is that you get to choose what types of fruit you want to grow. Make a list of your favorites, then ask your family what their favorites are. Once you have a list, figure out which trees you can plant in your area. Different fruit trees thrive in different areas, so picking the right type of fruit tree will ensure a bountiful harvest. The USDA Plant Hardiness Zone Map gives you the information you’ll need to pick the right trees for your area…


Morganton, North Carolina, News-Herald, July 18, 2017: If a tree falls and no one is around to see it, who foots the bill?

Luscious trees are among the many qualities that help give Morganton its nickname “Nature’s Playground.” But with Mother Nature likely to come through town with storms throughout the summer, the possibility of trees falling may be increased. But if a tree falls and causes damage to your property or someone else’s, who is at fault? Certified Insurance Counselor Dalton Walters recently explained who would be responsible in multiple tree-falling scenarios at Mimosa Insurance Agency in Morganton. “There are so many questions about them in North Carolina from almost every angle,” Walters said…

Baltimore, Maryland, Sun, July 18, 2017: Cherry trees planted by volunteers along Catonsville road found sliced, damaged

Flowering cherry trees stretching half-a-mile along the median of Edmondson Avenue in Catonsville were found deliberately damaged this week and Baltimore County police say they have no suspects. Five of the 32 Kwanzan trees planted by the Catonsville Tree Canopy Project were dead when James Himel, the group’s director, arrived with a fellow volunteer Monday morning to water them. Himel said he called the police after he determined every tree had been hit. The other 27 trees are “severely injured,” but still alive, he said, although 10 are showing signs of poisoning…

Canton, Georgia, Cherokee Tribune & Ledger-News, July 18, 2017: Trees coming down in the county, state road officials say ‘routine maintenance’

As residents drive along Interstate 575 headed into Cherokee, they will notice a pile of trees on the side of the highway headed for the chipper. The talk of the town in Cherokee County has been, “What is happening to all of the trees?” But according to the Georgia Department of Transportation, it is just “routine maintenance.” “Georgia DOT is currently conducting, or planning, overgrown vegetation management work along all of Georgia’s interstates, including I-575 in Cherokee County,” said GDOT spokesman Mohamed Arafa. “This work is intended to improve visibility and enhance safety along the interstate.” Arafa said the work that will be done along the interstate includes removing overgrown vegetation that encroaches on the shoulders and slopes, reducing trees and bushes within rights of way to safeguard motorists and provide adequate room for vehicle recovery if someone leaves the roadway and ensuring the visibility of warning, informational and instructional signs…

Washington, D.C., DNR, July 18, 2017: Have you watered your trees lately?

The dog days of summer are upon us, so it’s a good thing we have trees to help keep us cool! Summer is a great time to kick back, relax, and enjoy the nice weather. But this month and next can be hard on trees, and they can use our help. Don’t be fooled by cloudy weather, because it does not necessarily mean moisture. In Washington, most of the annual accumulation of moisture comes in three seasons, fall, winter and spring. Summer is typically very dry. This weather pattern is great for vacations and back yard barbecues, but difficult for trees – particularly newly planted trees. When we do get moisture, it may not be enough for our leafy friends, especially those planted within the last year or two. Even if you are watering your lawn on a regular basis, your trees might not be getting enough to drink. Grass roots, after all, only grow to a depth of several inches. In contrast, trees roots are deeper, from about 18” to 24” deep…


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Case of the Day – Tuesday, July 25, 2017


Family reunions at the Halcumb homestead must have been rather awkward after sister Patsy sued her brother Ken for a hundred grand in cut timber.

Ken lived on land pursuant to a life estate, with Patsy holding the reversionary interest. Ken and his buddy Troy Denton decided to harvest the timber and sell it, thereby committing waste on the property. Sister Patsy sued brother Ken and collected $32,000. Only half a loaf, it turns out – Patsy had demanded treble damages under Arkansas’ wrongful cutting law – a statute similar to one in many states, which punishes wrongful taking of timber by tripling the damages to be paid by the wrongdoer. The trial court had denied treble damages, much to Patsy’s dismay.

She didn’t bother to appeal. Instead, right after Ken paid her off, she turned around and sued Troy, asking for the treble damages.

history140528Remember your mother warning you, “Don’t make me repeat myself?” Well, maybe you remember George Santayana.

Courts don’t like to repeat themselves, either. When a court has spoken definitively on an issue, that judgment binds those parties who had a fair chance to litigate it. This, in its various flavors, is res judicata (where the claim cannot be relitigated) or collateral estoppal (where only one or more points cannot be relitigated). Either is a defense to be raised against a claim.

Troy did just that, asking the trial court to dismiss the claim under the doctrine of res judicata, literally meaning “the thing has been adjudicated.” Patsy tried the novel argument that because her brother had the right to get contribution from Denton for the money he had to cough up to big Sis, she had the right to sue him as well. After all, Troy was a joint tortfeasor.

But the court said that begged the question. If her brother wasn’t liable for the treble damages, his partner-in-tort hardly could be. And that was the problem. Patsy had had a fair shot at the tree harvesters in the first trial. The law guarantees everyone one fair shot, but not two. Where the second case is based on the same events as the first, the Court said, it is precluded by issue preclusion, the concept that encompasses collateral estoppel, res judicata, and claims preclusion.

That just makes good sense — both from the standpoint of judicial economy and everyone’s interest in seeing litigation have some reasonable and final endpoint.

succeed White v. Denton, Not Reported in S.W.3d, 2007 WL 4181557 (Ark.App., Nov. 28, 2007). Patsy White owned timberland in Polk County, subject to a life estate in the property held by her brother, Ken Halcumb. In the summer of 2004, Halcumb contracted with Denton to cut and remove timber from the property. White sued her brother for conversion of the timber and for damage to the property, alleging the land sustained damage in excess of $100,000 plus more than $25,000 in cleanup and replanting costs. She asked for treble damages for the value of the converted timber.

White won a $31,202.80 judgment in 2005. In that judgment, the trial court denied White’s prayer for treble damages, finding that Arkansas law on treble damages for wrongful cutting of timber did not apply. The Court also refused to award damages for clean up or replanting of the timber. She did not appeal, and her brother paid. A month later, she sued Denton for trespass and conversion of her timber, again asking for treble damages. Denton asked for summary judgment, asserting that White’s complaint was barred by the doctrine of res judicata, having been by the judgment she got against her brother. The trial court agreed and dismissed White’s complaint. While appealed.

Held: Denton is off the hook. White argued that the recovery of a judgment against one joint tortfeasor did not discharge the other joint tortfeasor. She said that Denton acted “jointly” with her brother to commit the torts of trespass and conversion of her timber, but contended that Denton is “independently liable” for those acts. She argued that her cause of action against Denton is not barred by res judicata because she hadn’t had a full opportunity to pursue Denton as a joint tortfeasor. She acknowledged that she received in damages the same amount of money that Halcumb sought to collect from the timber, but she contended that the judgment did not include the remaining damages that she claimed.

The Three Musketeers -

The Three Musketeers – “All for one and one for all?” Or were they merely joint tortfeasors?

The Court said that the term “res judicata” encompassed both issue and claim-preclusion. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. While state law established a common policy for loss distribution among joint tortfeasors, it didn’t give a plaintiff the right to sue each of multiple tortfeasors individually for the same damages. The Court noted that White recovered a judgment for the very claims that she subsequently attempted to assert against Denton. If she was unsatisfied with the amount of the judgment, the Court said, her remedy was appeal, not a new suit against someone she could have included in the first action.

Here, the Court held, White’s suit against Denton arose from the same wrongful cutting of her timber and the damages that she sought were identical. While Patsy arguably asserted a somewhat different legal theory – negligence – as a basis for imposing liability against Denton, however, that fact made no difference.

– Tom Root


Case of the Day – Monday, July 24, 2017


baby160601Anyone who’s ever sat next to a screaming baby on a red-eye flight knows “nuisance.” But what “nuisance” means in law may not be quite as readily identifiable as the wailing infant in seat 7B.

So just what constitutes a nuisance causing enough interference with an owner’s enjoyment of property to justify court action? The Haffners found out that wherever the line may fall, it was beyond the suffering they endured. And, in the process, they may have learned that the law is a poor bludgeon.

The Haffners had lived in the same house since 1977. The Clarks – who happen to run a tree service (but that’s not central to the case) – lived about 50 yards east of them, and the Nelsons live about 40 yards to the west. That wasn’t a problem until the Clarks and Nelsons became smokers.

They weren’t using tobacco, or even pot (this not being Colorado). Instead, they both installed rather old-fashioned but new-fangled outdoor wood furnaces. The Clarks were true early adapters, having used a wood-burning furnace since 1984. (Being tree trimmers, they had an abundant supply of fuel). The Nelsons installed their high-tech outdoor wood-burner in 2008.

smokeB160601Choking on the enveloping smoke, the Haffners sued, alleging that the Nelsons’ and Clarks’ furnaces “generated smoke, soot, noxious fumes, and fly ash, which damaged their property, caused them physical injury, and reduced the value of their property, as well as infringed on their use and enjoyment of the land.” The Haffners asked for an injunction from the court ordering the neighbors to quench their fires, along with some money to ease their suffering.

The case should have been a dead bang winner for the Haffners. Iowa law requires that people use their own property in a manner that will not unreasonably interfere with or disturb their neighbors’ reasonable use and enjoyment of their property.” In fact, Iowa Code § 657.2 specifically defines “[t]he emission of dense smoke, noxious fumes, or fly ash in cities [as] a nuisance …”

glass-houseBut their victory went up in smoke. It turned out that the Haffners were living in a glass house, having operated their own wood furnace for 20 years. They couldn’t very well prove any damage to their property or health arising from the Nelsons’ and Clarks’ wood furnaces when they were generating smoke with their own furnace like a politician on the hustings.  The medical maladies the Haffners said were caused by the smoke existed year around, even when the furnaces were stone cold during the summer. Other neighbors who lived nearby testified that they had not been bothered by the Clarks’ and Nelsons’ furnaces.

We know what you’re thinking: there must be a backstory here. Indeed. There was some evidence of animosity between the Haffners and their neighbors that had nothing to do with smoke.

Haffner v. Clark, 795 N.W.2d 99 (Court of Appeals, Iowa, 2010). The Haffners lived between the Clarks and the Nelsons. In about 1984, the Clarks installed a wood-burning furnace to help heat their home. The Nelsons installed an outdoor wood-burner in 2008.

The Haffners sued, alleging that smoke, soot, fumes, and fly ash infringed on their use and enjoyment of their land. The Haffners asserted claims of nuisance, negligence, assault and trespass, and sought a court order that the Clarks and Nelsons stop using their furnaces, and for damages.

The trial court found that the furnaces were not a nuisance, and that the Haffners delayed unreasonably in suing (which is to say it accepted the defense of laches and estoppel).

The Haffners appealed.

Held:  The appellate court held that the Haffners had failed to prove the neighbors’ smoke was a nuisance.

smoke160601The law of nuisance directs that “parties to use their own property in a manner that will not unreasonably interfere with or disturb their neighbors’ reasonable use and enjoyment of the neighbors’ property. A private nuisance is an actionable interference with a person’s interest in the private use and enjoyment of the person’s land.” The definition of a nuisance is “[w]hatever is injurious to health, indecent or unreasonable offensive to the senses, or an obstruction to the free use of property, so as essentially to unreasonably interfere with the comfortable enjoyment of life or property…”

The Court of Appeals observed that in determining whether an activity is a nuisance, the standard is whether normal people in the community would regard the conduct as “definitely offensive, seriously annoying or intolerable.” Under this standard, the Court agreed that smoke, odor and other attacks to the senses could constitute serious harm. The Court admitted that saving on fossil fuels might be a societal benefit, but it was of minimal utility compared to generating foul smoke.

Nevertheless, the Haffners’ complaints did not a nuisance establish. The Haffners – who themselves had owned their own wood furnace for 20 years – were unable to present evidence proving any damage to their property or health arising from the Nelsons’ and Clarks’ wood furnaces. The medical conditions that the Haffners alleged were caused by the smoke existed year around, even during the summer. Other witnesses living nearby testified that they had not experienced any smoke infiltration, odors, fumes, or fly ash from the Clarks’ and Nelsons’ furnaces.

The Court found it was material to its decision that the Haffners had waited 20 years before lodging any complaint with authorities, and noted in passing that there was evidence that the Haffners and their neighbors did not get along for reasons that had nothing to do with furnaces.

– Tom Root


Case of the Day – Friday, July 21, 2017


dime160531One of the first rules personal injury lawyers learn in law school is “find the deep pocket.” After all, what good’s a million-dollar judgment against some guy whose earthly assets consist of a 1998 pickup truck and a rusty chain saw?

Today’s victim, one of the Brothers brothers, was hurt while he performed tree trimming. An employee of Tamarack Forestry Services, Bro was struck by an aerial lift truck operated by another Tamarack employee. Of course, workers comp would have covered the accident, and at the same time would prohibit him from suing his employer (one of the tradeoffs demanded by the workers comp system, which is intended to stand in place of the old “sue and score” personal injury lawsuit). That just wouldn’t do, because without a good negligence lawsuit, how could Brothers’ personal injury lawyer find a pocket to pick?

Lucky for Brothers that his employer, Tamarack, had been hired by New York State Electric and Gas Corp., a public utility that had plenty of money: just look at your light and gas bills if you doubt that. NYSEG was no patsy, pointing out that Tamarack was merely an independent contractor, a fact which normally would make NSYEG not responsible for the accident.

It seems, however, New York law has an exception where the employer of an independent contractor had a contractual duty that it couldn’t delegate, such as where it had agreed to be liable for a contractor’s negligence. It turned out NYSEG was working on a DOT right-of-way, and it annually got a blanket license from the State allowing it to do so. The license had some boilerplate in it that NYSEG would comply with federal and state worker safety regulations.

“Ah-ha!” cried Brothers’ lawyer, “a nondelegable duty!”

pocket160531“Ah-ha nothing!” cried the New York Court of Appeals (the state’s highest court), holding that the non-exclusive license to trim trees created no duty that NYSEG owed DOT. Besides, the court said, public policy (which is  what the court cites when it knows where it wants to g0 but doesn’t know exactly how to get there) argues against such an unreasonable expansion of the “nondelegable duty” doctrine.

Which is not to say that the Court was wrong. It concluded that making NYSEG liable simply because the State of New York required it to buy boilerplate permits around the station would completely disrupt the company’s use of contractors to perform work, would bring utility maintenance to a screeching halt, at least until rate increases were approved to cover all of the

Brothers v. New York State Elec. and Gas Corp., 11 N.Y.3d 251 (N.Y. Court of Appeals, 2008). Mr. Brothers sued New York State Elec. & Gas to recover damages for injuries he sustained as an employee when he was struck by an aerial lift truck operated by a coworker. The public utility had contracted with Brothers’ employer, Tamarack Forestry Service, Inc., to furnish all necessary labor, supervision and equipment to clear trees and brush along electric lines. NYSEG routinely obtained annual blanket highway work permits from the New York State Department of Transportation for work to be performed along state highways. Under the permit, NYSEG was required to comply with various federal and state worker safety regulations. The trial court refused the grant NYSEG summary judgment dismissing Brothers’ action. Brothers appealed, and the intermediate appellate court affirmed the trial court. Brothers then appealed to the state’s highest court.

Held:   NYSEG could not be sued by Brothers. It’s true that in the work permit, NYSEG “assumed a specific duty by contract” to comply with federal and state worker safety regulations, but such a permit is not a typical “bargained-for exchange.” Although the State charges a fee for the permit, the fee is nominal consideration. A permit holder’s “breach” of the permit’s conditions does not give rise to the usual contract remedies. In fact, DOT may revoke the permit at any time whether or not there is a breach.

Nevertheless, the permit imposed certain obligations on the permit holder. Its terms and conditions are not meaningless or optional; instead, the permit holder agrees to abide by them in order to obtain DOT’s permission to work in the highway right-of-way. The Court said that key issue was whether NYSEG has undertaken a nondelegable duty to comply with the safety regulations enumerated in the permit for Brothers’ benefit.

Gen. Robert E. Lee knew something about duty ... and even he couldn't have found that NYSEG owed one to Mr. Brothers.

Gen. Robert E. Lee knew something about duty … and even he couldn’t have found that NYSEG owed one to Mr. Brothers.

Whether a particular duty is properly categorized as ‘nondelegable’ necessarily entails a sui generis inquiry where “the conclusion ultimately rests on policy considerations.” And here, several policy considerations argued against sticking NYSEG for Tamarack’s negligence. First, the Court said, “expanding vicarious liability to cover these work permits would make NYSEG potentially liable to a large class of plaintiffs, thus extending its duty beyond any reasonable limit.” Every year, public utilities pull highway work permits covering extensive areas and, for practical reasons, routinely hire hundreds of independent contractors to perform the construction or maintenance needed. The Court said that while an injured employee’s recovery from an independent contractors is limited by workers’ compensation, “this is not sufficient justification to impose vicarious liability on a utility that does not supervise or control the injury-causing work.”

After all, New York law requires utilities to obtain permits, and they do not have the power to bargain for terms and conditions of those permits. Brothers complained that NYSEG should be liable because it voluntarily assumed a duty to comply with the safety regulations recited in the permit. The Court disagreed: “NYSEG does not really have a choice in the matter; it cannot shirk maintenance work in state highway rights-of-way.”

– Tom Root


Case of the Day – Thursday, July 20, 2017



A few weeks ago, we talked about the Murrells of Rancho Palos Verde, California, a sordid tale of wealth, arrogance, clever lawyers and Pyrrhic victories. Today’s case may lack money, power, hubris and clever attorneys, but – like the Murrells – Leslie MacCardell won a hollow victory.

This case starts as a tale of lawyers screwing up. Yes, the very idea that a trained legal professional who exercises the utmost care could err taxes one’s credulity. But just for the sake of argument, let’s imagine that such a thing is possible …

The mistake was made by the professionals in the Massachusetts Land Court way back in the 1940s. Visualize the plot … two lots located next to each other, a power line easement granted way back in antiquity that didn’t describe the corridor of the easement at all, and … well, like a sophomoric sitcom, you can see where this is heading. When the Land Court issued certificates of title (a Massachusetts thing) it recorded the easement on Lot 2. The problem is that the power lines went across Lot 1. Hilarity ensued.

No one really notices power line poles – they’re just there. So it’s no surprise that nobody noticed the blunder until the neighbor on Lot 2 wanted to increase the size of his electrical service. The power company needed to install a transformer, and as a matter of course, it checked land records to verify its easement. Lo and behold, it found that the easement had been recorded on the wrong land. “No probalo,” the power company said, and it sued Leslie MacCardell — on whose land the power lines were located — to have the easement sort of eased on over to Leslie’s lot.

Not so fast, Leslie exclaimed. She fought back, arguing that she was a purchaser in good faith, and nothing in the records she had searched when she bought the place revealed a power company easement. “Good faith, indeed!” hooted the power company. She had actual knowledge of the easement when she bought. After all, the poles were there and her lights turned on (yeah, the utility actually said this) and she got a bill. How’d she think all of that happened if not for an easement?

Well, said Massachusetts highest court, in any of several ways. Despite the power company’s rather arrogant suggestion that it was just inconceivable that it would not have a proper easement, the Court said the poles could have been there permissively, or maybe — as it turned out — it was nothing but a trespass. Whatever it was, the Court held, it wouldn’t just assume that a landowner had actual knowledge. Rather, it was up to the power company to prove she did. And it didn’t.

We’re guessing that, just like the Murrells in yesterday’s case, this turned out to be kind of a Pyrrhic victory for our plucky heroine. Clearly, the power company’s poles had been on her property, openly and notoriously and continuously and adversely for many years. The utility probably had an open and shut case for a prescriptive easement, and it seems curious that it didn’t plead that as an alternate cause of action.

Commonwealth Elec. Co. v. MacCardell, 450 Mass. 48, 876 N.E.2d 405 (Sup.Jud.Ct. Mass. 2007). Thomas Murray owned two parcels of land. He granted an easement to the electric company for installation of transmission lines. The easement didn’t provide compass directions, but instead mentioned that the land was located in Duxbury and that the pole lines could “enter from land now or formerly of Plum Hill Avenue and cross to land now or formerly of Chester L. Churchill.” In 1944, the Murray estate filed an action in the Land Court to register and confirm the title to the two parcels. Both the certificate of title and the Land Court decree of registration mistakenly said that Lot 2 was subject to the pole easements when in fact was Lot 1. MacCardell owns Lot 1, the lot that contains the actual poles (which supply electricity to both her place and the adjacent property). Neither MacCardell’s title nor the next-door neighbor’s title mentions the utility easement. When her neighbor asked for increased electrical service, the power company decided it had to install a transformer.

oopsDuring its routine check on its easement, the utility found that there was an easement on Lot 2 but no easement on for Lot 1. The utility petitioned the Land Court to amend MacCardell’s title for Lot 1 to include the easement. MacCardell argued that in 1944 the Court’s decree imposed the easement on Lot 2, not Lot 1. She claimed she purchased a title with no encumbrances, and allowing the electric company to amend her title would impair her property. The Land Court entered judgment in favor of MacCardell. The utility appealed, but the Appeals Court affirmed the Land Court’s judgment. Thereafter, the electric company appealed to Massachusetts’ highest court.

Held: MacCardell owned her land free of the easement. Massachusetts law is settled that title holders and subsequent purchasers of registered land for value and in good faith take “free from all encumbrances except those noted on the certificate.” With respect to easements, the general rule is that in order to affect registered land as the servient estate, an easement must appear on the certificate of title. There are two exceptions to the general rule: (1) if there were facts described on the certificate of title that would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser had actual knowledge of a prior unregistered interest. In this case, no one disputed that the easement was not recorded anywhere in MacCardell’s chain of title. However, the utility argued that she had actual knowledge of the easement.

Who even notices utility poles?

Who even notices utility poles?

The “actual knowledge” exception means that for a titleholder to benefit from the protections afforded by the land registration system, the title holder must not possess actual knowledge of unregistered easements. The burden of proof lies with the party seeking to encumber an owner’s registered land, in this case, the electric company. Unfortunately for the utility, the Court said, it had presented no proof that MacCardell had actual knowledge of the easement.

All it argued was she had utility poles on her property, she could turn her lights on every morning, and she received a monthly utility bill. All of that proved she had knowledge, the utility claimed, because it was “inconceivable that a utility company’s installation and use of poles” would ever be permissive rather than a claim of right. The Court rejected this, suggesting that the poles, the power and the bill might equally suggest that the use may be adverse, which does not create an easement under the law, or a registered owner might have granted permissive use. What’s more, the Court said, the mere presence of a utility pole didn’t automatically place a registered landowner on notice that her property might be encumbered, because the actual owner of a utility pole isn’t readily ascertainable, and the average person may be unaware of the exact boundaries of the land. To meet the actual knowledge exception, the Court held, there must be some intelligible oral or written information that indicates the existence of an encumbrance or prior unregistered interest.

– Tom Root


Case of the Day – Wednesday, July 19, 2017


Residential developments often have restrictions in deeds, or just merely homeowners’ association rules, prohibiting different colors of house paint, refusing clotheslines and outbuildings, and even banning trees that block a neighbors’ view. And yet people buy houses in the developments, too excited at closing to pay a lot of attention to yet another page of legalese buried in a mountain of legalese. When – several years later – those restrictions get in the way of their whims, the unhappy parties blame everyone but themselves.

That happened to Gail Andrews, who bought a place at beautiful Sandpiper Village in Waldport, Oregon. These places aren’t cheap, but the ocean view makes them quite desirable.

Ms. Andrews lived harmoniously with her neighbors for several years, until a nearby homeowner asked her to trim her trees because they were blocking his view of the ocean. Ms. Andrews ignored his request. Not to be denied, the neighbor had the local homeowners association ask her to trim them. She didn’t ignore the homeowners association. Instead, she sued them, and her lawyer found a hook.

The restrictions on trees had been modified in 1993, a few years before she moved in. But then a year later, the association’s lawyer, trying to be helpful, decided to rewrite things a little. He added the phrase “designated ocean view lot” to the restriction, so it read “no trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” You know, he was just trying to be helpful, to make it a little clearer. Only problem was that there was no such thing as a “designated ocean view lot.” Ms. Andrews glommed onto the new language, claiming she didn’t have to trim her trees because her neighbor’s lot wasn’t a “designated ocean view lot.” In the alternative, she said the whole restriction was void because the homeowners had never passed on the “designated ocean view lot” language.

legaleseThe Court concluded that the evidence showed that the association’s lawyer never intended his rewrite the change the restriction that the homeowners had approved. Besides, Ms. Andrews had a chance to read all of the rules before she moved in. Her excuse was that some unnamed person who had been attached to the homeowners association had once told her that her neighbor’s place was not a “designated ocean view lot.” Kind of short on corroborative facts, Ms. Andrews, aren’t we? The Court thought so. Without revealing who and when the conversation occurred, Ms. Andrews was unconvincing.

There’s a lesson here for the helpful lawyer. If the restriction was too confusing as it was passed — and there’s no evidence it was — he should have asked the homeowners to vote on the new one. Being a lawyer, he should have foreseen that problems with the restriction wouldn’t arise from good faith confusion as much as bad-faith avoidance, and the non-trimmer would hire a mouthpiece who would try to drive a chainsaw through his “helpful” re-write. And why would anyone use gobbledygook like “designated ocean view lot” when there was no procedure for designating lots in the first place? punchThe lawyer’s helpful “fix” just created a mess and cost his client a lot of money. The unanswered question is whether his client punched him in the kisser and fired him, or just fired him without fisticuffs. It would be a close call.

Andrews v. Sandpiper Villagers, Inc., 170 P.3d 1098 (Or.App., 2007). Sandpiper Villagers, Inc., was the local association of homeowners in Sandpiper Village, a coastal subdivision. When the subdivision was built in 1968, the developer recorded a declaration of covenants and restrictions prohibiting trees, hedges, shrubbery, plantings or fencing over 6 feet tall. The restrictions were to remain in effect for 25 years, during which they could be amended by vote of the lot owners. In 1993, the association adopted an amended declaration providing that no trees, hedges, shrubbery, plantings or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. The next year, the association’s legal counsel drafted what he termed to be a “stylistic” change to the restriction, one that was not voted on by the homeowners. Following his change, the provision held that no “trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” Another provision stated “[i]f a provision is subject to more than one reasonable interpretation, any reasonable interpretation adopted by [the board] shall control.”

Andrews bought a lot in Sandpiper Village in 1997, after reviewing the 1994 restrictions as part of her title report. Six years later, another member of the association sent a written notice to Andrews asking her to trim trees on her property in order to preserve his view. She did not. When the ARC asked in writing that she do so, she sued, asking a ruling from the court that the association had no authority to require her to trim the trees because there was no documentation or other evidence showing that her neighbor’s property was a “designated [ocean] view lot.” She also asked that the restrictions be declared void as contrary to state statutes.

The Association moved for summary judgment, arguing that because the phrase “designated ocean view lots” was drafted as a stylistic change and never voted on by the homeowners, it should be disregarded. Without that phrase, the Association argued, the 1994 restrictions had the same effect as the 1993 restrictions. Alternatively, the Association said that, even assuming that phrase is a valid part of the 1994 restrictions, the phrase was ambiguous and the court either should defer to the ARC’s interpretation or determine – based on extrinsic evidence – that it was not intended to effect a substantive change to the 1993 restrictions under which all lots were entitled to view protection. The trial court awarded summary judgment in favor of the Association. Andrews appealed.

Held: The Court of Appeals upheld the judgment for the Association. If a text’s meaning is unambiguous, the Court said, courts decide the meaning of contractual provisions as a matter of law. If disputed contractual provisions are ambiguous, however, courts proceed to examine extrinsic evidence of the contracting parties’ intent, including, if helpful, evidence regarding the parties’ practical construction of an agreement.

Here, the phrase “designated ocean view lots” in the restrictions was unambiguous, referring to those lots that, as a matter of observable fact, had a view of the ocean. Plus, extrinsic evidence supported the Association’s claim that the regulations were unchanged from those approved by the homeowners. The Association’s lawyer’s contemporaneous communications indicated that his revised section of the regulations was intended to have the same substantive effect as section of regulations which, by its terms, did not restrict the protection of ocean views to any particular ocean view lots, such as those that someone had previously “designated” as having an ocean view.

Andrews argued that a prior chairman of the ARC assured her that her neighbor’s lot was not a “designated ocean view lot,” but the Court said that wasn’t a sufficient claim to create a factual dispute about the meaning of the restrictions. Andrews’ affidavit did not state whether the prior chairman was the chairman of the committee at the time she made the statement or, alternatively, at the time that the regulations were adopted.

– Tom Root