Case of the Day – Thursday, June 11, 2026

Posted on June 11, 2026 by TLRoot tagged.

THE DEVIL MADE ME DO IT

You know the guy I’m talking about. Nothing is ever his fault. The blame always lies with someone else. Think of John Belushi in The Blues Brothers, groveling at the feet of an assault rifle-toting Carrie Fisher, explaining all the reasons he had left her standing at the altar and ending with the plaintive wail, “It’s not my fault!”

Today’s defendants have something in common with the pathetic Jake Blue. For reasons unexplained (but I suspect, given this occurred on breathtaking Kodiak Island, Alaska, that it was intended to enhance their view), Joel and Darlene wanted to remove some trees on the downslope of the hill they lived on, out to about 400 feet. Most of the trees – beautiful 100-foot-plus Sitka spruces – were not on their property. A minor detail.

Darlene called her neighbor, Lisa, and asked whether she and her husband could cut down a few trees on Lisa’s land, you know, just trees that might pose a hazard if they were to fall in a windstorm across the property line and strike Joel and Darlene’s cabin. Lisa was at work when Darlene called her, and she didn’t really have a well-formed idea of what her neighbors had in mind. This was understandable, given that Darlene misled Lisa into believing they were talking about a few sickly boundary trees. Lisa, thinking that thinning the woods there would probably let more light in and spur growth, said that she did not mind at all.

When Lisa got home that evening, she discovered a denuded hill, with trees clear-cut from the boundary line toward her cabin for almost 400 feet. Hyperion itself couldn’t have fallen from that point and hit Joel and Darlene’s. Lisa was furious and called Darlene (who had the good sense not to answer the phone). Lisa told Darlene’s voicemail that there would be no more tree cutting.

Now for the fly in the ointment: Lisa had always thought that her land extended all the way from her cabin to Joel and Darlene’s property line. But it did not. Her brother, Paul, who had subdivided a larger parcel years before and sold Lisa one of the plots – the one with his old cabin on it – had reserved for himself a plot between Lisa’s and Joel and Darlene’s place. After selling in 1992, Paul had left for an extended sojourn (well over a decade) in Washington state and Hawaii. When he finally came home from wandering the Lower 48, some two years after the tree-cutting incident, he was not pleased. Paul demanded Lisa tell him who had cut all of his trees. That was when Lisa found out that much of the property between her cabin and the land up to Joel and Darlene’s property line belonged to Paul.

Naturally, Paul went after Joel and Darlene. Who wouldn’t? But they sniveled, “It’s not our fault! Lisa told us we could cut your trees!” Well, they did not exactly snivel, not audibly, but they promptly brought Lisa into the lawsuit as a third-party defendant. They maintained that because Lisa gave them permission to cut some trees without telling them that some of the intermediate land between their property and her cabin was Paul’s (and that they could not cut his trees), she was negligent. Joel and Darlene whined that if Paul had been damaged, Lisa owed Paul some of those damages. They argued Lisa had breached her duty to inform them, that she had made misrepresentations to them, and that she had breached her duty to Paul as well as a general duty she had to her neighbors.

The Alaska Supreme Court cut through Joel and Darlene’s arguments like a hot knife through butter. Lisa got nothing out of the tree-cutting episode, and she thus owed nobody nuthin’. Joel and Darlene had no right to rely on Lisa’s permission without checking the boundaries themselves. The Court’s finding might have been a blessing for the defendants, too, because it avoided the sticky question of whether – given Darlene’s obvious fraudulent misrepresentation to Lisa as to their tree-cutting – Lisa could possibly be liable at all. After all, if Darlene asked Lisa, “Hey, mind if we clear-cut 400 feet in the direction of your shanty so that we can improve our magnificent view?”, we suspect Lisa would not have been so forthcoming with permission.

Clearing up the issue of Lisa’s liability allowed the Alaska Supreme Court to get to the meat of the case, which was the amount of damages owed to Paul. We’ll take up that part of the holding tomorrow.

Wiersum v. Harder, 316 P.3d 557 (Supreme Court of Alaska, 2013). Paul Harder owned a pretty nice piece of Alaskan wilderness near Kodiak. He built a cabin on it and lived happily for quite a stretch. But when wanderlust set in back in 1992, he subdivided the land, sold the plot with the cabin on it to his sister Lisa and kept one for himself, and set off for parts unknown.

Not completely unknown, however. Paul spent the next 15 years living in Washington state and Hawaii, but he returned every so often to visit his plot of land and enjoy the hunting, fishing and recreation opportunities it afforded. It was, after all, overlooking Monashka Bay on Kodiak Island – it would be hard to stay away from home when it was as beautiful and wild as that.

About nine years after Paul went south, Joel and Darlene Wiersum bought some land at the top of a hill adjacent to the Harder tracts. Looking down the hill, they could see Lisa’s cabin several hundred yards below, and they assumed she owned everything between their home and hers. One day, Darlene called Lisa at work, and asked whether they could cut down some trees on Lisa’s property that Darlene thought might “come down with the wind” and fall on their land, damaging their home. Lisa readily gave them permission, because she thought the removal of some trees might “let a little more light in.”

Darlene was not being exactly straight with Lisa. She and Joel never intended to thin out some hazard trees. Instead, they intended to clear-cut the entire hill, out to more than 300 feet beyond their property line. When Lisa returned home from work later that day, the deed had been done; she discovered that bare naked hillside. Upset by the number of trees that had been cut, Lisa immediately called the Wiersums and left a message instructing them not to cut any more trees.

Paul did not return to the Last Frontier for about two years. When he did, he discovered the clear-cut hillside. Paul asked Lisa who had cut the trees, and then explained to her that the trees had been on his plot, not hers. After that, he promptly sued the Wiersums for timber trespass.

The Wiersums, apparently a couple not lacking chutzpah (just look at the clear-cutting escapade), filed a third-party complaint blaming Lisa for the trespass. They sought to apportion fault to Lisa, claiming she had negligently misrepresented that she owned the property where the trees were cut when she gave them permission to remove the trees from her property. The trial court granted Lisa’s summary judgment motion and dismissed the claim against her. The Wiersums and Paul went to trial, and a jury awarded Paul $161,000 in compensatory restoration damages along with statutory treble damages.

Held: Lisa was not liable for the Wiersums’ trespass, but the case had to be sent back to the trial court because the damages were excessive. Today, we’ll talk about Lisa’s “duty” to the Wiersums and her own brother.

The Wiersums contended that fault must be apportioned to Lisa because she was negligent in failing to disclose to Darlene that she did not know exactly where her property lines were and that Harder also owned property in the area. In essence, their negligence claim was based on the theory that Lisa had negligently misrepresented or failed to disclose information to the Wiersums, and her negligence thus caused them to trespass on Paul’s property and remove his trees.

However, the Court held, negligent misrepresentation requires a showing that a party made a misrepresentation in the course of her business, profession, or employment, or in any other transaction in which she has a pecuniary interest.” Likewise, a person is liable for failure to disclose information when there is an affirmative duty to do when someone “fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction.” Lisa had no financial interest in what the Wiersums did with their land and thus owed them no duty under a theory of negligent misrepresentation or failure to disclose information when she had an affirmative duty to do so.

But did Lisa owe a duty to Paul? The Wiersums argued that Lisa owed a broad duty of care to her neighbors – both themselves and Harder – and was liable for any unreasonable risk of harm to them that stemmed from her own conduct. They supported this assertion with references to the Restatement (Second) of Torts § 158 and § 165, and they cited decisions from other states in support of the rule that a “landowner who intends to have timber cut on his land owes a duty to an adjoining landowner to ascertain the boundary line of the adjoining land with diligence and care.”

None of these arguments carried the day. The Court held that sections 158 and 165 of the Restatement (Second) of Torts were inapplicable because they applied only where the person intentionally causes a third person to enter the property, that is, “commands or requests” a third person to enter the land of another. Lisa never commanded the Wiersums to do anything. Section 165 similarly provided no support for the Wiersums’ position but rather imposes liability where someone recklessly or negligently enters land in possession of another or causes “a thing or third person so to enter,” and thereby harms the land. Comment (a) to this section indicated that the rule applies where “the conduct of the actor either… involve[s] an unreasonable risk of invading the possessor’s interest in his exclusive possession of the land, or… [is] caused by an abnormally dangerous activity carried on by the actor.” Lisa’s act of giving the Wiersums permission to cut trees on her own land did not present an unreasonable risk that the Wiersums would enter Paul’s land and cut his trees.

The Wiersums also argued that a Texas case held that landowners who intended to cut timber on their own land owed a duty to adjoining landowners to ascertain the boundary lines of the adjoining land. But Lisa did not seek out the Wiersums to remove trees from her land, nor did she affirmatively offer inaccurate information about her property boundaries. The Wiersums did not ask her for this information and because this was not a business transaction, she was under no legal obligation to provide it. Thus, the Court said, she did not assume a duty to give accurate information to the Wiersums when they asked permission to remove her trees.

Finally, the Wiersums relied on Prosser and Keeton’s treatise on tort law for the rule that a landowner owes a broad duty “to cause no unreasonable risks of harm to others in the vicinity.” The Court was unimpressed. “Our prior decisions recognize that landowners have a duty to use due care to guard against unreasonable risks created by dangerous conditions existing on their property. We have also held that a landowner must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances. But we have never previously gone so far as to hold that a landowner has a broad duty to prevent the unreasonable risk of harm to her neighbors caused by third parties.”

Foreseeability of harm is the most important factor in whether Lisa had a duty to Paul, the Court said, and “there can be no duty where the harm is unforeseeable, but foreseeability alone is insufficient to establish a duty if the burden of taking care or the effect on society is too harsh.”

The foreseeability of harm to Paul resulting from Lisa’s conduct was low. Lisa made no active representation to the Wiersums implying that the trees on the hillside near their property were hers rather than Paul’s. She merely gave the Wiersums permission to cut trees on her own land. It was thus foreseeable that the Wiersums would cut trees on Lisa’s property, but it was not foreseeable that they would remove 70 large trees from Paul’s hillside – some of which were located between 300 and 400 feet from their own land – “without conducting proper due diligence to identify the true property owner and then seeking that person’s permission. No person,” the Court said, “can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.”

– Tom Root

And Now The News …

Posted on June 11, 2026 by TLRoot tagged.

Wichita, Kansas, Eagle, June 10, 2026: Who is responsible if neighbor’s tree falls on your home in Kansas? What to know

If a neighbor’s tree falls on your home, or if fallen branches make a dent in your property, you will likely wonder who is responsible for cleanup and damages. And while you may hope someone else’s insurance will pay for what could turn into costly repairs, that is usually not the case. “Generally, the responsibility for covering the damages from a fallen tree or branch goes to the insurance policy covering the damaged property, regardless of whether the tree was located on the property or not,” a spokesperson with the Kansas Department of Insurance told The Wichita Eagle. Several popular insurance providers also say tree damage to houses and structures is typically covered by the property owner’s homeowners insurance, including Allstate, Farmers Insurance, Geico, Progressive and State Farm. “When a neighbor’s tree damages your property, or your tree damages theirs, coverage usually doesn’t depend on who owns the tree,” Geico says. “In most cases, the affected homeowner’s policy will handle the damage…”

Insurance Business, June 10, 2026: West Bend sues to void tree firm’s policy over coverage exclusions

A tree-care insurer is fighting to walk away from a fallen worker’s injury claim – and it’s pointing straight at the fine print. West Bend Insurance Company has asked a federal court to declare it owes nothing to one of its own policyholders. On June 9, 2026, the insurer filed a complaint for declaratory judgment – a request for a judge to settle the parties’ rights before anyone pays out – in the U.S. District Court for the Middle District of Florida. The policyholder is Trees R Us, Inc., a tree-removal company. According to the complaint, West Bend issued Trees a commercial lines policy, number A091082 08, running from November 15, 2022, to November 15, 2023. The dispute starts with an injured worker. The filing says Michael Ray O’Dell sued Trees and two of its officers, Jenni Willis and Nick Willis, in Sarasota County, Florida. The complaint states O’Dell alleges he “was injured when he fell while performing tree removal work for Trees on a storm-related job in Florida” on January 14, 2023…

Minneapolis, Minnesota, WCCO-TV, June 10, 2026: Woman struck by 30-foot tree in St. Paul park left with physical, mental wounds

A woman injured when a large tree fell during a block party in downtown St. Paul says she continues to face physical and cognitive challenges a week and a half after the incident. Veronica Kingbird-Bratvold was walking through Mears Park with her niece, Dana King-Neadeau, on May 29, when a 30- to 35-foot tree suddenly came crashing down. “We were just getting to the park and walking down the pathway, and I just heard people yelling,” King-Neadeau said. Kingbird-Bratvold said she remembers hearing the tree crack before losing consciousness after being struck in the back. “Hearing the screams, the loud noise of the tree crack, and then next thing I know, I’m looking up a little bit, opening my eyes, and it’s really dark,” she said. Bystanders and first responders rushed to help. Kingbird-Bratvold recalled one man who comforted her as she went into shock and an officer who helped stabilize her…

Martha Stewart, June 10, 2026: 7 Places to Never Plant a Tree, According to Gardening Experts

Whether you want to grow a lush evergreen hedge or a dramatic willow, trees are a beautiful way to add height and color to the landscape. Many trees are relatively hands-off once they get established, but young trees need the proper growing conditions to ensure they thrive and reach maturity. To set your trees up for success, it’s important to take time to consider where to plant them. Research their sun and soil requirements, as well as how tall and wide they are expected to get. To help you select the optimal planting location, we’re sharing the places experts say you should never plant trees. Most trees need at least six hours of full sun per day to thrive. Insufficient sunlight can lead to slow growth, fungal diseases, pest infestations, and other issues. That said, some trees are understory trees and can tolerate shade. “Research the tree you want to plant and make sure that its sunlight requirements meet the conditions of the spot you intend to plant it in,” says Edwin Dysinger, expert gardener and co-founder of Seedtime…

New York City, The Wall Street Journal, June 8, 2026: The Bitter Feud Between a Dog Walker and a Dentist Over Who Owns the Beach

A recent trial in Shorewood, Wis., had all the trappings of a minor legal dispute. A disgruntled neighbor. A defendant representing himself who called his own father as a character witness. A $313 fine. But if academic and devoted dog walker Paul Florsheim gets his way, the case will go all the way up to the Wisconsin Supreme Court and reshape the contours of shoreline access to one of the Great Lakes. It started when Florsheim started walking his two dogs past the Lake Michigan property of dentist Daniel Domagala, known locally for the time he spends in a Tiki-style boathouse and deck that doubles as a surveillance post. From there, Domagala monitors traffic and sets off alarms to scare walkers, swimmers and kayakers away. Florsheim repeatedly ignored signs outside the dentist’s house that said “PRIVATE PROPERTY BEYOND THIS SIGN” and “ONLY WATER ACCESS BEYOND THIS POINT.” Domagala kept calling the cops, and the village eventually issued a trespassing citation. Rather than pay the fine and walk away, Florsheim dug in…

Crozet, Virginia, Gazette, June 7, 2026: Emerging Threats to Our Beech Trees and Boxwoods

Most of our yard is a lush green right now, despite those weeks with little rain and the April frost that knocked back some of our trees and shrubs. But it wasn’t long ago when we were grateful for any color that offered a respite from the bleak midwinter. On one side, we could see flecks of gold when the sun caught the leaves that cling to our American beech trees through the cold months, a trait known as marcescence. On the other side, our old boxwoods, planted decades before we moved to our house near Crozet, provided a punch of green even when everything was covered with ice. Now both of these features of our landscape are facing new threats: Beech Leaf Disease and the Box Tree Moth. First detected in northeast Ohio in 2012, Beech Leaf Disease gradually spread to New England and the mid-Atlantic states, reaching Northern Virginia (Prince William County) in 2021. It was confirmed in Albemarle County just last summer, after a hiker reported symptomatic trees in Preddy Creek Park—a great example of how an informed, sharp-eyed citizen can help monitor a threat to our natural resources…

Honolulu, Hawaii, Civil Beat, June 8, 2026: Hawaiʻi Must Build Smarter After The Floods — With Trees As Infrastructure

When entire communities face evacuation or emergency warnings, we tend to ask whether our infrastructure failed. After last month’s Kona low storms, that reality is unavoidable across Oʻahu and Maui County. A more important question is this: what kind of infrastructure did we build in the first place, and what did we leave out? As communities recover, the scale of disruption is clear: evacuations and flooding across Oʻahu and Maui, from Haleʻiwa and Waialua to Lahaina, Kīhei, ʻĪao Valley and East Molokaʻi. What these storms revealed, once again, is that many of our communities are not designed to absorb water. Instead, our landscapes have been built to move water as quickly as possible off roofs, across roads and into drainage systems that are increasingly pushed beyond their limits. When those systems fail, they fail all at once because they are designed to move water away, not absorb it…

Nashville, Tennessee, WPLN-TV, June 8, 2026: Survey: How to protect Nashville’s trees, creeks and stars

Nashville is creating a plan to protect trees, creeks and grasslands around town — and asking for community members to weigh in. It’s the city’s first comprehensive plan to address patterns of development and conservation since 2011. In the years since, Nashville’s urban landscape has changed, along with the scientific understanding of its ecosystems and the effects of human activity and climate change. The city plans to assess local environmental health to recommend conservation priorities, projects and policies over the next year and a half. The deadline for citizens to provide feedback to Metro is Thursday.  The city has been losing large numbers of trees each year due to development, invasive species and storms. For the latter, a prime case this year was the ice storm, which toppled tens of thousands of trees. In the aftermath, Nashville Electric Service’s new tree trimming policy has driven further tree loss…

Frontiers, June 5, 2026: This is how we found ‘The Heaven Sword,’ East Asia’s tallest tree after years of looking

Taiwan, historically known as Formosa, holds a secret deep within its rugged interior: it is one of the rare locations on our planet capable of supporting ‘giant’ trees—specimens that tower over 80 meters in height. Since 2014, our dedicated group, the ‘Taiwan tree seekers,’ has been on a mission to locate and document these sky-piercing giants. Our multidisciplinary team is a unique blend of professional tree climbers, ecologists, geologists, and remote sensing specialists. In 2023, this persistence paid off: we located the reigning champion of the island’s forests: an 84.1-meter-tall Taiwania fir (Taiwania cryptomerioides). This massive tree currently holds the title of the tallest tree in all of East Asia. To the Indigenous Rukai people, these gargantuan firs are known by a much more poetic name, ‘The tree that hits the moon’…

London, UK, The Guardian, June 7, 2026: Tax-break trees: how woodland became a store of wealth for the rich

On the English-Scottish border a small species of butterfly, the northern brown argus, has fended off one of the biggest investors in the UK. Todrig, with its heath moorlands and hundreds of species of flora and fauna, represents an investment that could save Britain’s wealthiest families millions of pounds in inheritance tax. But first the ground needs to be cleared, and sown with commercial tree saplings – a plan that has been defeated, for now, by the tiny butterfly. “No one wants this,” says Camilla Fowler, who chairs the local Lilliesleaf, Ashkirk and Midlem community council. “This kind of forestry scars the landscape and replaces it with monocultural, dark trees that harms our biodiversity.” Todrig – about 580 hectares (1,433 acres) – is the site of just one of many battles unfolding along the border, as big investors move in on vast expanses of land that can be stripped back and replanted for the mass production of timber…

Phys.org, Medieval pandemic left a hidden legacy in Europe’s oldest trees (June 6, 2026)

A new study published in the Proceedings of the National Academy of Sciences demonstrates how radiocarbon dating can reveal the maximum lifespan of Mediterranean hardwoods, uncovering hidden links between human history and long-term ecosystem dynamics. By analyzing mature and ancient oak trees across Italy, researchers found that a millennium of age is attainable from the Mediterranean coast to mountain environments. These are the oldest Mediterranean hardwood forest ecosystems on record, and they showed a pulse of regeneration after the mid-14th-century plague, when human populations collapsed and pressure on landscapes abruptly declined…

NBC News, June 7, 2026: This 1,000-year-old pine tree’s protector fears changing weather patterns

As temperatures neared their midday peak, Hu Xiaosong was doing his regular patrol, at an altitude of more than 5,500 feet, to protect a 1,000-year-old pine tree that he says is like family to him. This spectacular, oddly shaped pine is the most iconic landmark on China’s Yellow Mountain, or Huangshan, a major tourist site in the eastern Anhui province. Called the Guest-Greeting Pine, or Yingkesong in Mandarin, it is a symbol of hospitality and friendship, miraculously growing out of solid granite rock at the peak of the mountain. Hu is the tree’s main 19th-generation “bodyguard,” protecting it from severe weather, climate change and overzealous tourists. “I have been in this job for 16 years, and every day I take a patrol to inspect and protect this tree every two hours,” he said in an interview in Huangshan, where mayors from around the world gathered last week to discuss how to protect their cities from climate change and overtourism…

Detroit, Michigan, Free Press, June 4, 2026: Michigan’s cottonwood blizzard is starting. Why they’re making a mess

Fluffy white stuff is starting to float through the summer breeze, but you don’t have to worry — it’s not another round of snow. Cottonwood trees are filling the air with seeds, creating a slow-moving spectacle — and some extra yard work. From late May to mid- to late June, eastern cottonwood trees, native to Michigan, reproduce by dispersing small seeds attached to fluffy bunches of “cotton” into the air, known as, “wind-disseminated seeds,” according to Michigan State University Plant and Pest Diagnostics. While the tree’s goal is for seeds to land in the soil, root and grow they oftentimes collect around buildings, atop grass and other spots, resembling piles of snow. Cottonwood trees release their seeds for about two weeks, according to Purdue University Forestry and Natural Resources, but that’s plenty of time to create a mess…

San Antonio, Texas, KENS-TV, June 4, 2026: Invasive tree-killing beetle spreads to three more Texas counties

An invasive insect responsible for killing hundreds of millions of trees across North America has been detected in three additional Texas counties. According to Texas A&M Forest Service, emerald ash borers have now been confirmed in Young, Montague and Clay counties after adult beetles were captured in monitoring traps. The new detections expand the known range of the destructive pest, which was first found in Texas in 2016. The emerald ash borer is a metallic green, wood-boring beetle that attacks ash trees. As larvae tunnel beneath the bark, they disrupt the tree’s ability to transport water and nutrients, eventually killing it. “Monitoring is one of our most important tools for tracking the spread of emerald ash borer in Texas,” said Allen Smith, forest health program manager with Texas A&M Forest Service. “These detections help us better understand where the insect is present so landowners and municipalities can implement management strategies as it continues to move across the state.” Foresters use a network of distinctive purple traps across Texas to monitor the insect’s spread and identify new infestations…

New Haven, Connecticut, Independent, June 4, 2026: Tree-Trial Verdict: 4 To Fall, 2 To Stay

The city has decided to remove four Willow Street trees, while preserving — for now — two others that had also been on the chopping block, following a public hearing that saw 27 neighbors debate tree health and traffic safety at a Goatville intersection. In a decision later provided to the Independent on Thursday, city Tree Warden Annie Mixsell explained that the city’s decision to remove four trees and preserve two was made based on the trees’ condition, and secondarily based on proposed construction at the Willow-Nicoll intersection. She wrote that trees that have “reached an unacceptable level of risk” in their decline, as some have, must be removed. The process of assessing these three pin oaks and three zelkovas started, Mixsell wrote, because “the history of pedestrian and vehicular accidents at the intersection prompted proposed improvements to improve sightlines, slow vehicles, and increase safety for all.” Once plans were made, Mixsell was called in to assess how construction would affect neighborhood trees, many of which are coming to the end of their life spans…

Auckland, New Zealand, Herald, June 4, 2026: Judge discharges businessman who cut native trees on public land near Tasman property

A businessman who claimed to be a guardian of native flora and who supported principles of conservation has been penalised for cutting down native trees on public land bordering his luxury property. The 62-year-old admitted Department of Conservation (DoC) charges last year for felling five native black beech trees and other vegetation on a strip of land in Tasman. He claimed the beech trees posed a fire hazard to the seafront property and that DoC had granted permission years earlier. But the state-run conservation agency said it had never given him permission, while Fire and Emergency New Zealand said in an affidavit to the court that beech trees did not burn particularly well. In the Nelson District Court today the businessman was granted a discharge without conviction on charges described as taking plants from a conservation area without authority. The remnants of the beech trees cut down on Department of Conservation land on a coastal strip bordering Tasman Bay…

Knoxville, Tennessee, WATE-TV, June 3, 2026: I-75 noise ‘unbearable’ for Knoxville neighborhood after tree removal

Dozens of people who live in North Knoxville want a noise-abatement wall put up alongside their condo community, which lies a couple of hundred feet off I-75. Ever since trees and shrubs were removed last year, residents say the rumble of trucks, cars, and engine braking has become “unbearable.” From Lee Williams’ back porch, he has a direct view of I-75. However, it didn’t look like this when he moved in three years ago. His subdivision, Alpine Meadow, is just south of the Emory Road exit in North Knoxville. Where there is now a flat terrain, a thick grove of dense trees and shrubs was cut down last year. They once served as a natural sound barrier for homeowners who are closest to the road. Since the removal of trees and shrubs, highway noise levels have risen sharply. “It has just gotten louder, a lot louder,” said Williams. “At first, I could at least go outside. We could have conversations on our back deck. Now I can’t, we can’t do any of that. I just go outside, I cook, I grill out, and I just come right back inside….”

Norwich, Vermont, Valley News, June 2, 2026: Invasive beetle prompts removal of nearly 400 ash trees in Norwich

Nearly 400 trees along the “fastest and busiest” town roads are slated to be cut down over the next four months. The 394 trees along Beaver Meadow, Elm, Hopson, New Boston, Turnpike and Union Village roads make up just under 4% of the more than 10,000 ash trees along Norwich’s roadways, Doug Hardy, a member of Norwich’s Emerald Ash Borer Management Group, said last week. The collection consists of the “most dangerous” ash trees along well-traveled Norwich roads and “virtually everything” marked to be cut down already is infested with the invasive emerald ash borer. The $106,000 removal project began Monday. “We felt that the safest thing to do in the best interest of the community was to cut any ash tree which could fall into the road,” Hardy said…

Colchester, Vermont, Vermont Public, June 3, 2026: Scientists are injecting elm trees with a killer fungus to save them

Walking down into the floodplain at the Nature Conservancy’s preserve in Benson is like walking into a sea of American elm saplings. The trees criss-cross about 30 acres on the valley floor in tight rows. “American elm is a foundation tree species in floodplain forests,” says Leila Wilson, an ecologist with the U.S. Forest Service. “These are systems which are facing severe threats from non-native pests and pathogens, but we also know from other impacts, right? Land use change, conversion to agriculture, now climate change, and changing precipitation and temperature patterns. So these are systems that are in peril.” Wilson knows these trees well. Each one comes from a seed she harvested from a tree whose flowers she isolated with little plastic bags, then hand-fertilized using pollen collected in the lab. That pollen came from big old elms scattered across the Northeast…

Jackson, Mississippi, WLBT-TV, June 3, 2026: A neighbor’s cracked tree leans toward a house, here’s what the homeowner did when the owner wouldn’t remove it

Dead and dying trees from a neighboring property threatening homes is a problem many face. How do you handle the tree owner not taking responsibility? One Ridgeland property owner had to get the city involved to remove the hazard. A more than 50-foot dead tree hovers dangerously over the Ridgeland home. It is on the property of the neighbor. The property owner said they are getting no help with having it removed. “It’s already cracked at the bottom and it could fall any time,” said Bankeni Monzilli Tillman. Since January, Tillman has worried as the dead pine rests on branches of an oak tree over her house on Lincolnshire Boulevard. The tree is on Carol Thompson’s property. Tillman said Thompson hasn’t responded to requests to remove it. Thompson declined to comment about the dead tree. Tillman reached out to the City of Ridgeland and said it’s been four months of no action. “The tree’s probably gonna fall, and I just continue to pray and just ask God to keep it up until this is resolved,” said Tillman, “And we cannot go and cut the tree because it’s on her property, and that’s gonna be a trespassing problem…”

Fargo, North Dakota, AgWeek, June 1, 2026: Is the removal of trees to blame for relentless winds and blowing dirt?

It’s been nearly a century since dust filled the skies and spread across the country during the Dust Bowl. During the peak of fieldwork this spring across Minnesota and North Dakota, it may have felt as if history was repeating itself. As thousands of acres were tilled and planted, dry weather was exacerbated by howling winds day after day. It brought the National Weather Service in North Dakota to issue High Wind warnings, Dust Storm warnings and a Blowing Dust Advisory. The Minnesota Pollution Control Agency issued warnings about air quality. Matthew Olson, a forest stewardship manager in Lisbon, North Dakota, said the winds came at a horrible time as those fields were being opened up and were most susceptible to soil loss. In one of the social media posts put out by the National Weather Service in Bismarck, a commenter responded that the reason for the “micro-Dust Bowl” activity was that farmers are removing windbreaks to make room for more farmland. Others called that claim false, even saying that there are now more windbreaks than before…

St. Paul, Minnesota, myVillager, June 1, 2026: Proposed tree preservation ordinance is laid over once again

By the time it is finally adopted, Saint Paul’s long-delayed tree preservation ordinance could resemble a mighty oak. The Saint Paul City Council on May 20 laid over the proposed ordinance for another public hearing. The ordinance, which has been on the drawing boards for more than a year, continues to be amended. The community-led Tree Preservation Ordinance Public Input Group has continued to make recommendations. So has a group of staff from the city’s departments of Public Works and Parks and Recreation. According to City Council president Rebecca Noecker, city officials intend to have the ordinance and related rules ready for approval by late June. However, she added, the tree preservation measures need to be implemented correctly. Saint Paul’s tree canopy has been decimated in recent years by the emerald ash borer. Tree diseases and weather extremes, including severe storms, have also taken a toll. Many of the city’s low-income neighborhoods also contain relatively few trees along city boulevards and parks, raising concerns about equity and urban heat islands…

Kansas City, Missouri, KMBC-TV, May 29, 2026: Northland homeowner calls for cleanup after tree trimming debris left behind

A Northland homeowner contacted KMBC 9 Investigates after a tree removal company working for Evergy left a pile of limbs and debris in her yard, leading to confusion over cleanup responsibilities. Evergy has agreed to remove the debris after hearing about Michelle Crawford’s concerns on Friday. “My neighbors have said, ‘Hey, what are you doing over there? Maybe we ought to have a bonfire,'” Crawford said. She explained that a crew of seven or eight workers brought the debris out from a tree line near power lines behind her home last month. It followed work in December on the same area. Crawford has tried contacting Evergy and the tree trimmers to address the mess but has not received clear answers on next steps. “I feel lost,” she said. “You know, I’ve called, called, called, and I haven’t gotten the answer we need because it’s still sitting here…”

New Orleans, Louisiana, WDSU-TV, June 1, 2026: New Orleans-area arborists provide tips for preparing trees for hurricane season

Tree-lined streets in areas like Esplanade Avenue, Magazine Street, Old Metairie, and the Northshore are admired for their beauty and shade, but they can become hazardous during hurricanes, causing property damage and power outages. David Benton, vice president of Bayou Tree Services, encouraged homeowners to act before hurricane season begins. “The best thing you can do is call prior to hurricane season starting, get on the list, and then that way you can make an informed decision and not make an impulsive decision on something that may be drastic as to remove a large mature tree in your yard,” Benton said. Experienced arborists can identify issues that may not be visible to the average person. “We look at the trees, and when we assess, what we’re looking for is obviously, you know, broken, dead limbs,” said Jessie Mudge, lead arborist at NOLA Tree Solutions. “Not so obviously, we look for a lot of signs of the tree moss or mushrooms growing up the base of the tree, different things like that give us an idea as to the health of the tree…”

Winnipeg, Manitoba, CBC, May 30, 2026: Wildfires are destroying trees faster than we are replacing them

Marley Moose is spending her third summer planting trees in northern Manitoba as part of a crew trying to help Mother Nature regenerate forests destroyed by wildfires. But that goal has become more challenging with the cancellation of a federal program that aimed to plant two billion trees by 2030. “Everywhere around me is burnt, but it’s where life used to be, so we’re back here giving life back to these dead areas,” said Moose, 22, efficiently digging a hole and slipping tiny jack pine and black spruce trees into the ground. In 2016, this forest in Manitoba’s Interlake region, about 300 kilometres northwest of Winnipeg, was devastated by a jack pine budworm infestation. It was starting to regenerate when wildfire ravaged the Devils Lake area in 2021. Areas just north are already burning this spring…

London, UK, BBC Wildlife, May 31, 2026: “It’s like being electrocuted and set on fire at the same time…” Discover one of the world’s most dangerous trees

The gympie-gympie tree (Dendrocnide moroides) – also known as the stinging tree – is primarily found in Australian rainforests and certainly doesn’t look all that threatening at first glance. It stands at a maximum of 10 metres tall, and its melodic name comes from a language of the indigenous Gubbi Gubbi people of south-eastern Queensland. You don’t want to get too close to this tree – its stem, leaves, and fruit are all covered in fine hairs that, when touched, inject toxin into the skin, causing severe stinging that can last for days, weeks or even longer. Among the first to document the painful effects of the gympie-gympie tree was road surveyor A.C. Macmillan, writing in a letter in 1866 that his horse “was stung, got mad, and died within two hours…”

Case of the Day – Wednesday, June 10, 2026

Posted on June 10, 2026 by TLRoot tagged.

PARTNERING WITH THE GOVERNMENT

Unfiled lawsuits rarely get better if you continue to delay.

Tony Balducci had a couple of parcels on Sumner Street in beautiful Lunenburg, Massachusetts. One of them, a property at 240 Sumner, was subject to occasional flooding due to poor drainage. Tony wanted the problem remedied, so he made a deal to partner up with the Town to install a drainpipe. Like most deals of this nature, Tony’s job was simply to pay, and the Town’s end of the project was to do the actual work.

The directionally-challenged workers for the town installed a drainpipe. It’s just that Mr. B had two places on Sumner, not just one. And (you guessed it), the drainpipe was installed at 244 Sumner Street instead of 240 Sumner Street (where it was supposed to be set). The result, of course – besides a drainpipe installed where it wasn’t needed – was that the flooding problems continued at 240 Sumner, where it was needed but not installed.

Tony was galvanized into action… some seven years after the error. The mystery is why it took him so long to notice the Town’s error and why – after he figured it out a year later – it took him more than six years to sue. There is, of course, a statute of limitations to just about every kind of action, civil or criminal. In Massachusetts, the statute of limitations for contracts is six years. The Town argued he had waited too long to sue. Tony responded that he had six years from the time he discovered the mistake – not from the time of the mistake itself – to sue.

The Court agreed that the “discovery rule” let Tony run his time to file a lawsuit from the day he learned of the Town’s blunder, but his victory proved to be a hollow one. Quite often, laws permitting suits against governments contain what are called “exhaustion” requirements. Before you can sue, you have to “exhaust” your administrative remedies by filing a claim with the governmental agency, usually on a prescribed form with a prescribed number of copies and according to a prescribed schedule. The goal, public policy types tell us, is to enable the governmental agency to resolve problems short of lawsuits by promptly and fairly addressing the claimant’s concerns.

Well, Bill Barr has a description that characterized the former and current President’s election theories and, incidentally, fits the exhaustion rationale to a “T.” The real purpose of the “exhaustion” requirement is to exhaust people like Tony or—barring the grinding down of the citizenry with arcane complaint requirements—to set a snare to trap the unwary.

Tony Balducci was one of those unwary ones. Whatever else he might have done during the six-year interregnum between discovering that the drainpipe was in the wrong place and suing, Tony never made a demand on the Town to cure its negligence. That meant that his claim for negligence had not been administratively exhausted, and the count was thus thrown out. Unsurprisingly, the Massachusetts Tort Claims Act required that such a demand — called “presentment” — be made on the municipality before a lawsuit could be filed.

It is not clear how Mr. Balducci missed the fact the Town had put the drainpipe in the wrong place, or - for that matter - that his property was still a little damp.

It is not clear how Tony missed the fact the Town had put the drainpipe in the wrong place, or – for that matter – that his property was still a little damp.

Tony had a few other claims to make against the Town, including trespass and wrongful removal of trees. After all, he had given the Town the OK to enter 240 Sumner but not 244 Sumner. Those counts were not subject to an exhaustion requirement, and they survived. But it’s clear that early in his lawsuit, Tony already had a big mountain to climb. More careful procedural planning — not to mention being quicker out of the chute — would have saved him some legal headaches now.

Balducci v. Town of Lunenburg, 23 Mass. L. Rep. 289 (2007), 2007 Mass. Super. LEXIS 497, 2007 WL 4248021 (Mass.Super. 2007). Tony Balducci owned two properties next to each other on Sumner in the Town of Lunenburg. In 2000, he and the Town entered into a written agreement for the replacement of a drainpipe located on his property, with Tony and the Town splitting the cost. He gave the Town an easement for the installation. But instead of installing the drainpipe at 240 Sumner Street, the Town installed it at 244 Sumner Street. As a result, Tony continued to experience flooding in his building at 240 Summer Street. He sued the Town of Lunenburg, alleging breach of contract, negligence, trespass, willful trespass to trees, and nuisance.

The Town moved to dismiss, arguing that the various counts should be dismissed due to the statute of limitations, a failure to comply with the Massachusetts Tort Claims Act, and failure to state a claim upon which relief may be granted.

Held: The Town’s motion was only granted in part. The Town first argued that Tony’s claim was barred by the statute of limitations because he brought the action more than six years after the alleged breach. But the Court observed that the “discovery rule” operates to toll — or suspend — a limitations period until a plaintiff learned or should have learned that he has been injured by the defendant’s conduct. Because Tony could present facts that show that he only learned of the improper installation of the drainpipe in 2001 when his basement flooded, the Court was unwilling to dismiss the action on the basis of the Town’s motion alone.

Likewise, the Court denied the Town’s argument that the contract action should be dismissed for failure to state a claim. The Court said there were genuine issues of material fact as to whether the Town had permission to install the drainpipe where it did, and whether it did so properly. The agreement was vague as to where the drainpipe should be installed, and the Town’s easement only referred to the agreement.

However, the Town was able to get the negligence claim dismissed. The Massachusetts Tort Claims Act required that a party present its claim in writing before suing. If a party does not fulfill this requirement, its case has to be dismissed for failure to state a claim upon which relief may be granted. Tony did not aver in his complaint that he has complied with the MTCA, requiring that the negligence count be dismissed.

The trespass claim — that the Town trespassed when it entered the wrong parcel of land to install the drainpipe and that the permanent nature of the drainpipe has created a continuous trespass — would not be dismissed. An action for trespass against a municipality does not come under the MTCA, so Tony was able to proceed on this claim without making any form of presentment. Tony’s complaint that the Town unlawfully removed trees from his property in violation of state statute, would not be dismissed.

Tony argued that because the easement deed wasn’t recorded until late 2004, the discovery rule barred dismissal of this count under the statute of limitations. While the Court didn’t agree with that argument, it held Tony appeared to be able to show a set of facts, such as that he did not become aware that trees on the wrong property were cut down until the easement deed was filed in December 2004.

Finally, Tony argued the Town created a private nuisance when it installed the drainpipe on Tony’s property. The Town argued the count should be dismissed for failure to state a claim upon which relief may be granted, as the allegations could not constitute a private nuisance. The Court disagreed, noting that where a municipality is the owner or in control of real estate and creates or permits a private nuisance to another person’s real property, it was liable just as a natural person would be. The essence of private nuisance is injury to property or persons outside the public place controlled by the municipality. There was a genuine issue of material fact as to whether the Town installed a drainpipe on the property it controlled, which is now causing injury to Tony’s land.

– Tom Root

Case of the Day – Tuesday, June 9, 2026

Posted on June 9, 2026 by TLRoot tagged.

WHEN LESS CAN BE MORE …

Horrific crashes. They happen everywhere. Someone blasts through a stop sign late at night and slams into another car. One driver dies. A lawsuit ensues.

It’s an all-too-frequent tragedy. In today’s case, however, the inevitable lawsuit by the next-of-kin has an unusual twist. The surviving driver wasn’t the only one named as a defendant. Included in the lawsuit was the owner of the corner property, who was accused of contributing to the accident by letting overgrown trees and shrubs obscure the stop sign.

The investigating highway patrol officer testified that the sight lines were not so obscured that the offending driver couldn’t have seen the traffic sign. But the Court of Appeals decided that it wasn’t necessary to sort that out, because Georgia law resolved the issue.

It turns out that a state statute made it unlawful for a property owner to place any unauthorized device or structure in such a location as to obscure traffic signs. Over the years, the courts had defined the statute to include trees and shrubs planted by the owner as among the prohibited devices. But the catch is that the owner himself or herself must have planted the trees and shrubs: if the overgrowth was natural, it could be a rainforest for all Georgia law cared.

The sign’s obscured by a rainforest? That’s fine with Georgia, as long as you didn’t plant it …

The Court held that because there was no proof the landowner had planted the overgrown vegetation, it didn’t matter how bushy he had let it become. The landowner couldn’t be liable. The lesson seemed to be that the less you do to take care of your place, the better off you are. Truly, less can be more…

Estate of Rachels v. Thompson, 658 S.E.2d 890, 290 Ga.App. 115 (Ga.App. 2008). Around midnight on July 4, 2003, young Winston Rachels was driving his truck northbound on Kent Rock Road, approaching Emmitt Steel Road. There is a stop sign on Kent Rock Road at its intersection with Emmitt Steel Road, but no stop sign on Emmitt Steel Road. Around this same time, Ashley Grant was traveling westbound on Emmitt Steel Road in a Jeep. Ashley did not see Winston’s truck until immediately prior to the accident. The truck and Jeep collided.

The sign, it turned out, was covered with kudzu …

Winston’s estate sued Walter Thompson, the property owner adjacent to the road, on the grounds that the property was overgrown, thus hindering visibility. The Estate’s negligence claim was premised upon Walt having violated O.C.G.A. § 32-6-51, which provides that “[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which: … (3) Obstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads[.]” The lower court dismissed the case, and the Estate appealed.

Held: The case was dismissed.

The Court noted that O.C.G.A. § 32-6-51 has been interpreted to include purposely planted trees and other vegetation, including an allegedly vision-obstructing row of trees planted by the defendant. But here, there was no evidence that Walt had planted the foliage at issue. The photos placed into the record by the Estate in opposition to the motion show a lot overgrown with kudzu.

In his response to the Estate’s interrogatories, Walt said that “[t]here are no improvements on the property[,]” and [s]ince there were no improvements on the property, no maintenance was required.”

The Court held that the Estate had failed to show Walt breached any duty to trim vegetation that he purportedly owed Winston, and summary judgment was correctly granted to Walt.

– Tom Root

Case of the Day – Monday, June 8, 2026

Posted on June 8, 2026 by TLRoot

IN THE BEGINNING…

Who could forget the opening, the sitar strings, Eric Burdon’s urgently whispered intonation, then the pounding of the drums. Yeah, Summer of Love, Monterey International Pop Festival, the Animals…

We bring up “in the beginning” (not the much better-known use of the phrase) because it seems that everything arboreal in the common law sprang from the flinty ground of New England in 1931 with the Massachusetts Rule. We all know the Massachusetts Rule:

A property owner’s remedies when branches overhang or roots intrude from a tree on a neighbor’s land are limited to “self-help.” In other words, a suffering property owner may cut off the boughs and roots of a neighbor’s trees that intrude onto another person’s land. But the law will not permit a plaintiff to recover damages for invasion of his property by branches or roots of trees belonging to an adjoining landowner. And a plaintiff cannot obtain equitable relief — that is, an injunction — to compel an adjoining landowner to remove roots or branches of such trees invading the plaintiff’s property or to restrain such encroachment.

We all have come to think that the Bay Staters invented the Massachusetts Rule. Fact is, they did not. Just as the Hawaii Rule was around before Hawaii was even an American possession, the Massachusetts Rule predated Michalson v. Nutting by at least 40 years, and probably – if we delved back into English common law – much longer.

Today, a railroad got tired of its engineer being smacked in the face by some overhanging branches belonging to Mr. Hickey. It offered him $10 to cut down the trees (not a bad sum in 1893, about $375 today). He declined. So the railroad sent its own crew to cut the branches off at the property line. Mr. Hickey sued. The railroad defended. And the Michigan Supreme Court gave us a Hickey Rule.

They gave us a Hickey? Maybe calling it the Massachusetts Rule is a better choice.

Hickey v. Michigan Central Railroad Co., 96 Mich. 498, 55 N.W. 989 (Mich. 1893). Mr. Hickey lived next to the Michigan Central right-of-way. Probably to wall off some of the noise and cinders, he planted trees along the boundary of the railroad right-of-way. The branches eventually overhung the right of way to such an extent that at times they brushed against the face of the engineer when his duties required him to lean out of his cab for the purpose of maintaining a lookout.

Finally, the Michigan Central sent a crew to trim the branches of the trees up to the fence line. Mr. Hickey did not claim the trees were damaged beyond this, or more than was necessary to remove the overhanging branches. The questions presented was simply whether these overhanging branches constituted a nuisance, and whether, as a nuisance, the Michigan Central had the right to cut them, and whether, before cutting them, the railroad was obligated to serve notice on Mr. Hickey that it would do so, giving him the opportunity to remove them himself.

At trial, Mr. Hickey testified that a Michigan Central supervisor had complained that the overhanging “You had better take it, or someday I will get an order to cut down those trees, and then you won’t get anything.”

The trial court held that the Michigan Central had a duty to notify Mr. Hickey that the branches were an obstruction, that he must remove the branches or the trees, or that they would do so. Then, if he refused, the railroad might remove the branches from the right of way itself.

The Michigan Supreme Court reversed, holding that any person injured by a nuisance, to the extent that he may maintain an action at law therefor, may remove so much of the nuisance as is necessary to secure to himself immunity from damage therefrom; but he must not be guilty of any excess therein, for, as to all excess of abatement, he will be a trespasser.”

The general rule is subject to this exception: “Where the act complained of is one of positive wrong or willful negligence, or the security of life and property is endangered, and the danger seems imminent, the party threatened with the injury may abate the same without giving notice to the wrongdoer, or waiting for him to remove it. Where, however, the nuisance is merely permitted to exist, and the case is not very urgent, notice and an opportunity to remove it are essential, before the complaining party would be justified in forcibly abating the same.”

But it turns out that this exception has an exception. “There is no decided case,” the Court said, “which sanctions the abatement, by an individual, of nuisances by omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. The permitting these branches to extend so far beyond the soil of the owner of the trees is a most unequivocal act of negligence, which distinguishes this case from most of the other cases that have occurred.”

The rule, the Court said, was that “trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent, they are nuisances, and the person over whose land they extend may cut them off or have his action for damages and an abatement of the nuisance, against the owner or occupant of the land on which they grow, but he may not cut down the tree. Neither can he cut the branches thereof, beyond the extent to which they overhang his soil.”

The purpose of notice in such a case, the Court said, is evident: it is to give to the owner the opportunity of himself abating the nuisance. Here, no one disputed that Mr. Hickey knew that Michigan Central found the overhang to be a nuisance, and he refused payment to abate the nuisance. “We think,” the Court held, that “he is not in a position to insist that he was entitled to further notice.”

– Tom Root

Case of the Day – Friday, June 5, 2026

Posted on June 5, 2026 by TLRoot tagged.

EVERYTHING WE KNOW IS WRONG – PART 1

If there are two basic building blocks of tree law, they are the Massachusetts Rule – that New England rock of individualism and self-reliance – and the Hawaii Rule – that piece of creeping socialism that lets a property owner use the courts to force a neighbor to remove a tree that was a bother (we said that tongue-in-cheek).

After running out of gas and the funds needed to pay for it, I was homebound. For something to do, I went on a quest to identify the legal precedent in every state that addresses the issue of the encroachment of overhanging limbs and subsurface roots, so that we could present a state-by-state compendium of encroachment law. It was either that or cut the grass on my hands and knees with a pair of scissors (no gas for the mower). Wisely, I opted to go the encroachment route.

I had not even gotten out of the Northwest Territory – remember what that is? – when I found that the Massachusetts Rule did not start in Massachusetts. What’s more, as we see today, the Hawaii Rule was the law of the land in the Hoosier State back when Hawaii still had a queen, and the Americans had yet to diddle in the affairs of the Kingdom in order to engineer annexation.

Indiana’s rule can be summed up as this: a tree that encroaches on a neighbor’s property and creates a nuisance – producing such a condition that in the judgment of reasonable persons is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits” – has to be removed at the expense of the tree’s owners.

A tough place, Indiana… In today’s case, a tree that had once belonged to the plaintiff – who had sold the property to the defendant – had grown into the boundary fence, damaging it. The roots raised some sidewalk slabs on a walkway the plaintiff maintained near the boundary. The plaintiff, unwilling to fix the rather minor damage ($2,500 in 2010, not a princely sum), went to small claims court to make the other guys pay.

It seems to us that as a matter of equity, the plaintiff knew something like this would happen when he let the tree sprout years before, at a time when he owned the parcel on which the tree was growing. But equity appeared not to have any place in the courtroom that day.

But back to my basic point: the Hawaii Rule did not originate in Hawaii at all. What we thought we knew about that Rule turns out to be wrong. What next? Is the Massachusetts Rule equally mislabeled? Tune in tomorrow…

Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind.App. 2011). Steve Scheckel owned a piece of property separated by a chain-link fence from a plot belonging to NLI, Inc. Steve has a walkway paralleling the fence that runs about five feet from the boundary line. Steve had previously owned both his land and the NLI property, and – when he had – a tree grew on the NLI property near the fence. After he sold the land to NLI, the tree continued to grow, as trees are wont to do, until it grew into the fence and its roots grew under the walkway, leaving the gate in the fence unusable and the walkway badly cracked and buckled. Steve spent $2,500 fixing the mess.

Steve complained to NLI about the damage, but the corporation took no action. He then sued NLI for negligence and nuisance in small claims court. The court found for NLI on the grounds that while the size and placement of the tree damaged the fence and walkway, a landowner is not liable for harm caused beyond property boundaries by a natural condition of the land.

Steve appealed.

Held: The Court of Appeals reversed, and ordered that the trial court find NLI liable.

Steve contended that the trial court erred in applying the “natural condition” rule. The natural condition rule, as set out in which provides that a landowner was not liable for harms caused to others outside of his land caused by a natural condition of the land, arose “at a time when land was largely unsettled and the burden imposed on a landowner to inspect it for safety was held to exceed the societal benefit of preventing possible harm to passersby.”

Over the years, the rule has been subject to exceptions when landowners had actual knowledge of a dangerous natural condition, regardless of location, and – in an urban area – when he or she fails to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of the trees on the land near the highway. The rationale for imposing such a duty on urban landowners is that the risk of harm to highway users is greater and the burden of inspection on landowners is lighter in such populated areas.

Most recently, the Indiana Supreme Court observed that the natural condition rule, as stated in the Restatement of Torts § 363(2), has little or no utility in an urban setting. A landowner in an urban or residential area “has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring land owners, arising from the condition of trees on his or her property.”

Here, the Court of Appeals said that

[s]trictly applying the Restatement rule in these settings would leave landowners powerless in the face of a neighbor who refuses to remove or secure an obviously decayed and dangerous tree simply because it is a natural condition of the land. As a result, Indiana, along with several of our sister states, has retreated from strictly applying the Restatement rule in urban or residential settings where the landowners have actual or constructive knowledge of the dangerous condition.

Here, the small claims court held that the condition of NLI’s tree did not pose an unreasonable risk of harm to neighboring landowners, but rather the placement and size of the tree that caused the damage. The Court of Appeals, however, disagreed, seeing “no meaningful difference between the two situations. Indeed, it may be difficult to determine whether a tree is decayed to such an extent that it poses an unreasonable risk of harm to an adjoining property owner, but a tree upon one’s property that is growing into a structure on an adjoining property is readily observable.”

The Court applied a three-part duty analysis it adopted from an Indiana Supreme Court ruling, concluding that a landowner in a residential or urban community owes a duty to prevent an unreasonable risk of harm to adjoining property owners or their property resulting from trees growing upon the landowner’s property. Those three factors – relationship, foreseeability and public policy – all support its conclusion that NLI owed Steve a duty:

The relationship is significant in that it is between the owners of adjoining property, and will often be that of next door neighbors. There is a high degree of foreseeability of harm where one’s tree is growing into a structure on an adjoining property. Finally, the landowner is best situated to prevent or minimize the harm by trimming the tree upon the landowner’s property. Accordingly, we conclude that the trial court erred in applying the natural condition rule to bar Scheckel’s negligence claim.

The Court also said the natural condition rule did not bar Steve’s private nuisance claim, either. A nuisance is defined as whatever is injurious to health, indecent, offensive to the senses, or an obstruction of the free use of property, such that it essentially interferes with the comfortable enjoyment of life or property. Ind.Code § 32-30-6-6. A public nuisance affects an entire neighborhood or community, while a private nuisance affects only one individual or a determinate number of people, arising when it has been demonstrated that one party has used his property to the detriment of the use and enjoyment of another’s property.

Nuisance actions may either be nuisances per se (at law) or nuisances per accidens (in fact). A nuisance per se occurs when the use itself is unlawful. A nuisance per accidens, a nuisance-in-fact, is not a nuisance in itself but becomes one by the manner in which it operates. In determining whether a private nuisance per accidens is actionable, the inquiry is whether the alleged nuisance produces such a condition that, in the judgment of reasonable persons, is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits.”

Ever since 1894, the Court said, Indiana has recognized the right of landowners to recover damages to their property caused by trees growing on an adjoining property as a private nuisance. In the 1894 Toledo, St. Louis & Kansas City Railroad Co. v. Loop decision, the Indiana Supreme Court held that in the event of trees growing so close to the boundary line between two properties that their branches encroach on the adjoining premises, the adjoining landowner may have an action for damages in nuisance if injury were shown.

The Court of Appeals concluded that the trial court erred by applying the Restatement’s natural condition rule to Steve’s cause of action.

– Tom Root

Case of the Day – Thursday, June 4, 2026

Posted on June 4, 2026 by TLRoot tagged.

THOSE OLDIES BUT GOODIES

Back a century ago or so, when the car was new-fangled, the airplane only read about in magazines, and no one had any broadband, simpler tree questions than our usual fare were being asked. And answered.

Here’s a sample tree question from those days: I have an apple tree growing close to our mutual property boundary. Some of the branches overhang your land, and every year, beautiful ripe apples fall on your side of the property line as well as on mine. Whose apples are they?

If you read yesterday’s case, you would say, “Why they’re mine, because I own the soil, the air branches above and the roots below,” remembering well the doctrine of cujus est solum ejus est usque ad coelum et ad inferos. And you would be…

Wrong.

At common law, the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

Now let’s make the issue more complex. Mr. X owns the timber rights to Blackacre (the name of the mythical piece of land that is the centerpiece of every first-year law school property law question). Ms. Y, however, holds title to Blackacre, subject only to Mr. X’s right to cut down the trees.

Now it turns out that the Blackacre trees are quite fecund, shedding copious amounts of valuable chestnuts. Ms. Y plans to make chestnut stuffing at Thanksgiving. Mr. X, however, says the nuts are his, because they came from the trees to which he has the rights to the trees. He intends to roast the chestnuts over an open fire at Christmas.

‘Aw, nuts!’ you say. ‘You fooled me about the apples. I’m not even going to try to guess. I have no idea.’

Neither did Roscoe Vincent and S.R. Haycraft, protagonist and antagonist in today’s 104-year old antique case from Kentucky.

The court sorted it out for the boys. It’s answer? ‘It depends.’

We love those kinds of answers.

Vincent v. Haycraft, 66 S.W. 613 (Ky.App. 1914). Gillis Vincent conveyed 35 acres of woodland to S. R. Haycraft, reserving to “all timber upon the land herein conveyed with the free and unobstructed right to cut and remove same for the final period of seven years from this date.” Shortly after the sale, Gillis sold the timber rights to Roscoe Vincent. A year later, Roscoe bought the acreage from S.R. Haycraft.

But S.R. reserved possession of the acreage for a year, agreeing to give occupancy of the tract to Roscoe on New Year’s Day 1913. The timber on the land consisted principally of beech trees, and in the fall before S.R. gave up possession, the trees produced a bumper crop of mast.

Mast is the fruit of the beech tree, found in small burrs that drop from the tree in autumn. They are small, roughly triangular and edible, with a bitter, astringent, or in some cases, mild and nut-like taste. They have a high enough fat content that they can be pressed for edible oil. At the time, mast was chiefly valuable as a food for hogs. The beech mast ripened and fell on the ground in the months of October and November.

The issue was whether the mast belonged to Roscoe Vincent, who had acquired title to both the timber and the land, or S.R. Haycraft, who had retained the use and possession of the land until January 1, 1913? The court below held that the mast belonged to Haycraft. Roscoe Vincent appealed.

Held: The mast belonged to S.R. Haycraft.

Roscoe argued that S.R. never acquired any title to the timber. Therefore, when he sold the land to Roscoe, he could only reserve the use and possession of the land that he had previously owned. Roscoe argued that the reservation of the timber carried with it the reservation of the fruit of the timber. Having no title to the timber, he said, S.R. could in no way acquire title to the fruit of the timber. He compared the situation to that of a fruit tree overhanging the premises of another, in which event it is generally held that the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

The Court agreed that S.R.’s purpose was to reserve until the following January 1st whatever estate he had in the land by virtue of his original deed, and it acknowledged that mast is as much the “fruit of the beech tree as the acorn is of the oak, the chestnut of the chestnut tree, or the walnut of the walnut tree.” But it is not like the fruit of a fruit tree.

In the case of fruit falling onto adjoining property, the Court said, the neighboring landowner on whose soil the fruit falls has no interest in the adjoining land of which the tree is a part, and thus, no right to the fruit. Nor is it like the sale of an orchard with the reservation of possession of certain of the trees. “The sole purpose of reserving an orchard or certain fruit trees,” the Court held, “would be to reserve the fruit, for fruit trees are valuable for the fruit alone.”

Here, the case depends on the parties’ intention. The primary purpose of the reservation was the timber itself, and not the incidental fruits of the timber.

Generally, the Court ruled, a sale or reservation of timber to be cut and removed within a specified time is a sale or reservation of only so much as may be cut and removed within that time. Therefore, the removal of the timber within the time specified is an element necessary to the completion of the title. Here, Gillis and, later, Roscoe had the right at any time before the expiration of their timber reservation to cut and remove as much timber as they could. While S.R. reserved the use and possession of the land after sale to Roscoe, Roscoe retained the right to go upon the land and cut and remove the timber, as well as any constituent part of the timber.

Roscoe retained the right to the mast, in other words, as long as it was hanging on the tree. When, however, the mast became ripe and fell on the ground, it was no longer a part of the timber, and the right to cut and remove the timber did not carry with it the independent right to go on the premises and carry away the fallen mast.

Thus, S.R.’s retention of the use and possession of the land until the following January 1st gave him the right to collect the ripened mast that had fallen on the ground during the months of October and November.

– Thomas L. Root