Case of the Day – Tuesday, May 14, 2024

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A PRESCRIPTION FOR TROUBLE

We all know about adverse possession, that peculiar legal doctrine that holds in essence that if you’re brazen enough to trespass on someone else’s land continuously for a period prescribed by statute, the property becomes yours. In most places, such as Pennsylvania, the period is 21 years long. So for 20 years, 11 months and 31 days, you’re a squatter. The next day, you’re landed gentry.

It seemed to me like judicially-sanctioned theft when I learned about adverse possession in law school (so long ago that over twice the statutory period has passed since I walked those hallowed halls). The theory, my property professor droned, was that public policy favored productive use of the land, and taking over a piece of land from an owner careless enough to let you take it over put it to more productive use,\ and thus should reward the taker. So if I like my piece of country property as a preserve for the birdies and little critters, and you want to bulldoze it for a new Starbucks, you win. The whole notion seems as cockeyed to me now as it did when I was a well-scrubbed and wide-eyed first-year law student back in the halcyon days of the 1970s.

To claim adverse possession, you have to show that your occupation of the land was open, notorious, hostile and adverse to the interest of the owner a continuous period of whatever the statute prescribes, say 21 years as an example. Some might say that if you built your Starbucks on my forest plot, and I did nothing about it for that long, I deserve to lose my land. To which I might reply that the law does not seem to offer much protection to someone when his or her property can be lost to another person simply because the thief gets away with it for long enough.

But if I thought adverse possession was screwy, I was hardly prepared for its little brother, a prescriptive easement. Adverse possession is occupation of the land. A prescriptive easement is a mere use of someone else’s land without exclusive occupation. My kids cut through the neighbor’s side yard for years as a shortcut to the church. I still do it when I’m running late. If now, 28 years after the neighbor’s house was built, he put up a fence to stop us, should we be able to claim a right to have the fence removed so that we can continue to save five minutes getting to worship? What we would have, we could argue, was a prescriptive easement.

I once had a client who was about to build a garage on a piece of his land. The power company sued, because lines that went behind his property for years had been slightly rerouted so that they crossed a corner of his place. The electric company said it had moved the lines a convenient 23 years before, and now it had a prescriptive easement, which limited my client’s use of a quarter of his property to a vegetable garden.

We stared down Reddy Kilowatt in that case, because we located an aerial photo of the town from 20 years before that showed the electric company was bluffing, and the lines had not been moved as of that date. My client sold the electric company an easement over 50 feet of backyard for about $30,000. Happy ending.

As much as I dislike the whole notion of prescriptive easements, I admire creativity. I always thought of such easements as being created by the deliberate actions of humans. My kids cut across the neighbor’s lawn. The power company restrung its lines. But the plaintiffs in today’s case showed creativity I lack. Here, they claim a prescriptive easement not because of what they did, but because of what their tree did. Because the limbs and roots of a tree they owned grew into a neighboring property and remained there for more than 21 years, they argued, they had thus obtained a prescriptive easement that would prevent the neighbor from doing anything to the tree.

It’s as if the Massachusetts Rule had an expiration date.

At first blush, it seems to ring all the prescriptive easement bells and seemed pretty doggone clever. But after thinking about the whole notion for long enough, the appeals court wisely said it simply did not make sense.

Koresko v. Farley, 844 A.2d 607 (Pa.Cmwlth. 2004). The Koreskos bought property with a line of trees on one boundary, all of which had been there for more than 21 years. The trees hang over the boundary with the neighboring property containing a house, owned by M.J. Farley Development Co. Inc. Farley had submitted a subdivision plan seeking to divide the property into two plots and build a second residence on the newly formed plot. 

The subdivision plan proposed to place a water line and driveway near the boundary trees. Upon learning of the proposal, the Koreskos sued in equity seeking injunctive relief and, of course, money damages. In their complaint, the Koreskos claimed the driveway and trench would damage the root systems of the boundary trees. Among their claims, the Koreskos alleged unreasonable interference with their prescriptive easement. They claimed that because their trees’ roots and branches encroached on the subdivided property for over 21 years, a prescriptive easement existed for the tree roots and branches, and that development of the property would unreasonably interfere with that easement; and

After the trial court held that “Pennsylvania does not and will not recognize an easement for tree roots or overhanging branches,” the Koreskos appealed.

Held: Pennsylvania will not recognize a prescriptive easement created by the growth of a tree.

A prescriptive easement is a right to use another’s property that is not inconsistent with the owner’s rights and which is acquired by a use that is open, notorious, and uninterrupted for a period of 21 years. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

The law holds that overhanging tree branches are a trespass. In Pennsylvania, a landowner has the right either to compel the removal of overhanging branches or to engage in self-help. However, the Restatement notes that a continuing trespass is not a trespass at all if the actor causing the trespass has obtained an easement by adverse possession, and ponders openly whether the continued presence of encroaching tree branches, held openly, notoriously, hostilely, and continually for 21 years would create a prescriptive easement in the airspace which they hang.

If this were the case, the Court said – noting it could find no Pennsylvania law which would indicate that a prescriptive easement was not available in this situation – a landowner who suffers actual harm for the first time during the tree owner’s 22nd year of hostile ownership would be precluded from seeking any remedy whatsoever, even self-help. However, the Court said, if an action is available without a showing of damage – and a trespass action assumes damages, so it can be brought whether the trespasser has actually injured the victim’s property or not – the landowner has no reason to complain if a neighbor’s tree causes damage after the prescriptive period has run because he or she could have sued at any time during the 21-year period.

The Court held the Koreskos failed to state a claim for prescriptive easement as a matter of law. No Pennsylvania case has held such easements are cognizable, the Court said, and other jurisdictions have reasoned that such should not be recognized. Finally, the potential of widespread uncertainty occasioned by such easements convinced the Court that they should not be recognized as a matter of public policy.

The Restatement holds that to be adverse, a use must be open and notorious, for the protection of those against whom it is claimed to be adverse. It enables them to protect themselves against the effect of the use by preventing its continuance. This requirement may be satisfied by a showing that either the landowner against whom the use is claimed has actual knowledge of the use or has had a reasonable opportunity to learn of its existence.

Encroaching tree parts, the Court held, by themselves do not establish “open and notorious” use of the land. Neither roots below the ground nor branches above the ground fairly notify an owner of a neighbor’s claim for use at the surface. In the absence of additional circumstances, roots and branches alone do not alert an owner that his or her exclusive dominion of the ground is challenged. This is no different from prior legal decisions that already held that the known presence of windows near a lot line does not create a prescriptive easement for light and air.

In a Kansas decision, an appeals court in the Sunflower State held that an easement by prescription cannot be acquired by overhanging tree branches, said:

The result reached here will be distasteful to all who treasure trees. The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each owner’s rights insofar as that is possible. Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.

The Koresko Court said, “We agree with this reasoning and holding… and we expressly adopt it in Pennsylvania.”

Finally, the Court considered the consequences of the holding urged by Koreskos. Trees growing over property boundaries and streets, around utility lines, and under sidewalks are common in Pennsylvania. “A decision suggesting that the prolonged presence of these tree parts assures their unreduced continuation could cause uncertainty,” the Court held. “Both the extent of the prescriptive easement and its effect on public and private use are problematic. As a matter of sound public policy, we decline to recognize a new estate which offers uncertainty and invites clarification through litigation.”

– Tom Root

TNLBGray

And Now The News …

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ABC News, May 13, 2024: Invasive emerald ash borer endangers cultural keystone tree species

In northern Wisconsin, April Stone is carrying on a centuries-old Ojibwe practice of basket making. She uses wood from the black ash tree, a cultural keystone species that’s now under threat from the invasive emerald ash borer. Yet for Stone and other tribal artisans, protecting black ash trees – and their cultural and ecological value – is critical. Basket making, she said, empowers and connects people. “This kind of work teaches humility and patience and respect and courage and love and wisdom, all of those sacred lessons that helped our people continue on in their existence for thousands and thousands of years,” Stone said. The emerald ash borer has proliferated across 36 states, the District of Columbia and five Canadian provinces, according to the U.S. Forest Service. The green, wood-boring beetle – native to Asia and which was first discovered in the U.S. in 2002 – is considered one of the most destructive invasive species in North America, killing trees within three to five years of infestation, the federal agency reports…

Evanston, Illinois, RoundTable, May 12, 2024: At This Time: The city’s tree clouds

Jennifer Roberts and Jim Iorio show the backyard trees that they covered with netting to protect them from cicadas. “We planted all these trees last year and the cicada-apocalypse is coming,” said Roberts, who lives on the 1400 block of Dempster Street. Naturalists recommend covering new woody plants with netting to keep cicadas away this spring. “Maybe it will be nothing in a couple of week; maybe it will be devastating,” said Iorio. “This way we will be protected.” The couple, like most residents in town, love trees. Said Roberts: “They are majestic. They are bigger than me. They are going to last longer than me. And they clean the air and soften the wind…”

Cambridge, Massachusetts, Cambridge Day, May 12, 2024: Another 70 trees killed in Cambridge, and for what?

The MBTA had Northern Tree Service cut down at least 70 public trees May 4 in an Alewife flood zone. Northern mobilized a massive fleet of workers and machines to cut down the trees on a weekend when agencies are closed because, with nearly century of experience, it knew permits are needed in wetland buffer zones. Unlike other Cambridge property owners, the MBTA does not need city permits to cut down trees. One would have hoped that since Northern works also for the city, it would have told the MBTA about the collapse of our tree canopy and advocated for restraint. This was an urban wild across the street from the Alewife MBTA garage. There are parking structures on each side and it backs onto a canal for overflows of raw sewage into Alewife Brook. It’s a depression that floods with raw sewage during large rainstorms, preventing the sewage from flowing onto streets, sidewalks and paths and into the abutting Healthpeak Properties parking garage basement. The raw sewage then either flows out the canal or is absorbed into the ground, naturally sanitized by the trees and other plants…

Baltimore, Maryland, The Bay Journal, May 13, 2024: After slow start, urban tree planting in Maryland picks up steam

As a famous poet once said, spring is when one’s fancy turns to thoughts of love. It’s also a time to get young new trees in the ground. For Camerio Graves, a crew leader for the Baltimore Tree Trust, the two go together. “I love what I do,” he said as he staked and mulched a Princeton elm, one of a half-dozen or so large saplings his crew was planting along a treeless stretch of McClean Boulevard in northeast Baltimore. “It’s not just a job.” All across Maryland, community groups, nonprofits, government contractors and countless volunteers are turning out this spring to plant thousands of trees in neighborhoods like this. They’re working to fulfill Maryland’s Tree Solutions Now Act passed in 2021, which calls for planting 5 million trees statewide by 2031. It’s a massive undertaking, but one aimed at helping the state deal with a changing climate. As trees and the canopy they provide grow, they absorb climate-warming carbon dioxide, provide cooling shade from extreme heat and soak up potential floodwaters…

Washington, DC, Post, May 10, 2024: The city made him hide his boat — so he had it painted on his fence

When the city of Seaside, Calif., ordered resident Etienne Constable to build a fence to cover the boat parked in his driveway, he complied. But the puckish way he did it — hiring his artist neighbor to paint a realistic mural of the same exact boat on his fence — has brought him viral attention. “We kind of hit the sweet spot between following the rules and making an elegant statement to the contrary,” says Constable. Constable, who works in business development, has lived in the same house in Seaside for 29 years. For most of that time, his boat trailer — often with a boat attached — has sat in his driveway without issue. But in July 2023, he received a letter from the city, asserting that the municipal code requires that boats and trailers be “screened on the side and front by a six-foot-high fence,” and threatening him with a citation and a $100 fine if he failed to comply. (The Washington Post has reviewed the letter.) To Constable, the letter came out of nowhere. The ordinance itself is not new. He hadn’t heard any complaints from neighbors, and he’s kept the boat, which he named Might as Well and uses to fish “as often as I can,” for four years in his driveway…

Tampa, Florida, Tampa Bay Times, May 13, 2024: This disease is the latest threat to Florida’s vulnerable mangrove trees

Mara Skadden knew something was wrong when the leaves suddenly turned yellow. Hundreds of young mangrove trees at a Brevard County plant nursery that had looked healthy days earlier were droopy and weak. Within days, Skadden said, nearly 400 died. “It was very, very fast,” said Skadden, the director of science at the restoration nonprofit Marine Resources Council. “To be honest, I thought my plants weren’t getting enough nutrients. But the fact that they were dying at an unprecedented rate made me think something else was going on.” She contacted researchers at the University of Central Florida, who took samples in February. The culprit, their analysis found, was a cocktail of disease-causing fungi that scientists have identified in several countries across the globe, from Vietnam to Colombia…

Los Angeles, California, Laist, May 12, 2024: So There’s Something Arborists Say We Should Stop Doing To Trees. It’s Called ‘Topping’

Here’s an unassailable fact: Trees are awesome. Among the laundry list of benefits, they provide shade in our increasingly warming weather, they clean the air, prevent soil erosion, reduce noise pollution. That’s not all. “They’re good for us mentally, psychologically and socially,” said Bryan Vejar, a senior arborist at the environmental organization TreePeople. Like all good things, trees need to be nurtured and maintained. And for many Southern Californians, a not uncommon sight of maintenance we’ve seen takes the dramatic form of trees having their canopies and branches cut off. “This is sadly a very common practice…. I should say malpractice, honestly,” Vejar said. “Once you notice it and start to understand the hazards and harms of ‘topping,’ you’ll see it everywhere.” Rachel Malarich, L.A.’s forest officer, said topping has indeed become more pervasive…

Madison, Wisconsin, Wisconsin Public Radio, May 10, 2024: Invasive tree-killing beetle likely in every Wisconsin county

State forest health experts say it’s likely an invasive tree-killing beetle has spread to every county in Wisconsin — the insect already killing most ash trees in roughly one-third of the state. The emerald ash borer originates from east Asia, and it was first found in Wisconsin in 2008. The pest has killed tens of millions of ash trees nationwide. The emerald insect lays eggs in the bark of ash trees, and its larvae burrow tunnels and feed off the trees. An infestation is difficult to detect early on as the beetle is usually present for three to five years before trees start to decline or die. The Wisconsin Department of Natural Resources recently discovered emerald ash borer, or EAB, in Washburn and Taylor counties. The only place where the invasive beetle hasn’t been detected is Burnett County. Paul Cigan, an agency forest health specialist, said it’s reasonable to assume the pest will be found there this year or next. “In the north, we’re still accumulating EAB infestations and impact is continuing to grow and ramp up,” Cigan said. “Overall in the future, ash is unlikely to be as common as it is now…”

Spokane, Washington, KHQ-TV, May 9, 2024: Spokane homeowner seeks clarity on tree responsibility beyond property line

Most homeowners are aware that the maintenance and upkeep of the sidewalks in front of their homes are their responsibility, but what about the trees beyond them? One new homeowner says she was struggling to get clarity and answers. She’s sharing her story in hopes it will help another homeowner know to inquire about the issue. “It’s an expense a lot of people can’t take on…they are just happy they own a house,” Jacqulyn Trukositz said. Jacqulyne purchased her home in the middle of winter, January of 2023. It’s an older home packed full of charm and character. “I love the neighborhood, all the neighbors,” she said. Her son was a big fan too, and together, the two of them made their new address a beloved home. She says she couldn’t wait to see the mature trees surrounding her property in their full, warm months’ glory. “I thought they were gorgeous,” she said. But that quickly excluded one…

Rome, Georgia, Coos Valley News, May 9, 2024: Cedartown High School Student Killed In Tree Cutting Accident

On Wednesday, May 8, 2024, investigators with the Haralson County Sheriff’s Office were dispatched to Salem Church Road in Tallapoosa in reference to a death investigation. Sgt. Bobby Mullenix was the lead investigator on the call. The investigation revealed that a tree service had been working on the property for several days. On Wednesday afternoon, they were attempting to get a tree down when it twisted and came down in the wrong direction. When the tree service owner was checking around the tree, he observed his 16-year-old son, identified as Hunter Barrett of Cedartown, under part of the tree. Barrett had been in a vehicle earlier and no one was aware that he had moved. The call went out to Haralson County E-911 dispatch at 2:33 PM and a full response was sent to the address. Unfortunately, life saving measures could not help the Barrett and the coroner and investigators were called to the scene…

Chicago, Illinois, The Center Square, May 9, 2024: Washington to begin aerial spraying to kill tree-destroying spongy moth

The Washington State Department of Agriculture plans to begin treatments on Friday to eradicate spongy moth caterpillars. Officials don’t want the invasive species, which can destroy entire forests, to establish a foothold in the state. Plans call for aerial spraying to treat about 1,400 acres in Thurston County and 900 acres in Skagit County with a biological product that contains Bacillus thuringiensis kurstaki, or Btk, a naturally occurring soil bacteria that interferes with the spongy moth caterpillars’ digestive system, eventually killing the caterpillars…

Wired, May 9, 2024: City Trees Save Lives

The humble tree has long protected humans from sickness and even death—and in the modern city, it’s still doing so. As global temperatures rise, so too does the “urban heat island effect”—the tendency for cities to absorb and hold on to the sun’s energy, which is a growing public-health crisis worldwide. On a small scale, the shade under a single tree is an invaluable refuge on a blisteringly hot day. Scaling that effect up, neighborhoods with more tree cover are measurably cooler. Now research is showing just what an impact this can have on people’s health. A new paper finds that in Los Angeles, planting more trees and deploying more reflective surfaces—something as simple as painting roofs white—could lower temperatures so dramatically, it’d cut the number of heat-related ER visits by up to 66 percent. That research follows a previous study by the same scientists finding that one in four lives lost during heat waves could be avoided with the same techniques…

Chapel Hill, North Carolina, WUNC Radio, May 8, 2024: Conservation groups file third lawsuit in recent months against U.S. Forest Service

Conservation groups argue flaws in the 2023 Nantahala-Pisgah Forest Plan will put endangered forest bats at risk, according to a recent lawsuit filed against the U.S. Forest Service and the U.S. Fish and Wildlife Service. The Nantahala and Pisgah National Forests in western North Carolina provide habitat for four critically endangered bats: the northern long-eared bat, the Indiana bat, the Virginia big-eared bat, and the gray bat. The lawsuit argues that the Forest Service consulted with Fish and Wildlife Services because these bats were likely to be impacted by the Forest Plan. But that consultation was flawed and in violation of the Endangered Species Act, according to the suit. “The Endangered Species Act required the Forest Service to supply [USFWS] with the best scientific data available to inform the consultation. Instead, the Forest Service gave [USFWS] information it knew was inaccurate and incomplete,” “according to the lawsuit…

Seattle, Washington, Times, May 8, 2024: Seattle’s tree ordinance is endangering trees, not protecting them

Last spring, Seattle rushed to pass a new tree ordinance that claimed to include robust tree protection. In contrast, the city’s own Urban Forestry Commission condemned the ordinance as “flawed and rushed,” warning it would worsen canopy inequity by hastening removal of mature trees. Less than a year later, The Last 6000’s monitoring of tree removal notices has exposed the ordinance’s damaging impact. While the ordinance tightened tree removal restrictions for homeowners, it dramatically loosened regulations for developers. Here are the results: Since January 2024, Seattle has lost 641 significant trees, removing an average of five per day. Of these, 78 were large trees with trunks measuring over 2 feet in diameter. Permits show that 67 of these exceptional trees were removed specifically for development. Mature trees are critical in reducing urban heat, pollution, and flooding…

New York City, The New York Times, May 8, 2024: Why One Man Runs a Tree Service That Won’t Cut Down Dead Trees

It’s one of the costliest actions we take in managing our landscapes — in terms of dollars and environmental damage — and yet we keep cutting down and carting away the remains of trees. Even those that pose no danger to people or property. Basil Camu, a founder of the Leaf & Limb tree-care company in Raleigh, N.C., wants us to rein in that obsessively tidy, controlling mind-set and let the safe ones stand. He believes so strongly in the role of trees — not just the healthy ones, but also snags, or wildlife trees, the dead and dying powerhouses of diversity that are often the first targeted for erasure — that he got out of the takedown business altogether. Yes, he runs a tree service that doesn’t cut down trees, even dead ones. His unconventional approach: Let it be…

Los Angeles, California, Daily News, May 8, 2024: The race is on to stop a tiny pest from killing Southern California’s native oak trees

It’s less than a half-inch long but it can fell a giant oak tree in no time. The goldspotted oak borer, GSOB or Agrilus auroguttatus, is a 0.4-inch bullet-shaped beetle with six golden spots on its forewings, and it burrows its way into mature oak trees, cutting off a tree’s water and nutrients and leaving it to shrivel and die in about three years. This new kind of beetle pest with origins in the southeast Arizona mountains has only been in Southern California for 20 years and the region has not adapted to the danger. The beetle is said to have killed 80,000 oak trees from Mexico to Southern California, mostly in San Diego County. On Tuesday, May 7, the Los Angeles County Board of Supervisors passed a motion that explores declaring a state of emergency and hiring a deputy forester and two assistants to seek out the GSOB in trees on state, federal, county and private lands. The motion also calls for working with CalFire and other agencies on testing, monitoring, treatment and reforestation…

Minneapolis, Minnesota, Star Tribune, May 6, 2024: This ancient tree is one of the oldest in Minnesota. The warming climate might kill it.

The 400-pound sled lurches over a downed birch tree, six dogs pulling at full speed despite the guide’s “whoa!” — and the sled careens onto its side. In any other February, a blanket of snow would allow teams from Wintergreen Dogsled Lodge to glide through this portage, which leads to Basswood Lake on the U.S.-Canada border. This winter, however, has left much of the Boundary Waters Canoe Area Wilderness snowless, so instead, two guides and six visitors face 5 miles of lifting their sleds over logs and trudging through mud. The group braves the unseasonal conditions hoping to see the Legacy Tree, a northern white cedar said to be over a thousand years old. Deep in border lake country, the tree has gained a mythical profile, prompting BWCAW visitors to seek it out today, just as people have for centuries. The tree may have germinated long before the voyageurs, before the Ojibwe, before even the Dakota. It is a bridge to Minnesota’s past, but it may not survive Minnesota’s future climate. “All these old trees will probably die soon,” said Lee Frelich, director of the University of Minnesota Center for Forest Ecology, who has studied the Boundary Waters’ ancient cedars. These trees have survived in refugial areas such as swamps, islands and rocky outcrops that protect them from fires. But Frelich said these areas don’t protect them from drought and blistering heat, a climate change-driven combo that is deadly for conifers…

Orlando, Florida, WFTV, May 6, 2024: Daytona Beach woman says large oak tree is damaging her foundation, causing her home to shift

A homeowner in Colonial Colony South in Daytona Beach contacted Eyewitness News about a large oak tree she believes is damaging her foundation and causing her home to shift. Tina Evans said she asked her property manager at Colonial Colony South for help, and they eventually brought out an arborist to take a look. “They kept saying, ‘ Well, the arborist said the tree is healthy. I know the tree is healthy because the roots are growing!’” said Evans. When she first bought her home three years ago, Evans said it passed all inspections, and she only recently started having issues. She now wishes she had investigated it a little more. “I did what I was supposed to do,” said Evans. “I did a four-point inspection. That was all I needed.” When Eyewitness News asked Colonial Colony for comment, we were told that management was advised by its attorneys not to respond. We also reached out to the city of Daytona Beach, and a spokesperson confirmed that Colonial Colony did bring out an arborist who said the tree was healthy. The spokesperson said that because the tree is on private property, at this point, it’s a civil dispute between the property owners and the tenant…

Nashville, Tennessee, WKRN-TV, May 6, 2024: Cicadas could harm tree canopy in Middle TN

As Tennessee residents deal with the emergence of a new cicada season, there are concerns about the impact on the state’s trees. Tennessee Tech University professor and horticulturist Dr. Douglas Airhart researched ways to prevent damage to nursery stock when these species of cicadas emerge in large numbers. The 17-year and the 13-year periodical cicadas are scheduled to emerge in Middle Tennessee in 2024 and 2025. According to Dr. Airhart, depending on the type of tree, cicadas can cause 50% to 80% loss of canopy. “Because of these egg-laying activities that take place they’ve got little saw blades at the end of the females abdomen, she cuts a slit, lays three or four eggs, moves on, cuts another slit,” Dr. Airhart explained. “So, those slits puncture the water system within the tree, the outer branches, the outer limbs of that branch, start to wilt, and they’ll turn brown. And that’s what people see is. It’s called flagging, you’ll see the tree and it’s going to have brown leaves on the tips of the branches throughout the canopy. So we’re trying to prevent that.” Airhart explained that younger trees are more vulnerable as well as oak, maple, hickory, birch, and dogwood. A homeowner’s best bet is to use netting to protect trees from damage…

San Francisco, California, sfGate.com, May 3, 2024: California bill could make it easier for large developers to ax iconic trees

A bill working its way through the California legislature would make it less burdensome for commercial and industrial developers to cut down Joshua trees, one of the state’s most iconic plants. Existing law requires developers to pay a fee for each Joshua tree they remove unless they take certain steps to alleviate damage done to the environment. Enacted in 2023, the Western Joshua Tree Conservation Act also allows local governments to levy smaller fees for minor development projects. But an assemblymember representing a broad swath of the Mojave Desert, where the trees grow, wants to make it easier to cut them down. Assembly Bill 2443, if passed, would let cities and counties offer the same benefits to developers looking to build larger “industrial projects and commercial projects…”

The Cool Down, May 5, 2024: Homeowner at wits’ end after realizing neighbor demolished trees on their property: ‘Enough was enough’

A series of posts on Reddit’s r/treelaw community has people fired up about a neighbor’s shady tree removal tactics. The original poster shared their story of a neighbor cutting down buffer trees along their property line under the cover of darkness during a Labor Day party. As the poster was enjoying a housewarming gathering with food and games, they heard the buzz of an electric saw. The poster discovered their neighbor clearing young maple and oak trees, about 12 feet tall with 2.5-inch diameter trunks, from the property line. The poster yelled at the neighbor to stop, which he did, but significant damage had already been done to the tree line. To make matters worse, the neighbor doesn’t even live at the property but rents it out…

Watertown, New York, WWNY-TV, May 2, 2024: What’s with the trees in Lowville?

Trees lining the streets of downtown Lowville have seemingly disappeared and folks are taking notice. “I was confused to see them all cut down. I’m used to seeing some nice young trees growing and thriving. Now they’re all gone and I was just wondering what happened,” said David Stiltz, who lives in the village. The answer is simple. They were cut down by the village. Lowville Public Works Superintendent Paul Denise says the trees tended to get overgrown, posing a number of issues. “Those trees were blocking state signs, correction signs, crossing signs. I think that was one of the main reasons that we decided to do that,” he said. In their place, the village plans to put in flower pots and a series of smaller, more manageable trees. Denise says it’ll make things look more inviting. But some residents like Harry Smith aren’t convinced…

St. Augustine, Florida, Flagler College Gargoyle, May 5, 2024: I speak for the trees; I speak for the Palm Garden

Flagler College released an email to students and staff on March 1, stating that during spring break 2024, about 20 palm trees were to be removed from the Palm Garden to make space for the Ponce West dorm renovation work site. The statement included that an arborist confirmed that many of the trees were reaching the end of their life cycle, some with preexisting demo permits before the project was in action. The Palm Garden will be closed until the construction is complete, and the trees are supposed to be replaced after this. At the end of the day, I understand that the goal of the renovation is to create a better living environment for future students. However, I think that Flagler College is failing to see how this majorly affects their current students. Future benefits do not outweigh the inconveniences we are experiencing or the upset feelings that come along with the renovation. I watched a man in a “Tree Medic” shirt cut down two dozen palm trees on March 12…

Bloomberg Business, May 5, 2024: A Billionaire Wanted to Save 1 Trillion Trees by 2030. It’s Not Going Great.

Salesforce Tower is the tallest building in San Francisco, with sweeping views across the bay. From the top of it, software billionaire Marc Benioff has seen the natural world change around his native city. Several years ago, smoke from a wildfire made the sky so hazy one day, “I could not see out the windows,” he recently recalled by phone from his other office in Hawaii. The moment “really impacted me,” said Benioff, the chair, co-founder and CEO of Salesforce Inc. and a longtime advocate for the environment. It was around this time that he launched a wildly ambitious plan to fight climate change. Benioff presented it at the capitalist cornucopia of Davos in early 2020 — dressed in black because he was “at a funeral for capitalism,” which was failing for its lack of social purpose, he said. The plan was to plant or protect 1 trillion trees by 2030. The goal wasn’t exactly to add another trillion trees to the planet, but to do a mix of growing, restoring and conserving to keep the earth’s tree count 1 trillion higher than it would be otherwise…

Esquire, May 2, 2024: Mother’s Day Hack: Buy Her a Tree

Mom’s not going to say no to flowers. In fact, she’d love them. But don’t you think it’d be nice to switch things up? Put a little more effort into this year’s gift for Mom. Maybe mom is picky when it comes to gifts, in which case we’d say some try out designer jewelry. But I got to thinking about my own mom and what she’d like. Honestly, instead of flowers or fancy jewelry, it’d probably be a new plant. Mom’s always been the outdoorsy type. She’s a home DIY legend who’s always sending us updates on how her plants are doing. (Currently, azaleas are thriving on one side of the driveway, but not the other. She’s going to do a soil test.) But don’t think this woman has a green thumb. She’s killed as many plants as she’s fostered to maturity, but she still loves doing it…

Bangor, Maine, Daily News, May 2, 2024: Large downtown Bangor tree cut to make way for historical society restoration

Crews on Thursday cut down the majority of a large tree outside the Bangor Historical Society’s Thomas Hill House that stood in the way of significant restoration work the property needs. After two years of fundraising, the Bangor Historical Society announced it raised more than $450,000 in total to begin installing a new fence and restoring the building’s portico, but the basswood tree had to come down before construction could begin. As of May 1, the historical society has raised $75,891 for the new fence and $378,250 for the portico restoration, according to the organization’s website. The historical society plans to install an ornamental fence on the granite walls along High and Union streets and a chain-link fence across the back of the property. The foundation of the building’s portico, meanwhile, is collapsing, causing the granite flooring to become uneven and pull away from the rest of the home. The poor condition of the portico also threatens the structural integrity of the house itself, according to the historical society…

Case of the Day – Monday, May 13, 2024

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MILLION-DOLLAR BABY

I’ll tell you where the real money is in litigation. It’s not the guy who walks into the lawyer’s office with a tale of woe at the hands of some big, faceless, loaded corporation. It’s not the guy who was busted for pot, and he bonded out on Friday but they didn’t release him until Monday.

It’s right here: I should have a nickel for every would-be client who ever asked me to take a case on contingent fee, because they were sure to get beaucoup bucks in the end with an outraged jury handed them millions in punitive damages for a fender-bender, or a sharp-tongued government clerk, or a badly-written newspaper story, or whatever the injury du jour might be. Total up my nickels, and I ought to be sitting on the veranda of my Caribbean beachfront mansion writing this right now.

Alas, I am at my kitchen table in Ohio. It’s not quite the same…

Few would-be litigants really appreciate that punitive damages, also called exemplary damages, are damages awarded by a jury to punish a defendant for some terrible conduct, because, after all, it’s a civil action, and you can’t throw the malefactors in jail. But contrary to legend, punitive damages have to be tied to some actual harm.

In today’s case, some junior leasing agent for a billboard company (sorry, that’s not the proper term – these days, it’s ‘OOH’ or ‘out-of-home’ advertising) got a little too enthusiastic in clearing the view for the billboard, and when the dust settled, some of the trees that had been felled belonged to the neighbor of the guy who had leased space for the billboard (now there’s someone who should be locked up, the guy who let that eyesore get erected). The leasing agent was sloppy, careless even, perhaps – dare we say? – reckless.

The jury found that the neighbors were harmed in an amount of about $32,000. But it added to that figure an eye-popping $2 million in punitive damages. That was too much for the trial judge, who tried to get the farmer to accept a remittitur, that is, settle for a paltry $550,000. The farmer wouldn’t do it, so the court ordered a new trial. The farmer appealed.

All of $32,000 in damage, and a cool half mil on top of it? Farmer Blust was the living embodiment of the aphorism, “Pigs get fat, but hogs get slaughtered.”

Blust v. Lamar Advertising Company, 157 Ohio App.3d 787 (Ct.App. Montgomery Co., 2004). A Lamar leasing agent signed up Jim Weber in September 1998, leasing a small piece of Jim’s farmland near the property line between his farm and his neighbor, the Blust farm, for a billboard. The two farms were separated by an old wire fence that was largely concealed amid dense brush, vines, and trees. Because Lamar planned to erect its billboard near the tree line and undergrowth separating the two farms, it hired Woody’s Tree Medics to remove some of the trees and vegetation from Jim’s property.

A Woody’s work crew entered the Blust property and cut down 34 trees, 17 of which were more than three inches in diameter. At trial, a jury found Lamar liable in tort for trespassing and removing the trees without permission, and awarded the Blusts compensatory damages of $32,000 and punitive damages of $2.2 million. The trial court denied Lamar’s motion for judgment notwithstanding the verdict on the punitive damages award but indicated that it would grant a new trial on all issues, including liability, unless the Blusts accepted remittitur, that is, a reduction, of the punitive damages award to $550,000.00, with half of that amount going to a nonprofit nature conservancy. The Blusts rejected remittitur, and the trial court ordered a new trial.

The Blusts appealed, challenging the trial court’s holding that the punitive damages verdict was excessive and its decision to grant a new trial on all issues. 

Held: The Court held that the Blusts were entitled to punitive damages, but the award was excessive. Thus, the trial court did not err in ordering a new trial, limited how much should be awarded in punitives.

In order to recover punitive damages, the Blusts had to show that Lamar acted with “actual malice.” Actual malice, the Court said, is a state of mind under which a person’s conduct is characterized either by ill will or by such a conscious disregard for the rights and safety of other persons that its conduct is very likely to cause substantial harm.

The Blusts argued that Lamar’s act of directing their trees to be cut constituted a conscious disregard for their rights that had a great probability of causing them substantial harm. The Court agreed, finding substantial evidence in the record that Lamar’s agent consciously disregarded the Blusts’ property rights by ordering the cutting of trees on their property. Jim Weber told Lamar’s agent about where the property line fell and told her to follow the farm fence as a guide. After the cutting began, a friend of the Blusts appeared at the site to tell the Woody’s crew that it was cutting trees on the wrong property. The Blusts’ tenant farmer, Ted Eby, saw workers clearing trees from the Blusts’ property, and he spoke to the Woody’s crew and the agent, telling them they were cutting the Blusts’ trees.

Despite all of these warnings, the agent told the Woody’s workers to keep the saws humming. A reasonable juror, the appeals court said, could find that Lamar consciously disregarded the Blusts’ property rights.

A closer question, the Court observed, is whether Lamar’s agent was aware that having the Blusts’ trees cut carried with it a great probability of causing substantial harm. “We harbor no doubt,” the Court said, “that clearing the trees had a great probability of causing some harm. Indeed, removing the trees was absolutely certain to cause harm to the extent that the Blusts lost their trees. The crucial issue on appeal is whether the agent knew that this loss of the trees had a great probability of resulting in substantial harm to the Blusts, or more specifically, whether reasonable minds could differ on this issue.”

The Court said “substantial” means “major, or real importance, of great significance, not trifling or small.” Here, the “harm” was obvious: it was the loss of the Blusts’ trees. But in order to determine whether this harm was “substantial,” it was necessary to assign some measure of value to the trees. The Blusts said that someday, they might divide a portion of the farmland into residential plots, and the absence of trees would harm the value of the plots. The Blusts’ expert testified that the trees’ loss would diminish the fair market value of the subdivided property by $51,600.

The Blusts also argued that they hoped to sell the wood from three wild walnut trees someday for veneer. What’s more, the Blusts presented testimony that it would cost $40,566 to purchase and replant all of the trees or $24,335 to replant 11 of the larger trees. Lamar argued, on the other hand, that the stumpage or firewood value of the timber was only $105. Lamar also presented expert testimony that removal of the trees may have caused the Blusts’ property value to decline by at most one percent, or $3,870.

The Court held that most of the measures of damage could be characterized as “substantial.” But the record contained no evidence that Lamar’s agent knew the Blusts might subdivide their farm for residential purposes. The record also contained nothing to indicate that the agent knew of any plans to sell the walnut trees for veneer. Likewise, the agent did not know that the Blusts – who did not live on the parcel – would ever want to replace some or all of the trees. Thus, the agent could not have known that cutting the trees would harm the future value of the land as subdivided plots, frustrate the prospects of marketing veneer, or even just lead to $25,000 – $40,000 replacement costs.

However, fair market value is a different story. Even Lamar admitted that the cutting may have reduced the Blusts’ property value by $3,870. “A reasonable juror,” the Court said, “could find that a loss of this size qualifies as substantial harm and not a trivial loss.” A decline in property value because of losing trees is a “typical measure of the harm, and it is entirely predictable.”

When a verdict is influenced by passion or prejudice, the Court held, a trial court must order a new trial. However, when a verdict is merely excessive, but not influenced by passion or prejudice, a trial court must offer the plaintiff a choice between remittitur or a new trial. If the plaintiff rejects remittitur, a new trial must be ordered.

The Court agreed that the Blusts’ punitive damages award was grossly excessive under constitutional standards, and had to be set aside. Therefore, the judge properly directed the Blusts to choose remittitur or a new trial. However, the only issue tainted by error was the jury’s punitive damages award. The Blusts should not have been required to place in jeopardy their compensatory damages award or the jury’s determination that some punitive damages are warranted by undergoing a new trial on those issues.

The case was sent back to the trial court for a new calculation of punitive damages.

– Tom Root

TNLBGray

Case of the Day – Friday, May 10, 2024

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BATTLING INSURERS


flo161221It’s an awful thing to see two insurance companies, slugging it out toe to toe, fighting each other to the death. Imagine Flo stomping on the GEICO Gecko…

Well, maybe “awful” is a slight overstatement, but today’s case does pit two insurance companies against each other. One insured an engineering firm against professional negligence (malpractice), while the other one insured the company against everything else. And you can bet that they were arguing over who would get the honor of picking up the check.

Compare it to a doctor’s office: if your doctor cuts off your ear when he or she was supposed to be curing your eczema, that would be covered by the professional insurer (assuming a jury thought it might be malpractice). If after you get the ear cut off, you slip and fall on a wet floor while paying, the doctor’s general insurer would cover your sore tush (financially, of course).

The engineering firm, an outfit named Czop/Specter, Inc. (pronounced “czop-specter”), had a contract with the Commonwealth of Pennsylvania to inspect its highways, and — when it found a dangerous condition — to schedule crews to fix it. Czop/Specter had an employee whose credentials were approved by PennDOT, who took special training in highway standards and then performed the inspections. When poor Mr. Cuthbertson (just your average motorist) was hurt by some driver who blew through a stop sign, his lawyer — who had no interest in committing legal malpractice — sued everybody. Claiming that the driver who hit his client couldn’t see a stop sign obscured by trees and foliage, Cuthbertson included the engineering firm Czop/Specter as a defendant in the suit, claiming that Czop/Specter should have identified the obscured sign and had the trees trimmed. Czop/Specter’s insurance companies were fighting over whether the negligence that the plaintiff alleged was covered by the professional liability policy (the cut-off ear) or the general policy (a slip on the wet floor).

The insurers sued in federal court, asking it for a declaratory judgment – simply an order from the court determining whether any damages that might be awarded because of any negligence should be paid by the professional liability insurer or general insurer. The professional liability insurance company claimed that the allegedly negligent inspection wasn’t a professional service, but instead could have been performed by anyone. The general insurer argued the liability wouldn’t belong to it, because its policy specifically excluded inspections from covered acts. The court said that the employee who performed the inspections had to be approved beforehand by PennDOT, had to complete special training and — although not an engineer himself — had other specialized education in herbicide application which was necessary for the position. The court’s conclusion: you don’t have to be a doctor or lawyer to provide professional services.

obscure151106Is there a lesson here? The court seemed to suggest that because the claimed negligence didn’t fall under one policy, it necessarily had to fall under the other. But that ain’t necessarily so. It’s entirely possible that Czop/Specter could have found itself being sued for negligence on a matter that no one ever contemplated — a passenger in a car hit because of an obscured sign because of an untrimmed tree because of a negligent inspection — one that was covered by neither policy. A lesson for arborists and tree specialists. You’d be wise to carefully read those boring, tedious, incomprehensible policies.

Lumbermens Mut. Cas. Co. v. Erie Ins. Co., 2007 WL 2916172 (E.D.Pa., Oct. 21, 2007). Donald Cuthbertson, Jr. was injured in an auto accident when another driver drove through a stop sign and collided with the car in which Cuthbertson was riding. Cuthbertson sued in state court, alleging among other things that the accident occurred because the driver did not see “an obscured and otherwise difficult to observe stop sign… due to a combination of factors, including tree branches, vegetation, bushes, brush and grass which obstructed visibility of eastbound drivers west of the stop sign.”

Czop/Specter, Inc., held a contract with the Pennsylvania Department of Transportation to perform inspections on the highway and to schedule any work required as a result of the discovery of hazardous road conditions resulting from overgrown vegetation. The inspection and scheduling services were performed by Czop’s employee, David Riley. In his complaint, Cuthbertson asserted that Czop was negligent in the performance of the contract.

Lumbermens Insurance provided a defense to Czop under the terms of an Architects and Engineers Professional Liability Policy that covered claims “arising out of a wrongful act in the performance of ‘professional services’.” Professional services were defined as “those services that the insured is legally qualified to perform for others in the insured’s capacity as an architect, engineer, land surveyor, landscape architect, construction manager or as defined by endorsement to the policy.” Lumbermens claimed that Erie Insurance Exchange — which insured Czop against general claims — had the obligation to defend, because the inspection services weren’t “professional services.” Erie’s policy contains an endorsement excluding from coverage “damages due to any services of a professional nature, including but not limited to… supervisory, inspection, or engineering services.” Erie argued that the services performed by Czop through Riley constituted supervisory and inspection services and, therefore, the claim is excluded from coverage under the Erie policy. The battling insurers asked a federal district court to settle the dispute between them.

The plaintiff argued that the engineering firm inspector had ignored the risk ...

The plaintiff argued that the engineering firm inspector had ignored the risk …

Held: Lumbermens must defend Czop from the lawsuit because the services were professional in nature. Under the law, a ‘professional’ act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.

In determining whether a particular act is of a professional nature or a ‘professional service,’ a court must look not to the title or character of the party performing the act but to the act itself. Riley’s services under the Engineering Agreement were “services of a professional nature” because the job entailed Riley’s inspection and supervisory services, which could not have been performed by just “anyone” and which were expressly excluded from coverage under the Erie policy. The Engineering Agreement required Czop to submit Riley’s credentials for approval by PennDOT for the position of “Roadside Development Consultant.” Riley was then trained by a PennDOT employee, and he attended mandatory seminars that prioritized needed work and roadside vegetation control. Upon completing his training, Riley conducted inspections in order to identify hazards, scheduled roadside work to be performed by others in accordance with PennDOT’s standards, and supervised the contractors performing the work.

The Court found that Riley could not have performed the job without the specialized training he received from PennDoT. Riley did not hold an engineering degree, although Czop is an engineering firm. Riley did, however, have specialized herbicide training which he used in connection with his inspection responsibilities under the Engineering Agreement. One need not be a doctor or a lawyer to render professional services. The job that Czop was paid for was the inspection and supervisory services performed by Riley. His failure to inspect and supervise the trimming of the vegetation that obscured the stop sign — if it happened — would constitute a “wrongful act in the performance of professional services,” as that term was defined in the Lumbermens policy.

– Tom Root

TNLBGray

Case of the Day – Thursday, May 9, 2024

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INJUNCTION JUNCTION

To a nonlawyer, nothing sounds as enticing as running to a judge who will immediately express shock and dismay at a plaintiff’s shoddy treatment by issuing a thundering injunction to stop the defendants in their tracks.

OK, we’re wrong. To a nonlawyer, a lot of things sound more enticing… a cold beer after a long, hot day of work, the only winning ticket in a $140 million Powerball drawing, watching your neighbor wrap his new Porsche – a car you lust after but could never afford – around a utility pole.

But when a person feels wronged, the urge to have his or her lawyer blast the defendants with both barrels right out of the gate is almost irresistible. So let’s get a temporary restraining order, followed by a preliminary injunction, followed by a first-class trial and a hanging.

But getting a preliminary injunction is not all that easy a thing. First, you have to show that without it, you will be irreparably harmed. That’s not easy, because almost any harm can be repaired, usually by a liberal application of money. Then, you have to show that you’re “likely to succeed on the merits,” a fancy term for proving that you’re going to win when you go to trial. Inasmuch as a trial is when you put on all of your evidence, winning a preliminary injunction means you have to try the case twice, and at the injunction stage, you have not had the benefit of perusing your opponent’s files and harassing him or her in a deposition.

Finally, you have to show that equity is on your side. That’s a fairly squishy concept, but generally, it measures how big a pain it’s going to be for the other party if the injunction is granted. If the injunction is, for example, do not cut down my trees in your easement before we work out whether you have the right to do so, that’s not tough. The cost to the other guy of not cutting them down is not that great, and the cost to you if he does certainly is great, probably irreparable harm.

On the other hand, if – like plaintiff John Haverland in today’s case – you want a mandatory injunction, one which does not prevent something from happening but instead orders that the other guy do something, that’s a much taller order.

Two things to remember: First, getting a preliminary injunction does not mean that you’re going to win the case. We have no idea how John Haverland made out after the trial, or even if there was a trial. Second, because this is New York State, where everything is upside down, the “Supreme Court” is a trial court. New York’s highest court is the New York Court of Appeals.

Go figure.

Haverland v. Lawrence, 800 N.Y.S.2d 347 (Supreme Ct. Suffolk Co., Dec. 1, 2004): Mike Haverland sued his neighbor, Guy Lawrence, and his landscaper. The suit was brought because Guy had his landscaper plant an 80-foot line of 13’ tall pine trees along the boundary between the two homes. Mike said the trees were so close to the boundary line that, although their trunks did not cross the line, the root balls (which of course were well buried) did.

Mike complained that, besides the root balls, the trees had been staked, and some of the stakes were in his yard. He said Guy’s contractor crossed onto his land while planting the trees and knocked down five of his oak trees and construction stakes marking the site of his new house. Finally, he argued that the pine trees changed the grade slightly, so that water accumulates and floods in a 22-foot strip of his property after a hard rain. This, Mike said, would result in a foot of standing water, making this part of his land unusable.

Mike’s real complaint was that this flooding and the fast-growing roots of the trees would undermine the integrity of the foundation of his house, which had not yet been built. He asked for a preliminary injunction directing that Guy Lawrence and East Hampton Bayberry, Inc., his contractor, remove the pine trees, rootballs and stakes from his land, and restore the previous natural grade and surface water flow on Mike’s property.

Mike’s surveyor, David L. Saskas, said he had placed surveyor stakes on Mike’s property to enable Mike’s general contractor to mark the location of the foundation of Mike’s new house. In the course of this survey, he determined that ten large evergreen trees had been planted very near the boundary line with Mike’s property. The trunks of five of these trees were within six inches of the line. and the holes and root balls for these trees extended up to 2½ feet onto Mike’s land. Only two of these ten trees were planted entirely on Guy’s property. The metal stakes and guy wires for the trees extended as much as four feet into Mike’s property. Finally, David said, the planting of the new trees created a small berm that raised the grade of the land extending into Mike’s yard. David offered his opinion that the change of grade altered the run-off pattern of surface water and “contributed” to the flooding on Mike’s land.

Mike’s first cause of action in the complaint was for trespass and the second alleged commission of a nuisance based on a violation of the East Hampton Town Code Section 255-10-50. Mike also wanted a permanent injunction forcing Guy to restore the old grade so as to return the runoff to its prior state, and to remove all trees, stakes and rootballs that were encroaching on his land.

Guy’s contractor argued there was no trespass because Mike’s own surveys showed that all of the tree trunks were on Guy’s land. The contractor said it was conjectural to believe that the tree roots would someday undermine the foundation of Mike’s house. The contractor said any flooding that might occur did not constitute irreparable injury. Instead, the condition was minor and easily remedied.

Guy agreed that the tree trunks did not encroach, and argued Mike was just guessing as to the size of the buried rootballs. He said Mike’s claims of flooding were exaggerated, and Mike had no proof that the newly planted trees were responsible for it. He also argued that Mike failed to show how any of the East Hampton Town Code had been violated and that equity is not balanced in Mike’s favor “since removal of the trees and re-grading of the land is a drastic remedy and there are other and less drastic remedies available.” Guy alleged that Mike never said anything about the grade or flooding, but only brought it up after he hired an attorney.

Mike responded that this is a case where the planting of the trees, as opposed to their natural growth, caused the encroachment. Self-help is not an appropriate remedy, Mike argued, because trimming the encroaching part of the trees would kill them. He said it was hardly unfair to make Guy and his contractor “pay for what they would have had to pay originally but for their illegal trespass.”

Held: The Court denied Mike his preliminary injunction.

For a preliminary injunction, Mike had to show (1) a likelihood of ultimate success on the merits; (2) irreparable injury unless the preliminary injunction was granted; and (3) that a balancing of equities favors Mike’s position.” Preliminary injunctive relief is a drastic remedy that will not be granted unless a clear right to the injunction is established under the law and the undisputed facts. The burden to show that undisputed right rests upon the movant.

The Court held that Mike’s allegation that Guy’s contractor drove across his yard, tore out construction stakes and killed five oaks was enough to show he was likely to prevail on a trespass action. Any unauthorized entry upon the land of another constitutes trespass. The Court said that Mike, to the extent he has alleged (and Guy admitted he had told the contractor to drive over Mike’s land) that the contractor drove over Mike’s land and destroyed property, “has established the likelihood of success on the merits. However, as to the remainder of the complaint, defendants’ submissions in opposition to the application raise numerous and significant triable issues of fact which preclude such a finding.”

Mike’s real problem, the Court ruled, was that he had not shown that he would suffer an irreparable injury if the preliminary injunction was not granted. Mike’s claim that the newly-planted trees have fast growing roots that will undermine the foundation, “lacks specific evidentiary support and is merely speculative and conclusory.” His claim that the foundation will suffer irreparable damage should the flooding continue is contradicted by his admission that the integrity of that foundation will be gradually undermined. The fact that Mike claimed he was temporarily deprived of the use of part of his property because of flooding after heavy rain was not an irreparable injury. Anyway, the Court said, “there is also a sharp factual dispute with regard to the cause of the flooding as well as the frequency and extent of the flooding.”

Finally, the Court held, Mike did not show that equity was on his side. First, the Court said, Mike was seeking a preliminary injunction directing not that Guy abstain from some conduct, but rather that he and his contractor actively do something: remove planted trees and re-grade Mike’s property to restore the previous pattern of surface water runoff. As a general rule, the Court observed, “mandatory injunctions are not favored and will be granted in only the most extraordinary circumstances.” This is especially so where, as here, Mike sought to get the same injunctive relief he sought in the final, permanent injunction. In such a case, “a preliminary injunction will not be granted unless the plaintiff demonstrates, upon clear and undisputed facts, that such relief is imperative and because without it, a trial would be futile.”

The Court weighed the drastic nature of the relief sought against Mike’s conjecture that the tree roots might eventually reach his foundation, as well as the “sharply disputed claim” that Guys’ planting of the trees and re-grading of his property caused extensive flooding, is not enough to prove the existence of the “extraordinary circumstances which would tip the balance of equity in his favor.”

– Tom Root

TNLBGray

Case of the Day – Wednesday, May 8, 2024

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BAMBOO-ZLED

The common-law rules governing rules on matters like encroachment can, of course, be modified by meddling legislatures. For example, we all know that if your neighbor’s tree encroaches above or below the soil onto your yard, you have the right of self-help and no more. You do not have the right to force your neighbor to correct things unless the encroachment causes “sensible harm,” and indeed becomes a nuisance.

The law recognizes negligence per se, which is essentially presumed negligence because you broke the law. Likewise, the law can declare that some things constitute nuisances for no better reason than the law says they are.

In Connecticut, where the state has yet to meet a tax or regulation it doesn’t like, there is a statute that declares running bamboo a nuisance. It falls on the homeowner to prevent his or her running bamboo from running into someone else’s yard, whether the encroachment causes harm or not. If you fail to control your running bamboo according to statute, you are negligent per se, and the bamboo is a statutory nuisance.

Who ever imagined that running bamboo was such a problem in temperate Connecticut? Well, the legislature for one. Generally, it seems to be a common enough problem, with running bamboo making kudzu propagation look like a bonsai tree by comparison.

Whatever the reason Connecticut may have had for enacting a law directed specifically at running bamboo, it seemed to come in handy for Jean Walden, when a neighbor’s running bamboo ran into her backyard. She sued, wanting an order that her neighbor remove it.

The neighbor Nationstar, a mortgage company, filed a motion that the amount of damages be apportioned between it and Jean. Jean was not much interested in talking about whether she was negligent: as far as the statute and Jean were both concerned, Nationstar let the bamboo encroach, and it was solely liable. Apportionment is premised on the notion that it takes two to tango, an approach Jean – who considered herself blameless – was not interested in at all.

What ensued was an “angels-on-the-head-of-a-pin” kind of thing, where the court wrestled with whether a negligence action could be found anywhere within Jean’s complex complaint. A negligence claim would justify apportionment. A claim that did not sound in negligence would not.

Walden v. Nationstar Mortgage, LLC, Case No. KNLCV176030465S (Superior Ct. Connecticut, November 27, 2017) 2017 Conn. Super. LEXIS 4963. Nationstar controlled property which contained a colony of running bamboo that had grown beyond the property line into the Walden Property. Jean Waldon had warned Nationstar on a number of occasions to control the bamboo colony so that it would not invade her yard. Nevertheless, Nationstar’s uncontrolled colony of bamboo has crossed onto the Walden Property and started to take over the yard.

Jean hired a lawyer who knew how to plead a complaint. Her suit claimed Nationstar was negligent because it had a duty not to allow the bamboo to encroach onto Jean’s land, but failed to control the bamboo. She also claimed the bamboo colony physically invaded her property without her permission, she had asked Nationstar to do something, but it had not. She complained its failure to act was intentional. Jean also included two counts claiming Nationstar violated Connecticut General Statutes § 22a-16 and § 22a-381e (part of the “Connecticut Environmental Policy Act,” or “CEPA”), creating “an unreasonable harm and future threat of harm to the public trust in the natural resources of the state.” Finally, she alleged that the migration of the bamboo colony unreasonably interfered with the peaceable use and enjoyment of her property.

Nationstar filed a complaint for apportionment, asking that responsibility for the negligence be apportioned between itself and Jean. as the parties responsible for negligence, under General Statutes § 52-572h. Jean quickly amended any mention of “negligence” out of the complaint, and then opposed the apportionment request on the grounds that Nationstar was maintaining a nuisance, she should not share in any blame for it, and apportionment was improper.

Held: Nationstar is entitled to its claim for apportionment, to have responsibility for the damage apportioned between itself and Jean.

Jean argued that General Statutes § 52-572h – the apportionment statute – does not apply to a violation of the CEPA because such a violation is not based on negligence, and the apportionment complaint cannot rest on any basis other than negligence. The statutory cause of action of the running bamboo, Jean said, is based on nuisance and not negligence. Nationstar retorted that a defendant found liable under CEPA will be deemed to have been negligent by virtue of violating the statute because such a violation is negligence per se.

General Statutes § 22a-16 provides that “any person… may maintain an action in the superior court… for declaratory and equitable relief against… any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction…”

That is what Jean is doing, the Court said. She was enforcing General Statute § 22a-381e(b), which provides in relevant part that “[n]o person who… allows running bamboo to be planted on his or her property shall permit such bamboo to grow beyond the boundaries of his or her property.” General Statutes § 22a-381e(c) provides in relevant part that “no person shall… allow running bamboo to be planted on his or her property at a location that is forty feet or less from any abutting property…”

Negligence per se, the Court said, “serves to superimpose a legislatively prescribed standard of care on the general standard of care… A violation of the statute or regulation thus establishes a breach of duty when (1) the plaintiff is within the class of persons intended to be protected by the statute, and (2) the injury is the type of harm that the statute was intended to prevent.” Connecticut courts treat a statutory violation as negligence per se in situations in which the statutes… at issue have been enacted for the purpose of ensuring the health and safety of members of the general public.”

The CEPA was enacted to enable people to seek redress in the court when someone is polluting the environment, the Court said. Plus, the Appellate Court has held that “§ 22a-16 imposes on the defendants a standard of care, the violation of which constitutes negligence per se.” The two-pronged test applied to establish negligence per se is: (1) that the plaintiff was within the class of persons protected by the statute; and (2) that the injury suffered is of the type that the statute was intended to prevent.”

Here, Jean alleges damage to her property caused by bamboo. She is within the class of persons protected by the anti-bamboo statute. Furthermore, the Court said, the alleged injury suffered by the plaintiff is of the type that CEPA intended to prevent – in this case, the continued violations of the running bamboo going beyond Nationstar’s property and onto Jean’s abutting property.

Jean also argued that the apportionment statute, General Statutes § 52-572h, applies exclusively in negligence cases. Her claim, she said, for nuisance, alleging common-law nuisance and statutory nuisance under General Statutes § 22a-318e(f). Nationstar said that a cause of action for nuisance may be based upon a defendant’s negligent misconduct, and thus, apportionment was permissible.

The Court disagreed with Jean’s alleged statutory nuisance. General Statutes § 22a-318e(f) provides that allowing running bamboo to grow beyond the boundaries of a parcel of property “shall be deemed to be a nuisance,” but Jean just argued in the complaint that the bamboo colony “unreasonably interferes with the peaceable use and enjoyment by the plaintiff of the Walden Property.” That, the Court said, sounds like common law nuisance.

A common-law nuisance claim has four elements: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff’s] injuries and damages. While there are some similarities between a public and a private nuisance, the two causes of action are distinct. Public nuisance law relates to the interference with a public right such as public health and safety. Private nuisance law, on the other hand, concerns conduct that interferes with an individual’s private right to the use and enjoyment of his or her land.

Jean was alleging that the bamboo colony unreasonably interfered with the peaceable use and enjoyment of her land; she does not allege interference with a public right. Therefore, the Court said, the nuisance she alleged is a common-law private nuisance. A common-law private nuisance cause of action must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The interference may be either intentional or the result of the defendant’s negligence.

Thus, a common-law private nuisance can be based on negligence, and Nationstar’s complaint to apportion the liability can go forward.

– Tom Root

TNLBGray

Case of the Day – Tuesday, May 7, 2024

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NO BUTTS ABOUT IT, THE DOG IS NOT RUNNING AT LARGE

Here at Tree and Neighbor Law blog, we get mail… like this letter:

Dear Blogger on All Things Tree and Neighbor Law:

My neighbor walks his dog past my house several times a day. He never has his dog on a leash, and it sometimes runs through my front yard chasing squirrels. The dog has never paid any attention to me or anything else that is not a squirrel, and the owner cleans up after her, so it’s not that. It is just that I think dogs belong on leashes. The other day, I leaned out of my front door and yelled at him that his dog was supposed to be on a leash. He explained that I was mistaken, and that the law only required that he keep his dog under reasonable control.

I have to admit that the dog always comes when her owner calls her, and she stops and sits on command. Still, it offends me that a dog should be unleashed, allowed to chase squirrels, and permitted to be so free. Isn’t my neighbor breaking the law?

Signed, A Grumpy Neighbor

Hey, Grumpy Neighbor, we understand your complaint. Maybe that’s because we know who you are, inasmuch as you’re writing about our 40 lbs. of border collie mix, Winnie. Winnie cares not a whit about people, bicycles or baby strollers. If you’re not a varmint – coyote, raccoon, squirrel or especially a woodchuck – she will ignore you.

Notwithstanding that, Winnie inherited a lot of the typical border collie temperament and intelligence, being very attentive to commands (even to the extent of sitting on the tree lawn waiting for your signal that she may cross the street) and quite obedient. We and Winnie walk several miles every morning, exploring the fields, woodlands and streams behind the nearby hospital, and usually hit country trails later in the afternoon for another search for small game.

Come to think about it, Winnie’s better behaved than a lot of neighborhood kids. But no matter, Grumpy Neighbor, because watching her trot by while not being on a leash offends your sensibilities.

Still, we’re reasonable, so when you yelled through your screen door the other day that dogs are supposed to be on leashes, we researched the law to be sure that our recall was right. And it is. There is no law (at least where we live, your results may vary) specifying that dogs are to be kept on a leash. Instead, our local ordinance – like many – only prohibits dogs from running at large (and owners not cleaning up after them, but that’s another story).

But is Winnie “running at large” when she trots by with us right behind her, simply because she is not leashed? A very good question, deserving a look at what “running at large” is all about… which brings us to a mother suing her daughter over the misadventures of a three-legged goat. And, no, we did not make this up.

Moore v. Spencer, Case No. 06 CA 830 (Ct.App. Carroll Co., Sept. 12, 2007), 2007 Ohio App. LEXIS 4272. Susan and Wayne Moore were Floridians on a Christmas visit to their daughter and son-in-law in Ohio. Susan brought her puppy, a Cairn terrier (whom we’ll refer to as “Fido,” his actual name not being recorded in the decision). One morning, Susan and her daughter, Laura, went outside with the dog. Laura decided to let Marrif, her three-legged pet goat, out of its enclosure to play with the puppy. The goat and Fido had not previously met, but Laura assured her mother that her goat played well with her friends’ dogs.

It was not to be. Instead of being friendly, Fido began to bark aggressively at Marrif the goat, and in response, the goat postured as though she intended to butt the plucky pup halfway back to the Sunshine State. Susan swooped in to pick up the dog before it learned a sorry lesson from a three-legged goat, but as she bent down to grab her hound, Marrif rammed Susan’s right eye with her horn. Susan suffered significant injuries as a result.

This being America and all, Susan and Wayne promptly sued their own daughter and son-in-law. The kids subsequently won summary judgment after the trial court found that Susan had assumed the risk of her injury. Susan and Wayne appealed.

Held: Susan had no claim against her kids or the kid. She argued that her daughter and son-in-law were responsible because they were in violation of O.R.C. § 951.02. She also claimed that the evidence did not establish that she had assumed the risk.

Section 951.02 of the Ohio Revised Code provides that “no person, who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, or geese, shall permit them to run at large in the public road, highway, street, lane, or alley, or upon unenclosed land…” Susan complained that that was exactly what Laura’s goat had been doing at the time of Susan’s injury, running at large. Because of this statutory violation, Susan contended, Laura was negligent per se, that is, negligent as a matter of law with no further showing of duty or breach necessary. For good measure, Susan alleged regular negligence as well, arguing that because the goat was loose and not penned or tied, Laura had violated the duty of care she owed to Susan when she released Marrif.

Marrif, however, was not “running at large” for purposes of the statute by its own terms, the Court ruled. The goat was on Laura’s property, not public property, at the time of the incident. The Court had previously defined “running at large” in a case concerning a dog, holding that “a dog is at large when a vagrant, when it runs at will, when it is absolutely beyond control or call and is acting on its own initiative, and under circumstances where there is no connection, physical or sympathetic, between the dog and the master…” A dog on its master’s premises is not a vagrant and is not running at large.

The Court said that O.R.C. 951.02 was “designed to prevent trespass by animals and was not to be for the benefit of highway travelers.” Negligence per se is only applicable in trespassing cases. Accordingly, if trespass is not at issue, a plaintiff must plead and establish negligence as it may otherwise arise from the ownership of a domestic animal. Susan admitted that the goat was on Laura’s own property at the time of the incident. Based on Susan’s own testimony, her reliance on O.R.C. 951.02 was misplaced.

Because she could not establish that her daughter violated a statute and thus was negligent per se, Susan had to prove the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. To be sure, Laura owed her mother, who was her social guest, the duty to “exercise ordinary care not to cause injury by any act of the host or by any activities carried on by the host while the guest is on the premises… and to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.” However, Laura was not an insurer of her guest’s safety.

In negligence cases raised against the owners of animals, liability is customarily determined by assessing whether the owner could have reasonably anticipated the event that resulted in injury. Here, nothing in the record established that Laura knew the three-legged Marrif to be “a dangerous, aggressive or otherwise mischievous domestic animal.” Here, the Court observed, it appeared that the puppy Fido’s aggressive bark led to the escalation that resulted in the accident, not any depraved nature on the part of the goat.

Susan had visited her daughter’s property about once a year for about six years before the incident, and she admitted she never saw the goat act in an aggressive manner before. While she never saw the goat running loose unless Laura took it out, on a prior occasion they took Marrif for a walk up the road on a leash.

Based on the undisputed evidence, the Court found that while Laura had a duty to exercise ordinary care and warn of any known dangers on the premises, not a single fact tended to show that she could have reasonably anticipated this incident and her mother’s injury. Thus, she was not negligent.

– Tom Root

TNLBGray