Case of the Day – Tuesday, January 16, 2018

DANGER TREES AND PIXIE DUST

pixie150916Last Friday, we took up the question of trees on tree lawns, an issue that arose because Jim Busek, a Norwalk, Ohio Reflector columnist, was up in arms over that city’s plans to cut down 62 boulevard trees that were interfering with the sidewalks.

Instead of removing the trees, Jim proposed that the offending roots be chopped out, and the trees then be encouraged not to grow any to replace them. While Jim was busy whispering to trees, we were wondering whether he might be liable if a dead ash tree standing on his tree lawn fell onto a passing motorist. Now, mind you, we don’t know whether Jim even has any trees on his tree lawn, but you know how it is when you hold yourself to the public as a famous columnist. You become a lightning rod. Sorry, Jim … you’re fair game.

In our discussion of Wertz v. Cooper, we delivered the bad news that Jim, as owner of the strip of grass between the public sidewalk and street, may well be liable. As an urban property owner, he has a duty to inspect and remove trees that may reasonably pose a danger to third parties passing on public streets. So Jim’s hanging out there a country mile (or maybe a city mile, because he is an urban landowner, and Wertz tells us they’re different).

But is he hanging out there alone? Although Jim owns the tree lawn, it lies within in the 60-foot wide right-of-way of the street. The Ohio Supreme Court has pointedly said that the “roadway, the space immediately above the roadway, the shoulder, the berm, and the right-of-way are all under the control of the political subdivision … [which] has a duty to keep the areas within its control free from nuisance, i.e., conditions that directly jeopardize the safety of traffic on the highway. Where the [subdivision] fails in its duty, it may be liable for injuries proximately caused by the nuisance.” Manufacturer’s Nat’l Bank of Detroit v. Erie County Road Comm (1992), 63 Ohio St.3d 318, 322-23.

So the City has Jim’s back (or is on the hook, depending on your viewpoint) in case the pixie dust dosen’t work on the tree roots. Of course, the City has to have actual or constructive notice of the defect, just like the landowner in yesterday’s case. However, the City has already noted that 62 trees should be removed, and – if the homeowners balk enough to convince the City otherwise – the City’s previous decision that the trees should go would cut against any denial by the powers-that-be that they were blissfully unaware.

All of which brings us to today’s case. This lawsuit relates to an unfortunate man who was killed when a dead tree fell onto his car one stormy November night. The tree was on private property out in the country, but it had been dead for so long that the landowner may have had liability. We can’t tell, because this case — in the Ohio Court of Claims — was solely against the Department of Transportation. The Court held that ODOT would be liable, notwithstanding the fact that the tree was on private land, if it had breached its duty to inspect the tree.

If "Lance" happens to ride a bike, he might be at risk from the decayed tree, too ...

If Jim happens to ride a bike, he might be at risk from the decayed tree, too …

ODOT had a “drive-by” inspection program, reminiscent of one we considered recently in Commonwealth of Kentucky v. Maiden. The victim’s heirs argued that if ODOT had gone around behind the tree (away from the road), they would have seen the decay. Well, yes, the Court said, but that’s beside the point. ODOT has over 40,000 miles of road to inspect, and to inspect every tree in the manner suggested by the plaintiff would be economically infeasible.

Still, the principle we take away from this decision is that just because the tree is on private land, the City of Norwalkl would not get off the hook. That doesn’t mean that Jim’s going to feel that much better in the defendant’s dock if the mayor has to stand next to him.

Our sad conclusion: Jim may not be the only one liable here. He knows the City has identified the trees as a hazard, and that alone places him on actual notice. If his 98-cent remedy of cutting some roots and hoping for the best doesn’t work, both his homeowners’ insurance and the City’s pocketbook could get a workout.

What a pain in the ash that would turn out to be!

Blausey v. Ohio Dept. of Transp., Not Reported in N.E.2d, 2005 WL 894878 (Ohio Ct.Cl.), 2005 -Ohio- 1807. Dale Blausey was killed during a windstorm when the car he was driving was struck by a falling Norway spruce tree on a U.S. highway in Erie County, Ohio. The tree had been growing on a roadside right-of-way obtained by defendant on land that was owned by Joe Henry but occupied by a tenant. The primary proximate cause of the fall was the severe deterioration of the roots on the east side of the tree and the high wind that blew the tree onto the highway. The tree had been struck by lightning in 1973, and the damage from that strike led to interior rotting and an infestation of carpenter ants, the combination of which destroyed much of the root system. The deterioration had existed for as long as ten years, gradually weakening the tree to the extent that it became a hazard.

Before it fell, the east side of tree that faced the highway showed little, if any, evidence of decay. Dead limbs were not clearly visible from the highway. Limbs had been removed from the lower part of the tree, which was not uncommon as landowners sought to mow, decorate, or otherwise use the land. Additionally, the lower part of the tree was obscured by bushes and vegetation. The upper growth of both the healthy and the diseased spruce trees was green and quite similar, although on close inspection, the growth on the healthy spruce appeared to be slightly more dense. Cone growth was normal on both trees. Although the 1973 lightning strike had caused the tree to lose its “Christmas tree” shape at the top, the loss was not very noticeable. However, an inspection of the west side of the tree would have revealed evidence of deterioration and of a potential hazard. The State had not inspected the tree except from the highway, and that inspection did not reveal any defect.

Blausey’s executor sued the State for negligence in not identifying and removing the danger tree prior to the accident, and accused it of maintaining a nuisance.

Held: The State was not negligent. In order to prevail upon a claims of negligence, a plaintiff must prove by a preponderance of the evidence that defendant a duty, that it breached the duty, and that the breach proximately caused the injury. The State has a duty to maintain its highways in a reasonably safe condition for the motoring public, but it doesn’t have to become an insurer of the safety of state highways.

treedown140513To constitute a nuisance, the thing or act complained of must either cause injury to the property of another, obstruct the reasonable use or enjoyment of such property, or cause physical discomfort to such person. In a suit for nuisance, the action for damages is predicated upon carelessly or negligently allowing such condition to exist. But in order for liability to attach to a defendant for damages caused by hazards upon the roadway, a plaintiff must show the defendant had actual or constructive notice of the existence of such hazard. The distinction between actual and constructive notice is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever from competent evidence the trier of fact is entitled to hold as a conclusion of fact and not as a presumption of law that information was personally communicated to or received by a party, the notice is actual. Constructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. To establish that defendant had constructive notice of a nuisance or defect in the highway, the hazard “must have existed for such length of time as to impute knowledge or notice.

The court found that there was insufficient discernible evidence available to defendant’s inspectors to warrant further investigation of the damaged tree or to determine that it was hazardous prior to the accident. While a close inspection of tree would have revealed that tree was a hazard, the deteriorated condition of tree was not apparent through Department’s routine visual inspections from roadway, and with over 40,000 miles of road to inspect, the Department was not — as a matter of social and economic policy —expected to individually inspect the trees.

– Tom Root

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And Now The News …



Santa Rosa, California, Press Democrat, January 15, 2018: State tree-cutting rules eased for wildfire victims

Michael Wagner doesn’t like the idea of cutting down trees on his 71-acre Santa Rosa ranch, blackened by October wildfires. But if he has to do it to rebuild his damaged house, he will. And he welcomes emergency measures from state officials that could make the job easier — and possibly put money in his pocket. “It’s kind of like you’re putting the old horse down,” said Wagner, whose Blue Gate Road property was in the path of the Tubbs fire. “You don’t want to do it unless you absolutely have to.” Under a proposal that could benefit Wagner and other fire victims, the state Board of Forestry and Fire Protection has agreed to waive its requirement that residents file costly timber harvest plans before removing scorched trees to be sold for lumber. The waiver would apply to stands within 300 feet of damaged or destroyed structures and would be in place for at least six months, speeding recovery and saving land owners up to $40,000 for the cost of timber plans…

Halifax, Nova Scotia, Chronicle-Herald, January 15, 2018: Antigonish tree enthusiast on quest to save American beech

It would be too easy to blame Queen Victoria. And certainly the aging monarch played her part. But she couldn’t have known the end result of sending a European beech sapling to Halifax in 1897 to celebrate her half-century on the throne would end in the near elimination of this province’s most plentiful hardwood. Because that little sapling planted dutifully by her subjects in Halifax’s Public Gardens had a little critter in it — a sapsucking insect the size of an aphid that punctures a little hole in the bark where it lays its eggs. Alone, the insect would have been a minor nuisance, but the little holes it pricked with its stylus were the perfect entrance point into beech’s thin bark for a fungus. Though the queen’s European beech was immune, our American beech weren’t. Within five years American beech trees around Halifax were dying…

Rochester, New York, WHAM-TV, January 15, 2018: Aftermath of Erie Canal tree-removal project on display in Brockport

After public outcry, the Canal Corporation agreed to temporarily stop clearing trees and brush from various areas of the Erie Canal’s embankments. The cutting started in Medina and was slated to end in Fairport, but the corporation stopped the project near the Village of Ogden after the push-back.  However, many west of Ogden are living with the aftermath of the canal’s project. Cody Butlin bought his home on Quarry St. in Brockport eight years ago. He says he never would’ve purchased the property there had he known this project would ever occur.  “We bought it because it was right up against the canal and it was beautiful,” said Butlin. “Now it’s completely visible, where it was complete privacy in the past.” Butlin says “hundreds” of trees were cut in the matter of hours from canal embankment bordering his property last month…

Norfolk, Virginia, The Virginian-Pilot, January 15, 2018: Before you prune your trees, read this

It’s January and your trees are bare of leaves. Is the time right to prune? There’s more to consider than timing, said certified arborist Brendon Phillips of Phillips Family Tree Care in Western Branch. The chief factor: Is pruning necessary at all? “You don’t prune trees just to prune them. They have thousands of years of practice and do fine on their own,” Phillips said. Topping – cutting off all of a tree’s upper branches or even the upper portion of the main trunk – is a common example of over-pruning. “It’s a terrible practice. If the tree doesn’t die, the stuff that grows back is only half as strong (as what was removed),” Phillips said. “The biggest reason I’m called in to take out a hazardous tree is from over-pruning years ago…”

Dallas, Texas, Dallas Morning News, January 11, 2018: This is what happens to trees when they’re struck by lightning

Trees struck by lightning can show several symptoms and have a range of damage. In general, when lightning hits a tree, the water in the cells beneath the bark is heated and boils. Steam causes an explosion that knocks the bark off.  A continuous groove of bark stripped along the entire length of the trunk or main branch is common. A crack that does not run the length of the trunk may indicate a side flash of lightning that strikes the tree, travels down the trunk, then jumps to an object with less electrical resistance. If lightning strikes a bit deeper into the trunk, the entire tree may blow apart, or all the bark will blow off. The tree may or may not have blackened or charred areas on the trunk. In some cases, the internal wood may be burned without obvious external symptoms. This wide range of damage is related such factors as intensity of the strike, moisture content on and in the tree, and the type and structure of the tree…

Redmond, Oregon, KTVZ-TV, January 11, 2018: ‘Tree City USA’ Sisters cracks down on tree-cutters

The city of Sisters, known as a “Tree City USA,” is cracking down on people cutting down city-owned Ponderosa pines. Some homeowners are in trouble when it comes to trimming or cutting down trees. Sisters resident Jack Lincke didn’t want to go on camera, but he told NewsChannel 21 Thursday he reached out to city officials about concerns he had about some trees in front of his house that he feared could damage his home if they fell.  Lincke said someone from the city came out to his home on November 2016 to evaluate the trees but never followed up with him. This month, he hired a tree service to cut down several large Ponderosas. Lincke said the tree service told him he didn’t need permission from the city to cut down the trees. Adrienne Brown, a neighbor who lives across the street, said she was upset those healthy trees would be cut down without the city giving the green light. “He made a mistake by not going through the proper channels,” she said. “And the trees — the nine trees were all healthy, and all of us are upset, because they were beautiful trees, and they have to be checked out by professionals before they are cut down by homeowners…”

Orlando, Florida, Sentinel, January 11, 2018:  Commentary: Sen. Greg Steube: Set Florida trees free from local control

America’s Founders understood unmistakably that private property is the foundation, not only of prosperity, but of freedom itself. Therefore, through the common law, state law and the Constitution, they protected our property rights — the rights of people to freely acquire, use and dispose of property. Thomas Jefferson said, “The true foundation of republican government is the equal right of every citizen in his person and property and in their management.” However, in recent years we have seen these basic rights infringed by local governments in everything from renting your property to trees. According to the Florida Constitution, it is a basic right of all natural persons in our state to acquire, possess and protect property. (See Article I, Section 2 of the Florida Constitution.) Many cities and counties in this state require you to obtain permission from them, the government, in the form of a permit, to cut down a tree, your tree, on your property. To me that flies in the face of your constitutional rights. As a property owner, you should not be required to obtain permission from the government — i.e., a privilege — to remove a tree, on your property. It’s your tree, not the government’s tree…

Quincy, Illinois, Herald-Whig, January 12, 2018: Does the city remove dead trees from the right of way?

There seems to be a lot of dead trees on the right of way that need to come down. Does the city do that? The Department of Central Services has a forestry crew that handles tree removal, as well as trimming of trees that are on city rights of way. In 2017, the forestry crew closed 865 tickets, according to Central Services records. This includes tree trimming and tree and stump removal, as well as other tree and other cleanup-related issues. Director of Central Services Kevin McClean said the best way for a resident to notify the city about a tree that should be removed is by contacting an alderman, who passes it along to Central Services. Aldermen contact information is on the city’s website, quincyil.gov. In the case of the city’s emerald ash borer management plan, it has hired private contractors to remove some larger ash trees that are not being treated with an injectable pesticide…

Hood River, Oregon, Hood River News, January 10, 2018: Tree virus found in Gorge region

Cherry Leaf Roll virus has been found in The Dalles and Oregon State University officials want growers to stop its spread by removing infected trees this spring. Also making an appearance in local orchards is Little Cherry Disease, already in play in the Willamette Valley and in Washington State. In addition, several viruses transmitted by microscopic worms, including Tomato ringspot and Tobacco ringspot, have been discovered in Hood River, The Dalles and Grand Ronde Valley orchards and vineyards. “I think if we get on top of the situation we can minimize the spread of the problems,” said Dr. Jay W. Pscheidt, an OSU professor and a plant pathology specialist. He said eliminating the problems is essential to the industry since Oregon is one of the top producers of sweet cherries in the United States, supplying about 10 percent of the total market. “For most growers and field representatives, the world of cherry viruses is a confusing bowl of alphabet soup,” said Pscheidt…

Sarnia, Ontario, The Sarnia Journal, January 10, 2018: With the tree bylaw dead, city eyes alternate restrictions

City Hall is once again pondering the protection of trees on private property after at least 20 mature trees were removed from a Murphy Road lot. The grove of hardwoods was cut behind the Brothers of St. Louis property at 1316 Murphy Rd. The property owner, Steeves & Rozema, also owns the adjacent Twin Lakes Terrace long-term care home. CEO John Scotland said some of the trees were diseased and posed a risk to nearby buildings. The “cut back” also eliminated cover for vandals that frequented the property, he said. “They’re not being cleared, and we’re also doing everything we can to maintain a healthy separation between our neighbours, which are residential lots to the north and to the east,” he said…

Washington, D.C., Post, January 10, 2018: Considering trimming or getting rid of an old tree? Not so fast.

Old magnolias never die, they just fade away. That seems to be the fate of the most historic tree at the White House, a Southern magnolia planted by Andrew Jackson and now so ancient and fragile that part of it was dismantled last month.  The decision to take down or at least dismember an old tree is neither easy nor always objective, but professional arborists are guided by a risk assessment protocol that brings a rationality to the process. The evaluation assesses the tree’s vigor, the thickness of its sapwood shell, its disease stresses, the state of the roots and the like. Arborists also consider its location and the proximity to what they call “targets” — property and people. “A tree in the middle of the woods is not a problem,” said arborist Paul Wolfe of Integrated Plant Care in Rockville, Md. “In an urban area, that’s some problem…”

Kalamazoo, Michigan, WWMT-TV, January 10, 2018: Michigan revises order to protect walnut trees from disease

State officials have revised a quarantine of some walnut products intended to protect Michigan trees from a fatal disease. The Michigan Department of Agriculture and Rural Development is trying to ward off an outbreak of thousand cankers disease, which has killed numerous walnut trees in the western U.S. The quarantine generally prohibits shipment of walnut nursery stock, certain walnut timber products and hardwood firewood into Michigan from infested states. Walnut furniture, veneer, kiln-dried walnut lumber without bark and walnut nuts and nutmeats are exempt…

Gloucester, Massachusetts, Wicked Local, January 9, 2018: Tree burning warms Marblehead’s community spirit

A collective reaction of astonishment from spectators commenced as a 25-foot pile of holiday pine trees went up in flames during the annual Epiphany Tree Burning at Marblehead’s Riverhead Beach Monday evening. “It’s just astounding,” observed Ann Whittier, who grew up in Marblehead and has attended the event since she was a kid. “I’m over 60 and I live in Salem now. What I don’t like about (Salem’s) bonfire is it’s so far away (from viewers). Here, we’re so close. I think it’s nice that people are able to get up closer to the bonfire. But you wait and see, people will start to back away once it goes off. It’s beautiful and a great way to end the (holiday) season.” About 200 people turned out Monday and once the trees were lit, a blaze quickly erupted like a glowing inferno rising into the night sky. On an evening when temperatures were below freezing with a stiff wind and light snow coming down, the heat was a welcome comfort.  “It’s an impressive blaze and it’s a little intimidating,” said Jason Whittier, Ann’s son. “You can really feel the heat from a great distance…”

Bored Panda, January 9, 2018: Woman returns a Christmas tree on January 4th because “It’s dead”

Christmas is over so it’s time to take down your Christmas tree… or return it to the shop that sold it to you? A woman has decided to do just that. On the 4th of January, she demanded Costo a refund because her Christmas tree “is dead” and one eye-witness has documented the entire thing. After he shared the ridiculous story on the internet, people can’t make up their minds if the shot responded accordingly or if they’re totally nuts. To give you some background, Costco Wholesale Corporation, trading as Costco, is an American multinational corporation which operates a chain of membership-only warehouse clubs. As of 2015, Costco was the second largest retailer in the world (after Walmart), and it guarantees almost all of their products with a full refund. Whether she really needed the money or because of some other reason, scroll down to read how the customer tried to abuse Costco’s refund policy and let us know what you think about it in the comments…

Missoula, Montana, The Missoulan, January 9, 2018: Homeowners responsible if trees growing on their property fall

If a tree growing on private property gets knocked down during a storm – as happened around the Rattlesnake last week – it’s up to the homeowner to clean it up, according to the city of Missoula’s urban forester Chris Boza.  That is, unless it falls into the public right-of-way, or onto power lines. Then, the city or utility company clears that portion of the problem. The recent snowstorm hit the Rattlesnake area particularly hard, with several trees landing on or near homes; including one that partially blocked a roadway.  When a street is blocked, Boza said the Urban Forestry Department is dispatched to deal with the debris, so long as there are no downed power lines or other utility hazards…

Battle Ground, Washington, The Reflector, January 9, 2018: Do trees need attention in the winter?

Yes, your trees need care throughout the winter to maintain their health.  Even though urban trees are now going into dormancy, they require attention throughout the winter to stay strong. Here are four tips to follow: (1) Wrap the trunk: Some recently planted, thin-barked trees like honey locust, ash, maple and linden, are susceptible to bark-damaging sunscald and frost cracks when temperatures fluctuate in fall and winter. Wrap trunks of younger trees up to the first branches using commercial tree wrap to protect the bark. Remember to take the wrap off once weather warms in the spring. (2) Use mulch: Two to four inches of wood chips, bark, or other organic mulch spread over the root system of the tree will help reduce soil evaporation, improve water absorption, and insulate against temperature extremes. To prevent rodent damage and the possibility of rot, make sure that mulch does not rest against the trunk of the tree. Consider layering leaves around the base of each tree as natural mulch…

Santa Rosa, California, North Bay Business Journal, January 8, 2018: California cuts red tape for cutting trees after wildfires

A state board announced this morning it will cut regulations to speed removal of dead or dying trees on property damaged by wildfires in three counties. The California Board of Forestry and Fire Protection stated an emergency regulation which takes effect Jan. 22 allows for the cutting or removing of dead and dying trees around damaged or destroyed legally permitted structures. It describe the change as allowing applicant notify the board using “expedited” notification rather than go through the process of preparing a timber harvest plan. The emergency regulation applies to Mendocino, Napa and Sonoma counties. The North Bay Wildfires were the deadliest and some of the costliest wildfires in California history. The largest of the fires burned approximately 185,000 acres, destroyed approximately 9,200 homes, and damaged approximately 790 additional structures…

Washington Court House, Ohio, Record Herald, January 8, 2018: Walnut trees: Blessing or curse?

Most people think of Black Walnut trees as an asset, even if they don’t take the trouble to gather and shell the plentiful nut harvest under them. Walnut is a prized hardwood traditionally used for gun stocks and fine furniture, so walnut trees have a special status even if they’re not particularly attractive as landscape trees. Black Walnut trees present a special challenge in the landscape, because they secrete a substance that is toxic to many plants. Known as “juglone” this poison is secreted by walnut roots, which can extend 50 feet from the trunk of a mature walnut tree. This means that homeowners need to pay special attention when planting or landscaping anywhere near an existing walnut tree…

London, UK, Mirror, January 8, 2018: New ‘Northern Forest’ of 50 million trees planned between Liverpool and Hull

Plans to plant 50 million trees to create a “Northern Forest” along a key motorway have been backed with £5.7 million from the Government. Planting is planned over the next 25 years to turn a 120-mile stretch of the M26 between Liverpool and Hull into a refuge for wildlife including birds and bats, protect species such as the red squirrel. It would also boost northern England’s sparse woodlands for millions of people living in the area. The Woodland Trust , in partnership with the Community Forest Trust and five community forests, aims to plant woodland totalling 25,000 hectares (62,000 acres), in a project which is forecast to cost £500 million over 25 years. It could generate an estimated £2 billion for the economy in growth in tourism and visits to the area, boosting rural businesses and generating jobs, increasing property values, and reducing the economic impacts of flooding, the scheme’s backers say…

Southeast Farm Press, January 8, 2018: Citrus industry says new bill ‘critical’ for replacing Florida trees

The Emergency Citrus Disease Response Act, which was included in the recently-signed tax cut bill, will provide immediate aid to help Florida citrus farmers replace damaged trees, allowing a 100 percent deduction in the first year instead of depreciating the cost over 14 years. A coalition of Florida orange farmers and agriculture groups said the new law authored by Congressman Vern Buchanan will help the state’s beleaguered citrus industry bounce back from crop disease and Hurricane Irma…

New York City, Wall Street Journal, January 7, 2018: That grinding sound is 30 million Christmas trees being mulched

What goes up must come down, and in the next few days, that could include as many as 30 million fresh Christmas trees that briefly perfumed homes before being stripped of ornaments and tossed to the curb. The National Christmas Tree Association, a trade group, estimates that Americans bought 27.4 million real Christmas trees in 2016, spending $2.04 billion. In comparison, an estimated 18.6 million artificial trees were purchased for $1.86 billion. (Fewer artificial trees are bought in any given year, but because they are reused, many more are on display.) The figures are from an annual poll commissioned by the association and conducted by Nielsen. This year’s survey, which will provide data for 2017, isn’t finished, but based on conversations with growers and retailers, the association anticipates the numbers will increase…

Lockport, New York, Journal, January 7, 2018: Tree backlog likely to persist until end of 2019

City leaders have made a recent push to clear the long-standing backlog of trees to trim or remove, but residents with problem trees should remain patient. The backlog likely won’t be cleared until the end of 2019, city officials say. “It took a long time for this problem to develop,” said 4th Ward Alderman David Wohleben. “I think it will take a long time for us to get a handle on the problem and get it resolved.” In October, Mayor Anne McCaffrey announced city highway employees had merged several lists of trees residents had complained about, into a single list of 936 trees, and was working at rating them. A tree’s rating determines whether it will need to be removed, trimmed or left alone. Of those 936, about 200 trees will require removal, while more than 475 need a trimming…

Christchurch, New Zealand, The Press, January 8, 2018: Massive tree ‘crushes’ rowing crew on Christchurch’s Avon River

A teenage rowing coach plunged into the water to rescue his crew after a 30-metre tree toppled onto – and sank – their rowing boat on Christchurch’s Avon River. Firefighters described scene, at the New Brighton Rd and Locksley Ave intersection at 5pm on Monday, as one of the “most unusual” they had attended in recent times, Fire Service spokesman Andrew Norris said.  The 30m poplar tree, which was believed to have rotten roots, fell from the Avonside Drive side of the river just as the boat carrying the Shirley Boys’ High School under 15 squad of Reuben Bannon, Finley Ocheduszko Brown, Cameron Maughan, Liam Whitaker and David Brown rowed underneath. Rowing coaches James Alexander and Josh Dolan, both 18, were cycling along the edge of the river watching the crew train when they heard a “loud crack” from the nearby tree…

Santa Fe, New Mexico, New Mexican, January 7, 2018: Official who improperly cut down trees picked as National Park Service deputy director

A former National Park Service official who improperly helped Washington Redskins owner Daniel Snyder cut down more than 130 trees to improve a river view at his Potomac, Md., estate has been chosen by the Trump administration to be one of the agency’s highest-ranking leaders. According to an internal email circulated at the Department of the Interior, Daniel Smith will assume the agency’s deputy director position Monday. He is expected to replace acting director Mike Reynolds, whose 300-day term has expired… “We have a new political appointee,” Lori Mashburn, Interior’s White House liaison, announced in the email obtained by The Washington Post. “Dan should be a familiar face at NPS. He most recently served as Superintendent of Colonial National Historical Park.” Before that superintendent’s role, Smith was a special assistant to the Park Service director. And it was in that position that he intervened in 2004 to help Snyder remove the trees from a hillside between his estate and the C&O Canal and plant saplings to improve Snyder’s view of the Potomac River. Smith pressured lower-level officials to approve a deal that disregarded federal environmental laws, harmed the Chesapeake & Ohio Canal National Historical Park and left the agency vulnerable to charges of favoritism, according to an Inspector General report…

Knoxville, Tennessee, WBIR-TV, January 4, 2018: Deep freeze helps fight tree-killing insect in the Smokies

Biologists in the Great Smoky Mountains say there is a bright side to the recent spell of frigid temperatures. The deep freeze is a life-saver for some of the mightiest hemlock trees in the Smokies. “Definitely, these cold extremes help with the invasive hemlock woolly adelgid,” said NPS forester Jesse Webster. “It will not get rid of them completely, but we will take every bit of help we can get.” The hemlock woolly adelgid (HWA) invaded the Great Smoky Mountains National Park in 2002. The tiny insect from Asia has killed millions of hemlock trees in the Eastern U.S. The pest gets its name from the white woolly coating that surrounds and protects the nymphs while they feast on hemlock trees in the winter…

Agfax, January 4, 2018: California: Tree crops take major hit from Thomas fire

As firefighters in Southern California worked to achieve full containment on the Thomas Fire, agricultural officials in Ventura County issued their first estimate of damage to crops and farm structures, reporting that losses will exceed $171 million, with more than 70,000 acres of cropland and rangeland affected. The Ventura County agricultural commissioner’s office based its initial assessment on information about agricultural locations within the perimeter of the fire, which started on Dec. 4 and grew into the state’s largest wildfire, burning nearly 282,000 acres as of late last week. In a preliminary disaster report to the U.S. Department of Agriculture, Ventura County Agricultural Commissioner Henry Gonzales estimated more than 10,289 acres of irrigated cropland and another 60,000 acres of rangeland in the county had been affected by the fire. He estimated the cost of the damage to current and future crops, machinery and equipment, dwellings, service buildings and other structures at nearly $171.3 million, with avocados and citrus crops suffering the highest losses…

Honolulu, Hawaii, KHON-TV, January 4, 2018: Some aren’t happy with plan to cut down trees at Manoa Marketplace

A plan to cut down several trees in Manoa Marketplace is not sitting well with some residents. Manoa Alliance started a petition Monday to stop owner Alexander and Baldwin from cutting down seven trees and relocating two others. A&B says it’s received complaints that the trees are creating a safety hazard in the parking lot. But Manoa Alliance says it was told the trees are being removed to create more parking. “They initially said that the reason they want to cut down the trees is to create more parking. They want to squeeze in 57 more parking stalls, but as you can see there’s really not a parking problem,” said Neil Bond with Manoa Alliance…

Abilene, Texas, Reporter News, January 3, 2018: Trees under attack fight back

As a tree guy, I get a lot of questions about cavities, or “hollows” in trees. Naturally, when homeowners notice a hollow spot on a tree, especially if it is oozing an ooky looking black liquid, they become curious. Frankly, voids in trees are an issue (no rocket scientist needed to figure that one out), and the real question isn’t so much “is it a problem?” as it is “how big of a problem?” Hollows in trees can be caused by many things. Be-that-as-it-may, most of the time, whatever the original cause of the trouble might have been, the upshot is that something wanted to digest part of the tree, and had some success. One ability trees lack is running away from things that want to eat them, so essentially, successful species of trees are ones which developed a decent ability to handle damage. When you see a cavity in a tree, what you are looking at is a spot where the tree was attacked by a tree “predator” of some kind. The predator has taken, or is taking, a hunk out of the tree, and the tree is defending itself (the plant world is every bit as brutal and competitive as the animal world, it’s just quieter about it). Sometimes that defense is successful, sometimes it’s not…

Atlanta, Georgia, Northside Neighbor, January 3, 2018: Residents, others concerned about Bobby Jones Golf Course project’s tree removal

Nearly two months into the year-long project to refurbish the Bobby Jones Golf Course in Buckhead, residents and others have raised concerns over the number of trees being torn down as part of the plan. “It’s horrific. It’s raping the whole land,” said Liles Nickerson, who lives on Whitmore Drive, within about 25 yards of the north end of the course. “… Couldn’t they have worked with what they had here instead of ruining the whole topography?” The 144-acre course, located within Atlanta Memorial Park, was built in 1932 as a tribute to golf legend Robert Tyre “Bobby” Jones Jr. It was sold by the city of Atlanta to the state in 2016 as part of a plan to reconfigure the course from an 18-hole one to a nine-hole reversible one…

Stockton, California, Record, January 3, 2018: One million more dead trees in Calaveras

Another 1 million-plus trees died in Calaveras County alone last year, despite abundant rainfall which protects the trees from the ravages of bark beetles. As large as last year’s death toll was, it marked an improvement from 2016, when nearly 1.9 million trees died in Calaveras. In total, since the beetle outbreak intensified in 2014, the county has lost about 3.3 million trees. California as a whole has lost 129 million, a “staggering” sum spread across an area larger than the state of Maryland, state and federal officials announced recently. “It is apparent from our survey flights this year that California’s trees have not yet recovered from the drought,” Randy Moore, a regional forester with the U.S. Forest Service, said in December. Water helps shield trees by thinning out their sap, which allows trees to expel bark beetles through their tiny burrow holes. So why did so many trees die after a winter that saw moderate flooding? For one thing, it takes a couple of years for beetles to inflict their full damage, said Nancy Muleady-Mecham, a naturalist and tree expert who lives in Calaveras County. The trees that died last year were already in the process of being invaded. “We’ll see it (tree mortality) for another couple of years, even if we get record rainfall,” she said Wednesday…

Fairfax, Virginia, Connection, January 3, 2018: Trees in Fairfax County continue to be targets of insects

The odds are against trees in Fairfax County in terms of soil compaction, construction, air pollution and insects as the Urban Forest Management Division sets its sights on cankerworms this winter. Unlike the emerald ash borer that went for the trunk and branches of ash trees, the cankerworm goes for the leaves in the canopy. “The cankerworm larvae (caterpillars) feed on the leaves of a wide variety of trees,” said Troy Shaw, coordinator of the Forest Pest Program in the Fairfax County Urban Forest Management division. Shaw said the cankerworms target the first set of leaves, causing the trees to produce another set of leaves, which depletes the tree’s stored food reserves. The Urban Forest Management are currently trapping the females with a brown band of treated paper wrapped around trunks of trees that is “coated with a glue-like material that is intended to capture female cankerworm moths as they climb the tree in the winter months,” Shaw said. “We use the data collected from these traps to try to predict where defoliation is going to occur the following spring,” he added. The cankerworm is not fatal to every tree it defoliates but defoliation may cause tree mortality, and the county is targeting the Lee and Mount Vernon districts this winter. In the past, up to 5,000 acres in the county have been defoliated by cankerworms…

Regina, Saskatchewan, January 3, 2018: City installing bolts on splitting trees

The City of Regina is trying to keep a number of trees from splitting by installing bolts into the trees to pull them back together. Frost cracks over the past two weeks have caused a number of green ash and elm trees to break in half. Wind chills have reached into the -30 C and -40 C range over the past few weeks. “We’ll go out and assist a tree and determine the health,” said Ray Morgan, the city’s director of parks and open spaces. “Typically we’ll put a bolt —maybe two bolts, maybe three bolts —to help secure it and ensure that it is safe for the public…”

Liberal, Kansas, High Plains Leader & Times, January 2, 2018: Damage to trees like that from last year’s storm can be avoided with proper care

January 2017 began with Winter Storm Jupiter wreaking havoc on the area by dumping snow and covering everything with thick ice, especially trees and other shrubbery in the city, a great deal of which suffered a lot of damage.  Colder weather is upon the area and with that, it is important for trees to be trimmed to help prevent some of that damage from happening again.  “It helps beautify the city, it helps avoid damage to power lines and houses and fences, which could all cost a lot of money to fix after a big storm like what we saw in January,” Roger Wharran, owner of Wharran Landscaping, said. “A lot of it is to help beautify the city and beautify the property. If they take care of them properly and have a professional do the work, that’s the right way to do that.” “As an arborist, we look for bad angles on trees and those bad angles, if they’re too narrow, that can cause someone to not see the break or decay and if it’s too wide, it can get too much weight on that branch from ice and snow and then break,” Vicky Brunkhardt, owner of DV Enterprises, LLC added. “That’s one of the biggest things we look at as far as making sure a tree is healthy…

Minneapolis, Minnesota, Minnesota public Radio, January 2, 2018: Snowy PM rush hour dusting; why do trees like it cold?

Temperatures hit the magic number of -40 across northern Minnesota in the past week. Forestry experts like Lee Frelich at the University of Minnesota say -40 is a magic number for Minnesota forests. Temperatures of -40 produce high insect mortality rates. That means those little pine bark beetles that can decimate our northern forests took a big hit last week. So even though you can’t feel your face, there are benefits to this extreme cold. Silver linings, people…

Coos Bay, Oregon, The World, January 2, 2018: Piling leaves against trunks can harm trees

After autumn’s end comes the problem of what to do with all those fallen leaves. Far too often, homeowners rake the leaves into big piles surrounding the trunks of their street and yard trees. Some of these piles resemble leaf volcanoes. Unfortunately for trees, those piles can be just as destructive as a volcano, according to Oregon Department of Forestry Community Assistance Forester Katie Lompa. “Leaf volcanoes trap moisture against a tree’s trunk, allowing fungi to flourish,” said Lompa. “Peel back wet leaves that have been left against a tree trunk and you may see tell-tale white patches revealing the initial stages of rot.” The solution? “Leave a ring at least three or four inches from the trunk free of leaves,” said Lompa…

Flowing Data, January 2, 2018: Mapping perceived canopy tree cover in major cities

Treepedia, from the MIT Senseable City Lab, estimates perceived tree cover at the street level. They used panorama views from Google Street View to form a “Green View Index”, which they then mapped for major cities. Treepedia measures the canopy cover in cities. Rather than count the individual number of trees, we’ve developed a scaleable and universally applicable method by analyzing the amount of green perceived while walking down the street. The visualization maps street-level perception only, so your favorite parks aren’t included! Presented here is preliminary selection of global cities…

 

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

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Case of the Day – Martin Luther King Day 2018

SOME THINGS EVEN A COURT CAN’T DO

The majestic courage shown by the Selma marchers 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today's plaintiff.

The courage shown by the Selma marchers over 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today’s plaintiff.

For a country that was supposed to be sailing into a post-racial world after the election of President Obama in 2008, we’ve had a rough time of it recently.  In race relations, 21st century-style, there is the deadly serious (such as Ferguson, Chicago, Cleveland and Charleston) – the merely reprehensible (a busload of drunk, rich white kids being stupid, callow and mean, all at the same time) – the head-scratching (trees can be racist?), and a President who is or is not racist, depending on your political viewpoint. That last issue, and exactly how he may have referred to the governance and economics of Haiti, El Salvador and some countries in Africa, are a suitable launching point for a trip into the absurd. The absurd is something we’ll look at today, on Dr. Martin Luther King’s birthday commemoration.

Sigmund Freud was famously but questionably credited with having said “sometimes a cigar is just a cigar.” In today’s case, a matter of trespass to trees was somehow recast into a federal civil rights action by the plaintiff, who was a man with a litany of offenses committed against his ancestors which he wanted to redress.

Mr. Brewer apparently trespassed on Mr. Lance’s property and removed three trees. Rather than an appropriate trespass to trees action (with a request for treble damages) in South Carolina courts, Mr. Lance went for broke, suing Mr. Brewer for violation of his civil rights under 42 U.S.C. § 1983.

A § 1983 action is a powerful one, authorizing a federal court action to be brought against persons who, under color of state law, deprive another of his civil rights. It has been used against those who discriminate in housing, police officers who wrongly beat suspects, employment discrimination, and even in zoning decisions.

But § 1983 doesn’t do everything. Here, Mr. Lance argued that not only had Mr. Brewer falsely claimed to have the County’s permission to cut down the trees, but Mr. Brewer’s grandfather had defrauded Mr. Lance’s cousin in a land deal about 40 years before. When the Federal magistrate judge recommended dismissal of the § 1983 action, Mr. Lance objected, arguing rather ineloquently that ““GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction.”

cartoon150313Destruction was something the federal court was willing to risk, holding that no matter how it tried to construe Mr. Lance’s complaint, there just wasn’t a civil rights violation alleged. Of course, he was free to pursue his complaint in state court, and we assume he did so.

Lance v. Brewer, Slip Copy, 2007 WL 1219636 (D.S.C., Apr. 24, 2007). In late 2005 Defendant Brewer cut down three large trees and other tree limbs on Plaintiff Lance’s property without permission. Lance asserted that Brewer, who ran a business named Don’s Scrap Metal and Iron, sold these trees for profit but that he and his relatives did not receive any profit. Lance alleged that Brewer told him the county gave him permission to cut down the trees, but according to Lance, a county employee told him that the Brewer did not have permission to cut down the trees. In addition to these claims, Lance argued that Brewer’s grandfather purchased the property adjoining his property forty to fifty years ago by “fooling” Lance’s cousin into selling 20 acres of river-front property for $200.00.

Lance alleges Brewer’s actions constitute racism and discrimination under 42 U.S.C § 1983, and he seeks $85,000.00 on behalf of the heirs of his cousin, Willie Lance. A U.S. Magistrate Judge recommended that Lance’s claim be dismissed. Lance disagreed, and sought rejection of the Report & Recommendation.

Dr. King stood for equality and justice… not nonsense.

Held: Lance’s tree-cutting-as-civil-rights case was dismissed. The Court observed that the Plaintiff had objected to Report and Recommendation, because “GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction. The United States Court has Federal Jurisdiction, because this is a Civil Rights Violation.” The Court said, “[t]he Plaintiff’s unsubstantiated statement that the Court has federal jurisdiction because this is a civil rights violation does not change the fact that even liberally construing the Plaintiff’s complaint, it fails to state a claim for a federal civil rights violation.” Here, Brewer is a private individual.

What’s more, Lance tried to state a claim pursuant to § 1981. The Court held that Lance has failed to allege an essential element of a § 1981 claim, that there is a contract or property law right enjoyed by white citizens but not by the Plaintiff, who is black. The Court concluded that, tree or no tree, no federal question was raised by Lance’s claim, and thus jurisdiction did not exist.

– Tom Root

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Case of the Day – Friday, January 12, 2018

SOMEONE’S GOTTA DO SOMETHING ABOUT ALL THESE ASH HOLES


busek150915We read a lot of newspapers. Some are truly excellent. Some are pretty good. A few are so-so.

Then there’s the Norwalk, Ohio, Reflector, which we read for reasons too complex to explore here. Suffice it to say, if you have a parakeet, the Reflector is all the newspaper you’ll ever need. 

A couple of years ago, Reflector columnist Jim Busek complained about the city’s plan to axe 62 trees that are accused of wreaking havoc with sidewalks. Jim bemoaned the fact the City had removed a number of ash trees eight years ago (which he admitted was a “smart ash policy”). Jim was pleading for the 62 targeted trees, publicly and plaintively asking Norwalk Safety Director Josh Snyder whether there wasn’t an alternative to cutting down these old trees. Surely, Jim hypothesized, these at-risk trees are so mature that if the offending roots were cut, no new ones would dare grow, and the sidewalks would thus remain in place. Right?

Maybe if we cut the trees' roots, but ask it real nicely, it won't grow any new ones ...

Maybe if we cut the trees’ roots, but ask them real nicely not to grow any new ones, our problems will be solved …

Sure thing, Jim. While Norwalk arborists are busy looking for the anti-root pixie dust that Jim figures will prevent new growth, we thought we’d consider the strange legal limbo in which property owners find themselves when tussling with municipalities over trees located on tree lawns.

It turns out that Norwalk – known as the Maple City – didn’t rid itself of all of its ash trees. A few still stand on city streets, and ash borers haven’t overlooked them. So who’s responsible for those dead trees? Ironically, we’ve seen the issue arise before, as cities – operating under tight budgets – lean on homeowners to pay for the removal of tree lawn trees. So exactly whose problem is it?

An interesting question, and one we’ll consider for the next two days. Actually, there are two questions, and we’ll pick on Jim in order to answer them. Let’s say for example, that the dead ash on Jim Busek’s tree lawn falls on a motorist. Is Jim’s ash in a sling? And might the Maple City be liable as well?

So someone’s gotta do something about the tree. But who – Jim or the Mayor?

The infestation on this ash is pretty obvious.

The infestation on this ash is pretty obvious.

Today, we’ll consider Jim’s liability. There’s no doubt that the tree lawn is Jim’s property, despite the fact it is subject to the City’s highway dedication. There’s a lot an owner can’t do with a tree lawn because of the City’s highway rights, but it’s still his or her property. Generally, the owner can plant and take down trees. And the fact that an owner has the right to add or remove trees suggests that he or she has a duty to as well.

Let’s consider that duty. In Wertz v. Cooper, one of Cooper’s trees fell onto Wertz’s fence during a storm. When Wertz sued her, she countered that she had no idea the tree was diseased, and that the tree’s falling over was an act of God. The Court agreed. It held that in order for a landowner to have a duty, the evidence must establish that he or she had actual or constructive notice of a patent danger that the tree would fall.

There is an exception. Where the tree overhangs the street in an urban area, an owner may be held liable on negligence principles under certain circumstances for injuries or damages resulting from the tree or a limb falling onto the highway. Generally, an urban owner has a duty of reasonable care relative to his or her trees, including inspection to make sure that they are safe.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

So Jim may have a problem, beyond the fact that he’ll find no tree-root pixie dust at the nearby Home Depot. The duty to inspect isn’t an issue here. If Jim owns that dead ash tree, he already has notice that the tree’s dead. The bare branches in mid summer, the sloughing bark, and the borer tracks looking like spaghetti done in bas relief, is more than enough constructive notice anyone ever had. Whether the City does something about the dead tree or not, Jim would do well to hire an arborist to inspect the tree. If the tree should go for safety’s sake, Jim shouldn’t wait for the City to do it.

Would the same apply if tree roots damaged the sidewalk, making pedestrian passage dangerous? Absent any municipal code relieving property owners of liability for condition of the sidewalks, it would hardly be a stretch for an unfortunate passerby suing under the law of nuisance. Need an illustration? Look no further than Fancher v. Fagella.

Tuesday: Would the Maple City be liable to remove the tree, independent of Jim’s obligation as a landowner?

Wertz v. Cooper, Case No. 06CA3077 (Ct.App. Scioto Co., Dec. 13, 2006), 2006 WL 3759831. Following heavy rains, a tree that sat on Cooper’s property tore loose from its roots, and leaned into Wertz’s fence and into a Shriner Colorado Blue Spruce tree that sat upon Wertz’s property. Wertz sued Cooper, complaining that Cooper failed to timely remove her tree. Wertz sought damages, including the cost of removing the fallen tree, the expenses to replace the damaged Blue Spruce, and other incidental damages.

Cooper argued that she had no knowledge of a defective condition of the tree, that she could not have been negligent in failing to maintain the tree, and that she could not be liable for the damage when an “act of God” caused the tree to uproot. The trial court agreed that there was no evidence that the tree was deteriorating, and that Cooper was not liable for an Act of God.

Wertz appealed.

If the dead tree falls n a car, watch the scramble to avoid liability begin ...

If the dead ash tree falls on a car, watch the scramble to avoid liability begin …

Held: Judgment for Cooper was upheld. A negligence action in Ohio requires a plaintiff to establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered injury. In order for a plaintiff to establish the duty element in a negligence action arising from a fallen tree, the evidence must establish that the landowner had actual or constructive notice of a patent danger that the tree would fall.

There is an exception to the general rule, however, concerning the duty of a property owner relating to growing trees with limbs overhanging a public street or highway. An owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property. In addition, there appears to have developed a distinction throughout the United States that there is a lesser standard of care with reference to rural, farm, timber, or little used land as opposed to strictly urban property. Generally, an urban owner has a duty of reasonable care relative to the tree, including inspection to make sure that it is safe. The duty placed upon the urban landowner, who has only a few trees, is not a heavy burden. This is in contrast to the rural landowner who may have a forest full of trees, which would impose a duty of immense proportions, and constitute an onerous burden on the owner.

Despite the heightened standard to be applied to an urban tree, Wertz had no evidence in this record to establish that Cooper had either actual or constructive notice of a defective condition of the tree. While Wertz advanced her belief that the tree was dead or dying, her allegation was conclusory. She presented no evidence to support her claim. What’s more, even if Wertz were right that she believed that the tree was dead or dying hardly establishes that Cooper knew or should have known that the tree was dead or dying.

– Tom Root

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Case of the Day – Thursday, January 11, 2018

BOB AND TED’S EXCELLENT ADVENTURE

This day and age, when so many people do the bare minimum needed to get by, it’s refreshing to read about a pair of go-getters like Bob and Ted. When the Weisslers built their dream home on the Finger Lakes in Palmer, Alaska, they arranged for electric coop Matanuska Electric Association for power. They signed off on an easement with MEA for a 4-foot wide easement, a matter of some importance to the Weisslers, who wanted the maintain their privacy by cutting as small a swath through the trees as possible.

A work order was drawn up for the electric installation, noting “R2-4, 80 ft,” which in MEA-speak meant a four foot right of way, 80 feet long. MEA dispatched Bob and Ted to clear the path on Weissler’s property. Ted admitted that they knew the clearing was to be four feet wide, 80 feet long, but the boys were energetic and looking for a chainsaw adventure. They cleared the stately pines from the road all the way to the northeast corner of the house and then, spying the meter box on the southeast corner of the building, decided to continue to clear to that corner as well. Ted knew the Weisslers wanted electrical service as soon as possible, and he and Bob figured they were exceeding expectations by enlarging the clearance, so as to get the lights turned on that much quicker.

Their enthusiasm was as unbridled as their chainsaws were sharp. Bob and Ted cut a swath that, instead of being four feet wide, was up to 21 feet wide. The cutting cleared about 1,200 square feet, some four times what the work order called for and the Weisslers wanted.

The Weisslers sued MEA for breach of contract and trespass, claiming treble damages for loss of timber under Alaska Statute 09.45.730. Punitive statutes mandating double or triple damages for wrongful cutting of timber are common in virtually all states, the thinking being that merely requiring a wrongdoer to pay the value of the tree was insufficient deterrence where the cutting was reckless or intentional.

There is always a tension in calculating damages when the trees cut were not for commercial timber. It’s easy where the stand of timber is kept for sale. The plaintiff does some timber cruising, and the stumpage value is set. The trial court then trebles it, and sometimes (depending on the state) dumps in attorneys’ fees, too. But when the loss is of trees that lack much commercial value but are of great value to the homeowner – say, like the Weisslers did, the homeowner loves the privacy a stand of trees affords. Here, the court chose, as the proper measure of damages, the cost of restoring the property to the approximate condition that existed before the cutting. The judge awarded compensatory damages of $5,250.00 ($4,050.00 restoration costs and $1,200.00 for maintenance), and then applied the treble damages provision of AS 09.45.730 and ultimately awarded $15,750.00, as well as attorney’s fees of $2,200.00 and interest of $6,300.00 for a total judgment of about $25,000.00.

MEA argued vigorously that the treble damages statute did not apply to cases like this one, where it was lawfully on the property but just sort of exceeded its brief. The statute provides that treble damages apply unless “the trespass was casual … or the defendant had probable cause,” in which case, only actual damages may be recovered. But the appellate court said nothing doing. “Casual” means, essentially, negligent entry onto the property, such as if a care swerved off the road and hit a tree. MEA’s crew intentionally went beyond the easement and meant to cut down the trees.

As for probable cause, the court said that means “an honest and reasonable belief.” Ted and Bob knew the easement limits. They went beyond them, and – good intentions aside – they were trespassers, and not casual ones, either.

Matanuska Electric Association v. Weissler, 723 P.2d 600 (Alaska 1986). A couple of overzealous electric utility workers cleared a swath of up to 21 feet wide to bring electric service to a new home, despite the fact that the homeowner had given the utility only a 4-foot wide easement. The homeowners sued for trespass, and asked that Alaska’s treble damages statute for wrongful timber cutting be applied.

The trial court agreed, and trebled the damages, which for restoration of the property. The homeowners won a $25,000 judgment. The utility, MEA, appealed.

Held: MEA was liable for treble damages. The utility argued that the treble damage statute’s primary purpose was to deter those who pursue their own objectives on a public right of way from disregarding the adjacent landowner’s interest. The Alaska Supreme Court rejected that argument, pointing out that “MEA’s construction of the statute would allow the most willful of trespassers, i.e. those who enter onto timber land to cut and sell another’s merchantable timber, to be liable for only single damages.”

MEA also argued that urges the court to apply common law principles governing punitive damages. Punitive damages require malice, MEA argued, and there was none here. The Supreme Court looked to Oregon’s treble damages statute, on which Alaska’s was based, and there the courts had held that the legislature exercised its prerogative to define when single damages applied and when treble damages applied. The legislature abrogated common law here, and the statute is reasonable.

The statute requires that the trespass be without lawful authority, and MEA argued that it did not trespass because it had the Weisslers’ permission to be there. But, harkening to the Restatement (Second) of Torts § 168 comment d (1965), the Court held that the rule is well recognized that “one who has a private easement of way becomes a trespasser when he goes beyond its boundaries.” MEA exceeded the scope of the easement that the Weisslers granted, and thus trespassed without lawful authority.

But, MEA asserted, any trespass it committed was “casual,” and hence only single damages should be awarded. MEA contended the trial court “found MEA’s excessive cutting to be the result of negligence and mistake,” but the Alaska Supreme Court disagreed: while the trial judge said that this was not a case where people were “recklessly cutting down other people’s trees without regard for them,” she nevertheless, described MEA’s conduct as negligence “verg[ing] on recklessness.” At any rate, “casual” does not mean negligent. Rather, it comes from a 19th century New York statute, in which “casual” meant “casualty” or “involuntarily,” contrasted with “designedly and under a claim of right.”

“Casual,” the Court said, “does not include a mistaken belief in the authority to cut trees.” A trespass committed under a negligently mistaken belief in the right to cut would not be “casual,” the Court said, because “the trespasser intends to cut.” Only where the trespass is unintended is it “casual.” Once a trespasser forms an intent to enter the land, the trespass becomes “willful” and the plaintiff may recover treble damages.

The Court said “MEA’s negligent decision to exceed the scope of the Weisslers’ permission to cut cannot qualify as “casual” negligence. MEA’s agents intended to cut the trees under a mistaken belief that Weissler would approve. Since MEA’s agents intended to cut, their actions were not ‘casual’.”

Finally, MEA lacked probable cause to cut the Weisslers’ trees. The statute awards only single damages where a defendant had probable cause to believe that the land on which the trespass was committed was the defendant’s own or that of the person in whose service or by whose direction the act was done. The Court said that probable cause means “an honest and reasonable belief.” By definition, the Court ruled, “a negligent mistake as to authority cannot qualify as probable cause since negligence involves unreasonable conduct.

The Alaska Supreme Court concluded that the tree damages statute “mandates treble damages unless the trespasser exempts him or herself” by proving, as an affirmative defense, that single damages apply.

– Tom Root

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Case of the Day – Wednesday, January 10, 2018

NOT EVERYTHING IS SOMEONE ELSE’S FAULT

One fall day a few years ago, a 9-year old boy named Julian Terry – who was busy being a 9-year old boy – decided to climb a utility pole. Why did he want to do this? He was a 9-year old boy… What more reason did he need?

The utility pole was one of those older styles with metal foot pegs that began more than seven feet up the pole, high enough that trespassers (such as young boys) could not reach them. Unfortunately, the utility company did not reckon with Julian Terry. The intrepid young man climbed a tree next to the pole until he got high enough to reach the iron pegs on a utility pole, then climbed using the pegs and tree branches together.

Alas, it was an accident looking for a place to happen. Julian’s foot slipped off a peg. He grabbed a tree branch, which broke beneath him. Julian seriously injured his arm on the iron rod that stopped his fall.

Julian’s mom wasted little time suing the electric company and two phone companies, all of which were using the pole. She argued the utilities created a dangerous condition when they allowed a tree to grow near the utility pole, because the tree made it possible for little urchins like Julian to climb 8 feet up to the iron pegs.

Come on, man… There’s a reason the law requires that defendants actually have a duty to the plaintiff before they have to pull out their checkbooks. As we all learned back law school when we read Palsgraf v. Long Island Railroad, “the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” (Regular readers know how we love Palsgraf).

And so it is here. If the tree was too close to the utility pole, and fell in the wind, causing a short that set a house afire, the homeowner would have a point. Risks to the power grid from a tree too close to the utility pole is reasonably perceived, and the utilities had a duty to maintain the lines by keeping the easement clear.

We recall going down the basement once to discover that our 8-year old son and his cousin had coated the concrete floor with WD-40, and were gleefully sliding around the room on pieces of cardboard. Should we have sued The WD-40 Company?

There was a lesson there for us, just as there was for Mrs. Terry. No adult has sufficient capacity for imagination to reasonably foresee what kids might do.

Terry v. Consumers Energy Company, 2016 Mich. App. LEXIS 303 (Ct.App. Michigan, 2016). Nine-year-old Julian was injured after he fell while climbing in a tree next to a utility pole. His goal was to climb high enough to reach the iron climbing pegs on the pole, which started at over 7 feet off the ground precisely to keep curious kids from using them to climb the pole.

Julian’s foot slipped from a metal peg, so he grabbed a tree branch to break his fall. The branch broke instead, and Julian seriously injured his arm on an iron peg on the way down. His mother sued, alleging the defendant power company and telephone carriers using the pole had created a dangerous condition when they allowed a tree to grow nearby. The defendants moved for summary judgment, arguing that they had acted reasonably in placing the pegs on the pole. Mrs. Terry responded that the defendants had a duty to reasonably inspect the pole and trim the tree to prevent the hazard.

The trial court granted summary judgment, holding that, “Quite frankly, I cannot find a duty that would have been owed to this young man that would have been breached.”

Mrs. Terry appealed.

Held: The defendant utility companies owed no duty to curious Julian. To prove negligence, a plaintiff must show that the defendant owed the plaintiff a duty of care, the defendant breached that duty, the plaintiff was injured, and the defendant’s breach caused the plaintiff’s injury. Generally, a plaintiff proves a defendant breached the duty of care by establishing that the defendant’s actions fell below the general standard of care to act reasonably to prevent harm to others.

Here, no one disputed that climbing pegs on the pole were over 7 feet off the ground, and that nothing about the pole itself was unreasonably dangerous. In fact, the Court said, the Defendants exercised reasonable care when they placed the pegs higher than even an adult could reach.

But Mrs. Terry claimed the defendants had a duty to inspect the nearby trees to ensure that they did not provide access to the power line. This case is different from one where a defect in the pole or wires caused the electrocution of someone holding a ladder nearby: there, the power company had “an obligation to reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects.”

Here, by contrast, Mrs. Terry sought to hold the defendants liable “for a condition of land aris[ing] solely from a defendant’s status as an owner, possessor, or occupier of the land.” She offered no evidence that the utilities owned or controlled the tree that Julian used to circumvent their safety precautions. The Court said, “Defendants are no more responsible for the tree that Julian used to circumvent that precaution than they would be had Julian used a ladder to reach the rods.”

We have to admit that we’re a bit confused by the holding’s failure to consider the location of the tree. Presumably, if it was close enough to the pole for young Julian to use it to gain access to the climbing pegs, it was within the utilities’ easement (and was probably too close to the wires). We question whether the utilities did not “control” the tree. But, as old Judge Miller used to tell us when we were young lawyers (a long time ago), you dance with the girl who brung you. If Mrs. Terry offered no evidence about an easement that permitted the utilities to trim (or even remove) trees, the trial court was not free to imagine it.

– Tom Root

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Case of the Day – Tuesday, January 9, 2018

THE PENNSYLVANIA CHAINSAW MASSACRE

We write a lot about trespass and the wrongful cutting of trees as a civil matter, where courts award money damages and occasionally injunctive relief. So much so, perhaps, that it’s easy sometimes to forget that trespass is also an offense against the public peace that is punishable in every state as a criminal offense.

Darlene Gall’s nickname could have been “Unmitigated.” There is pretty clearly a backstory of neighbor animosity here, but all we get are the facts of the offense: one summer day, while her neighbor Gloria was at work, Darlene drove onto Gloria’s yard and lopped a 20-foot long branch off an apple tree. She then dragged it back to her place behind her pickup truck.

Darlene already had a driveway, meaning that the easement was not essential to get from her house to the road. But rather than use her Massachusetts Rule rights to trim the tree limb back to the edge of her easement, Darlene went next door and took a bough – the whole bough. Darlene said she did this because the branch scratched her truck cab when she drove by on her easement. And because someday an ambulance might have to get to her house by means other than her driveway. And because Gloria’s people dumped dirt in the easement once. And so on.

When another neighbor saw Darlene cut the branch and tow it away, he reported it, and Darlene got charged with criminal trespass, a misdemeanor. She admitted cutting the branch, but tried to convince the judge she thought she had the right to walk onto Gloria’s land with her chainsaw whirring. Her lawyer argued that it is “a well-settled principle in the civil law that a non-owner of vegetative property, like a tree, is privileged to physically damage the property when it is intruding onto her property.”

Well, not exactly. The Massachusetts Rule lets a landowner cut off boughs and roots of neighbor’s trees which intrude into his or her land when the tree causes “sensible harm.” Darlene could have cut the apple tree branch back to the edge of the easement. But the branch’s encroachments were not a license for her to enter her neighbor’s yard and cut the encroaching limbs all the way back to the trunk.

Commonwealth v. Gall, 2017 Pa. Super. Unpub. LEXIS 1709 (Pa. Superior Ct.2017). Darlene Gall drove onto her land owned by her neighbor, Gloria Hieter, and used an electric chain saw to cut down a 20-foot limb from an apple tree. She then threw a rope around it and dragged it behind her truck back to her own property. She did so without ever asking Gloria’s permission, claiming the limb was blocking her use of an easement, making it impossible for her to drive past without scratching the roof of her vehicle. She also rather disingenuously claimed she was concerned about the possibility of an ambulance being able to reach her property by means other than her driveway.

Darlene was charged with the crime of simple trespass, which makes it a misdemeanor for a person, knowing that he or she is not licensed or privileged to do so, to enter or remain in any place for the purpose of, among other things, defacing or damaging the premises. She was found guilty, and sentenced to pay a $50.00 fine and costs of prosecution.

Darlene appealed.

Uh… but then, it’s not trespassing.

Held: Darlene was guilty of criminal trespass. She complained there was no evidence to show she knew she was not allowed to go on to Gloria’s land to cut the branch that was interfering with the use of her easement. But the Superior Court agreed with the trial judge that Darlene knew that the base of the apple tree was on her neighbor’s property, that she knew she was entering Gloria’s property, and that she intended to enter the property in order to cut the tree branch.

The trial court found from circumstantial evidence that Darlene knew she was not privileged to be on her neighbors’ property to cut down the apple tree branch. But she argued on appeal that the evidence was insufficient, and anyway, the law permitted her to be on the property for the purpose of removing a personal hazard to her health, and that she did not have the specific intent of defacing or damaging the premises.

The Superior Court, however, observed that intent can be proven by circumstantial evidence, and that it can inferred from timing. Here, Gloria testified that she drives past the easement, which is on her left, to go to work. A neighbor, Mr. Goldman, heard the chainsaw and the large cracking sound and saw Darlene’s truck going by, towing this huge branch around 11:30 am on a Tuesday. The Superior Court said it was permissible to infer from Darlene’s choosing to cut down the branch at a time Gloria would not be at home that Darlene knew she was not privileged to enter Gloria’s land to cut down the branch. Gloria confirmed that Darlene never asked her about the tree branch.

Darlene took a bough… but not like this.

Mostly, Darlene was heisted by her own petard. She whined that “there was nothing there to say I couldn’t go up there. There was nothing there, no signs or nothing. They posted, actually, their signs into my easement, in other words, with the — may I say something? There was time when they encroached on my easement there, trying to take it on me, and it cost me thousands of dollars in court to establish that I had the right to that road. They were pushing dirt on my — they built a shed a foot over their property line without a permit, and I have no… other way to explain the need to go on there and just take care of it myself.”

The trial court said Darlene “seems all too aware of where the easement line is and where her property is and where her property isn’t. She acknowledges that she went four steps onto her neighbor’s property.” The Superior Court concluded that Darlene “knew that she was not licensed or privileged to enter onto her neighbor’s property to cut down the apple tree branch. Furthermore, as has already been stated above, [Darlene] has been quite forthright about her entry onto [Gloria’s] land having the sole destructive purpose of removing the apple tree branch that was hanging in the easement.” What’s more, the fact that Gloria’s property was not posted with “No Trespassing” signs was irrelevant for the crime of simple trespass. It was enough that Darlene knew she was trespassing.

Darlene tried to raise necessity as a defense of justification, but the trial court held that “the necessity would be as to why she had to go onto the property as opposed to cutting the limb at the edge of the easement, and that’s not what’s in front of us today.” In other words, for necessity to work, Darlene had to show why exercising her rights under the Massachusetts Rule – that is, to trim the apple tree branch to the edge of her easement – was not good enough.

On appeal, Darlene argued that cutting the limb “was to avoid a ‘harm or evil,’ namely the harm of not being able to receive emergency services at her home,” and therefore, she “was privileged to enter upon [Gloria’s] property to cut the potentially harmful branch.” But before the trial court, all she said was that her “entry upon the alleged victim’s premises was for the sole purpose of maintaining the right-of-way, and not to intentionally deface or damage the alleged victim’s property.” When the issue is not raised in front of the trial court, the appellate court will not entertain it.

Darlene’s conviction was upheld.

– Tom Root

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