Case of the Day – Friday, April 26, 2019


Your neighbor cannot force you to mow his lawn (unless you’re some kind of masochistic marshmallow). So can the city force you to mow its lawn?

Of course not, you snort. “This is ‘Murica. I have rights! They can’t make me do nuthin’!”

“Not so fast,” as Lee Corso might say. Despite the fact that this is ‘Murica, and in ‘Murica the government seemingly cannot conscript you to do its bidding, it turns out that you can be forced to mow the city’s grass in some limited circumstances.

The other day, I talked about the constitutional police power. Today, we see a darker side of it.

Goodenow v. City Council of Maquoketa, 574 N.W.2d 18 (Sup.Ct. Iowa, 1998). The City of Maquoketa, Iowa, enacted an ordinance requiring landowners whose properties were next to a city street to mow grass and trim weeds growing in the City-owned right-of-way, or pay the City to do it. J.E. Goodenow saw it as an unconstitutional a taking of property for private use in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and in violation of article I, section 18 of the Iowa Constitution.

This being ‘Murica, he sued.

Held: A municipality may exercise its police power by adopting ordinances to promote public welfare, to provide for safety and comfort of its inhabitants, and to declare and prevent nuisances. Such ordinances would include the mowing ordinance at issue in this case.

The Supreme Court of Iowa held that in order to be constitutional, an ordinance must have a definite rational relationship to the ends sought to be served by the ordinance.

The Court observed that in Northern Pacific Railway Co. v. Adams County, 138 P. 307 (Wash. 1914), the Washington supreme court upheld a state statute requiring abutting landowners to cut weeds growing along public highways at the landowner’s expense. That decision compared the statute with statutes requiring abutting landowners to remove snow and ice from city-owned sidewalks on their property, reasoning that the policies supporting the snow removal statutes likewise justified requiring abutting landowners to cut weeds along state highways.

Also, the Court noted, in Commonwealth v. Watson, 223 Ky. 427, 3 S.W.2d 1077 (Ky. 1928), a Kentucky court of appeals upheld a statute requiring abutting landowners to cut or clear away weeds and bushes growing along public highways. As in the Washington case, the Kentucky court concluded that it was reasonable to require abutting landowners to clear away weeds along public highways for the same reason that cities had authority to require landowners to remove snow from city-owned sidewalks abutting their property.

Thus, the Court held, that Maquoketa’s ordinance requiring abutting landowners to mow grass and weeds growing on city owned property for the benefit of the public at the expense or labor of the landowners promoted and protected public health, safety and welfare of persons who traveled upon city streets. What’s more, the ordinance was reasonably related to achieving those goals.

The ordinance was a valid exercises of police power, and did not constitute an unconstitutional taking of property without compensation.

– Tom Root


And Now The News …

Columbus, Nebraska, Telegram, April 26, 2019: A brief history about Arbor Day

J. Sterling Morton was the founder, organizer and head cheerleader for the holiday he launched here in Nebraska, one that has fulfilled his dream of a national celebration of trees, Arbor Day! Morton hatched the ideas that would give birth to the tradition known as Arbor Day 130 years ago. It remains a celebration of the work of Morton and others, in Nebraska, across the country, and around the world. Michigan residents J. Sterling Morton and his wife came to Nebraska in 1854. Morton was a journalist and the editor of Nebraska’s first newspaper. He was also a nature lover and he landscaped the home he built in Nebraska with trees, shrubs and flowers. Morton was enthusiastic in his love for trees and agriculture. He wrote at length on the benefits of trees and the useful purposes they served. He celebrated the virtues of trees as windbreaks to keep soil from eroding, as fuel for fires, as building materials and as a cool spot in the hot Nebraska sun. Morton initially suggested a tree-planting holiday at a meeting of the State Board of Agriculture early in 1872…

Atlanta, Georgia, Saporta Report, April 25, 2019: As furor rises over tree cutting in Atlanta, city looks to extend tree-planting program

Amid the rising furor in Atlanta over the future of the tree canopy as trees are felled for development on a continuing basis, the city is considering allocating $1.7 million to renew contracts with two organizations that plant and help maintain trees on city-controlled land – Trees Atlanta and Tri-Scapes Inc. These contracts won’t address the consternation voiced by residents when they see trees cut on private property with scant notice. That’s a matter for the city’s effort to revise the tree ordinance, which included two public meetings this week. The two contracts are intended to ensure the maintenance of trees on city-owned property and rights-of-way, and that new trees are planted on a regular basis. The two contracts are to be paid for through the city’s Department of Parks and Recreation. The parks department is charged with maintaining all trees on city property and in the rights-of-way, according to the city’s charter…

Spokane, Washington, KREM-TV, April 25, 2019: Spokane Valley woman allegedly killed squirrels with electric fence to protect tree

The Spokane County Regional Animal Protection Service has asked for a Spokane Valley woman to face felony animal cruelty charges for killing squirrels in her yard using an electric fence that caused “undue suffering.” According to SCRAPS Field Operations Manager Ashley Proszek, the group was notified on Oct. 10, 2018, that there were multiple dead squirrels around an electric fence protecting a walnut tree in Franks’ yard. Proszek said that the report alleged that Franks referred to the dead squirrels as “her trophies.” While she was using the fence to protect her walnut tree, Franks was asked why she didn’t use a lower voltage, Proszek said. Franks allegedly responded that she wanted to kill the squirrels, Proszek said. This has caused SCRAPS to ask the Spokane County Prosecutor’s Office for nine charges of first-degree animal cruelty due to the nine dead squirrels photographed at the fence, Proszek said. Due to the squirrels dying by electrocution and not a quick, more painless method, a first-degree felony charge was recommended by SCRAPS, according to Proszek…

San Francisco, California, Chronicle, April 25, 2019: Live Oak Tree Problems: Ivy Growth

Live oak (Quercus virginiana) is a large, sprawling tree that is hardy in U.S. Department of Agriculture plant hardiness zones 7b through 10b. It’s an attractive landscape tree that thrives in almost any location once established. Live oak trunks are often covered in vegetation, which can add a romantic aesthetic to your landscape, but ivy growth on live oaks can be a problem if the vines become invasive. Ivy growing on tree trunks is usually attached to the bark via its rootlets, which cling to the surface of the tree’s bark. According to the American Ivy Society, they don’t penetrate the bark — which is a nonliving, protective coating — and ivy growth doesn’t deny the tree sunlight needed for healthy growth. However, live oak trees that are in decline due to age or disease may drop leaves or even branches as dieback occurs. As decline progresses, the tree’s canopy thins or opens up, and ivy may begin to flourish and overtake the canopy. Generally speaking, moderate ivy growth on live oak trunks does not cause damage to a healthy tree. However, it should not be left to grow out of control. If you like the way the climbing vines look on the trunk, you can leave them, but maintenance is necessary to limit their spread…

Tampa, Florida, Tampa Bay Times, April 24, 2019: Tampa’s new tree ordinance marks a compromise between builders, tree preservationists

Friday is Arbor Day, and this year, Tampa’s builders and tree preservationists have more reason to celebrate. For decades, the two sides have clashed over the removal of grand and other protected trees that make up the city’s lush canopy. But after a year of intense negotiations, the Tampa Builders Association and neighborhood tree advocates came up with a compromise ordinance that Tampa City Council passed last week. “The real story is that the builders and tree advocates and the city worked together for a year to come up with a tree code that is fantastic,’’ said Chelsea Johnson, who founded the tree preservationist group, Tree Something, Say Something. She said some of the discussions took place around the dining room table of her home in South Tampa. Stephen Michelini, who represents Tampa Bay Builders Association, said, “It kind of brings the code up to date and makes it a little more reasonable.’’ He noted, however, that it is “not any easier to understand.’’ A basic provision of the ordinance, which takes effect June 1, gives developers flexibility in moving structures on small lots a bit beyond the standard zoning setbacks in order to save protected trees, especially grand trees, defined as having a trunk diameter of 32 inches at 4 ½ feet above the ground, and specimen trees, with a diameter of 24 inches…

Davenport, Iowa, Quad City Times, April 24, 2019: Sycamore tree at Rock Island Courthouse slated for removal for safety reasons

A sycamore tree located at the northwest corner of the Rock Island County Courthouse property is being removed for safety reasons, Rock Island County Sheriff Gerry Bustos said Wednesday. “This removal is in compliance with the pending demolition litigation and the plaintiffs are in agreement,” Bustos said. Several entities — the National Trust for Historic Preservation; the Rock Island Preservation Society; the Moline Preservation Society; the Broadway Historic District Association; Frederick Shaw, one of the bondholders in the Justice Center Annex project, Diane Oestreich, a member of the Rock Island County Preservation Society, and Landmarks Illinois — have filed suit against Rock Island County and the Public Building Commission to keep the old courthouse from being demolished. The case was moved to Peoria County to avoid conflict of interest… The trees on the courthouse lawn have undergone rigorous inspection after a limb fell during the July 3 “Red, White and Boom” annual fireworks display, killing two men and injuring four people…

New York City, The New York Times, April 25, 2019: Can humans help trees outrun climate change?

Foresters began noticing the patches of dying pines and denuded oaks, and grew concerned. Warmer winters and drier summers had sent invasive insects and diseases marching northward, killing the trees. If the dieback continued, some woodlands could become shrub land. Most trees can migrate only as fast as their seeds disperse — and if current warming trends hold, the climate this century will change 10 times faster than many tree species can move, according to one estimate. Rhode Island is already seeing more heat and drought, shifting precipitation and the intensification of plagues such as the red pine scale, a nearly invisible insect carried by wind that can kill a tree in just a few years. The dark synergy of extreme weather and emboldened pests could imperil vast stretches of woodland. So foresters in Rhode Island and elsewhere have launched ambitious experiments to test how people can help forests adapt, something that might take decades to occur naturally. One controversial idea, known as assisted migration, involves deliberately moving trees northward. But trees can live centuries, and environments are changing so fast in some places that species planted today may be ill-suited to conditions in 50 years, let alone 100. No one knows the best way to make forests more resilient to climatic upheaval…

Engineering News, April 25, 2019: Global deforestation cut enough trees last year to cover Belgium

The world’s old-growth rainforests are shrinking at an alarming rate, with enough trees lost last year to cover all of Belgium or two Connecticuts, a new report shows. Tropical rainforests are found mainly in Equatorial countries, but they store vast amounts of carbon dioxide, so keeping them intact is crucial to fighting global climate change. In addition, they are home to a broad range of species, including orangutans, mountain gorillas and tigers. Once cut down, such forests may never return to their original state, according to a study published Thursday by Global Forest Watch. Using data from the University of Maryland, the group found that some 3.6-million hectares (8.9-million acres) of primary tropical forest disappeared last year. While that was below the peaks in 2016 and 2017, when fires helped push forest loss to record levels, it was still the third-highest annual loss since records began in 2001. What’s more, the moving three-year average for last year was the highest ever recorded…

The Traveller, April 23, 2019: Iconic ‘tree-climbing’ goats of Morocco revealed to be a scam

Visitors to Morocco have long flocked to the roads outside Marrakech to take photographs of the goats that climb into the low boughs of the Argania tree in search of its sweet fruit. Such pictures are widely shared on social media and often decorate the pages of guide books to Morocco. But an investigation by Aaron Gekoski, a British environmental photojournalist, has uncovered that the tourist destination seems to be an exploitative scam. Local farmers appear to be bringing the goats in from other areas and forcing them into the trees before charging tourists to take photographs of them. When the goats eventually tire from balancing on the tree branches they are brought down and new goats are substituted.Mr Gekoski said: “After seeing tourists’ interest in the tree-dwelling goats, some farmers decided to manipulate the situation for financial gain…

Davenport, Iowa, Quad-City Times, April 23, 2019: Suit filed by families of men killed by falling tree limb on July 3

The families of two men killed on July 3 when a tree limb fell on them as they watched fireworks from the lawn of the Rock Island County Courthouse have filed a wrongful death suit against the county. The 35-count suit, filed in the county courts, also names the Rock Island County Sheriff’s Office, the city of Rock Island and Raney Horticultural Inc./Raney Tree Care as defendants. The plaintiffs are the estates of Lawrence K. Anderson and Daniel Mendoza, the men who were killed, and the men’s wives, Randy Anderson and Eva Mendoza. Also named as plaintiffs are Kathleen Carter and Kataivreonna Carter. The Carters were also struck by the limb or its branches, the suit states. In the lawsuit, the plaintiffs detail what responsibilities they believe the defendants had in regard to the tree’s care and why they believe the defendants were negligent in those responsibilities…

Baton Rouge, Louisiana, WAFB-TV, April 23, 2019: City removes troublesome tree from property after 9News report

Charles Chenier, 74, has lived in his home for 45 years. He says it’s devastating to watch a tree from another property ruin his family’s home. “I know something is going to happen sooner or later because the concrete is cracking and this tree must weigh tons and tons,” said Chenier. Chenier says he started reaching out to the mayor’s office in early 2018 to find the owner of the of the vacant property. However, Chenier says the city was not able to confirm if the property belonged to him or to the city. “If they want me to have it, I would love to have it, but it’s not mine, and it’s theirs. Why they can’t find out who the property is for, I don’t understand,” said Chenier. We used an online map from the East Baton Rouge Parish’s Tax Assessor’s Office, which stores property information, so see who owns the property. According to the map, Chenier owns the property, but he says he never paid taxes or received a deed for the land. Chenier says he hopes the matter is resolved soon. “We need to have something done soon before it hurts somebody,” said Chenier…

Winston-Salem, North Carolina, Journal, April 23, 2019: Lexington tree-removal business fined $20,000 by state AG

The N.C. Attorney General’s Office said Tuesday it has been granted a default judgment that concludes a price-gouging lawsuit against Alva Wilson Lewis of Lexington. Lewis has conducted business under the brands A1 Tree & Storm Relief, A1 Tree and Storm Damage Relief, and Big Al & Sons Tree Service. As a result of the judgment entered by Superior Court Judge Graham Shirley, Lewis is barred from conducting any tree removal or storm recovery work in North Carolina and is required to pay $6,000 in restitution to consumers and $20,000 in fines. In September, Attorney General Josh Stein filed a lawsuit against Lewis after his employee initially provided an estimate of $4,000 to remove three trees for a Wilmington homeowner…

PennLive, April 23, 2019: Spotted lanternfly’s favored tree could be targeted in Pennsylvania

The tree of heaven, a non-native invasive tree that is a primary food source, mating spot and egg-laying location for the equally invasive spotted lanternfly, could soon be targeted as one of the most noxious weeds in Pennsylvania. The Pennsylvania Department of Agriculture’s Controlled Plant and Noxious Weed Committee is scheduled to consider adding the tree of heaven to the state’s Class B Noxious Weed List at its April 25 meeting. That listing would authorize the Department to take action to eradicate injurious infestations and prevent sales of the species. Also known as Chinese sumac, stinking sumac and tree of hell, the native of Asia spreads rapidly through the hundreds of thousands of seeds produced by each tree and through vegetative sprouting. Tree of heaven can grow into large clonal colonies along forest edges, fields and roadsides. In addition to crowding out native species, the roots of the tree of heaven produce chemicals that prevent other plant species from growing nearby…

National Geographic, April 22, 2019: Tree planting is a rite of passage for young Canadians

Imagine waking up at sunrise in a camp a couple hundred of miles away from the nearest small town. Trek even further into the wilderness until you reach a man-made clearing. Throw on gear that weighs roughly 50 pounds. Make your way through a steep and treacherous terrain, bending down ever so often to tuck a spruce or fir seedling steadily into the ground. Continue until sundown. Repeat the next day. And the next. And the next. For an entire summer, while insects feast on your exposed flesh. Such is the reality of tree planting, a job that employs thousands of young Canadians every year. “Everyday, you fluctuate between wanting to leave, and never wanting to leave,” says Rita Leistner, quoting Meghan Bissett a tree planter. Leistner estimates she planted more than five hundred thousand trees during her twenties, between 1983 and 1994. “It’s a combination of high intensity sport and skilled industrial labor. And, aside from the physical toll it takes—everyone is in pain—it’s emotionally taxing. Isolation is a big challenge. Being alone with your thoughts all day can be dangerous. It can break you, but it can also be transformative.” Leistner has been among the thousands of young people who have spent the summer planting new trees in Canada, about a half billion each year, more than half in British Columbia and Alberta…

Stevens Point, Wisconsin, Journal, April 22, 2019: The oldest known tree in Wisconsin is a 1,300-year-old cedar growing from a cliff

This tree before me is not the oldest tree in Wisconsin. Not even close. It’s a scrubby little birch growing almost horizontally out of the side of a cliff of Cambrian sandstone, its trunk barely larger than the barrel of a baseball bat. This tree is not notable. It’s barely even noticeable. But this tree, unimpressive as it is, is no younger than 80 years old and might be more like 150. It was sampled by Doug Larson, a Canadian scientist who included it in a study he published in 2000. Larson made it his life’s work to study old trees of a particular sort. In 1997, Larson came to Wisconsin on a research trip from his home in Ontario to look for old trees and take core samples. On that trip, he took a sample from a red cedar, in a part of Brown County called Greenleaf, that his lab estimated to be 1,290 years old. That is a notable tree…

Nashville, Tennessee, Tennessean, April 22, 2019: After cherry tree controversy, NFL to plant 40 trees at two North Nashville schools

The National Football League and other sponsors will host a ceremony Tuesday morning at two Nashville schools to plant 40 trees. The trees will be planted in partnership with Root Nashville at John Early Museum Magnet Middle School and Hull Jackson Montessori Magnet School. Funding and volunteers for the tree planting will be provided by the NFL and other sponsors, including Verizon, Bridgestone and Lowe’s. The tree planting follows a major controversy last month over the removal of cherry trees downtown to make way for an enormous NFL Draft stage before the April 25-27 event. The original plan was to remove 21 trees, but 10 were uprooted and replanted after public outcry…

Southern Pines, North Carolina, The Pilot, April 21, 2019: Controversial tree-cutting bill withdrawn

State Sen. Tom McInnis has withdrawn controversial legislation that would have prohibited towns and counties from regulating tree removal on private property without the General Assembly’s permission. “This bill has been robustly debated and discussed,” McInnis said in a statement late Thursday afternoon. “The intention of the legislation was to highlight the need to balance private property rights with the needs of the community. I will continue to work with stakeholders to reach a balance that does not trample on an individual rights and the rights of property owners. “I have received comments from proponents and opponents who are very passionate about this issue. My goal remains clear: one of a government’s main objectives is to ensure that all citizens’ individual liberties are preserved.” The proposed legislation generated strong opposition from municipal and county government officials. The N.C. League of Municipalities and N.C. Association of County Commissioners argued that it would restrict the ability to protect neighboring property owners from development that could harm property values and take away more local control over development. The N.C. Urban Forest Council also opposed the measure, contending that local tree ordinances can help address flooding issues, preserve historic districts and allow for utility line maintenance…

San Diego, California, Union Tribune, April 21, 2019: The attack of the neighbor’s killer pepper trees

Q: My neighbor’s pepper trees have encroached on my property and caused significant damage to my pool and deck. He agreed to remove the trees if I proved they caused the damage, and I did that with multiple arborist reports and a civil engineer’s report. He has since put his house up for sale; he’s currently in escrow. There is an open claim with his insurance company, which is accepting liability for the damage. But they won’t cover tree removal, and without that, the encroachment and damage will continue.
A: As the poet Joyce Kilmer famously observed, only God can make a tree. And as you have painfully learned, only a tree can quickly morph from a graceful sapling into a fierce marauder. Problem trees are a common source of neighborhood disputes because there seem to be as many types of tree damage as there are tree species. Jacarandas rain down sticky purple flowers that corrode car paint. Gingko trees shed yellow berries that emit a stench when crushed underfoot. So-called “privacy trees” like juniper and cypress block scenic outdoor vistas. The brittle wood of weeping willows can turn branches into storm-tossed projectiles. Eucalyptus is prone to fall over and smash anything under it. But the pepper tree may be the champion destroyer of neighbor relations. It is so notorious that several states include it on official “invasive plant” lists and professional gardeners put it on their “trees you should never plant” rosters…

Rochester, Minnesota, Post-Bulletin, April 21, 2019: City working faster on efforts to save trees

A tree preservation ordinance could be put on a faster track, nearly two years after the Rochester City Council brought up the topic in the wake of several large trees being removed during redevelopment of the former Golden Hill School site along South Broadway. Members of the city’s Committee on Urban Design and Environment plan to have a proposed ordinance ready for discussion next month. “They would prefer us to come in with an incomplete tree ordinance they can build off of,” CUDE Chairman Paul Sims said of what he heard in a Rochester City Council discussion earlier this month. Progress has been delayed as the committee sought support for developing a citywide Urban Forest Master Plan. The plan would set in motion work to assess current tree coverage throughout the city and offer ways to develop a larger canopy through policies such as a preservation ordinance. Rochester City Forester Jeff Haberman estimates the city’s current canopy covers nearly 26 percent of the city, but that number is threatened to shrink. Embattled ash trees make up 13 percent of the overall coverage…

Abilene, Texas, Reporter-News, April 21, 2019: Leave the leaves on your trees

As a fairly dedicated “tree type,” one of the things that I do is work with is what I think of as “sick trees.” I also answer numerous questions from people who think either that their tree is in distress or are concerned that it might be. For instance, I’m getting a fair number of questions concerning live oaks, because most of them are in some stage of spring molt, and during that they can look pretty rough. By the way, I go out of my way to not blithely tell people, “Don’t worry about it, it’s supposed to look bad right now.” Trees can have several things going on at once, and taking for granted that a live oak looks bad only because it’s the time of year for it to drop its leaves, is a mistake. One of the other things that I get questions about concerning stressed trees is pruning. Regular readers of my column, or people who have heard me state my opinion about this, know that I’m against the unnecessary removal of living tissue in trees, even when pruning healthy trees. And there are lots of good reasons for my thinking…

Atlas Obscura, April 18, 2019: How Easter Egg Trees Almost Became an American Tradition

In the spring of 1895, Louis C. Tiffany, of stained-glass and jewelry fame, held a lavish “Mayflower Festival” to benefit a local hospital. “Among the evening’s entertainments,” writes culinary historian Cathy K. Kaufman, “was an Easter egg tree, dazzling with different colored eggs.” This wasn’t unusual at the time. In the era before plastic eggs, many Americans carefully emptied whole eggs of their contents and colored them brightly for Easter, occasionally hanging them on tree branches with scraps of ribbon or thread. In 1890s New York, it was even something of a craze. But despite brief bursts of popularity, Kaufman writes, today “egg trees are a dismal failure when compared to Christmas trees, found only in a few public fora and very scattered homes.” Much like the Christmas tree, the custom likely came to the United States with German immigrants, entrenching itself among the Pennsylvania Dutch…

Richmond, Virginia, WWBT-TV, April 18, 2019: Tree trimmer took woman’s $1,200, but didn’t finish the job

The Better Business Bureau says scammers come out of the woodwork when severe weather strikes. One Henrico woman, who wanted to be identified as “Elizabeth,” is learning that lesson the hard way after she says she paid $1,200 to an independent contractor cut down her trees. Months later, she says the job is still unfinished. “I waited about six months, before he came and did anything. So that should’ve taught me a lesson,” Elizabeth said. She said she and the contractor settled on $300 for the blue spruce tree in her front yard, and $900 for the work on her gumball tree in the back yard. She says she’s called the man dozens of times in the past two months, even offering to let him keep half of the money. “I told him ‘You could give me $600 back, and I’ll get someone to come out here and knock the work out in a couple of hours’, and he never commented on that,” Elizabeth said…

St. Louis, Missouri, Post-Dispatch, April 18, 2019: Pearing down: Why even tree-huggers want St. Louis to cut down these pretty Bradford pear trees

At first glance, the white flowering trees lining Interstate 270 and Highway 40 look lovely. The roadside thicket where the highways meet burst this spring with some of the first blooms in St. Louis. But, conservationists say, the trees are more like a menace in disguise — an unexpected result of decades of neighborhood landscaping that are putting local plants and animals at risk. They are the often-maligned Callery pear tree species, a group of ornamental trees that include the popular Bradford pear, common in landscaping. Once considered a near-perfect tree to adorn subdivisions and doctors’ office entrances, Bradford pear trees soon revealed their dark side: They tend to collapse within 15 to 20 years, splitting like a peeled banana and taking out property on their way. They stink with an odor sometimes described as old fish. And, most concerning to conservationists, their rapid spread is choking out native plants that can support far more animals and insects than the pear trees, which were brought to the U.S. from China…

Tampa, Florida, Tampa Bay Times, April 18, 2019: A historic compromise’: Builders and advocates finally agree on how best to protect Tampa’s trees

Many metaphors were employed Thursday to describe the arduous route taken to reach an agreement on protecting Tampa’s trees without stifling development. Council member Mike Suarez compared the often fractious negotiations to a three-year-long flight. One tree advocate referenced the gestation period of an elephant. After more than an hour of discussion, the council approved the measure by a 5-1 vote. But not before a final stand was made by some opponents to remove a provision requiring private property owners to get a $120 permit to trim tree limbs thicker than 4 inches…

Pasadena, California, Pasadena Now, April 17, 2019: Attorneys for girl injured by tree branch accuse City of destroying evidence

Lawyers representing Adelaide Palmstrom, who suffered traumatic injuries when the branch of a tree on City property fell on her, are asking the court to sanction the City of Pasadena and the Pasadena Unified School District for disposing of the branch. Palmstrom was a two-year-old preschooler when the branch from an adjacent City-owned park injured her on Aug. 29, 2017, as she played at Linda Vista Children’s Center. Her injuries included traumatic brain injury, fractured skull (with subdural hematoma), vertebral and left tibia fractures, torn cervical spine ligament, and a lower left leg injury, according to court documents. Representing the Palstrom family is the firm of Panish, Shea and Boyle, which has now filed a motion seeking court-ordered sanctions against the City for its “willful destruction and spoliation of the most critical item of evidence in this litigation, ie., the subject tree and tree branch that failed and collapsed on two-year-old Adelaide Palmstrom causing her catastrophic injuries,” the motion stated. Plaintiffs’ filing said the City contracted to have the tree inspected by Board Certified Master Arborist Cris Falco. “Shockingly, however, while Mr. Falco was on his one-hour long lunch break, and before he or any other party could assess the failed tree and try to determine the cause of failure, Defendant School District destroyed the tree and the branch, cutting it down and chopping it up into dozens of pieces,” the motion alleged. “This happened within 72 hours of the incident…”

Fresno, California, KFSN-TV, April 17, 2019: 100-year-old Fresno woman locked in battle with city over tree in her yard

A 100-year-old woman in Fresno is having a problem with City Hall. She has a water leak in her yard that’s costing her hundreds of dollars a month and she believes a tree planted by the city decades ago is to blame. Cornie Reed is paying for that water and she and her daughter want the city to make it stop. Reed’s lived in that home for 60 years. The water leak appears to be caused by the roots of a tree planted by the city of Fresno, and it is turning into a battle against city hall. The tree seems to have busted a water line, causing water to run continuously and raising Reed’s water bill. The water can be seen pooled beneath the tree. It’s flooded the city water meter and runs into the street. Reed’s daughter, Ailene, says it started last year. “My mom’s water bill went from $79 to $110, then it was $234 then it was $247. We couldn’t afford it,” she said…

Mongabay, April 17, 2019: Shade or sun? Forest structure affects tree responses to Amazon drought

Small trees in the Amazon rainforest understory are more vulnerable to drought than their larger counterparts, but their fate depends on their local environment, according to a study published in New Phytologist. Marielle Smith from Michigan State University and an international team of researchers used hand-held lidar to complete monthly surveys of the surface area of leaves at different heights in Tapajós National Forest in Pará state in the Brazil Amazon between 2010 and 2017 to obtain their results. The portable lidar instrument uses a laser to map the leaves in the forest canopy in two-dimensional slices up through the forest structure. Across the whole forest, they found that trees in the upper canopy tended to gain leaves during the dry season and lose them again in the wet season, whereas trees in the lower canopy showed the opposite behavior. This opposing trend between the upper and lower canopies matches the results of a previous satellite-based study of seasonal changes in leaf area, and is thought to be due to limited light availability in the lower canopy…

Kansas City, Missouri, KMBC-TV, April 17, 2019: Contractor fulfills promise to finish tree removal after resident contacts KMBC 9 Investigates

A tree removal contractor has fulfilled his promise to complete a $4,700 job after a Peculiar man contacted KMBC 9 Investigates for help. Charles Roper said the contractor, a man named Jack Sawyer, cut down and removed trees in his front and side yards, but did not remove one stump or haul away debris as promised in late February. After multiple calls to the contractor over several weeks, Roper finally called KMBC 9 Investigates. “I just want to get him back out there, and make him do his job,” Roper said. KMBC 9 Investigates called the number on Roper’s contract. A man answered, but hung up. Hours later, a man named Alan Sawyer called back, saying he would complete Roper’s job within seven days…


Case of the Day – Thursday, April 25, 2019


forgot150430Before I forget to do this, I’d like to report on a case of a conveniently-forgetful property owner from the Land of 10,000 Lakes.

Mr. Meixner made an agreement with his neighbor, a sawmill, to replace some boundary fences. The first several fencelines were replaced according to the parties’ agreement, with Meixner and the sawmill sharing the costs. Everything seemed hunky-dory, as they like to say in Minnesota..

Out of nowhere, Mr. Meixner sued, claiming that the sawmill had cut down 73 trees on his land before replacing the second of the three fences.

The sawmill said, “Yup. Sure did.” These Minnesotans are people of few words, when they’re not saying things like “hunky dory.” But the sawmill employee did say, “Had to cut down the trees to build the new fence. Meixner agreed.” Those words were plenty, and the jury found for the sawmill.

On appeal, the Court agreed with the level-headed jurors. It first adopted the general principle that trees on a boundary line are owned in common by the property owners, and neither may cut down a boundary tree without consent of the other. But here, the Court said, it’s pretty clear that the sawmill employees had Mr. Meixner’s OK to axe the trees. After all, the Court observed, Mr. Meixner had given the sawmill permission to build the new fence, and he even shared the cost. If permission is given to enter onto the property to build a new fence, that permission implies authority to do all acts necessary to completion of the task.

Don't you believe it ...

Don’t you believe it …

The sawmill employee said the trees had to go if the new fence was to be built. That evidence was good enough for the Court. Mr. Meixner wanted a fence, so he necessarily wanted the trees cut in order to build it.

Meixner v. Buecksler, 216 Minn. 586, 13 N.W.2d 754 (Sup.Ct. Minn. 1944). Meixner owned property next to a lumber company. He had an agreement with the company to replace old fences standing on the common boundary line.

Meixner and Buecksler, a tenant and employee of the company, built a new east-west fence in September 1938. Pursuant to the lumber company’s direction, Buecksler then cleared out the brush and cut down some trees in preparation for building a new fence to replace the old one which marked the boundary between Meixner’s south forty and the company’s north forty. A survey was made of this line, and thereafter Meixner and Buecksler constructed the replacement fence. A third fence was later completed, marking the east-west boundary.

Meixner contended that Buecksler and the company unlawfully cut 73 trees on his property prior to building the north-south fence, and that such acts were done without his knowledge or consent, and constituted trespass. The lumber company claimed Meixner had consented to clearing away the brush and cutting the trees, and that such acts were necessary in order to carry out the mutual plans to build the fence. The jury found for the defendants.

Meixner appealed.

Held: The appeals court upheld the verdict. It found that trees on boundary line are common property of the adjoining landowners which neither may destroy without consent of other. However, trespass is not committed if there is permission or consent to do acts complained of, which consent may be implied from circumstances, and the jury was entitled to find that the Defendants had Meixner’s consent.

Generally, the Court said, permission to do a particular act carries with it authority and right, by implication, to do all that is necessary to effect principal objects and to avail licensee of his rights under license. Meixner’s agreement with Buecksler and the company for building a line fence between the adjoining properties carried with it by implication the right to do such things as were reasonably necessary in order properly to build the fence, including the cutting of trees on boundary line.

Meixner had asked the court to award him treble damages under the Minnesota statute in wrongful cutting. The court declined, pointing out that there had to be damages in order to treble them, and Meixner simply had none.

– Tom Root


Case of the Day – Wednesday, April 24, 2019


A news story yesterday picqued my interest. Everyone knows that the Tree of Heaven, sometimes more accurately called the “tree of hell,” is an aggressive and invasive species. Likewise, everyone knows that the spotted lanternfly is a noxious pest.

It seems Pennsylvania may declare the TOH to be a noxious plant because – in addition to all of the other excellent reasons to try to tear it out by the roots and burn it – the Tree of Heaven is a favorite host of the spotted lanternfly. Being introduced to the noxious plant list won’t be enough to require Pennsylvania landowners to eradicate the Tree of Heaven wherever it is found, but what if it Pennsylvania ordered it?

The Commonwealth’s noxious plant list is a textbook example of the police power, not necessarily the guys with fast cars, flashing lights and doughnuts, but rather the basic right of governments to enact laws and adopt regulations for the benefit of their communities. Under the system of government in the United States, only states have the right to make laws based on their police power. The lawmaking power of the federal government is limited to the specific grants of power found in the Constitution.

Could Pennsylvania use its police power to force the homeowner who planted a row of trees of heaven in his front yard – if such an idiot exists – to tear them out without compensation?

Eighty years ago, in Miller v. Schoene, the U.S. Supreme Court upheld the constitutionality of a Virginia law requiring landowners to destroy cedar trees to stop the spread of cedar rust. The rust didn’t hurt the cedar trees at all, but it was devastating to apple orchards. The Commonwealth would not pay the owners for the loss of their trees.

The Supremes held that Virginia was within its rights to issue the order. The Commonwealth was “under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity… When forced to such a choice a state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.”

The high court said there was a public interest in the preservation of the apple crop over the cedars. And where the public interest is involved, “preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.”

A more current application of the police power of the government to order the emergency abatement of a threat, relying on the Miller ruling, happened 18 years ago, when five beetles went on a walkabout.

In re Property Located At 14255 53rd Ave S., Tukwila, King County, Washington, 120 Wash.App. 737, 86 P.3d 222 (Court of Appeals, Washington, March 22, 2004). Three citrus long-horned beetles were found in a Tukwila nursery in August 2001, in maple tree bonsai stock imported from Korea. One beetle was a pregnant female. Because there were eight beetle exit holes on the stock, five beetles had presumably escaped from the quarantine area. In fact, one was seen flying away from the nursery. The discovery of the accidental escape was alarming because the beetle, a major pest of citrus, also feeds on many other trees, including apple and other fruit trees as well as alder, willow, oak and some conifers. Eventually the beetle kills all host trees.

The Governor proclaimed an emergency in June 2002 and authorized the Department of Agriculture to implement the eradication plan. The Department immediately began to remove trees. The landowners within the one-eighth mile radius found themselves in the predicament that through no fault of their own, their lovely trees had become a threat to the community because of their susceptibility to being commandeered by a noxious pest. The Department established a $100,000 fund for the purchase of replacement trees and other vegetation for yards and gardens, and arranged to supply landowners with vouchers that could be used to obtain various non-host species of vegetation from participating nurseries.

These efforts to mitigate the effect of the eradication plan fell short of what several landowners regarded as fair. The landowners took the position that they were constitutionally entitled to just compensation before their trees could be destroyed. Targeted for destruction on land belonging to Sheila Malbrain and Lee Terrell were fruit trees, flowering plums, poplar trees, rose and lilac bushes, azaleas, and fir trees their arborist valued at a total of $116,262. Seven fruit trees on Carl Gorgey’s land were valued at $4,430. Six broadleaf trees on land belonging to Ralph and Thelma Kissinger were valued at $17,215.

The Department sought administrative warrants to gain entry to the respondents’ properties. The superior court found that the warrants were supported by probable cause. The court made an unchallenged finding that the beetle constituted an “extreme threat to the interests of the state” and that the Department acted reasonably in its response to this threat. The court nevertheless ruled that destruction of the trees was a compensable taking, and conditioned the issuance of the warrants upon the landowners first being compensated.

Held: The Court followed Miller v. Schoene and applied the law of necessity, holding that in meeting an emergency — such as fire, flood, or pestilence — public officials and private citizens may employ almost any available means in an endeavor to control the danger.

The Court ruled that not eradicating the trees constituted a noxious use of property — a nuisance, if you will — because of the risk the healthy tree might become a host to the beetle. Although the landowners complained they had to bear a disproportionate cost of the State’s response to the threat, the Court of Appeals held, as in Miller v. Schoene, that the State of Washington had to make a choice to address the threat, and “when the private sacrifices that must be made to defeat a public enemy are not evenly distributed, the Constitution will not necessarily compel an equalizing adjustment.”

Interestingly, both the Supreme Court in Miller and, seventy years later, the Washington court in Tukwila, suggested that the law of necessity was related to the law of nuisance. Both recognize the obligations of property owners to each other and to the community. The power that the State possesses to prohibit uses of property that injure health, morals, or safety of the public is not burdened with the requirement that the State must compensate individual owners for the losses they sustain because they cannot use their property to inflict injury upon the community.

– Tom Root


Case of the Day – Tuesday, April 23, 2019


boots150429We’re offering up a little slug of neighbor law today, actually ‘neighbor-denouncing-neighbor’ law. Who knew that such dry topics as beachfront preservation and development could be flash points for acrimony?

In today’s case from New York State, the debate – and we can’t tell for sure what it was about, although it included beaches, landscapers and trespass – devolved into name calling. And that was when someone’s skin got a little thin.

Contrary to popular belief, slander isn’t an easy thing to prove, and it’s even harder to prove that the slander was collect damages from. So what if Arnie Saltzman called Phil Galasso “no good” and a “criminal” and “connected?” The Court ruled it was protected opinion, and even if it weren’t, Phil couldn’t show that Arnie actually knew what he said was false.

The decision is kind of curious, because the Court seemed to apply a First Amendment standard to slander that is usually reserved for the news media, not private spats. But it was clear that the appellate court found the complainant, Mr. Galasso, not to be guilt free. The Court noted that he could have been prosecuted for criminal trespass, and implied that the fact that he was not should be victory enough.

slander150429Galasso v. Saltzman, 839 N.Y.S.2d 731 (N.Y.A.D. 2007). In the context of a heated dispute among residential property owners in Sands Point, a beach community in Nassau County, Phil Galasso allegedly committed criminal trespass on Arnold Saltzman’s yard by removing trees and a fence. When he threatened to do more, Arnie obtained a cease-and-desist order.

Subsequently, Arnie allegedly said that he was intent on “getting” Phil Galasso, who was “no good” and “a criminal.” He alleged that Phil was “engaged in criminal conduct” and had “committed crimes” against Arnie’s property in an effort to “destroy both our properties and our beach.” Arnie also claimed that he had had Phil “checked out, and I don’t care if he’s connected, I’m going to get him.”

true150429The statements were made to a former neighbor, a current neighbor and a local businessman. Phil conceded that he held meetings with the subdivision neighbors to explain his protest actions.

When the trial court denied Arnie Saltzman’s efforts to get Phil’s slander action dismissed, Arnie appealed.

Held: The Court dismissed Phil’s complaint in its entirety. The Court said that given the subjective context and the facts underlying Arnold Saltzman’s statements, the statements constituted opinion and were not actionable as a matter of law.

When Saltzman said

When Saltzman said “connected,” he wasn’t talking about the electric company.

Arnie’s listeners were familiar with the issues in dispute and with the positions of each side. His references to criminality referred to the arguable criminal trespasses on his property and on common areas of the subdivision.

The Court did find that the record did not offer a reasonable basis for interpreting the statements to imply that Arnie knew of additional, undisclosed facts regarding Phil’s purported criminality. But even if the statements were not protected opinion, the Court ruled, Phil’s general allegations that Arnie’s alleged lies had hurt his reputation and subjected him to scorn and hatred were insufficient to support his slander claims.

A viable slander claim requires allegations of special damages, such as economic or pecuniary loss. And Arnie’s use of the term “connected,” generally referring to an affiliation with organized crime, did not constitute slander per se (something exempt from the requirement that special damages be pled).

Finally, the evidence did not show that Arnie’s statements were made with “actual malice,” that is, with a reckless disregard for the truth or with knowledge that it was false. Rather, the Court said, the statements were made in the context of Phil’s purported demolition and reconstruction activities, for which legitimate issues of fact existed: the question of whether they were authorized by the Village in each instance and whether they encroached upon Arnold Saltzman’s property rights.

For that matter, the Court said, Phil could arguably be subject to prosecution for felonious criminal mischief.

Quit while you’re ahead (or, at least, not yet behind), Phil.

– Tom Root


Case of the Day – Monday, April 22, 2019


deeppocket150424In the legal world, a “deep pocket” – or sacculus profundis for you Latin scholars out there – is a defendant who possesses the wherewithal to pay a big damage award and who has the misfortune to be related to the plaintiff’s claim sufficiently enough to get a court to order the purse to be opened. Generally, the deeper the pocket (and the greater the dearth of alternative deep pockets), the more willing a plaintiff is to stretch the claim to encompass the deep pocket’s participation. Today’s case illustrates the point.

The Nelsons needed to have their trees trimmed, so they called Julian Rodriguez Landscape and Tree Service, the same tree service they and their neighbors had used many times before. The outfit seemed competent and efficient, and the Nelsons found over the years that they could simply tell the tree service owner what they wanted, and he’d make the decisions on how to do it.

During the course of the Nelsons’ dealings with Rodriguez Landscape, no one had ever asked whether the company was licensed. That, after all, was more a state requirement than a practical one. Julian Rodriguez Landscape and Tree Service did good work, and the price was right. What more does a homeowner need to know?

On the day in question, however, things didn’t go so well. Luis Flores, one of Julian’s workers, was using a polesaw when it came into contact with a high voltage line, killing him. Unsurprisingly, investigation bore out that Rodriguez Landscape had cut a few corners, technicalities such as obtaining a state license and paying workers’ compensation on its employees. Sadly, the late Mr. Flores left a family was left without a breadwinner, and no money would flow from the nonexistent workers’ comp to compensate the survivors for their loss.

Luckily for the Flores next-of-kin, they hired a creative personal injury lawyer whose ad probably ran on daytime TV and appeared on the back of the phonebook (remember phonebooks?). Their lawyer correctly identified the Nelsons and their homeowners’ insurance policy as the only money tree available for trimming by the Flores family. Thus, he put together a wrongful death action for the family that argued that (1) under California workers’ comp law, homeowners who hire unlicensed contractors are deemed employers of the contractors’ workers for workers’ comp purposes; and (2) an obscure California criminal statute made workers and employers criminally liable if any tools came within six feet of a high voltage line. Therefore, the Flores’ legal theory went, the Nelsons – as de facto employers of Mr. Flores – were liable to his family because he died when he touched the high voltage line.

The Flores family couldn’t sell this very creative theory to the trial court, but the California Court of Appeals loved it. Unhappy with the gossamer thin argument connecting them to Mr. Flores’ accident, the Nelsons took the issue to the California Supreme Court.

The California Supreme Court let reason prevail. The purpose of the statute, the Court said, was to protect third parties from injury because a tree trimmer’s equipment comes into contact with a high voltage line. The statute was never intended to protect a worker who foolishly contacts a power line by letting him or her collect from the employer for the worker’s own negligence. That being the case, the Court said, it wasn’t necessary to figure out whether the homeowners would be considered Mr. Flores’ employer as a matter of law.

Proper use of a polesaw ... which did't happen in today's case.

Proper use of a polesaw … which did’t happen in today’s case.

A lesson here: In California – in fact, anywhere – a prudent homeowner will make sure the arborist or tree service contractor is licensed, regardless of whether a license has anything to do with competence or skill. And service providers should volunteer to customers proof of their credentials, not just because it looks professional, but because it’s the kind of attention to detail now that helps avoid lawsuits then.

Julian Rodriguez didn’t pay attention to detail, and the Nelsons never asked. Years of expensive litigation resulted, and at the end of the day, the Flores widow and kids were left destitute. In fact, the only people who were better off for it all were the lawyers.

Ramirez v. Nelson, 44 Cal. 4th 908, 80 Cal.Rptr. 3d 728, 188 P.3d 659 (Sup.Ct. Cal. 2008). Homeowners Thomas and Vivian Nelson had a number of trees, including a large eucalyptus tree, in their back yard. Every few years, Southern California Edison trims the eucalyptus tree trimmed so that its branches do not reach the very visible high voltage electrical lines that run above the tree. When Southern California Edison’s tree trimmers gave the Nelsons notice they would trim the eucalyptus tree in 2004, but failed to show up when they were expected, the Nelsons hired Julian Rodriguez Landscape and Tree Service — an unlicensed contractor, although the Nelsons didn’t know this — to “top” and trim several trees in their backyard, including the eucalyptus tree. The Nelsons and their neighbors had used Rodriguez Landscape four or five times in the past to top and trim trees, and everyone thought the company did professional work trimming trees.

The Nelsons left it to Rodriguez’s good judgment as to how, or to what height, to top and trim the trees, and they neither supervised the trimming, nor did they furnish the tools for the job. A few hours after the job began, Mrs. Nelson heard men shouting and saw them running to the eucalyptus tree. She went out onto her deck, and saw tree trimmer Luis Flores hanging in the eucalyptus tree from his safety harness. He had been had been killed by electrocution when his polesaw – made of aluminum and wood – contacted the power lines.

Luis’s family sued the Nelsons, alleging negligence and wrongful death. The Flores argued that the Nelsons knew the high voltage lines constituted a dangerous condition on their property, knew the utility company responsible for the power lines had in the past trimmed the tree on which the decedent was working when electrocuted, and knew or should have known Rodriguez and his workers were unlicensed contractors. Nonetheless, the Flores asserted, the Nelsons negligently failed to warn or act as reasonable homeowners would have acted under similar circumstances in contracting with Rodriguez to trim the tree in question.

The Flores family argued that California Penal Code §385(b) made it a misdemeanor for any person, either personally “or through an employee,” to move any tool or equipment within six feet of a high voltage overhead line. They contended that the late Mr. Flores had been the Nelsons’ employee by operation of law under Labor Code §2750.5, making the Nelsons vicariously liable for any breach of the duty of care embodied in the law.

The Nelsons argued they had hired Rodriguez Landscaping to perform domestic tree trimming services, that Mr. Flores was contractor Rodriguez Landscaping’s employee, not theirs; that they didn’t owe him a duty of care under §385(b), and that the duty of care owed to him was simply that of reasonable homeowners acting under circumstances similar to those giving rise to the fatal accident.

Mr. Flores’ status as the homeowners’ “employee at law” under Labor Code §2750.5 was pivotal to the contested claim that the homeowners should be found liable. The trial court refused to allow the plaintiffs to refer to Mr. Flores as the Nelsons’ employee, and refused jury instructions on Penal Code §385(b) or plaintiffs’ proposed negligence per se theory of the case.

The jury found for the Nelsons.

The Court of Appeal reversed the judgment, concluding Mr. Flores was the Nelsons’ employee at law under Labor Code §2750.5, and that Nelsons were liable for violating the statutory duty of care embodied in Penal Code §385(b). The Nelsons appealed to the Supreme Court of California.

Held: The Nelsons were not liable. The Supreme Court held that even if they were deemed to be the employers of Mr. Flores because they had hired an unlicensed contractor to trim trees — for purposes of liability for workers’ injuries — they owed no statutory duty of care under Penal Code §385(b).

Under the test for a statutory presumption of a failure to exercise due care based on violation of a statute, the Court said, a trial court must determine as a matter of law whether the death or injury resulted from an occurrence of the kind which the statute was designed to prevent, and whether the person suffering the death or the injury was one of the class of persons for whose protection the statute was adopted. If a plaintiff is not within the protected class of persons that a statute was designed to protect, or if the injury did not result from an occurrence of the nature which the transgressed statute was designed to prevent, then the statutory “negligence per se” doctrine has no application to the negligence claim.


The “reasonable man” – he wears both a belt and suspenders.

Here, the statute prohibiting moving tools and equipment within six feet of power lines augments the common law “reasonable person” standard of care owed to the general public with regard to the activity of moving or operating equipment in close proximity to power lines, by setting forth a standard of care making it a misdemeanor to move or operate tools and equipment within six feet of a power line, and by assigning strict liability for its violation.

The standard of care imposed by the statute amplifies the duty owed by people using tools or operating equipment near power lines to anyone in the world at large who might be injured by such conduct. However, it did not protect Mr. Flores from himself, and it certainly did not create a separate duty or standard of care owed by an employer to an employee engaged in the operation of tools or equipment in close proximity to high voltage lines. The statutory standard did not prescribe any particular course of conduct employers must take, or refrain from taking, in order to ensure their employees’ safety, or establish any standard of conduct with regard to supervision of employees engaged in such activity.

– Tom Root


Case of the Day – Friday, April 19, 2019


Yesterday, we reported on the 2008
Gertz v. Estes decision, in which the Gertzes were told to remove their 8-foot tall “spite fence.” Why anyone thought that people who (a) built nail-studded fences; (b) peered at their neighbors with an array of surveillance cameras that the NSA would covet, or (c) heckled the Estes family with a PA system, would be impressed with a court order is a good question. You can just hear them through the loudspeaker:Court order? I don’t need no stinkin’ court order.”

A “spite fence,” after all, isn’t something that one constructs accidentally, or even negligently. Why the Gertzes should be expected to pay attention to some old fool in a black robe …

Hadrian's Wall - Did the Picts think it was a "spite fence?"

Hadrian’s Wall – Did the Picts think it was a “spite fence?”

Ever since the first recorded “spite fence” – not including Hadrian’s Wallwas first used by San Francisco millionaire Charles Crocker to try to force a neighbor to sell his property for the construction of the Crocker Mansion – “spite fences” have required intent.

You have to intend to harass a neighbor with the fence. And if you set out to harass and oppress, it’s not terribly likely that you’re going to be brought up short by some man or woman in a fancy black robe.

Charlie Crocker's fence (highlighted in orange) - definitely a "spite fence."

Charlie Crocker’s fence (highlighted in orange) – definitely a “spite fence.”

The Gertzes ignored the 2008 court order until the Estes family dragged them back into court. That was when the Gertzes suddenly announced that they had lopped off the top two feet of the fence. Now it was only six feet tall, studded with nails and festooned with more surveillance devices than the Trump Tower. “Gee,” the Gertzes told the trial court, “now it’s under seven feet – guess it’s not a ‘spite fence’ anymore.”

The Court did what courts do – used procedural rulings to achieve substantive ends. The Court ruled that the Gertzes were trying an “end run” on the prior decision, when they should have raised the reduced height on appeal. Thus, the Gertz motion was thrown out. The Court made clear that the Gertzes’ real problem was that they hadn’t read the 2008 order carefully: it wasn’t the height of the fence alone, it was the intent and the ugliness that made it a “spite fence.” It was still a “spite fence,” albeit it a shorter one. The fence still had to go.

Gertz v. Estes, 922 N.E.2d 135 (Ind.App. 2010). The unsavory neighbor Gertzes had been told to take down the “spite fence” which separated their home from the Estes property. The fence was a doozy, too – while the Gertzes had gotten permission from the town to build a 7-foot tall fence, they had put up an 8-foot fence just a few inches from the property line, studded it with thousands of nails protruding on the Estes side, painted “no trespassing” and “do not climb” notices all over the fence, and equipped the structure with surveillance cameras. There was a PA system, too, which the Gertzes used to make disparaging comments to and about the Estes family on various occasion.

The Berlin Wall - President Reagan could have said, "Mr. Gorbachev - tear down this 'spite fence'!"

The Berlin Wall – President Reagan could have said, “Mr. Gorbachev – tear down this ‘spite fence’!”

After a bench trial, the trial court found that the “fence was maliciously erected and now maintained for the purpose of annoying the Estes family” based upon the “course of conduct exhibited by Gertze [sic] toward Estes.” Holding that the fence was thus a nuisance, the court ordered the Gertzes to remove it. For good measure, the judge found that the “surveillance of the Estes property and the use of a loudspeaker to harass and annoy Estes constitute[d] an invasion of privacy” and said that all had to go, too.

The Gertzes appealed the trial court’s order, arguing that: (1) the trial court erred by applying the “spite fence” statute to them because they had obtained a local permit for the fence; and (2) the trial court erred by finding that the fence was unnecessary and that the public address system was used to make disparaging comments about the Estes family. The trial court was upheld in Gertz v. Estes, 879 N.E.2d 617 (Ind.Ct.App.2008), and the Indiana Supreme Court denied further review.

On September 12, 2008, the Esteses filed a petition for rule to show cause. The Esteses alleged that the Gertzes had failed to remove the fence, cameras, or public address system and had continued to harass and threaten them. The Gertzes answered by asking the trial court to let them remove the top one foot of the fence rather than the entire fence. The Gertzes said they had already removed the top two feet of the fence, so it was no longer a “spite fence.”

The trial court found that cutting a foot off of the top of the fence didn’t comply with the prior order, because the fence’s height was only one of the factors making it a spite fence. The trial court concluded that the “fence is, and remains, a nuisance.” The Gertses appealed.

Held: The Gertzes’ reduction of the fence’s height didn’t matter: the fence had to go. The Court noted that Indiana Code Section 32-26-10-1, which governs ”spite fences,” provides: “A structure in the nature of a fence unnecessarily exceeding six (6) feet in height, maliciously: (1) erected; or (2) maintained; for the purpose of annoying the owners or occupants of adjoining property, is considered a nuisance.”

The Court held that the Gertzes were just asking for a mulligan. Their petition was really just a motion for relief from the 2008 judgment under Indiana Trial Rule 60(B), and that rule won’t serve as a substitute for a direct appeal. The Gertzes filed a direct appeal of the trial court’s order requiring them to remove the fence. Although the trial court’s remedy of removal of the fence was an issue available to them, they did not raise any argument on appeal about keeping the fence if they only reduced the height.

What’s more, the trial judge’s order that they remove the fence was not based solely upon the height, but instead on a variety of factors. The appellate court held that the Gertzes showed nothing justifying the extraordinary remedy of modification of the trial court’s judgment.

Meanwhile, the Estes – who had had enough of the expensive litigation – argued that they were entitled to appellate attorney fees because the Gertzes’ appeal was meritless. The court was hesitant to award such fees where the appeal was not “utterly devoid of all plausibility.” The Court said that although “the Gertzes’ brief fails to fully comply with the Appellate Rules and that their argument on appeal fails, we cannot say that their arguments were ‘utterly devoid of all plausibility’.” It refused to order the Gertzes to pay the Esteses’ fees, but cautioned “the Gertzes that future court filings against the Estes family could be considered harassment and result in various sanctions, including but not limited to an award of attorney fees.” The Court “encourage[d] the Gertzes to fully comply with the trial court’s order and protective orders.”

Good luck with that.

– Tom Root