Case of the Day – Friday, July 20, 2018


We spent about 13 years living in suburban Washington, D.C., where everything that happened on Capitol Hill and at the White House was a local news story. Still, until we decamped for small-town and rural-county America, we didn’t really understand how heavy-handed and ugly politics could be until we observed local politics up close and personal.

Today’s case could be Exhibit A. A three-member township board of trustees approves a sewer improvement project. As the job progresses, the chairman of the board decides on his own that he’s going to modify the plans to have some trees along the highway right-of-way removed. He is on the site supervising the work when two homeowners approach to complain that one of the trees the chairman intends to have cut down belongs to them.

Here’s where big politics and little politics diverge. If that happened on a federal project, or even a state project, the bureaucrats in charge would stop everything until the engineers and surveyors who had planned the work verified that the subject tree was or was not within the right-of-way. But Uncle Joe was no pusillanimous bureaucrat: he was the “go-to” guy who had neither qualms nor the time to listen to the petitions of lowly citizens, and he’s not about to let the hoi polloi get in the way of his government’s work.

Police power” is a constitutional concept, the power of the government to regulate behavior and enforce order within its territorial jurisdiction for the betterment of the health, safety, morals, and general welfare of the inhabitants. But in the real world, this is what “police power” is all about: a small-town cop ready to arrest homeowners on the say-so of a government functionary, because they are defending their property against the unlawful taking by the state. The cop needs say nothing: the handcuffs and Glock 22 on the officer’s equipment belt say it all.

But we still have courts, and to court is where the homeowners repaired. It turned out the tree straddled the right-of-way boundary line, which helped Uncle Joe not at all: the Court of Appeals, citing the Ohio Jurisprudence legal encyclopedia (which passes for primary authority in Ohio, or so we were told in law school), joined the overwhelming majority of states that hold that a boundary tree is owned by the property owners on both sides of the boundary line. As property of the tenants-in-common, the tree may not be removed with the consent of both parties.

Pinkerton v. Franklin Township. Board of Trustees, Case No. 83AP-946 (Ct.App. Franklin Co., July 17, 1984), 1984 Ohio App. LEXIS 10484, 1984 WL 13994. Joe Donovan, Chairman of the Franklin Township Board of Trustees, was a no-nonsense, get-it-done guy. Plus, he had the power of the state (or at least the township) behind him.

When Joe’s three-member Township Board of Trustees authorized a storm sewer improvement along the west side of Gladstone Avenue, Joe was the guy who would see that the job was done right. When it turned out that the sewer improvement project would be facilitated by removal of several trees, Joe was the guy who made the decision on his own that the trees would go. Two of the trees were in the highway right-of-way, but the third – a stately oak – straddled the boundary between the Gladstone Avenue right-of-way and the Pinkertons’ property.

Unfortunately for everyone involved, the Pinkertons strenuously objected to removal of the boundary tree. Joe, however, was not a guy to need anyone’s approval, so he did not bother to consult the other two Trustees about removing the trees. Instead, he forged ahead, ignoring the Pinkertons’ objection. He even directed a local police officer to be present in case the Pinkertons tried to intervene.

The tree was removed, just as Joe ordered. The Pinkertons’ complaints were not as easily dispatched as was the oak. They sued the Township Board for trespass, demanding compensatory and punitive damages. The jury agreed, awarding them $2,000 for the tree, and trebled it to $6,000 due to Joe’s willfulness.

Joe appealed.

Held: Joe, acting in his official capacity, caused the trespass and wrongful cutting, entitling the Pinkertons to $6,000.00 in damages.

The Court of Appeals made short work of Joe’s claim that the evidence showed no wrongful cutting. It held, citing Ohio Jurisprudence 3rd, that “[a] tree standing on the boundary line between adjoining landowners, so that the boundary passes through the trunk or body of the tree, is the common property of both proprietors as tenants in common.”

Likewise, the Court ruled that given that Joe steamrolled the Pinkertons’ legitimate objections, even bringing in the police to stifle their complaints of trespass, it was not error for the trial court to tell the jury it could assess punitive damages.

Finally, because the Pinkertons testified the tree was worth $6,000, there was evidence in the record to support the damage award.

– Tom Root


And Now The News …

Manchester, New Hampshire, WMUR-TV, July 19, 2018: Manchester tree worker stung hundreds of times by bees

A city worker in Manchester was taken to a hospital Thursday morning after he was stung hundreds of times on Beech Street. Officials said a crew from the Park and Recreation Department was cutting down a tree that had been damaged during a recent storm when a worker in a bucket truck disturbed a bee hive while cutting into the tree. The worker was unable to get out of the bucket until a neighbor ran out to help pull him free, officials said. That resident, Randy Graham, was stung about 20 times. “(The worker) immediately got stung by hundreds of bees, and he was stuck in the bucket,” District Fire Chief Al Poulin said. “A neighbor came over and assisted the gentleman out of the bucket. He was strapped in at the time, so he wasn’t able to get himself out of the bucket…”

Salem, Oregon, Capital Press Ag Weekly, July 19, 2018: Christmas tree growers narrowly approve checkoff

Christmas tree farmers have narrowly approved a national checkoff program that raises about $1.8 million a year to promote and research the crop. Though 51 percent of growers voted in favor of continuing the Christmas Tree Promotion Board during a recent referendum, the program continues to face uncertainty. Another referendum would normally be required in seven years, but the USDA — which oversees the research and promotion checkoff — has announced that growers will again vote on its continuation in about one year. The agency hasn’t specified why another vote will occur so soon, but a referendum may be held at the request of the secretary of the USDA, the Christmas Tree Promotion Board or by more than 10 percent of eligible farmers. Roughly 1,500 Christmas tree growers across the U.S. who sell more than 500 trees a year and pay 15 cents per tree to fund the program are eligible to vote in the referendum…

Salisbury, North Carolina, Post, July 19, 2018: All hail the mighty pine tree

Do you know what the state tree of North Carolina is? If you said the pine tree, you are correct. In 1963 the pine tree was designated the state tree of North Carolina, but did you know it goes further back than that? Since the early 1700s through the late 1800s North Carolina was the world’s leading producer of turpentine, pitch and tar, all used in the naval industry, this is why North Carolina is called the Tar Heel State. During this era pine products were more valuable than gold… There are eight types of pine trees that are considered native to North Carolina — the Eastern White Pine, Loblolly Pine, Longleaf Pine, Pitch Pine, Pond Pine, Shortleaf Pine, Table Mountain Pine and Virginia Pine. Pine trees are a member of the conifer family and are considered evergreens, meaning they keep their needles all year long. Pine trees can get very large and very old depending on the type of pine tree. By today’s standards, a large pine tree is 3 feet in diameter, but in the 1800s, 6 to eight feet in diameter and 250-300 years old was normal. Redwood trees are in the same conifer family as the pine tree…

Detroit, Michigan, WDIV-TV, July 19, 2018: Southfield man says pine tree left on power lines 4 months after storm

Metro Detroit is expecting thunderstorms this weekend, which means many residents will be holding their breath, hoping the power doesn’t go out. DTE Energy officials said power outages are mainly caused by fallen trees. One Southfield resident has been waiting for months after a storm forced a tree down on his line, and nobody came back to clean it up. Warren Newton called Local 4 consumer investigator Hank Winchester to solve the problem. Thousands of Metro Detroit residents lost power in March. There were downed power lines and tree branches everywhere. The storm knocked down a pine tree onto Newton’s power lines, and four months later, it’s still on the ground. “I haven’t heard from anyone,” Newton said. Crews came out in March to trim the tree so the lines could be restored, but once it was down, nobody came back. “They promised within a week they would haul it away,” Newton said. “Nothing. No results. No response…”

Science Daily, July 18, 2018: 5,000 percent increase in native trees on rat-free Palmyra atoll

In one of only a few studies of its kind, scientists measured the effects of rat removal on the tropical Pisonia grandis forest at Palmyra Atoll, which provides critical seabird nesting habitat. Before removal, no seedlings of native Pisonia grandis trees were found in research plots. Immediately following removal of invasive rats, seedlings proliferated and plots had an average of 8 seedlings per square meter. For five native tree species, including Pisonia grandis, fewer than 150 seedlings were counted in the presence of rats, and more than 7700 seedlings were counted five years after rats were removed. Lead scientist Coral Wolf from Island Conservation said: “Once rats were gone, changes became immediately apparent. We were so excited to walk into a forest stand of towering Pisonia trees and find a mat of tiny seedlings carpeting the forest floor — something that hadn’t been observed at Palmyra in recent decades as far as we know.” Palmyra’s tropical rainforest also provides important habitat for a native gecko, insects, crabs and other rare species…

Macon, Georgia, WMAZ-TV, July 18, 2018: Verify: Can power companies go on private property to trim trees?

Some of you have emailed us asking if power companies can come onto your property to trim trees. Flint Energies is one company that says long tree limbs interfere with the power lines. If a homeowner likes a tree just the way it is, can a power company trim it anyway? 13WMAZ talked to the Georgia Urban Forest Council and Marion McLemore at Flint Energies to learn the policies. Haratio Griffith spends his day sitting outside with his friend in the front yard. He says the tree limbs provide shade but they can grow pretty long. “He has them under control, but you see the power lines, you still have limbs that’s growing through there,” Griffith said. Griffith says he tries to trim his own trees if an electric company doesn’t come out to do it. “If it falls down on your power lines, you might be out of the phones or you might be out of lights for a couple of days,” Griffith said…

Chicago, Illinois, Tribune, July 18, 2018: Shield trees from lawn mower nicks with ample mulch

Many of us have trees growing in the middle of our lawns. Trees and grass aren’t natural companions, but you can make it easier for them to live together, according to Dave Lane, lawn supervisor at The Morton Arboretum in Lisle. For starters, put the tree first. “You always want to watch out for the health of the tree,” Lane said. “Turf is secondary.” A lawn can be established from sod or seed in a few weeks, but it takes decades to grow a tree. Think of it as an investment in curb appeal and property values: Studies have shown that mature trees can add thousands of dollars to the price of a home. One serious danger to trees isn’t the grass itself, but the lawn mowers and string trimmers we use to keep it tidy. If these power tools come near a tree’s trunk, they can easily damage its bark. That can be devastating for the tree because the life-giving vessels that distribute water and nutrients are in the bark’s inner layer. They can be severed if a lawnmower bangs the trunk or a string trimmer gets too close and scalps off the bark…

Abilene, Texas, Reporter-News, July 18, 2018: Remove trees too close to buildings before they become a problem

Although it’s something I’ve written about many times before, having just recently looked at a tree growing butt-up against a building, I thought I would, once again, tackle the subject of trees next to structures, and what to do about them… I recently looked at a pretty large pecan tree, and by large I mean a more than 30-inch diameter trunk, which is growing up against a building. In this particular instance, in the struggle for space and footprint, between the tree and the building, the tree is winning, hence the request for a quote on removal. The reason this particular tree makes such a good example for a column about trees against structures, is because removing it will be a very tedious job. It’s large, it’s tall, it’s over the building, the area behind the building it’s pushing against contains more buildings/infrastructure, and there are also electric and other utility wires involved. As removals go, it’s not that complicated, there’s just a lot of it, and there will be a lot of “piecing out,” which means a lot of time. In short, the removal of this tree is going to cost several thousand dollars. I’m not sure how old this particular tree is, but I’m willing to bet that at any time during the first 20 years of its life, removing it would not have been nearly the expensive proposition it currently presents. Now, I’m a guy, so I understand all about procrastination, but even I view a couple of decades as plenty of time to deal with a problem before it gets out of hand. Not only that, but in its first few years, taking out that tree could have been accomplished in just a few minutes…

Los Angeles, California, Times, July 17, 2018: Massive tree die-off brings unprecedented danger as wildfire burns near Yosemite

The Ferguson fire burning through Mariposa County has already charred nearly 10,000 acres and killed a firefighter working the front lines. But its true destructiveness might lie ahead as it burns a path through a tinderbox already primed for disaster. On either side of the Merced River, hillsides are filled with trees that have been killed by five years of drought and a bark beetle infestation, according to state maps. The ground is carpeted with bone-dry pine needles, which are highly combustible. These conditions, combined with dry, hot weather, have officials fearful that the fire could grow far worse as it burns near Yosemite National Park. Fire “moves very fast through dead needles, and dead trees produce a lot of dead needles,” said Mike Beasley, a fire behavior analyst for the U.S. Forest Service. “The dead pine needles, no matter where they end up, whether they’re still in the tree or draped in some old, decadent brush, or laying on the ground, they contribute significantly to rapid rates of spread…”

Charleston, South Carolina, WCIV-TV, July 17, 2018: Lowcountry tree trimmers busy as heart of hurricane season nears

It’s typical to see trees scattered across the Lowcountry after a hurricane, but a local business is working to get rid of the branches ahead of the storm. “It’s tedious,” said Gren Winthrop, owner of Winthrop Tree Service. “It’s hard especially for the guys working in the field.”  Winthrop said this hurricane season is keeping his five field crews as busy as they’ve ever been, even though a major storm hasn’t hit the Lowcountry. “I would say this is about as busy as we get. We’re working six days a week and barely keeping up with the phone calls,” Winthrop added. He said his crews are pruning about 100 trees a week, and pulling up to 50 dead and dying trees straight out of the ground in some weeks. A report from the South Carolina Department of Insurance shows huge losses to residential property after the last two hurricane seasons. Across the state, the department issued a combined payout of more than $200 million after Hurricane Matthew in 2016 and Tropical Storm Irma in 2017…

Bergen County, New Jersey, Record, July 18, 2018: New tree-destroying bug found in New Jersey

A colorful bug that is a major threat to fruit and hardwood trees has been discovered in New Jersey, state officials said Tuesday.  An invasive species that hops from plant to plant, the spotted lanternfly was found recently in Warren County after spreading throughout 13 counties in eastern Pennsylvania despite a quarantine there. The bug was found in late June on its preferred host – a tree of heaven. But it is known to feed on the bark and leaves of more than 70 plant and tree species including willows, maples, poplars, tulip poplars, birch and ash.  “I don’t know if you can stop this from spreading,” said Bob O’Rourke, a district manager for The Davey Tree Expert Company in Morris Plains. “They’re great hitchhikers. They can get on any smooth surface like the underside of a car and be moved rather easily…”

Pierre, South Dakota, Capital Journal, July 17, 2018: Man cutting tree roots in lawn slices open gas line with saw; street evacuated

A homeowner cutting tree roots in his lawn next to his sidewalk in the 500 block of Oneida Street punctured a natural gas line Tuesday evening, causing the Pierre Fire Department and Police Department to evacuate several homes nearby and barricade a block or more in each direction. No one was hurt. The man had concrete for a new sidewalk poured earlier Tuesday and he was trying to clean up some tree roots exposed by the sidewalk work. He was using a trowel and an electric saw, he said. When the saw cut through the yellow plastic gas line, it was obvious from the sound and smell what had happened. “I got the hell out of there,” the man told the two men working to put a temporary shut down on the gas line until a permanent fix can be made. For about 45 minutes the block was cordoned off as a crew clamped down on the 2-inch gas line on the other side of the sidewalk. It appeared the gas line was not the required 12 inches below the surface of the ground on the lawn side of the sidewalk where the man had cut into it…

Canadian Broadcasting Corporation, July 16, 2018: ‘Jumping tree lice’ threaten more than 14,000 Winnipeg ash trees

Beleaguered Winnipeg trees are under a fresh attack from a new foe this season: the cottony ash psyllid, also known as jumping tree lice. The tiny, yellow-and-black bugs were first spotted in city trees last year, but their impact was considered low at the time, said city forester Martha Barwinsky. That changed this year thanks to a dry season, she said, although city tree experts are still determining the extent of the infestation. “This spring, of course, a lot of the black ash trees were very late to leaf out, much like last year. But as they started to leaf out, the impact was even greater,” she said. “We’re finding, actually, much more advanced stages of the cottony ash psyllid this year…”

Quincy, Massachusetts, Patriot-Ledger, July 16, 2018: State’s highest court weigh in Randolph neighbor’s tree dispute

The state’s high court has weighed in on what it calls a “distinctly neighborly” dispute over a 100-foot-tall sugar oak tree near the property line of a Randolph home. The Supreme Judicial Court on Monday upheld the decision of a lower court that had dismissed a lawsuit filed by Mary Shiel against her neighbors, Keli-Jo and John Rowell, claiming that the couple’s tree had caused algae build up on her home. Shiel had demanded money to pay for the damage to her roof and an injunction requiring that branches overhanging her property be removed. The court said in its decision that it saw no reason to “uproot” long-established Massachusetts law that prevents landowners from holding their neighbors legally responsible for damage caused by their healthy trees. It also noted that the law allows property owners like Shield to remove any part of a tree that hangs over their property…

Portland, Oregon, The Oregonian, July 16, 2018: Beware voracious borers picking off birch trees

A voracious insect – the bronze birch borer – is picking off beloved birch trees throughout Oregon. Common for many years in Eastern Oregon, the hard-to-control beetle first showed up west of the Cascades in 2003 in Portland, where it has killed hundreds of trees. It slowly migrated and is now found in abundance as far south as Klamath Falls, according to Nicole Sanchez, a horticulturist with Oregon State University Extension Service. Sanchez has cowritten a detailed fact sheet on the problem called Homeowner Guide to Managing Bronze Birch Borer in the Upper Klamath Basin. The information is relevant for the entire state. The first sign of infestation is flagging branches with sparse, stunted and yellowing leaves at the tree canopy, she said. Twigs will fall and eventually the branches lose their leaves. Ultimately – often before a homeowner notices – the tree will have so much damage it’s impossible to save. Caught in early stages, death can be averted. “If you don’t know you have an infestation, it’s usually too late,” said Sanchez. “Then you have to take the tree out, which is expensive…”

Miami, Florida, WSVN-TV, July 16, 2018: Tree Trouble

Government officials tell us to prepare our homes for hurricane season, but storm preps got residents of one South Florida in big trouble with city hall. 7’s Brian Entin has more on the “Tree Trouble. Richard Masone makes a point to stroll around his neighborhood to keep an eye on things. He is the president of the Hallandale Village Homeowners Association. Richard Masone, Hallandale Village HOA: “Pretty much managing, yes. I want to see where all our money is going towards, want to keep the place up, so our property value stays up.” The association’s insurance company told him to get the trees trimmed to protect the property from hurricanes, so he hired the same licensed company the community has used for years. Richard Masone: “They came, they trimmed the trees beautifully. Our insurance company is happy.” But Hallandale Beach Code Enforcement officers weren’t so happy with the tree trimming. Roger Carlton, City of Hallandale Beach: “We are on this. It’s unacceptable behavior. They enormously exceeded any reasonable amount of trimming…”

Eugene, Oregon, Register-Guard, July 13, 2018: Southwest Eugene neighbors settle tall tree lawsuit

A long-running legal dispute among neighbors over view-obstructing tall trees in southwest Eugene is over. The two sides reached a settlement earlier this week that requires two homeowners to cut down at their expense about half of the 23 trees that were at issue in the case. Following a 2½-day trial in February, Lane County Circuit Judge Mustafa Kasubhai had ruled that homeowners Jeff Bauer and Tom Heyler violated a Hawkins Heights subdivision covenant — unique in Eugene — that prohibits owners from allowing trees and shrubbery to “unreasonably interfere with the view from other lots.” The neighborhood is south of West 18th Avenue and east of Bailey Hill Road. Heyler had attempted to exempt his property from the view covenant by securing signatures from surrounding homeowners. But Heyler said he decided that the cost wasn’t worth the fight. “We did what we had to do,” said Heyler, who estimated that he and Bauer have incurred a total of about $60,000 in legal fees. Heyler said he’s glad the case is over but other than that, “I have no good things to say about it.” Todd Johnston, the lawyer for the uphill neighbors, said they appreciated “all of the court’s effort in analyzing this issue and are obviously happy with the result…”

Sacramento, California, KOVR-TV, July 15, 2018: 40-Foot Tree Limb Falls On Person At Elk Grove Summerfest

A 40-foot tree limb came crashing down onto a man at the Elk Grove Summerfest. He was rushed into emergency surgery. It happened at the Elk Grove Park Saturday in a grove of oak trees. “It’s like getting struck by lightning. You can’t really prevent it,” said Scott Shipley, who was just 10 feet away when it happened. Shipley was in the crowd enjoying live music when the branch snapped. “I hear a crack behind me and I turned around and there’s a big old tree branch right on the ground with a gentleman laying next to it,” he said. “He was just flat on his back, out cold.” Shipley was a medic in the Air Force and stabilized the victim until paramedics arrived…

New York City, The New York Times, July 15, 2018: California Is Preparing for Extreme Weather. It’s Time to Plant Some Trees.

For years, there has been a movement in California to restore floodplains, by moving levees back from rivers and planting trees, shrubs and grasses in the low-lying land between. The goal has been to go back in time, to bring back some of the habitat for birds, animals and fish that existed before the state was developed. But in addition to recreating the past, floodplain restoration is increasingly seen as a way of coping with the future — one of human-induced climate change. The reclaimed lands will flood more readily, and that will help protect cities and towns from the more frequent and larger inundations that scientists say are likely as California continues to warm. “We thought we were just going to plant some trees out here and get some birds to move in,” said Julie Rentner, executive vice president of River Partners, a conservation group that is restoring hundreds of acres of farmland on the outskirts of Modesto in the Central Valley, where agriculture has overwhelmed the natural environment. “Now we’ve got this whole much larger public benefit thing going on.” Researchers say it is unclear whether climate change will make California drier or wetter on average. What is more certain is that the state will increasingly whipsaw between extremes, with drier dry years, wetter wet ones and a rising frequency of intense periods of precipitation…

Redding, California, Record Searchlight, July 13, 2018: Redding needs a tree ordinance now

The City of Redding needs a tree ordinance that will protect many of our native trees which are currently being cut with little regard to alternatives that would save them or require planting replacement trees elsewhere.  Many people think Redding has a tree ordinance, but it doesn’t. Instead, it has a tree management ordinance which is basically a series of guidelines with no enforcement powers to prevent clear-cutting of every native oak tree on every undeveloped parcel in Redding should a developer so choose, and the Redding Planning Department agrees. Our current ordinance was put together in 2006 with a committee of real estate developers, city staff and a minority of just two members representing the public. The result is a toothless ordinance with many loopholes allowing tree protections to be waived or ignored. The result has been devastating for preserving our native trees, especially native oaks. Last year, 700 oak trees on Churn Creek Road at South Bonnyview Road were cut down, with only three oak trees being spared… 

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Case of the Day – Thursday, July 19, 2018


Today’s case reminded us of the tension between those of us who love trees for all of the intangibles they deliver – shade in the summer, shelter from the rain, a windbreak, a place on which to mount our birdhouses and hammocks and tires on a rope for the kids…

What all of these have in common is that none of them is accounted for when a tree is cut down, stripped of branches and run through the sawmill. The stumpage value – the worth of the tree’s harvestable wood to the mill on the ground in the woods – doesn’t account for all of what we like about our ornamental trees.

That reminded us of Joyce Kilmer, who was among the first to calculate the noncommercial value of ornamental trees (after a fashion), writing, “I think that I shall never see a poem as lovely as a tree…”

And that in turn reminded us to be proactive in telling everyone that Joyce Kilmer was not a girl. Not that there’s anything wrong with girls, or girl poets (we’re big Emily Dickinson fans ourselves), but we regularly come across knuckleheads who say “Joyce Kilmer wrote those words because she…”

Nope, nope, nope. Joyce was a boy, and later a young man, His poetry and writing career was cut short when he fell, killed in action, in France 100 years ago this month.

In the case we’re talking about today, it’s a cinch that Gordon Lamb – who is also a boy – didn’t read much Joyce Kilmer. He was probably more a William Blake fan, because he sure hit his logging assignment like a “tiger, tiger burning bright…” He cut all of the trees he was supposed to, and then, for good measure, cut or destroyed about 400 extra.

The trial court held that the homeowners whose trees fell victim to the tigrine Mr. Lamb were limited to stumpage value. It was a sweet outcome for the defendant: 400 trees ended up costing Gordon about $7,000, well less than $20.00 per tree destroyed. But then the Cincinnati-based Court of Appeals stepped in, applying what is by now universally recognized as the proper measure of damages: noncommercial trees are generally worth more than an equal number of commercial trees.

Denoyer v. Lamb, 490 N.E.2d 615 (Ohio App. 1, December 5, 1984). Murphy Development Company marketed subdivided lots from a wooded parcel it owned. It sold five parcels, of which four had homes built on them. The parcels were cleared except for a mature woodland behind them (which Murphy still owned), which growth extended onto the rear of the five lots.

Murphy Development hired Gordon Lamb to harvest mature timber from the woods the development company still owned. Gordon Lamb set off like a tiger, cutting not only trees from the Murphy acreage, but sawing into the woodlands on the five private lots. When the sawdust settled, Gordon’s crew had cut 68 trees that did not belong to the Murphy company, and destroyed 331 more.

The afflicted property owners whose trees were decimated, including the Denoyer family, sued.

The trial court limited the Denoyers’ compensatory damages to the stumpage value of the cut and destroyed trees. It also restricted their recovery to either punitive damages or treble damages, but not both. The jury awarded the Denoyers $7,412.00 in compensatory damages, but found no grounds to award punitive damages.

The Denoyers appealed.

Held: The trial court judgment was reversed, and the Denoyers were permitted to claim restoration damages

The Court of Appeals laid the framework for assessing when replacement damages should be awarded. “In an action for compensatory damages for cutting, destroying and damaging trees and other growth, and for related damage to the land,” the Court wrote, “when the owner intends to use the property for a residence or for recreation or both, according to his personal tastes and wishes, the owner is not limited to diminution in value (difference in value of the whole property before and after the damage) or to the stumpage or other commercial value of the timber.”

Instead, the Court ruled, an owner may recover as damages the costs of reasonable restoration of the property to its preexisting condition or (because regaining the preexisting condition of often not possible) to a condition as close as reasonably feasible. “Reasonably feasible” means that the courts should not order grossly disproportionate expenditures, and allow for natural regeneration within a reasonable period of time.

Where cut trees have been used for a specific purpose – such as a sound barrier and screen from highway traffic, or shade, or even mere ornamentation – restoration cost is the proper measure of damages. Additionally, the cost of restoration should be used as the measure of damages where “the owner’s personal use is neither specific nor measurable by commercial standards, and when the trees form a part of an ecological system of personal value to the owner.”

The Court reasoned that in the present case, stumpage value could be determined in several ways, but all of those methods would yield a much smaller amount than the cost of replacement. To limit the Denoyers’ and their fellow lot owners’ recovery to stumpage value would be to enforce a timber harvest the plaintiffs never contracted for, or even wanted. It would fail to account for their intended use or real loss.

The Court of Appeals thus held that the trial court erred in excluding evidence of reasonable restoration costs, including cleanup, repair and regrading.

– Tom Root


Case of the Day – Wednesday, July 18, 2018


We should all age this well.

The Massachusetts Rule, which we have rightly or wrongly identified as the wellspring whence flows all tree law on encroachment, is a spry 87 years old this year. Over the years, other states have chipped, chipped, chipped away at its granite-solid underpinnings, the notion that your neighbor has no right to sue you if your healthy tree sends branches spanning over her property or roots snaking through her subsoil.

After being belted and flayed by decisions from a host of more encroachment-progressive states over the years, the Massachusetts Rule finally received some good news two days ago: Massachusetts’ highest court issued an opinion which was a full-throated defense of the venerable Rule.

Don’t like the mess your neighbor’s honey locust makes in your gutters? Or the way his sweet gum roots are displacing your basement wall? Tough noogies. The Massachusetts Rule holds that you are free (at your expense, so maybe we should not use the word “free”), that is, you are entitled, to cut down the offending branches or dig up the offending roots up to your property line with his place.

What you are not free to do is to sue your neighbor because his tree is a nuisance. As the Bay Staters put it, your rights are limited to self-help.

To be sure, the Massachusetts Rule has gotten a raft of bad press in the last few decades. Hawaii is the most famous, with the Hawaii Rule (set out in Whitesell v. Houlton). That rule holds that your neighbor is liable to you if encroaching branches or roots from her tree cause “sensible harm” to your property. Complaints that the Massachusetts Rule was archaic, a relic of an era when population density was much less and life was simpler, have become common. Don’t believe it? Refer to the definitive decision assessing the various rules, Herring v. Lisbon Partners, for the modern view that the Massachusetts Rule is an arboreal dinosaur.

Well, it turns out the old dinosaur still has a bite. A Massachusetts litigant with more spare change for legal fees than she had common sense sued her neighbor because, she claimed, the neighbors’ stately oak caused algae to grow on her roof. She demanded her neighbors cut it down. They declined, pointing out to her that the Massachusetts Rule immunized the owner of a healthy tree from such an obligation, and, by happy coincidence, they were all in Massachusetts, so the Rule applied to them.

The neighbor was undeterred, and she hired a lawyer (who undoubtedly told her she was backing the wrong horse). But back it she did. She lost in the trial and appeals courts, both of whom took pains to explain the Massachusetts Rule to her.

“But,” we imagine she said, “the Massachusetts Rule is a doddering fossil, rejected by just about all modern thinking in our sister states’ courts! It should be consigned to the dustbin of history!”

But two days ago, the Supreme Judicial Court of Massachusetts seized the opportunity not only to refuse to undo the plucky 87-year old Rule, but to explain how all the other states who had rejected it as irrelevant in the modern day and age are just plain wrong.

Famous Massachusetts patriot John Adams died on July 4, 1826. His last words were reputed to be a joyful acknowledgement that his old friend, Thomas Jefferson, survived him. As he expired, Adams breathed, “Jefferson lives!

He could have said the same about the Massachusetts Rule. Despite all the grief that the Herring court, the Fancher court, the Lane court, and even the Whitesell court have given it, the Rule still lives.

Shiel v. Rowell, Case No. SIOC-1274 37 (Sup.Jud.Ct. Mass, July 16, 2018). Keli-Jo and John Rowell owned property next to Mary Shiel. The Rowells’ property included a 100-foot tall sugar oak tree with majestic branches that stretched over Mary’s property.

Alas, Mary was not a fan of the tree. She complained that the tree caused algae buildup on her roof. She demanded that the Rowells cut it down. They refused. So Mary sued, demanding money for damage to her roof and an injunction ordering the Rowells to cut back the branches overhanging Mary’s land.

A District Court judge dismissed Mary’s claims, on the grounds that under Massachusetts law, a person whose property is injured by a neighbor’s healthy tree has no cause of action against the tree’s owner. The appellate court agreed.

Mary appealed to the Supreme Judicial Court, admitting that the Massachusetts Rule was against her, but asking that the Rule be thrown out as antiquated.

Held: The Massachusetts Rule remains the law.

The law in Massachusetts has long been that a landowner may not hold a neighbor liable for damage caused by that neighbor’s healthy tree.

In Michalson v. Nutting, roots from Nutting’s poplar tree clogged the Michalson’s sewer and drain pipes, and cracked his concrete cellar, risking serious damage to the house’s foundation. The Court concluded that Mr. Nutting could not be held liable for that damage because “an owner of land is at liberty to use his land, and all of it, to grow trees.” The Court recognized Mr. Michalson had the right to cut off intruding boughs and roots and reasoned that “it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

Mary urged the Court to adopt the Hawaii Rule, which grants neighbors the right to sue to resolve disputes in court over healthy trees. A neighbor may use the courts to require that the tree owner pay for damage and cut back branches and roots if the tree causes, or there is an imminent danger of it causing, “sensible harm” to the neighbor’s property. The Hawaii Rule, like the Massachusetts Rule, allows any landowner the right to cut back overhanging branches or intruding roots from a neighboring landowner’s tree. But unlike the Massachusetts Rule, the Hawaii Rule offers the aggrieved homeowner a right to sue to have branches and roots removed by the tree’s owner.

Mary argued the Massachusetts Rule is outdated, because these days people are living in closer proximity to one another on smaller tracts of land than when the Massachusetts Rule was adopted. She contended that trees today are more likely to cause damage to neighbors’ property than in days past, and tree owners are better able to manage their trees. This, she maintained, justifies giving parties a right to sue to resolve disputes in court.

The Rowells argued in favor of stare decisis, the doctrine that courts should adhere to rules previously adopted in resolving similar cases. While adhering to stare decisis is not an inexorable command, the Court held, it is “our preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

Even more than that, the Rowells maintained, the Massachusetts Rule is more sensible than the Hawaii Rule. The Court agreed. “We would discern a need to change the Massachusetts Rule if it were outdated and no longer fit the circumstances of contemporary life,” the Court said. But, the Court ruled, the Rule is still very relevant.

It may be true that people today are living in closer proximity to one another on smaller tracts of land than they were when the Massachusetts Rule was adopted in the early Twentieth Century. :But if changes in property ownership would lead us to believe that tree owners are now better able to monitor their trees,” the Court said, “the same would be true for their neighbors to monitor and trim encroaching trees. It may be easier to recognize impending or potential harm to one’s own property from overhanging branches and intruding roots than it would be for the tree owner to recognize what is happening next door. And even if it is also true that trees today are more likely to cause property damage to neighbors’ property, it would be “undesirable to categorize living trees, plants, roots, or vines as a ‘nuisance’ to be abated.”

The Court recognized that other states, such as North Dakota, Tennessee and Virginia, had declared the Massachusetts Rule to be an antique. The Court rejected the rationales in those cases, observing that while the cases all said the Massachusetts Rule was outdated, none ever explained satisfactorily why that would be. True, as those decisions noted, the Massachusetts Rule law arose at a time when land was so unsettled and uncultivated that the burden of inspecting it and putting it in a safe condition would have been unduly onerous and out of all proportion to any harm likely to result. But this rationale seemed to apply to danger trees only. If a tree is healthy, it does not need to be put “in a safe condition” to begin with, and Massachusetts Rule trees must be healthy trees to begin with in order to come within the Rule.

Mary did not identify any consequences of the Massachusetts Rule, the Court observed, that would not have been thoroughly appreciated by when the Rule was adopted. The growth of trees “naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others,” the Court declared in Michalson, and that has not changed.

Contrary to the criticisms of the Rule, the Court ruled, “multiple benefits to the Massachusetts Rule [are] still relevant to circumstances of contemporary life. The rule simplifies assignment of responsibility, leaving no doubt as to the rights and obligations of the parties and minimizing legal costs. It reduces “unnecessary burdening of courts” and vexatious lawsuits: “The Massachusetts Rule today, just as it did when Michalson was decided,” the Court found, “may prevent unnecessary legal harassment from neighbors who merely have an axe to grind for reasons other than purported tree problems.”

Thus, the Court ruled, “We retain the law that an individual whose property is damaged by a neighbor’s healthy tree has no cause of action against a landowner of the property upon which the tree lies.”

The dinosaur still roars.

– Tom Root


Case of the Day – Tuesday, July 17, 2018


proclaimers140502The Kentucky Department of Highways has a lot to do. Besides keeping up the state’s highways, the DOH has the duty to inspect roadside trees. And there are a lot of trees in Kentucky.

So many, in fact, that – like its habit with parking spaces (see yesterday’s decision) – the DOH favored drive-by inspections. You can see a lot of trees from the passenger seat of a Silverado. There are Proclaimers who would say it was better than walking 500 miles, and then walking 500 more, just to see the back side of some right-of-way trees.

Ioseb Besarionis Dze Jugashvili – you might have known him as “Papa Joe” Stalin – is reputed to have had a favorite saying, “Quantity has a quality all its own.” All right, he probably didn’t say it … after all, he spoke Russian with a strong Georgian accent, and “quality” and “quantity” probably are not especially alliterative in that tongue. But when it came to the Kentucky DOH, the fact that its inspectors could inspect miles of trees every hour didn’t necessarily mean that they were getting it right.

When old Cecil Callebs came up on the bottom side of a sycamore tree that fell on his car during a windstorm, his widow sued the Department of Highways, arguing that if its inspectors had only gotten out of the car and walked a little, they would have known that the tree was rotten and a threat to passing motorists.

The case went to a state Board of Claims first. No one suggested that the DOH knew that the tree was decayed, but the widow Callebs argued that its employees would have known if they had only gotten out of the truck to inspect the tree. The Board disagreed, but when she appealed to a trial court, it sided with her. The DOH, it held, should have done a “walkaround.”

Whenever the analysis is focused on whether someone should have known something, rather than whether he or she actually knew it, the courts employ a balancing test (whether they call it that or not). The test considers how critical to its duty discovering the particular information was, and weighs that against how difficult discovering the fact would have been.

Here, the omission was a slight one, although the late Mr. Callebs might have disagreed. The tree had plenty of green leaves, and no defect was obvious from the highway. The DOH had a generalized duty to inspect and maintain trees along the highway. It missed one of the millions in its charge, but the error wasn’t an obvious one.

treeoncar140502The Court of Appeals agreed that a “walk-around” would probably have discovered the defect. But such a “walk-around” would have been infeasible. Even if the DOH had the personnel to conduct such inspections, it probably would have had to get permission from private landowners to enter onto their property to see the back side of the tree. Multiply the permission process by thousands of trees, and the unreasonableness of expecting walking inspections is obvious.

Commonwealth v. Callebs, 381 S.W.2d 623 (Ky. 1964). Cecil Callebs was killed when a large sycamore tree, standing on the edge of the right of way some 12 feet from the edge of the pavement, fell across the highway and hit is car. Callebs’ estate filed a claim against the Kentucky Department of Highways for wrongful death with the Commonwealth’s Board of Claims. The board, after hearing evidence, found no negligence on the part of the DOH. The circuit court reversed, holding the DOH negligent. The DOH appealed.

Held: The Department of Highways was not negligent.

The Court of Appeals agreed that DOH lacked actual notice of the defective condition of the tree. The issue in the case, rather, was whether the department had constructive notice of the defective condition, or, stated another way, whether a reasonable inspection would have disclosed the condition. This involved, the Court said, “the question of how close an inspection was reasonably required.”

californiasycamore140502The leaves on the sycamore tree were green, and the defective condition of the trunk was on the side away from the highway. The defect could have “been discovered only by walking around behind the tree, which perhaps would have involved an entry upon private land abutting the highway.” The Court of Appeals observed that “[i]n order to affirm the circuit court judgment … we would be required to hold that as a matter of law the Department of Highways had a duty to make a ‘walk-around’ inspection of the tree, involving perhaps an entry on private lands. We do not believe that such is the law.”

The Court considered it important that the area around the tree was rural, and that the burden “of a walk-around inspection of each tree near the highway (perhaps requiring the obtaining of entry permission from the abutting landowners)” would be unreasonable in comparison with the risk. Note again in this case the distinction drawn by the Court between in-town and countryside. The Court concluded that highway authorities “under conditions such as existed in the instant case” do not have a duty as a matter of law to make the kind of inspection that would have been required here in order to keep the tree away from Mr. Callebs.

The Court reversed the trial court’s judgment, and let DOH off the hook.

– Tom Root


Case of the Day – Monday, July 16, 2018


lee140501Robert E. Lee (if we are still allowed to write favorably about him in this #metoo and BLM era) adjured us all to “do your duty in all things. You cannot do more, you should never wish to do less.” Today’s case is about duty, which as far as we’re concerned is more the basis for determining legal liability than a moral concept.

In Kentucky, the Commonwealth (that’s what they call themselves, and who are we to dispute it?) is liable when it has notice of a defect in a highway. The defect in this case was a hole in the pavement, located at the curb end of a parking space. The Department of Highways people inspected that stretch of urban street regularly, but always by driving by. That area of town was teeming with commerce, so the parking spaces were always full and the hole went unseen.

When Mary Maiden fell by stepping in the hole, she sued. The Board of Claims, Kentucky’s tribunal for hearing claims against the Commonwealth, figured that the DOH employees had done all they could do to inspect the street. Thus, it found that DOH wasn’t on notice of the hole.

But the Court of Appeals reversed. In a two-to-one decision, it decided that a drive-by inspection that couldn’t see the whole street wasn’t a reasonable inspection. The case is interesting to us because the Court contrasted this situation to the decision in Commonwealth v. Callebs, a case we’ll look at tomorrow. There, when a tree in the right-of-way fell on a driver, the court found that requiring a “walkaround” inspection was unreasonable.


A maiden … but not Ms. Maiden

But Ms. Maiden’s Court said that Callebs was different: it placed an unreasonable demand on the DOH to require it to inspect every tree in a rural setting. Besides, to have seen the defect in the tree that fell on Mr. Callebs, the DOH workers would have to gone behind the tree onto private property in order to see the defect.

This case — and the one we’ll consider next — together illustrate the “touchy-feely” nature of some determinations of what is and is not “reasonable.”

Commonwealth v. Maiden, 411 S.W.2d 312 (Ct.App. Ky. 1966). Mary Maiden fell and was hurt when she stepped into a hole in Cumberland Avenue in Middlesboro. This being America, she sued.

Unfortunately for the Commonwealth, not every hole in the street is this obvious.

Unfortunately for the Commonwealth, not every hole in the street is quite this obvious.

The Kentucky Department of Highways had agreed to maintain the street as a part of the state road system. The block in which the accident occurred is in a busy commercial area with diagonal parking on both sides of the street which is usually full during business hours. The hole was about 24 inches long, 9 inches wide and 3 inches deep and was located almost entirely at the back end of a parking space, substantially concealed from view when a car occupied the space. It had been there for some six months.

It was the statutory duty of the DOH to inspect all state-maintained roads. A foreman inspected Cumberland Avenue at least every two weeks by driving along the street in a pick-up truck during business hours. It would have been impossible to see the hole in question if there had been a car parked there, and no DOH employee had ever made a ‘walk-around’ inspection, looking under the parked cars along the street. The Board of Claims rejected Ms. Maiden’s claim, but the trial court reversed the decision, entering judgment for Mrs. Maiden. The DOH appealed.

Held: The judgment for Ms. Maiden was upheld.

The Court said the law in Kentucky is that if a defect in a highway existed for such a period of time that the authorities, by exercise of ordinary care and diligence, should have discovered it, notice will be imputed. A “drive-along” inspection of a busy city street during business hours when parking areas normally were fully occupied – so that defects in the parking spaces cannot be seen – is not a reasonable inspection. Thus, the law assumed that the Department knew of the defect which caused her fall.

Kentucky, of course, is famous for unexpected holes, like the one that swallowed eight vintage Corvettes at a Bowling Green museum earlier this year.

Kentucky, of course, is famous for unexpected holes, like the one that swallowed eight vintage Corvettes at a Bowling Green museum in early 2014.

The Court acknowledged that while the burden of inspection may be a serious problem to the DOH, it was not too great a burden to require an inspection of streets in commercial areas to be made in ‘off’ hours when the parking spaces are not occupied. The Court distinguished the facts from the Callebs case (which we’ll look at tomorrow). In Callebs, the Court had held that DOH did not have a duty to make a ‘walk-around’ inspection of trees along the edge of the right of way. That defect, however, was not in the street itself but rather in the side of the road, and the area was a rural one with light travel rather than an urban one with heavy traffic. Besides, the Court observed, an effective inspection of the trees would have required the use of a considerable amount of time, whereas in this case, an effective inspection would not have involved more time but only the selection of a different hour in which to make it.

One judge dissented, arguing that there was really no distinction between this case and the Callebs case. A lone dissent, however, is an interesting footnote and little more. You can ask the ghosts of Robert E. Lee and the leaders of the Confederacy about being mere footnotes.

– Tom Root


Case of the Day – Friday, July 13, 2018


The archetype of a safe man ... he wears both a belt and suspenders.

The archetype of a prudent man … he wears both a belt and suspenders.

No matter how safe you try to be, there is always something else you could have done to be safer. We all make compromises when the utility of what we are doing to be safer becomes more burdensome than the incremental increase in safety our act attains. On one hand, it’s safer to wear seat belts than not to wear them, and the cost of wearing them is exceedingly slight compared to the benefit derived. On the other hand, while it would be a lot safer for all traffic not to exceed 15 mph, the cost of such an act far outweighs the benefits derived from enforcing such a rule.

A similar situation applied in this landmark municipal liability case from Omaha. During a windstorm, a motorist pulled over because he couldn’t see to drive. A tree belonging to the City fell, hitting his car and paralyzing him. The tree, a silver maple, was badly decayed. The motorist sued the City, arguing that for a tree owner to permit a danger tree to stand violated the City’s own ordinances. At trial, the disabled plaintiff was awarded $5 million.

On appeal, however, the Supreme Court of Nebraska was more persuaded by the City’s argument that if every person in its arborist crew spent an entire work year inspecting silver maple trees, each tree would only receive a 12-minute inspection. The City had a tree inspection program in place, and the Court found it reasonably conceived and discharged. Could the City have done more? Certainly. Had it done so, would the damaged tree have been found? No one could say.

The City’s tree inspection program was reasonable, and that was all that was required. The verdict was reversed.

treecar140425McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545 (S.Ct. Neb., 1984). Mr. McGinn was driving in the City of Omaha on a rainy, blustery afternoon, when the inclement weather made him pull over to park. As he was doing so, a silver maple tree fell in front of him, and a branch struck his car, rendering him a quadriplegic.

Photographs taken after the accident revealed that the trunk of the tree was extensively decayed. McGinn sued the City, arguing it was negligent in failing to inspect the tree for disease, decay, and structural defects, and in violating a city ordinance making it unlawful for a landowner to permit a dangerous tree to stand. The City countered that McGinn was contributorily negligent and that the storm, which could not have been reasonably anticipated, caused the tree to fall. The trial court rendered judgment in favor of McGinn and awarded $5 million in damages.

The City appealed.

Held: The judgment was reversed. The Nebraska Supreme Court held that city was not negligent for having failed to remove the tree where there was no evidence that inspection program conducted by city was negligently designed or carried out, or that the tree had been found to be hazardous as a result of any inspection made by the city.

Normally, governmental units are liable under ordinary negligence principles for injuries or damages which result from a tree falling onto a public road from land in possession of a governmental unit. In this case, while McGinn was correct that the City had violated an ordinance rendering it unlawful for any property owner to permit diseased or structurally weak tree from standing upon his property, the violation was at most evidence of negligence, and did not impose strict liability upon the City. Rather, negligence must be measured against particular set of facts and circumstances present in each case, and the utility of the City’s conduct has to be measured against the magnitude of the risk.

Here, the City had established an annual inspection program to check for hazardous trees. The program was neither negligently designed nor negligently carried out. Alternatives might have reduced the risk, such as cutting down any silver maple older than a certain age or conducting lengthy, individual tree inspections, but these remedies were expensive and unreasonable. There was no indication that the tree which fell on McGinn’s car during the severe storm had been found to be hazardous during any inspection made by the city.

Thus, the Court said, the city was not negligent in not having had the tree removed, and thus was not liable for personal injuries sustained by McGinn.

The takeaway here is that in a proper weighing of the reasonableness of a defendant’s actions, courts traditionally weigh the magnitude of the task. A homeowner with ten trees cannot reasonably fail to ascertain the condition of his or her trees. A municipality with 10,000 trees can get away with failing to ascertain the condition of any particular one of those trees if it has an inspection program that is a reasonable balance of cost and efficacy.

– Tom Root