RIGHT THING, WRONG REASON

The right things usually get done for the wrong reasons. The Internet, which knows all (or soon will) attributes the aphorism to James Carville, but I remember the exact line being penned by Washington columnist Drew Pearson in a political potboiler of his, The President, which I read as a lad in the summer of 1971.

Sorry, James, when it comes to credit for this particular witticism, you didn’t build that.

Today’s case is a reminder to all the states that claim the Massachusetts Rule, the Hawaii Rule, the Virginia Rule and so on that there is nothing new under the sun. Well before those rules came into being, the Washington State Supreme Court grappled with the encroachment issue and reluctantly decided an early version of the Hawaii Rule: where there is encroachment that causes “sensible harm,” the adjoining landowner may either trim back the offending growth or sue to force the tree’s owner to do it.

Ironically, the law (the right thing to do) probably settled for the wrong reason (bad blood between neighbors). We have seen how the Massachusetts Rule began in Michigan. Now, it seems the Hawaii Rule may have started in Washington.  Sorry, Hawaii, you didn’t build that.

Truly, there’s nothing new under the sun.

Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (Supreme Ct. Wash. 1921). A.L. Ryland had owned his place for many years when new neighbors, the Gostinas, moved in next door. A.L. had a Lombardy poplar tree growing about two feet from the Gostina property and a fir tree in the rear of the property, also about two feet from the division fence. In addition, A.L. maintained a creeping vine growing in a rustic box on top of a large stump a few feet from the division fence, and some raspberry bushes and a rosebush near the property line.

About a year after they moved in, the Gostinas had their lawyer write to A.L. to tell him his fir tree branches were overhanging the Gostina property and dropping needles, and that A.L.’s ivy was running under the fence and onto the Gostinas’ lawn. The lawyer demanded that A.L. cut off the fir tree branches where they crossed the boundary line, remove the ivy from the Gostinas’ property, and keep the tree and ivy from encroaching ever again.

A.L. was unimpressed, so the Gostinas brought a suit for abatement of a nuisance. (And we thought frivolous litigation was a recent phenomenon!) A.L. argued that the lawsuit was merely for spite and vexation, and that the Gostinas knew the tree and ivy were there when they moved in. Only after a neighborly disagreement, A.L. claimed, did the Gostinas sue.

The trial court did not care about such nonsense, holding that where tree branches overlap adjoining property, the owner of the adjoining property has an absolute legal right to have the overhanging branches removed by a suit of this character.

The Gostinas appealed.

Held: A.L.’s tree and ivy were a nuisance, and the Gostinas’ claimed damages, although ridiculously minor, were enough to permit them to maintain a nuisance action against A.L. Ryland.

The Court agreed that under Washington law, trees and plants growing into the yard of another constituted a nuisance, “to the extent to which the branches overhang the adjoining land. To that extent they are technical nuisances, and the person over whose land they extend may cut them off, or have his action for damages, if any have been sustained therefrom, and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

From ancient times, the Court said, it has been a principle of law that the landowner has the exclusive right to the space above the surface of his or her property: “To whomsoever the soil belongs, he also owns to the sky and to the depths. The owner of a piece of land owns everything above it and below it to an indefinite extent.” On the same principle, the Court held that tree branches extending over adjoining land constitute a nuisance, at least in the sense that the owner of the encroached land may cut off the offending growth.

A property owner may not “maintain an action against another for the intrusion of roots or branches of a tree which is not poisonous or noxious in its nature. His remedy in such cases is to clip or lop off the branches or cut the roots at the line.” What it came down to, the Court held, was that “the powerful aid of a court of equity by injunction can be successfully invoked only in a strong and mischievous case of pressing necessity” and there must be “satisfactory proof of real substantial damage.”

Here, the Court said, what the Gostinas complained of was “so insignificant that respondents did not even claim them or prove any amount in damages–but simply proved that the leaves falling from the overhanging branches of the poplar tree caused them some additional work in caring for their lawn; and that the needles from the overhanging branches of the fir tree caused them some additional work in keeping their premises neat and clean, and fell upon their roof and caused some stoppage of gutters; and that sometimes, when the wind blew in the right directions, the needles blew into the house and annoyed the occupants. We cannot avoid holding, therefore, that these are actual, sensible damages, and not merely nominal, and, although insignificant, the insignificance of the injury goes to the extent of recovery, and not to the right of action.”

Since the Gostinas had the statutory right to bring an action for abatement of a nuisance and had shown some “actual and sensible damages, although insignificant,” they were entitled to proceed with the suit. “The remainder of the trees will doubtless shed their leaves and needles upon the respondents’ premises,” the Court prophesied, “but this they must endure positively without remedy.”

The Court was not really that fooled: this was a spite suit, but that alone was not disqualifying. While the Gostinas’ action against A.L. “has some appearance of being merely a vexatious suit,” the Court said, A.L. did “admit that the tree boughs do overhang respondent’s lot to some extent. There is sufficient foundation in fact to sustain a case…”

– Tom Root

BLINDED BY THE LIGHT

None of us really knew what the lyrics were to that great piece of mid-’70s music by Manfred Mann’s Earth Band (written and first recorded by Bruce Springsteen). You know, Springsteen wrote the second line as “cut up like a deuce.” It wasn’t until Manfred Mann rewrote the line as “revved up like a deuce” that the mondegreen became a reference to a feminine hygiene product.

But we digress. We’re really talking light and soybeans here. Recently, I read a 2013 book on light pollution called “The End of Night,” completing it all by the light of the nearby church parking lot LEDs that burn at 3 a.m., illuminating the lot and the surrounding neighborhood like a high-security prison.

It all reminded us how soybeans like the dark, and about the plight of Farmer Smalley.

Farmer Smalley raises soybeans in Wyandot County, Ohio. When the Ohio Department of Transportation installed high mast lighting at the US 30/US 23 interchange, Mr. Smalley’s soybeans would not flower and flourish under the bright nighttime lights. This effect is apparently not unknown. He sued the DOT in the Ohio Court of Claims, seeking damages in a self-written complaint.

The Clerk heard the matter administratively and concluded that the lights were not a nuisance, apparently because of the benefit they provided to the motoring public. However, the loss of two acres of beans did constitute a constitutional “taking of property” for which he should be compensated. The damages were pretty meager even for 2007: $512 plus his $25 filing fee.

Still, the Clerk did not dismiss out of hand the notion that light pollution could constitute a nuisance in some circumstances, those where the social benefit of the light was insignificant next to the interference caused to the neighbor.

A few months later, the full Court of Claims reversed the judgment. It held that the Ohio Constitution did not permit compensation for consequential damages to property, only for the actual taking of property. Because of that. Farmer Smalley’s loss was not compensable.

Even so, both the Court and the Clerk apparently accepted the notion that the light pollution damaged Smalley’s property. The damage, however real, could not be compensated.

Smalley v. Ohio Dept. of Transportation, 142 Ohio Misc.2d 27, 869 N.E.2d 777, 2007-Ohio- 1932 (Ohio Ct.Cl., Mar. 15, 2007). Farmer Smalley has a soybean field next to a four-lane highway intersection. The Ohio Department of Transportation constructed high-mast lighting at the intersection in 2005, and since then, Farmer Smalley’s soybeans have failed to mature during the growing season. Smalley was forced to mow down two acres of failed crop, a failure he attributes to the lighting. He lost about 120 bushels of beans, which — at $6.00 a bushel — were worth $720. (These days, they’re $13.25 a bushel).

Farmer Smalley sued the DOT in the Ohio Court of Claims. DOT admitted it had installed the mast lighting, which it said was intended to “safely illuminate the expressway.” DOT argued the installed lights “are the safest and most efficient lighting source given the traffic flow and lighting required at interchanges.” It admitted that light did “occasionally bleed onto adjacent property [and] there is little doubt that defendant’s light encroaches upon plaintiff’s property.” It argued, however, that it could not be held liable for any damage to the plaintiff’s bean crop caused by its light encroachment. It also argued that Farmer Smalley’s cost of raising the beans was $256.47 an acre, reducing his net loss to $512.94.

Held: The Clerk of the Court held that the light pollution was not a nuisance. However, he found that the harm the farmer suffered was different in kind from the harm suffered by the general public, as required to establish a taking under the “Takings Clause” of the Ohio Constitution.

It appears that farmer Smalley filed his complaint himself, because DOT flailed about in its defense as if it wasn’t sure where the farmer was going. It argued at length that its lighting was not a nuisance, because Smalley had offered no proof that DOT was negligent in erecting the lighting. It asked the Court to weigh the benefit that the high mast lighting gave to thousands of motorists against the harm the lights caused the plaintiff in destroying two acres of his bean crop.

The Clerk sagely noted that DOT “… essentially proposed that plaintiff should have to bear a financial burden for his crop loss in a situation where he was legally using his land for a specific valuable purpose and the harm caused was attributable to the acts of DOT.”

He defined an absolute nuisance as a distinct civil wrong arising from the invasion of a legally protected interest, consisting of unreasonable interference with the use and enjoyment of another’s property. Such a nuisance was the doing of anything without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his or her legal rights, or the collecting and keeping on one’s premises of anything inherently dangerous or likely to do mischief, if it escapes, which, escaping, injures another in the enjoyment of his legal rights. A qualified nuisance, on the other hand, was distinguished from absolute nuisance as being dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm which, in due course, results in injury to another.

Considering the utility of the high mast lighting to the motoring public, the Clerk correctly concluded that the lighting was neither an absolute nor qualified nuisance. But that didn’t mean that Mr. Smalley was out of luck. Under the “Takings Clause,” any taking—whether physical or merely depriving the owner of an intangible interest appurtenant to the premises—entitles the owner to compensation. To establish a taking, a landowner must show a substantial or unreasonable interference with a property right, and that interference may involve the physical taking of real property or the deprivation of an intangible interest in the premises. Something more than the loss of market value or loss of comfortable enjoyment of the property is needed to constitute a taking under the “Takings Clause.” The governmental activity must physically displace a person from space in which he was entitled to exercise dominion consistent with the rights of ownership. To constitute a taking, the plaintiff must suffer an actual harm that differs in kind, not just in degree, from that suffered by the general public.

Later, the full court reversed on different grounds, holding that the Ohio Constitution did not permit compensation for less than a full loss of land.

Nevertheless, the notion that light can constitute a nuisance and that a property owner suffering from light shining onto his or her land from another location appears to be accepted.

– Thomas L. Root

YOU PAYS YOUR MONEY AND YOU TAKES YOUR CHANCE

Over the past few days, we have seen several divergent views on boundary tree ownership: the Colorado view that ownership depends on the intent of the property owner; the Illinois view that ownership is determined simply by where the tree is growing; and the Connecticut view that both owners can hack at the branches and roots of a boundary tree with abandon.

Today, a Georgia court adds to the mayhem. In its view, a boundary tree is not the common, undivided property of either owner. Instead, it is owned in “severalty,” a term only a lawyer could love. “Severalty” means that Owner A is the exclusive owner of the parts of the tree on her property. Owner B is the exclusive owner of the parts of the tree on his property, and – in addition (and this is a big “in addition”) – each owner is deemed to have granted an “easement of support” to the other, meaning neither owner can do anything to his or her side of the tree that would kill the other side.

This sounds a lot like the Connecticut rule, except the owners could mess a little with the trunk, as long as it doesn’t mess things up on the other side. What is really interesting is that the case focuses on each owner’s obligation to not let the tree become dangerous to the other. That’s an aspect of boundary tree ownership we haven’t contemplated before.

Just maybe Georgia has something here. We would be more amenable if it could be described without employing the term “severalty.”

But what does this suggest if you’re in a state other than Connecticut, Minnesota, Georgia, Illinois or Colorado? Well, in that case, you pay your money and take your chance.

Willis v. Maloof, 184 Ga.App. 349 (Ga.App. 1987). Mike Maloof was severely injured when a tree fell on him. For more than thirty years as next-door neighbors, Mike assumed the tree belonged to Bill. It turned out that Mike was wrong: the tree actually grew on the boundary between their properties. Mike claimed the tree was diseased and that Bill should be liable for negligently failing to remove or remedy the hazard the tree created. The jury could not reach a verdict, and the trial court denied Bill a directed verdict.

Bill appealed.

Held: Adjoining landowners of a boundary tree do not own the tree as tenants in common, but instead, each owner holds an interest “in severalty” on the part of the tree that rests on his or her side of the line, with an easement of support from the other. Thus, the Court said, Bill is entitled to a directed verdict in his favor, and owes Mike nothing.

The Court admitted that Georgia had never decided the issue of ownership and control over a boundary tree. The Court analogized the issue to the rule applicable to party walls. By owning the part of the tree on his or her property, each of the landowners “has an interest in that tree, a property in it, equal in the first instance to, or perhaps rather identical with, the part which is upon his land; and in the next place embracing the right to demand that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole.”

As with a party wall, parties who own a boundary tree have a duty to maintain it and take reasonable steps to guard against any hazardous condition it may pose.

In this case, the Court said, Mike had presented no evidence that Bill had breached his duty to maintain the tree. A tree owner is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition. He or she has no duty to “constantly check all… trees for non-visible rot as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.” Bill worked around the base of the tree often as he cultivated a vegetable garden in his yard near the tree, year after year. He denied any knowledge that the tree was diseased and denied seeing any evidence that would lead him to suspect the tree was unhealthy.

Mike’s expert, who inspected the tree after it fell, testified that at least three visible conditions told him the tree was diseased and posed a hazard. The bark at the base of the tree curved under instead of outward, indicating to the expert that the tree was virtually devoid of roots. A cavity or hollow in the side of the tree and fungus growing on the bark indicated to the expert that the tree was decaying. The expert said that in his opinion the average person’s “attention would have been drawn” to these conditions.

The Court didn’t bite. “Even assuming defendant should have noticed these conditions, the appellate panel could identify “no evidence… from which a jury could find that defendant should reasonably have known the tree was diseased. The expert witness testimony was enough for a jury to find that the tree was in fact diseased. However, the testimony of the expert witness did not establish that a layman should have reasonably known the tree was diseased.”

Although each owner had an exclusive right to the part of the tree on his side of the boundary, the distinction was irrelevant to the duty to maintain a single, indivisible tree. The disease in this tree was systemic and not confined to one side of some imaginary line. Therefore, the duty to maintain the tree could not be apportioned on some pro-rata basis depending on the percentage of the tree’s girth that grew on either side of the property line.

Bill’s only duty was that of the reasonable man. The law did not charge him with an expert’s understanding of the inspection, care and maintenance of trees. Even Mike admitted he did not think the tree in question was dangerous or defective. Several other neighbors also testified that the tree was bearing green leaves when it fell and did not appear diseased. Because Mike failed to present any evidence that Bill was or should have been aware that the tree was hazardous, Bill was entitled to a directed verdict, and one should have been granted.

– Tom Root

NIGHT OF THE ATTACK ROOSTERS

There is little doubt that we in this country enjoy pampering like nowhere else. Animals we once ate for sustenance (or because they tasted good) are now our pets: not only dogs and cats, but Vietnamese pot-bellied pigs, hedgehogs, and even emotional support ducks.

(This has nothing to do with Haitians, dogs and cats, or Springfield, Ohio. Thanks to our “STRONG AND SMART (High IQ!) PRESIDENT,” (Trump’s words, not mine) the Haitians will be gone soon enough, anyway.

And when we jet off to LA for the Oscars, or Cannes for the movies, or even Munich for Oktoberfest, we need a pet sitter to watch our precious Fluffy. Someone like Josie Gilreath, Professional Pet Sitter.

Come to think of it, Josie – a proud member of the National Association of Professional Pet Sitters (motto: “The ONLY national non-profit organization for professional pet sitters”) – might not be available. She’s still convalescing after a particularly harrowing pet-sitting experience after an encounter with Bruce and Jodi Smith. While watching the Smiths’ chickens, Josie was injured by the Smiths’ attack rooster, who was apparently doing what attack roosters do: attack. The kerfuffle left Josie with a serious infection, having long-term consequences.

Josie sued, complaining that the Smiths were liable, but the trial court wasn’t buying it. Maybe it was Josie’s 9 years of experience as a professional pet sitter. Maybe it was the sign in the Smiths’ yard that said “CAUTION – AREA PATROLLED BY ATTACK ROOSTER SECURITY CO.” Maybe it was the fact Josie had worked for the Smiths before and had been warned, “Rooster Will Attack!” Of course, it could have been that Jodi Smith had advised Josie to use a garbage can lid for defense against the rooster.

Whatever the reason, the court held Smiths had not withheld any information from Josie, and that by taking the pet-sitting job, Josie had assumed the risk that the rooster would assault her. Thus, she collected nothing.

Interesting story, one might think, if you own a rooster. True enough, but there’s a tree lesson here. Josie held herself out as a specialist in pet sitting. Like a homeowner who knows she has a danger tree and hires a tree service to remove it, the Smiths had no duty to give Josie any special warnings. Ordinarily, the Court said, “there is no duty to give warning to the members of a profession against generally known risks.”

Josie was a professional pet sitter with nine years of experience and admitted she had a responsibility to educate herself about the animals she cared for, yet she failed to do so for roosters. The Court held that the Smiths cannot be blamed if Josie failed to inform herself of those risks.

Likewise, a tree service hired to remove a dangerous tree has no right to expect the homeowner to warn of dangers associated with the job.

Gilreath v. Smith, Case No. A16A1747 (Ct.App. Georgia, Feb. 17, 2017). While pet-sitting for Bruce and Jodi Smith, Josephine Gilreath was attacked and injured by the Smiths’ rooster, which caused a serious infection with long-term consequences. Gilreath sued, but the trial court granted summary judgment in favor of the Smiths on the ground that Gilreath assumed the risk. Gilreath appealed.

Held: Josie Gilreath cannot collect damages because she assumed the risk.

For nine years, Josie was self-employed as a pet sitter doing business as Crabapple Critters. During that time, she cared for “horses, dogs, cats, all sorts of animals.” Josie belonged to the National Association of Professional Pet Sitters, an organization so august that it even has a website. Although she had briefly worked on two farms caring for horses before working for the Smiths, Josie had no training or experience with chickens. As a pet sitter, Josie has a responsibility “to a point” to educate herself about the animals she would be working with, but before accepting the job with the Smiths, she had not researched how to care for roosters and had not heard anything about their temperament.

For several years before the incident, the Smiths had three dogs and some chickens, including at least one rooster named Sam. The chickens, including Sam, were kept in a coop that had two signs on it, one that said “WELCOME” and one that said “CAUTION AREA PATROLLED BY ATTACK ROOSTER SECURITY CO.” Sam had previously attacked Jodi Smith and her mother, but the Smiths never told that to Josie.

Josie provided pet-sitting services to the Smiths twice before, including taking care of the chickens. Once, the Smiths hired Josie to watch the animals for four days and instructed her on proper chicken feeding. This included, among other things, opening the coop door to fill the water dishes. Jodi Smith told Josie, “You do not have to fill them up if you feel uncomfortable with Sam the Rooster. I use a garbage can lid to separate myself from him.” Another time, Jodi gave Josie a note to “Just throw food into cages. Rooster will attack!”

The third time, the Smiths gave Josie no further instructions but asked her to collect eggs from the chickens. When she tried to do so, the rooster attacked. It was ugly.

The Court held that Josie assumed the risk of injury because she fully appreciated the danger involved and, with her freedom of choice limited by neither circumstances nor coercion, deliberately chose an obviously perilous course of conduct.

The Smiths had to show that Josie knew of the danger, understood and appreciated the risks associated with it, and voluntarily exposed herself to those risks. The Court said that “knowledge” does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

Here, the Court said, Josie had been warned of the relevant danger during her prior pet sitting, that the rooster would attack and that a garbage can lid was useful for controlling the rooster. Josie claims that if she had known that the rooster had actually attacked Jodi Smith and Jodi’s mother, she “probably” would not have taken the job. But the Court said that was a distinction without a difference: being warned that the rooster will attack is the same as having been warned that the rooster had attacked in the past.

Josie has no evidence the Smiths had superior knowledge of the risks. Although the Smiths knew that the rooster had attacked two people, there is no evidence that they knew that the rooster could cause wounds or infections of the sort that Josie suffered. Ordinarily, there is no duty to give warning to the members of a profession against generally known risks. And Josie, an experienced and professional pet sitter, admitted that she had a responsibility to educate herself about the animals entrusted to her care but failed to do so for roosters. “The Smiths cannot be blamed,” the Court said, “if Josie Gilreath failed to inform herself of those risks.”

Finally, the Court said, Josie admitted she chose to take the job knowing she had been told the rooster would attack. She admitted that she could have turned down the job but chose not to. The Court found she had equal knowledge of the danger and risks and acquiesced in exposing herself to the risk without taking any precautions.

– Tom Root

TREE TRESPASS LOTTERY

Today’s case has a lot of moving parts. First, we have the classic setup for treble damages. A neighbor is repeatedly told his beliefs about his property boundaries are wrong, but he pigheadedly ignores the news he doesn’t want to hear. After the inevitable trespass results in the butchering of hundreds of trees, the unhappy victims – who don’t want justice as much as a pound of flesh – decide to pile on with multiple experts, each describing the loss a little differently. Finally, a plaintiff’s lawyer screws up on a minor, technical rule of pleading, costing his clients money in the process.

In any fair contest, the Linebargers should have gotten treble damages from their neighbor George. How many times do you have to be put on notice that your purported property lines place you at risk of committing a whopper of a timber trespass before you check your figures, just to be safe?

Still, the punishment ought to fit the crime. Like the Alaska case we considered a few months ago, compensation for loss is one thing. But a lottery ticket that would score you two-thirds of the fair market value of your 30-acre spread for the loss of 4 acres of trees just seems wrong.

No one should quibble with the Linebargers getting treble damages. Pigheaded George had it coming. But their lawyer somehow forgot to ask for treble damages in his complaint, or even at trial. A basic tenet of procedural due process is that a defendant should get notice of what the plaintiff wants to stick him or her with, and an opportunity to put on as good a defense as the defendant can muster and the law allows.

In today’s litigious world, the Linebargers would have gone after their lawyer’s malpractice policy the day after the appeals court ruled.

Linebarger v. Owenby, 79 Ark.App. 61, 83 S.W.3d 435 (Ark.App. 2002). George Owenby’s property lies south of a heavily wooded, 30-acre tract owned by Jerry and Margaret Linebarger. The Linebargers bought the northern 20 acres in 1976 and built a weekend cabin there. They bought the southern 10 acres in 1993 to buffer their cabin from neighboring lands.

In 1998, George sold the timber on his tract to Canal Wood Corporation. Canal Wood began cutting in the fall of 1998 and, in the process, cut 329 trees from the southern 10 acres of the Linebargers’ land. Jerry complained that he had tried to tell George for years that a 1987 survey George used to establish his boundary was wrong and that a more recent survey was available.

As late as December 1997, when George told Jerry he was thinking of selling his timber, Jerry reminded George of the boundary problem and asked George to call him before proceeding. Heedless of this good advice, George made his deal with Canal. When Canal noticed evidence that the boundary differed from what George had indicated, George provided Canal with the 1987 survey. In reliance on the wrong survey, Canal marked the acreage in such a manner that some of the Linebargers’ trees were cut.

Jerry and Marge finally got George’s attention by suing him and Canal for trespass and destruction of trees “that had been used for shade and beauty.” They asked for damages to replace the lost trees, attorney fees and costs and anything else to which they might be entitled. At trial, the Linebargers offered testimony from three experts on the damages they suffered. One expert, Bill Kelly, said the stumpage value of the cut trees was $1,081.60 and that it would cost $643.50 to prepare the site for re-planting. Another expert, real estate appraiser Wayne Coates, testified the market value of appellants’ property was $68,000 before the cutting and $62,000 afterward (which included $3,000 in clean-up costs). A third expert, Al Einert, valued each tree that had been cut and determined the total value of the trees to be $44,702. Naturally, the Linebargers liked Al’s number the best.

The trial judge found that Canal failed to obtain a survey before cutting the trees and trespassed on the Linebargers’ land because George intentionally failed to disclose the correct survey. However, the judge found that the $44,702 damage figure Al testified to was disproportionate to the land’s fair market value. He awarded the Linebargers $5,000 for the reduction in value of their land, based on Wayne Coates’s testimony, plus $1,081.60 stumpage value and $643.50 in clean-up costs, based on Bill Kelly’s testimony.

The Linebargers appealed.

Held: The replacement value of the trees was grossly disproportionate to the diminution of the land value, and would be a windfall for the Linebargers.

The Linebargers complained that the trial court should have awarded them the $44,702 replacement value of the trees. Arkansas courts have recognized that when ornamental or shade trees are injured, the use made of the land should be considered, and the owner should be compensated for the cost of replacing the trees. However, fact situations may arise in which recovery of the replacement cost of trees would yield a result grossly disproportionate to the fair market value of the land and thus would be an inappropriate measure of damages. The evidence in each case determines which measure of damages to use.

Here, the trial judge acknowledged the Linebargers had used their trees for screening and shade, and he gave due consideration to the replacement measure of damages. However, he found that most of the trees cut were behind and over the crest of a hill from Jerry and Marge’s cabin, which tended to reduce the harm they suffered. After all, you can’t derive shade from trees you can’t see. He also found that the replacement cost of the trees would be disproportionate in relation to the fair market value of the land.

The Court of Appeals agreed. “We cannot say that the trial judge abused his discretion in making the damage award,” the Court wrote. “Although he recognized that an award of replacement value might be possible, he declined to use that measure of damages because 1) the cut trees were behind and over a crest from the cabin, and 2) the replacement value would be disproportionate to the land value. The location of the cut trees in relation to the cabin is a legitimate factor to consider. The trees provided only minimal shade, ornamental, or landscaping value to the appellants’ residence.”

The appellate court clearly found that if George paid the Linebargers the full replacement value of $44,702 for trees cut on 4.29 acres, Jerry and Marge would have received 67% of the value of the entire 30 acres as a whole (including the cabin). Such an award would exceed the stumpage value of the cut trees by over $43,000.

The Linebargers cited Ark. Code Ann. § 18-60-102 (a), which provides that if a person cuts down another’s tree, he may be liable for treble damages. Here, the Court noted that the trial judge found the wrongful cutting occurred through George’s intentional conduct. In cases of intentional wrongdoing involving the cutting of trees, the victim may recover treble damages. But despite finding intentional conduct, the judge declined to award treble damages, based on the idea that a court of equity cannot award treble damages.

The judge was right, the appellate court said, but for the wrong reason. Jerry and Marge did not request treble damages in their pleading, nor does the record show that they notified George and Canal at trial that they would seek exemplary (punitive) damages. A defendant is entitled to be given adequate notice of the remedy he or she will be confronting. An award of treble damages would have been inappropriate absent the Linebargers’ pleading for them or the issue being tried with the parties’ express or implied consent.

– Tom Root

FISTS, NOSES AND TREES

Everyone’s heard the old legal canard that “your liberty to swing my fist ends where my nose begins.” Imagine your nose is a 65-foot-tall maple tree, and my fist is a backhoe. Good luck with that – most imaginations aren’t quite that agile.

Here’s the problem we’ve been looking at the past several days. We all know about “self-help,” the venerable old Massachusetts Rule that limits a landowner to trimming away encroaching branches and roots from a neighbor’s tree up to the property line. Michaelson v. Nutting – and virtually every encroachment case decided in the eight decades since that decision – has given a property owner the right to trim back a neighbor’s tree to the boundary without any limitation.

At the same time, we all know about boundary trees, those trees whose trunks enter the earth smack on the property line, so that tree is attached to the ground in both properties. Boundary trees are special, and the general rule is that neither property owner may trim the tree without the other’s consent.

But what happens when a neighbor’s tree is not on the boundary, but so encroaches on a landowner’s property – both above ground and below ground – that the practical effect of the landowner’s Massachusetts Rule self-help will be to kill the tree?  Well, like many things in life, that depends… In Washington State, the tree’s death is just so much collateral damage, and tough luck to the tree’s owner. In California and New York, on the other hand, it’s Mr. Rogers’ Neighborhood: the Massachusetts Rule yields to the imperative that the tree not be harmed.

Remember King Solomon? When two women appeared before him arguing over who was the mother of a baby, the King proposed settling it by cutting the baby in half so each woman would get 50 percent of the child. That threat was enough to smoke out the imposter. In today’s case, dividing the tree in half would have had the same effect as cutting up the infant (albeit with less blood).

The Alvarezes own a nice place in Vermont, complete with a view of Lake Champlain. They have a 65-year-old maple tree next to the property line of their neighbors, the Katzes. It was close, but the base of the tree was entirely on Alvarez’s property, so it was not a boundary tree.

The tree had been standing for almost seven decades. In fact, when the Alvarezes bought the property 20 years ago, the maple had already sent roots and branches across the boundary between the two parcels.

The Katzes, who also enjoy a view of Lake Champlain, have planned for years to add on to their house, essentially doubling its size with a two-story addition. The only problem – or at least, the only problem we care about – was the maple tree. To add on, the Katzes would have to cut away about half of the maple tree’s branches and roots, in all likelihood killing the tree.

The Alvarezes and Katzes tried to resolve the problem amicably, but – just as happened with the women in front of King Solomon – there really wasn’t any middle ground. Either the Katzes would get their way, building onto their house and killing the tree, or the Alvarezes would have it their way. Like Dr. Seuss’s north-going and south-going Zax, neither neighbor would budge.

But then Katz somehow learned all about the Massachusetts Rule. It dawned on him that he could cut back the offending maple tree to the property line, both roots and branches. Sure, the tree might die, but the Massachusetts Rule said nothing about what happened to the tree after a neighbor used “self-cutting” trimming on it.

The Alvarezes ran to court and obtained an injunction against Katz. The trial court found that trimming the tree as Katz proposed would probably kill it. The injunction prohibited cutting away only about 25 percent of the tree, about half of what the Katzes needed for their ambitious plans.

The Katzes appealed, and the Vermont Supreme Court threw out the injunction. It held that the Massachusetts Rule was a blunt object, and had always been one. A landowner owns everything above and below ground level, and that owner can cut anything he or she wants to cut, without regard for the effect of the cutting. The Court said that was the law in Vermont and just about everywhere else.

The Supreme Court seemed a little uncomfortable with its decision, but it ruled, in essence, that the law is the law, and that’s the way Vermont had always done it. It noted, in a hint that was as subtle as an anvil, that in cases where Massachusetts-style self-help had been limited – such as in Booksa v. Patel – the theory that had been advanced was that of nuisance. In other words, the Alvarezes could have argued that Katz’s proposed trimming would so endanger the tree that it would interfere with their enjoyment of their property. Recall in Booksa, the court ordered the defendant to trim the encroaching tree reasonably. The Vermont Supreme Court telegraphed that it would probably have done the same if the Alvarezes’ lawyer had only thought to make the argument. Oops.

Alvarez v. Katz, 124 A.3d 839, 199 Vt. 510 (Supreme Court of Vermont, 2015). The Katzes own property in South Burlington in the Shelburne Bay area. The Alvarezes own the adjoining lot just to the north of the Katzes. The Alvarezes have a 65-ft. tall maple tree, and its trunk is located entirely on their property. About half of the branches and roots from the tree cross the property boundary and encroach onto the Katzes’ lot. Some roots extend under the Katzes’ existing deck.

For several years, the Katzes have sought to expand their home by adding a two-story addition on the rear. The plans for the addition would require cutting the roots and branches encroaching on their property. This could encompass up to half of the tree’s roots and branches.

The Alvarezes and the Katzes have been unable to resolve the maple tree issue amicably. In 2013, when the Katzes considered taking unilateral action to trim the tree’s roots and branches, the Alvarezes filed for an injunction. The superior court found it more likely than not that removal of 50% of the tree’s roots and branches would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting. The court employed what it called the “urban-tree rule,” under which trimming the roots or branches of an encroaching tree may be proscribed if the trimming will destroy the tree. The injunction barred the trimming of more than 25% of the roots and branches of the tree.

The Katzes appealed.

Held: The injunction was vacated. The Supreme Court reaffirmed “Vermont’s long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree.”

Vermont has long recognized that property ownership includes what is below the ground and what is attached overhead. The right has been clear for almost 100 years, since Cobb v. Western Union Telegraph Co., (a 1916 decision that stated the Massachusetts Rule before there ever was a Massachusetts Rule). Cobb held that “it is a sound principle that where a tree stands wholly on the ground of one and so is his tree, any part of it which overhangs the land of an adjoining owner may be cut off by the latter at the division line.” The Supreme Court criticized the trial court for conjuring up an “urban-tree rule” that would be an exception to Cobb. The trial court had considered this case to be one of first impression in Vermont because of the anticipated adverse – and likely fatal – effect the root-and-branch cutting would have had on the encroaching tree. The Supreme Court held that any attempt to “distinguish” Cobb, that is, to find that the Cobb case was somehow different just because the Cobb tree was located in a rural setting, was wrong.

Further, the Supreme Court said, the “urban-tree rule” does not enjoy the support attributed to it by the trial court. Outside of two cases, the California decision in Booksa and one obscure New York decision, the Massachusetts Rule (which maybe we should have called the “Vermont Rule”) enjoys extremely widespread support. What’s more, the Court reasoned, the Vermont legislature has had 99 years to modify the Cobb holding by statute, and it has not bothered to do so. The Supreme Court concluded that the “right to cut encroaching trees where they enter the land of another, without regard to the impact on the encroaching tree by such cutting, is well-established under Vermont law.”

The Supreme Court noted that at common law, the right to cut encroaching boughs and roots historically counterbalanced a landowner’s right to grow shade trees on his land, regardless of the impact those trees may have in casting shade or encroaching upon the neighboring property. Common law provided no claim for damages caused by encroaching roots or branches. Instead, the remedy was one of self-help, allowing the cutting of roots and branches to the extent of encroachment.

Where other jurisdictions have departed from the common-law rule and allowed actions for damages as a result of encroaching roots or branches, they have generally relied upon nuisance principles. Even where such actions have been permitted, those jurisdictions continue to recognize the right to self-help. In this case, the Alverezes did not raise a nuisance claim, so “the issue of whether a nuisance claim might exist for the encroachment of roots and branches from the Alvarezes’ tree is not presently before the Court.”

The Supreme Court defined the conundrum as follows: “[T]his case presents the competing interests of neighboring property owners. On the one hand, [the Katzes] have an interest in using their land, which they have purchased and upon which they pay taxes, as they see fit, within permissible regulations, free from limitations imposed by encroaching roots and branches from the neighbors’ tree, which they did not invite and for which they receive no benefit. The Alvarezes seek to restrict the use of the Katz property by preventing the removal of branches and roots on land that is not theirs and for which they have given nothing of benefit to [the Katzes] for suffering the encroachment. On the other hand, the Alvarezes wish to continue to enjoy their tree, which has been there for many years, without placing its viability in peril due to the construction that [the Katzes] wish to undertake.”

The Court observed that if the Alvarezes had the right to have their tree encroach onto the neighboring property, the obvious next question would be to what extent the encroached-upon property owner must suffer such an encroachment. The Supreme Court admitted that on some occasions the “exercise of self-help may result in the immediate or eventual loss of an encroaching tree, given the long-recognized rule in Vermont and its widespread support elsewhere, we decline to depart from the common-law rule in favor of the approach adopted by the superior court.”

– Tom Root