Case of the Day – Tuesday, June 19, 2018

TRESPASS, GEORGIA STYLE

fromgvt170111When the Upper Oconee Water Authority started building a new reservoir, its consulting engineer needed to use the Walls’ property to let its subcontractor have access to a drainage pipe. “Just a little easement, ma’am,” the engineering firm told Mrs. Walls. “And we promise not to cut down any trees.”

Of course you promise not to. And we believe you. Right?

You guessed it — the contractor promptly started cutting down the Walls’ trees. Then – adding insult to injury – after the contractor was done with the drainage pipe, the Walls’ property flooded. After repeated complaints to the engineer got no satisfaction, the Walls sued.

The trial court threw the case without a trial. But on appeal, the Walls won back their trees (or at least their right to fight for them at trial).

Initially, it didn’t sound like a win. The appellate court began by ruling that the Walls failed to prove that the engineer and its contractors caused the pooling water. Instead, the Walls only proved the water appeared after the contractors’ work, not that the contractors’ work caused the standing water. The Walls had engaged in the classic logic fallacy of post hoc, ergo propter hoc. Just because the water followed the contractors doesn’t mean the water was caused by the contractors.

Classic "post hoc ergo propter hoc" reasoning ... but then, he's a dog. What can you expect?

Classic “post hoc ergo propter hoc” reasoning … but then, he’s a dog. What can you expect?

But as for the trees, the Court said, the Walls had a right under Georgia law to be secure in their property. The engineers were responsible for supervising their contractors, given that the engineering firm’s representative told Mrs. Walls that he would stop the tree cutting. A jury could have found that the engineering firm was liable for the damages arising from the trespass. Therefore, the Court sent the case back for trial.

Walls v. Moreland Altobelli Associates, Inc., 290 Ga.App. 199 (Ga.App. 2008) The Walls live on a large piece of land along Highway 330 in Jackson County. In 1999, the Upper Oconee Basin Water Authority bought the land across the highway from the Walls’ residence to build a water reservoir. The Water Authority hired Moreland, a civil engineering firm, to manage the reservoir construction.

Hank Collins, a construction manager with Moreland, began overseeing several construction projects to be completed by Maxey Brothers Construction. One of those involved replacing a drainage pipe under Highway 330 and re-grading the area to allow proper drainage from the Walls’ property to the reservoir side of the road. Before the project began, a Moreland representative asked the Walls to grant the Water Authority a temporary easement along the front of their property to permit workers to complete the drainage work. The representative assured Mrs. Walls that the construction would not disturb any trees on the property and would only minimally affect the land. Based on these assurances, Mrs. Walls signed the easement.

Imagine the Walls' surprise ...

Imagine the Walls’ surprise … could it be that the contractor was somehow a little less than candid?

But when Maxey Brothers began work on the Walls’ property, the contractor promptly started cutting down trees. Mrs. Walls immediately called Collins, who apologized, stating that the trees should not have been cut and that “he would stop it immediately.” Collins also promised that Moreland would replace or pay for the cut trees. Although Mrs. Walls discussed the trees with Collins several times over the next year, Moreland did not pay for the tree loss. In the meantime, the Walls noticed that during heavy rains, standing water would accumulate on their property near the opening to the new drainpipe. The Walls had never experienced standing water before the construction. Mrs. Walls wrote to Moreland about both the water and tree removal, but Moreland did not remedy her concerns. Instead, it referred her complaints to the Water Authority, which investigated the situation. The Water Authority offered to repair the drainage area along the Walls’ property and pay $100 to settle the tree claim.

The Walls sued Moreland for trespass and nuisance, alleging that a work crew supervised by Moreland cut trees on their property without permission, improperly installed the drainpipe, and created a standing water nuisance. The Walls sought compensatory and punitive damages and attorney fees. The trial court tossed the case out. The Walls appealed.

Held: The Court of Appeals split the case, upholding the trial court on dismissing the nuisance claim but reversing on the damage to trees claim. As for the standing water claim, the Walls offered no evidence that the work overseen by Moreland caused the water problem. To be sure, the Walls said they hadn’t had the problem before the construction, but the mere fact that one event chronologically follows another is alone insufficient to establish a causal relation between them.

Moreland also produced evidence that following the project’s completion, a utility company laid underground cable in the area and Jackson County installed a water line along the road, both of which altered the grade. And Collins testified that Mrs. Walls first complained about the water problem after the utility company worked in the area. Because the Walls failed to link the work performed by Maxey Brothers and Moreland to the drainage problem, they did not establish causation.

AidAbet140415However, the trial court shouldn’t have booted the Walls’ claim for trespass based on the tree cutting. Georgia statutes provides that the right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie. Cutting trees on property owned by another, the Court say, may result in a trespass under OGCA § 51-9-1. The evidence showed that the Walls objected to any tree cutting, and a Moreland representative assured Mrs. Walls that the work would not affect any trees. Mrs. Walls also testified that when she confronted Collins about the tree cutting, he stated that trees should not have been cut. Under these circumstances, a jury could find that the tree cutting exceeded the permitted entry onto the Walls’ property.

While Maxey Brothers actually felled the trees committed the trespass, Moreland was responsible for overseeing Maxey Brothers’ work and ensuring that it complied with the project plans, which, according to at least some evidence, did not involve tree cutting. Moreover, Collins knew that Maxey Brothers planned to cut trees on the Walls’ property, but did nothing to stop the work.

Based on this evidence, the Court said, a jury could find Moreland liable for trespass. One who aids, abets, or incites, or encourages or directs, by conduct or words, in the perpetration of a trespass is liable equally with actual trespassers. This is an important expansion of liability for trespass. Often the trespasser is a mere functionary. The party who put the wheels in motion to cause the trespass – and, incidentally, who has the deep pockets – is the aider or abettor. Being able to reach such a defendant is crucial.

– Tom Root

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Case of the Day – Monday, June 18, 2018

I WANT MY TREES BACK…

A long, long time ago, before I was trained to think like a lawyer, I was a neophyte law student and still thinking like a layman, that is to say, “normally.” New law students are first exposed to contract law. Digging into Basic Contract Lawthat boring-looking brown tome that was chock-a-block with fascinating cases, I very quickly ran into Peevyhouse v. Garland Coal Co. (on the second day of class, I recall).

Farmer Peevyhouse signed a deal with Garland Coal Co., to strip mine his land. The land was hilly, and Farmer P thought the strip mining was the ideal time to fix that. So he got Garland Coal to agree the level the land when it was done strip mining.

Garland Coal left a lot of hills behind…

When the coal was gone, so was Garland Coal, leaving the farm just as hilly as it was before the mining. Farmer Peevyhouse sued for breach of contract. He won, of course, but when it came to figuring damages, the court noted that the diminution in value of the farm because it was still hilly (as opposed to flat) was $5,000. But if Garland Coal were required to come back to keep its promise to level the place, Garland Coal would have to spend $25,000 to pull it off. The higher award would constitute economic waste, the court held, and the court was not about to be wasteful with the coal company’s money.

Back then, as a tyro-at-law, I couldn’t understand the decision. Who cared if the damages were wasteful, or if the market value of the farm was only slightly less? To me, Farmer Peevyhouse made a deal, Garland Coal agreed to the deal, and – inasmuch as Garland got all the coal it bargained for – Farmer P should get what he bargained for as well, economics be damned. To me, the economics did not matter nearly as much as did the reasonable expectations of the parties.

Now, with many years of practice under my belt, I tend to think like a lawyer. But Peevyhouse still makes no sense to me. The farmer would not have let Garland Coal strip his land without the promise to level the hills. So the promise was material to the farmer. Why reward Garland Coal simply because Mr. Peevyhouse’s legitimate desires might not make great economic sense?

In The Princess Bride, Inigo Montoya ends his years-long quest to avenge his father’s untimely death in a fight to the death with the six-fingered man. At last, Montoya has the tip of his sword at Count Rugan’s throat:

Inigo Montoya:   Offer me money.
Count Rugen:     Yes!
Inigo Montoya:   Power, too, promise me that.
Count Rugen:     All that I have and more. Please…
Inigo Montoya:   Offer me anything I ask for.
Count Rugen:     Anything you want…
[Rugen knocks Inigo’s sword aside and lunges. But Inigo traps his arm and aims his sword at Rugen’s stomach]
Inigo Montoya:   I want my father back, you son of a bitch!

That, on a less dramatic level, was Paul Harder’s complaint. As we read in last Friday’s installment on this case, while Paul was gone from Alaska, Joel and Darlene Wiersum clear-cut his land without permission in order to improve their view. In seeking money to restore his property – a sum that came to something like four times the fair market value of his land before the clear-cutting – Paul told the jury he “didn’t want money,” but rather he only wanted his trees back. Paul  therefore asked for damages to restore the property by replanting the forested area.

Count Rugen could give Inigo money and power and land. But he could not give Inigo what he wanted the most, a desire that was heartfelt if utterly infeasible (and rather uneconomical). In that regard, Inigo Montoya and Farmer Peevyhouse had something in common. The question is whether they both had something in common with Paul Harder. We’ll find that out now…

Wiersum v. Harder, 316 P.3d 557 (Alaska, 2013). Paul Harder owned a pretty nice piece of Alaskan wilderness near Kodiak. He built a cabin on it and lived happily for quite a stretch. But when wanderlust set in, he subdivided the land, sold the plot with the cabin on it to his sister Lisa and kept one for himself, and left for a 15-year sojourn in warmer climes.

Paul lived in Hawaii, but returned to visit his plot of land occasionally, and enjoy the hunting, fishing and recreation opportunities it afforded.

About nine years after Paul went south, Joel and Darlene Wiersum bought some land at the top of a hill, adjacent to the Harder tracts. Looking down the hill, they could see Lisa’s cabin several hundred yards below, and incorrectly assumed she owned it all. One day, Darlene called Lisa at work, and asked whether they could cut down some trees on Lisa’s property that Darlene thought might “come down with the wind” and hit their home. Lisa gave them permission, because she thought the removal of some trees would “let a little more light in” to the woods.

Darlene and Joel did not just thin out a few hazard trees. Instead, they clear-cut the entire hill, out to almost 400 feet beyond their property line. When Lisa returned home to find that bare naked hillside, she told the Wiersums not to cut any more trees.

When Paul returned a couple of years later, he discovered the clear-cut hillside (which really was on his plot, not that of his sister), and promptly sued the Wiersums for timber trespass. A jury him $161,000 in compensatory restoration damages, which was trebled under Alaska statute AS 09.45.730.

The Wiersums appealed.

Held: The jury’s restoration damage award was reversed and sent back for retrial.

A party who is injured by an invasion of his or her property that does not totally destroy its value may choose as damages either the loss in property value or “reasonable restoration costs.” To determine whether an award of restoration costs is appropriate, Alaska follows the Restatement (Second) of Torts § 929. The Restatement says if a plaintiff is entitled to damages for harm to land resulting from a trespass that does not amount to a total destruction of value, the damages include either (1) the difference between the value of the land before the harm and the value after the harm, or – if the plaintiff so chooses – the cost of restoration that may be reasonably incurred. Damages are measured by the difference between the value of the land before and after the harm only if the cost of restoring the land to its original condition is disproportionate to the loss in the value of the land caused by the trespass “unless there is a reason personal to the owner for restoring the original condition.”

That’s the law for you. A layman untrained in legal niceties would say “a personal reason,” but the legal phrase is a “reason personal.” The distinction is intended to convince you that the law must be complex, and thus you ought to pay that “bill inflated” your lawyer hands you without whimper.

A “reason personal,” the Court said, is a reason peculiar or special to the owner, where “the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.” For example, the Court in the past had found a “reason personal” where the damaged property was used by the plaintiff as “a showplace in connection with his nursery business” and, in another case, where the property enjoyed “unique views… abundant trees, and the unusual juxtaposition of the trees, the cabin, and the views,” and its owners, who planned to retire on the property, had testified that “other properties in the area were not comparable.”

To find that a plaintiff had a “reason personal” for restoration, where those costs were much higher than the loss of value to the land, a court should look for evidence showing “a reasonable likelihood that the trees would be restored.”

Paul showed at trial that he held on to the Monashka property for 34 years, and that he intended to build a house and live on it once his son graduated from college because “it’s a very beautiful piece of property.” A real estate agent testified that he approached Paul about selling the land, but Paul had refused. Paul testified he “didn’t want money,” but rather he only “wanted his trees back” and was asking for damages to restore the property by replanting the forested area. He said he enjoyed spending time with his children on the property, but that after the trees were cut down, the property “looked totally different,” full of salmonberry bushes… whereas it was just like thick moss before,” and he reported that he had not heard any ravens there since the trees were cut.

The Wiersums argued the award of restoration damages was objectively unreasonable because the total market value of Paul’s property before the timber trespass was only $40,000. A damage award of $161,000, they contended, was disproportionate to the property’s diminution. Besides, peripatetic Paul’s “minimal use of and contribution to the land’s special value would at most justify a marginal award of restoration costs.”

The Court noted it had found in the nursery case that restoration damages were not “grossly disproportionate” where the owner had paid $4,000 per acre for the property, but the jury awarded $12,550 for restoring a quarter-acre of land. Because the principal value of the property stemmed from the creek running through it, and the owner intended to use the property to create “a showplace in connection with his nursery business,” the cost of restoration, although disproportionate to value, was reasonable. Nevertheless, the Court had previously cautioned that “restoration costs exceeding diminished market value may be awarded only to the extent such added costs are objectively reasonable in light of the ‘reason personal’ and in light of the diminution in value.”

The “reason personal” may be a non-commercial one based on the property’s uniqueness, but the restoration award must be limited to the cost that has been or may be reasonably incurred.  The purpose for this rule, the Court said, is “to reduce the economic waste that occurs when a party incurs repair costs in excess of the diminished value of the property.” The application of this principle “must ensure that an award of restoration damages does not confer a windfall upon a landowner.” Where proposed replacement costs are excessive in relation to the damage caused by the trespass, “the achievement of a reasonable approximation of the land’s former condition may involve something less than substantially identical restoration… It may be more appropriate to award costs for the planting of saplings, or a few mature trees, or underbrush to prevent erosion and achieve a lesser but, over time, reasonable aesthetic restoration.”

Applying these principles to Paul’s denuded hillside, the Court held that the award of $161,000 in restoration costs was objectively unreasonable in light of the $40,000 pre-trespass total value of the property. Paul’s “reason personal” for restoration, and the absence of any proof of the extent of the decrease in the value of his property, made it more appropriate to award costs “for the planting of saplings or a few mature trees or underbrush to prevent erosion and achieve a lesser but, over time, reasonable aesthetic restoration.” The Court’s conclusion was based on its determination that the “property could be reasonably restored by replacing at least some of the mature Sitka spruce with saplings or smaller trees and that because the property’s large trees were growing in a forested environment where the root zones were intertwined” it was not possible to ” replace that exact tree in that environment.”

The jury must base its award on a finding that the restoration costs were objectively reasonable in light of the value of Paul’s land, the loss of value due to the Wiersums’ trespass, and his “reason personal.” Here, the Court said, no reasonable juror would award restoration costs totaling more than four times the full fair market value of the property before the trespass. Thus, the Court sent the case back for a new trial on damages.

And what’s my take on this case, based upon my decades of thinking like a lawyer? I’m with Inigo Montoya and Paul Harder: “I want my trees back, you son-of-a-bitch,” and economics be damned. This is a bad decision.

– Tom Root

TNLBGray

And Now The News …

Lafayette, Louisiana, KATC-TV, June 17, 2018: Family speaks out after tree falls on, injures children during party

What started out as a birthday celebration ended with three children in the hospital after a tree fell on them. Family and friends have identified the children as 10-year-old Tyrik Garlow, 13-year-old Quantravion Guillory, and 11-year-old Aaron Washington.  It happened on East South Street in Opelousas. As of Sunday night, we’re told Tyrik was transported to a hospital in Baton Rouge is in critical condition, Quantravion is in surgery, and Aaron is in stable condition.  “All of a sudden, we just heard ‘boom,’ and the tree fell,” said Louise Washington, whose granddaughter was celebrating her birthday. Another man at the party was struck by a branch but was treated at the scene with minor injuries. “It knocked me out first, and all I saw was a little boy. He tried to talk, and I told him, ‘Don’t talk; just be quiet,’ and I lifted him up. And, I just picked him up, and I just threw the branch to the other side, and I lifted him up and threw him in my dad’s truck,” he said.   At the time, wind gusts were nearly 40 miles per hour in Opelousas…

Palm Desert, California, Patch, June 17, 2018: Professional Palm Desert Tree Trimmer Gets Stuck In Tree

A tree trimmer was rescued Saturday after becoming stuck in a palm tree. Riverside County Fire officials said the incident was reported at 12:06 p.m. in the 40200 block of Barrington Drive.  Ten firefighters were dispatched to rescue the man who was stuck about 30 to 40 feet at the top of the palm tree, officials said.  The tree trimmer was rescued and brought to the ground without injuries, officials said…

Live Oak, Florida, Democrat, June 17, 2018: Council approves heritage tree removal

The Live Oak City Council agreed to allow the removal of a heritage tree within the city limits at Tuesday night’s meeting. According to the staff report in the council’s packet, the large live oak tree at 520 Santa Fe St. SE was described as a “(d)anger to house — roots interfering with foundation. Large tree hanging over top of house — will completely destroy house if any of these limbs hit house.” The tree, which is around 48 to 52 inches in diameter is located just seven feet away from the 1980s era house. Planning and Zoning Director George Curtis said staff recommended the removal based on those safety concerns. Paul Williams, the senior forester for Suwannee County with the Florida Forest Service, reviewed the site in May and determined it was a heritage tree and also recommended its removal. “My recommendation is to approve the removal based on safety issues and the high probability of foundation and roof damage to the house in the future,” Paul Williams said in the findings included in the packet. “Also, the tree has signs of heart rot from past pruning that did not heal over correctly…”

Sunbury, Pennsylvania, Daily Item, June 17, 2018: Valley tree-trimming electrocution victim on stunning road to recovery

Richard Jordan’s heart stopped for 15 minutes March 6. The paramedics had stopped administering CPR after the 48-year-old tree trimmer from Middleburg was electrocuted with 7,200 volts of electricity, but then a miracle happened. Jordan’s heart started beating again, a full quarter-hour following the accident. Three months and 12 days later, Jordan is recovering, stunning everybody. He returned home April 19, a little more than six weeks after the accident. “They thought I was going to be brain dead, they thought I was going to be a vegetable,” said Jordan, the owner of Jordan Tree Trimming. “I got a lot of exercising to do. They say it’s going to take a long time. Hopefully it comes sooner than later… Jordan and his crew were working at the corner of East Market and East Willow streets in Middleburg. It was only supposed to be two trees — a 15-minute job — but Jordan and the owner had discussed doing a third tree that was touching the high voltage lines. While up in the bucket truck at approximately 10:45 a.m., the electricity arced over to him like a bolt of lighting despite never coming in contact with the wire, Jordan said. It takes 50 milliamps of electricity to stop a human heart, which could be the electricity coursing through a 7.5-watt light bulb or Christmas lights, according to information provided by PPL at various safety events around the Valley…”

Eugene, Oregon, Register-Guard, June 14, 2018: Legal dispute over tall trees grows more divisive

After 15 months and a trial verdict, the legal dispute among neighbors in southwest Eugene over tall trees continues to grow in complexity and divisiveness. Following a 2½-day trial in February, Lane County Circuit Judge Mustafa Kasubhai ruled that two Eugene homeowners likely would need to trim or remove some of their tall trees as they unreasonably block the views of uphill neighbors. The ruling was a victory by the uphill neighbors and plaintiffs in the case, Frederick and Diana Koors, Carol Philips, Svend and Lois Toftemark, and John and Glenda Van Geem. Kasubhai concluded that the two downhill homeowners, Jeff Bauer and Tom Heyler, violated a property restriction in a covenant — unique in Eugene — on homes in the Hawkins Heights subdivision 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. Residents Barbara West and Aurora Fiorintina also are defendants in the case. The judge ruled that the one tree on their rental property didn’t violate the view covenant, but they haven’t been dismissed as defendants. Kasubhai left it to the two sides and their attorneys to figure out how to bring Bauer and Heyler in compliance with the restriction on view-limiting trees…

Salisbury, North Carolina, Post, June 15, 2018: How to hire a qualified tree care professional

Have you ever asked yourself, “Who can I call if I need tree work done on my property?” “How can I be sure that the person I call is going to provide the best quality service at a fair price?” Trees provide beauty, shade and clean air, among other benefits and add real value to your property. If two people show up on your doorstep after a storm and tell you that your trees need work, how can you be sure they are legitimate? There are many factors that will determine a good choice. It may depend on what kind of tree work you need. Do you need pruning, pest control or possibly removal? Is the tree close to people, structures or cars or is it clear of obstacles? If your tree is in a local historic district you may need approval. Is the company insured and is the insurance sufficient enough to cover accidents? Do you feel comfortable with this company working for you? It’s the same as when you have a car accident — it’s best to get a number of quotes for the work. Ask for references of work completed, ask if the company has International Society of Arboriculture (ISA) Certified Arborists on staff or any other professional qualifications and ask for a copy of these documents…

Akron, Ohio, West Side Leader, June 14, 2018: Wilt disease threatens oak trees

Oak wilt is a serious and often deadly vascular disease of oaks. The fungal pathogen, Ceratocystis fagacearum, is believed to be native to the United States and has been reported throughout the Midwest and Texas, including Ohio. Oaks in the red oak group, including black oak, northern red oak, northern pin oak and others with pointed leaf edges, are most easily infected by this disease. Oaks in the white oak group, including white oak, swamp white oak, bur oak and others with rounded leaf edges, are less susceptible. Signs of the disease include leaves of oak trees usually beginning to wither in the upper canopy, producing “flags.” Flags are whole branches or crown portions turning red-brown. Leaves of red oaks typically show yellowing and browning of the leaf margins. To properly manage oak wilt, it is essential to understand its life cycle. The pathogen spreads from diseased to healthy trees in two ways: above ground and underground. The above ground disease is spread mainly by sap-feeding beetles known as picnic beetles (Coleoptera: Nitidulidae) on fresh pruning cuts…

Fort Smith, Arkansas, Times-Record, June 14, 2018: Fort Smith committee talks existing tree preservation

An effort is underway to improve tree care in Fort Smith. The tree committee of the Fort Smith Parks and Recreation Commission on Wednesday approved a motion to invite the staff of Fort Smith Development Services to come to a future meeting of the commission. Parks Commissioner Lacey Jennen, said Fort Smith has been a Tree City, a member of Tree City USA, for about 12 years. One of the requirements for a Tree City is having a tree ordinance. Fort Smith has a tree ordinance, but it only pertains to the city parks. “It is not anything that affects anything else within the city, new developments, residential or commercial or industrial,” Jennen said. “It doesn’t affect anything like that, just within our parks, and of course, our parks do an excellent job of doing the best that they can for tree care.” Jennen said she thought, to be in line with other cities in the state and elsewhere, the committee needed to further discuss possible options to enhance better tree care, to consider the trees in Fort Smith as an integral part of its infrastructure…

Evansville, Indiana , Courier & Press, June 13, 2018: Does Newburgh need to chop down its tree canopy? An arborist weighs in

After hearing public outcry over their decision to remove the tree canopy near the entrance of downtown Newburgh, town leaders have consulted an arborist. The arborist’s findings are good news to those who want to see the canopy remain. “There is no reason, in my professional opinion, to remove the entire canopy,” said Larry Caplan, owner of Maple Grove Tree Appraisals. But that doesn’t mean the canopy can stay the way it is, he added. There are several trees that are already dead and should be removed immediately, he said. And there are places where the canopy’s limbs hang low enough that passing semi trucks and buses hit them. “It will need some corrective pruning to remove the hazards,” Caplan said. “But I see no reason why they can’t keep the tree canopy.” The town leadership was concerned that because the canopy comprised volunteer trees that were not purposefully planted, they may have weaker roots or shorter lifespans, said Town Manager Christy Powell. But Caplan said this is not true. “Just because a tree started from seed doesn’t make it any more dangerous than those that were planted,” Caplan said. “They’re all wild trees, but if you look at a forest those are all wild trees, too…”

Moultrie, South Carolina, News, June 13, 2018: SCE&G to perform tree trimming in Mount Pleasant this week

South Carolina Electric and Gas (SCE&G) will be pruning trees in Mount Pleasant beginning Thursday, June 14, as part of its five-year cycle to maintain public safety and electric system reliability. SCE&G will conduct aerial trimming along transmission right-of-way within the next two weeks. Most of the work will occur near Laurel Hill County Park, a few islands off the Wando River, and possibly a remote section in the back of the Snowden Community. “Tree trimming is a key factor in the overall safety and resiliency of our system,” said SCE&G Forester Mark Branham. “Residents in the area may see helicopters at low altitudes near our poles and lines while this critical work is being completed.” The Public Service Commission of South Carolina recognizes the importance of properly maintaining vegetation around power lines and requires that such maintenance be performed. Vegetation, including trees, brush and vines, can threaten the safety of residents and of SCE&G crews if they grow too close to power lines. Vegetation also causes power outages and limits SCE&G’s access to its lines to make necessary repairs. SCE&G follows the American National Standard for Tree Care Operations (ANSI A300) for tree trimming—supported by arborists and other tree care experts. This method helps direct future growth away from power lines while leaving remaining limbs intact. It is a standard supported by the International Society of Arboriculture and has been adopted by the American National Standards Institute (ANSI). SCE&G has certified arborists on staff to advise its contractors on how best to utilize ANSI A300 trimming. Proper trimming also minimizes the scale and duration of outages caused by storms…

Bangshift.com, June 13, 2018: Hate trees? The Galotrax 800 Heavy Forestry Mulcher is just what your appetite for destruction ordered

If you stare out your windows and look at the trees with contempt, wishing you could just show them all who’s boss, we’ve got your golden ticket right here, Charlie. This is a Galotrax 800 forestry mulcher and at the time of this video a couple of years ago it was the world’s heaviest machine of this type. The rotating drum absolutely mangles everything in its path. That path is intended to be filled with trees that need to be cleared but if you had a VW, a small building, or perhaps an invading army, it would reduce the effectiveness of those things about as well as it stops trees from being trees. Land clearing is still a huge business. As tightly packed as we are in the large cities of this country, there are still vast swaths of property that are privately owned and people are building on in the countryside. Needs to clear a one mile driveway into your new dream home building site? You can hire loggers to come in, fell the trees, pull the logs out and leave you stumps to bulldoze or you can hire one of these style rigs that knocks over the trees as it is vaporizing them and chews the laid over trunk and branches to dust when it is done. The biggest of these guys is a 57,000lb, 765hp beast that likely looks just like the one you will see in this video

Davis, California, Enterprise, June 13, 2018: Here’s how to care for trees during the summer

Ready or not, the summer months are upon us and that means dry and hot weather. This not only affects us, but also the trees planted at our homes and in our community. The City’s Urban Forestry Division works hard to ensure our local tree canopy stays healthy, managing more than 16,000 trees. However, we can’t do it alone. Proper and sufficient watering of trees is vital to the health of our tree canopy. Is your tree still young and staked? If so, give the tree 10 gallons of water once a week. This can be easily done with a 5-gallon bucket or a hose. Once the roots are established and staking is no longer needed, weekly water is no longer necessary. Is your tree mature? Supplemental water is only needed once a month during hot and dry weather, twice a month during prolonged heat waves. Drip or flood irrigation over the critical root zone is best. Avoid overhead spray, if possible. If overhead spray is the only option, do not allow water to spray the tree trunk…

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

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Case of the Day – Friday, June 15, 2018

THE DEVIL MADE ME DO IT

You know the guy I’m talking about. Nothing is ever his fault. The blame always lies with someone else. Think of John Belushi in the Blues Brothers, groveling at the feet of an assault rifle-toting Carrie Fisher, explaining all the reasons he had left her standing at the altar and ending with the plaintive wail, “It’s not my fault!”

Today’s defendants have something in common with the pathetic Jake Blue. For reasons unexplained (but I suspect, given this occurred on breathtaking Kodiak Island, Alaska, that it was intended to enhance their view), Joel and Darlene wanted to remove some trees on the downslope of the hill they lived on, out to about 400 feet. Most of the trees – beautiful 100-foot plus Sitka spruces – were not on their property. A minor detail.

Darlene called her neighbor, Lisa, and asked whether she and her husband could cut down a few trees on Lisa’s land, you know, just trees that might pose a hazard if they were to fall in a windstorm across the property line and strike Joel and Darlene’s cabin. Lisa was at work when Darlene called her, and she didn’t really have a well-formed idea of what her neighbors had in mind. This was understandable, given that Darlene misled Lisa into believing they were talking about a few sickly boundary trees. Lisa, thinking that thinning the woods there would probably let more light in and spur growth, said that she did not mind at all.

When Lisa got home that evening, she discovered a denuded hill, with trees clear-cut from the boundary line toward her cabin for almost 400 feet. Hyperion itself couldn’t have fallen from that point and hit Joel and Darlene’s. Lisa was furious, and called Darlene (who had the good sense not to answer the phone). Lisa told Darlene’s voice mail that there would be no more tree cutting.

Now for the fly in the ointment: Lisa had always thought that her land extended all the way from her cabin to Joel and Darlene’s property line. But it did not. Her brother, Paul, who had subdivided a larger parcel years before and sold Lisa one of the plots – the one with his old cabin on it – had reserved for himself a plot between Lisa’s and Joel and Darlene’s place. After selling in 1992, Paul had left for an extended sojourn (well over a decade) in Washington state and Hawaii. When he finally came home from wandering the Lower 48, some two years after the tree-cutting incident, he was not pleased. Paul demanded of Lisa to tell him who had cut all of his trees. That was when Lisa found out that much of the property between her cabin and the Joel and Darlene’s property line belonged to Paul.

Naturally, Paul went after Joel and Darlene. Who wouldn’t? But they sniveled, “It’s not our fault! Lisa told us we could cut your trees!” Well, they did not exactly snivel, not audibly, but they promptly brought Lisa into the lawsuit as a third-party defendant. They maintained that because Lisa gave them permission to cut some trees without telling them that some of the intermediate land between their property and her cabin was Paul’s (and that they could not cut his trees), she was negligent. Joel and Darlene whined that if Paul had been damaged, Lisa owed Paul some of those damages. They argued Lisa had breached her duty to inform them, that she had made misrepresentations to them, and that she had breached her duty to Paul as well as a general duty she had to her neighbors.

The Alaska Supreme Court cut through Joel and Darlene’s arguments like a hot knife through butter. Lisa got nothing out of the tree-cutting episode, and she thus owed nobody nuthin’. Joel and Darlene had no right to rely on Lisa’s permission without checking the boundaries themselves. The Court’s finding might have been a blessing for the defendants, too, because it avoided the sticky question of whether – given Darlene’s obvious fraudulent misrepresentation to Lisa as to their tree-cutting – Lisa could possibly be liable at all. After all, if Darlene asked Lisa, “Hey, mind if we clear-cut 400 feet in the direction of your shanty so that we can improve our magnificent view?”, we suspect Lisa would not have been so forthcoming with permission.

Clearing up the issue of Lisa’s liability let the Alaska Supreme Court get to the meat of the case, which was the amount of damages owed Paul. We’ll take up that part of the holding on Monday.

Wiersum v. Harder, 316 P.3d 557 (Supreme Court of Alaska, 2013). Paul Harder owned a pretty nice piece of Alaskan wilderness near Kodiak. He built a cabin on it and lived happily for quite a stretch. But when wanderlust set in back in 1992, he subdivided the land, sold the plot with the cabin on it to his sister Lisa and kept one for himself, and set off for parts unknown.

Not completely unknown, however. Paul spent the next 15 years living in Washington state and Hawaii, but he returned every so often to visit his plot of land, and enjoy the hunting, fishing and recreation opportunities it afforded. It was, after all, overlooking Monashka Bay on Kodiak Island – it would be hard to stay away from home when it was as beautiful and wild as that.

About nine years after Paul went south, Joel and Darlene Wiersum bought some land at the top of a hill, adjacent to the Harder tracts. Looking down the hill, they could see Lisa’s cabin several hundred yards below, and they assumed she owned everything between their home and hers. One day, Darlene called Lisa at work, and asked whether they could cut down some trees on Lisa’s property that Darlene thought might “come down with the wind” and fall on their land, damaging their home. Lisa readily gave them permission, because she thought the removal of some trees might “let a little more light in.”

Darlene was not being exactly straight with Lisa. She and Joel never intended to thin out some hazard trees. Instead, they intended to clear-cut the entire hill, out to more than 300 feet beyond their property line. When Lisa returned home from work later that day, the deed had been done; she discovered that bare naked hillside. Upset by the number of trees that had been cut, Lisa immediately called the Wiersums and left a message instructing them not to cut any more trees.

Paul did not return to the Last Frontier for about two years. When he did, he discovered the clear-cut hillside. Paul asked Lisa who had cut the trees, and then explained to her that the trees had been on his plot, not hers. After that, he promptly sued the Wiersums for timber trespass.

The Wiersums, apparently a couple not lacking chutzpah (just look at the clear-cutting escapade), filed a third-party complaint blaming Lisa for the trespass. They sought to apportion fault onto Lisa, claiming that she had negligently misrepresented that she owned the property where the trees were cut when she gave them permission to remove trees from her property. The trial court granted Lisa’s summary judgment motion and dismissed the claim against her. The Wiersums and Paul went to trial, and a jury awarded Paul $161,000 in compensatory restoration damages, along with statutory treble damages.

Held: Lisa was not liable for the Wiersums’ trespass, but the case had to be sent back to the trial court, because the damages were excessive. Today, we’ll talk about Lisa’s “duty” to the Wiersums and her own brother. Monday we’ll take up damages.

The Wiersums contended that fault must be apportioned to Lisa because she was negligent when she failed to disclose to Darlene that she did not know exactly where her property lines were and that Harder also owned property in the area. In essence, their negligence claim was based on the theory that Lisa had negligently misrepresented or failed to disclose information to the Wiersums, and her negligence thus caused them to trespass on Paul’s property and remove his trees.

However, the Court held, negligent misrepresentation requires a showing that a party made a misrepresentation in the course of her business, profession, or employment, or in any other transaction in which she has a pecuniary interest.” Likewise, liability for failure to disclose information when there is an affirmative duty to do so occurs when someone “fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction.” Lisa had no financial interest in what the Wiersums did with their land, and thus owed them no duty under a theory of negligent misrepresentation or failure to disclose information when she had an affirmative duty to do so.

But did Lisa owe a duty to Paul? The Wiersums argue that Lisa owed a broad duty of care to her neighbors – both themselves and Harder – and is liable for any unreasonable risk of harm to them that stemmed from her own conduct. They support this assertion with references to the Restatement (Second) of Torts § 158 and § 165, and cite to case law from other states for the rule that a “landowner who intends to have timber cut on his land owes a duty to an adjoining landowner to ascertain the boundary line of the adjoining land with diligence and care.”

None of these arguments carried the day. The Court held that sections 158 and 165 of the Restatement (Second) of Torts were inapplicable here, because they applied only where the person intentionally causes a third person to enter land, that is, “commands or requests” a third person to enter the land of another. Lisa never commanded the Wiersums to do anything. Section 165 similarly provided no support for the Wiersums’ position, instead imposing liability where someone recklessly or negligently enters land in possession of another, or causes “a thing or third person so to enter,” and thereby harms the land. Comment (a) to this section indicated that the rule applies where “the conduct of the actor either… involve[s] an unreasonable risk of invading the possessor’s interest in his exclusive possession of the land, or… [is] caused by an abnormally dangerous activity carried on by the actor.” Lisa’s act of giving the Wiersums permission to cut trees on her own land did not present an unreasonable risk that the Wiersums would enter Paul’s land and cut his trees.

The Wiersums also argued that a Texas case held that landowners who intended to cut timber on their own land owed a duty to adjoining landowners to ascertain the boundary lines of the adjoining land. But Lisa did not seek out the Wiersums to remove trees from her land, nor did she affirmatively offer inaccurate information about her property boundaries. The Wiersums did not ask her for this information and, because this was not a business transaction, she was under no legal obligation to provide it. Thus, the Court said, she did not assume a duty to give accurate information to the Wiersums when they asked permission to remove her trees.

Finally, the Wiersums relied on Prosser and Keeton’s treatise on tort law for the rule that a landowner owes a broad duty “to cause no unreasonable risks of harm to others in the vicinity.” The Court was unimpressed. “Our prior decisions recognize that landowners have a duty to use due care to guard against unreasonable risks created by dangerous conditions existing on their property. We have also held that a landowner must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances. But we have never previously gone so far as to hold that a landowner has a broad duty to prevent the unreasonable risk of harm to her neighbors caused by third parties.”

Foreseeability of harm is the most important factor in whether Lisa had a duty to Paul, the Court said, and “there can be no duty where the harm is unforeseeable, but foreseeability alone is insufficient to establish a duty if the burden of taking care or the effect on society is too harsh.”

The foreseeability of harm to Paul resulting from Lisa’s conduct was low. Lisa made no active representation to the Wiersums to imply that the trees on the hillside near their property were hers and not Paul’s. She merely gave the Wiersums permission to cut trees on her own land. It was thus foreseeable that the Wiersums would cut trees on Lisa’s property, but it was not foreseeable that the they would remove 70 large trees from Paul’s hillside – some of which were located between 300 and 400 feet from their own land – “without conducting proper due diligence to identify the true property owner and then seeking that person’s permission. No person,” the Court said, “can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.”

– Tom Root

TNLBGray

Case of the Day – Thursday, June 14, 2018

PARTNERING WITH THE GOVERNMENT

Unfiled lawsuits rarely get better if you continue to delay.

Unfiled lawsuits rarely get better if you continue to delay.

Tony Balducci had a couple of parcels on Sumner Street in beautiful Lunenburg, Massachusetts. One of them, a property at 240 Sumner, was subject to occasional flooding problems arising from poor drainage. Tony wanted the problem remedied, so he made a deal to partner up with the Town to install a drainpipe. Like most deals of this nature, Tony’s job was simply to pay, and the Town’s end of the project was to do the actual work.

The directionally-challenged workers for the town installed a drainpipe. It’s just that Mr. B had two places on Sumner, not just one. And you guessed it: the drainpipe was installed at 244 Sumner Street instead of 240 Sumner Street (where it was supposed to be set). The result, of course – besides a drainpipe installed where it wasn’t needed – was that the flooding problems continued at 240 Sumner, where it was needed but not installed.

Tony was galvanized into action… some seven years after the error. The mystery is why it took him so long to notice the Town’s error, and why – after he figured it out a year later – why it took him more than six years to sue. There is, of course, a statute of limitations to just about every kind of action, civil or criminal. In the case of contracts in Massachusetts, it’s six years. The Town argued he had waited too long to sue. Tony responded that he had six years from time he discovered the mistake – not from the time of the mistake itself – to sue.

The Court agreed that the “discovery rule” let Tony run his time to file a lawsuit from the day he learned of the Town’s blunder, but his victory proved to be a hollow one. Quite often, laws permitting suit against governments contain what are called “exhaustion” requirements. Before you can sue, you have to “exhaust” your administrative remedies by filing a claim with the governmental agency, usually on a prescribed form with a prescribed number of copies and according to a prescribed schedule. The goal, public policy types tell us, is to enable the governmental agency to resolve problems short of lawsuits by promptly and fairly addressing the claimant’s concerns. Horse hockey. The real purpose of the “exhaustion” requirement is to exhaust people like Tony, or – barring the grinding down of the citizenry with arcane complaint requirements – setting a snare to trap the unwary.

Tony Balducci was one of those unwary ones. Whatever else he might have done during the six-year interregnum between discovering that the drainpipe was in the wrong place and suing, Tony never made demand on the Town to cure its negligence. That meant that his claim for negligence had not been administratively exhausted, and the count was thus thrown out. Unsurprisingly, the Massachusetts Tort Claims Act required that such a demand — called “presentment” — be made on the municipality before a lawsuit could be filed.

It is not clear how Mr. Balducci missed the fact the Town had put the drainpipe in the wrong place, or - for that matter - that his property was still a little damp.

It is not clear how Tony missed the fact the Town had put the drainpipe in the wrong place, or – for that matter – that his property was still a little damp.

Tony had a few other claims to make against the Town, including trespass and wrongful removal of trees. After all, he had given the Town the OK to enter onto 240 Sumner, but not 244 Sumner. Those counts were not subject to an exhaustion requirement, and they survived. But it’s clear that early in his lawsuit, Tony already had a big mountain to climb. More careful procedural planning — not to mention being quicker out of the chute — would have saved him some legal headaches now.

Balducci v. Town of Lunenburg, Not Reported in N.E.2d, 2007 WL 4248021 (Mass.Super., Oct. 19, 2007). Tony Balducci owned two properties next to each other on Summer in the Town of Lunenburg. In 2000, he and the Town entered into a written agreement for replacement of a drainpipe located on his property, with Tony and the Town splitting the cost. He gave the Town an easement for the installation. But instead of installing the drainpipe at 240 Sumner Street, the Town installed it at 244 Sumner Street. As a result, Tony continued to experience flooding in his building at 240 Summer Street. He sued the Town of Lunenburg, alleging breach of contract, negligence, trespass, willful trespass to trees, and nuisance.

The Town moved to dismiss, arguing that the various counts should be dismissed due to the statute of limitations, a failure to comply with the Massachusetts Tort Claims Act, and failure to state a claim upon which relief may be granted.

Held: The Town’s motion was only granted in part. The Town first argued that Tony’s claim was barred by the statute of limitations, because he brought the action more than six years after the alleged breach. But the Court observed that the “discovery rule” operates to toll — or suspend — a limitations period until a plaintiff learned or should have learned that he has been injured by the defendant’s conduct. Because Tony could present facts that show that he only learned of the improper installation of the drainpipe in 2001 when his basement flooded, the Court was unwilling to dismiss the action on the basis of the Town’s motion alone.

Likewise, the Court denied the Town’s argument that the contract action should be dismissed for failure to state a claim. The Court said there were genuine issues of material fact as to whether the Town had permission to install the drainpipe where it did, and whether it did so properly. The agreement was vague as to where the drainpipe should be installed, and the Town’s easement only referred to the agreement.

However, the Town was able to get the negligence claim dismissed. The Massachusetts Tort Claims Act required that a party present its claim in writing before suing. If a party does not fulfill this requirement, its case has to be dismissed for failure to state a claim upon which relief may be granted. Tony did not aver in his complaint that he has complied with the MTCA, requiring that the negligence count be dismissed.

The trespass claim — that the Town trespassed when it entered the wrong parcel of land to install the drainpipe and that the permanent nature of the drainpipe has created a continuous trespass — would not be dismissed. An action for trespass against a municipality does not come under the MTCA, so Tony was able to proceed on this claim without making any form of presentment. Tony’s complaint that the Town unlawfully removed trees from his property in violation of state statute, would not be dismissed.

SL151123Tony argued that because the easement deed wasn’t recorded until late 2004, the discovery rule barred dismissal of this count under the statute of limitations. While the Court didn’t agree with that argument, it held Tony appeared to be able to show a set of facts, such as that he did not become aware that trees on the wrong property were cut down until the easement deed was filed in December 2004.

Finally, Tony argued the Town created a private nuisance when it installed the drainpipe on Tony’s property. The Town argued the count should be dismissed for failure to state a claim upon which relief may be granted, as the allegations could not constitute a private nuisance. The Court disagreed, noting that where a municipality is the owner or in control of real estate and creates or permits a private nuisance to another person’s real property, it was liable just as a natural person would be. The essense of private nuisance is injury to property or persons outside the public place controlled by the municipality. There was a genuine issue of material fact as to whether the Town installed a drainpipe on property it controlled, which is now causing injury to Tony’s land.

– Tom Root

TNLBGray

Case of the Day – Wednesday, June 13, 2018

WHEN LESS CAN BE MORE …

Horrific crashes. They happen everywhere. Someone blasts through a stop sign late at night and slams into another car. One driver dies. A lawsuit ensues.

It’s an all-too-frequent tragedy. In today’s case, however, the inevitable lawsuit by the next-of-kin has an unusual twist. The surviving driver wasn’t the only one named as a defendant. Included in the lawsuit was the owner of the corner property, who was accused of contributing to the accident by letting overgrown trees and shrubs obscure the stop sign.

The investigating highway patrol officer testified that the sight lines were not so obscured that the offending driver couldn’t have seen the traffic sign. But the Court of Appeals decided that it wasn’t necessary to sort that out, because Georgia law resolved the issue.

It turns out that a state statute made it unlawful for a property owner to place any unauthorized device or structure in such a location as to obscure traffic signs. Over the years, the courts had defined the statute to include trees and shrubs planted by the owner as among the prohibited devices. But the catch is that the owner himself or herself must have planted the trees and shrubs: if the overgrowth was natural, it could be a rainforest for all Georgia law cared.

The sign's obscured by a rainforest? That's fine with Georgia, as long as you didn't plant it ...

The sign’s obscured by a rainforest? That’s fine with Georgia, as long as you didn’t plant it …

The Court held that because there was no proof the landowner had planted the overgrown vegetation, it didn’t matter how bushy he had let it become. The landowner couldn’t be liable. The lesson seemed to be that the less you do to take care of your place, the better off you are. Truly, less can be more…

Estate of Rachels v. Thompson, 658 S.E.2d 890, 290 Ga.App. 115 (Ga.App. 2008). Around midnight on July 4, 2003, young Winston Rachels was driving his truck northbound on Kent Rock Road, approaching Emmitt Steel Road. There is a stop sign on Kent Rock Road at its intersection with Emmitt Steel Road, but no stop sign on Emmitt Steel Road. Around this same time, Ashley Grant was traveling westbound on Emmitt Steel Road in a Jeep. Ashley did not see Winston’s truck until immediately prior to the accident. The truck and Jeep collided.

The sign, it turned out, was covered with kudzu ...

The sign, it turned out, was covered with kudzu …

Winston’s estate sued Walter Thompson, the property owner adjacent to the road, on the grounds that the property was overgrown, thus hindering visibility. The Estate’s negligence claim was premised upon Walt having violated O.C.G.A. § 32-6-51, which provides that “[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which: … (3) Obstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads[.]” The lower court dismissed the case, and the Estate appealed.

Held: The case was dismissed.

The Court noted that O.C.G.A. § 32-6-51 has been interpreted to include purposely planted trees and other vegetation, including an allegedly vision-obstructing row of trees planted by the defendant. But here, there was no evidence that Walt had planted the foliage at issuel. The photos placed into the record by the Estate in opposition to the motion show a lot overgrown with kudzu.

In his response to the Estate’s interrogatories, Walt said that “[t]here are no improvements on the property[,]” and [s]ince there were no improvements on the property, no maintenance was required.”

The Court held that the Estate has failed to show Walt breached any duty to trim vegetation that he purportedly owed Winston, and summary judgment was correctly granted to Walt.

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, June 12, 2018

IN THE BEGINNING…

Who could forget the opening, the sitar strings, Eric Burdon’s urgently whispered intonation, then the pounding of the drums. Yeah, Summer of Love, Monterey International Pop Festival, the Animals

We bring up “in the beginning” (not the much better-known use of the phrase), because it seems that everything arboreal in the common law is imagined to have sprung from the flinty ground of New England in 1931 with the Massachusetts Rule. We all know the Massachusetts Rule:

A property owner’s remedies when branches overhang or roots intrude from a tree in a neighbor’s land are limited to “self help.” In other words, a suffering property owner may cut off boughs and roots of neighbor’s trees which intrude into another person’s land. But the law will not permit a plaintiff to recover damages for invasion of his property by branches or roots of trees belonging to adjoining landowner. And a plaintiff cannot obtain equitable relief — that is, an injunction — to compel an adjoining landowner to remove roots or branches of such trees invading plaintiff’s property or to restrain such encroachment.

We all have come to think that the Bay Staters invented the Massachusetts Rule. Fact is, they did not. Just as the Hawaii Rule was around before Hawaii was even an American possession, the Massachusetts Rule predated Michaelson v. Nutting by at least 40 years, and probably – if we delved back into English common law – much longer.

In today’s case, circa 1893, a railroad got tired of its engineer being smacked in the face by some overhanging branches belonging to Mr. Hickey. It offered him $10 to cut down the trees (worth about $255.00 today). He declined. So the railroad sent its own crew to cut the branches off at. the property line. Mr. Hickey sued. The railroad defended. And the Michigan Supreme Court gave us a Hickey Rule.

They gave us a Hickey? Maybe calling it the Massachusetts Rule is a better choice.

Hickey v. Michigan Central Railroad Co., 96 Mich. 498, 55 N.W. 989 (Mich. 1893). Mr. Hickey lived next to the Michigan Central right-of-way. Probably to wall off some of the noise and cinders, he planted trees along the boundary of the railroad right-of-way. The branches eventually overhung the right of way to such an extent that at times they brushed against the face of the engineer when his duties required him to lean out of his cab for the purpose of maintaining a lookout.

Finally, the Michigan Central sent a crew to trim the branches of the trees up to the line of the fence. Mr. Hickey did not claim the trees were damaged beyond this, or more than was necessary to remove the overhanging branches. The questions presented was simply whether these overhanging branches constituted a nuisance, and whether, as a nuisance, the Michigan Central had the right to cut them, and whether, before cutting them, the railroad was obligated to serve notice on Mr. Hickey that it would do so, giving him the opportunity to remove them himself.

At trial, Mr. Hickey testified that a Michigan Central supervisor had complained that the overhanging “You had better take it, or someday I will get an order to cut down those trees, and then you won’t get anything.”

The trial court held that the Michigan Central had a duty to notify Mr. Hickey that the branches were an obstruction, that he must remove the branches or the trees, or that they would do so. Then, if he refused, the railroad might remove the branches from the right of way itself.

Held: The Michigan Supreme Court reversed, holding that “any person injured by a nuisance, to the extent that he may maintain an action at law therefor, may remove so much of the nuisance as is necessary to secure to himself immunity from damage therefrom; but he must not be guilty of any excess therein, for, as to all excess of abatement, he will be a trespasser.”

The general rule is subject to this exception: “Where the act complained of is one of positive wrong or willful negligence, or the security of life and property is endangered, and the danger seems imminent, the party threatened with the injury may abate the same without giving notice to the wrongdoer, or waiting for him to remove it. Where, however, the nuisance is merely permitted to exist, and the case is not very urgent, notice, and an opportunity to remove it, is essential, before the complaining party would be justified in forcibly abating the same.”

But it turns out that this exception has an exception. “There is no decided case,” the Court said, “which sanctions the abatement, by an individual, of nuisances by omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. The permitting these branches to extend so far beyond the soil of the owner of the trees is a most unequivocal act of negligence, which distinguishes this case from most of the other cases that have occurred.”

The rule, the Court said, was that “trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages, 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.”

The purpose of notice in such case, the Court said, is evident: is to give to the owner the opportunity of himself abating the nuisance. Here, no one disputed that Mr. Hickey knew that Michigan Central found the overhang to be a nuisance, and he refused payment to abate the nuisance. “We think,” the Court held, that “he is not in a position to insist that he was entitled to further notice.”

– Tom Root

TNLBGray140407