Case of the Day – Friday, December 15, 2017


putt150827OK, what’s a little New York case about a miniature golf course construction contract doing on a tree law blog? It’s here as a cautionary tale …

A miniature golf operation called Oasis Park hired Bill Oberholtzer – who was both a miniature golf course owner and a mini golf course builder – to jazz up Oasis Park before the mini golf season started up in the Troy, New York, area. Disregarding the universally-accepted good practice in construction of starting with a nice, neat signed agreement setting out the scope of the work, payment terms, time to completion and other such details, the Oasis Park people and Bill pretty much sketched out their agreement on the back of a cocktail napkin. And that was a mistake.

Later, Oasis Park needed a more formal document in order to get its bank to release financing. Bill, of course, accommodated Oasis Park by signing one. You can guess what happened. When the parties’ working relationship soured, Oasis claimed that the accommodation document – and not the “cocktail napkin” – was the real deal between the parties covering the scope of the work. Bill countered that he had already been working for weeks, and the plans had changed.

You probably need a little more contract detail than you can fit on a napkin.

You probably need a little more contract detail than you can fit on a napkin.

Nevertheless, within six weeks after some fateful April 29 “thing” occurred — and even the Court couldn’t tell what the “thing” was — Oasis fired Bill amid claims that he hadn’t adhered to some nonexistent schedule, hadn’t provided workers, and hadn’t provided materials. For good measure, Oasis claimed that Bill’s work was substandard.

Bill naturally argued just the opposite, asserting that he couldn’t buy supplies because Oasis Park wouldn’t pay him. The whole mess ended up in federal court, where the Judge threw up his hands and said no one was getting summary judgment. The entire kerfluffle was going have to be sorted out at trial.

So now, let’s all grab our calculators and figure out how Bill saved by not wasting money on a lawyer preparing a contract with Oasis Park up front. Not much, we guess. And you arborists, tree trimmers, loggers and owners – let’s remember this: No contract, no winners.

sign150827Paone, Inc. v. Oberholtzer, Slip Copy, 2007 WL 2455074 (N.D.N.Y., Aug. 23, 2007). Oberholtzer agreed to provide all labor and materials necessary to remodel Paone’s miniature golf course. Beyond that fact, the parties could agree on nothing.

Paone said that under a contract dated April 29, 2004, Oberholtzer to build a bumper boat pond, including walls, docks, light fixtures, a cave, a filter system, a perimeter walkway, and a staging-area deck. As well, Paone said, the contract required Oberholtzer to renovate the course’s clubhouse entrance, the third hole, and the practice green. Paone said that under to the contract, Oberholtzer began working in May 2004, but its laborers did not show up for work, causing the project to fall behind schedule. To rectify the situation, Paone claims that it hired temporary workers.

Even with these outside laborers, the project did not move forward because Oberholtzer failed to provide supervision and direction. Paone said it had to supply all materials to the site and hire various construction professionals to inspect the work. Paone contended that these professionals found that Oberholtzer’s work violated building-code requirements and was below the industry standard. After the project had gone on about a month, Paone notified Oberholtzer that it was in default of the contract.

Oberholtzer, on the other hand, claimed that he reached an agreement to perform work for Paone well prior to April 29, 2004. Oberholtzer said he began preparatory work in March. The April 29th document, Oberholtzer contended, was merely an estimate prepared at Paone’s request,intended by both parties to help Paone get a bank loan released. The April 29, 2004, agreement was conformed to an earlier budget from the winter of 2003-2004, which Paone had submitted to the bank to support its initial loan application.

golf150827Consequently, Oberholtzer argued, the estimate did not reflect intervening changes of which both parties were aware, including a different location for the bumper boat pond, changes in site elevations for the clubhouse and parking lot which required alteration of a ramp and deck, and additional concrete walkways on the course.

Oberholtzer said, he had already made significant progress before April 29, 2004, including filling in traps, reconfiguring the practice green, removing an existing sidewalk near the old practice green, building a deck between the seventh and eighth holes, and removing fixtures and equipment from the old clubhouse. What’s more, Oberholtzer asserted, he had also cleared and trimmed trees for a new picnic area, built retaining walls for a walkout basement, constructed a deck attached to the clubhouse, erected bumper boat pond walls and skimmer baskets, and backfilled the pond.

As far as the schedule went, Oberholtzer argued that the April 29, 2004, document did not contain a schedule or other time-related requirements. Oberholtzer said that Paone knew Oberholtzer would be opening and operating his own miniature golf course in Georgia at the end of May. Therefore, Oberholtzer claimed, Paone knew that Oberholtzer would not be available to work on the project on a regular basis. Furthermore, Oberholtzer argued that several weeks of delay resulted from the actions of an unrelated contractor, who placed heavy equipment in the area of the future bumper boat pond. Also, he said, Paone failed to make timely payments to enable Oberholtzer to buy materials and to progress with the project. Finally, Oberholtzer complained that Paone approved all building plans, and that town building inspectors routinely inspected the progress and noted no building code violations.

Paone sued for breach of the contract and for negligence, and then moved for summary judgment.

obfus150827Held: Summary judgment was denied in this fact-laden morass. The Court observed that Paone’s causes of action for breach of contract and breach of the implied covenants of good faith and fair dealing both required first that there be an enforceable contract with sufficiently definite terms. Here, the parties could not even agree on whether the document was a contract, let alone what its terms might be. Paone contended the document represents the parties’ complete agreement, but Oberholtzer asserted that the document was an estimate used solely for the purpose of obtaining funding. While Paone said that the time for performance commenced in May 2004, Oberholtzer alleged that it had already completed substantial portions of the project prior to that time.

What’s more, the Court found, reference to the April 29, 2004, document wasn’t helpful because it contained no details about the parties’ responsibilities or the construction schedule. The document was labeled “Spring 2004 Construction” and merely set forth the various projects and the price for each. In light of these disputes, the Court held, it could not determine whether an enforceable contract existed between the parties without evaluating the parties’ conflicting factual accounts. Moreover, on the basis of the April 29, 2004 document alone, the Court could not determine the construction schedule or the parties’ respective contractual responsibilities.

A trial would be necessary to straighten the whole mess out.

– Tom Root


And Now The News …

Mt. Vernon, Virginia, Gazette, December 14, 2017: Trees vs. Power Lines: Competing for the same space

“I saw Dominion Energy’s contractor, Asplundh, while they were ‘trimming’ the trees on Parkers Lane,” Williamsburg Manor resident Greg Crider recalled recently. “I’ve seen the company do reasonable trimming in the past, but they really butchered the trees this time.” One of the trees Crider mentioned is near the point where Collingwood Road becomes Parker’s Lane close to the Justice-Snowden/Bock Farm in Mount Vernon. It’s been pruned so severely, and in a seemingly unnatural manner, that it appears to be raising its limbs in search of salvation from the tree gods. Mimi Friedman of River/Briary Farms, offered her reaction to the same tree: “We gasp when we pass the one across from the farm on Parkers.” Crider and Friedman join many others on one side of a multisided debate/argument about how power suppliers keep tree limbs from interfering with their overhead lines. The target of the residents’ ire, at least in the Mount Vernon area, is Dominion Energy and its tree-trimming contractors. Dominion’s Jay Griles, manager of the company’s Distribution
Forestry Division, and company spokesman Chuck Penn explained Dominion’s challenges…

Portland, Maine, Press-Herald, December 14, 2017: Saco Island tree-cutting violation leads to agreement to install erosion control

The city of Saco and the developer behind an ambitious plan to transform Saco Island have reached an agreement to resolve a notice of violation issued after the property was cleared of trees in violation of the city’s shoreland zoning standards. The notice of violation and stop-work order were issued Nov. 3 by code enforcement officer Richard Lambert after trees were cleared from 30,000 to 70,000 square feet of the 6-acre lot adjacent to the Saco River in downtown Saco. Developer Bernie Saulnier in July announced plans for a $40 million mixed-use project on Saco Island that will include apartments, a hotel and a marina. The agreement reached this week calls for Saulnier, of J&B Partners, to immediately install erosion and sediment controls throughout the property to prevent potential storm water runoff from carrying soil into the river. A mitigation plan must also be submitted to the city for review and approval that will indicate how the property will be restored if the development does not occur, according to city officials. The city will not issue fines in connection with the violation. Saulnier has said he had sumac and other overgrowth removed from the property to clean it up while surveying and testing is being done…

Popular Science, December 14, 2017: Scientists are enrolling trees in a wet bark contest to understand effects of ice storms

Lindsey Rustad is an ice sculptor. But she doesn’t make the swans you see at weddings or corporate events. She makes ice storms in forests. Her designs, like those in nature, glisten and evoke wonder. But they also foretell danger. With increasing evidence that climate change is driving more frequent and severe weather events, likely including ice storms, she wants to find out what that means for the health of the forest. Ice storms can be immensely destructive. Frozen limbs, dragged down by the weight of ice, can break, landing on cars, power lines, homes and people. In the United States, ice storms cause an estimated 60 percent of winter storm losses, and – here and in Canada – billions of dollars in damage. In January 1998, a massive ice storm devastated part of northern New England, northern New York and southeast Canada, and a 2008 ice storm in China killed 129 people. But scientists still don’t know the long-term impact of ice storms on forests. “Our forests are tremendously resilient,’ said Rustad, an ecologist with USDA’s Forest Service. “We can recover from a light icing, but extreme icing or repeat icing might exceed their capacity to recover…”

Denton, Texas, Record-Chronicle, December 14, 2017: Keep safety first during the holidays — treat your Christmas tree with care

A Texas A&M AgriLife Extension Service specialist in family and community health offers tips on Christmas tree safety. Joyce Cavanagh, the extension specialist, said fires started by Christmas trees are rare, but cautions homeowners and renters to take precautions. – Provide a direct water source for your tree, or water it frequently to keep it from drying out. – Keep the tree at least 3 feet away from any heat source — a fireplace, stove, radiator or candle. – Make sure the tree is not blocking your path to your door…

Associated Press, December 13, 2017: Man accused of burning Phoenix suburb’s $40K Christmas tree

Police in the city of Mesa near Phoenix say a man has been arrested on suspicion of arson and criminal damage for allegedly burning the city’s $40,000 Christmas tree. The nearly four-story tall tree is the focal point of Mesa’s annual Christmas celebration. It was destroyed by a fire early Wednesday that police say was intentionally set. Police say 34-year-old Samuel Antone Johnson was found nearby and allegedly admitted to setting the “Merry Main Christmas Tree” on fire with a book of matches. Police say the man did not disclose a motive. Johnson has been booked into jail on two felonies. It’s unclear if he has a lawyer yet. City officials say they’re trying to quickly find a replacement tree to erect for the rest of the holiday season…

The Fishing Wire, December 14, 2017: Arkansas calls for used Christmas tree donations for reef program

Once the wrapping paper has been thrown away and the last drop of egg nog has been consumed, few people have a use for that evergreen tree that graced their home during the holiday season. The Arkansas Game and Fish Commission has a new job for those leftover trees – as fish habitat. The AGFC has drop-off locations across the state to let your old Christmas tree have a second life as underwater cover. Clint Coleman, assistant coordinator for the AGFC’s Family and Community Fishing Program, says the Christmas tree program functions just like a “take-a-penny, leave-a-penny” tray, except it’s for fish. “Anyone who wants to drop off a natural tree can place it at a location on the list, and anyone who wants to sink a few trees to create their own little honey hole can do that as well,” Coleman said. “You just need to bring your own parachute cord, wire, rope and cinder blocks to sink the trees…”

David City, Nebraska, Banner Press, December 13, 2017: Winterizing trees

If you didn’t have time for tree care this year, it’s not too late. Fall is the ideal time of the year to prepare woody plants for harsh weather ahead. The winter dormancy of trees is dramatic and often misunderstood. A common myth is that trees shut down and essentially go to sleep for winter after leaf drop. In reality trees experience some of their most dramatic growth and vigor from September through December, most of it occurring invisibly below ground, but of critical importance to spring growth. With dry winds, subzero temperatures and potential fluctuations of 50 degrees on any given day, trees face a harsh environment. Food reserves stored in twigs, branches and roots must be carefully conserved, as well as moisture, which is also consumed and necessary all winter long. What can you do to help your trees through the Nebraska winter ahead of us?

Lompoc, California, Record, December 13, 2017: Letter: Trees on Orcutt street should be topped

We who live up on Valley View Drive in Orcutt wish the tree maintenance included topping. The county has the opinion of an arborist that the best maintenance is to grow the trees constantly higher and never top. It used to be a tunnel driving on Valley View. People came just to drive the street. The bus and truck traffic, of course, does a nice job of shaping such a tunnel. Jumping to Santa Barbara (bunny trail) these same trees have been grown tall enough to make the tract homes look like miniature match boxes. Looking at Santa Barbara we can see where our street is headed? Check out Ashdale and Baxter streets across from San Marcos High School. The effect of tall growth is painful to look at. The county destroyed the beauty these trees offer by not topping. That same management is destroying the beauty on Valley View in Orcutt. How bad is it in real world measurement? Property values drop dramatically as visual eye candy drops. Make no mistake in viewing older pictures of Valley View, it was indeed eye candy. Drive up the street today and something looks strange. Monstrously tall trees out of sync with the homes. Don’t try to talk to the county. The arborist that signed off on ridiculously tall trees to accommodate Waste Management trucks inadvertently locked the county into a mindset that destroys natural beauty. “Oh … the trees have to be cut this way for trash pick-up.” The opposite is true. A natural tunnel was loved by all and remembered by most. The county is working against aesthetic beauty. These trees should be topped heavily and allowed to regain their natural beauty…

The Atlantic, December 12, 2017: The Christmas-Tree Shortage Could Last for Years

This was a smaller season than Silver Bells has known in the past: The farm, which once shipped about 100,000 trees annually, downsized from 700 to 400 acres of Christmas trees in recent years. The reduction is part of a trend that has played out across the Pacific Northwest—the country’s leading Christmas tree–growing region, with Oregon the highest-producing state and Washington the fifth—and is the long-realized product of overzealous planting 20 years ago. That was a period, Casey Grogan explains, when prices were favorable, land and labor were affordable, and trendy new crops like hazelnuts, wine grapes, and blueberries hadn’t yet lured some farmers away from more traditional choices such as Christmas trees and grass seed. “I don’t think [farmers] realized how many trees were being planted compared to what demand was,” says Grogan, who sits on the board of the Pacific Northwest Christmas Tree Association (PNWCTA), a regional trade group. The Northwest’s most popular variety, the noble fir, can take eight to 12 years to reach holiday height, which means that that spurt of over-planting two decades ago led to oversupply about 10 years ago. It was especially poor timing because this flooding of the market coincided with the Great Recession, when many people were scaling back their Christmas spending. “Prices fell off the roof and growers were losing money, so they didn’t have the incentive—and in some cases they didn’t have the equity—to invest in planting seedlings,” says Tim O’Connor, the executive director of the National Christmas Tree Association (NCTA), a Colorado-based industry organization. Another 10 years on, the effects of that under-planting are now being felt around the country, in the form of shortages and higher prices. Grogan says that shoppers in the regions supplied by the Northwest can expect to pay 10 percent more for a tree this year and that those who wait to pick out a tree may not have many to choose from…

Lynchburg, Virginia, News Advance, December 12, 2017: Trees have their own form of hibernation

In “The Hidden Life of Trees,” author Peter Wohlleben offers a whole new look at these amazing plants. One of my favorite chapters is about trees hibernating in winter. While some readers criticize Wohlleben for giving trees animal, and even human, characteristics, I like the way he finds commonalities between the two main kingdoms of life. He compares trees to bears, which pack in as much food as possible in the summer to make it through a long, cold winter. Rather than eating nuts and berries, however, trees fuel themselves with energy from the sun, which they turn into sugars and other compounds they store in their tissues until spring. While bears eat for as long as they can and get fatter and fatter, trees store a finite amount of food under their bark and in their roots. Once they are “full,” they start shutting down, some in late summer…

Toronto, Ontario, Cottage Life, December 12, 2017: Ski resort in Alberta charged with cutting down endangered trees

An Alberta ski resort will face a hefty fine after pleading guilty to cutting down endangered trees. The Lake Louise Ski Resort, located in Banff National Park, is a well-respected destination for skiers from around the world but recently came under legal scrutiny when it was found that employees had cut down a cluster of trees along the edge of a ski run in 2013. The trees were endangered whitebark pine, and at least 39 were chopped down, a violation of the Species At Risk Act and the Canada National Parks Act. “The first count is . . . for cutting down whitebark pine in a national park, and the second count is . . . for harming flora in a national park without a permit,” Erin Eacott, a federal prosecutor, told the Canadian Press. The case was to go to trial this week, but since the resort pleaded guilty, the two sides must now negotiate on a penalty. Fines for cutting down endangered trees can be substantial. Eacott said that the maximum fine under the Species At Risk Act for each tree destroyed is $300,000. The maximum per tree is $250,000 under the national parks act…

Mt. Vernon, Ohio, Knox Pages, December 12, 2017: Shade tree commission plants 188 trees in 2017, removes 246

The city’s urban forest, under the care and direction of the Shade Tree and Beautification Commission, is doing well. Commission members Jim Brown and Kate Burley updated council members on Monday about the commission’s 2017 activities and also looked ahead to 2018. A tree inventory in 2016 showed 500 trees that either needed removed, pruned or that are dead or dying. The commission removed some trees in 2016; another 246 were removed this year. Brown said the tree removal program is on a four-year cycle for completion. “A lot of our risk and problem trees will be gone by then,” he said. The commission is starting a new program called Tree City Partners. Brown said that the commission runs into trouble in the fall with making sure the trees get watered. “Not enough people are taking the job,” he said. “The pay is not that great, and the kids go back to school…”

San Francisco, California, Chronicle, December 11, 2017: California losing 2 million trees a month as drought-related plague drags on

California’s forests are seeing a continued die-off of trees even a year after last year’s heavy rains ended the state’s crippling drought. The U.S. Forest Service announced Monday that 27 million trees died over the past 13 months after five dry years left them severely dehydrated and vulnerable to bark beetle attack. The unprecedented casualties, which run rampant across the Sierra Nevada as well as parts of the coast, have turned patches of forest into a somber rust color for mile after mile. The mortality is so great in some places that foresters have closed roads and campgrounds for fear of the dried-out, lifeless trees falling on people. Tourists to Yosemite and Sequoia national parks, meanwhile, have been stunned by the unexpectedly grim views. State officials also worry about dead groves becoming easy tinder for the lethal wildfires that have plagued California in recent years. Efforts to remove hazardous stands have been slow due to the sheer volume of death. An estimated 129 million trees across some 8.9 million acres have died since 2010, according to the Forest Service…

Beverly, Massachusetts, Salem News, December 11, 2017: Objection shelves ordinance aimed at saving trees

Steve Dibble was among more than a dozen Salem residents and environmental advocates who led the city’s LORAX task force and created rules protecting city trees for more than a year and a half. But on Thursday night, the Ward 7 city councilor single-handedly killed the task force’s body of work without any room for discussion, and with no apparent forewarning or explanation, when he lodged an objection to approving the newly drafted ordinance. Now, the issue is in front of the City Council’s ordinance committee where it will just disappear at the end of the year if no further action is taken on the matter. “It’s obvious this committee did a ton of work,” Ward 1 Councilor Bob McCarthy said Thursday. “He’s going to make this whole thing die right now — that’s the way I read it — because, if it doesn’t carry over, it does nothing.” McCarthy pushed for Dibble to explain his objection. He did not. Ward 4 Councilor David Eppley defied orders from the council president as he tried to fight what was happening, even at one point moving to overrule the president’s authority. All the while, Dibble remained silent…

Eugene, Oregon, Register Guard, December 10, 2017: Neighbor fighting neighbor: Tall fir trees at some southwest Eugene homes are target of lawsuit by homeowners

A visitor stepping into Carol Philips’ backyard in southwest Eugene is greeted on clear days with a sweeping view. Toward the left are Skinner Butte and Autzen Stadium. PeaceHealth Sacred Heart Medical Center at RiverBend is barely visible. Toward the right is downtown Eugene and Kelly Butte in Springfield.  Philips said that on those mornings she can watch from her bed as the sun rises over the Three Sisters. When she bought the home four years ago, selling her riverfront house in Springfield, Philips told herself she was moving “from the river to the sky.” Downhill, about 800 feet away, a visitor stepping into Tom Heyler’s backyard is greeted by the silent sentinels of the Earth. About six feet from his back door rests the massive trunk of a 100-year-old Douglas fir that rises up at least 80 feet, backed by more tall firs. Heyler and his wife say the trees offer privacy, shade and a connection to the environment. “We love our trees, and a lot of the people have big trees, and they love their trees, too,” he said…

Hagerstown, Maryland, Herald, December 11, 2017: Potomac Edison trims trees, completes maintenance work for winter weather

Helicopters have patrolled 1,400 miles of transmission lines to look for damaged wires and hardware problems, and tree contractors have completed trimming nearly 3,000 circuit miles of electric lines in anticipation of the winter-weather season. Potomac Edison contractors are making sure that equipment is ready to meet the rigors of winter to minimize damage from electric outages in the area. “If we trim trees, we have fewer outages in the winter, and when outages do occur, it’s easier for our crew members to get out there and make the repair,” Potomac Edison spokesman Todd Meyers said. Electricians at local substations also are inspecting batteries used to help prevent service interruptions or limit their size and scope. “The tree-trimming aspect is now only important preparing for the winter season, but it’s also ongoing and of vital importance,” Meyers said. “Ice and snow is going to bring trees down into the lines, and it can be very dangerous…”

Seattle, Washington, KUOW-FM, December 10, 2017: Western seedling shortage: Your future Christmas tree might be hard to find

You might be in the market for a Christmas tree right about now, but have you thought about what type of Christmas tree you want in eight years?  Believe it or not, it might be hard to find one. That’s because of a tree seedling shortage happening right now across the West. The repercussions are being felt across the region, including by Darryl Smith, the owner of S&S Evergreen U-Cut. He estimates he’ll sell about 200 Douglas firs and Noble firs in the next couple weeks. He’s just not sure how he’s going to find 200 replacement seedlings for a Christmas eight years down the road. “Right now all you can do in this business is keep plugging along,” Smith said. “I don’t want to just give up. I got enough trees to get me by for a couple more years or so and then hopefully we’ll have the seedling issue back under control…” The seedling shortage appears to be nationwide, although it’s more acute in states like in Washington and Oregon. That’s according to Diane Haase, the head seedling nursery expert for the USDA Forest Service in the West and Pacific islands…

Portland, Maine, Press-Herald, December 10, 2017: Saco Island developer faces possible fine for tree cutting

The developer behind a proposed development on Saco Island was issued a notice of violation and stop work order after he clear-cut trees on the property in violation of shoreland zoning regulations. The notice of violation was issued Nov. 3 by code enforcement officer Richard Lambert after trees were cleared from 30,000 to 70,000 square foot of the 6-acre lot adjacent to the Saco River in downtown Saco. The stop work order has since been lifted to allow property owner Bernie Saulnier to do erosion control work. On Monday, Saulnier, city officials, the Saco River Corridor Commission and the Attorney General’s Office will meet to discuss the final resolution of the tree issue. Lambert said that outcome could include a fine or a mitigation plan for replanting trees. “It was a misstep that happened and we don’t want to get off on the wrong foot (with Saulnier),” Lambert said…

Rochester, New York, WROC-TV, December 10, 2017: Local group protests Erie Canal tree removal

Opponents of an Erie Canal tree cutting project organized on Sunday to put a stop to the State Canal Corporation’s plan to remove 145 acres of vegetation. The rally even got the attention of local leaders. Pittsford Town Supervisor, Bill Smith said, “I am inspired by one of the signed I see this morning. There is never only one way to solve a problem.” According to the Canal Corporation, vegetation is being removed that could potentially weaken embankments to the point of failure but many homeowners question their solution. Ginny Maier said, “There hasn’t been one breech yet in the canal that was due to a tree malfunction or failure due to the integrity of the canal.” Maier hopes the state will reconsider their plans…

East Lansing, Michigan, Michigan State University Extension Service, December 10, 2017: Counting Trees

The forestry community continually monitors and inventories the forests of Michigan, the federal inventory units collect data across the entire state, the DNR constantly updates the state forestland inventory and public and forest owners use their own status tools for private forest holdings. Many methods and resources are necessary to count trees. Sometimes we think that forests are static resources that are the same from year to year. In the short-term, this may be true in some ways, however, by reading the forest, almost everyone will see constant change because trees grow, die, reproduce and are harvested and converted to other land uses in some areas. Non-forest areas can even grow trees once again in certain places. Michigan has about 20 million acres of forest, which is more now than at any other time over the past few decades. The many characteristics vary widely across Michigan especially when comparing the sets of changes in the western Upper Peninsula and the changes that most people see in the southern Lower Peninsula. The amount of forest data and definitions is overwhelming and can be challenging to sort through…

Atlas Obscura, December 7, 2017: Mountain trees love dust

Up in the atmosphere there are millions of tons of dust moving long distances across the globe. It’s akin to the way that rain clouds move around the world, but while rain gets our attention, most of time we don’t notice when dust is falling. In 2014, a group of scientists decided to find out how much dust, exactly, falls in the Sierra Nevadas. Over a few months they collected dust from a site on the mountain range’s western slope, and they were surprised how thickly it was being deposited. As much as 45 percent of it was coming from across the ocean in Asia. Clouds of dust can carry nutrients long distances, and some places are known to depend on dust deposits for survival. The Amazon, for instance, depends on dust from the Sahara to provide its nutrients. But mountains were thought to be mostly self-sufficient. In fact, no one had thought much at all about the impact of dust on mountainous ecosystems. But a new report, published today in Science Advances, suggests that dust may be contributing more to mountains than scientists had realized. Mountains tend to have rich soil that’s created locally as bedrock erodes. Scientists had assumed that bedrock soil was providing most of the nutrients those mountain ecosystems might need. But after the discovery of just how much dust was falling on the Sierra Nevadas, a group of scientists from the University of Wyoming and the University of Michigan, three of whom worked on the earlier report, decided to dig deeper. Were the mountains’ plants actually using the nutrients that blew in with the dust? And where else might there be more dust than expected?

San Diego, California, KSWB-TV, December 7, 2017: Man killed by falling tree branch

A man in his 70s was killed by a branch that fell from a eucalyptus tree in Carlsbad Thursday as high winds lashed the region, a city official said. The man was getting out of his car around 10:30 a.m. at Holiday Park when he was struck by an 8-inch-diameter branch, city spokeswoman Kristina Ray said. The park, at Chestnut Avenue and Pio Pico, is the one visible to drivers just east of Interstate 5. According to Ray, a witness called 911 and responding firefighters tried lifesaving measures, but the man was pronounced dead around 15 minutes later. His name was withheld pending notification of his family…

All That Is Interesting, December 7, 2017: BBC once convinced people that a spaghetti tree existed

In 1957, the BBC pulled off what is arguably the greatest April Fools joke of all time. It was so good, and so believable in fact, that BBC staff members were convinced, and had to research the topic to confirm that it was a hoax.  On April 1, 1957, BBC’s broadcasting network aired a three-minute video segment, which showed farmers “harvesting” a rare delicacy from a grove of trees — spaghetti. The video featured groups of farmers, working in pairs, removing spaghetti noodles from branches, and lying them out in the sun in large baskets to dry.  The announcer, Richard Dimbleby, noted that the spaghetti harvest would be particularly bountiful that year, thanks to the almost complete eradication of the spaghetti tree’s main predator, the spaghetti weevil…

Little Things, December 7, 2017: Neighbors see beloved trees chopped down on street, then make signs for Mayor to save the rest

One of the best things about living in the suburbs is the abundance of trees. Many of the roads in the suburban town I grew up in are lined with beautiful trees, which is one of my favorite things about the neighborhood. Residents in Mineola, New York, (which is not far from my previously mentioned hometown) apparently agree. When neighbors came home from work one day, they found that three of the trees that lined their street had been chopped down to stumps. They were immediately confused and angry. They found out that town officials had ordered the trees be chopped down for road work. Many of the neighbors believed this was unnecessary, though, so they took action. According to News 12 Long Island, residents of the street remember actually planting those trees themselves. Neighbors lined up on the street with signs appealing to the mayor, telling him he’s “barking up the wrong tree.” Some residents even parked their cars in front of the trees to prevent workers from cutting them down…

Newton, New Jersey, Herald, December 6, 2017: High Point students plant trees to knock out invasive species

Reed canary grass, which can grow as high as six feet, is an invasive species that lines the banks of many water sources in Sussex County, including the Papakating Creek in Wantage.  The successful invader shades native plants and “chokes out” their roots, according to the National Park Service, so the Sussex County Municipal Utilities Authority and the Wallkill River Watershed Management Group have taken on the task, among other projects, to combat the species by planting native trees.  According to the park service, planting trees will “shade out” the canary grass, preventing it from growing and spreading.  Often with a community-based approach with many of their projects, the Wallkill River Watershed Management Group, under the direction of Nathaniel Sadjak, collaborated with 10 High Point Regional High School advanced placement environmental science students and their teacher, Aaron Baker, and planted 150 trees along the west branch of the Papakating Creek…

Warren, Ohio, Tribune Chronicle, December 6, 2017: Tree cutting policy unclear in Niles

If a tree is in a devil strip, is the city authorized to cut it down if a resident asks? It all depends on who you ask, and since there isn’t a clear answer, City Council President Bob Marino asked Law Director Terry Swauger during a Wednesday City Council meeting to draft legislation making the city’s policy crystal-clear. After a resident questioned why the city recently cut down a tree in front of a Niles home, it became apparent those on council and the superintendent of the light department have differing perspectives on the answer. “It’s been our policy since I started working here 25 years ago that if someone asks you to cut down a tree in the devil strip, you take it down,” Jim Newbrough, superintendent of the light department said. “All you’ve got to do is ask. As long as it’s feasible we’ll take it down, but we won’t come on private property.” Councilman Steven Mientkiewicz, D-2nd Ward, questioned this response. “If the tree comes down because it’s in the power lines, it’s the homeowner’s responsibility to remove the stump,” Mientkiewicz said. “That was my impression of our policy, but now it’s different?”

Juneau, Alaska, KTOO-TV, December 6, 2017: Tongass in transition: Striking a chord with old growth trees

The last sizable timber mill in the state has struggled to find enough trees to keep the saws running. But down the road, a small mom and pop operation is thriving with a unique business model. Alaska Specialty Woods uses salvaged trees to make instrument tops, which are shipped all around the world. But this sustainable company still wants the timber industry to stick around. Near the end of windy gravel road, Brent Cole Jr. fires up a chainsaw.  With his dark hair piled into a bun, he runs the blade through an enormous log sitting on the ground. His brother is next to him, cutting the section into smaller and smaller chunks.  The tree they’re slicing has been dead for decades. It’s salvaged from an old logging raft that was used to transport heavy machinery in a bygone era. This is how the family business gets its wood: from bridges no longer used on old logging roads to trees that have been blown down or are dead standing.  Cole says there are millions of acres in the Tongass National Forest, and finding these trees can be like a scavenger hunt…

Havre, Montana, Daily News, December 6, 2017: Experts talk about harvesting, caring for damaged trees

Forestry specialists armed attending landowners, residents and various county and reservation employees, during a two-part workshop Tuesday, with hours of information on best grazing, logging and tree-care practices. The idea for workshops – sponsored by the Montana State University Extension, U.S. Department of Agriculture and Hill County Conservation District – was sparked by the damage caused and the trail of questions raised after this year’s East Fork Fire and the Oct. 2-3 record-setting snowstorm. Peter Kolb, Ph.D., a Montana State University Extension forestry specialist and Matt Ricketts, Natural Resources Conservation Service state forester, spoke to people in the Timmons Room of the Hill County Courthouse about how best to resuscitate grazing grass and forests after a fire has been through, including tree differences, logging and lifespan and how to identify a tree that will survive a fire, among many other things. After that session, Kolb and Ricketts took people on site in the Bear Paw Mountains to apply what had been taught…

Houston, Texas, Chronicle, December 5, 2017: Trees fight flooding. Houston needs a lot more.

When cities have healthy trees, they have healthy people. The universal need for nature is evidenced across all cultures and demographics. Study after study demonstrates the positive effect of trees on every aspect of human emotional and physical health, including obesity and asthma. One can, and should, think of our city’s trees as forest therapy. As much as trees do for our health, they make just as much sense when thought of as living infrastructure. They act as sound walls, water and air filters, and shade structures. They reduce cooling bills, slow down floodwater, fight erosion, make our summer streets more walkable and increase our property values. That’s why every city should look to plant as many trees as they can – and that is especially true in Houston…

Cleveland, Ohio, WJW-TV, December 5, 2017: I TEAM: residents unhappy with payouts for tree damage

The FOX 8 I TEAM has uncovered new fallout from storm damage caused by trees which should have been cut down by city crews. We’ve shown you the city of Cleveland is behind on taking down thousands of dead or dangerous trees. We’ve reviewed several payouts from the city to victims of damage to a car and homes from those trees. But the payouts aren’t what the victims expected. A year ago, a big tree blew into the house where Ronnie Foster lives on West 122nd. The damage came from a dead city tree that had not been cut down in time even though Foster says he complained about it. Now, the city’s Moral Claims Commission has approved a payout of $1500 for the damage. Foster described the process saying, “It’s a joke.” He added, “It’s nothing I can do about it. It’s take it or leave it. The payouts just approved by the Moral Claims Commission ranged from $100-$1500…

Los Angeles, California, Times, December 5, 2017: Drought and bugs have killed tens of thousands of trees in the Santa Monica Mountains

When biologist Rosi Dagit wants to give people a glimpse of the urgency of the problem afflicting trees in the Santa Monica Mountains, she takes them to a withering oasis in Topanga Canyon where hundreds of sycamores, alders and willows are dead and dying. Just six years ago, the creek offered all the arboreal comforts needed for frogs, newts and protected fish such Arroyo chubs and steelhead trout to avoid extinction: leafy canopies to control water temperature and prevent algae blooms, and willows buzzing with insects for nourishment. Now, streamside trees weakened by drought are being ravaged by fungal diseases and swarms of insects the size of sesame seeds — imperiling not only the lush canopy but all the creatures that live in the stream…

Baltimore, Maryland, WMAR-TV, December 5, 2017: Hundreds of mites crawl off Christmas tree and into family’s home

A few days after decorating their Christmas tree, a family discovered specks all over there floor. Upon further inspection, they were mites, and they were coming from the tree. “According to Safer Brand, there could be up to 25,000 different pests in a tree, most commonly aphids, spiders can get in, beetles,” said Sasa Milenkovic, owner of Pest Czar. The family has had live trees for the past 40 years, and in the last three years, they’ve experienced two bug breakouts from trees that came from two different businesses. “Once introduced into a warm environment such as a house they tend to reactivate and wreak havoc around the Christmas tree,” said Milenkovic…


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


Case of the Day – Thursday, December 14, 2017


Removing covenants can be like herding cats ... which explains why Robby Ricciardello looked for a shortcut.

Removing covenants can be like herding cats … which explains why Robby Ricciardello looked for a shortcut.

We had occasion a couple years ago to round up a majority of 55 subdivision owners in order to revoke some 25-year old restrictive covenants. The rules were pretty harsh – no work vehicles with signage in front of the house, no sheds, no yard signs …

It helped that almost everyone in the subdivision was already violating one or more of the covenants. We explained – over a several-month education program – that all it would take is one jerk moving into the neighborhood who wanted to stick it to his neighbor, and we’d all face trial court Armageddon.

We got a majority to sign on, but it was like herding cats, an exhausting effort. We made our filing deadline by a nose. The whole experience gave us a heightened appreciation for the long suffering neighbor in today’s case.

The case concerns poor Robby Ricciardello. Well, maybe not poor in the fixed asset sense. Robby owned five lots in a subdivision, and he had big plans — plans like build a barn, store bulldozers, hunt, grow mangoes — you know, the kinds of things we all like to do with our lots in the middle of subdivisions.

A man oughta be able to do what he wants with his own property ... right?

A man oughta be able to do what he wants with his own property … right?

But he had a problem. His deed contained one of those pesky restrictive covenants that restricted the use of the lots to the construction of one-family homes only. Fortunately for Rob, the restrictive covenants provided that they could be amended or terminated by a vote of the owners of six of the subdivision lots.

Robbie decided to build a barn anyway, and he hatched a plan to pull it off. He told his neighbor Jim Carroll what he was going to do. Jim panicked, because he knew Rob had five lots and only needed the concurrence of one more owner. So Jim hatched a plan of his own, starting a drive to amend the covenants in order to make them harder to circumvent. Finally, Rob announced he wouldn’t build a barn after all, so Jim abandoned his efforts.

Any sense of relief Jim felt was short-lived, because Rob did an end run on the subdivision owners. He formed his own limited liability company, which he had to buy an additional lot. Rob essentially had a meeting with himself as an owner of five lots and Connecticut Outfielder LLC – of which he himself was the president – being the sixth lot owner. Rob took a nose count, and — mirable dictu — the owners of the minimum six lots were present! The vote was unanimous, unsurprisingly, as Rob agreed with himself to terminate the covenants.

My shadow is duly incorporated ...

My shadow is duly incorporated …

Pretty slick, Rob. But Jim didn’t think so, and he sued. Connecticut Outfielder protested that it had done nothing wrong. It just agreed to terminate the covenants, something it as an owner had a right to do. Rob and his alter ego LLC moved for summary judgment, pointing out that the restrictive covenants had been terminated. The court disagreed, finding that issues of fact existed, not the least of which being whether Rob had misled James to induce him to abandon trying to amend the covenants, and whether one guy – by controlling six lots himself or through corporate devices – could validly terminate the covenants.

James B. Carroll 2003 Revocable Trustee v. Ricciardello, Not Reported in A.2d, 2007 WL 2080583 (Conn.Super., Apr. 4, 2007). It seems that Robert Ricciardello and James Carroll were adjacent landowners in the Ferrando Subdivision of Glastonbury Connecticut. The Subdivision lots were subject to a “Declaration of Covenant and Restrictions” that provided, in part, that “[e]ach lot shall be used and maintained solely and exclusively for one-family residential purposes … No trailer, tent, shack, garage, barn or other outbuilding erected on any Lot shall at any time be used as a residence temporarily or permanently … [The] covenants and restrictions are to run with the land and shall be binding on the Declarant, purchasers or owners of any Lot … for a period of twenty (20) years from the date of recording … During the twenty-year period that this Declaration is in effect, any or all of the covenants, conditions and restrictions contained herein may be amended or terminated by an instrument signed by the then owners of at least six (6) of the Lots described on Schedule A hereto, which instrument shall be recorded on the Glastonbury land records.”

In June 2004, Ricciardello told Carroll he intended to build a barn on one of the six lots he owned. Carroll started talking to the other owners about amending the covenants to, among other things, raise the number of lot owners needed to amend or terminate the covenants. Then Ricciardello told Carroll he had decided not to build the barn, and Carroll abandoned his efforts to get the covenants stiffened.

But Ricciardello, ever the crafty one, formed a Connecticut limited liability company named “Connecticut Outfielder LLC.” The same day it was formed, it bought lot two of the subdivision. Three weeks later, Ricciardello and Connecticut Outfielder — who together owned six lots in the subdivision — executed a “Release of Declaration of Covenants and Restrictions,” that was recorded in the Glastonbury town clerk’s office, which wiped out all of the covenants and restrictions on the books.

covenant150826Ricciardello proceeded to do as he liked with his lots, planting an orchard, hunting for small game and storing construction equipment. Carroll sued, claiming that the release of the covenants was improper, and asked for an injunction. Ricciardello and Connecticut Outfielder answered, counter-claimed and filed for summary judgment. Connecticut Outfielder contended there are no genuine issues of material fact and that Connecticut Outfielder is entitled to judgment as a matter of law for the breach of restrictive covenants count and the counterclaim seeking a declaratory judgment that the release of covenants is valid. Connecticut Outfielder’s grounds for the motion were that Carroll testified that Connecticut Outfielder did not breach the covenants, and, the plaintiff did not allege any wrongdoing by Connecticut Outfielder in the operative complaint. Carroll objected that there were genuine material issues of fact.

Held: Summary judgment was denied. Summary judgment, of course, is appropriate where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Here, the Court said, genuine issues of material fact exist concerning whether Ricciardello and Connecticut Outfielder breached the covenants and whether the covenants were properly released. Also, an issue existed whether Carroll relied on Ricciardello’s false assurances that he wouldn’t build a barn in deciding to abandon his quest to amend the covenants to block Ricciardello’s plans.

As long as those issues remain, the case must go to trial.

– Tom Root


Case of the Day – Wednesday, December 13, 2017


Robert Loggia as Thomas Hewitt Edward Cat, accomplished second-story man turned bodyguard in this 1960s action series ...

Robert Loggia as Thomas Hewitt Edward Cat, accomplished second-story man turned bodyguard in this 1960s action series …

Remember T. Hewitt Edward Cat? His hangout at the jazz joint Casa del Gato? Lalo Schrifin’s cool theme music?

That’s OK if you don’t, because the cat we’re talking about today is anything but the black-clad suave Robert Loggia. More Garfield than cool cat, the Dinuccis’ tabby kept wandering into Mr. Lis’s yard. The Dinuccis — who, face it, didn’t have a great rapport with their neighbor to begin with — didn’t give a hairball about Lis’s complaints.

Finally tired of it all, Mr. Lis trapped the feckless feline and turned it over to the City. The City charged with Dinuccis with an “animal at large” minor misdemeanor. About this time, old softie Mr. Lis contracted a case of the “guilts.” He could hardly live with himself if the Dinuccis found themselves doing 30-to-life in some hard-labor gulag. So he relented, and asked the city law director to dismiss the charges.

Big mistake. Proving the old adage that no good deed goes unpunished, the Dinuccis promptly sued Lis for malicious prosecution.

deed150825After the long-suffering neighbor paid a metric ton of legal fees, the trial court threw the case out, and the Court of Appeals agreed. The Dinuccis’ case suffered from a simple problem: they never denied their cat was free range (how could they?), and that was all the ordinance required. Because there was probable cause to believe that the peripatetic pussycat had gone feral, there was probable cause to believe ordinance had been violated. That being the case, there could not be malicious prosecution.

Nevertheless, if it happens again, we’d bet Mr. Lis’ll demand the City Prosecutor throw the book at ‘em — and probably overdose their sweet little kitty with industrial strength catnip. Ingratitude isn’t only unbecoming… often, it’s self-defeating, too.

stray150825Dinucci v. Lis, Slip Copy, 2007 WL 2269740 (Ct.App. Ohio, Aug. 9, 2007). This dispute between neighbors started over involving the capture and eventual safe release of a house cat. The parties were before this court in an earlier dispute, which involved trespass, property damage, and continuing nuisance claims by the Dinuccis against their next-door neighbor Matthew Lis. Then the Dinucis had claimed Lis was liable for 1) delays in the construction of their house due to his objections, 2) damage to their lawn caused by trespassing, 3) willow tree branches hanging over their property, and 4) creating a nuisance by having the Lis yard look like a construction site for over two years. Out of all of that the Dinuccis won a princely $150 for damage to their lawn, the rest of their claims having been thrown out. The Dinuccis appealed to no avail.

At the same time, it appears that Lis had been complaining since 2004 about Dinuccis’ cat wandering around the Lis homestead. Lis contacted the North Royalton, Ohio, animal control department. The City’s animal control officer told the Dinuccis that the city had received complaints from neighbors concerning their cat, and warned them that they would be cited if the problem wasn’t resolved.

It wasn’t, and a few months later, Lis captured the feline on his property and turned it over to the City. The Dinuccis were charged with a violation of North Royalton Ordinance 618.01, the “Animal At Large” provision. The North Royalton prosecutor met with the parties, at which time Lis agreed with the recommendation that the criminal charge against the Dinuccis be dismissed. But after the charges were dismissed, the Dinuccis filed a civil lawsuit against Los, alleging malicious prosecution and intentional infliction of emotional distress. The trial court granted Lis’s motion for summary judgment and dismissed the case. Dinuccis appealed.

garfield150825Held:  The case was correctly thrown out. The Court observed that, after all, North Royalton Ordinance 618.01 clearly stated that ‘[n]o person who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, dogs, cats, geese or other fowl or animals shall permit them to run at large upon any public way or upon unenclosed land” and that “[t]he running at large of any such animal in or upon any of the places mentioned in this section is prima facie evidence that it is running at large in violation of this section.” In order to establish the tort of malicious prosecution, the Dinuccis had to prove malice in instituting or continuing the prosecution, a lack of probable cause, and termination of the prosecution in favor of the accused. And here, the Dinuccis couldn’t show a lack of probable cause.

Probable cause does not depend on whether the claimant was guilty of the crime charged, but instead, only on whether Lis had probable cause to believe that the Dinuccis were guilty. Lis wasn’t bound to have evidence sufficient to insure a conviction, but instead was required only to have evidence sufficient to justify an honest belief of the guilt of the accused. Here, the Court said, the evidence show that both the city and Lis had a reasonable belief that Dinuccis violated North Royalton Ordinance 618.01.

Indeed, the Dinuccis didn’t deny violating the ordinance either at the trial court level or in their brief. Their cat was captured on Lis’s property. As a result of a reasonable belief that the violation occurred, probable cause to investigate existed. The evidence was sufficient to justify an honest belief of the guilt of the accused.

– Tom Root


Case of the Day – Tuesday, December 12, 2017


solong161006Today, we conclude our consideration of the trespass problems faced by our New Hampshire landowners Larry and Laura Littoral. If you have followed along to this point, you know that the Littorals’ pastoral cottage getaway, situated on a classic New England pond, has been disrupted by neighbor Wally Angler.

Wally – who is really a NINO (neighbor-in-name-only) – is an angler, and asked the Littorals to chop down some dead trees on their property to create a trout habitat in the pond for the primary (and sole) purpose of adding to Wally’s piscatorial pleasure.  You can hear him now: “Thanks for all the fish!”

The Littorals preferred that their dead timber remain standing. When Wally asked them to cut down the trees, they said, “so long,” refusing to dump their tree into the pond. Apparently reasoning that it’s easier to ask forgiveness than permission – especially where permission has already been denied – Wally then took advantage of the Littorals’ weekend absence by bringing in a tree service to cut the trees down for him. According to the Littorals, Wally affirmatively misled the tree cutters that the dead trees were on his property, and the tree service cut down the timber with alacrity.

gw161006For the record, Wally denies having anything to do with the felling of the dead trees. He seemingly maintains that he turned around one day, and mirabile dictu, the trees were on the ground. If George Washington had tried a similar woof story on his father about a downed cherry tree, we’d probably all be speaking English and enduring lousy health care right now. As every schoolchild knows, however, Little George ‘fessed up, telling his father, “I cannot tell a lie.” Channeling Lloyd Bentsen, our observation is this: Wally, we served with George Washington, George Washington was a friend of ours. Wally, you’re no George Washington.

Our analysis this week has assumed that unless Wally can produce the elves responsible for the tree cutting (and their saws), the Littorals will easily meet their burden of proof.

So far this week, we have concluded that the Littorals may bring a double-barreled complaint, alleging a statutory violation of New Hampshire’s trespass-to-tree statute, R.S.A. § 227-J:8, and a common-law trespass count. The § 227-J:8 count carries some pretty serious penalties, from three to 10 times the market value of the trees. The catch is that the penalties must be based on a multiple of market value. Market value may be the stumpage value of the wood – what it is worth on location to a lumber buyer – or on the cost to replace the tree, minus transportation and planting costs.

We’re assuming for the sake of this column that a few dead trees probably are not going to have much stumpage value. The Littorals could find an expert to establish how much replacement of the trees would cost, but replacement value has traditionally been used because everyone assumes that the destroyed trees would have continued to flourish but for the actions of the defendant. Here, the defendant’s expert would have a good argument that those trees were going to fall in the near future anyway, and awarding the Littorals new live trees to replace their old dead ones would represent as windfall to the plaintiffs.

Wally suspects elves.

Wally suspects elves.

Given Wally’s underhanded approach to getting what he wanted (and what the Littorals did not want), we don’t have much trouble with the Littorals receiving a “windfall.” The law in New Hampshire and elsewhere does, however, holding that damages should be limited to compensating for the actual injuries suffered. For that reason, the Littorals can take the confluent approach that under the common law of trespass, their real property has suffered a decrease in value because of Wally’s conduct, both because of where the dead trees are no longer standing and because of where they are currently laying.

Even then, the Littorals might have a problem because the usual assumption underlying damages for loss of trees is that standing timber will continue to stand for the indeterminate future. That assumption may be challenged where the standing timber is already dead. Nevertheless, there is ample evidence that dead trees standing have value. As we noted the other day, dead trees provide shelter or sustenance to over 40 percent of all birds, to amphibians, and to lichens and moss. Dead trees create “snow fences” that slows wind-driven snow. The snow that is trapped melts in place and saturates the ground, providing additional moisture to live trees. Dead trees create hiding cover and thermal cover for big game as well.

Even more counter-intuitive, dead trees – after dropping their needles and bark – may reduce fire hazard. Their flammability is greatly reduced compared to green trees containing flammable resins.

stumps161006In the case we’re looking at below, the plaintiff relied on standing dead timber to help maintain privacy from his neighbor. The court appeared to recognize that the elimination of the standing dead trees contributed to a substantial diminution of her property value, even while acknowledging that the trees themselves had no value. It’s not a New Hampshire case, but then there is a dearth of cases nationwide where the wrongfully cut trees were ornamental in nature and yet very dead even before tasting the ax. We were glad enough to find this one. The decision suggests that an action alleging loss of privacy may be the strongest case of all.

Caciopoli v. Lebowitz131 Conn.App. 306 (Court of Appeals, Connecticut, 2011). Dominic Caciopoli was a man who liked his privacy. He bought his place because it was isolated and private, surrounded by forest on all sides except for one area of the lot though which his driveway passed. A short while later, Jeffrey Lebowitz bought the place next door. His house was about 100 yards from Dom’s, and the area between the residences was wooded, affording each privacy from the other.

A few months after moving in, Jeff hired a tree service to clear standing dead trees from the wooded area between the two homes. Jeff believed the dead, but he didn’t check that carefully. The tree service removed all the dead timber, both standing and on the ground, some small saplings, and a few larger trees to provide more sunlight and enlarge the areas surrounding his house. Of course, it turns out that virtually all of what was cut belonged to Dom.

When Dom came home to find that his natural privacy barrier had been clear-cut, he was not happy. He went to Jeff’s front door and expressed his displeasure, pointing out the actual property line in the process. Nevertheless, the next day, the tree service returned and finished the job. The removal of the trees and brush left Jeff with an unobstructed view of Dom’s house.

Jeff tried to make amends. He sent Dom a letter admitting his error and planted some trees on Dom’s property to replace what had been taken. Dom was not happy with the results, and undertook his own extensive landscaping project in a failed attempt to restore his lost privacy.

Give a man a fish, and feed him for a day. Give a man a chainsaw, and watch trouble ensue.

Give a man a fish, and feed him for a day. Give a man a chainsaw, and watch trouble ensue.

Dom sued Jeff for common-law trespass and for treble damages pursuant to Connecticut General Statutes § 52-560 (the Connecticut adjunct to R.S.A. § 227-J:8). The trial court found that Dom had proven the elements of an intentional trespass action, and awarded him $150,000. for the diminution in the value of his property caused by the trespass. Notably, the trial court declined to award any damages for the value of timber removed.

Jeffrey Lebowitz appealed, alleging a lot of infirmities with the trial judgment. Of interest to the Littorals is Jeff’s appeal of the damage award.

Held: The trial court’s award of $150,000 was proper. The trial court found that after the cutting Dom’s place was worth $675,000, according to an appraisal performed by a certified general real estate appraiser. The appraiser opined that prior to the cutting, Dom’s market value was $825,000. The Court of Appeals noted that Jeff could have presented his own expert testimony on the diminution of value, but he did not. Applying the ancient legal doctrine, et dormiat, ne perdatis (“you snooze, you lose”), the court said Dom’s expert was found to be credible and competent, and absent Jeff making an expert showing at all, that was good enough.

But, Jeff complained, Dom’s expert was not qualified to give an opinion as to the effect of the removal of certain trees from Dom’s property on its market value. He argued the expert had no relevant experience, and was considered an expert only because she had a real estate appraiser’s license. However, the Court of Appeals said, the trial court relied on the fact she had conducted 1,500 appraisals before, and when the trial judge asked her whether she was able to testify as to the value of the property before and after the removal of the trees, she said she could. (This is rather like finding that she was an expert because she asserted she was, a rather bizarre ipse dixitbut the Court of Appeals was loathe to disturb a verdict, and thus to give Jeff a second bite of the apple on remand).

Jeff also argued that the court made no finding whether there was an adequate factual foundation for a “retrospective appraisal” – an appraisal after the fact of the value of the property before the cutting – and that Dom did not ask the court to find  there was an adequate foundation for allowing the opinion evidence. The Court of Appeals pointed out that it was Jeff’s burden to object to the testimony on those grounds at the time of trial. Again, et dormiat, ne perdatisThe expert testified she visited the property in January and February 2009, and had determined the lot enjoyed a high degree of privacy prior to the incident. She also studied photographs of the lot prior to the trespass and after the trespass, and noted that the pictures depicted more clearing of trees than she had imagined and thus, strengthened her opinion as to diminution in value.

No one contests that trees in the water are a good habitat for fish... but Wally should have used his own trees.

No one contests that trees in the water are a good habitat for fish… but Wally should have used his own trees.

The Court observed that Jeff pointed to no authority to suggest that the expert’s personal observation of the property, her reliance on the plaintiff’s descriptions of the prior conditions of the property and photographs of the property in its prior conditions formed an inadequate factual foundation. The Court said the expert’s personal observation of the property “complemented by the plaintiff’s descriptions of the property in its prior conditions, is not impermissibly speculative…” After all, the Court said, Dom – as the owner – was undoubtedly familiar with his property (if perhaps lacking disinterest in the outcome), and no one was more competent than he to describe to the expert what it had looked like before the cutting.

The Court held the fact that the expert “could not give a logical explanation for how she arrived at her opinion and did not articulate or apply methodology suitable to determining any diminution in value caused by the clearing of trees” was not fatal to her testimony. She testified that she examined real estate in the area, found comparable properties, estimated degrees of privacy and made adjustments, positive or negative, for the differences in the properties in order to “equal everything out.” She also noted that an appraisal is not based on science, but it is just an opinion as to value, and the Court accepted that.

Jeff had to pay the $150,000. That’s a lot of money for some dead trees that had no stumpage value.

– Tom RootTNLBGray140407

Case of the Day – Monday, December 11, 2017


Today, we continue to examine the situation faced by our Granite State tree victims, Larry and Laura Littoral. If you read last Friday’s post prior to your third Arnold Palmer martini, you recall that the Littorals have both a cottage on a pond – which is beautiful –and a pesky neighbor, Wally Angler – who is not so beautiful.

cuibono161005Fisherman Wally’s entreaties to the Littorals that they cut down some dead trees on their property, dropping them into the pond where they will provide a habitat for the fish Wally loves to catch, fell on deaf ears. It seems  the Littorals liked the contribution their standing dead timber made to their cottage ecosystem. So when the Littorals were absent one fall weekend, Wally took matters into his own hands, hiring a tree service to cut down the trees. Wally of course denies having any role in the tree’s mysterious felling, but for the sake of our analysis – and because we recall Marcus Tullius Cicero’s incisive question, cui bono? (that is, “who benefits?”) – we reasonably assume that proving Mr. Angler was the only guy with motive, opportunity and means to cut down the trees will be child’s play.

Last Friday, we considered New Hampshire’s trespass to tree statute, R.S.A. § 227-J:8, which has been around in some form since the early 19th century. It’s a pretty solid statute, providing that no person shall negligently cut, fell, destroy, injure, or carry away any tree or part thereof on the land of another person. If someone violates the statute, he or she is liable for a forfeiture to the aggrieved landowner of anywhere from three to ten times “the market value of every such tree, timber, log, lumber, wood, pole, underwood, or bark cut, felled, destroyed, injured, or carried away.”

Notice that we used quotation marks in the foregoing paragraph. They’re there for a reason. You see, the rub in 227-J:8 is that the statute turns on the market value of the trees. That worked very well when the kind of timber trespass going on was limited to a lumberman taking a thousand trees from the wrong side of the boundary marker. Indeed, that was precisely the kind of conduct at which the statute was aimed. But 227-J:8’s a tougher fit where only two or three trees are cut, not for their market value but rather for some noncommercial reason. The Littorals could sue under 227-J:8, but what would the market value be of few dead trees (or even a few live ones)?

In a stretch perhaps dictated by necessity, the New Hampshire Supreme Court in the case we discuss below did hold that “market value” may be measured as the cost of a replacement tree of comparable value, but even that might not get the Littorals very far. Such an analysis would bring them fairly quickly back to a measure of the fair market value of the dead tree itself.  To get any traction, the Littorals have to get beyond the value of the dead tree qua tree, and instead find a measure of damages that focuses on the value of the dead trees to the property.  We’ll be focusing more on that tomorrow, but for now, we need some legal vehicle that will let them be compensated adequately for Wally’s selfish attack on their property.

Fortunately, the common-law remedy of trespass continues to enjoy vitality in New Hampshire. Assuming the Littorals lost three dead trees, and assuming that they could find an expert who would testify that the stumpage value of those trees was $300 apiece, they would not quite get to $1,000 in damages (before 227-J:8’s multiplier was applied). But the three trees – referred to in the tree law world as “ornamental trees – were worth much more to the Littorals (and their real estate).

Common-law trespass - the "plain vanilla" tort still tastes pretty good.

Common-law trespass – the “plain vanilla” tort still tastes pretty good.

Where the trees lost are not commercial timber, but rather trees with aesthetic value (or some other specialized value), New Hampshire courts will permit the injured party to sue in trespass, and for damages to show either that the market value of the real estate has fallen because of the loss or that the cost of replacing the lost trees rises to some ascertainable figure.

Here, although the Littorals are entitled to (and will probably want to) include an R.S.A. § 227-J:8 claim, they will also want to allege the good old plain-vanilla tort of trespass, showing that Wally’s transgression damaged their property as a result. After all, New Hampshire lets the injured homeowner include both the time-tested common-law trespass claim and an R.S.A. § 227-J:8 claim in the same complaint. Common-law trespass may be plain vanilla, but it’s survived as a cause of action for centuries because it works.

The Littorals report that they have evidence Wally moved the iron-pin boundary markers before the tree service arrived, so as to fool otherwise cautious tree workers that he owned the land on which dead trees in question stood. As it is in most states, moving property markers is a misdemeanor in New Hampshire, not to mention being pretty compelling evidence of the willfulness of Wally’s conduct. Indeed, in most states, this would probably be enough to win punitive damages against Wally, which are extra amounts meant not to compensate the plaintiff for his or her injury, but rather to exact a pound of flesh from the misbehaving defendant.


Burning a beer at the stake? Now that would be a “monstrous heresy.”

But New Hampshire isn’t “most places.” Rather, “the punitive function of exemplary damages has been rejected in forceful and colorful language” by the New Hampshire Supreme Court. “‘The idea is wrong,” the Granite State Supremes thundered well over a century ago. “It is a monstrous heresy. It is an unsightly and an unhealthy excreascence, deforming the symmetry of the body of the law’.”

Fortunately, modern New Hampshire jurists have left their aggrieved litigants an out. While punitive damages are forbidden, the courts agree that in cases “where the acts complained of were wanton, malicious, or oppressive, the compensatory damages for the resulting actual material loss can be increased to compensate for the vexation and distress caused the plaintiff by the character of defendant’s conduct.”

So if the Littorals sue for trespass, and show that the trespass and subsequent loss of their trees resulted because Wally was a guy who charged ahead fully aware he was in the wrong, their compensatory damages may rise well beyond even what they could get even if the court set the R.S.A. § 277-J:8 multiple at 10 times the market value of the dead wood.

But we’ve still left the question of exactly how much a dead tree is worth, either as marketable timber or for aesthetic purposes. We’ll take up that problem tomorrow.

Woodburn v. Chapman I, 116 N.H. 503 (New Hampshire Supreme Ct., 1976); Woodburn v. Chapman II, 117 N.H. 906 (New Hampshire Supreme Ct., 1977).  Chapman removed a single maple tree, 18 inches in diameter, which  stood on Woodburn’s land. He never imagined that cutting down one tree would result in two trips to the New Hampshire Supreme Court. But it did.

The trial evidence showed replacement of a 30-inch maple would cost $3,600. Taking this figure and applying a treble multiplier from the tree trespass statute, the court gave Woodburn judgment for $10,805.

Chapman appealed.

Held: In Woodburn I, the Supreme Court held that the trial court’s use of the tree’s replacement cost as the basis for the statutory penalty was wrong. The Court admitted that “in some circumstances replacement cost may be the proper measure of damages for the destruction of a tree.” But the tree trespass statute (then R.S.A. § 539:1, replaced later with R.S.A. § 227-J:8) “takes the value of the tree by itself,” the Court said. The severity of the statutory penalty varies with the productive quality of the tree. Indeed, the whole purpose of the statute is to protect marketable resources.

The Court held “where a tree confers other benefits on the plaintiff in the enjoyment of his property, he may join a count for compensatory damages with his count to recover the statutory penalty. The ordinary measure of damages in these circumstances is the difference between the value of the land before the harm and the value after the harm. In this case the plaintiff introduced evidence of special circumstances which might justify the award of the replacement cost of an eighteen-inch maple.”

On remand, Woodburn’s expert testified that the tree’s value by itself was $2,173. He arrived at this figure by deducting from the tree’s replacement cost the expenses associated with digging, transporting and replanting the tree, resulting in an estimate of the value of the tree itself. The trial court accepted the evidence, and awarded treble the amount as a penalty.

On appeal from the remand, Chapman complained that the base figure from which any statutory penalty is to be calculated must be stumpage value. He argued that the statute is designed to protect marketable timber, and thus only the tree’s value as timber should be used in computing the penalty. Since Woodburn produced no evidence of the tree’s stumpage value, Chapman complained, there can be no recovery under the statute.

The Littorals should have gotten this sign with special wording, "And don't cut down our trees, Wally, whether they're dead or not!"

The Littorals should have gotten this sign with special wording, “And don’t cut down our trees, Wally, whether they’re dead or not!”

The Supreme Court disagreed, holding that the statute applies to “whoever shall cut… any tree…” The statute’s application is not restricted to trees with stumpage value. Instead, the statute applies to any tree, whether its value is as timber or some other marketable commodity.

So, the Court said, where the tree is valuable only as timber, stumpage value should be used to assess the penalty. But, “this rule obviously cannot be applied to fruit, shade, and ornamental trees which have a measurable value but no stumpage value.” In this case, the Supreme Court ruled, the trial court “determined the value of the tree by subtracting from its replacement cost the cost associated with digging, transporting and planting the tree. This was an appropriate method of arriving at the ‘value of the tree by itself’.”

Additionally, Woodburn introduced evidence that the tree had special value to the real property as a boundary marker. That, the Supreme Court ruled, warranted the trial court’s award of $577.00 as compensatory damages in addition to the statutory penalty.

– Tom Root


Case of the Day – Friday, December 8, 2017


A very long-time supporter of ours from New Hampshire wrote us recently to recount the travails of his friends, Larry and Laura Littoral. They keep a cottage on one of New Hampshire’s many delightful ponds. Unfortunately for the Littorals, they have a neighbor, Wally Angler, who is both an avid fisherman and a pain in the fundament.

(These are pseudonyms, of course, and we hope you admire our creativity).

Dead trees are not always eyesores...

Dead trees are not always eyesores…

Wally has been badgering the Littorals to cut down several dead trees on their land. It’s not that the trees a threat to life and limb (they don’t), but rather Wally believes that if the dead timber falls into the pond, it will provide an excellent habitat for trout (and, in the process, benefit Wally’s favorite pastime). Larry and Laura like their property the way it is, believing that dead standing timber is an important part of the ecology of the place, providing sustenance for woodpeckers, shelter for martens, snow fences in the winter, and beauty for nature lovers.

There are two observations worth making here. The first is, while this may seem counterintuitive, abundant evidence exists suggesting that standing dead timber that otherwise does not pose a hazard to people or property has considerable value to the ecosystem. The second is that even if the standing dead trees are of no value to the woods, the Littorals are creating no risk to anyone by keeping the trees standing on their property, and if they like the denuded trunks where they are, the couple should be entitled to letting the dead trees stand.

Recently, the Littorals enjoyed a weekend getaway. At least, they enjoyed it until they returned to their cottage to find the dead trees mysteriously cut down and lying in the pond. Had Horatio been there, he might have said “O day and night, but this is wondrous strange!” But to the Littorals, unhappy as they were, it didn’t seem strange at all. And they didn’t have to look far for a suspect.

Is that the "Bart Simpson defense" we're hearing?

   The”Bart Simpson defense”clashes with Occam’s Razor.

They complained to the local constabulary, who spoke to Wally. He of course denied it, but the Littorals have figured out who Wally hired to cut down the trees, and even deduced that Wally moved the boundary line iron pins to trick the tree service into believing that the trees were Wally’s.

The Littorals are hopping mad, but they don’t want to hang an unsuspecting tree service out to dry. They wonder what action they might have against Wally, and whether the tree service will get nicked in the crossfire. Finally, they note that the local ordinance requires a permit to cut trees within 50 feet of a shoreline, grant of which depends on vegetation remaining or being added to maintain a measured level of trees and ground cover in the area. Unsurprisingly, no one bothered to apply for a permit.

Whew! It’s a veritable tree law final exam. Today, we’ll tackle the first (and easy) question: what kind of lawsuit do New Hampshire statutes permit the Littorals to bring?

At common law, what we’re looking at here is garden-variety trespass, often called in cases like this “trespass to trees” or “trespass to timber.” It appears, however, that New Hampshire has helpfully reduced the action to statute. Section 227-J:8 of the New Hampshire revised statutes provides that

I.      No person shall negligently cut, fell, destroy, injure, or carry away any tree, timber, log, wood, pole, underwood, or bark which is on the land of another person, or aid in such actions without the permission of that person or the person’s agent.

II.   In addition to any other civil or criminal penalty allowed by law, any person who violates the provisions in paragraph I shall forfeit to the person injured no less than 3 and not more than 10 times the market value of every such tree, timber, log, lumber, wood, pole, underwood, or bark cut, felled, destroyed, injured, or carried away.

Simply put, the Littorals have a nice statutory remedy here. Where most state wrongful cutting statutes provide for treble damages, New Hampshire courts can hammer unlucky defendants for up to 10 times the value of the timber.

What’s more, while the statute on its face seemingly applies only to negligent cutting – not to intentional pure-d mean cutting like what occurred here – New Hampshire appears to apply the statute to any wrongful cutting, employing the 3-10x scale provided by RSA 227-J:8 as an analog punishment gauge, with higher multipliers reserved for more egregious conduct.

whodunnit161004The case we look at below involves a New Hampshire timber trespass that exhibited some of the same kind of chutzpah shown by Wally Angler (assuming the Littorals can prove he’s the culprit, which we figure is pretty likely). The brazen willfulness shown by the defendant below – which was not much different from Wally’s intentional trespass – clearly influenced the damages awarded.

Tomorrow, we’ll explore whether the Littorals can bring a common law trespass action in lieu of proceeding under the statute. Then, of course, we’ll have to grapple with the thorny damages question: exactly how much is dead standing timber worth, anyway?

Today’s case:

McNamara v. Moses, 146 N.H. 729 (Supreme Ct. N.H. 2001). Marilyn McNamara lived in Eagle Rock Estates, a residential subdivision in Amherst. The subdivision plans show an access to the lot of her neighbor, attorney Bob Moses, as a shared driveway connecting the lot with the street. The driveway is steep and winding, and tough to use during the winter, so since 1977, Bob and other residents have used an unpaved roadway behind the lots, which they call Eagle Rock Drive, for easier access to their lots. Until 1998, everyone believed Eagle Rock Drive was on common land owned by the Eagle Rock Estates Association.

Marilyn bought her place in 1997. Even she believed Eagle Rock Drive was on common land that abutted the rear of her property. However, after someone proposed paving Eagle Rock Drive, Marilyn researched the matter and found Eagle Rock Drive actually traversed her lot. She announced this at an Association meeting, whereupon Bob Moses told her the Association members had adverse possession of the roadway.

Marilyn tried to get along, giving Bob written permission to use Eagle Rock Drive for the time being but urging him to upgrade his driveway soon, and to begin using it instead. She warned him that she would not agree “to pave the roadway under any conditions.”

In December 1998, Marilyn found one of Bob’s workmen cutting trees along the roadway on her property. The workman said he was preparing the road for further work at Bob’s request. Marilyn told him the property was hers, she had not given permission to cut the trees, and he should stop cutting and leave. When Marilyn’s joint owner, Bill Vargas, met with Moses later that day, Moses said “he owned the road,” and asked, “what are you going to do about it?” Marilyn quickly lawyered up, and told Bob as much in a letter.

The following Sunday, Marilyn and her beau returned from a weekend away (as did Larry and Laura Littoral), to discover that Bob Moses’ contractor had regraded the roadway and widened it by 5 feet. In so doing, Bob’s people cut down at least 12 of Marilyn’s birch and pine trees that did not interfere with passage over the roadway.

The dead trees are now "in" Golden Pond.

The dead trees are now “in” Golden Pond.

Marilyn sued to enjoin Bob from using Eagle Rock Drive and for damages and penalties for unlawfully cutting her trees. The trial court concluded Bob had a prescriptive easement to use the roadway to access his lot, but held that cutting Marilyn’s trees to widen the roadway had been an unreasonable use of the easement. The court awarded Marilyn compensatory damages of $1,200 – the market value of the trees cut in the widening – and penalties of five times that amount ($6,000) under RSA 227-J:8.

Bob appealed.

Held: The Supreme Court upheld the damages and penalties.

Bob argued the trial court erred in awarding damages based on speculation or approximation of the value of the trees. The Court rejected the argument, noting that the “speculative” nature in this case was not the prohibited kind, that is, whether a particular loss has been or will be incurred. Instead, the only speculation was how much damage had been caused, that is, the possible valuation of an actual loss.

The trial court awarded compensatory damages of $1,200 for the 12 lost trees, specifically finding that Marilyn’s estimated value of $100 per tree was “reasonable and, if anything, conservative.” The fact that McNamara did not identify each tree by species when testifying as to the average value of the felled trees may have made her showing kind of light, but that “does not render the court’s finding erroneous, particularly in light of the defendants’ decision neither to cross-examine her nor to offer contrary testimony. Finally, the mere fact that the plaintiffs’ estimate of the value of the trees was an approximation is not fatal.”

Bob also contended that the trial court abused its discretion by awarding five times the value of the felled trees as the penalty for violating RSA 227-J:8. The Court suggested that Bob’s own arrogance was an appropriate factor in setting the multiplier:

The record supports the court’s finding that the defendants willfully caused the cutting of trees on the plaintiffs’ property, thereby amply justifying a multiplier at the low end of the range specified in the statute. In particular, in addition to being informed at the May 1998 association meeting that the land in question was owned by the plaintiffs, when questioned as to whose land he thought he had been driving across prior to the meeting, Mr. Moses responded, ‘I didn’t know, other than I knew it wasn’t mine.’ The court’s assessment that the cutting on the plaintiffs’ land was intentional was also supported by testimony that, when [Marilyn’s joint owner] Vargas confronted the defendants on the afternoon of the cutting, their responses were, respectively: ‘what are you going to do about it?’ and a statement that Mrs. Moses would ‘continue the rest of the clearing herself with her own chainsaw.’ Moreover, after having been informed that they did not have permission to clear the land further, the defendants continued the clearing three days later when the plaintiffs were out of town.

The Court also noted that while maintaining the easement by keeping the road free of brush and overhanging limbs was within Bob’s rights, expanding the roadway by five feet was not.

– Tom Root