Case of the Day – Tuesday, March 24, 2026

Posted on March 24, 2026 by TLRoot tagged.

THE MASSACHUSETTS RULE GETS FLUSHED

Greed may be good … but it doesn’t get a lot of love from the court.

Gloria Lane was a down-on-her-luck middle-aged woman who managed to just eke out an existence with her disabled brother in an old house. Their place was next to a rental property, a house equally as old, but owned by a corporate slumlord, W.J. Curry & Sons.

Do you see where this one is going? Hard cases can make bad law. Even where the result isn’t necessarily wrong — and we’re not hard-hearted enough to criticize people who were too poor to afford to fix the bathroom — cases are fact-driven.

We can imagine the scenario: a faceless corporation rolling in dough, too chary to keep up its properties and too avaricious to pay damages inflicted on the impoverished neighbors. That, at least, is the innuendo.

The Curry property included three large, healthy oak trees near the boundary with the Lane homestead. The trees are much taller than either of the houses, and those towering oaks featured limbs that protruded over Gloria Lane’s house and caused manifold problems. First, the court said, she had to replace her roof 15 years before the lawsuit “because the overhanging branches did not allow the roof to ever dry, causing it to rot.” She complained that prior to replacing the roof, “[e]very roof and wall in [her] house had turned brown and the ceiling was just falling down. We would be in bed at nighttime, and the ceiling would just fall down and hit the floor.”

In 1997, one of the oaks shed a large limb, which fell through the Lanes’ roof, attic, and kitchen ceiling. Rain then ruined her ceilings, floor, and the stove in her kitchen. The Lanes were physically unable to cut back the limbs hanging over the house, and they couldn’t afford to hire it done. For that matter, Gloria couldn’t even afford to fix the hole in her roof.

If that weren’t enough, the oaks’ roots clogged the Lane’s sewer line, causing severe plumbing problems. Gloria tried to chop the encroaching roots away from the sewer over the years, but they kept growing back and causing more plumbing problems. At the time of the lawsuit, she hadn’t been able to use her toilet, bathtub, or sink in two years because of the clogs. Instead, she went to the neighbors’ house (presumably not the Curry rental) to use the toilet. Meanwhile, raw sewage was bubbling into her bathtub, and the bathroom floor had to be replaced due to toilet backups and water spills.

Gloria told the trial court that “everything is all messed up. I can’t bathe. I can’t cook. I don’t want people coming to my house because it has odors in it, fleas, flies, bugs. It’s just been awful for me.” Ms. Lane, already under a psychiatrist’s care, said she “just can’t take too much more.”

After the branch punched a hole in her roof, Gloria asked the owner of W.J. Curry – one Judith Harris, a corporate minion who was neither W.J. nor any of his sons – to do something. She had a tree service trim the lower branches, but not the ones that would have been more expensive to reach. This didn’t solve the problems. When Gloria complained again, Ms. Harris told Gloria that she was on her own.

Now, boys and girls, these are hard facts. We aren’t dealing with the Schwalbachs, who were perfectly fit and reasonably flush, complaining to an underfunded cemetery association about a few twigs and leaves. Here, we have a dramatis personae that includes – as protagonist – a pathos-inducing poor woman caring for an invalid sibling, and – as antagonist – a soulless corporation destroying her happy home, one dropped limb by one dropped limb by one rotten roof by one clogged sewer at a time. And we’ve got some real damage, too. You try knocking on the neighbor’s door eight times a day and night to use the ‘loo, and see how you feel. Did the Massachusetts Rule have any chance of survival in the face of this heart-wrenching tale?

Of course not. The evil slumlord defendant (and we don’t know that he was evil or even a slumlord, but the story has a life of its own) argued that Tennessee followed the Massachusetts Rule. After all, it pointed out, Gloria was free to fire up her Husqvarna and clamber out onto her roof to cut down the offending limbs herself. Tennessee law firmly established that her remedies were limited to Massachusetts-style “self-help.” That means Gloria should get nothing for the hole in her roof, nothing for her falling plaster, nothing for her waterlogged stove, and nothing for the sewage bubbling in her bathtub.

The trial court agreed with W.J. Curry. It held that while it was “certainly a serious situation that the plaintiff has not been able to use her bathroom for two years … these three trees are alive and living and they do what trees normally do. They produce branches and grow, and they produce a root system. And even though you trim the branches back or you trim the roots back, they are going to produce more branches and more roots.”

Spoken like a judge whose own toilet flushes just fine. The three-judge appellate panel – a trio of jurists who were also not worried about the efficacy of their respective commodes – agreed. They observed that, after all, the trees were not “noxious” (which was a quaint notion championed by Smith v. Holt but since abandoned in Fancher v. Fagella).

The Tennessee Supreme Court reversed, adopting the Hawaii Rule, holding that living trees and plants are ordinarily not nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. When that happens, the Court said, the owner of the tree had some responsibility to clean up the mess. No doubt swayed by the extensive record of travail propounded by Ms. Lane, the Court held that W.J. Curry’s trees clearly satisfied the definition of a “private nuisance.” It sent the case back to the trial court for a remedy to be crafted, one that no doubt included money damages and probably an order that the landlord cut down the oversized trees.

Sure, Gloria … get up there and trim those branches yourself.

Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002). The long-suffering Gloria Lane sued W.J. Curry and Sons, Inc. a landlord owning a rental property next to her house. Over the years, her roof was damaged by branches overhanging from oaks growing on the Curry property, a branch fell, smashing into the home and causing extensive damage, and the root system substantially damaged her sewer system, rendering her home almost uninhabitable.

Gloria sued, asserting that encroaching branches and roots from the Curry trees constituted a nuisance for which she was entitled to seek damages. W.J. Curry responded that Ms. Lane’s sole remedy was Massachusetts Rule-style self-help, and she could not recover for any harm caused by the trees.

The trial court and Court of Appeals agreed with W.J. Curry and Sons, holding that an adjoining landowner’s only remedy in a case like this one was self-help, and that a nuisance action could not be brought to recover for harm caused by encroaching tree branches and roots.

Ms. Lane appealed to the Tennessee Supreme Court.

Held: Self-help is not an adjoining landowner’s sole remedy when tree branches and roots encroach. A nuisance action may be brought when the encroaching branches and roots damage the neighboring landowner’s property.

The Supreme Court held that although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.

Thumbs down to the Massachusetts Rule.

The Court engaged in a lengthy discussion of the various theories of liability adopted in various states, including the Massachusetts Rule, the Hawaii Rule, and the old, pre-Fancher Virginia Rule. The Court decided that the Hawaii Rule should be followed, because it “voices a rational and fair solution, permitting a landowner to grow and nurture trees and other plants on his land, balanced against the correlative duty of a landowner to ensure that the use of his property does not materially harm his neighbor,” while being “stringent enough to discourage trivial suits, but not so restrictive that it precludes a recovery where one is warranted.” The Court criticized the Massachusetts Rule, agreeing with the notion that limiting a plaintiff’s remedy to self-help encourages a “law of the jungle” mentality by replacing the law of orderly judicial process with the doctrine of “self-help.” Yet, the Court said, the Hawaii Rule was consistent with the principle of self-help that Tennessee courts had previously enunciated.

The Court was careful to note that it was not altering existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line – whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property.

– Tom Root

And Now The News …

Posted on March 24, 2026 by TLRoot tagged.

Ann Arbor, Michigan, News, March 23, 2026: Residents fought to save trees from roadwork. A judge just ruled against them.

The removal of dozens of trees for roadwork just outside downtown Chelsea will move forward despite pushback and a lawsuit aimed at stopping it. On Monday, March 23, a Washtenaw County judge ruled in favor of the Washtenaw County Road Commission in a lawsuit filed by residents over the planned removal of trees on a section of Werkner Road in Sylvan Township just outside downtown Chelsea. Tree clearing will happen in advance of the two-part road improvement project on the road between Sibley Road and M-52. The road commission is gearing up to remove 42 trees from along the road right-of-way where a portion of the road needs to be widened for shoulders and drainage improvements. All of the trees to be removed are located between an entrance to a city water plant south of Ivy Road and M-52. That stretch of Werkner Road needs more extensive repairs and upgrades than in the remainder of the construction project. It is where the road will be widened by a total of 8 feet for road shoulders, including 2 feet of pavement and 2 feet of gravel shoulders on each side of the road. The road commission will begin marking trees as they finalize the timeline for removal with a contractor, the road commission announced Monday. Tree removals will cause brief traffic delays, with flaggers managing traffic. Residents Gregory Johnson and Nan Spike filed suit in February under the Michigan Environmental Protection Act (MEPA). They were seeking to prevent the removal of the trees. Spike lives on the road, and Johnson owns property there and lives nearby…

Olympia, Washington, The Olympian, March 23, 2026: Is there enough money to save this 400-year-old oak tree in Thurston County?

The City of Tumwater now has a plan to keep the 400-year-old Davis Meeker Garry Oak tree standing, almost two years after former Mayor Debbie Sullivan called to cut the tree down after a large branch fell near Old Highway 99. The plan consists of a three-year maintenance plan. However, the funds the city has set aside to care for the tree might not cover what needs to be done in the first year. The city’s Historic Preservation Commission unanimously approved the work plan for the tree on March 12. City spokesperson Jason Wettstein said the plan will be brought to the City Council in late April or early May. A Thurston County Superior Court judge ruled in December that the city can’t cut down the historic tree without prior approval from its Historic Preservation Commission…

Adirondack Explorer, March 23, 2026: How to spot old trees and old-growth forests in the Adirondacks

Old trees have a special beauty and significance. They inspire awe. When hiking through the Adirondack Park’s forests, most of which have regrown beautifully following logging in the 1800s, it is a special treat to find these ancient residents. Perhaps surprisingly, very old trees are quite easy to find. Many Adirondack logging operations were selective—involving harvest of the most valuable softwood tree species: white pine, spruce and hemlock. Hardwood trees, including beech, birch and maple, were often left in place. Even in areas where logging nearly denuded large tracts (“clear-cuts”), individual trees with blemishes, like large fire scars or burls, were often skipped. Thus, old trees can still be found growing in otherwise second-growth forests. Despite the intense logging history of the Adirondacks, some patches of old growth forests survived. Two fabulous and easy-to-access examples can be visited on the Cathedral Pines Trail near Seventh Lake and the Ampersand Mountain Trail near Middle Saranac Lake. Many old growth tracts remain undiscovered. This guide has two goals. The first is to help hikers recognize individual old trees that still stand in otherwise second-growth forests. The second is to help hikers recognize those rare tracts of forest that were never logged—the pristine old growth forests…

SuperTalk Mississippi Media, March 23, 2026: Mississippi landowners urged to be on alert for tree-killing beetles

As temperatures rise in Mississippi, landowners are urged to be on the lookout for one pesky insect known to wreak havoc on trees. Forestry specialists with Mississippi State University Extension Service warn that bark beetles could be on the hunt for trees to destroy, especially after January’s ice storm made much of the state’s land vulnerable. Of Mississippi’s five species of bark beetles, the three species of Ips engraver beetles and southern pine beetles, or SPB, raise the most concern, officials say.Pine bark beetles are known to kill stressed pine trees in Mississippi by boring into the cambium layer and feeding on vascular tissues, which disrupts water and nutrient movement. “Any of our five species of bark beetles will take advantage of stressed pines, particularly broken limbs and trunks from the recent ice damage,” MSU Extension forestry specialist Butch Bailey said…

Reasons To Be Cheerful, March 20, 2026: Can a Legendary Tree Keep Louisiana’s Coastal Lands From Slipping Away?

Bald cypress trees have loomed over Louisiana’s landscape for thousands of years, their feathery leaves offering shade from on high. In a state that contains 40 percent of the wetlands in the Lower 48, the cypress has always been a natural companion for residents. It thrives in soggy bottoms that would smother most trees, lives for hundreds of years under the right circumstances, and brings comfort to Louisianans “like warm bread at home,” as Blaise Pezold, an ecosystem restorationist, puts it. As the state tree, the cypress is “as legendary [in Louisiana] as the chestnut tree in Appalachia.” Now, it’s also helping to bring back the wetlands. Across southern Louisiana, the bald cypress is at the center of efforts to reverse the crisis of coastal land loss that has cost Louisiana 2,000 square miles of coastal land over the last century. Over the next 50 years, that figure could swell to 5,000 square miles without intervention…

Las Vegas, Nevada, KNPR Radio, March 22, 2026: Tree pruning in the desert: Norm Schilling’s guide to wind-ready trees

Las Vegas arborist Norm Schilling explains how to prune trees for desert wind, why most people remove too much, and how to spot a bad tree trimmer before it’s too late.
Here it is, March already, and I’m standing in my garden listening to the wind try to rearrange everything I’ve spent years putting in place. It’s been a strange year so far — temperatures swinging from unseasonably high to bitterly low — but the wind is the one constant. It always arrives in March, and it always makes me think about my trees. Because trees are structural beings. They don’t get to duck inside or brace themselves against a wall. They stand there and absorb every gust, and that wind stress accumulates. Which is why March, for me, is really about pruning — and about understanding the principles that separate good pruning from the kind that can actually destroy a tree. Here’s the first thing I want every Southern Nevada gardener to take to heart: In any given year, try not to remove more than about 25 to 30 percent of a tree’s total foliage. That’s your ceiling. And you should adjust it downward based on three factors — if the tree is older, if it’s diseased or stressed, or if it’s a species that already struggles in our climate. Any one of those conditions means you want to prune less. Sometimes 5 or 10 percent is plenty. Sometimes the best thing you can do is leave it alone entirely…

New York City, The Wall Street Journal, March 20, 2026: ‘The Lawrence Tree’: Georgia O’Keeffe’s Wondrously Painted Pine

In the summer of 1929, Georgia O’Keeffe discovered New Mexico. Although she had already received a good deal of acclaim, O’Keeffe had begun to feel oppressed by her life in New York with her husband, the pioneering photographer and art dealer Alfred Stieglitz. The Southwest was soon to become home, for a portion of each year, and it would also provide virtually inexhaustible subjects for her iconic paintings. The mountains, flowers and animal skulls she depicted have made her one of the most widely known and beloved 20th-century American artists. Yet one magnetic painting is atypical of that first stay in the Taos area: a striking ponderosa pine. The tree sat on the Kiowa Ranch, a property that noted arts patron Mabel Dodge Luhan had given to Frieda Lawrence, wife of the British writer D.H. Lawrence, in 1924 in exchange for the manuscript of his novel “Sons and Lovers.” “The Lawrence Tree” is a beautifully crafted painting. Trunk, branches, leaves and night sky form an intricate pattern, creating the taut balance between image and abstract form that O’Keeffe was achieving in many of her paintings of the 1920s…

Detroit, Michigan, WDIV-TV, March 20, 2026: Sterling Heights senior out $3K because manufactured home community wouldn’t remove dangerous tree

A senior in Sterling Heights is out thousands of dollars after being forced to remove a towering tree from her front yard at a manufactured housing community. She’s turning to Local 4 to get answers after publishing several stories about issues plaguing the manufactured housing community. Susanne DeRosa has owned her home in Rudgate Manor for nearly 50 years. For most of them, that tree offered more than shade, it held history. Most summer days, you’d find her granddaughter out front swinging and smiling. “A lot of me is just angry that I had to get rid of it, that nobody would take care of it, that nobody would help me out with it,” DeRosa said. Decades ago, the owner of the park at the time noticed an issue with the tree. “They noticed my tree with the branches, one was headed my way, one heading toward the neighbor,” DeRosa said… For years, it worked. “In 2019, that cable broke,” DeRosa said. After that, it wasn’t just an eyesore; it was an accident waiting to happen, one storm away from crashing onto her house. DeRosa kept track of everything, starting with management. By then, ownership of the park had changed to Sun Communities. “They said, ‘That’s your problem. It’s on your property,’” she said. “I’m sorry, but this is your property. I shouldn’t have to fix a cable you put on my tree, or your tree…”

Cheyenne, Wyoming, Cowboy State Daily, March 18, 2026: Hunters Say BLM Wiped Out Favorite Hunting Location With Tree Removal

Russian olive trees are widely regarded as an invasive species and the general rule among land management agencies is to get rid of them. But when that was done on Bureau of Land Management (BLM) land along Dry Creek near Greybull, it ruined some of the best pheasant hunting in the entire region, some sportsmen said. To make matters worse, the public apparently wasn’t informed or given a chance to comment on the Russian olive removal plan before it happened, Colin Simpson of Cody told Cowboy State Daily. “It’s hard to understand why that action would be taken on public land without notification of the public beforehand,” said Simpson, a former Wyoming legislator and son of the late U.S. Senator Alan Simpson. He understands the need to control Russian olive as an invasive plant species, but thinks officials went overboard in Dry Creek…

Washington, DC, WUSA-TV, March 18, 2026: Tree safety under review after deadly crash, NPS conducting additional assessments along affected areas

The National Park Service says it is reviewing maintenance practices and conducting additional assessments after two separate crashes in which trees fell onto moving vehicles along parkways in the D.C. region, including one that killed a Frederick man. The crashes, which happened just one day apart, are raising new concerns about roadway safety and whether more could have been done to prevent them. Elik Topolosky, 39, was killed Thursday when a tree fell onto his car along the George Washington Memorial Parkway. His brother, Uri Topolosky, described the loss as sudden and devastating. “It’s a one in a trillion insanity. What are the chances a tree comes down on a highway when you are driving, and he was the only victim?” Uri Topolosky said. “It’s just so heartbreaking right now.” Uri Topolosky said his family has been searching for answers about how the incident happened and whether it could have been prevented…

Denver, Colorado, KUSA-TV, March 18, 2026: Winds topple historic Colorado tree

A massive Engelmann Spruce believed to be the oldest and tallest tree in Georgetown came crashing down Monday, destroying a 50-year-old gazebo and damaging historic park infrastructure after powerful winds swept through the state. Estimated to be 150 years old and planted when Georgetown City Park was established in 1890, the tree snapped under the force of recent high winds. The falling tree narrowly missed a historic fountain and some of Colorado’s first electric lights before striking picnic tables, historic benches, and the beloved gazebo. Longtime Georgetown resident Peter Werlin, who has lived in the area since 1964, described the moment of impact. “At 10 a.m., we were over in our house and we heard a tremendous bang,” Werlin said. For Werlin, the loss was deeply personal. “I was married in 1988, so our wedding photos were taken inside the gazebo, as are so many people from Georgetown,” Werlin said. “Everybody’s very sad about it…”

Providence, Rhode Island, WPVI-TV, March 18, 2026: Arborist urges homeowners to check trees for hidden dangers

Cleanup crews were still at work on the 100 block of Timber Springs Lane in Exton, Chester County, where a tree crashed into a home Monday night. “All of sudden it was like a bomb hit…the whole house shook and the tree fell on top of the house,” said homeowner Jacqui Mershurle. The tree narrowly missed seriously injuring her adult son, who was sleeping in his bedroom when it came down. “He said if he’d slept on the other side of the bed…he wouldn’t be here,” Meshurle said. While her son survived, another incident ended tragically. Authorities said Gilberto Senecio Feregrino was killed while cleaning up a fallen tree on Earles Lane. As he worked, a tree from a neighboring property suddenly fell, striking him. “We’re looking for mortality in the upper canopy…so dead limbs directly over our heads,” said John Rockwell Hosbach, a consulting arborist who evaluates trees and testifies in civil cases…

St. Louis, Missouri, KMOV-TV, March 16, 2026: Tree Trouble: Warning signs a tree could come down in a storm

Strong winds and stormy weather like we’ve been having lately can bring weakened trees and limbs down on property, causing thousands of dollars in damage. The best way to prevent it is to catch disease and weakness in trees before they can fall over. We went to Forest Park with Alec Hall, ISA Certified Arborist with The Davey Tree Expert Company, to talk about the warning signs that a tree may need treatment or removal. He pointed out a tree with a wound channel in the trunk. “Most certainly when you see something like this, with the heartwood exposed, it’s worth having an arborist look at it,” Hall said. “Additionally, we can see carpenter ants are starting to boar the area out,” he said, pointing out tiny holes in the heartwood. “Now carpenter ants don’t kill trees, but they can hurt the integrity of the tree by taking out the heartwood,” he explained. “Another thing we want to watch for with our trees is if we have an area where the roots seem to be maybe moving, or where the roots are may be more exposed. That’s worth keeping an eye on,” Hall said…

Charlotte, North Carolina, WCNC-TV, March 16, 2026: Who’s responsible if a tree falls on your property?

A line of strong thunderstorms took down trees and power lines Monday, leaving residents across the Charlotte area with a trail of damage to clean up.
The damage left many people wondering who is responsible for the cleanup if a tree from their neighbor’s yard falls onto their property and damages their home or belongings. The Insurance Information Institute says if a tree lands on your home, you should immediately file a claim with your insurance company. After you file the claim, an insurance adjuster may collect your neighbor’s information in a subrogation process. If this happens and your insurer is successful, you may be reimbursed for your deductible.
Attorney Gary Mauney said if you notice a tree in your neighbor’s yard is rotten, you should tell them so they can fix the issue. And if they don’t? “But it matters if you’re proving negligence against someone, then one of the ways that it would help you to prove that, of course, is if you could show that they knew that the tree was rotten or infirm, or that there was something wrong with the tree,” Mauney said…
Reno, Nevada, Gazette Journal, March 16, 2026: Reno’s least-favorite tree back in full bloom

Reno’s least favorite tree, the Bradford pear, is back in full bloom. The City of Reno’s Urban Forestry Commission cares for 2,137 Bradford pear trees. That makes it the most common publicly maintained tree in the city, at about 8% of the total inventory. That doesn’t factor in the thousands more that grow on private property in the city. And for a few weeks each spring, they’re utterly offensive to everyone within sniffing distance. The tree’s specific odor is in the nose of the beholder, although people generally agree that it’s putrid. The good news: The city has a self-imposed moratorium on planting new ones on public property. In fact, the number of Bradford pear trees on city property is down from last year’s number…

Toledo, Ohio, WTOL-TV, March 16, 2026: Tree removal companies see increase in calls after wind storms bring down hundreds of trees

Strong winds over the past couple of days have brought down trees across the area, bringing headaches for homeowners but lots of business for tree removal companies. Steve Pryba, owner of Steve’s Tree Service, said when there are big storms like this, business is non-stop. “Insane,” he said when talking about the last couple of days. “Call after call.” Pryba estimated he’s gotten at least 150 calls since Friday about downed trees, removals and cleanups. He had been at multiple sites throughout Monday, including one house where a giant tree partially fell on a house. “We got it off the house,” he said. “The guy got lucky…”

Case of the Day – Monday, March 23, 2026

Posted on March 23, 2026 by TLRoot tagged.

MY DAD’S GONNA SUE YOUR DAD

We had some great trees in our back yard when I was a kid. My parents let each of the four of us children “claim” one of the trees as our own, although I must now confess that the utility of doing so is no longer obvious to me. My sister staked out the sugar maple on the north side of the house, my brothers had a box elder and a red maple, respectively, and I got a magnolia that stood outside the kitchen window.

It’s not like we children had any responsibilities for our trees, either trimming them or raking up their leaves or even pulling suckers off their trunks. We had ownership but no responsibility, which is a great segue into today’s classic case from New Jersey.

I bring up our “claimed” trees because of the young rascal Rick, an ornery kid who lived next door. One warm rainy day in the spring, when intelligent people were inside to avoid getting wet (and you can see what that implies), young Rick was outside playing in the downpour. He somehow decided that conditions were perfect for climbing my magnolia. However, when his foot slipped on a wet branch, gravity ensued. Rick was treated to what would have been a jarring but harmless fall, except for his chin making rather sharp contact with the branch on the way down.

We were blissfully unaware of the life-and-death drama occurring beyond our kitchen window until the next day, when Rick – with his chin stitched and bandaged – told my siblings and me what had happened. He matter-of-factly announced that because of the accident, “My Dad’s gonna sue your Dad!”

I recall being shocked that an injury so directly resulting from Rick’s own knuckleheadedness could somehow strip us of all possessions and leave us living in a cardboard refrigerator carton in the back lot of Brown & Miller’s Hardware. Of course, Rick’s appreciation for the finer points of tort law matched his understanding of gravity, and no suit ever resulted. But I found the idea alarming that merely owning a tree (and letting it be a tree) could make us liable for injury to others.

But the notion is not so ridiculous that people aren’t still trying to sell it to trial courts. Today’s case resulted from a perfectly healthy tree falling from one property onto a garage on another property. The aggrieved property owner argued that the tree was a nuisance because it fell (for whatever reason), and because it was a nuisance, the tree’s owner was liable. When I read the case, I felt that same alarm young Rick engendered in me all over again. Fortunately, the appellate court was not so cowed by the premise that it could not make short work of such a foolish claim.

So, what is the standard to be applied to determine the liability of a landowner for a tree that falls from his property onto his neighbor’s property for no apparent reason?

Burke v. Briggs, 571 A2d 296 (N.J. Super.Ct. 1990). Robert Briggs and the Burkes owned adjoining properties. One June evening, a large white oak tree growing on Bob’s property suddenly fell over onto the Burkes’ property, crushing their garage. The tree appeared to be perfectly healthy, and no one could assign a reason for its falling.

That hardly stopped the Burkes, who sued Bob for negligence but later added a count citing the elements of a nuisance. The Burkes argued Bob was “strictly liable” for the damages caused by the fallen tree because it amounted to a nuisance. Bob countered that liability should be determined on the basis of traditional negligence principles of tort liability. The trial judge agreed with the Burkes, reasoning that the fallen tree constituted a “nuisance” because Bob had failed to use his property in a manner that did “not damage or unreasonably interfere with the use of an adjacent land owner’s property.” The judge said that a private nuisance “imposes a strict liability” on the responsible party, and summarily found for the Burkes without the need for a trial.

Bob appealed.

Held: A nuisance can only be created by unreasonable use of land, meaning that the trial court must look at the circumstances of the case to decide whether Bob was unreasonable in permitting the tree to grow as it did. Thus, the lower court was wrong to decide the matter without a trial.

The appellate court noted the distinction that had arisen in tree law over the years between conditions of land artificially created and those that arise naturally. Historically, if Bob’s tree had been growing there on its own, he would not have been liable for any damage it caused, but if he had planted it or nurtured it, he would be accountable. The appellate panel concluded that the natural-artificial distinction makes little sense in modern life.

The appellate court admitted that “there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance’,” but it nonetheless held that the law was clear enough that a private nuisance must be based on the defendant’s interference with another’s use and enjoyment of his or her own land. The superior court fell back on the Restatement, Torts 2d, for the general rule that

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

The appellate court held that liability without fault should not be imposed “whether that activity be classified as a nuisance or a trespass, absent intentional or hazardous activity requiring a higher standard of care or, as a result of some compelling policy reason.”

In other words, the appellate court said, regardless of whether the falling tree was a nuisance, trespass or negligence, “the issue here should logically depend on whether the offending landowner somehow has made a negligent or unreasonable use of his land when compared with the rights of the party injured on the adjoining lands.”

So, the court concluded that the focus of the case should be on whether Bob was negligent in some way. To figure this out, the trial court should have considered the nature of the incident, the danger presented by the presence of the tree, whether Bob could or should have known of the tree’s condition by making inspections, and what steps Bob could have taken to prevent it from falling onto the Burkes’ garage.

– Tom Root

Case of the Day – Friday, March 20, 2026

Posted on March 20, 2026 by TLRoot tagged.

JUST AN OLD-FASHIONED LOVE SONG …

The other day, I had a faithful reader ask whether he could use the Massachusetts Rule to trim a neighbor’s pesky oak tree back to the property line. “Of course,” I said, with some important caveats.

The question got me thinking last night about the Massachusetts Rule. It’s good sport these days to criticize the Massachusetts Rule — that landowners are limited to trimming tree roots and branches back to the property as the exclusive remedy for encroachment by a neighbor’s tree — as being a relic of a time gone by when everyone lived in a rural or semi-rural area and times were simpler. The more modern Hawaii Rule — that permits a landowner to sue for damages and injunctive relief when the encroachment causes “sensible harm” — makes more sense in urban environments and in our modern-day (and, dare we say, litigious) society.

The Virginia Supreme Court said as much in Fancher v. Fagella. And North Dakota weighed in with Herring v. Lisbon Partners Credit Fund. When it comes to the old Massachusetts Rule, it’s pretty much “you hold him down, and we’ll kick him.”

Call me an apostate, but I’m skeptical that the Massachusetts Rule’s demise is such a good thing. So today, we’ll sing a love song to the Massachusetts Rule. And a reprise of Kentucky’s leading encroachment case provides the perfect illustration. Schwalbach’s neighbor, Forest Lawn Memorial Park, had trees that were dropping leaves and twigs that were as dead as the cemetery’s patrons. When Schwalbach sued, the Court held that the only remedy when branches behave like normal trees – specifically, by dropping twigs and leaves – is Massachusetts-style self-help.

Tennessee criticized the approach 17 years later as old-fashioned in Lane v. W.J. Curry Sons, but the plain fact is that the Hawaii Rule would have had precisely the same outcome: under that rule, branches dropping a normal load of twigs and leaves were not causing actual, sensible harm. No court would have intervened to order any outcome other than the one found in the Schwalbach case.

The case is a perfect example of how the facts of the case — be they extreme (such as in Virginia’s Fancher case or North Dakota’s Herring case) or slight annoyance (such as in today’s case) — drive the decisions. It’s not just that hard cases make bad law, as I pointed out yesterday: the law is always driven by the facts of the case. A careful comparison of the decisions establishing the Massachusetts Rule to the decisions favoring the Hawaii Rule suggests that the rules may not be very far apart at all.

Schwalbach v. Forest Lawn Memorial Park, 687 S.W.2d 551 (Ct.App.Ky. 1985). The Schwalbachs owned an apartment building located next to the Forest Lawn Cemetery. They bought the property in 1969. By 1972, they were whining that overhanging limbs from some of Forest Lawn’s trees dropped twigs and leaves and other detritus. What a shocking indignity.

Forest Lawn trimmed some of the branches, but the problem persisted. The Schwalbachs were more into brickbats than chainsaws. They never trimmed any of the overhanging branches themselves but were content to let their mouthpiece do their work for them in court.

Forest Lawn will handle the dead people … but the Schwalbachs are responsible for the dead leaves.

The Schwalbachs replaced their flat roof with a pitched one at the cost of $14,300, the result of damage done by an accumulation of leaves and twigs. The trial court found that the damages resulted from normal deadfall of leaves and small debris from the trees. It applied the Massachusetts Rule set forth in Michalson v. Nutting, concluding that the Schwalbachs should have removed the offending limbs back to the boundary line.

The Schwalbachs appealed.

Held: Kentucky follows the Massachusetts Rule. The Court rejected the Schwalbachs’ argument that Kentucky should follow the rule that every owner should be held responsible for private nuisances on real estate, essentially an ordinary negligence rule. The Court observed that “[i]mposing liability upon a landowner for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees.”

The Court did suggest that were the tree in question dead and likely to fall and cause serious injury, “[a] claim for damages or removal of such a tree might be based on the theory of negligence for damages or nuisance for removal.”

This decision was criticized by the Tennessee Supreme Court in Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn., 2002) as among those antiquated cases that didn’t permit any remedy for encroaching branches and roots beyond self-help.

– Tom Root

Case of the Day – Thursday, March 19, 2026

Posted on March 19, 2026 by TLRoot tagged.

I CAN SEE CLEARLY NOW…

It’s easy to dismiss the belly-aching of people who claim that their view of the ocean, the mountains, the lake, whatever, has been ruined by someone else’s construction, or even – as we have seen all too often – by trees that grow too tall. But it’s a different matter when your own 0x is the one being gored.

Thanks to the nosy people at Google Earth, we can clearly see the problem that resulted in today’s case from 435 miles out in space. The parties to the kerfuffle – the Ceynars and the Barths – are clearly more than one missed paycheck away from a cardboard box. And for a lot of people, it’s hard to muster up a lot of sympathy for someone who claims a diminished view of the prairie reduced their home value by an amount that would buy almost half the average U.S. home.

Still, it’s easy enough to understand—if not to empathize—with the consternation you must feel when you spend a big chunk of money in expectation that you’ll enjoy watching the sun set on the prairie while you sip Mai Tais, or whatever the 1% in North Dakota like to sip.

Clearly, the Ceynars were sufficiently exercised about this that they spent lavishly on lawyers, all the way through the North Dakota Supreme Court. It did not do them much good, because it turns out that a property owner’s right to perpetually enjoy the view that existed on his and her property on move-in day is simply too contingent, too mushy, too prone to generate litigation rather than progress, for any court to infer its existence – at least absent a well-written easement signed by everyone involved that establishes the right.

Ceynar v. Barth, 904 N.W.2d 469 (N.D. 2017). The Ceynars and the Barths are neighbors at The Ridge at Hawktree, a Bismarck subdivision (that appears not to be Section 8 housing) near a golf course. Both families are members of the homeowners’ association. Before the Ceynars purchased their home, Mr. Barth won approval from the Association to build a “pool house” on his property, connected to his house with a breezeway. After the Ceynars occupied their place, the Barths commenced construction, whereupon the Ceynars complained to the Association. They claimed the pool house would block their view to the north and west toward the Hawktree Golf Club.

After the Association did nothing, the Ceynars sued the Barths and the Association, alleging breach of contract and nuisance. They claimed the pool house violated restrictive covenants and unreasonably interfered with the enjoyment of their property and diminished its value. Mr. Barth and the Association moved for summary judgment dismissing the action. The district court granted the motion, concluding the pool house did not violate any of the Association’s restrictive covenants. As well, the trial judge said, under N.D.C.C. § 42-01-01, “a nuisance consists in unlawfully doing an act or omitting to perform a duty,” and the Barths’ construction of the pool house was completely lawful.

The Ceynars appealed.

Held: It’s party time at the Barths’ pool house.

The Ceynars argued that the “pool house” violated the restrictive covenants governing the Hawktree development, because Section 4 of those rules – entitled Nuisances: Construction Activities – stated that “no other nuisance shall be permitted to exist or operate upon any Lot or other property so as to be offensive or detrimental to any other Lot in the vicinity thereof or to its occupants.” The Supreme Court, however, found that the restrictive covenant clearly related in context to construction activities “rather than the finished product.” At any rate, the Court said, the homeowners association has the authority in its sole discretion to determine whether a nuisance exists for purposes of the covenant. The Association approved the Barths’ construction plans and found no nuisance exists.

But, the Ceynars complained, there was an implied covenant that prohibited the pool house because it “destroys the open prairie look and overall theme of the community in the subdivision.” The Ceynars relied on a text message sent by, and deposition testimony of, the Association’s secretary indicating fences, outbuildings, and trees were not allowed in order to preserve an “open prairie look” in the subdivision, and on the Association president’s deposition testimony that the covenants require an “overall theme of the community.”

The Court made short work of that claim, holding that implied covenants are not favored by the courts and that, at any rate, the Ceynars could point to no evidence that these vague statements had anything to do with the developer’s plans or that the Barths were aware of a policy favoring the “open prairie look.” North Dakota precedent clearly holds that covenants will be given effect only “when clearly established,” and this implied covenant was as solid as Jello.

The meat of the Ceynars’ claim was that the district court erred in dismissing their statutory private nuisance claim against the Barths. Section 42-01-01, N.D.C.C., defines a nuisance as “unlawfully doing an act or omitting to perform a duty, which act or omission… annoys, injures, or endangers the comfort, repose, health, or safety of others; or in any way renders other persons insecure in life or in the use of property.” The Ceynars complained that before the pool house, “we enjoyed the open prairie look and feel. Not only have we also lost views of the Burnt Creek Valley and the golf course because of the pool house, the size and scope of the pool house and breezeway towers over our property, depriving us of anything that could be considered an open prairie look.” In fact, they presented an appraisal of their property indicating the obstructed view lowered its value by $140,000. They also presented photographs taken before and after construction of the pool house, demonstrating their obstructed view.

The district court dismissed the statutory nuisance claim, reasoning that the construction of the Barths’ pool house was lawful, so there could be no statutory nuisance. The Supreme Court agreed with the Ceynars that this holding was wrong, but any sense of victory they experienced was short-lived.

The Ceynars argued the district court failed to engage in the required balancing test, “a balancing of the utility of defendant’s conduct against the harm to the plaintiff, plaintiff’s attempts to accommodate defendant’s use before bringing the nuisance action, and plaintiff’s lack of diligence in seeking relief.” The Supreme Court acknowledged that while “scenic views may enhance the value of a tract of land… [and] such a benefit, while intangible may enhance market value, with buyers willing to pay extra for the view,” that did not translate to a legally protectable interest. “Traditional American property law fails to protect access to light over neighboring land,” the Court held, at least “in the absence of an express easement or covenant, advantageous views are unprotected.” Because a landowner has no right to an unobstructed view, the size and shape of a neighboring structure cannot be a nuisance, even if it causes a material reduction in market value.

This rule is necessary, the Court observed, because

extending the law of nuisance to encompass obstruction of view caused by lawful construction of a neighboring building would unduly restrict a landowner’s right to the free use of property, interfere with established zoning ordinances, and result in a flood of litigation. Because every new construction project is bound to block someone’s view of something, every landowner would be open to a claim of nuisance. If the first property owner on the block were given an enforceable right to unobstructed view over adjoining property, that person would fix the setback line for future neighbors, no matter what zoning ordinances provide. The practical implication of such a right would be the need of every ‘servient’ owner to obtain a waiver of the easement of view created in the “dominant” landowner. Such obstacles to land ownership and development, for the sake of a clear view, hardly commend themselves.”

Inasmuch as the Ceynars had no cognizable right to an unobstructed view from their property, the Barths’ construction of the pool house as a matter of law did not unreasonably interfere with the Ceynars’ use and enjoyment of their property.

– Tom Root

Case of the Day – Wednesday, March 18, 2026

Posted on March 18, 2026 by TLRoot tagged.

CLIVEN BUNDY HAS A GUN… OHIO HAS THE COURT OF CLAIMS

Recently, we had a kerfuffle in our home county over pipeline company employees giving notice to people that they would be coming onto private land to survey for a new underground pipeline. The nature lovers on the left united with the libertarians and assorted wingnuts on the right to argue that the state could not let these pipeline renegades trespass on our sacred private homesteads in order to plan an environmentally cataclysmic pipeline. Think “pipeline construction equals K-T extinction event,” and you get the idea.

You may remember that famed anti-government rancher Cliven Bundy had a similar problem – government functionaries trespassing on his land just because he was letting his cattle trespass on government land. His approach was much more direct, employing caliber .223 (essentially 5.56 mm, although there are differences between the cartridges and loadings we won’t get into here) and ending up with two criminal trials in two different federal courtrooms (and two “not guilty” verdicts, we hasten to add). Clive’s approach was every bit as effective as that of our home county protesters… which is to say “not very.”

Our ad hoc coalition of pipeline opponents lost, of course. They, like many landowners, were unhappily surprised to learn that state laws – written by state legislators, after all – permit state employees, agents, and even employees and agents of public utilities to come onto private land at any time to conduct surveys for public works projects.

That’s what happens when you get in the way of progress. You get both disappointment and a pipeline through your sideyard. But sometimes, some landowners can bite back.

Ron and Maggie bit back, maybe not hard, perhaps just nipped back a little, when the Ohio Dept. of Transportation sent some local yokels onto their land to remove three trees believed to be in a highway right-of-way. But no one checked the R-O-W to be certain, and half of the three trees – yes, your math is right, 1.5 of the 3 trees – were not ODOT’s to cut. What’s more, the county boys seemed to have run bulldozer races through Ron’s and Maggie’s protected wetlands, laying waste to a fragile ecosystem, harming the habitat of the woolly salamander (or something like that), and pissing off the landowners.

Ron and Maggie demanded justice in the Ohio Court of Claims. By the time the Court was done whittling down their claims, they got their measure of justice – but it was a small measure, indeed.

Kerns v. Ohio Dept. of Transportation, 2017-Ohio-7154 (Ct. of Claims, July 25, 2017): Ronald Kerns and Margaret Ruth Leslie owned 18 acres of mostly wooded property, including federally protected wetland with vernal pools that provide a habitat for salamanders. When the State of Ohio had to replace a bridge on a road in front of the property, the State notified the owners that its representatives would be coming onto the land to survey, that they would use due care in doing so, but if there was any damage to the land, the State would pay for it. Like most states, Ohio had laws that authorized state employees to come onto private property for such purposes.

The day after Christmas 2014, crews from the Portage County Engineer’s Office came onto the property and laid waste, cutting down trees inside and outside of the state right-of-way, running heavy equipment across the property, dumping wood chips in the vernal pools (resulting in ecological damage to the wetlands on the property); and leaving large drag marks where larger trees were removed. Ron and Maggie asserted that trees and vegetation on their property were damaged or removed without either their permission or the permits required by the EPA.

The engineer testified he asked Portage County to remove a hickory tree that was larger than 18″ wide, a swamp white oak that was over 50” wide, and a dead tree trunk. He thought the three trees that he had marked to be removed were all within the right-of-way. When he learned that more than those three trees had been removed, he sent an assistant to check on the damage. The assistant found that heavy equipment had been on the property, that the wetland was disturbed, that wood chips had been cast into the vernal pools, that many more trees had been cut down, and that vegetation had been disturbed.

Jason Knowles, a certified arborist, used the Trunk Formula Method to calculate a core value for each type of tree. According to Knowles, Ohio has its own guide for what the value of a tree should be. Knowles examined the tree stumps to determine the species and size of the trees that were removed. Knowles determined that a total of 18 trees were removed, in an area that was 60 feet long by 60 feet wide. Although Knowles observed damage to the vernal pools from the wood chips and damage to the soil due to the heavy machinery tracks, he did not determine a value for either soil compaction or vegetation that was removed. Knowles testified that the value of the trees that were removed totaled $18,200.

ODOT’s expert, Charles Flagg – a real estate appraiser – testified the damage to the plaintiffs’ property had no impact on its market value in that the property was densely wooded and the loss of trees was not substantial and had no effect on the market value of the property.

Held: The Court first concluded that the Portage County Engineer did not trespass on the property. A trespass occurs when a person, without authority or privilege to do so, physically invades or unlawfully enters the private premises of another. Because state law granted ODOT the privilege to cut, trim, or remove any grass, shrubs, trees, or weeds growing or being within the limits of a state highway, and enter private land to conduct a survey for plans and specifications for proposed projects, the agency and its representatives had a privilege to enter plaintiffs’ property and, therefore, did not commit a trespass.

Although ODOT could not be liable for cutting down vegetation within the right-of-way, the Court ruled, plaintiffs could prevail if they were to prove that ODOT removed trees outside of the right-of-way. Here, ODOT directed Portage County to remove three trees in what it assumed was the right-of-way. But the bitternut hickory was not within the right-of-way, and the swamp white oak straddled the right-of-way boundary. ODOT thus trespassed when its agents removed those trees. Accordingly, the magistrate recommends judgment in favor of the plaintiffs on their claim of trespass with regard to the swamp white oak and the large bitternut hickory tree.

While Ron and Marge could not prove that ODOT was liable for treble damages under O.R.C. § 901.51 – because they could not prove ODOT was reckless – ODOT nevertheless was responsible for the removal of one and a half trees on plaintiffs’ property outside of the right-of-way (one of the trees straddled the right-of-way boundary line, although it is not clear how ODOT could have removed only its half). Still, the Court said, the removal of those trees “was not so extreme as to amount to a substantial deprivation of all of the rights of ownership of plaintiffs’ property” and thus did not rise to an unconstitutional “taking” of property in violation of the 5th and 14th Amendments.

What’s more, because ODOT only told the County to remove three trees, it was not responsible for the additional trees, including two green ash trees, two 12” wide bitternut hickory trees, and twelve saplings, that the County Engineer destroyed.

When a party trespasses and cuts trees that are part of a woodland mix and not unique, the ordinary measure of the harm is the difference in the fair market value before and after the cutting. However, the Court said, “there is an exception… in which restoration costs may be recovered in excess of diminution in fair market value when real estate is held for non-commercial use, when there are reasons personal to the owner for seeking restoration, and when the diminution in fair market value does not adequately compensate the owner for the harm done.” The Court held that “destruction of trees that form part of an ecological system of personal value to the owner justifies restoration cost as a measure of damages. In addition, in an action based on temporary injury to noncommercial real estate, a plaintiff need not prove diminution in the market value of the property in order to recover the reasonable costs of restoration, but either party may offer evidence of diminution of the market value of the property as a factor bearing on the reasonableness of the cost of restoration.” Diminution in value is a factor to be considered in determining whether restoration costs are reasonable, but it is not itself an element of damages that must be considered. Finally, in cases involving trespass that results in the removal of trees or other vegetation, “a landowner is entitled to recover reasonable restoration costs, plus the reasonable value of the lost use of the property between the time of the injury and the restoration.”

Plaintiffs’ expert arborist testified that the swamp white oak had an appraised value of $8,498.00 and that the large hickory tree had an appraised value of $4,345.00. The Court found that the Trunk Formula Method is an acceptable way of determining damages in the case.

The appraised value of the trees may not necessarily be the same as restoration cost, the Court said. While there was no change in the market value of plaintiffs’ property as a result of the tree cutting, certainly, the Court said, the three trees “had some value, especially the swamp white oak, in that it was located in a federally protected wetland on plaintiffs’ property, and plaintiffs testified credibly that the trees form part of an ecological system of personal value to them.” The Court found the plaintiffs were entitled to $12,843.00 in reasonable restoration costs and reasonable value of the lost use of the property between the time of injury and the restoration.

– Tom Root

Case of the Day – Tuesday, March 17, 2027

Posted on March 17, 2026 by TLRoot tagged.

DRAINING MY HALF OF THE LAKE

Regular devourers of news know that the vaguely scandalous acronym SCOTUS is not really an intimate body part at all, but rather stands for the Supreme Court of the United States. Likewise, the President is regularly referred to as POTUS, and the First Lady FLOTUS and so on. But you have to be a real policy wonk to ring on a Jeopardy! clue reading “This definition, known as WOTUS, is one of the hottest environmental issues of the day.”

The proper answer is “What are the Waters of the United States?” The definition of what streams, rivers, rivulets and trickles are considered the “waters of the United States,” and thus to be regulated by the Environmental Protection Agency, has been debated since the Obama administration redefined just about everything short of a Dasani bottle to be WOTUS, and thus reachable by EPA clean water regs. The Sixth Circuit United States Court of Appeals has already enjoined the U.S. Environmental Protection Agency from enforcing new “clean water rules.” The Court held, among other things, that the likelihood that the rules were unconstitutional is pretty substantial, because the rules are “facially suspect” (which is the judicial equivalent of holding one’s nose).

After Trump took office, the EPA and Army Corps of Engineers announced in the spring of 2018 that the new WOTUS rule would not become effective until February 2020 to give everyone time to “study them” (code for “figuring out how to kill the new reg once and for all). In late January 2020, the final rule was adopted.

But nothing’s final in politics. After Biden was sworn in, the EPA announced yet another WOTUS change, a change back to the pre-Trump proposal. But then that was placed on hold after the Supreme Court decided Sackett v. EPA, a case challenging the EPA’s expansive interpretation that WOTUS includes anything larger than a mud puddle.

Last year, SCOTUS redefined WOTUS. While the law’s use of the term “waters” generally refers to relatively permanent bodies of water such as lakes and rivers, the Court held, some “adjacent” wetlands also qualify as “waters of the United States” where they are “as a practical matter indistinguishable from waters of the United States” because they have a “continuous surface connection” with a larger body of water, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

All of this got me musing about “waters of the United States,” and the expression’s older cousin, “navigable waters.” That brought to mind Orr v. Mortvedt.

In Orr, our latest installment of neighbors behaving badly, we find a gaggle of adjacent homeowners living around a flooded quarry in Iowa. The owner of the quarry sold off the land in pieces to several buyers; apparently, he may have oversold it a bit.

The Mortvedts made a deal in which they bought land and some real estate under the lake, all the way to the west shore. That’s what the sales agreement said. The problem was that the deed delivered to the Mortvedts at closing didn’t exactly agree, and no one read the fine print.

Later, they got into it with the neighbors, who actually did own some of the land the Mortvedts thought they had bought. The neighbors were frosted because the Mortvedts were boating and fishing on parts of the lake over their land. Eventually, this being the land of the free and all, everyone sued everyone else.

The case went all the way to the Supreme Court of Iowa, which held that the Mortvedts couldn’t get their deed reformed to match the sales agreement because the law didn’t let that happen where an innocent third party was involved. The Orrs — who were the neighbors who would be affected by such a reformed deed — weren’t a party to the original deal. If the Mortvedts got their deed changed to reflect that they owned more property, the Orrs’ deed would necessarily have to be changed to show that they owned less. They weren’t a party to the original deal between the Mortvedts and the sellers, and therefore, it would be unfair to take their land to satisfy the Mortvedts.

As for the widespread boating on the lake, the Supreme Court of Iowa was forced to make a decision of first impression in the state, and adopt the common law rule that for non-navigable water (such as this lake), an owner was restricted to boating and fishing only on the part of the lake which lay over lake bottom that the party owned. This was pretty much an unsatisfactory result — the case discusses at length all of the good reasons for adopting the Scottish rule to the contrary — but as the old legal aphorism goes, “hard cases make bad law.”

Orr v. Mortvedt, 735 N.W.2d 610 (Supreme Court of Iowa 2007). The Twedt family owned a rock quarry and the land surrounding it in Hamilton County. There came a time when the mining of the quarry was discontinued, and the excavated area – consisting of about thirty acres – became a lake. The Twedt family sold the land in a series of transactions over a period of years. Each of the transactions resulted in the conveyance of a portion of the lakebed and land surrounding it. Jeffrey and Susan Mortvedt purchased a tract west and north of the lake, including the northern tip of the lake bed, in 1996. Two years later, Stephen and Shirlee Orr bought a parcel situated primarily on the east side of the lake and including that part of the lake bed located between the parts previously purchased by another party, the Sevdes, and the Mortvedts. The Orrs soon conveyed a piece of the property they had acquired, including a part of the lake bed, to Ronald Cameron.

The Mortvedts argued their property extended to the water’s edge on the west side of the lake, but the Orrs claimed a survey filed at the time of the Mortvedts’ purchase established that the Orrs owned a narrow strip of land on the west side of the lake. The boundary dispute escalated when the Orrs cut down trees and planted other vegetation on the disputed narrow strip of land, as well as from the parties’ inability to agree about their respective rights to use the lake. The Sevdes and the Orrs objected when the Mortvedts used parts of the lake beyond the boundaries of the lake bed owned by the Mortvedts for fishing and boating. The Orrs, the Sevdes, and Cameron sued, seeking a resolution of the boundary dispute and other relief, and the Mortvedts counterclaimed, asking that the plaintiffs be required to restore the lake water level to that which prevailed when the Mortvedts purchased their property in 1996 and that the plaintiffs be held not to have a right to install or maintain a fence in the lake. The Mortvedts also sought reformation of their deed to conform it to the understanding of the parties to the 1996 conveyance that their east property line extends to the lake water’s west edge.

The trial court held the parties were entitled to the exclusive possession, use and enjoyment of the water covering the real estate described in their respective deeds. It also held that each of the parties owned any minerals located on the real estate described in its respective deed, that the Mortvedts were prohibited, absent express written permission, from entering upon or using the water overlaying the properties owned by the Sevdes, the Orrs, and Cameron — who were legally entitled to construct a fence, berm or other structure to mark the boundaries of their properties — and the Sevdes, the Orrs, and Cameron were entitled to drain the water covering, mine minerals from, and restore wetlands upon their properties. The court denied the Mortvedts’ counterclaim. The Mortvedts appealed.

This guy is charged with assaulting a child and her mother. Truly a defense attorney’s nightmare … and a living example of a “hard case” that may lead a jury to make bad law.

Held: The Mortvedts were not entitled to obtain reformation of the deed, because the remedy of reformation was unavailable under the circumstances of the case.

The Iowa Supreme Court ruled that it would only order reformation of a deed against a party to the deed, a person in privity with such a party, or a person with notice of the relevant facts. Reformation will not be ordered to the prejudice of innocent third persons.

The Orrs were innocent third parties as to the transaction between the Twedt estate and the Mortvedts, and had no knowledge that the Mortvedt transaction was anything other than was recorded in the deed. The Court found that a reasonably prudent person would interpret the survey filed with deed, prepared by a professional surveyor, as an illustration of the boundary legally described in the Mortvedts’ deed and as confirmation that the Mortvedts had not acquired from their grantor the narrow strip of land on the west side of the lake that is the subject of this dispute. Nothing stated or illustrated in the Mortvedts’ recorded deed and survey would cause a prudent subsequent purchaser to further inquire into the deeding parties’ intentions and to consequently discover any discrepancy between those intentions and the legal description in the deed. The holding, of course, meant that Mortvedts had no claim for damages for the Orrs’ removal of trees from the narrow strip of land on the west side of the lake.

The Court also held that while the public generally has a right of access to navigable watercourses, the term “navigable watercourses” refers to watercourses “susceptible of use for purposes of commerce” or “possess[ing] a capacity for valuable floatage in the transportation to market of the products of the country through which it runs.”

The Court said that the landlocked body of water, in this case, had never served as a highway of commerce, and the non-navigable status of the lake dictated that the bed of the lake was owned by the state or by private parties. The non-navigable lake was privately owned by the parties because each of their deeds included part of the lake bed. And in an issue never decided in Iowa before, the Supreme Court held that the common law rule adopted by most states — that on non-navigable waters, users are limited to the areas of the watercourse which lie on lands they owned, rather than having a right to use the whole watercourse if they owned land underlying any of it.

Ironically, there is little doubt that under the EPA’s rules, the 30-acre quarry sitting in the middle of the Great Plains is among the “waters of the United States.”

– Tom Root