Case of the Day – Monday, September 26, 2016

ACQUIESCENCE

One big happy family ... until part of the homestead gets sold.

One big happy family … until part of the homestead gets sold.

Lawyers and surveyors are the first to tell you that you should always carefully survey and protect the boundaries of your property. Daily. It’ as important as flossing. And the advice is ignored just as often.

This is especially so when the adjoining property owners are family. If you can’t get along with your kin …

In today’s case, a family farm — handed down from father to son to son — had adjacent farmland parcels. The brothers owning them agreed that a barbed-wire fence they laid — measured off the centerline of a county road — was the boundary between their lands. They measured carefully and marked the fence with fed flags and pennies crimped around the barbed wire, but they didn’t use a surveyor. After all, we’re all family, so who needs to waste money on a third-party?

The problem was that the county road centerline wasn’t accurate. As a result the 60-acre parcel and the 18-acre parcel were off by about a quarter-acre in favor of the bigger piece of land. But no one knew it, and the agreed-upon boundary survived the decay of the fence, the installation of a mobile home and the digging of a well to replace one end of the fence.

It wasn’t until the 18-acre parcel passed out of the family that the buyer discovered — four years after he took possession — that the presumed boundary was off a bit. What’s a quarter acre out in Nebraska farm country? For the buyer, Aaron Sila, it was a lawsuit.

A long-standing rule provides that mutual acquiescence between owners can establish a boundary line where the actual location of the line is unknown. The Nebraska trial court held, however, that the doctrine wouldn’t work in this case, because the line could easily have been calculated by a surveyor using the legal descriptions in the deed. The ruling, of course, begged the question: when exactly would a boundary be unknown if the owners hired a surveyor? Shades of Rumsfeld’s “known unknowns” and the “unknown unknowns,” back in the golden days of the Iraq invasion!

Our orange cake - which is really good - took second place at the County Fair this week. We mutually acquiesced to the red ribbon, because the first-place coconut-and-strawberry dump cake had us outclassed. (We thus have managed to mention our 2nd place baking finish in a tree-and-neighbor law column, a feat some of our critics doubted we could do).

Our Heavenly Cake and Aunt Josie’s Sour Cream Cookies both took home blue ribbons at the County Fair last month. We mutually acquiesced to the blue ribbons, because this year, we managed to outclass the second place walnut brownies and angle food cake. (We thus have managed to mention our two 1st place baking finishers in a tree-and-neighbor law column, a feat one of our critics doubted we could do).

The Nebraska Supreme Court recognized that the trial court’s impossible standard effectively gutted the mutual acquiescence doctrine, and it reversed the decision. It didn’t matter, the Court said, that owners might be able to fix the actual boundary by hiring lawyers and surveyors. They in fact didn’t know where the line was for sure, and they agreed to what each knew was an approximation. It worked for longer than the 10-year statutory period, the Court found, and that was good enough to establish a new boundary by acquiescence.

Sila v. Saunders, 743 N.W.2d 641, 274 Neb. 809 (2008). This case arose as a boundary dispute between two adjoining farm property owners, Kirk and Aaron. The properties were once part of a single farm owned by Kirk’s grandfather, but the land was divided into three parcels and given to his three sons: Vern, George, and Kirk’s father, Eugene. George got an 18 acre parcel east of a county road. Vern and Eugene were each given adjacent 30-acre parcels to the east of George’s 18 acres.

A year later, Vern died, and his 30 acres were acquired by Eugene. Kirk eventually inherited a 20-acre segment of Eugene’s 60 acres. That segment abutted the disputed 18-acre parcel originally given to George. In the early 60s, George and Eugene established the shared boundary of their properties, “[t]o split the farm up to get a boundary line so [George] knew what he owned and what my dad owned,” according to Kirk’s brother, Elloite. George and Eugene decided not to hire a professional surveyor to mark the boundary, and they mistakenly believed that the middle of the county road represented a section line marking the west boundary of George’s 18 acres. George and Eugene took a 100-foot tape measure and some flags and measured 594 feet east from the middle of the county road. They crimped a penny over the barbed wire and tied red flags on the fence at the 594-foot line of both the north and the south ends of the properties. After this, George’s crops were farmed on the west side of the boundary, and Eugene planted his crops on the east side of the boundary. An aerial photograph from the time showed a clear demarcation between the two parcels that appeared to be parallel to the county road from which the boundary had been measured.

In 1965, Kirk removed the barbed wire fence on the south end of the property, but placed a water well next to the property line designated by the crimped penny. After the removal of the fence in 1965, the well was understood by George and Eugene to be the south visual marker for the boundary between their properties. George and Eugene farmed their respective lands with the well on the south end and the crimped penny on the north end of the boundary for 21 years. When George died in 1986, Eugene and Elliotte continued to farm Eugene’s 60-acre parcel, and they also farmed George’s land for his widow, but they maintained the crop boundary line according to the well/stump boundary. When Eugene died three years later, Elliotte continued to farm George’s land and the 20 abutting acres inherited by Kirk, and he still considered the well and the tree stump as boundary markers.

Aaron Sila bought the 18 acres from George’s widow in 2001. Four years later, he hired a surveyor, who found that the centerline of the county road along the west side of Aaron’s property did not — as George and Eugene had believed — correspond to the section line. Aaron’s surveyor didn’t notice either a stump or a well as visual markers of a boundary line.

Remember Donald Rumsfeld's "unknown unknows?" The Court said that doctrine didn't limit mutual acquiescence


Remember Donald Rumsfeld’s “unknown unknowns?” The Court said that doctrine didn’t limit mutual acquiescence.

Elliotte hired a surveyor, whose survey showed the disputed area as a trapezoid of about .264 of an acre in issue. The trial court found that Aaron owned the disputed parcel, because mutual acquiescence can only fix a boundary that is otherwise unknown. Since the true location of the boundary was set forth in the legal description and was readily ascertainable through conventional surveying techniques, the court concluded it was “known.” The court also rejected Kirk’s adverse possession claim. Kirk appealed.

Held: The trial court’s decision was reversed. The Nebraska Supreme Court held that under the doctrine of mutual recognition and acquiescence, while a boundary may be fixed in accordance with a survey, when a different boundary is shown to have existed between the parties for the 10-year statutory period, it is that boundary line which is determinative and not that of the original survey. The fact that the true boundary might be “knowable” because the deed contains a metes and bounds description that a registered surveyor could have properly marked on the land — but did not — does not preclude the property owners from acquiescing in a boundary that they believe corresponds with the deed’s description.

Here, the two owners knew that the boundary line was merely an approximation of the real boundary. Nevertheless, that fact did not preclude a finding of mutual recognition and acquiescence, so long as the acquiescing parties recognized this approximation as their actual boundary. In order for mutual recognition and acquiescence to operate, there had to be an assent, by words, conduct, or silence, in a line as the boundary.

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Case of the Day – Friday, September 23, 2016

THE RISK WAS OBVIOUS TO A CHILD
The McDonald's coffee lawsuit - easy to deride, but conventional wisdom is probably wrong.

     The McDonald’s coffee lawsuit – easy to deride, but conventional wisdom is probably wrong.

At least until Donald Trump and Hillary Clinton began vying for votes in the general election, tort law was cited as the best evidence for the demise of the Republic. You know the folklore about the McDonald’s coffee case (which in reality, wasn’t so outrageous after all) and the phony “view with alarm” e-mails that circulate about absolutely fictitious decisions.

But truth be told, most tort law decisions aren’t nearly as outrageous as its would-be reformers would have us believe. Take today’s case. Some boys were playing at a school playground, and decided to raid oranges from a neighbor’s tree. After they had gotten all the low-hanging fruit, one of them stuck his bicycle handlebars in the chain link fence, climbed up his makeshift ladder, and reached across the fence. Naturally, the bike came loose from the fence and he fell, cutting himself on the sharp tines on top of the fence.

The boy sued the school district for maintaining a dangerous fence. The only outrage was that his lawyer decided to sue at all. The fact that no one had ever been hurt on the fence in 16 years didn’t matter. The boy’s attorney argued that it was reasonably foreseeable that young boys would be attracted to oranges adjacent to the fence and would use the fence (whether by climbing or using a bicycle or other means to fashion a ladder) to enable them to reach the fruit. The Court said ‘nonsense’.

Kids really do some pretty foolhardy things.

Kids really do some pretty dumb things.

Chain link fences are ubiquitous, the Court said, but not even kids — who are held to lower standards than adults — would think that it was a reasonable use of the property to thread bicycle handlebars through the links to make an impromptu ladder. The dangerous condition of property should be defined in terms of the manner in which it is foreseeable that the property will be used by persons exercising due care. After all, the Court said, any property can be dangerous if used in a sufficiently abnormal manner.

This decision would be refreshing were it not so commonplace. Less than 5 percent of all civil cases are torts, and only about 4 percent of those go to trial. Recent statistics show that plaintiffs only win about half of the trials, and only half of those winners get more than $24,000 in damages. Most tort lawsuits are losers. Contrary to conventional wisdom, tort law does not always come with a leprechaun and a pot of gold.

A Justin Bieber tattoo at age 13 would qualify as one ...

             A Justin Bieber tattoo at age 13 would qualify as one …

Biscotti v. Yuba City Unified School Dist., 158 Cal.App.4th 554 ( 2007). Nine-year-old Christian Biscotti and his friends were riding bicycles on the grounds of a public school. The boys decided to pick oranges from a tree located in a neighbor’s yard, which was separated from the school’s grounds by a metal chain link fence. The fence, installed when the school was built in 1959, had metal prongs across its top edge. After the boys had picked all the oranges they could reach from the ground, Christian placed a bicycle next to the chain link fence, poking one handlebar through an opening in the fence to help stabilize the bicycle. He then climbed up and stood on the bicycle, balancing himself with one foot on its seat and his other foot on the bar. While Christian reached over the fence and yanked on an orange, the bicycle slipped and he fell onto the fence. His left arm struck the metal tines and was cut.

For at least 16 years prior to the accident, there had been no reported complaints about the safety of the fence and no reported accidents or injuries related to it. That didn’t keep Christian from suing Yuba City Unified School District, which promptly won on summary judgment. Christian appealed.

Standing on the seat and handlebars of a bike leaning against a chain-link fence ... who could imagine that could go so wrong?

Standing on the seat and handlebars of a bike leaning against a chain-link fence. in order to pick an orange … who could imagine that such a reasonable activity could go so wrong?

Held: The school district was not liable. In California, public entity liability for personal injury — governed by statute — is imposed for injuries caused by a dangerous condition of public property where a plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. A “dangerous condition” of public property is a condition of property that creates a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable that it will be used. The intent of these statutes, the Court said, is to impose liability only when there is a substantial danger which is not apparent to those using the property in a reasonably foreseeable manner with due care.

The Court held that Christian failed to raise an issue of material fact as to whether the school district maintained a dangerous condition on its property. The Court said that the risk of falling and being seriously injured would be obvious even to a nine-year-old boy at the time Christian poked the handlebar of his bicycle into an opening in the chain link fence, climbed onto the bicycle, balanced himself with one foot on the seat and his other foot on the bar, and reached over the fence to pick an orange from a tree on the adjacent property. While unfortunate, the injury that resulted when the readily apparent risk of falling became a reality is not compensable. The undisputed facts established that Christian was not using the fence with due care in a manner in which it is reasonably foreseeable that it will be used.

The lesson the boy learned, the Court observed, is that tort law did not protect him from the consequence of his careless decision.

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Case of the Day – Thursday, September 22, 2016

ANOTHER DAY, ANOTHER MULLIGAN


We were all about “do-overs” yesterday.  As Yogi Berra might have said, today is déjà vu all over again.

dooverb160921It seems there was trouble in Randolph County, Alabama, up near the Georgia line. The Ledfords had purchased a nice vacation home on a lake, next to a place owned by the Youngs. While the Youngs appreciated the natural setting, the Ledfords were more concerned that nature’s bounty – specifically one large pine tree on the boundary between the Ledford’s land and the Young property – was going to fall on their house. They wanted the tree cut down. The Youngs refused. The matter ended up in court.

Of course, regular treeandneighborlawblog readers know how that should have turned out: if the tree really sits on the boundary line, both landowners have to agree before it can be cut down. The trial court reasoned otherwise. Under the Massachusetts Rule, a landowner can trim parts of a tree that overhang or grow under his or her property, all the way from the center of the earth to the sky. So that meant the Ledfords could cut out half of the tree, the court mused. That would kill the tree, but the court interpreted the Massachusetts Rule to mean that since you’re allowed to hack at the roots and branches of a tree without regard to the damage you cause, then you can take down the whole boundary tree if you like. The trial court gave the Ledfords the go-ahead to take down the tree.

The Youngs appealed, and common sense prevailed. The Court of Appeals explained the proper boundary tree rule, and reversed the trial court’s errant ruling. But in so doing, a few judges on the appeal panel wondered aloud (or at least, in the written opinion) why the Ledfords hadn’t argued that they had the right to cut down the pine tree because it was a nuisance. Remember Fancher v. Fagella? One judge went so far as to say that if the record held evidence of nuisance, he would have upheld the trial court, wrong though its reasoning was.

Do we have to spell it out? The trial court was just plain wrong.

Do we have to spell it out? The trial court was plain wrong.

Well, the Ledfords could take a hint. When the case went back to the trial court “for proceedings consistent with this opinion,” as the court of appeals decisions like to say, they asked for a do-over, a second hearing, this one on nuisance. ‘Hold the phone!’ the Youngs cried. ‘The Court of Appeals said the Ledfords lost. The tree stays standing. Game over.’

The trial court gave the Ledfords their mulligan. It ordered a second hearing, and afterwards found the pine tree to be a nuisance. The Ledfords were told they could cut it down. Again.

The Youngs went back the court of appeals for a writ of mandamus, essentially a request that the court of appeals issue an order telling the trial court it couldn’t hold the second hearing. The court of appeals refused to do so. Applying an obscure rule called the “law of the case” doctrine, the appellate court held that while the trial court was required to apply the ruling the court of appeals had issued, that ruling was just that the Ledfords could not cut down a boundary tree without the agreement of their neighbors. The court of appeals did not say the tree had to remain – just that if it was to be cut down, it couldn’t be on the basis originally articulated by the trial court.

The lessons here? The Ledfords’ attorney should have argued nuisance to begin with. It should have been clear that arguing that his clients could cut down a boundary tree was a loser. Besides, in civil litigation, you argue as many alternative theories as possible to get your clients where they want to end up. Who knows which one will be a winner?

Of course, the Ledfords ended up winning, and the pine tree lost. But as an old judge once cautioned, you should never dig up more snakes than you can kill. Why buy a second trip to the court of appeals by leaving out an argument, and asking for a mulligan later?

A few too many snakes? The Ledford's lawyer courted procedural trouble.

A few too many snakes? The Ledfords’ lawyer courted procedural trouble.

Ex parte Young, 79 So.3d 656 (Ala.Civ.App. 2011): The Ledfords owned a vacation house with a pine tree located slightly over 10 feet from Ledford’s house, on the boundary between their property and that of the Youngs. Fearing that [a] strong wind against the tree could cause it to fall on the home and could cause damage to the [house] as well as serious injury to any occupants,’ the Ledfords wanted a court order that they could cut it down.

The Youngs argued that the pine tree was ‘a true boundary line tree’ and contended that it could not cut down by either property owner without permission of the other. After a hearing in which the Ledfords, the Youngs, and a forester hired by the Youngs all gave testimony, the trial court held that Ledford and her husband could remove the tree at their convenience, taking steps to minimize damage to the Youngs’ lot. The trial court held that because Alabama law let a landowner remove any trees on his or her property up to the property line, and this right extended to the center of the earth and into the sky, the Ledfords were free to hack into the pine tree up to the property line and then cut from that point to the center of the earth and into the sky. The Court said that “[s]ince [the Ledfords] unquestionably has the right to remove any portion of the tree that is located on [their] side of the property line and since doing so would likely kill the tree, the Court is of the opinion that [they] should be allowed to completely remove the tree to ensure” that the property and the health of anyone there are protected.

When the case got to the Court of Appeals the first time, it was promptly reversed. Rejecting the trial court’s tortured “center of the earth to the sky” analysis, the appellate court ruled that “[i]n the special case of a boundary-line tree, … each adjacent landowner has ownership rights that cannot be trumped by the other’s desires in the manner suggested by the trial court’s judgment” and that the Ledfords – contrary to the trial court’s judgment – could not properly “‘cut into the tree to the property line and then cut from that point to the center of the earth and into the sky'” without incurring liability to the Youngs.

But the appellate court went a little further. In a concurring opinion, two of the judges on the appellate panel observed that the action had been argued on the basis of the Ledfords’ contention that they were entitled to remove the boundary-line tree at issue merely because its trunk was located in part on their property. The judges noted that whether the “boundary-line tree at issue in this case constituted a nuisance for which an exception to the general rule set forth in the main opinion might apply” had not been litigated. A third judge on the panel said that had the record contained evidence indicating that the tree at issue posed a danger to the Ledfords’ house,” he would have voted to affirm the judgment instead of reverse it.

After the appellate judgment issued, the Ledfords asked the trial court for another hearing to consider whether the pine tree was a nuisance. The Youngs argued that the appeals court had decided in their favor, and the case should be closed. But the trial court had another hearing, and afterwards decided that the tree was a nuisance, and that the Ledfords could remove it on that basis.

The Youngs filed a petition for a writ of mandamus, asking the appeals court to order the trial court to enter judgment for them, and end the hearing.

Held: The Ledfords could cut down the tree. A court will issue a writ of mandamus only when the petitioner has a clear legal right to the order sought; the respondent has an imperative duty to perform, accompanied by a refusal to do so; there is no other adequate remedy at law; and the court has jurisdiction of the court.

Mulligan140206Here, the Court of Appeals said, the only real question was whether the trial court had the right to hold a second trial in this matter. The Youngs contended that the prior appellate court’s decision was final as to all matters before it and that the trial court, after that initial appeal, was not allowed to hold another hearing and take additional testimony without permission of the appellate court to do so. The court of appeals agreed with that statement of the law, but said that only the particular issue that had formed the basis of the trial court’s judgment – whether Ledfords could unilaterally remove the boundary-line tree simply because the majority of it was located on their side of the common boundary – was addressed. Based upon that conclusion, the court of appeals had reversed the trial court’s judgment letting the Ledfords unilaterally remove the tree,” and remanded the cause “for further proceedings consistent with [that] opinion.”

Because of the limited scope of the trial court’s previous judgment, no one had ruled on whether the boundary-line tree posed a danger to Ledford’s home or amounted to a nuisance. While the prior decision was thelaw of the case,” nothing in the prior opinion limited the trial court from ruling on the nuisance question, which the court of appeals admitted remained open for decision. Deciding to examine the nuisance question did not put the trial court in the position of doing something contrary to what the court of appeals had ordered.

TNLBGray140407

Case of the Day – Wednesday, September 21, 2016

BROWN GETS A MULLIGAN

doover160921It’s been awhile, it’s true, since we were young pups in law school. But we still seem to recall that when a plaintiff complains that she’s been damaged by a trespass, she has to put on some sort of evidence as to the amount of the damage. If the trial record closes, and the plaintiff hasn’t done so, time was she would be out of luck. No do-overs, no mulligans. One and done, as the sports guys say.

Well, apparently that’s no longer true in Mississippi. When Martha Murrell decided to build a fence in front of her house without checking her subdivision restrictions first, her neighbor Jeanette Brown took exception. It seems the restrictions prohibited building anything within 25 feet of the property boundary, and Martha crowded that a little – by about 23 feet. In fact, she put the fence so close to the property line that she had to hack off a few branches from one of Jeanette’s trees in order to finish the project.

Jeanette sued Martha, asking the trial court to order her to remove the fence and to give her $30,000 in damages because she had hindered Jeanette’s enjoyment of her property. Admittedly, we enjoy our property, too, especially sitting on the deck with an appropriate legal beverage, but $30,000? That’s a lot of hindrance being compensated.

The trial court granted the injunction, because the fence violation was pretty clear. Martha must have figured that showing the trial court her snapshots of the “mutilated” tree was good enough. The trial court must have found the pictures compelling, although not $30,000 worth of compelling. It awarded Jeanette $5,000.

mulligan160921The Court of Appeals was made of more skeptical stuff. It ruled that while the picture was good enough to show that Martha or her minions had trespassed onto Jeanette’s land, and had hacked up her tree, it was not good enough to show how much damage Jeanette had suffered. Despite a strenuous dissent from a judge who thought Jeanette had had ample opportunity to prove the amount of damages, the Court sent the case back to the trial court to give Jeanette a second bite of the apple.

Murrell v. Brown, Case No. 2015-CA-00331-COA (Ct.App. Mississippi, Aug. 30, 2016). Jeanette Brown filed a complaint against their next-door neighbor, Martha Murrell, for constructing a fence in violation of their subdivision’s protective covenants. The North Colony subdivision covenants state that “[n]o fence shall be constructed nor any other structure be constructed within 25 feet of front property line.” Brown complained that Murrell built a fence within a few feet of the front property line in violation of this covenant, thereby diminishing the value of Brown’s property and “hindering her use and enjoyment of her property.” Brown wanted the fence taken out and damages of $30,000.

After a hearing, the trial court found Murrell in violation of the subdivision’s covenants and ordered her to remove the fence. The court further held that because Murrell or her agents mutilated Brown’s tree and came on to Brown’s property to do so, Brown was entitled to $5,000 in damages.

Murrell appealed.

butchered160921

Jeanette made out her damaged tree to look something like this, but while a picture’s worth a thousand words, it’s not worth five thousand bucks.

Held: The damage award was reversed. The Court of Appeals said that n awarding Brown $5,000, the trials court reasoned that Murrell or someone on her behalf “mutilated [Brown’s tree] by chopping off these limbs in such a way that I don’t know what it would look like when it grows back. And [the person] came several feet over onto [Brown’s] property to do it.”

Murrell asserted that the trial court abused its discretion in awarding damages for the tree, because Brown never mentioned the tree damage in her complaint. The Court, however, noted that while the complaint did not reference the tree damage, pictures of the tree were entered into evidence at the hearing, showing that the tree’s branches had been cut at the fence line, and Brown’s lawyer had written to Murrell about the damage before the case was filed.

Murrell also claimed that Brown failed to prove that Murrell or her agent caused the damage to the tree. Brown asserted at the hearing that Murrell “took a power saw and cut [her] tree to build the fence,” but Brown conceded that she did not personally witness Murrell, or anyone acting on her behalf, cut the tree. She simply testified that she “was informed [Murrell’s] father had cut the tree.” The appeals court, however, was satisfied that the trial judge, “as the fact-finder, clearly determined that Murrell or her agent cut Brown’s tree.” Circumstantial evidence, after all – such as limbs cut at the fence line – supported the trial court’s finding that someone acting on Murrell’s behalf cut the limbs during the construction of the fence. That was good enough.

The heart of Murrell’s appeal was that the award of $5,000 “for the mutilation of the tree” did not address the fair market value of the tree before and after the cutting. After all, the tree in question was not a fruit-bearing tree “and the cost of complete life maturity is no more [than] two hundred and fifty dollars.”

The appellate court held that while the trial court properly found Brown’s tree suffered some damage, and Murrell (or her agent) likely trespassed on Brown’s property to cut the tree, the award of $5,000 for the tree damage was excessive and not supported by substantial evidence. “Brown’s tree was not cut down,” the Court observed, but rather “the tree’s branches were merely cut back at the fence line. While the pruning was unsightly, there was no evidence presented that the tree was permanently damaged.”

apple160921Proof of actual damages must be shown in order to recover more than nominal damages, and Brown made little in the way of such a showing. The Court, however, held that Brown showed photos of “mutilated” tree and those photos were enough to let the judge ascertain damages. Once a judge is “presented clear evidence that [the plaintiff] owned the property and that the trees had been cut without [her] consent, the [judge] was obliged under the circumstances to award damages in some form.” So something is to be paid, but there has to be some evidence of what.

A dissenting judge complained that “Brown did not even establish what kind of tree is at issue in this appeal. It was Brown’s burden to prove her damages, and having failed to present any evidence of actual damages, she should not be given another opportunity to do so. “A litigant is entitled to but one bite at the damages apple…”

TNLBGray140407

Case of the Day – Tuesday, September 20, 2016

IF I WERE KING OF THE FOREST…

king160921You’d think it would be a lot of fun to be a judge, thundering orders, edits and ukases all day long down at squirming lawyers and quivering clients.

But sometimes, even judges are bound to make decisions they don’t like. That’s what happened when the Loves – who lived next to the Kloskys – sued to save a beautiful catalpa tree.

The Kloskys wanted to cut the tree down because they thought it was a nuisance to rake up the tree’s leaves and pods. The Loves, on the other hand, wanted to save the tree because it provided them with shade, beauty, and comfort, and enhanced their standard of living and the value of their home.

Because the tree was about 4/5ths on the Klosky’s land, they believed they could do with it what they wanted. In a majority of American jurisdictions, they could not, because the clear boundary tree rule is that a tree growing on a boundary belongs to both landowners as “tenants in common.” Neither landowner may do anything to the tree without the permission of the other.

Colorado, however, follows a minority rule. It does not matter if a tree is on both owners’ parcels. What matters, instead, is intent: boundary trees are as common property only if the landowners jointly planted, jointly cared for, or treated the trees as a partition between the properties. This rule, adopted in Rhodig v. Keck, creates no end of mischief. Instead of a clear rule that parties can understand and accept without resort to lawyers and courts, Rhodig makes every boundary tree issue a legal taffy-pull, with the parties trying to spin alternate histories about who said what and who did what over the 50+ years of a tree’s existence. Lawyers love it: you can hear the billing meters spinning all the way from the east coast. But, in the words of the Chewbacca defense, it does not make sense.

The trial judge understood this, but his hands were tied, because Rhodig – a Colorado Supreme Court decision – mandated that if the plaintiffs could not prove they had a deal with the Kloskys, or had otherwise nurtured the tree that the Loves loved, the Kloskys owned it and could remove it as they wished. The trial judge said:

The law often requires me to do things I don’t want to do. If I were the emperor of Washington Park, I would, I would order this tree not cut down. It’s a beautiful tree, it’s a great tree. But that’s not my role. I’m not the emperor of Washington Park. I have to follow what I think the law is, and my conclusion is that the Loves have not met their burden of proof under Rhodig

A catalpa -beloved by fisherman and fowl - but not by Rick Meyers.

     A catalpa – beloved by the Loves  – but not by the Kloskys.

Earlier this month, the Court of Appeals agreed, but with a very pointed suggestion to the Supreme Court that it revisit the issue, and abandon the ill-advised Rhodig decision.

Love v. Klosky, Case No. 15CA1505 (Ct.App. Colorado, Sept. 8, 2016). Keith and Shannon Love were neighbors of Mark Klosky and Carole Bishop, with a 70-year old but quite healthy catalpa tree, the trunk of which straddled their common boundary. The Kloskys thought the tree was a nuisance, and wanted to cut it down. The Loves loved the tree.

At the ground level, 74 percent of the tree’s trunk was on the Kloskys’ property, with the remaining 26 percent on the Loves’ property. At the four-foot level, the numbers were 86 percent Klosky, 14 percent Love. When the tree first sprouted, it was all on the Kloskys’ property, but for the past 40 years, the tree has been on or over the property line.

The trial court felt itself bound by the Colorado Supreme Court’s decision in Rhodig v. Keck, and entered judgment letting the Kloskys remove it.

The Loves appealed.

Held: The Court of Appeals reluctantly concluded that the Kloskys could remove the tree over the Loves’ objection. The Court noted that the majority rule on ownership of boundary trees in the United States held that neither property owner can cut down a tree that straddles the shared boundary line. Colorado, however, is an outlier. Under the Colorado Supreme Court’s  Rhodig decision, the landowner of the property where a boundary tree was first planted can cut the tree down over the other landowner’s objections, unless the other landowner can prove that the tree was jointly planted, jointly cared for, or treated as a partition between the properties.

The Loves tried to fit themselves within Rhodig by arguing that they had jointly cared for the tree over the years. The trial court, however, held that the fact that they cut a branch off the tree to make room for a swing set, watered the tree as an incidental effect of watering their own lawn, and raked the leaves in their yard was insufficient to constitute joint care for the tree.

Beyond that, the Loves argued that Rhodig is the clear minority rule among jurisdictions addressing the issue and should be reconsidered by the supreme court. The Court of Appeals described Rhodig as follows:

In Rhodig, the plaintiffs planted one tree wholly on the defendant’s property, and three other trees grew on both properties. Twenty years later, when the defendant removed the trees, the plaintiffs sought damages. Logically, the court held that the plaintiffs could not affix something to their neighbor’s land and then claim ownership rights without some agreement, right, estoppel, or waiver. The court, however, stated a rule that governed all boundary trees: boundary trees are held as common property only if the landowners jointly planted, jointly cared for, or treated the trees as a partition between the properties. No Colorado case has interpreted or cited Rhodig since the supreme court set forth this rule in 1966.

boundary160921The Court observed that Rhodig is clearly the minority rule, with only five states following a similar rule that a tree, shrub, or other plant on a boundary line is the common property of adjoining landowners, or at least the subject of joint duties, only where they have so treated it by express agreement or by their course of conduct. On the other hand, at least 21 states hold that a tree, shrub, or other plant on a boundary line belongs to both landowners as tenants in common. Under the majority rule, “each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree, a property in it, equal . . . to, or perhaps rather identical with, the part which is upon his land…” and “neither property owner can cut down the tree without the consent of the other, nor can either cut away the part that extends into his or her land if that would thereby injure the tree.”

If one of the cotenants cuts down the tree without the permission of the other, the other cotenant has an action for trespass. In such a case, a court may calculate damages based on the value of the cut tree, apportioned according to the percentage of the tree that was located on the injured landowner’s property.

The Court agreed with a 2007 Washington state decision, Happy Bunch, LLC v. Grandview North, LLC, that criticized the Rhodig decision as “unsound because the Rhodig court created a new theory of adverse possession” and a 1988 Illinois case, Ridge v. Blaha, which criticized Rhodig as relying on cases that did not support its decision.

The Court observed that “the supreme court may wish to reconsider Rhodig based on the many jurisdictions adopting the majority rule and the two decisions criticizing it. If the supreme court reconsiders Rhodig and adopts the majority rule, the court could remand this case to the trial court to issue an injunction to prevent the Kloskys from cutting down the tree. The injunction could include a provision that the Loves would be responsible for all or some of the maintenance of the tree, including raking leaves and pods and trimming the tree’s branches.”

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Case of the Day – Monday, September 19, 2016

LOSERS WEEPERS

Last Friday, we wrote about our 10-year old neighbor’s remarkable good fortune in finding a Wham-O Superball, and what law governed whether he could keep it or had to return it to another claimant. All of that turned out to be moot, as he promptly lost it in a soybean field. But we had so much fun writing about finding lost property that we though we’d take up the obverse of that coin today – what happens when the lost property was stolen to begin with.

The objet d'art that started it all

The objet d’art that started it all

Now, ripped from the headlines … and based on a true story, we present the tale of poor driving instructor Martha Fuqua, whose purported avocation of haunting flea markets and garage sales brought her a brief shining moment of wealth and fame.

Martha is the woman who dropped $7.00 on a dusty and faded old painting in a dilapidated frame. Or so her story goes. She says it sat around her place for a few years before she decided to get it appraised at her late mother’s urging. Lo and behold, the painting turned out to be by the French impressionist Pierre Auguste Renoir. What a lucky break for Martha! And it seemed to be worth somewhere north of what Martha had paid for it, about 15,000 times her initial investment.

Everyone loves a story like this, an everyday Joe or Jane unexpectedly becoming rich because of serendipity. Like the German teen who just stubbed her toe on a 1-lb. gold bar while swimming on vacation. Martha’s story was equally compelling – maybe even more so, because she had just lost her teaching position and was training to be a casino blackjack dealer. No question, Martha sure could stand to be Queen for a Day, maybe stub her toe on a windfall herself right about now.

But alas, nothing ruins a good story like an eyewitness. Or two.

When Martha sought to auction the piece of art in 2012, the word quickly spread that the piece was Renoir’s On the Shore of the Seine, a 5½ x 9-inch landscape. Martha, who began calling herself “Renoir Girl,” was basking in the publicity. Reporters and art enthusiasts tried without success to establish the provenance of the work, and someone eventually tracked it back to the Baltimore Museum of Art. Officials there denied ever having had it hanging on their walls. But shortly before the auction – which was expected to bring Martha over $100,000 – the Washington Post found documents showing that the May family, a prominent patron of the BMA, had loaned the work to the museum in 1937. Museum officials checked again, and this time found records showing the landscape had been reported stolen in 1951.

Enter Renoir Girl’s brother, Matt, who said that he had seen the painting among his late mother’s possessions several years before his sister said she had bought it for the price of a Subway foot-long and a medium drink. A mother who happened to have been an art student in Baltimore in the early 1950s, right when the diminutive painting was plucked from the wall of the museum. Other family acquaintances recalled seeing the painting at the Fuqua family’s home in Virginia in the 80s and 90s. Oh, those pesky eyewitnesses!

No impressionist paintings were harmed during this raid.

No impressionist paintings were harmed during this raid.

The BMA complained that it didn’t really care how Martha Fuqua came to possess the work, it belonged to the museum. The FBI bravely swept in, shot an unarmed civilian or two, wrestled the painting to the floor, probably tased the frame once or twice, and took possession of the work. Then the courts took over.

The government filed what is known as an interpleader action in Federal court. An interpleader action states in essence that the filer is in possession of some property to which there are competing claims for ownership. It asks the Court to separate the wheat from the chaff, and sort out the claims. Ms. Fuqua said that she found the Renoir fair and square, and that anyway, she possessed it and possession is nine-tenths of the law. The BMA said that the law doesn’t let anyone, even an innocent purchaser, take title to stolen goods.

In re “Paysage Bords De Seine,” Case No. 1:13-CV-347 (E.D.Va., Jan. 14, 2014): Only two parties remained of the four claimants named by the plaintiff United States of America, Martha Fuqua – who claimed she bought the artwork at a flea market – and the Baltimore Museum of Art. The BMA claimed the Renoir landscape had been reported stolen from its walls 60 years before.

Surprisingly enough to people who follow this kind of thing, the Court actually observed that “the Fourth Circuit has endorsed the truism ‘[t]hat possession is nine-tenths of the law’.” Virginia common law presumes that the person in possession of a piece of property has a superior claim to it, although the presumption can be rebutted by sufficient evidence. The Court noted that one way of rebutting the presumption was by proving the property was stolen, because the law was clear that “even a good-faith purchaser for value cannot acquire title to stolen goods.”

Interestingly enough, Pierre

Interestingly enough, Pierre “Pete” Renoir, pictured here, was one of the few interested parties not to make a claim in the case for the landscape at issue.

BMA essentially was bringing a detinue action, a common law action to obtain an order from the court that its property be returned to it from another person – not necessarily a wrongdoer – who for whatever reason is in possession of it. In order to prevail, BMA had to prove (1) a property interest in the item; (2) the right to immediate possession; (3) that the property is capable of identification; (4) that the property is of some value; and (5) that it possessed the property at some time in the past.

The parties didn’t dispute that the property – a painting – could be identified and that it had considerable value. Ms. Fuqua, however, claimed that the museum couldn’t prove it had ever possessed the painting. The BMA produced copies of the 1951 police report, copies of its records showing that the painting had been loaned to it, and copies of board minutes from the early 1950s citing the theft and an insurance claim. (In case anyone wonders, the May family descendents had been named in the suit as potential claimants, but they waived any claim to the Renoir).

Martha Fuqua - the

Martha Fuqua – the “Renoir Girl” herself – argued that possession was nine-tenths of the law. It’s that other 10% that’ll get you, however, as it did in this case …

Martha Fuqua argued that the BMA records weren’t reliable evidence, but the District Court found the internal records showing the painting was loaned to it, that it catalogued it and exhibited it in due course, were convincing. Even more persuasive was the official copy of the police report, proving that the BMA had reported the painting had been purloined. Ms. Fuqua complained that the police report was hearsay, but the Court correctly pointed out that the report wasn’t intended to prove that the painting had been stolen, but rather to prove that it had been reported stolen. Too fine a point for you? Such is the nature of the law of evidence.

The Court concluded that Ms. Fuqua hadn’t offered any evidence that the painting had not been stolen, and the BMA had provided plenty of proof that it had been. As a final “hail Mary,” the Renoir Girl speculated that maybe Saidie May ­– who had loaned the painting to the museum – hadn’t had her husband’s permission to do so. Like that mattered. The Court dismissed this canard as rank speculation.

The painting was ordered back to the museum. And by her reckoning, Martha Fuqua is out the price of a 12” meatball marinara and Coke.

Martha most recently has said she’d like to put all of the kerfluffle behind her. One can hardly blame her. As for Marcia “Light Fingers” Fouquet, Martha’s deceased mother, the Romans had a phrase for it: De mortuis nil nisi bonum dicendum est (“Of the dead nothing but good is to be said.”) So we won’t talk about her at all.

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Case of the Day – Friday, September 16, 2016

FINDERS KEEPERS

superball140801We settled a particularly difficult case yesterday. Our 10-year old neighbor Christian found a Superball (remember those?) in the grass near his house. He was busy tormenting his little sister Lexia with it – something at which 10-year old boys are especially adept – when he wondered whether he could keep his find or he’d have to “give it back.”

We asked “Give it back to whom?”

He shrugged, having no idea who the owner had once been. His situation reminded us of a sad Ohio news story a few years ago about a contractor who found a wad of money in the walls of a house he was fixing up for a new owner. The contractor and the owner and — finally — the descendants of a prior owner — all became embroiled in litigation, and in the end, the lawyers got virtually all of it. Shades of Jarndyce v. Jarndyce!

fklw2Lucky for Christian, we knew what Ohio law had to say about “treasure troves,” those little bundles of cash, jewelry, art or old Hostess products that people occasionally stumble over. It turns out that the answer is, it depends on whether the property is lost, abandoned, stolen or mislaid. If it’s lost or abandoned, it turns out, Christian’s little sister was right in the advice she gave him: finders keepers.

In today’s case, a very fortunate cop found thousands of gold and silver coins scattered on a city street at 4 a.m. He picked them up, and then, being a dutiful cop, turned them in. The owner never stepped forward — and we bet there’s a story in that — so after about a year, the police officer sued for ownership.

The City opposed him, arguing that the money was located on its street and the policeman was on its time clock when he found them. None of that mattered, the Court said. All that counted was that the lost or abandoned property was found by Officer Baker, who thus had ownership rights superior to anyone other than the rightful owner.

Our advice to Christian, then, was the Superball was probably lost property, because who’d willingly abandon such a cool ball? It was his to enjoy unless the true owner stepped forward.

Sadly, our legal efforts were for naught. Shortly after our sage advice to him, Christian lost the Superball on an especially high bounce into a nearby cornfield. Losers weepers.

Baker v. City of West Carrollton, Case No. 9904 (Ct.App. Montgomery Co., August 7, 1986) (unpublished), 1986 WL 8615. Police officer Charles Baker found a large number of gold and silver coins scattered on a West Carrollton public street. After reporting the find, he and city employees picked up 6,871 gold and silver coins and placed them in the police property room. When no one stepped forward to claim them, Baker sued to establish his right to the money. The City counterclaimed, arguing that the money was found on its street, and Baker was its employee, so the money belonged to it. The trial court agreed, and awarded the money to the City. Baker appealed.

chestHeld: The money belonged to Baker, not the City. The money was considered to be “lost” or “abandoned” property. Under Ohio common law, a finder who takes possession of “abandoned property” acquires absolute title. A finder of a lost article, although he does not by such finding acquire an absolute property or ownership, has a prior claim thereto as against everyone except the actual owner. The rule is practically absolute and is not affected by special circumstances of the character of the thing found, the place of finding, or the relation of the finder to the third person, even where the finder is the employee of the owner of the premises.

money2At common law a finder who takes possession of lost property has a duty to protect the property; to seek the true owner, and to return the property to the true owner on demand. The state had no right to found property as against the finder. Although Ohio law governs disposition of lost or abandoned property by police departments, the law requires the property to be turned over to persons with a right of possession, and Ohio courts have held that a finder of lost property which is unclaimed by the true owner is a person “entitled to possession of property” under that law. Officer Baker was such a person.

West Carrollton argued that since Baker is a police officer he should not receive a reward for performing his duty. The Court agreed that rewards for police officers’ performance of their duties aren’t appropriate, but it said that the City’s award analogy was strained. It held that Baker’s primary duty was to the true owner of the coins, and he got no reward for that.

The Ohio Supreme Court later upheld the decision. Now, if those Justices can just help Christian search the cornfield.

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