Case of the Day – Friday, February 22, 2019

DOING NOTHING IS NOT AN OPTION

“A stitch in time saves nine” is an idiom that’s been around for three hundred years or so. It also is an everyday explanation of the equitable doctrine of laches.

It always seemed a little ironic that English common law needed an entire branch of jurisprudence known as “equity.” Oliver Wendell Holmes, Jr., famously lectured a litigant once that his courtroom was “a court of law, young man, not a court of justice.” It was precisely because there was so much law and so little justice that medieval England developed a parallel judicial system known as courts of equity, where litigants could get just results that were precluded in the courts of law by hidebound rules of pleading and damages.

The basis of equity is contained in the maxim “Equity will not suffer an injustice.” Other maxims present reasons for not granting equitable relief. Laches is one such defense.

snoozeLaches is based on the legal maxim “Equity aids the vigilant, not those who slumber on their rights.” In other words, “you snooze, you lose.” Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. If the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice.

Ms. Garcia suffered encroachment from a copse of boundary-tree elms for a long time, perhaps too long a time, without doing anything about it. She could have trimmed roots and branches that intruded into her alfalfa fields years before – New Mexico law let her do that – but she fretted and stewed in silence. When she finally wanted to take action, the elms were so big that the trunks themselves had crossed the property line. Her “self-help” would have killed the trees.

The lesson? As Ed McMahon used to adjure us, “You must act now.”Act now

Garcia v. Sanchez, 108 N.M. 388, 772 P.2d 1311 (Ct.App. N.M. 1989). This dispute between neighboring landowners involves trees originally planted on defendant’s property which have overgrown and now encroach upon plaintiff’s property. By the time Garcia bought her land in 1974, ten elm trees planted some years before near the common property line were well established. Although originally planted inside defendant’s property line, over the years the trees had reached full size, and had grown so that nine of them were directly on the boundary, with the trunks encroaching onto plaintiff’s property from one to fourteen inches.

Garcia used her land for growing field crops. Sanchez’s side had a driveway and residence. Garcia didn’t complain about the trees until 8 years after buying her property. Two years after her first complaint, she sued.

The trial court found Garcia’s actions in providing water and nutrients to her crops had caused the trees to grow toward her property, but it concluded that Sanchez negligently maintained the elm trees, allowing the roots and branches to damage the crops on Garcia’s property. The court also found that she has not suffered enough damage to warrant the removal of the trees, and that cutting any substantial portion of the trunks of the trees would seriously harm them. The court found that yearly trenching of the roots and trimming of branches on Garcia’s side of the property line would essentially resolve any problems resulting from the encroachment of tree roots and overhanging branches on her property, so it ordered Sanchez to pay $420.80 for damage to Garcia’s alfalfa, to yearly trench the roots and trim the branches of the trees, and to provide water and nutrients to the trees in order to restrict their growth toward plaintiff’s property.

The parties appealed.

Elms make good boundary trees

Elms make good boundary trees

Held: The Court of Appeals reversed and remanded. It held that the trees originally planted inside a property line, which had grown to encroach onto adjoining property along boundary, were not jointly owned under the common boundary line test absent an oral or written agreement to have the trees form boundary line between the parties’ property. It agreed that the trial court’s refusal to order that Sanchez remove the encroaching trees was not an abuse of discretion, observing that the trial court had tried to balance equities by weighing the value of trees against the agricultural character of property involved and nature of harm suffered by Garcia.

But the Court of Appeals went further: it ruled that the harm caused to Garcia’s crops by the elms’ overhanging branches and tree roots is not actionable. Instead, following Abbinett v. Fox, the Court held that a plaintiff’s remedies are normally limited to self-help to protect against the encroaching branches and roots. But here, Garcia waited too long: her plan now, after years of suffering in silence, to remove a substantial portion of the root system or trunk of the encroaching trees (the Massachusetts Rule right) may endanger lives or injure Sanchez’s property, and that laches gives a court the right to limit the exercise of her self-help plan under its equitable authority.

The Court sent the case back to the trial court to determine whether Garcia’s failure to exercise self-help to control encroaching roots, branches and tree trunks over an extended period should preclude injunctive relief now.

– Tom Root

TNLBGray

And Now The News …

Pocatello, Idaho, Idaho State Journal, February 21, 2019: Controversial Inkom tree now a stump but court battle goes on

It’s apparently not good enough that the Montgomery family cut down a 20-year-old tree they planted in their front yard and agreed to pay $300 for the city of Inkom’s attorney fees in the matter. The city is still pursuing legal action against the family. The city’s negotiations with Tracie Montgomery and her husband, Gerrad, over how much the family should reimburse the city for legal expenses associated with the city’s lawsuit forcing the tree’s removal stalled this week, the family said. The city of Inkom filed a lawsuit in August 2018 ordering the family to cut down the evergreen because it was allegedly in the city’s right of way along Rapid Creek Road. The family eventually complied but the controversy is not over. In response to the stalled negotiations over the family paying the city’s legal costs, the city refiled a motion asking the judge assigned to the case to rule in its favor without a trial.If Inkom receives a favorable ruling on the motion, the city could charge the Montgomery family the full amount of any incurred city attorney fees, damages the tree may have caused Inkom and what it will cost the city to remove the tree stump…

Tucson, Arizona, KOLD-TV, February 21, 2019: Tree trouble for midtown neighborhood

Tucson will soon consider a policy which would bring tree trimming, maintenance and pruning under one agency. Right now, there are basically nine different departments, groups or agencies that can trim or prune trees whenever they feel the need to. “There’s no one point of contact, there’s no one person going out doing an assessment of what needs to be done,” said Steve Kozachik, Tucson city council member in Ward 6. “So we have everybody sort of free wheeling and nobody is accountable to anybody.” Kozachik would like for that to change and has made suggestions to city management, none of which have been acted upon. He supports the one agency concept and has suggested Tucson Clean and Beautiful, who has skilled arborists be that agency. “Let them make an assessment of a specific job site, say trim these limbs and these trees,” he said. “So we don’t have someone come out and butcher the trees…”

Phys.org, February 21, 2019: Complete world map of tree diversity

Biodiversity is one of Earth’s most precious resources. However, for most places in the world, scientists only have a tiny picture of what this diversity actually is. Researchers at the German Centre for Integrative Biodiversity Research (iDiv) and Martin Luther University Halle-Wittenberg (MLU) have now constructed from scattered data a world map of biodiversity showing numbers of tree species. With the new map, the researchers were able to infer what drives the global distribution of tree species richness. Climate plays a central role; however, the number of species that can be found in a specific region also depends on the spatial scale of the observation, the researchers report in the journal Nature Ecology and Evolution. The new approach could help to improve global conservation. Around the world, biodiversity is changing dramatically and its protection has become one of the greatest challenges confronting mankind. Researchers still know very little about why some places are biologically diverse while others are poor, and where the most biodiverse places are on Earth. Also, the reasons that some areas are more species-rich than others are often unclear…

West Lafayette, Indiana, Purdue University Extension, February 21, 2019: Trees and taxes

The tax filing due date is closing in. If you have not already done so, it is time to collect information and plan for your return. Woodland owners may be able to take advantage of some parts of the tax code to reduce their bill if they know what to look for, how to file and how to receive the best treatment of their income under the law. Several resources are available to help you drill down to those parts of the code that could provide you with some tax breaks. For those who have sold timber in 2018, depending on your individual situation, you may be able to deduct the costs associated with selling timber and the cost basis of the harvested timber from gross income. Basis is the amount you paid for the timber when you purchased the land or the value of the timber when you inherited it. Since timberland is normally sold at a value per acre combining both the bare land and timber value, some information on the amount and value of standing timber needs to be collected and some calculations done to determine basis. A professional forester can help you collect this information and calculate your basis. The best time to figure timber basis is when the land is purchased or inherited, but a forester can help you determine timber basis years after the property was acquired. Since basis represents the value at the time of acquisition, as the years pass and the trees grow, basis becomes a smaller percentage of the total timber value for the property…

Los Angeles, California, Times, February 20, 2019: Residents’ hopes to save ancient oak tree on Georgian Road felled by commission

Residents’ hopes of saving a centuries-old oak tree growing at a home on La Cañada’s Georgian Road were felled last week, when planning commissioners denied an appeal against a tree removal permit granted by the city’s planning director in November. A group of residents turned out for a Feb. 14 meeting of the La Cañada Flintridge Planning Commission to argue in favor of finding some way to keep the tree alive, after two arborists called by new property owner Alan Frank determined the tree was ailing and needed to come down. “I fundamentally believe property owners should have great leeway to develop and use their property as they wish — this time is different,” said appellant Edward Johnson. “On rare occasions, the community’s desire to preserve a community treasure should override a property owner’s right to use the property as they wish.” Frank told commissioners he sought professional advice regarding the health and maintenance of a few trees, including the coast live oak in question, another equally mature oak tree at the front of the lot and a sycamore…

Mobile, Alabama, Press-Register, February 20, 2019: ‘Live oak lobby’ loses vote on Broad Street tree plan

Mobile’s tree commission has voted to permit the removal of dozens of live oaks along Broad Street as a part of an extensive redevelopment plan designed make the corridor more pedestrian-friendly and visually appealing. The split vote, which may lead to an appeal before the city council, came during a Tuesday meeting at which several people spoke in favor of doing everything possible to save live oaks, arguing that the trees’ massive limbs and expansive canopies make them both a signature element of the city and a blessing to anyone out and about in summer heat. The 50 or so trees in question are not among Mobile’s oldest and grandest, with most estimated as being 40 to 50 years old and many described even by supporters as stressed. The project driving their removal is an extensive, multimillion-dollar redevelopment of Broad Street, a major roadway that forms part of the perimeter of downtown Mobile and separates it from Midtown…

The Nature Conservancy, February 20, 2019: Saving conifer strongholds in the Northwoods

Change is afoot in the Northwoods. But should we give up on the very trees that define it? Not yet. Not by a long shot. To plant the right tree in the right place has long been a precept in forestry. But as climate change descends upon the Northwoods, a transformation is underway. Scientists project that signature species, such as paper birch and white spruce, will gradually give way to southern trees, such as red maple. So what do “right tree” and “right place” mean in 2019? As warming continues, it is tempting to focus exclusively on “climate-proofing” our Northwoods. A mass planting of trees that can take the heat, such as red oak and bur oak, will doubtless be needed to help northern forests keep up with the pace and scale of climate change. But what of our majestic conifers—like red pine, white pine, tamarack and white spruce – that once dominated the landscape in the Great Lakes region? Many northern conifers will be unable to survive over the long term as the climate warms…

Seattle, Washington, KOMO-TV, February 20, 2019: After tree falls through roof, homeowners fear more failing trees on developer’s property

A local family is out of their home after a neighbor’s tree blew down and crashed through their roof. Now, they’re worried about other huge trees on their neighbor’s property. Portions of the townhome complex in Kenmore abut an undeveloped wooded area. Neighbors who live next to the property say they don’t feel safe because more trees could come down in future storms and they can’t do anything about it. “It sounded like a bomb exploded inside the house,” said Jay Arroyo. The explosion he heard was a giant Douglas Fir crashing through his roof in a December wind storm. The tree came down just feet from the room where a child was sleeping in the adjoining unit. “They had the engineers come in to see if it’s structurally safe,” Arroyo said, pointing out the extensive damage where the massive trunk sliced into parts of a bed room and bathroom. Emergency tree removal cost more than $13,000. Arroyo says repairs could exceed $40,000. He and his wife filed a claim with their homeowners insurance. He says their Home Owner’s Association also had to file a claim to get the roof repaired and was told his deductibles will come to $11,000. When a tree damages your property, your homeowners or renter’s insurance typically covers the loss, regardless of who owns the tree…

Buffalo, New York, News, February 19, 2019: Zombie ash trees taking a toll on homes, parks, power lines – and people’s nerves

Diseased ash trees snap like twigs in the face of gusting winds. The falling trees can damage property, block roads, tear down power lines and shatter a homeowner’s peace of mind. With high wind warnings appearing regularly in the weather forecasts, residents throughout Western New York are reeling after the fall of a towering tree. Many described the experience as unforgettable, costly and always jarring. Arborists called it preventable. “The biggest danger is dead ash trees. They’re punky, soft, lose their strength, and people wait too long to remove them. Taking them down becomes dangerous,” said Greg Sojka of Greg’s Tree Service in Lancaster. “The top snaps, branches break off and when it falls, it shatters like china. “There’s a huge liability and a hazardous situation with dead ash trees,” said Sojka. “The next wind storm, there will be another 40 or 50 down. They fall any which way the wind is blowing…”

Jacksonville, Florida, WTLV-TV, February 19, 2019: Tree trimming scam in Columbia County

A man saying he will trim trees in Columbia County is a scam-artist according to the Columbia County Sheriff’s Office Tuesday morning. Deputies say that a man is going around saying he will trim trees for people, but once they give him payment he never returns to complete the job. This incident is being investigated by the Columbia County Sheriff’s Office and they are warning those in the area to do their research before paying someone to trim trees for them…

White Bear Lake, Minnesota, Shoreview Press, February 19, 2019: Dead trees are essential to wildlife health

At a time of year when most of the outside world appears mostly lifeless, dead trees don’t stick out much. But to countless wildlife species, dead trees are an oasis of resources year-round. Woodpeckers are one of the most common birds to see in the winter landscape and one of the most famous for making good use of standing dead trees, or snags. With their specialized beaks and tongues, woodpeckers hammer at the bark of dead trees to find insects that have burrowed inside for the winter. In the spring, some of the cavities drilled into the trees by woodpeckers will become nests for their offspring, for other birds, or for completely different types of wildlife, such as squirrels. Tree cavities are an essential part of the life cycle of red-headed woodpeckers, a species that has declined significantly since the 1960s. Part of the reason their population has decreased may be due to the clearing of dead trees, and a reduction in nut-producing trees due to disease and infestation. However, the highest population of red-headed woodpeckers in Minnesota is found in East Bethel, at the University of Minnesota’s Cedar Creek Ecosystem Science Center. Researchers have questioned why this area is so attractive to red-headed woodpeckers, and found that their nesting sites correlate to the number of prescribed burns done in the area. Before modern land management practices, natural fires were an essential part of Minnesota’s ecosystem. Many of the trees that were burned created the red-headed woodpecker’s ideal standing, dead tree for nesting…

Ukiah, California, Daily Journal, February 19, 2019: BLM taking steps to reduce wildfire risks by removing dead, dying trees

The Bureau of Land Management recently announced plans to remove hazardous trees in approximately 551,000 acres of BLM-managed public land in central and northern California in a plan that is now up for public review. The plan is outlined in the Hazard Removal and Vegetation Management Project Programmatic Environmental Assessment, which BLM officials said “streamlines the process for right-of-way holders, utility companies, and counties to treat vegetation and remove hazardous trees within 200 feet of critical infrastructure to reduce wildfire risk.” According to the BLM, “significant increases in dead and dying trees are threatening public safety in high-use areas near roads, private property, utility lines, recreation areas and trails, and it is “taking action consistent with the direction of Executive Order 13855 to facilitate the removal of hazardous trees near critical infrastructure in California, as the effects of drought, bark beetle infestation and high tree densities continue to impact communities.” Acting Secretary of the Interior David Bernhardt is quoted as saying that “we have seen the sheer devastation that some fires can cause, (and) active forest management is the best way to address this pressing issue, and I am pleased with this latest step that the Bureau of Land Management is taking.” “This plan helps reduce wildfire risk by actively managing forests and woodland areas,” said BLM California Acting State Director Joe Stout. “It streamlines environmental review for vegetation treatments to create defensible space near roads, utility lines, private property, recreation areas, and other critical infrastructure to reduce wildfire risk..”

New Haven, Connecticut, February 18, 2019: $1.2 million settlement in tree-cutting suit against Naugatuck landscaper

The family of a Naugatuck landscaper, who died in a tree cutting accident while working at a Middlebury home in the aftermath of Superstorm Sandy, has been awarded $1.2 million. Superior Court Judge Mark Taylor approved the settlement of a wrongful death lawsuit brought by the family of Michael Pranulis against his employer, K. Landscaping of Waterbury. “This accident was a tragedy and could have been avoided,” said the family’s lawyer, Raymond W. Ganim. “No amount of money can ever compensate the family of this loved man for this loss of life but this judgement by the court can and will ease the loss to the family.” Shortly after 10:30 a.m. on Nov. 4, 2012, Middlebury Police and Middlebury Volunteer Fire Department personnel were sent to 400 Charcoal Ave., Middlebury, after receiving reports of a man who fell. Upon arrival, police said they found Pranulis, 53, of 36 Winthrop Ave., Naugatuck, suffering from head trauma and multiple fractures. He was transported to Saint Mary’s Hospital in Waterbury, where he later died from his injuries…

Austin, Texas, KVUE-TV, February 18, 2019: Invasive tree species in Austin is considered the zebra mussel of the plant world

Twice a month, Keep Walnut Creek Wild volunteers meet up at the North Austin park just off Parmer Lane to kill as many glossy privet trees as possible. “Definitely you want to wear gloves because these things are sharp,” Stephanie Simmons said describing the tools normally used to perform the task: either the carpet knife or putty scraper. Simmons striped off a ring of bark, a process called girdling. In a year, it’s expected to kill this tree. As a tree steward, it’s a practice she usually doesn’t do. “This is the only thing that I really will kill,” Simmons said. This isn’t an ordinary tree. KVUE’S Jenni Lee tagged along with the volunteers on President’s Day. She asked Simmons, “would you consider the ligustrum, the glossy privets, the zebra mussels of the plant world?” Simmons quickly responded, “yes! Yes!” Glossy privets are an invasive species that are taking over parks and green spaces in Austin…

Canadian Broadcasting Corporation, February 18, 2019: How a sweet-smelling fungus is threatening mighty oak trees

It’s not an insect, but a fruity-smelling fungus with the potential for tree devastation that some are comparing to the Emerald Ash Borer. It’s called oak wilt and though there have been no confirmed cases in Canada, arborists here are gearing up for its potential arrival in southern Ontario. A report about the oak wilt threat is coming to the city of London’s planning committee Tuesday. Jill-Anne Spence is London’s urban forestry manager. She says the city is ramping up its efforts to warn the public about the disease through a public awareness campaign and increased training for city staff. “It kills the tree rather quickly,” said Spence. Oak wilt kills by blocking an infected tree’s vascular system, depriving it of water and nutrients until it dies. It can be spread through the roots of infected trees or by beetles moving from infected trees to healthy ones. An outbreak in 2016 on Belle Island, Michigan — that’s about 600 metres from downtown Windsor — means it’s close, and could easily cross the border into Canada. London’s location along the Highway 401 corridor could make the Forest City a key front against the fungus should that border-hopping happen…

Taos, New Mexico, News, February 18, 2019: Taos Tree Board presents draft plan for taking care of 6,000 community trees

How many trees are in Taos parks, historic district and other public places in town? 6,000, representing dozens of species. Many are decades old, growing tall and strong through several generations of Taoseños. Some 300 or more are young, planted by members of the Taos Tree Board and volunteers. The tree board – made up of certified arborists, students, landscape architects and more – spent the last three years counting all the community’s trees. Now they’ve drafted a plan for how the community can care for Taos trees and help plant the next generation of saplings to keep the town shady, even through climate change. The board will present the draft plan and talk about other tree issues at a board meeting from 5:30-7:30 p.m. Tuesday (Feb. 19) at the town of Taos council chambers, 120 Civic Plaza Drive. Everyone is invited to attend and find out more about how they can help keep Taos trees healthy. “We’re in the last stage of our tree management plan. The official name for that is the Taos Community Tree Care Plan,” said Paul Bryan Jones, one of the Taos Tree Board founders and a long-time certified arborist…

Atlanta, Georgia, Journal-Constitution, February 14, 2019: Norcross tree plantings fulfill ‘net zero’ tree policy

Norcross residents will notice 10 new trees have been planted throughout town the week of Feb. 11-14, part of the city’s efforts to celebrate Arbor Day in Georgia (Feb. 15). With both a community planting event planned for Discovery Garden Park today and a tree replacement project scheduled for North Peachtree Street, the city invites residents and neighbors alike to embrace the spirit of ‘green’ living. Norcross will be replanting 10 trees on North Peachtree Street that have recently been removed after being deemed safety hazards by arborists. As part of the city’s sustainability plan, Norcross has a ‘net zero’ tree policy, which means for every tree removed, a new one is planted in its place. These conservation efforts are enforced by the Tree Board and contribute to Norcross being designated a Tree City for 15 consecutive years along with its Platinum Green Community status…

Laughing Squid, February 14, 2019: Husqvarna launches ‘Timber’, an app that matches tree lovers with available trees around the world

In celebration of Valentine’s Day, Swedish outdoor power products company Husqvarna has amusingly launched Timber, the world’s first dating service that matches lonely dendrophiles with beautiful trees from around the world. Those interested in finding the perfect match can browse available the barks and branches online and indicate which one is most appealing by clicking on a heart (no swiping involved). Once a connection is made, both human and tree whisper sweet nothings via flora and fauna emojis. The company reported, “Husqvarna wanted to celebrate and honour the love for the forest that’s shared by many users of their products. So today on Valentine’s Day, we introduce Timber – a dating service matching tree lovers with beautiful trees around the globe. Timber is a tongue-in-cheek spoof of modern dating services: instead of swiping between lovesick singles, the user is presented with different trees that each have their own profiles. Once matched with a tree, it becomes apparent they don’t speak any human languages…”

Redding, California, Record-Searchlight, February 14, 2019: How to choose an arborist to check your trees after snow damage

Whether you want to check them, salvage them or replace them, you may need an expert to care of your trees after this week’s arboreal carnage. Heavy snow broke branches and snapped tree trunks after Tuesday’s storm dropped more than 10 inches of snow on the North State. While county crews clear thousands of broken trees from roads and public spaces, homeowners are assessing their own damage. Here’s how to choose an arborist to help. There are two things to look for according to experts. First, make sure she or he is licensed and bonded. Ask for a state contract license number, making sure it is either a C27 (landscaper) or a C61 (tree specialist), said consulting arborist and tree surgeon Brock Lindsey of Kateley & Kristiansson landscaping in Redding. Both kinds of license mean the person had a state background check and has insurance and bonding.“If it’s a cutter issue then you really need to make sure that cutter is insured,” Lindsey said. Otherwise, if someone gets hurt working on your tree you could be liable…

Tallahassee, Florida, Democrat, February 14, 2019: Introducing new trees in urban landscape can be complicated

As I move into the later years of my career, I get time to reflect on what worked and what didn’t work in the world of urban forestry. When I think about individual tree species, a few come to mind. Bald-cypress is one that I started to encourage many years ago. Bald-cypress grows naturally where there is a lot of water. Many other trees can’t take the flooding the bald-cypress can endure as they grow. This allows bald-cypress to compete very well in swamps and floodplains of rivers. Surprisingly, bald-cypress grows very well in upland soils when planted as an urban tree, especially when planted from a pot in a mulched area of a lawn and away from the competition of other plants. Fortunately, we have found that on these sites, those cool, but potentially bothersome knees don’t occur unless the soil is really compacted or if the tree was over watered. Bald-cypress in urban settings has been found to be a relatively disease free and very wind sturdy tree. Many people that planted them are very happy with this tree in their yard…

Middletown, Connecticut, Press, February 13, 2019: Every ash tree in CT to die within the decade

Within the next eight years, every ash tree in the state of Connecticut will be dead. “It’s not a pretty picture,” said Claire Rutledge. “It’s a little hard to be optimistic about it.” If you want to know who to blame, look squarely at the emerald ash borer, a non-native, invasive species of beetle that feeds on the trees. Originally found in Michigan in the 1990s, the first emerald ash borer was confirmed in Connecticut in 2012, though they’ve probably been here a few years longer than that. Since then, the bugs have been spreading at an exponential rate. “After they reach a site it’s usually about between eight and 10 years that everything is dead that they can eat,” said Rutledge, an entomologist working with the Connecticut Agricultural Experiment Station. “It’s going to be spreading out in a wave.” The effects are obvious. At a meeting of the Weston town Board of Selectmen this week, tree warden Bill Lomas said he expects every ash tree in the town to be dead within a few years, as Weston-Today reported…

Washington, D.C., Post, February 13, 2019: Woman dies after large tree branch falls on her in Northern Virginia

A woman died after a large tree branch fell on her Tuesday as she was clearing other downed branches from her property in Loudoun County, officials said. The woman’s identity was not released pending the notification of her family, according to the Loudoun County Sheriff’s Office. Officials said the incident happened about 8 p.m. in the 41600 block of Stumptown Road near Lucketts, about eight miles north of Leesburg. Law enforcement received a call about a person being struck by a large branch. When officers arrived, a woman was found pinned under the branch. She was taken to a hospital, where she died early Wednesday, said Kraig Troxell, a spokesman for the sheriff’s office. Troxell said an initial investigation found that the woman was clearing tree branches that had fallen when one “came down and struck her…”

San Francisco, California, Examiner, February 13, 2019: Finding liability for falling trees

Recently, I addressed a question posed by a reader who asked who is responsible for damage caused by a tree branch falling from an adjacent yard and crashing through the roof of their house, narrowly missing their child. The article addressed the answer to that question with the assumption that it was a tree owned or maintained by a municipality. This week, I will address trees owned by individual, non-governmental owners. The reader’s inquiry involved a neighbor’s tree overhanging their property. State law provides that the owner of a tree whose branches overhang an adjoining landowner’s property is liable for damages caused by the overhanging branches. Therefore, if your neighbor’s tree drops a branch and causes injury to a vehicle, person, or structure, they are liable to you for the damages caused. In general, you are legally allowed to take it upon yourself to cut off any tree branch that overhangs your property from the point where it crosses the boundary. Courts have ruled that shade and debris cast by a neighboring branch, blocking light, clogging gutters, deteriorating a roof, etc., can constitute a nuisance, thereby making the tree owner liable for any and all damages caused. Even insignificant damages will implicate a legal right of action, although the recovery of damages is generally be proportional to the extent of the injuries…

Baltimore, Maryland, Sun, February 13, 2019: Lichen won’t harm the tree but could be sign of a bigger problem

It seems like the lichen on my tree exploded this year. It’s all over some branches, whereas it used to be only in random spots on the trunk. I’ve been told not to worry about your average gray-green lichen, but is there such a thing as too much lichen? It’s true that lichen does not harm trees because, being an algae-fungi combo, it has its own chlorophyll and is just using the tree as support. However, extensive spread can be a symptom of a stressed tree. Not a cause. The tree’s canopy may have thinned enough that the lichen is getting more sunlight, or the bark’s makeup has changed and now holds more moisture or provides better surface for attachment. At any rate, individual branches may be dying and need removal, or the entire tree may be in decline…

Fox News, February 12, 2019: Bonsai thieves steals 400-year-old tree from Japanese couple who call plants ‘our children’

A Japanese couple have taken to social media to make a simple plea to the thieves who stole seven bonsai trees from them: please take care of “our children.” Seiji Iimura and his wife Fuyumi said the miniature trees were taken last month from their garden in Saitama, located near Tokyo. “There are no words to describe how we feel,” he wrote in a Facebook post. “They were precious.” The trees were worth about $90,000 and included a Shimpaku Juniper, a 400-year-old tree that had been looked after by Iimura for 25 years. “Bonsai are like our children,” Fuyumi Iimura told the New York Times. “They are our children who have been living for 400 years. I now feel like our limbs were taken away, and miss them every day.” The couple have begged for the thieves to water the trees, and return them…

Lake Forest, California, Patch, February 12, 2019: Tree crushes SUV, woman sues city for negligence

A Tustin woman trapped inside her car by a fallen tree two years ago is suing the city of Cerritos for negligence, Patch has learned. The lawsuit, brought about Feb. 8 by 41-year-old Tustin resident Maelyn Chain, alleges “dangerous condition of a public property” and seeks unspecified damages. In 2017, Chain was driving along Cerritos Avenue when the enormous eucalyptus tree snapped and crashed upon her SUV. According to the suit, the woman “… believes … that the tree, given its giant size and large branches, was a dangerous trap for people on South Street and created a foreseeable risk of it becoming uprooted and landing on people and property….” Photos of the tree smothering Chain’s SUV after its Feb. 17, 2017, collapse at about 3:30 p.m. in the median while she was driving on South Street near Alfred Avenue, trapping her in the vehicle…

Digital Journal, February 12, 2019: The DNA of ancient giant trees could possibly save our forests

What if we could revive giant creatures that once roamed the Earth? Well, that’s what arborists are doing today, only they’re cloning saplings from the stumps of the world’s largest, strongest, and longest-lived trees, the giant redwoods. The redwood species contains the largest and tallest trees in the world. Sequoioideae (redwoods) is a subfamily of coniferous trees within the family Cupressaceae. and is the most common tree in coastal forests of Northern California. The three redwood subfamily genera are Sequoia and Sequoiadendron of California and Oregon, and Metasequoia in China. Only the two subfamily genera found in the United States produce the world’s tallest and largest trees. Some of the redwoods have been known to live for thousands of years, with the earliest fossil remains being from the Jurassic period. There aren’t too many redwoods today that can claim to be that old – they have been cut down. The two sub-families of redwoods are considered endangered species due to habitat loss, natural fire suppression technologies, and logging…

Sacramento, California, KTXL-TV, February 12, 2019: Cal Fire to change wildfire prevention strategies with Gov. Newsom’s direction

In his first State of the State address, Gov. Gavin Newsom only made a few quick references to California’s deadly wildfires. Cal Fire Director Thom Porter says the Newsom administration helped to develop an entirely new strategy to prevent wildfires. “We have to do more proactively to reduce the risk to our communities,” Porter told FOX40. Historically, the number of trees and brush that could ignite and how many escape routes are available were the only measures Cal Fire used to assess which areas were most at risk of fire devastation. “What we’re adding now is more of a socioeconomic and social element,” Porter explained. “That includes age, that includes number of vehicles that a community has for evacuation. A lot of things that we haven’t typically looked at.” Those ideas came from lessons learned after the Camp Fire, the deadliest and most destructive wildfire the state has ever seen. Many who died in the wildfire were seniors who could not escape…

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Case of the Day – Thursday, February 21, 2019

PARTITION

stooges160331What happens when landowners can’t get along? Not like husbands and wives – that kind of “not getting along” will always be with us. Rather, what happens when heirs end up owning property together, with each having a fractional piece and no one being able to agree with anyone else about anything?

When that happens – as it did in today’s case – the law provides that land may be partitioned, that is, divided among the owners according to statute. Where reasonable division isn’t feasible, the land is sold and the proceeds divided.

There’s another legal concept important for today’s case, and that’s what’s commonly known as the Statute of Frauds. The Statute of Frauds was intended to prevent frauds by requiring that certain types of agreements be in writing. Traditionally, the statute of frauds requires a signed agreement for

• contracts in consideration of marriage (including prenuptial agreements);

• contracts that by their terms cannot be performed within one year;

• contracts relating to an interest in land (including contracts of sale, mortgages and easements);

• contracts by the executor of a will to pay an estate debt with his or her own money;

• contracts for the sale of goods totaling $500 or more; or

• contracts in which one party becomes a surety for another party’s debt or other obligation.

The contracts covered by the Statute of Frauds can be remembered by using the mnemonic device “MY LEGS”: Marriage, contracts for more than one Year, Land, Executor (or Estate), Goods ($500 or more), Surety.

shake160330In today’s case, one landowner – called a co-tenant because the owners owned the land as a tenancy in common (an expression having nothing to do with rental) – wanted to cut down trees on two of the parcels. When the other co-tenants complained, the first (we’ll call him Greedy Gus) said he was taking the two lots on which the trees were located anyway, and letting the other owners have the more expensive, better parcel. The other owners (think of them as Sloppy and Hasty) agreed with his oral proposal, and even made a $16,000 equalization payment as part of the understanding. But when they finally got around to signing an agreement, Greedy Gus wanted to change the deal. Now he sought a whopping big equalization payment, one Sloppy and Hasty wouldn’t pay.

No deal was signed, and Gus then sued for partition under the statute (which would have valued the entire property and given him a much larger stake than what the others said he had agreed to). Sloppy and Hasty counter-claimed, but the trial court granted summary judgment for Gus. S & H appealed, and the Court of Appeals sided with them.

The appellate panel held that there were enough facts in play to require the matter to go to a jury, but the Arizona Supreme Court had the last word.  Both the Appeals Court and the Supreme Court warned the Sloppy and Hasty, the two co-tenants who were arguing for the existence of an agreement, that the alleged voluntary partition agreement was subject to the Statute of Frauds, and the amount of paper evidencing an agreement was pretty sparse.  Partial performance of a contract will exempt it from the Statute of Frauds: if I sell you a lot, and accept your payment but refuse to give you a deed, the partial performance — your payment — excuses non-compliance with the Statute. Here, the Court of Appeals was pretty clearly unimpressed with the suggestion that the tree cutting was enough performance to excuse the lack of paper.  It offered Sloppy and Hasty their day in court, but the day didn’t look too promising.

badday160331The day turned out to be anything but promising.  The Arizona Supreme Court held that in order to constitute partial performance, the act had to unequivocally prove the existence of the unwritten contract.  In other words, “part performance must consist of acts that ‘cannot, in the ordinary course of human conduct, be accounted for in any other manner than as having been done in pursuance of a contract’.  The Supreme Court said that “in addition to providing an equitable basis for ordering specific performance, acts of part performance serve an important evidentiary function – they excuse the writing required by the statute because they provide convincing proof that the contract exists.  So that this exception does not swallow the rule, the acts of part performance take an alleged contract outside the statute only if they cannot be explained in the absence of the contract.”

Here, the Supreme Court ruled, the acts that Sloppy and Hasty called evidence of part performance were really acts that were as consistent with their one-third co-tenancy interest as they were of anything else.  With no partial performance, the unwritten contract went unenforced, too.

Owens v. M.E. Schepp Ltd. Partnership, 182 P.3d 664 (Supreme Court of Arizona, 2008).  The parties owned undivided interests as tenants in common in contiguous residential lots. Hal Owens had a two-thirds interest and Schepp Partnership had a one-third interest. Two of the three lots were vacant, and a residence and guest house were on the third. The guest house was rented to third parties, but one of the Schepp partners lived in the residence.

Perhaps one of the first cases of partitioning ...

     Perhaps one of the first cases of partitioning …

Hal sued for partition of the lots and an accounting for rents and profits. Schepp Partnership answered and counterclaimed for specific performance of an alleged voluntary partition agreement or, alternatively, damages for a purported reduction in value of two of the lots caused by Hal’s removal of mature trees. Schepp Partnership argued that statutory partition was not available to Hal because he had entered into the voluntary partition agreement.

While meeting with the Schepps over a City notice to clean up the lots, Hal had said he wanted to remove a row of mature, 65-foot tamarack trees along the northern edge the lots. Thomas Schepp objected, saying the neighbors would be upset. Hal responded that he would decide what to do because he was taking two lots and leaving the most developed one to Schepp Partnership. He also told the partners that because Schepp Partnership would be getting the more valuable lot, it might cost the partners some money.

The parties agreed to divide the lots in this manner but did not reach agreement on any equalization payment. The Schepp brothers understood, however, that Hal might make a future claim for such payment. Soon after the meeting, Hal removed the trees. He told one of the Schepps that because he had paid a great deal of money for the two lots, the choice to remove the trees was his alone. Hal and Thomas Schepp then agreed a second time that Hal would take two lesser-value lots and Schepp Partnership would take the developed one. Based on this agreement to split the lots, the Schepps allowed Hal to remove the mature trees. Schepp Partnership later paid Hal $16,600, one-third of the total removal cost, as compensation to Hal in light of Schepp Partnership’s receipt of the more valuable lot.

A few months later, the Schepp Partnership sent a partition agreement to Hal for execution, but he returned it unsigned objecting to the lack of an equalization payment provision. Hal proposed that Schepp Partnership pay him $233,333 and grant him an access easement as equalization. The parties negotiated but never reached agreement regarding whether additional compensation. The trial court granted partial summary judgment for Hal, ordering statutory partition and appointment of commissioners, and dismissing the counterclaim for specific performance, holding that there was never an agreement as to how the property is to be divided between the parties. The Schepps appealed.

The Court of Appeals reversed the trial court , but the Schepps couldn’t find much solace in that fact. Partition is a means of dividing real property among certain types of owners. Property may be partitioned by agreement, or — if agreement cannot be reached — according to the requirements of state law. Voluntary agreements to partition real property are preferred to and controlling over involuntary partition proceedings.

sof160331A contract is formed when there is a bargain, consisting of promises exchanged, and consideration. To be enforceable, a contract must be reasonably certain and definite. Agreements leaving material terms for future resolution can be enforceable nevertheless if the parties sufficiently manifested mutual assent to be bound by those agreements. Where terms are missing, extrinsic evidence can be used to establish the meaning of the parties’ contract and supply omitted terms.

Here, the Court of Appeals said, a genuine issue of fact existed as to whether the co-tenants mutually agreed to be bound by an oral partition agreement. That issue of fact precluded summary judgment. But any alleged agreement between the co-tenants to partition the lots constituted an agreement for sale of their respective interest in the other’s remaining real property for purposes of the statute of frauds. And in order to satisfy the statute of frauds, the agreement must be in writing.

Subsequently, the Arizona Supreme Court disagreed, reinstating the original trial court decision.  It held that no trial was necessary because neither the Partnership’s withdrawal of its objection to the tree removal nor its payment of one-third of the landscaping contractor’s bill was “unequivocally referable” to the alleged contract.  Put differently, neither act is of such character as not to be reasonably explicable on other grounds.  While it is true that partial performance of an oral contract is enough to take the agreement outside of the Statute of Frauds, Partnership did nothing that proved with partial performance the contract that should have been – but was not – put in writing.

– Tom Root

TNLBGray

Case of the Day – Wednesday, February 20, 2019

INJUNCTION JUNCTION

Pipelines are tubes through which money flows. There are barrels of revenue and gallons of net income in building those capital-intensive projects.

Yesterday, we read how Buckeye Pipeline Co., got whupped by local tree owner Bob Pichulo. And that was no mean feat. Buckeye is not just a couple of guys in a rusty Reading work truck. Instead, it is a subsidiary of Buckeye Partner, L.P. a master limited partnership traded on the NYSE, with $4.94 billion in market cap, about $400 million in net income on over $4 billion in revenue last year, and about 6,000 miles of pipeline.

So Bob was a problem, but not much of one. Or it would not have been if Buckeye had just gone ahead and cut down the 13 maple trees, and paid the $50,000 Bob’s expert said the trees were worth. Buckeye would have had the clear view and open space it wanted for the pipeline. It’s only money.

But Bob’s backwoods Wolverine lawyer had one final trick up his rumpled sleeve. Bob did not ask for money. Instead, he asked for and got a permanent injunction. So Buckeye no longer had the option of cutting the trees and a check to Bob.

Injunctions are extraordinary remedies, generally reserved for cases where the harm is irreparable, that is, not compensable with dollars.

On appeal, Buckeye whined that the trial judge should not have granted an injunction, because Bob’s own expert said the trees were worth $50K. The very fact that Bob could assign a dollar value to his trees, Buckeye argued, meant that the harm was not irreparable.

Everyone knew what Buckeye meant. What it meant was that if it lost, it would trespass anyway, cut the trees it wanted removed, and then remedy its trespass with a checkbook. The trial court did not intend to let that happen.

Pichulo v. Buckeye Pipeline Co., 2019 Mich. App. LEXIS 261 (Ct.App. Michigan, Feb. 14, 2019). Bob Pichulo bought property in Mount Morris Township back in 1992. Thirty-three years before the sale, the previous owners had granted Buckeye Pipeline an easement to construct and maintain an oil pipeline across the property.

Bob knew about the easement when he bought the place. Yet it hardly affected him for about 23 years. Then, in 2015, Buckeye sent him a letter informing him of Buckeye’s intent to remove 13 Norway maple trees were on the easement. Buckeye asserted that the trees had to be removed because they obstructed aerial surveillance of and access to the pipeline in case of an emergency or for repairs. In response, Bob sued seeking a temporary restraining order and permanent injunction against cutting the trees.

After an evidentiary hearing on the preliminary injunction motion, the trial court ordered that all underbrush be removed from the easement and the branches on the Norway maples be trimmed to provide a 10-foot clearance.

Buckeye later moved for summary disposition of Bob’s complaint, arguing that it was entitled to remove the trees as a matter of law. Bob responded that there was a real question whether the removal was reasonably necessary for Buckeye’s use of the easement. The trial court agreed with Bob.

Over the course of the four-day trial that followed, the trial court heard Bob’s testimony about the value of the trees to him; pilots’ testimony about the visibility of the pipeline easement after the clearing of underbrush and pruning of the trees; testimony from an expert who estimated that the trees were older than the pipeline, grew shallow roots, and had a monetary value of nearly $50,000; and testimony from experts in oil pipeline regulation, maintenance, and safety who disagreed about whether Buckeye’s proposed plan to remove the trees was reasonably necessary for its enjoyment of the easement.

The trial found Bob’s evidence to be more credible and convincing, and held that removal of the Norway maples was not reasonably necessary. Consequently, it permanently enjoined Buckeye from removing them.

Buckeye appealed.

Yesterday, we discussed how Bob’s experts, perhaps with the help of a judge inclined to find the home team a little more believable, steamrolled Buckeye. What we did not talk about was the permanent injunction.

Buckeye complained that the trial court abused its discretion by issuing a permanent injunction against it cutting down Bob’s trees. It claimed the injunction was not a proper remedy because Bob had a legal remedy available, the loss of Bob’s trees was not irreparable, and a weighing of the harms between the parties and the risk to public safety should have favored Buckeye.

It is true, the Court said, that injunctive relief is an extraordinary remedy that “issues only when justice requires, there is no adequate remedy at law, and there exists a real and imminent danger of irreparable injury,” and that he grant of such injunctive relief is within the sound discretion of the trial court. The general rule is that a court will balance the benefit of an injunction to the plaintiff against the inconvenience and damage to the defendant, and grant an injunction or award damages “as seems most consistent with justice and equity under all the circumstances of the case.”

“While an injunction may lie when a tort is merely threatened,” the Court said, “a cause of action for damages will not.”

Buckeye argued that the trial court should not have granted injunctive relief in favor of Bob because the harm to him could be remedied by the payment of money damages. Bob’s expert did testify that the Norway maples had an established value based on their health and age. However, the Court said, just because an object has monetary value does rules out not rule out a permanent injunction. Permanent injunctions are permitted not only “[w]hen an injury is irreparable,” but also when “the interference is of a permanent or continuous character, or the remedy at law will not afford adequate relief”

Thus, the Court ruled, proof that monetary damages would not be adequate, or that there would be a permanent interference also could warrant an injunction. Here, the trial court credited testimony from plaintiff that the trees had a sentimental value to him and that no amount of money would satisfy his loss. Further, the trial court noted that removal of the trees would have been permanent, because they reasonably could not be replaced, considering the arborist’s testimony that the trees were quite old and took over 70 years to grow.

Additionally, the Court noted, when a tort merely is threatened, the proper remedy is for an injunction, not for damages. “The trial court did not clearly err in determining that removal of the trees was not reasonably necessary to defendant’s use of the easement.,” the Court of Appeals ruled. Bob showed that Buckeye was threatening to commit a trespass or, in other words, a tort. Consequently, the Court said, injunctive relief was the proper remedy.

In a last gasp, Buckeye argued that the trial court did not weigh potential harms to plaintiff, defendant, and the public. Buckeye is correct that, typically, a trial court is required to “balance the benefit of an injunction to plaintiff against the inconvenience and damage to defendant,” and only issue an injunction if it would be “consistent with justice and equity under all the circumstances of the case.” However, such balancing is not required where a trespass could result from an intentional or willful act. Here, Buckeye made no secret of its intent to remove the 13 Norway maples. “Therefore,” the Court held, “defendant’s proposed action was intentional and willful.” Even assuming that the trial court did not properly balance the harms, the error would have been inconsequential, because the trial court was not required to do so.

– Tom Root

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Case of the Day – Tuesday, February 19, 2019

PRIDE GOETH BEFORE A FALL

Rural lawyers are quite familiar with the not-so-legal but all-too-real concept of being “homered,” a problem I mentioned a week or so ago.

Being “homered” is a phenomenon that occurs when an out-of-town client, especially one represented by big-city out-of-town lawyers, appears in a small rural county courthouse on the opposite side of a case against a local resident represented by a local lawyer. As a matter of law, it means nothing that the judge plays golf with the local lawyer, or that the local litigant had been sitting in the next pew over from the judge’s family for two decades or more. The law does not countenance favoritism, and the judge has taken an oath.

That’s the law. But it is not real life. As a matter of fact, you can be sure that Vicki Lawrence was wrong when she warned you not to “trust your soul to no backwoods southern lawyer.” Indeed, if your case against a big pipeline company is being heard in the local courthouse, there’s no one to whom you would be better advised to trust your soul, or at least your case, than that shambling wreck of an attorney who needs a haircut and is wearing his lunch on his jacket lapel.

The other side might have good lawyers, indeed, very good lawyers from very good law firms from the big city. But that clownish local yokel with the battered briefcase is a great lawyer… because he knows the judge.

When you’re actively homering your opponent, luck is on your side. Of course, as my beloved 2nd grade teacher Minta Newmeyer taught me a few years ago, “luck” is defined as the result of preparation meeting opportunity. So having a couple of good-old-boy experts won’t hurt, and neither will not taking everything the smarty-pants experts from the pipeline company say at face value.

In today’s case, there is simply no way a local longtime landowner should have won against the big pipeline operator. When Buckeye Pipeline showed up at Bob Pichulo’s door after 25 years of silence wanting to clear-cut its easement, the company’s judgment that the trees should be removed should normally have been sufficient to carry the day. But Bob and his hometown legal talent found some experts of their own and – perhaps benefitting as well from the fair winds and following seas that result from homering the other side –  pretty much kicked the stuffing out of the haughty pipeline people.

It hardly helped Buckeye’s cause that its case was largely one of ipse dixit. The pipeliner’s case could charitably be summarized as “we own the easement, and the trees need to be cut because we say so.” Even after being called on it, Buckeye continued to spin, saying the tree roots were dangerous to the pipeline because they said so, and the trees could make lightning strike the pipeline because they said so. It’s a bad idea to make outrageous claims that you cannot back up. Regardless of your political persuasion, you can look at President Trump’s most recent dust-up with former FBI official Andrew McCabe, pick your prevaricator, and take my point.

The moral: When you’re Goliath going up against David, try a little humility. And duck when he fires that stone.

Pichulo v. Buckeye Pipeline Co., 2019 Mich. App. LEXIS 261 (Ct.App. Michigan, Feb. 14, 2019). Bob Pichulo bought property in Mount Morris Township back in 1992. Thirty-three years before the sale, the previous owners had granted Buckeye Pipeline an easement to construct and maintain an oil pipeline across the property.

Bob knew about the easement when he bought the place. Yet it hardly affected him for about 23 years. Then, in 2015, Buckeye sent him a letter informing him of Buckeye’s intent to remove 13 Norway maple trees were on the easement. Buckeye asserted that the trees had to be removed because they obstructed aerial surveillance of and access to the pipeline in case of an emergency or for repairs. In response, Bob sued seeking a temporary restraining order and permanent injunction against cutting the trees.

After an evidentiary hearing on the preliminary injunction motion, the trial court ordered that all underbrush be removed from the easement and the branches on the Norway maples be trimmed to provide a 10-foot clearance.

Buckeye later moved for summary disposition of Bob’s complaint, arguing that it was entitled to remove the trees as a matter of law. Bob responded that there was a real question whether the removal was reasonably necessary for Buckeye’s use of the easement. The trial court agreed with Bob.

Over the course of the four-day trial that followed, the trial court heard Bob’s testimony about the value of the trees to him; pilots’ testimony about the visibility of the pipeline easement after the clearing of underbrush and pruning of the trees; testimony from an expert who estimated that the trees were older than the pipeline, grew shallow roots, and had a monetary value of nearly $50,000; and testimony from experts in oil pipeline regulation, maintenance, and safety who disagreed about whether Buckeye’s proposed plan to remove the trees was reasonably necessary for its enjoyment of the easement.

The trial found Bob’s evidence to be more credible and convincing, and held that removal of the Norway maples was not reasonably necessary. Consequently, it permanently enjoined Buckeye from removing them.

Buckeye appealed.

Held: Bob was entitled to his permanent injunction.

Buckeye argued that it was entitled to judgment as a matter of law. Its argument, in essence, was that it had the easement for the purpose of maintaining its pipeline, and cutting down the trees was maintenance. No one could question Buckeye’s judgment that the trees should go.

An easement is a right to use the land burdened by the easement rather than a right to occupy and possess the land as does an estate owner. The use of an easement must be confined to the purposes for which it was granted, including any rights incident to or necessary for the reasonable and proper enjoyment of the easement, which are exercised with as little burden as possible to the owner of the land.

When considering the scope of an easement, a court must discern the parties’ intent as shown by the plain language of the document granting the easement. “Where the language of an easement is plain and unambiguous,” the Court said, “it is to be enforced as written and no further inquiry is permitted… Under our well-established easement jurisprudence, the dominant estate may not make improvements to the servient estate if such improvements are unnecessary for the effective use of the easement or they unreasonably burden the servient tenement.”

There was no question the easement gave Buckeye a “right of way” and “free ingress and egress,” for the purpose of constructing, maintaining, operating, altering, repairing, or removing the pipeline. And “maintenance” in an easement generally includes the right to clear “the property [of trees] to ensure maintenance and inspection,” the term “maintenance including maintaining the property in the appropriate condition so that it is accessible in the event that repair of the pipeline is required.” What Buckeye proposed to do by removing the trees was undoubtedly encompassed by the right of maintenance.

Buckeye argued that this conclusion required the trial court to grant it summary disposition. But a trial court also is required to consider “(1) whether the tree removal is needed for Buckeye’s effective use of the easement and (2) whether the tree removal unreasonably burdens Bob’s servient estate.” Those questions, the Court wrote, are in regard to the extent and scope of the easement, and generally are questions of fact.

Bob and Buckeye presented competing testimonial and documentary evidence regarding whether aerial surveillance of or access to the pipeline was unreasonably obstructed by the trees. Thus, the Court concluded, there remained a question of fact as to the extent of the burden presented by the trees and their roots with respect to potential emergencies and repairs. In light of such questions of fact to be decided at a trial, Buckeye was properly denied summary judgment.

That was especially true because the trial court made reasonable findings of fact that undercut Buckeye’s claims. Buckeye said the trees had to go in order to give Buckeye access to the right-of-way and the pipeline, to respond to emergencies as they arise; and to remove the risks that the tree roots posed to the pipe. Buckeye’s expert William Byrd testified that the trees and their roots inhibited Buckeye’s access to the pipeline, because excavation equipment could not reach the pipeline in an emergency. Byrd opined that removal of the trees was reasonably necessary for future maintenance and that such actions were common in the oil pipeline industry. Bob contradicted that evidence with testimony from his own expert Richard Kuprewicz. Rich concluded that removal of the trees was not reasonably necessary in anticipation of potential maintenance. He said federal regulations did not declare a set width for pipe excavation and opined that removal of the trees to access the pipeline when the time for such maintenance came would not significantly extend the time required to perform such excavation, should the need arise.

The trial court found Bob’s expert to be more credible when he said there was already adequate space to access the pipeline and that the potential requirement to remove the trees before performing such excavation, if needed, would not cause a significant delay. The appellate court give deference to the trial court’s findings of fact.

Buckeye also argued that the trial court clearly erred by finding that it is not permitted to remove the trees in anticipation of a future emergency. Buckeye introduced testimony that the Norway maples would present a significant burden both in identifying an emergency and accessing the pipeline in case of an emergency. Buckeye’s patrol pilot testified and provided photographs showing that his aerial view of the pipeline and easement was obstructed by the trees. Buckeye’s agent also testified that the trees would significantly delay Buckeye’s ability to properly access the pipeline. He noted that federal regulations required Buckeye to prepare an emergency plan. Buckeye already has such a plan, but to carry it out, it argued, it must remove the trees in question.

 

Bob’s evidence contradicted Buckeye’s claims. He elicited testimony from another pilot that the easement around the pipeline plainly was visible when flying past the property at the proper angle. Bob also provided photographs showing an unobstructed view of the pipeline, which is identified on the photographs by the presence of yellow tape. His expert Rich, meanwhile, testified that in cases of emergency, it would be entirely improper and unsafe to rush to the scene of the leak with large machinery and to begin excavation. Instead, he testified, the s pipeline had internal sensors that allowed for the identification of leaks in general areas, which could then be isolated and the flow of oil through that area stopped. This effectively reduced the amount of environmental contamination without having to rush in with dangerous machinery.

While Rich agreed that federal regulations required an emergency plan, he pointed out that the regs did not require removal of any trees.

The trial again found Bob’s expert to be more credible. With respect to locating an emergency via aerial surveillance, the trial court relied on the pilot’s photographs and testimony establishing that the pipeline was visible. Because the trial court’s decision on this issue relied on admissible and compelling evidence in the record, the Court of Appeals said, it was not clearly erroneous and thus carried the day.

The Court said, “Given our deference to the trial court’s credibility determinations and decision to believe [Rich] instead of Buckeye[‘s] expert, and the trial court’s reliance on admitted evidence, the record presented does not provide any reason for us to be “left with a definite and firm conviction that a mistake has been made. Thus, based on the facts as found by the trial court, Buckeye’s request to remove the Norway maple trees was not reasonably necessary for Buckeye to prepare for an emergency.

Finally, Buckeye argued that the trees had to be removed because their roots presented a danger to the pipeline. In support of that, its expert testified that tree roots acted as conduits for electricity, so they could cause lightning to strike the pipeline. In addition, Buckeye presented evidence that the roots potentially could grow toward and eventually chip away at the pipes, and its expert testified that the tree roots could entangle the pipeline, causing damage. On cross-examination, however, he acknowledged that he was aware lightning strikes could happen but did not know of any specific examples. Bob countered with expert testimony from an arborist who testified that the root system of a Norway maple stays in the top 10 inches of soil, which is above the pipeline. As to the tree roots and potential pipeline erosion, Bob’s expert explained that the pipeline’s cathodic protection would be able to provide a timely alert that a tree root was encroaching on the pipeline and, if that failed, other tools can be used to identify external corrosion of the pipeline.

The trial court again found Bob’s evidence more credible, weighing the fact that Buckeye’s expert could not identify any particular instance where a lightning strike on a pipeline had been conducted by a tree root. Considering that evidence in light of the arborist’s testimony that the tree roots did not go as deep as the pipeline and Rich’s testimony that Buckeye would be alerted to any encroaching root in a timely manner, the trial court found that removal of the trees was not reasonably necessary for Buckeye’s maintenance of the pipeline. The Court of Appeals held that the trial judge’s conclusion was not clearly wrong, and thus had to be accepted.

In sum, the Court of Appeals said,

Buckeye asserted that the Norway maple trees had to be removed because they were a danger to the pipeline and an obstruction to surveillance and access. Buckeye’s contentions rely on a misapplication of the law in Michigan with regard to easements. Buckeye, under the terms of the easement at issue here, does not have the right to ensure freedom from any and all obstructions or dangers to the pipeline. That simply is not the standard for such inquiries. Instead, Buckeye’s rights under the easement are limited to freedom from unreasonable obstructions or dangers. The extent, or reasonableness, of the obstruction presented by the trees is a fact question for the trial court to decide and it did so here. The trial court, after considering all of the evidence and weighing the credibility of the witnesses, decided that removal of the Norway maple trees was not reasonably necessary for Buckeye’s maintenance, operation, or repair of the pipeline.

– Tom Root

TNLBGray140407

Case of the Day – Friday, February 15, 2019

SO WHY ISN’T IT THE CALIFORNIA RULE?

The Massachusetts Rule is a topic I tend to flog ad nauseum. This is chiefly because it arises in so many states and in so many forms.

There are two components to the Massachusetts Rule. The first is easy and universally acclaimed. A landowner owns the portion of branches and roots of a neighbor’s tree than encroach on the landowner’s property, and may trim those to his or her heart’s content.

The second is more controversial, and has been limited or abridged by a number of jurisdictions, that a landowner’s right to stop an encroaching tree from harming his or her property is limited to self-help – you can trim limbs and cut roots to the boundary line, but you cannot sue to force the tree’s owner to do it for you.

There are more exceptions than you can shake a fallen limb at. The Hawaii Rule holds that you can sue to have the tree’s owner “abate a nuisance,” that is, do whatever it takes to stop the tree from causing you “sensible harm.” Variations have been adopted in Virginia, North Dakota, New Mexico and Tennessee, to name a few places. In fact, some argue that the Massachusetts Rule is a frontier relic, and these days, urbanization and complexity make it prudent for tree’s owner to be responsible for nuisances it causes.

Curiously, however, everyone still refers to the original flinty self-help standard as the Massachusetts Rule. But it arose in Michigan before that, and – as we see today – in sunny California about seven years before Michigan.

I saw a column in the San Francisco Examiner the other day written by a California lawyer. He was explaining how California fixed liability for fallen trees. He cited a California Supreme Court case called Grandona v. Lovdal, which he described as a 1952 decision that applied the Massachusetts Rule in California (although he did not call the rule that).

I was puzzled, because I thought I knew the leading California cases for the last half of last century. I had never heard of Grandona or Lovdal. I looked it up, and had a tough time finding it. It turned out it had been decided 63 years earlier, in 1889.

And it is a fascinating case, one in which the parties squabble of how much benefit or damage the trees caused, exhaustively referree’d by the trial court. The California Supreme Court simply cut the Gordian knot: it does not matter, the Court said, because the plaintiff has the power to stop encroachment at the property line, and with a saw instead of a lawsuit. While the Court did not say that a nuisance action would never lie (and California has leaned more toward Hawaii and away from Massachusetts in the ensuing 130 years), it seemed to pretty firmly foreclose any successful nuisance action as long as the landowner could be said to own anything straying over or under the damaged property.

So why don’t we call it the California Rule?

Grandona v. Lovdal, 21 P. 366, 78 Cal. 611 (Supreme Ct. Cal. 1889). Andrea Grandona owned about 15 acres of farmland next to that of Ole Olson Lovdal. Ole Olson (probably not the children’s chant) had a line of cottonwoods, planted about eight feet apart, running for 500 feet or so just on his side of the boundary, planted about 25 years before by a prior owner.

Andrea complained that the branches of the tree were overhanging part of her land, and the roots were encroaching about 30 feet into her property, making plowing impossible. She sued to abate a nuisance and for damages, wanting Ole Olson to pay her for the damage the trees caused, and to cut them down.

The trial court would have none of it. It found that the trees had not destroyed any portion of Andrea’s crops, and the had not prevented Andrea from plowing or cultivating the land. In fact, the trees ha anchored the fence against floods, and Ole Olsen had kept the trees trimmed, using the limbs he removed for fuel and construction, but he had done nothing more to affect their growth other than to trim.

Andrea appealed, and the case ended up in the Supreme Court.

Held: The trees were no nuisance, and Ole Ole Olson is in free.

The Court was not impressed with Andrea’s complaint that the trees prevented full and fair use of the land, because he could not plant fruit trees on the shaded portion. The Court noted with a bit of exasperation that “we are unable to see how it can be said that land is injuriously affected, or that its owner’s personal enjoyment is lessened, because he cannot use it for a purpose which he has never attempted or wished to use it for.”

The heart of the Court’s decision, however, was that Andrea could hardly be inconvenienced by overhanging branches or encroaching roots, because that which encroached on his property belonged to him. “The trees and the overhanging branches,” the Court said “insofar as they were on or over his land, belonged to the plaintiff, and he could have cut them off or trimmed them at his pleasure. This being so, we do not see how the fact that the trees had grown so that a small part of them was on plaintiff’s land could give him any cause of action.”

Andrea argued that Ole Olson “maintained the trees for the purpose of supplying himself with fuel and hop-poles, and thereby using plaintiff’s land for his own profit and advantage.” But how can this be so, the Court wondered. “The fuel and hop-poles growing over plaintiff’s land were his, and could have been claimed by him as against the defendant. And the fact that the balance of the limbs and branches were useful to defendant in no way harmed the plaintiff or gave him cause for complaint.”

The trial court’s dismissal of Andrea’s complaint was upheld.

– Tom Root

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