Case of the Day – Friday, May 27, 2022

TOO CUTE BY HALF

Years ago, I often crossed swords with a crusty old lawyer who favored flannel shirts and corduroys, as well as awful-smelling stogies that fogged up a deposition room like a sunny day in Beijing. When I would explore the state of any pending litigation with him, he always complained that my client needed to “get the money flowing,” by which he meant start the settlement talks.

A lot of personal injury lawyers live and die by that mantra, sometimes litigating a dog of a case because they are confident that before they have to face a summary judgment motion or, God forbid, an actual trial, the defendant will open a checkbook and pay their clients to go away.

That’s what happened in today’s case. To be sure, the deaths of two young men when a tree fell on their car was a tragedy. But somewhere along the way, the families of the decedents lost their way and decided – when an expert told them frankly that they had no case – that they could fake it, shucking and jiving until the defendant’s insurance company paid up.

Sadly for the plaintiffs in today’s case, the defendant – a nonagenarian – passed away before trial, leaving a tough-minded executor who wasn’t going to play footsie with some oily out-of-town lawyers. Also passing away before trial was the defendant’s insurance carrier: the company went bankrupt, so the liability coverage that might have otherwise paid a settlement went away, too. The plaintiffs, perhaps because the estate had money, perhaps because – like fighters in a 15th-round clinch – they were too exhausted to do anything else, played fast and loose with the discovery rules, not answering interrogatories, delaying trial in hopes of a settlement, even hiding the first expert’s report.  But, as sometimes (but not often enough) happens from time to time, the truth was found out.

The result was a vindication for a blameless old lady (who, although dead, nevertheless faced post-mortem indignity at the plaintiffs’ hands) and a well-deserved spanking for some lawyers who were about too cute by half.

Wade v. Howard, 232 Ga.App. 55 (Ga.App. 1998). Chris Wade and Ed Barnsley were driving along Briarcliff Road in unincorporated DeKalb County immediately after a thunderstorm. As they passed Grace Nesbitt’s 8-acre tract of property, they were killed when their car was struck by a large tree that fell across the road. At the time, Grace was 90 years old and quite ill. Thus, she had not lived on her property for three years before the accident. No matter. The families of the deceased young men nevertheless sued Grace for wrongful death.

During the 1980s, Grace had had trees removed from her property from time to time. In October 1987, she hired a man to remove two trees that were dying because they had been struck by lightning. At the same time, she asked a friend who was caring for her and seeing to her affairs to inspect her property for any other dead or diseased trees, He did so and found no other trees that needed cutting. This caretaker also testified that he looked at the trees along the roadway “many times” on later occasions as he walked Grace’s property at her request.

As for the tree that fell, he saw nothing about the tree that appeared unusual. The base of the tree was over 20 feet from the roadway, behind a fence and across a gully in a heavily overgrown area. Before it fell, the tree’s base was covered with heavy overgrowth and vines. The tree grew towards the sun over the roadway like other trees along the road. The caretaker observed the fallen tree while it was being cut up and saw no dead limbs on it; it was “just healthy on the outside, and this is what baffled everybody, you know.” He said that nothing visible on the tree indicated it was dangerous.

No one ever notified Grace or the caretaker of any problem with the particular tree.

The plaintiff families initially hired an expert who inspected the stump of the fallen tree within six months of the accident. He said the tree was severely decayed and hollow at the base, but that “this internal defect would not have been readily apparent [to] an untrained casual observer.” While the tree leaned over the road, predisposing it to fall in that direction, the expert explained it leaned and had more branches on one side because it was an “edge tree” seeking sunlight over the roadway, doing what all edge trees do. He stated that all edge trees behave like this. The plaintiffs didn’t much like his opinion, and fired him along with the lawyer who had hired him. Three years later, they hired a second expert, who filed an opinion based on looking at pictures of the accident scene. He never authenticated the photos in his report, however, and the trial court therefore rejected his opinion. Plaintiffs also obtained an affidavit of a neighbor who testified she believed the tree was dangerous because it leaned over Briarcliff Road. She admitted she had never told Grace or the caretaker of her opinion.

Grace died before trial, and her estate was substituted as a defendant. The trial court granted summary judgment in favor of Grace’s estate. The plaintiffs appealed.

Held: Grace was not liable for the fallen tree.

The Court said that Georgia law governing a landowner’s responsibility for trees is well established. The prevailing rule distinguishes between rural landowners and urban landowners (who are held to a standard of reasonable care in inspecting trees to ensure safety). Rural landowners are liable only where one of their trees has “patent visible decay and not the normal usual latent micro-non-visible accumulative decay.” In other words, rural landowners have no duty to consistently and constantly check all trees for non-visible rot, as the manifestation of decay “must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.”

Just as the owner of a tree has no duty to check it constantly for non-visible rot, a city has no duty to check limbs overhanging a public road for non-visible rot. The Court held that while Grace’s land was unimproved, she did not live on it, and she was old and infirm, it nonetheless would assume for the sake of the case that it was urban land, because it was located in the Atlanta metropolitan area. Even under the urban landowner standard, however, the Court ruled that the plaintiff families had not shown that there was any question of fact that Grace had breached her duty to inspect. The Court said the Plaintiffs

failed to demonstrate patent visible decay in the tree before its fall. Their own expert witness testified that the decay would have been invisible to a layperson on inspection of the tree. Moreover, plaintiffs have not demonstrated that the decay would have been visible, apparent, or patent before the fall of the tree because of its inaccessible location and the heavy undergrowth and vines surrounding the tree’s base.

The Court of Appeals was not very happy with the Plaintiffs. It noted they had fired their expert and first lawyer when they received an opinion that did not match their belief that they should make some money in this case. They “shopped” the case through a number of law firms before they found an attorney from out of town, who then proceeded to hide the first expert’s report from the defense until it was accidentally revealed. The plaintiffs did not respond to discovery requests, filed an expert’s opinion without authenticating photos, and sued everyone – Grace, the County, county employees, and even automobile insurers – in a “shotgun” approach that forced a number of blameless defendants to spend money defending themselves. Plaintiffs filed the day before the statute of limitations expired, and used every procedural trick in the book to delay the day of reckoning.

“Throughout the lengthy course of this action,” the Court complained, “plaintiffs have avoided stating a legal basis for their claims or the supporting facts until faced with an imminent ruling against them. While plaintiffs as laypersons may not have been informed of the controlling law or the substantial delay that occurred as a result of their counsel’s conduct, it is clear that counsel was well aware from the inception of this litigation that these claims have no merit.”

The Court thus socked the plaintiffs’ lawyer with a $1,000 fine.

– Tom Root

TNLBGray

And Now The News …

Detroit, Michigan, WJBK-TV, May 26, 2022: Tree truck crushed by oak tree in Oakland County

Oh, the irony. An Oakland County tree trimming truck was crushed Wednesday in Groveland Township when an oak tree fell on top of the vehicle. Around 5 p.m. on Wednesday, Michigan State Police said Groveland Road was closed when a large oak tree fell on top of a truck. The truck is part of the company Paul’s Tree Care, which specializes in tree trimming, removal, shaping, and more in Waterford. The information from MSP does not state if the tree company was trimming the tree that fell on top of the truck, however the tree has a clean cut mark, indicating that someone was cutting the tree before it fell onto the truck. The oak tree landed in the cab of the truck and would have surely injured someone if they were in the seat. However, MSP said the driver and passenger were not injured. Paul’s Tree Care sent a crane to lift the massive oak off the truck…

Greenville, South Carolina, WHNS-TV, May 27, 2022: Mother dead, daughter injured after tree fell on house in Gaffney

A mother is dead and a daughter is injured after a tree fell on a house in Gaffney. The Gaffney Fire Department responded to the scene at around 5 p.m. on Thursday, May 26 on East Jeffries Street. Fire Chief Jamie Caggiano told Fox Carolina that there were two women sitting on the front porch of the house and four kids inside. The kids were able to crawl out the window. They say the women, the 78-year-old mother and 58-year-old daughter, were trapped on the front porch of the house.Sadly, the mother died at the scene, according to the Cherokee County Coroner’s Office.The coroner identified the woman as 78-year-old Thelma Jordan Carroll. According to the coroner, Carroll was sitting on a wooden bench on the front porch of her daughter’s home at about 4:50 p.m. The coroner says it is believed that straight-line winds caused a large tree to fall on the house causing the roof to collapse and trapping her and her daughter, 58-year-old Phyliss Knighten, under the debris…

Cincinnati, Ohio, Enquirer, May 26, 2022: After 12 years in quarantine, these Japanese Cherry Blossom trees can finally be planted

Cherry Blossom trees that were gifted from Japan 12 years ago are finally going to be planted in Cincinnati. The city of Adachi, Japan gifted the Queen City ten Cherry Blossom trees as part of the Krohn Conservatory’s Butterflies of Japan show in 2010. However, a complicated quarantine process delayed their arrival. The trees entered the United States that same year, but due to their type, had to be placed in the National Plant Germplasm Quarantine Center, regulated by the U.S. Department of Agriculture, where they were tested for viruses. Unfortunately, three springs in a row, the trees tested positive for various viruses, preventing them from reaching Cincinnati. But, since the trees were an international gift, and considering the historical significance of Japan gifting trees to the U.S., staff at the quarantine center went “above and beyond” to make sure the trees could arrive in Cincinnati, Andrea Schepmann, former Krohn Conservatory director, said…

Los Angeles, California, Daily News, May 26, 2022: Why this hardy fruit tree might be just what you want in your garden

Southern California is often called a gardener’s paradise because we can grow an amazing variety of plants. It’s warm enough to grow many tropical and subtropical fruits such as citrus, avocado, guava, sapote, cherimoya, and mango. The inland valleys encompass a surprising range of microclimates in which some temperate fruits can survive (or even thrive) if planted in a spot that offers adequate winter chill. Cherries require more winter chill than most other temperate fruits, so they do not grow well in most of Southern California (Cherry Valley being an exception). If you plant a Bing cherry here, it may survive for a year or two, but it will produce little or no fruit and eventually decline due to inadequate chill – kind of like the tree version of sleep deprivation. If you still want to grow cherries because of their beauty and don’t mind getting tart fruit, there are some varieties that will do well in our warm climate…

San Francisco, California, SFGate, May 25, 2022: ‘We hope it sends a message’: Bay Area wine executive faces $3.75M fine for allegedly ripping up trees and other unpermitted activities

As the megadrought bakes California, leaving parched lake beds and aggressive water restrictions in its wake, the state’s creeks and wetlands are more fragile, and vital, than ever. Punishments handed down to landowners who damage that delicate environment are now matching that seriousness. A Bay Area winery executive is facing a multi-million dollar state fine for allegedly removing trees and destroying a small wetland on a rural patch of land east of Cloverdale in Sonoma County. Hugh Reimers and Krasilsa Pacific Farms could be on the hook for up to $3.75 million in fines for allegedly cutting down trees, grading, ripping and other activities near tributaries to Little Sulphur Creek, Big Sulphur Creek and Crocker Creek in the Russian River watershed, according to the state water board…

Tampa, Florida, WTSP-TV, May 24, 2022: Botanical sexism? The idea cities have made allergies worse by planting male trees needs context

If you feel like your allergies are getting worse and allergy season is lasting longer, it’s not just you. Researchers said in the past three decades pollen levels have increased and allergy season has started earlier. But can we really blame our increasingly running noses and itchy eyes on … sexism? In various posts on TikTok, like this one, which has been shared and viewed millions of times, users explained that “botanical sexism” is why allergies and asthma across the United States have gotten worse because “landscapers and city planners thought male trees were easier to maintain.” The theory has also been amplified on Twitter with users claiming, “it’s just one more way in which males are ruining the planet.” Is “botanical sexism” to blame for our worsening allergies because cities plant mostly male trees? The viral theory that urban landscaping is sexist and making our allergies worse needs context…

London, UK, Guardian, May 26, 2022: Ancient cypress in Chile may be the world’s oldest tree, new study suggests

Scientists in Chile believe that a conifer with a four-metre-thick trunk known as the Great Grandfather could be the world’s oldest living tree, beating the current record-holder by more than 600 years. A new study carried out by Dr Jonathan Barichivich, a Chilean scientist at the Climate and Environmental Sciences Laboratory in Paris, suggests that the tree, a Patagonian cypress, also known as the Alerce Milenario, could be up to 5,484 years old. Maisa Rojas, who became Chile’s environment minister in March and is a member of the United Nations’ Intergovernmental Panel on Climate Change, hailed the news as a “marvellous scientific discovery”. Known in Spanish as the Alerce, the Patagonian cypress, fitzroya cupressoides, is a conifer native to Chile and Argentina that belongs to the same family as giant sequoias and redwoods…

Bloomberg, May 26, 2022: Tree-Boring Beetle Could Cost South Africa $18.5 Billion

A tree-boring beetle the size of a sesame seed could cost South Africa $18.5 billion over the next decade as millions of urban trees are expected to die and will have to be removed and fruit, nut and lumber plantations are harmed, researchers estimate. The polyphagous shot-hole borer, which arrived in South Africa in 2012, has spread into eight of the country’s nine provinces with some infestations more than 1,000 kilometers (621 miles) apart, researchers from Stellenbosch University and the University of Pretoria said in a study released this week. Growing infestations by the beetle, which has killed trees in outbreaks in Israel and California, could kill 65 million, or about a quarter of South Africa’s urban trees, over the next 10 years, the researchers said. That would result in costs of $17.5 billion, mostly in the form of the expense of removing dead trees. Damage to avocado and lumber plantations would increase the total cost by about another $1 billion. This is “the largest current outbreak of this invasive pest globally,” the researchers said…

Newsweek, May 19, 2022: Rainforest Trees Have Been Dying at Faster Rate Since 1980s

Tropical trees in Australia’s rainforests have been dying at double the previous rate since the 1980s, seemingly because of climate impacts, according to the findings of a long-term international study published Thursday in the Nature journal. This research has found the death rates of tropical trees have doubled in the last 35 years, as global warming increases the drying power of the atmosphere. Deterioration of such forests reduces biomass and carbon storage, making it increasingly difficult to keep global peak temperatures well below the target 2°C (35.6°F), as required by the Paris Agreement. Today’s study, led by researchers from the Smithsonian Environmental Research Center and Oxford University, and French National Research Institute for Sustainable Development (IRD), has used uniquely long data records from across Australia’s rainforests. It finds average tree death rates in these forests have doubled over the past four decades. Researchers found trees are living around half as long, which is a pattern consistent across species and sites across the region. And the impacts can be seen as far back as the 1980s, according to the team…

Atlanta, Georgia, WGCL-TV, May 24, 2022: After abandoning job, Georgia tree trimmer pledges to ‘make it right’

A metro Atlanta couple paid a local tree trimming service more than $3,000 to remove three trees, but the crew only cut one and then abandoned the job after only two days. “I don’t understand how you can go to bed at night and treat people this way,” the grandson of Annette Hudgens, 85, said of Toby’s Tree Service in McDonough, Georgia. Hudgens and her husband had used the service before. Hudgens had given up hope the company, owned by Toby Spires, would return. A month later, her husband Bill passed away at age 90. Hudgens’ grandson and her neighbors said they made several attempts to reach Spires, but never got past the company’s receptionist. Toby’s Tree Service has been in business for 22 years. Spire’s company has good reviews, but several customers complain online the company disappeared before completing the work. One customer started his complaint on the Better Business Bureau’s website with one word: “Run!” The BBB issued an F rating…

Dallas, Texas, Culture Map Dallas, May 20, 2022: Tree experts demand urgent action to rescue Dallas’ beautiful ash tree

An invasive beetle that kills off ash trees has been discovered in Dallas County, and tree experts are calling for immediate action. The beetle is the Emerald Ash Borer (EAB), a wood-boring beetle that targets all ash trees. According to a release from Texas Trees Foundation, the beetle poses a substantial threat to Dallas’ urban forest, on both public and private land: EAB kills unprotected ash trees within 2-3 years of infestation and can eliminate entire stands of ash trees within 10 years. The urgency has escalated because, on May 19, the Texas A&M Forest Service confirmed the presence of EAB in Dallas County. Native to Asia, the emerald ash borer beetle was unknown in North America until its discovery in southeast Michigan in 2002. Since then, it has spread to 35 states including Texas, where it was first detected in Harrison County in Northeast Texas in 2016…

Ottawa, Ontario, Citizen, May 24, 2022: The trouble with trees: Why did so many come down in the storm?

Wind is a powerful force in the lives of trees. It helps them reproduce by spreading seeds and pollen, it governs their growth and height, and it brings down the old and the weak. Such was the case Saturday when thousands of trees in Ottawa were damaged or uprooted during the powerful spring storm that battered the region with what have been described as “hurricane-force” winds gusting to 120 km/h. Hydro Ottawa said the storm did significantly more damage to the local electrical distribution system than either the 1998 ice storm or the 2018 tornadoes. Much of that damage was done by downed trees and limbs. Ian Laidlaw, district manager for Davey Tree Ottawa, said the firm has responded to hundreds of calls for service in the past three days — more than anyone at the tree service can remember during the past 45 years. So why did so many trees crack or topple in this storm? Many factors were at play, but the essential element was wind, said Michael Petryk, a certified arborist and director of operations at Tree Canada, an Ottawa-based non-profit dedicated to improving the country’s tree canopy…

Los Angeles, California, KNBC-TV, May 21, 2022: Why Trees Are Not Part of LA’s Two-Day Outdoor Watering Restrictions

Two-day-per-week outdoor watering restrictions are set to begin June 1 in Los Angeles. But there’s an important exception to the rule in place to reduce water use during the region’s dry spell. Mayor Eric Garcetti said Friday that the water restrictions do not apply to tree watering. The mayor said the region needs its trees to keep things from getting worse. Trees can capture stormwater, improve water quality and reduce flood risk, along with helping air quality and the impacts of heat waves. Nearly 60 percent of California is in extreme drought, the second-most severe category in the weekly US Drought Monitor report. That includes a large swath of northern Los Angeles County. Ninety-five percent of the state is in severe drought. Garcetti met with California Natural Resources Agency Secretary Wade Crowfoot Friday. “Even here in Los Angeles, one of the true conservation capitals of the world, we need to continue to take advantage of the tools at our disposal that will help us get through drought,” Garcetti said. “We need to conserve now more than ever, and watering our trees is a critical part of our work to become a more sustainable and drought resilient state…’

Denver, Colorado, KUSA-TV, May 23, 2022: Tree removal companies swamped as homeowners clean up after late May snow

Derek Wasiecko usually scouts jobs ahead of time, and his clients typically mull over the quotes he delivers. But Tree Climbers of Colorado is swamped after a late May snowstorm brought branches raining down on homes, cars and lawns across the Denver metro area. “It’s crazy, I started at 7:00 a.m. yesterday, and probably worked until 7:30 p.m. or something,” Wasiecko said. “But it was good. Can’t turn down a bunch of people coming to me.” Good for business, but bad for trees. Jennifer Newton pulled up a chair and watched as Wasiekco and his crew cleaned up the branches from her yard and climbed through her 60-foot-tall ash tree, chainsawing snapped limbs and guiding them safely to the ground. “It hasn’t killed my house. The ones that have been falling are good,” she said. “I’m crossing my fingers. I’ve done a lot of praying.” Newton’s ash tree has been through this before. She said there’s a late snow every few years that weighs down the tree’s branches and causes some damage. She estimates it’s 90 years old, and hopes it bounces back from the damage like it has so many times before. “I’ve been in this house 32 years, so I’ve been watching this tree get smaller and smaller every storm,” she said…

Phys.org, May 19, 2022: Climate change is killing trees in Queensland’s tropical rainforests

In recent years, the Great Barrier Reef off Australia’s northeast coast has seen multiple events of mass coral bleaching as human-caused global warming has driven sustained high temperatures in the ocean. Alongside the Coral Sea is another spectacular natural wonder: the rainforests of the World Heritage-listed wet tropics of Queensland. It turns out the same climate change forces contributing to coral bleaching have also taken a toll on the trees that inhabit these majestic tropical rainforests. In new research, we and our co-authors found that mortality rates among these trees have doubled since the mid 1980s, most likely due to warmer air with greater drying power. Like coral reefs, these trees provide essential structure, energy and nutrients to their diverse and celebrated ecosystems…

T&D World, May 23, 2022: Davey Tree Builds Training & Research Center in Ohio

The Davey Tree Expert Company is building a new science and learning campus — the Davey Tree SEED (Science, Employee Education and Development) Campus in Kent, Ohio. The 170-plus acre property, which formerly housed the Oak Knolls golf course and Franklin Elementary School on State Route 43, will be the new home to Davey Tree’s specialized training and research facilities. It is being designed to ensure that Davey continues to attract and retain the most qualified, well-trained and engaged employees possible. Planned facilities include a 25,000-square-foot training center and associated offices, a 10,700-square-foot indoor climbing center, 18 spans of non-energized utility right-of-way, laboratories and greenhouses, a container nursery and multiple research plots and fields. The training center classrooms will more than double the size of the current classrooms at the Davey Institute across the street at Davey Tree’s corporate headquarters. The classrooms are used to teach many of Davey’s educational and training programs, including the Davey Institute of Tree Sciences (D.I.T.S.) classes, which is Davey’s flagship training program in biological sciences, safety, tree and plant care and management techniques. The anticipated completion of the SEED Campus is 2026. Research and training have started taking place on the property, including tree and shrub plantings on research plots and utility and safety training…

Cleveland, Ohio, Plain Dealer, May 20, 2022: Brother, sister who cut down and sold 200-year-old black walnut tree in Cleveland Metroparks plead guilty to felony theft

A brother and sister who hired a company to cut down a 200-year-old black walnut tree on Cleveland Metroparks’ property last year have pleaded guilty to a felony theft charge. Todd Jones, 57, of Bay Village and Laurel Hoffman, 54, of Elyria agreed to repay the Metroparks $20,000 as part of the plea deal, which the pair entered Wednesday in Cuyahoga County Common Pleas Court. Judge Timothy McCormick ordered the pair to serve six months in the Cuyahoga County Jail, but he suspended the sentence. The pair will not have to serve jail time. Prosecutors said Jones and Hoffman hired a tree felling company in September to cut down the tree that was located about 7 feet from Jones’ property line in the Mill Stream Run Reservation in Strongsville. Jones told the company, including in writing, that the tree was on his property, prosecutors said. After the tree was cut down, Jones and Hoffman sold it to a Geauga County sawmill for $2,000, prosecutors said. Metroparks rangers learned of the tree being cut down more than a week later. The park estimated the tree was worth about $28,000 and said that it cost more than $100,000 to clean up the area because of the mess…

Stamford, Connecticut, Advocate, May 21, 2022: Across Connecticut, once-lush beech trees are dying

Last year, when John Lucak took his daily, four-mile walk in Waveny Park in New Canaan, the world was green and beautiful. This year, not so lush. The 300-acre park has groves of near-defoliated beech trees with stunted, ruined leaves. “They look horrible,” Lucak said. Welcome to beech leaf disease, and a world where one of the most important trees in our forests may go the way of the American chestnut — lost in a decade or two. It’s not just in New Canaan. Geordie Elkins, operations manager at Highstead, the arboretum and land conservation organization in Redding, said he’s seen beech leaf disease there for the first time this year. Far to the north, at Great Mountain Forest, whose 6,000 acres straddles Norfolk and Falls Village in Litchfield County, forester Jody Bronson found the disease in a stand of beech trees deep in the woods. “This is a place that’s miles from any road,” Bronson said…

Toronto, Ontario, Star, May 23, 2022: Toronto is barking up the wrong official tree — we should have gone with pine, not oak

The official tree of Toronto, after a sadly almost entirely ignored public online vote, is the… oak. This doesn’t surprise me, or you. Ask a Torontonian to name a tree and well, how about oak, something he associates with wine barrels. If you asked them to name a wood, they’d say Ikea, which means MDF (medium density fibreboard) with a laminate veneer, but Ikea doesn’t make trees (yet) so let’s have oak for the municipal win. The poll also included maple, birch and pine. I suspect people don’t think of the maple as a tree but as a leaf. I wanted to vote for birch but didn’t want to offend anyone. On the other hand, city trees are for urination, unofficial bike stands, centres of root stifling and compression, poster-stapling and tagging. A white birch, so very peelable, wouldn’t last a week. That left the pine — there were two kinds listed compared to eight kinds of oak — which would have been the best choice. We are a winter city that needs evergreens to soften the angles of its drab, boxy architecture…

Abilene, Texas, Reporter News, May 22, 2022: Bruce Kreitler: Are our trees tough enough to survive the drought?

Boy, I sure wish it would rain. As I have said many times in the past, because of the 2011 drought, I’m mentally damaged — or maybe what I mean by that is I’m more mentally damaged than I was before the drought. Anyway, since I certainly do remember the 2011 drought — and the nasty, record-breaking, hot summer that went with it — these dry, 100-degree-plus days in the middle of May are making me nervous. As I have said before, I liken how I now feel about drought with the way the people who went through the great depression felt about money and the ups and downs of the economy. The one thing that is a positive is that our lakes are in decent condition for water. Oh well, June is almost here, and it’s supposed to be our rainiest month of the year. So hopefully something will develop there. So, thinking about the dry times right now, and the 2011 drought — which by the way, lasted three years — it actually has bearing on our current dry times, vis-à-vis trees…

Portland, Oregon, The Oregonian, May 18, 2022: Mother of man crushed to death by tree limb in 2020 sues Portland for $2 million

A wrongful death lawsuit claims Portland failed to properly prune a towering oak tree that fatally crushed a man near the border of Powell Park in 2020. Jonathan D. Nichols, 45, was inside a van parked on Southeast 22nd Avenue when a thick tree branch suddenly cracked and fell onto the van, killing Nichols and injuring another person just before 9 a.m. June 25, 2020, according to the suit and first responders. Nichols’ mother, Pamela S. Nichols of Boise, seeks $2 million from the city of Portland for failing to trim the 93-foot-tall red oak, which was part of the city’s heritage tree program. The “unbalanced” tree branch extended beyond the natural shape of the canopy, causing it to splinter due to “excessive end weight,” according to the lawsuit, filed in late March in Multnomah County Circuit Court. “The city knew or should have known that trees at Powell Park, including the red oak, constituted a hazardous condition,” the suit says, noting that a limb on another heritage oak in the park fell on an unspecified date before Jonathan Nichols’ death…

Minneapolis, Minnesota, WCCO-TV, May 16, 2022: Good Question: How Do Trees Know When To Bloom?

In a matter of days, we’ve gone from a cold spring to one that’s bursting with warmth and color. That had us wondering: How do trees know when to bloom? And did it take longer than usual this year? Good Question. Jeff Wagner explains why nature follows its own schedule and not ours. From the edge of the Mississippi River to parks and yards, another sign that spring has sprung hangs from above like a colorful canopy. “It’s so much more green and everything’s blooming,” said Anna Doolittle, a student at St. Thomas University as she walked with a friend along a trail near the river. “It’s crazy the difference.” “When they get what they need, they’ll leaf out and they’ll bloom,” said Val Cervenka, forest health program coordinator at the Minnesota Department of Natural Resources. How do trees know when to bloom? “It depends on the tree…

Case of the Day – Thursday, May 26, 2022

CATCH A FALLIING TREE

Regular readers of our news feature (which follows the Case of the Day every day), know that trees fall on people all the time. Adults get hurt, children get hurt, and sometimes they get killed.

Each one is a tragedy, but the tragedies often go unnoticed. The news media, however, cannot fail to observe what happened when one or two of their own are involved. A television anchor and a photojournalist for a broadcast news station in South Carolina died a few years ago after a tree fell and crushed their sport utility vehicle while they were out covering severe weather. The anchor, Mike McCormick, and the photojournalist, Aaron Smeltzer, worked for WYFF News in Greenville, S.C., and were about 30 miles north of there in North Carolina when the tree struck their SUV as they drove along Highway 176.

The story was big, even being reported on network news and in The New York Times. We were a little miffed – when a 17-year old girl on a hike dies when a tree falls on her, the Times doesn’t pick up the story. When a 5-year boy died playing on a hammock when the tree it was anchored to fell on him, NPR didn’t breathlessly lead with it in the next day’s “All Things Considered.” Even when something as bizarre as a tree falling on a wedding party occurs, killing the mother of the bride, you don’t hear mention of it on the ABC evening news. But lose a TV anchor, and World War II doesn’t get as much ink or air time.

We don’t depreciate the loss of the two TV news people, but we do wish when ordinary folks are struck down by falling trees, the Fourth Estate was as diligent in reporting it.

But here’s how the news ties into today’s case. What about that tree that crushed the reporters’ SUV? No doubt it was in the highway right-of-way (which is generally much wider than the paved road and shoulder). On the side street we live on, the R-O-W extends 30 feet from the centerline of the road, which brings it to the edge of our tomato patch. As with an easement, we cannot do anything inside the right-of-way inconsistent with the city’s rights, but are we at all responsible for the trees standing there?

That was the question that woman who ran into a downed tree asked the Oregon Supreme Court. Back in the day, the landowner had no duty to people on the highway. But then along came the gasoline-powered car, and then another one, and another one, and pretty soon, society had changed. Had the duty owed the motorist by the property owner changed as well?

Taylor v. Olsen, 282 Ore. 343; 578 P.2d 779 (S.Ct. Ore, 1978). Bonnie Bell Taylor was driving on a Clackamas County road one dark and windy January evening when she ran into a tree that shortly before had splintered and fallen across the road. She sued Clackamas County, the owner of the right-of-way on which the tree was located, and Marion Olsen, the adjoining landowner in possession of the right-of-way. The County was dismissed early on, but the case Bonnie had against Marion went to trial.

Bonnie argued Marion should have recognized the danger that the tree might fall onto the road. Marion maintained he had no duty of reasonable care with respect to Bonnie Bell where the fallen tree was concerned. The trial court directed a verdict for Mr. Olsen. Bonnie appealed.

Held: Marion had not violated any duty to Bonnie Bell.

Generally, the Oregon Supreme Court said, a possessor’s duty of reasonable care toward the traveling public will arise from actual knowledge of the dangerous condition of the tree. The more difficult question is whether the possessor will be held liable if he or she should have known of the danger, and specifically, under what conditions he or she has a duty to inspect his trees to discover a latent danger.

In assessing conditions under which the laws of other states have denied such a duty, the Oregon justices observed, those courts have based their conclusion on the impracticality or economic cost of an obligatory inspection in relation to the probability of harm from falling trees or limbs. Half a century ago, the Supreme Court of Minnesota rejected such an affirmative duty in these terms:

Many of our public highways pass through timbered country, and upon the prairies owners have been encouraged to plant trees. It will add a very heavy burden on the servient fee owner if he must exercise the supervision and care for the dominant easement in this respect. If such a duty is laid upon him he becomes liable, in case of a failure, to respond in damages that may sweep away the value of his whole farm by some unfortunate accident like the present. Severe wind storms are not rare in this state, and a jury influenced by sympathy for the injured party are [sic] so prone to find the accident the result of negligence upon the slightest pretext.

In the 1930s, the view began to shift due to increasing automotive traffic and urbanization, with courts beginning to find liability in cases where the latent decay of the falling tree was known or by the exercise of ordinary care could have been known by the landowner (at least when the tree stood in urban or suburban areas). However, nothing was said about trees along a rural road, and as late as the 1965 Restatement of Torts 2d, the duty to “exercise reasonable care” was assigned to the possessor in an “urban area” but rendered “no opinion” to “rural” areas.

The Court held that the question of a landowner’s or possessor’s attention to the condition of his roadside trees under a general standard of “reasonable care to prevent an unreasonable risk of harm” should be decided as a question of fact upon the circumstances of the individual case. The extent of his or her responsibility either to inspect the trees or only to act on actual knowledge of potential danger cannot be defined simply by categorizing land as “urban” or “rural.” “Surely,” the Court said, “it is not a matter of zoning or of city boundaries but of actual conditions. No doubt a factfinder will expect more attentiveness of the owner of an ornamental tree on a busy than of the United States Forest Service… but the great variety of intermediate patterns of land use, road use, traffic density, and preservation of natural stands of trees in urban and suburban settings prevents a simple ‘urban-rural’ classification.”

Even in a rural setting, the Court observed, it can make a difference whether the defendant or others for whom he is responsible are engaged in activities that involve the trees at the location in question or that alter the natural conditions at this location. When the owners of large tracts of rural land simply hold the land as landowners without engaging in such activities, the “practical difficulty of continuously examining each tree in the untold number of acres of forests” or in “sprawling tracts of woodland adjacent to or through which a road has been built can be so potentially onerous as to make property ownership an untenable burden. This would be particularly true for an absentee landowner.”

In this case, the road in question was a two-lane blacktop highway serving a number of communities in Clackamas County used by an average of 790 vehicles a day. A fallen tree thus might encounter a vehicle within an average of about two minutes, depending on the time of day. Marion purchased the land adjoining the road in 1973 for logging purposes, and during the five or six weeks before the accident he had logged about half the timber on his land. This included the trees next to the tree that eventually fell onto the road. Under these circumstances, the Court said, it would for the jury to decide whether Marion had taken reasonable care to inform himself of the condition of this tree, provided the plaintiff first provided evidence that an inspection would have disclosed its hazardous condition. Here, the evidence showed the tree broke and fell onto the road, and that the center of the tree at the point of the break was decayed. However, the decay did not extend through the bark. Only by chopping or boring into the trunk of the tree, the Court said, would there have been a substantial chance of discovering the decay.

Marion did not observe signs of rot, although he did not drill or chop into the tree. He did notice that the tree swayed in the wind. There was no evidence to suggest that chopping or drilling into the trunk would have been a normal or expected way to examine a standing tree in the absence of external indications that it might not be structurally sound.

The imposition of a duty to chop into a tree seeking hidden rot, the Court said, in the setting of this case requires more than the general observation that the tree sways in the wind. It requires some evidence either that the defendant should have been on notice of possible decay in this tree, or that cutting through the bark to the trunk is a common and ordinary method of examining trees generally. In the absence of such evidence, it was not error to direct a verdict for Marion.

– Thomas L. Root

TNLBGray

Case of the Day – Wednesday, May 25, 2022

SIC WHAT?

This is a logo for some financial planner, but it would work well for an arborist.  Just so it’s not “Sic utere tuo ut alienum non lædas.”

Today, we consider the final issue raised by our Iowa reader (see last Monday), who wrote complaining that her neighbor planned to bulldoze a driveway along a steep grade right next to his land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away his land.

We identified four questions in our reader’s inquiry. We have addressed the questions about her neighbor’s damage to trees that might be exactly on the boundary line, as well as those located on her land but with roots crossing the boundary line. Today we address the final question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well. Could our reader get an injunction to stop the harm before it starts? It’s a cliffhanger.

No fear, lovers of legal drama, because Iowa (as well as most states) has accepted in one form or another the doctrine of sic utere tuo ut alienum non lædas, meaning “so use your own property as not to injure that of your neighbor.” The doctrine has been held to have limits that fall well short of your basic trespass to real estate — in today’s case, a landowner tried unsuccessfully to stop the property owner above him from sending additional drainage down a creek, eroding his banks. But the Court acknowledged that sic utere tuo ut alienum non lædas did exist and was illustrated in the generally-accepted right of lateral support.

Bad things can happen when lateral support is lost.

Bad things can happen when lateral support is lost.

And that right may be what rides to the rescue of our Iowa reader. The right to lateral and subjacent support means that a property owner has the obligation not to remove soil or change grades in such a way as to take away lateral support to the soils of her neighbor. The Court said it isn’t a silver bullet — it applies only to activities along the property boundaries – but that may be enough for our reader.

Bulldozing an already steep grade, and removing root systems — which in all likelihood play a substantial role in stabilizing the slope — may well violate the other landowner’s duty to provide lateral and subjacent support.

So what to do? As we saw several days ago, the Iowa courts have taken a rational view of how much harm is irreparable — and showing irreparable harm is essential to winning an injunction — making get a court order stopping the bulldozing before it starts is entirely possible. Our reader’s local attorney probably will want to engage an expert who can examine the situation and provide a detailed, technical affidavit predicting the extent and permanence of the harm which could result from bulldozing the already significant slope.

Our reader mentioned that she was also checking the various administrative agencies to be sure that the permit process was being followed. Often, a lot of potential harm can be headed off by arguing the case before agencies that — with stricter and more detailed requirements — can hobble ill-conceived projects before they take flight.

A word of caution: we’re throwing out ideas left and right, but we’re not anyone’s lawyers here. There is no substitute for local boots on the ground, an attorney from the area versed in land use law. We trust that our reader, perhaps armed with some good ideas, will refer the matter to her local lawyer.

Pohlman v Chicago, Milwaukee & St. Paul Railroad Co., 131 Iowa 89, 107 N.W. 1025, 6 L.R.A.N.S. 146 (Sup.Ct. Iowa 1906). The railroad had a track grade and bridge located near and above Pohlman’s property. Water traditionally drained off the Pohlman place through Poole Hollow, which went through a corner of the property. But the railroad decided to improve the flow of water around its grade by running a ditch of its own into Poole Hollow. The result was that more water flowed through the Hollow during rainstorms, and the flow was at a much more rapid rate. The fast-moving flow eroded Pohlman’s land, and he sued. In his action, he argued that the railroad company had damaged his real estate and violated the old doctrine of sic utere tuo ut alienum non lædas – which translates as “so use your own property as not to injure that of your neighbor.” The trial court granted a demurrer to the railroad, throwing the case for not stating a claim on which relief can be granted.

Pohlman appealed.

Held:  The case was properly dismissed. Superficially, the Court acknowledged, the decision was clear. Lower property was obligated to accept the flow of water discharged by the higher property, meaning that the increased flow through Poole Hollow was not a condition for which a court would grant relief. But, the Court halfway complained, “if this were all, it would seem that the case must be at an end. But counsel for appellant go farther and invoke the maxim sic utere tuo ut alienum non lædas — “so use your own property as not to injure that of your neighbor,” and insist that the case, in view of the peculiar circumstances, is brought within the operation thereof.”

The principle is that no property has greater right than the other and that each owner is obligated to use his or her property in such a way as not to injure the property of his or her neighbor. The Court acknowledged that there existed a right of lateral and subjacent support, and the theory being advanced by Pohlman was that “to all intents and purposes the situation presents a case of the removal by an adjoining proprietor of the lateral support to the soil of his neighbor.”

bulldoze151113The Court acknowledged that the right was a natural one, and was predicated upon necessity. “As the term itself implies, it has relation to the support which in a state of nature the soil of one owner receives at the boundary line from the soil of his neighbor.” But, warned the Court, the doctrine could not be extended to embrace cases of trespass generally. “It goes no further than to inveigh against an interference within the zone of the natural support afforded by the soil conditions at the boundary line.” This case had nothing to do with boundary line support. Instead, the essence of the complaint was that by the accelerated flow of the surface water more soil had been carried away from the general surface of Pohlman’s land than otherwise would have occurred.

The point of the case is that a right of lateral and subjacent support exists, and — as of 1906 — that was about as far as sic utere tuo ut alienum non lædas extended.

TNLBGray

Case of the Day – Tuesday, May 24, 2022

GETTING BULLDOZED

bulldoze161229Yesterday, we tackled the first of several inter-related questions raised by an Iowa reader. She wrote that a neighbor planned to bulldoze a driveway along a steep grade right next to her land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away her land.

We identified four questions in our reader’s inquiry. We tackled the first question yesterday, about trees that might be exactly on the boundary line, and we concluded that Iowa law would not let her neighbor take steps that would destroy them (such as wiping out the root systems) without our reader’s OK.

But that answer begs the question of what will happen to trees that are growing entirely on our questioner’s land but extend their branches or root systems onto the neighbor’s place. (The third question — what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well — and the final question about whether our reader could get an injunction to stop the harm before it starts, will be addressed tomorrow.)

The short answer to today’s question is found in the century-old case of Harndon v. Stultz. That decision adopted what years later would be called the “Massachusetts Rule,” specifically that a landowner has no right to judicial help in stopping an encroaching tree from his or her neighbors, but he or she may trim its branches and roots back to the property line. Under the rule of Harndon, it would appear that the neighbor could bulldoze out the root systems which have grown onto his land without liability.

But we’re not entirely satisfied that this would be the answer. Remember first that the plaintiff in Harndon complained that the trees in question were damaging her land, the roots tying up the ground and the trees shading what otherwise would be cropland. The court didn’t have a lot of sympathy for her, but it did recognize that she was suffering because the tree was just doing what trees are doing.

The United States has been moving inexorably toward the Hawaii Rule, which provides a landowner judicial relief where the trees are nuisances, and not merely being trees. Witness the Virginia decision of Fancher v. Fagella, in which the tree was causing substantial damage to the plaintiff’s home. The obverse of this coin is illustrated in the question posed here: what happens when the neighbor is suffering absolute no damage whatsoever from the trees in question? As our reader explained it, the neighbor merely wants to bulldoze a road on a steep slope along a very narrow piece of property. During the bulldozing, it’s likely that root systems will be severed and trees badly damaged or killed.

Our suggestion that there may be more to it than a century-old case suggests isn’t that far off. A California decision, Booksa v. Patel, already has held that a neighbor must act reasonably in exercising his or her self-help rights, and “reasonable” is expressed in terms of taking steps that are no greater than those needed to ameliorate the harm. And Professors Prosser and Keeton, in their seminal work The Law of Torts (5th ed. 1984) §57, say that a landowner has a privilege to make use of the land for his own benefit, and according to his own desires, which is an integral part of our whole system of private property; but it has been said many times that this privilege is qualified by due regard for the interests of others who may be affected by it. The possessor’s right is therefore bounded by principles of reasonableness, so as to cause no unreasonable risks of harm to others in the vicinity.”

Remember, no one said our neighbor's roots are invasive.

Remember, no one said our neighbor’s roots are invasive.

In the case our reader has raised, it may well be that the time is ripe not to reverse Harndon v. Stultz, but rather to add to the body of law it represents by finding that a neighbor’s right of self-help is circumscribed by reasonableness. Under that standard, where a neighbor kills a tree by removing a root system, where the tree admittedly has caused no sensible harm to him, might be unreasonable.

It’s certainly something our reader’s Iowa attorney might want to consider.

Tomorrow: What if the bulldozing causes landslides on our reader’s property?

Harndon v. Stultz, 124 Iowa 440, 100 N.W. 329 (S.Ct. Iowa, 1904). Harndon and her husband owned and farmed an 80-acre tract of land. Stultz had 160 acres just to the south of the Harndon farm. Many years before, the Harndons planted a willow hedge along the entire south line of the farm, and later, Stultz extended the hedge eastward. The Harndons claimed that Stultz had agreed with them to maintain the west half of the hedge line and the Harnsons would maintain the east half. Some years later, the Harndons dug up the eastern half of the hedge, replacing it with a fence. Mrs. Harndon then demanded that Stultz do the same. Stultz refused, and she sued for an order finding the hedge to be a nuisance and requiring Stultz to cut it down. She argued that the willow had spread through the soil, and so much shade was cast by willows that it rendered a portion of the Harndons’ land unusable. As an alternative, the Harndons asked that, if Stultz had no duty to remove the hedge, they be allowed to do so at their expense. The trial court dismissed the petition, and the Harndons appealed.

Tomorrow - Could our reader's neighbor cause a landslide?

Tuesday – Could our reader’s neighbor cause a landslide?

Held: The Court adopted what was essentially the Massachusetts rule years ahead of its time. Nothing in the law, the Court said, made it a defendant’s duty to cut down a hedge or tree simply because, over a passage of time, the owner’s neighbor found the roots and the shade of the growing trees injured the productiveness of his land. The raising of trees, the Court held, is a legitimate use to which an owner may put his land. If the limbs of such trees overhang the land of a neighbor, he may cut them off at the line, and, if the roots penetrate the neighbor’s soil, he may dig them out, but that is the extent to which he may carry his objection.

The Court said that an adjoining property owner may cut off the overhanging branches of trees at the property line, and dig out the roots penetrating the soil on his land. However, that property owner is not entitled to compel the owner of the tree to cut it down, regardless of whether the care and maintenance were provided by the owner or by the adjoining property owner. On the other hand, the Court said, trees standing on the boundary line between lands of adjoining owners are the common property of both parties, which neither may destroy without the consent of the other. The Court upheld the trial court but modified the decree to let the Harndons remove the hedge at their cost, based on Stultz’s statement during oral argument on appeal that she didn’t object to its removal.

– Tom Root

TNLBGray

Case of the Day – Monday, May 23, 2022

ALL EYES ARE ON IOWA

A loyal reader from the home of the greatest state fair in the land — and we need more of such readers, not just from Des Moines — wrote to ask some incisive questions about a rather boorish neighbor. Her questions had to do with the neighbor’s plans to bulldoze a driveway along a steep grade right next to our interrogator’s land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away his land.

The Iowa State Fair this year will seem like a breath of normalcy, this third year of what is still a pandemic, although joy will be muted due to the passing of Virginia Barksdale, matriarch of the famous Barksdale State Fair Cookie. But to the question of the day, or really four questions, not just one, posed in our reader’s letter. The first question: what about trees right on the boundary line? The second question: what about trees on our reader’s land, but with roots extending into the neighbor’s land? The third question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well? And last, if our reader has some rights here, can she get an injunction to stop the harm before it starts, or is her only option to collect money damages later?

All good questions. Today we’ll answer the question about those boundary trees. Boundary trees are trees growing on the legal boundary between properties. In Iowa, the case governing boundary trees is Musch v. Burkhart. Musch valued the cottonwood trees growing along the boundary of his land and the adjacent property belonging to Burkhart; his neighbor, however, thought the cottonwoods were a pain in the neck. Musch had cut some of them down — after all, there was about 500 yards of the tree line — leading Burkhart to conclude that he, too, could cut some down, in fact, cut down as many as he wanted.

The court’s analysis was interesting, in that whatever agreement the prior owners of the two parcels — who had apparently agreed to some arrangement on ownership, care and use of the tree line — may have made had been lost to history. The court said that absent some evidence to the contrary, it would assume that trees growing on a boundary line were owned by the two owners as tenants in common because they grew on both properties and “drew sustenance” from both properties. It almost suggests that trees that are provably drawing sustenance from root systems spread pretty much equally from two properties must be owned by both owners as tenants in common.

The importance is that ownership of the tree by both property owners as tenants in common establishes what essentially is a 50-50 partnership with each partner given a veto. As tenants in common, both must agree before anything happens to the tree.

The other holding of importance of this case is that the court found that damage to trees is, for all legal purposes, irreparable harm. Nothing is irreparable in a geologic time sense. Trees that are destroyed can be replaced, the seedlings becoming just as majestic in 50 or 100 years. The Musch decision takes a much shorter view, however, suggesting that if it will require a half-century to heal, it’s irreparable harm.

That’s significant. A showing of irreparable harm is necessary to obtain injunctions to stop tree cutting. Musch, like the rest of us, would rather keep the tree now than get a few bucks later, after a century tree is gone. Maybe not gone forever, but to almost all of humanity, ‘gone for a century’ might as well be ‘gone forever.’

So as for our reader’s first question, an answer: If the trees are boundary trees, an Iowa plaintiff has the right to get an injunction to save them.

Tomorrow: what if the trees aren’t on the boundary?

A lot of drama going on in Iowa, it seems… beyond whether the mass-produced Barksdale State Fair Cookies measure up Virginia’s original.

Musch v. Burkhart, 12 L.R.A. 484, 83 Iowa 301, 48 N.W. 1025, 32 Am.St.Rep. 305 (S.Ct. Iowa, 1891). Musch lived next to Burkhart in rural Black Hawk county. His house, barn, and other buildings are on the northwest corner of his property. Burkhart’s south boundary line is the north boundary line of Musch’s place.

About 20 years before, Jeffers — who owned the land before Musch — planted a line of cottonwood trees for about 500 yards along the north boundary of his land. The trees had grown to a height of from 30 to 60 feet, and their trunks had diameters of from 1 to 2 feet. The average space between them is about three feet. Musch attached barbed wires to the north side of the trees, making a wire fence. Musch used the fence to contain his cattle and relied on the trees as protection from storm and winter winds to his buildings and stock.

Burkhart threatened to cut the trees down. He claimed he and Musch had an agreement to maintain a common fence, but that the trees had thrown out roots extending for many feet into his land; that by reason of such roots, and the shade of the trees, a strip of his land 50-65 feet wide, immediately north of the trees, was unproductive. Burkhart argued the trees were of no value to Musch and that he had a right to remove them. What’s more, Burkhart argued that Musch had cut down some of the trees originally planted there, and he should have a right to do the same.

The trial court found that the trees had value to Musch, but that their roots had damaged Burkhart. Clearly, they stood on the common boundary line. The trees were planted before Burkhart bought his land. The trial court wasn’t able to discern the nature of the agreement between the prior owners of the two tracts of land, but it nevertheless found for Musch, and enjoined Burkhart from cutting down the trees.

Burkhart appealed.

boundary151111Held: Musch was entitled to have the trees protected. The Court found that because the trees stood on and drew sustenance from both tracts of land, in the absence of a showing to the contrary, they were considered to be owned by the parties as tenants in common.

When one tenant in common destroys the subject of the tenancy, he is liable to the co-tenant for the damages he thereby sustains. A court, by injunction, may restrain one tenant in common from doing a serious injury to the common estate. While an injunction will not be allowed to restrain a trespass where damages are an adequate remedy, where the injury will be irreparable, an injunction is appropriate.

The Iowa Supreme Court held that the destruction of trees and shrubbery growing upon premises occupied by Musch would be, “in a legal sense,” an irreparable injury to him. The trees served to shelter and protect Musch’s buildings, and thus Burkhart could be enjoined from cutting them down despite the fact that their presence caused damage to his land.

– Tom Root

TNLBGray

Case of the Day – Friday, May 20, 2022

SHORT AND SWEET

There have been more than a few recurring themes in our posts over the past decade plus. Some of the most-repeated are (1) hire a lawyer when you should have one, such as anytime you feel the need to sue someone; (2) courts follow prior decisions – called stare decisis – so as to bring certainty to the law; and (3) the Massachusetts Rule has traditionally been the law of the land, and while that has been changing, it is still the “go to” rule in most places.

Alas, Virginia Scott is not one of our regular readers. Had she been back in 2010 (and yes, we were around then, when people were still surfing the Web with their Packard Bell 286s sporting 56K modems), she would have consulted a lawyer about the mess that trees belonging to her neighbor, Julie, were making in her yard. She would have told the lawyer that she wanted damages for the dropped leaves and twigs, and she wanted to be compensated for what she paid tree trimmers to cut the offending branches and roots back to her property line.

The lawyer would have said, “Nothing doing,” or words to that effect, which would have saved Virginia the cost and aggravation of trying a do-it-yourself lawsuit against Julie. As well as having her hat handed to her by the trial court and the court of appeals.

“But,” Virginia wailed, “the law is stupid. It should be changed.” Notably, that argument has worked some places – Virginia, Hawaii, North Dakota – but Virginia had no idea how to press for modification of the rule, and the Court was unimpressed.

At least the Court of Appeals kept is short and sweet. As we will be…

Scott v. McCarty, 41 So.3d 989 (Fla.App. 4 Dist. 2010). Virginia Scott owned property next to Julie McCarty’s place. Dr. Julie had some pretty lush trees – this being Florida, plants like to grow there – and eventually some of the branches were overhanging Virginia’s place, and the roots were intruding underground.

Virginia sued the Doc for the damages Julie’s trees caused her property, as well as for what it cost her to trim the branches back to the property line and dig up the intruding roots. Having apparently spent so much on damage repair and tree trimming, Virginia decided to save money on a lawyer. She represented herself.

The trial court dismissed her complaint forthwith, citing the Florida common law rule that “a possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner’s own expense, any encroaching tree roots or branches and other vegetation which has grown onto his property.”

This rule not seeming right to Virginia, she appealed.

Held: Virginia’s case was properly dismissed. The Court of Appeals said that the reason for Florida’s common-law rule “was that it was wiser to leave the individual to protect himself than to subject the other to the annoyance of actions at law which would likely be innumerable.”

On appeal, Virginia acknowledged that the common-law rule, first adopted in the 1987 Florida appellate case Gallo v. Heller, was the prevailing law, but she asked the Court to “take a different course.” The Court refused to do so, saying that “the Gallo view is the predominant view in the country… [and] departing from the precedent would invite further litigation between neighbors on this issue, which as a public policy matter should be avoided.”

– Thomas L. Root

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