Case of the Day – Monday, November 19, 2018


Only in California could a tree-trimming case end up as a free speech issue.

bureaucracy140923Our regular readers know that good old-fashioned Massachusetts Rule self-help is available to any homeowner seeking to protect life and property from encroaching trees. Today, we look at what happens when good old-fashioned common law self help runs into bureaucracy.

The Dilbecks wanted to add a second story to their house, but their neighbors’ oak tree had extended its branches so close to the Dilbecks’ place that they had to be trimmed back in order to make room. No problem, right? We all know that self-help is available to the Dilbecks anywhere in California. Sure, but it turns out the Los Angeles isn’t just anywhere. In LA, oak trees are “protected,” and before trimming the oak, the Dilbecks had to get a permit from the County. And the County wouldn’t issue a permit unless the tree’s owner signed on to it.

So much for self-help. The Dilbecks sued, asking that the County be ordered to issue the permit and that their neighbors be found liable in trespass for the tree (the theory being that the neighbors let the branches intrude over the Dilbecks’ lawn). And here’s where it got even more complicated. California has a statute addressing litigation known as “strategic lawsuits against public participation,” the so-called anti-SLAPP statute. This mouthful with the catchy name is intended to stop oppressive lawsuits intended to keep people from exercising their rights to free speech. There’s a whole cottage industry in the Golden State surrounding SLAPP actions. And as with a lot of other good ideas (such as RICO), the anti-SLAPP statute is another tool in the canny lawyer’s arsenal, something else with which to bludgeon a plaintiff.

Here, the neighbors complained that the Dilbecks were trying to force them to petition the County to let the tree get trimmed, and the suit should be thrown out as violating the anti-SLAPP statute. The trial court refused dismiss the action. The Court of Appeals agreed, holding that the Dilbecks weren’t demanding that the neighbors do anything. They were asking the County to do something, and they were suing the neighbors for trespass because of the tree. California law would let them collect money damages if the encroaching tree was a nuisance (Bonde v. Bishop held as much). So whether the Dilbecks win on the merits or not, the action was not a SLAPP suit, and it wouldn’t be dismissed.

Oaktree140923Whew! Makes you long for the simple, ol’ Massachusetts Rule… no permits, no lawsuits, just an aggrieved landowner with a chainsaw.

Dilbeck v. Van Schaick, Not Reported in Cal.Rptr.3d, 2007 WL 2773986 (Cal.App. 2 Dist., Sept. 25, 2007). The Dilbecks owned a place in Altadena, next door to the Van Schaicks. The Dilbecks planned to remodel their home by adding a second story. However, the branches of an oak tree located on the Van Schaicks’ property have grown over the Dilbecks’ home, rendering the Dilbecks’ plans unworkable unless the tree was pruned.

Oak trees are protected by California state law. The County of Los Angeles had adopted regulations to preserve and protect oak trees, requiring a permit to cut down mature oak trees or to prune their larger branches. The Dilbecks applied to the County for a permit, but the County had not approved it because it took the position that only the owner of the tree may obtain a pruning permit, and the Van Schaicks had not acquiesced. So the Dilbecks brought suit against the Van Schaicks and the County for declaratory relief and trespass. They alleged the oak tree growing on the Van Schaicks’ property had encroached onto the their land and interfered with their ability to add a second story to their home. The suit said the County refused to grant the permit because the Dilbecks were not the owners of the tree. The trespass cause of action alleged the oak tree branches were encroaching on the Dilbercks’ land, and asked for an order permitting the Dilbecks or an independent contractor to prune the tree.

The Van Schaicks filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, asserting that the complaint was based on their refusal to support the Dilbecks’ oak tree permit application and therefore attacked their right to free speech. They further argued that the trespass claim lacked merit because the law forbade the Van Schaicks to prune or cut the offending oak tree branches.

The Dilbecks contended that their action did not fit within the definition of a SLAPP suit and that, in any event, their complaint had merit. They denied that the complaint sought to compel the Van Schaicks to support or sign the oak tree permit. The trial court denied the Van Schaicks’ motion to strike, finding that they had not demonstrated that they were being sued for engaging in protected activity. Instead, the trial court held, they were just being sued for trespass. The Van Schaicks appealed the court’s denial of their motion to strike.

Freespeech140923Held: The Dilbecks’ complaint did not arise from acts undertaken in furtherance of the Van Schaicks’ rights of free speech or petition, and the Van Schaicks’ attempt to get it dismissed was rejected. The California Legislature enacted the anti-SLAPP statute in response to its perception that there has been an increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition for the redress of grievances. The anti-SLAPP statute provides a procedure for the court to dismiss at an early stage non-meritorious litigation meant to chill the exercise of free speech rights. The statute requires the trial court to engage in a two-step process when determining whether a motion to strike should be granted, first, whether the defendant has made a threshold prima facie showing that the acts of which it complains were ones taken in furtherance of its constitutional rights of petition or free speech in connection with a public issue, and two, whether there is a probability that the plaintiff will prevail on the claim.

The issue here, the Court said, was whether the complaint arose from conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. The Van Schaicks contended the suit sought to compel them to petition the County for discretionary relief from the oak tree statutes. The Court disagreed, holding that their characterization of the complaint was wrong. In fact, the Court said, the suit merely sought to compel the County to review the merits of the permit application submitted by the Dilbecks, and requested an order permitting the Dilbecks or their arborist to prune the tree. The complaint did not seek to compel the Van Schaicks to become personally involved in the permit application process in any way, and thus did not violate the anti-SLAPP statute.

The Van Schaicks contended that the complaint would indirectly force them to speak because a judgment in favor of the Dilbecks on the trespass action would necessarily require the Van Schaicks to petition the County of Los Angeles for discretionary relief from the Oak Tree statute. The Court rejected that argumnt, finding that the Van Schaicks’ position was based on the incorrect assumption that the only remedy available for trespass was injunctive relief. However, California law held a party over whose land overhanging branches extend may either cut them off or maintain an action for damages and abatement, as long as he or she can prove the branches constitute a nuisance.

The prospect that the Van Schaicks could eventually be faced with an order to abate the nuisance and could do so only by seeking a permit from the County did not transform the Dilbecks’ lawsuit into a SLAPP action. The Court ruled that the thrust of the Dilbecks’ complaint was the injury caused to their property by the encroaching tree, not the Van Schaicks’ decision to refrain from involvement in the permitting process. The permit, although obtainable only by petitioning a governmental entity, principally concerned and affected the remodeling of a private home by private individuals.

– Tom Root


And Now The News …

Salt Lake City, Utah, Tribune, November 18, 2018: The juniper mystery: Why is a tree that’s supposed to withstand drought suddenly dying in southern Utah?

The Utah juniper is considered the West’s most drought-tolerant and resilient conifer, withstanding even the worst dry spells while nearby pinyon and ponderosa drop their needles and die. So it was with some alarm for Kay Shumway, a retired science educator from Blanding, when he noticed yellowing among the juniper on southeastern Utah’s Moki Dugway last spring, a time of year when these trees’ needles should carry a vivid shade of green as they ramp up their photosynthetic capacity. “During summer, the dying junipers were such a bright yellow color. It was easy to see. You could look out over the landscape and see thousands of those dying trees. Now a lot have dropped their needles and are becoming a skeleton,” said Shumway, a former botanist who has kept himself busy as a nature photographer since retiring from the College of Eastern Utah 20 years ago. “They are dying. They are not going to come back [even if they get] some moisture. He frequents the Moki Dugway on the southern tip of Cedar Mesa, which provides photogenic views of the buttes and canyons falling toward the San Juan River in what was initially part of Bears Ears National Monument. Shumway has since documented dying juniper in other parts of San Juan County, which is in the midst of a severe drought. “My first reaction was the drought was causing it. The interesting thing is the pine trees, which are the most susceptible to drought, aren’t affected. They are still green and healthy,” Shumway said. “There were more and more of [the juniper] turning yellow. By July, I went all over the county, like Mustang Mesa and Alkali Ridge [east of Blanding]. Lo and behold, it was happening there, too…”

Pittsburgh, Pennsylvania, KDKA-TV, November 16, 2018: Winter storm damage keeping tree service crews busy

The sights and sounds after the storm… power saws and tree shredders. Michael Cashdollar, the owner of Keystone Tree Techs, says calls began coming in around 10:30 p.m. Thursday and they haven’t been able to keep up with them. Edward Hill says he heard a loud thud around 10 a.m. Friday; turns out, it was a fallen tree in his backyard. “Lots of ice in these trees and I’ve got another old one back there dropping branches, hope no more fall,” he said. Cashdollar says they didn’t expect the storm to cause this many trees and branches to fall. This process isn’t cheap and insurance doesn’t cover it unless there is property damage.“You are looking at anywhere from $250 is usually the minimum for tree care, anywhere up to, we’ve done jobs where we’ve had to bring in cranes and pick them off of houses and you’re upwards of $4,000 or $5,000 and even higher. It just depends on the job and the risk and the equipment you need to accomplish your task,” Cashdollar said…

New York City, Wall Street Journal, November 16, 2018: I came, I saw, I stunk (but they were great)

It is cold and drizzly, in the way you expect a cold and drizzly Vermont afternoon in late autumn to be, and in a wet field behind the forestry science lab, I am watching college students happily throwing axes. When an ax strikes its wooden target, it emits a satisfying thunk, and the students whoop with applause. Thunk. Thunk. Thunk. These college ax-throwers, as it turns out, are frighteningly good. I want them on my side in a horror movie. This is a practice for the University of Vermont Woodsmen—a club team that competes in burly events involving saws and axes and other timber items that city slickers like myself should use only under heavy supervision, or not at all. I’m here for the third installment of Go Away Jason, at the recommendation of Journal reader Kate Fannin, who suggested the visit because Fannin’s niece, Sydney Wolff, is a Woodsmen co-captain. That’s right: these Woodsmen are co-led by a woodswoman. Wolff meets me in the team’s shed before practice starts. A 21-year-old senior majoring in health science, she’s dressed in UVM green and wearing a baseball cap that reads NASTY WOMAN. She tells me she never imagined going to school all the way up here—she’s from San Antonio, and grew up around ranching, livestock, camping, and riflery. (“One of my friends recommended UVM, and I said ‘Are you kidding? There’s only cows and maple syrup up there!’”) One day on campus, she was in the student center and ran into a bearded dude wearing jean shorts and a flannel. “He’s just got this ax propped up on this log of wood,” Wolff recalls. This was her introduction to the Vermont Woodsmen. “I was like, ‘This is the coolest thing…’”

Portsmouth, UK, The News, November 18, 2018: Man hit with £45,000 bill after being taken to court for cutting down trees in his own garden

A man has to pay more than £45,000 for cutting down trees in his garden that were protected by tree preservation orders. Fareham Borough Council prosecuted Simon Woodhams after he illegally caused or permitted the cutting down, uprooting or wilful destruction of 24 trees at his property in Sarisbury Green. Mr Woodhams was found guilty of the offences at Portsmouth Magistrates’ Court on November 7 and was fined £25,000. He was also ordered to pay £20,000 in costs to the council, plus £300 in court surcharge. Council officers had met at Mr Woodhams’ property in 2015 to discuss the management of the trees and development of the house. An application was received by the council for permission to crown lift seven trees, reduce 17 trees, coppice one tree and fell 36 trees which was granted… 

Seattle, Washington, KUOW-TV, November 15, 2018: In season of Christmas peace, there’s a serious tree-marketing war over your family

The companies behind each type of tree are going at it with ad campaigns online, trying to convince you that their tree is better. In one video, upbeat tinkley music and fresh-faced American tree farmers chirp: “That smell, that wonderful fresh Christmas tree smell. That beautiful scent that fills the house. Smells like Christmas — that can’t be manufactured.” The fresh Christmas tree farm industry will spend more than $1 million this year asking you to “Keep It Real,” sort of like the ubiquitous “Got Milk” campaign of the 1990s and 2000s. These online videos are developed and funded by tree growers, as part of a program overseen by the U.S. Department of Agriculture. Casey Grogan is one of those growers in Oregon, about an hour south of Portland. His crews are working to cut and ship about 60,000 Christmas trees in 10 days from his Silver Bells Tree Farm…

Jacksonville, Florida, WTLV-TV, November 16, 2018: Viewer complains about dangerous tree growing under mobile home

Countryside Village Mobile home park is a very large complex. It is a mixture of those who own their mobile homes and those who rent. During an I’m Telling Ken Community session, James Diaz and Debbie Spencer came with a complaint about Countryside Village. “Code enforcement came out and she said yes, this tree needs to go,” said Debbie Spencer. Spencer owns her manufactured home, but rents the lot. She said the rent varies because utilities are included but it averages about $600 a month. “I have lived there since 2015 and I have never been late on the rent,” she said. Spencer said in 2016 she filed a complaint with the park management about the pine trees and the danger they pose to her home. “No one has stepped inside to see the danger,” said James Diaz. “If you put a bearing on the floor it will roll from one side to the other.”  The tree’s root system has damaged the driveway, it is cracked in the middle, and it has caused the foundation of their mobile home to shift. “We couldn’t get out of the back door,” said Spencer. “Which code enforcement said if we did not correct they would condemn the property…

Salamanca, Spain, DICYT, November 15, 2018: Tropical trees in the Andes are moving up — toward extinction

In the most comprehensive study of its kind, an international team of scientists led by University of Miami biologists has found that tropical and subtropical forests across South America’s Andes Mountains are responding to warming temperatures by migrating to higher, cooler elevations, but probably not quickly enough to avoid the loss of their biodiversity, functional collapse, or even extinction. Published November 14 in the journal Nature, the study confirmed for the first time that, like many other plant and animal species around the world, trees from across the Andean and Amazon forests of Colombia, Ecuador, Peru, and northern Argentina have been moving upward. But unlike species from the world’s temperate or boreal forests, which are far more accustomed to dramatic seasonal shifts in temperature, tropical trees are running into environmental roadblocks at higher, cooler elevations that are thwarting their migration and threatening their survival. “In the Andes, the ecosystems can change very fast and very dramatically, for example, from sunny and dry premontane forests to sopping-wet cloud forests. These changes, called ecotones, appear to be blocking species migrations,” said lead author Belén Fadrique, a Ph.D. candidate who designed and carried out the study with her advisor, Kenneth J. Feeley, UM’s Smathers Chair of Tropical Tree Biology. “These ecotone barriers make it hard for plants to relocate their populations–and if they can’t relocate, they will go extinct…”

Dayton, Ohio, Dayton Daily News, November 15, 2018: 5 tips for using a chainsaw safely for downed trees in winter

With downed trees across the region, people are cutting down trees and branches in their yards and on streets. Before you pull out the chainsaw, remember there are some safety tips you need to follow. A chainsaw has more power per inch than most other tools, which requires extra attention to safety, Lowe’s advises. Here’s what you need to know for cutting down trees: 1. Use protection: Always wear protective clothing and gear including leg protection, a hard hat, gloves, eye protection, boots or shoes with steel toes, Lowe’s advises. 2. Full speed: Whether you’re cutting down a tree, cutting a fallen limb or trimming small, low branches from a tree, run the chainsaw at full speed. It’s not only faster, it’s safer. Running at high speed reduces the chance of the chain binding and causing the chainsaw to fly back at you, according to Sears…


Case of the Day – Friday, November 16, 2018


The Griswolds (no, not those Griswolds) worried about the heavy limbs of a century oak overhanging their place. The arborist they hired got permission from the aged neighbor for his crew to come onto her property to trim the branches overhanging the Griswolds.

Seems pretty clear cut, a garden-variety Massachusetts Rule situation, complicated only by the need to use the neighbor’s place to gain access. What could go wrong?

Whatever the grandmotherly Clare thought arborist Adrian meant by saying he was going to trim the oak, cutting limbs off was apparently not what she had in mind. Once the chainsaws started up, she suddenly concluded that she never gave Adrian permission to be on her property, and anyway she had asked Adrian to give her the wood from the branches.

Huh? It’s kind of puzzling. If Clare had denied Adrian permission to use her property to trim the tree, how could she could have asked him for the wood at the same time. It confused the jury, too, which found permission must have been given, and, necessarily, concluded that Clare Beals could not be believed.

But seriously, wouldn’t a signature on an approval form obviated six years of litigation? A cautionary tale for our time…

Beals v. Griswold, 468 So.2d 641 (Louisiana App. 4th Cir. 1985). The Griswolds lived next to Clare Beal, who had a beautiful, full 130-year old oak tree in her side yard. Limbs from the tree overhung the Griswolds’ place. They hired Adrian’s Tree Service, Inc., to trim the overhanging limbs. While the trimming work was in progress, Clare protested excitedly and the work was stopped.

Clare sued the Griswolds and Adrian’s, but the jury found for the defendants. Clare appealed, complaining that the jury should have found the Griswolds and the tree service to have committed trespass for entering her property to perform the tree trimming without her permission; conversion, for discarding the severed tree limbs despite Clare’s request that they be given to her; and negligence for failing to cut the tree according to Louisiana Horticulture Commission standards.

Held: The jury’s finding for the Griswolds and Adrian’s Tree Service was upheld.

Trespass in Louisiana is defined as any unlawful physical invasion of the property of another without the other’s consent. Here, the thrust of Clare’s trespass action is that the Griswolds unlawfully entered her property without her permission to gain access to the branches overhanging the Griswold residence. Although everyone agreed that the tree service’s workers walked in Clare’s front yard and climbed the tree from her property, the crucial issue was whether she consented to their entry. Although Clare vehemently denied that she had given her consent for the work to either the tree surgeon or the Griswolds, her version of the events was in direct conflict with the Griswolds’ testimony.

Arborist Adrian Juttner testified he had obtained Clare’s oral permission to prune when he inspected the property with the Griswolds to prepare a cost estimate for the job. Adrian said that after discussing the matter with the Griswolds, he approached Clare, walked outside in her yard with her, and pointed out the limbs he was going to cut. She said “that was all very fine and good with her.” The Griswolds corroborated this, testifying they had discussed with Adrian the need for Clare’s permission with Juttner, who then walked to Clare’s house, and later returned to tell them he had received it.

There was adequate evidence in the record for the jury to find that Clare had consented to Adrian’s entry onto her property.

But Clare complained that oral approval aside, a trespass occurred because she gave no written permission to enter her property. In support of this argument, plaintiff relies on regulations of the Louisiana Horticulture Commission requiring every licensed tree surgeon to enter into a written contract with the property owner employing him to engage in tree surgery service and to obtain written permission from the owner before using “climbing irons” to climb the tree.

The Court said the regulations Clare relied on appear to require the tree surgeon to enter into a written contract with the property owner employing him. They do not require written consent from the adjoining land owner. Here, Adrian’s Tree Service gave the Griswolds a written memorandum, and that was sufficient.

“Conversion” in Louisiana is a distinct act of dominion wrongfully exerted over another’s property inconsistent with or in denial of the owner’s rights. Clare complained the jury erred in failing to award damages for Adrian’s conversion of the 800 lbs. of wood cut from the tree.

Clare testified that Adrian’s Tree Service disposed of the felled limbs and refused her request to retain them as firewood. Although Adrian acknowledged that Clare Beals had asked about firewood after the cutting had occurred, he testified that she was completely “irate and irrational” at the time of the incident and that he was not willing to expend the labor to chop up the branches, which were lying in the Griswolds’ driveway, and deliver the wood to Clare’s property. No evidence showed that any employee of Adrian’s Tree Service denied or refused to allow Clare access to remove the cut wood herself. Under the circumstances, the Court concluded that Clare had access to the wood and that Adrian merely refused to haul the wood to her. Adrian did not wrongfully exert dominion over the branches, especially in light of the evidence that Clare had earlier given her permission to prune the tree without mentioning her desire to retain the branches.

The Court further noted that the main thrust of Clare’s claim and evidence concerned her cause of action in trespass. Evidence of conversion was sketchy at best, the Court said.

Finally, Clare proffered testimony by two tree surgeons to support her argument that the tree was not trimmed as required by Horticultural Commission standards of tree pruning. In contrast to their views, however, the Griswolds’ tree expert testified that no damage was done to the tree in this case. The Court said photographs and testimony led to a conclusion that the tree is intact and healthy. Furthermore, the Court found, stumps remaining from the trimming may very well have resulted from plaintiff’s own abrupt halting of the work in progress on the morning of the incident.

The jury’s judgment that there was no negligence was supported by the evidence.

– Tom Root


Case of the Day – Thursday, November 15, 2018


Actually, Buzz, this time it is personal.

Actually, Buzz, this time it is personal.

When most people think about lawsuits, they focus on who won and who lost. But as important about issues of liability – who owes whom and why – can be question of how much the who owes the whom.

The win-loss is important, but ask the perhaps-over-rated Ohio State Buckeyes football squad: even when you win, if the final score isn’t decisive enough, it can cost you style points.  Woody Hayes once was asked why he went for a 2-point conversion when he was leading Michigan 48-14 late in the 4th quarter.  His terse response:  “‘Cause I couldn’t go for three.”

So often, we don’t just talk about liability – we talk about how the damages are figured, too. A case we worked on a few years ago shows us why that’s important.

A tree service company sent a crew to an address to remove a maple on the front lawn. Instead of going to 1553 Main Street, the crew mistakenly went to 1533 Main Street. That house, coincidentally, also had a maple tree in its front lawn, a magnificent and healthy specimen that the homeowner loved very much.

You can guess what happened. While the homeowner was obliviously toiling in his office 10 miles away, the tree cutting crew made short work of the beautiful maple. When the owner arrived home that evening, his arboreal pride and joy was nothing but a stump and some sawdust.

There was no question about liability: the tree service company goofed. But how much to pay for the tree? Stumpage value makes no sense. The homeowner wasn’t raising the tree to sell the timber. Replacement cost for the tree might be a fairer measure. However, the largest tree that could be planted for the homeowner – with costs of a few thousand dollars – will not begin to replace the lost tree.

In our homeowner’s case, the measure of damages we finally settled on was a real estate appraisal that concluded that the value of the home had been lessened by about $17,000 by the removal of the mature tree.

Today’s case considers what might happen if the removal of the trees does not diminish the value of the property. A man named Chung bought a parcel of land for a home. When he had a tree cutting service clear the land for construction, the cutters crossed the line onto Rora Park’s land, and removed about 560 trees. The decision only implies this, but it appears that the “accident” might not have been accidental at all. Rather, Chung may have steered the cutters in the wrong direction in order to improve the view from his land.

Whatever the reason, the liability was certain. The problem arose because removing 560 trees didn’t really decrease the value of Rora Park’s land at all. Hard to believe, but then, Alaska is a pretty big place. So Ms. Park demanded restoration damages, payment of the cost of restor-ing the property by planting new trees. That would have been about $400,000. The trial court granted damages equal to the cost of replanting 50 trees, but the Alaskan Supreme Court reversed.

Chief Justice Oliver Wendell Holmes, Jr.

       Chief Justice Oliver Wendell Holmes, Jr.

It seems that if the wronged property owner doesn’t have a “reason personal to the land-owner for restoring the trees,” an Alaskan court won’t use that measure of damages. In this case, Ms. Park waxed eloquent about how that she had once had cancer, and “this natural beauty of my yard is [a] healing spot for me, and . . . after work I come by, see my property and see the natural beauty and the trees and all that[. W]hen I [saw] that all cut out it just [made] me very – [it] just [broke] my heart, and then very angry . . .” Unfortunately for her, she later tried to downplay how often she visited the property.

The trial court wouldn’t let her have it both ways, and found that she hadn’t justified restoration damages. But, apparently troubled by Ms. Parks’ neighbor getting away with a fast one, the trial court nevertheless awarded her restoration damages anyway. It may have seemed like justice, but it wasn’t the law.

The Alaskan Supreme Court said that restoration damages could be awarded only if Park had a “reason personal” for restoring her property. Because she failed to prove she had such a reason, she ended up being entitled to pretty much nothing.

There’s something not right about letting a slippery character like Chung pull a fast one, cut down 50 of the neighbor’s trees for a better view, and not have to pay damages for it. It reminds one of a quotation attributed to Oliver Wendell Holmes, Jr: This is a court of law, young man, not a court of justice.

Chung v. Park, 339 P.3d (Sup.Ct. Alaska, 2014). Landowner Rora Park sued her neighbor Christopher Chung for trespass, alleging that he cleared about 50 trees from her property without permission. The trial court found that the tree cutting did not diminish the property value and that there was no reason personal to the landowner for restoring the trees. But the trial judge nevertheless awarded damages equal to the cost of restoring 50 trees on the property.

Ordinarily, a landowner damaged by a trespass may recover either the loss in property value or reasonable restoration costs. But restoration costs are inappropriate if they are disproportionate to the loss in property value, unless there is a reason personal to the landowner for restoring the land. We thus conclude that we must vacate this award.

Chung hired a company to build the foundation of his new house. As part of that project, the contractor agreed to clear trees and other vegetation from the lot. Aerial photographs indicate that some trees were removed from Park’s property near the border of Chung’s lot between August 2008 and the end of September 2008, and more trees were removed between 2008 and 2009. The trees appear to have been removed more or less directly behind the house built on Chung’s property. Timber debris, presumably from the cleared trees, was also discovered buried on Park’s property. An expert witness hired by Park estimated that 562 trees were cleared from about a third of an acre of Park’s property. He calculated that it would cost over $400,000 to restore the property to its former condition. But Chung’s expert witness testified that the market value of Park’s property was likely not affected by the removal of trees.

trespasstimber150126The trial court found Chung liable for the trees removed from Park’s property. Although the court acknowledged that Park had not proved that the tree cutting reduced the value of her property and found that Park had no reason personal for replacing the trees, it nevertheless concluded that “it would be reasonable both aesthetically and legally to award damages that would permit replacement of trees on that first portion of the lot that can be clearly shown to have been scraped clean as of September 27th, 2008.” The court therefore awarded Park the cost of replacing 50 trees, $23,500. Because the court found that Chung’s trespass was intentional, it awarded treble damages under AS 09.45.730.

Chung appealed.

Held: The Alaska Supreme Court vacated the damage award. It held that a party who is injured by an invasion of his property not totally destroying its value may choose as damages either the loss in value or reasonable restoration costs. But reasonable restoration costs are an inappropriate measure of damages when those costs are disproportionately larger than the diminution in the value of the land and there is no reason personal to the owner for restoring the land to its original condition. A reason personal is one that is “peculiar or special to the owner.” The Court said “We require the landowner to demonstrate a reason personal because we believe it indicates circumstances where the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.”


     Ms. Park tried to sell the court that the trees were her “personal healing spot.” New wave … or just trying to pump up her damages?

During trial in this case, Park tried to establish a reason personal  for replacing the trees that Chung had allegedly removed. She talked about having had cancer, and relying on her property as a “healing spot for me.” But later in the trial, she downplayed her visits to the property. As a result, the court found that Park had not established a reason personal for restoring her property.

According to the unrebutted testimony of Chung’s expert witness, the removal of trees from Park’s property did not appreciably affect the value of her property. The trial court accepted that testimony in its findings of fact. Therefore, the Supreme Court concluded, the damages the trial court awarded – $23,500 before trebling – were disproportionate to the diminution of the property value. The Court said that the trial court could award restoration damages only if it found that Park had a reason personal for restoring her property. Because it did not, the trial court’s award of compensatory damages that exceeded the diminution in the market value of Park’s property was not appropriate.

– Tom Root


Case of the Day – Wednesday, November 14, 2018


My wonderful and sainted Latin teacher, the late Emily Bernges of Sturgis, Michigan, would have shaken her head in dismay, correcting me that I should say, Cogito, ergo sum.

Non hoc tempus, Mrs. Bernges. That was that Descartes fellow who said that. Today’s case departs from his admittedly excellent philosophical proposition, being more in the vein of, “I think it’s mine, therefore, it is mine.” The facts are kind of pedestrian: two rectangular home lots, with the owner of one, Dolfo Otto, suffering the real estate version of “mission creep.” His mowing and trimming and planting expanded incrementally until what he thought was the boundary between the parcels had wandered several feet into the neighbors’ yard. Being a green thumb kind of guy, Dolfo planted a row of maples to mark what he thought was the property line. The trees served a boundary purpose, and Dolfo liked how they looked.

The neighbors changed over the years, and whatever institutional knowledge the earlier ones may have possessed as to the original property line was lost. So it was well over 20 years after the Cornells, the latest owners of the place next door, had a survey done. They discovered that the strip with the maple trees did not belong to Dolfo at all. Dolfo, surprised at the situation, dug in his heels, got a lawyer and sued to quiet title in his favor because he had adversely possessed the land all those years.

Belatedly trying to assert dominion over land he never knew he owned, neighbor Richard Cornell cut down Dolfo’s maples. This unwise escalation of the tension that already existed only threw legal gasoline on the fire. Courtroom hijinks ensued.

What I found particularly interesting about this case was that while mowing and general upkeep of a piece of property generally is insufficient to establish possession, the court found that Dolfo’s planting and nurturing four maple trees was more than enough to establish his possession over property to which he held no title. I guess that when your trees set down roots, so do you.

Otto v. Cornell, 119 Wis.2d 4 (Wis.App. 1984). Dolfo Otto owned a 50’ x 150’ lot next to a similar lot owned by Richard and Dorothy Cornell. Dolfo Otto had maintained a fence on what he believed was the southern boundary of his lot for many years prior to 1945. That year, he removed the fence and planted four maple trees to mark the boundary. Since then, Dolfo mowed and maintained the lawn around the trees and to the north.

The house next door was rented to the Wilsons in 1949. Their driveway was located close to the maple trees. When Mrs. Wilson hit one of the trees with her car and destroyed it in 1951, Dolfo replaced it.

The Cornells bought the next-door lot in 1963. After the land was surveyed 16 years later, the Cornells first realized that the true lot line between their lot and Otto’s lay some feet north of the line on which Dolfo had planted the trees. Dolfo refused to accept the survey results, and in 1980 he sued to establish his title to the property up to the tree line. A few months later, Richard Cornell cut down Dolfo’s four maple trees.

The trial court found that Dolfo had acquired the strip of land on which his maple trees had stood by advwrse possession, and awarded him damages for the destroyed trees.

The Cornells appealed.

Held: Dolfo had title to the disputed property, and he was entitled to punitive damages.

Dolfo based his claim to the disputed property on Wisconsin Ch. 893, Stats., which allows a person who has had uninterrupted adverse possession of land for 20 years to bring an action to establish title. Adverse possession under this section requires enclosure, cultivation, or improvement of the land, as well as physical possession that is hostile, open and notorious, exclusive and continuous for the statutory period.

“Hostility” means only that the possessor, in this case Dolfo, claimed exclusive right to the land possessed. The subjective intent of the parties is irrelevant to the determination of an adverse possession claim.

The requirement of continuity is satisfied by activities that are appropriate to seasonal uses, needs and limitations, considering the land’s location and adaptability to such use. The true owner’s casual reentry on the property does not defeat the continuity or exclusivity of an adverse claimant’s possession unless it is a substantial and material interruption and a reentry for the purpose of dispossessing the adverse occupant.

An adverse possession action can often devolve into a pissing contest …

Here, the Court found that the trial judge’s findings were sufficient to support its conclusion that Dolfo established title by adverse possession. The court found he had planted ornamental trees in 1945 and 1951 to establish the southern boundary of his lot; that at all times he claimed, maintained, and occupied the land around the trees; and that he posted a thermometer on one of the trees. The court found that the Cornells first became aware of where the boundary was located when the property was surveyed in 1979, and that Dorothy Cornell knew for 17 years before that Dolfo claimed the disputed property. The evidence showed that the Cornells never used the disputed property.

The Court of Appeals said Dolfo’s acts in planting the ornamental trees more than 25 years before the lawsuit and in maintaining the land around the trees since then constituted possession of the land by usual improvement, in the same manner a true owner might have manifested possession of land of this character and location. Regardless of his subjective intent in occupying the land – in this case, belief that he owned the property – Dolfo’s possession was legally hostile, open, and notorious.

As well, his possession was continuous and exclusive. The Cornells never tried to dispossess Dolfo until after he sued, and his adverse possession had been established. Although the Cornells testified at trial that they had used the property and were not aware that Dolfo claimed it until the lawsuit, they also admitted that they gave conflicting answers about the extent of their claim and their knowledge of Dolfo’s claim in their pretrial depositions. Apparently the Cornells raked leaves and their children played on the disputed strip from time to time, but these uses were casual, the Court said, and it was unnecessary for Dolfo to be belligerent if his neighbors happened to step across a particular line.

The trial court awarded Dolfo the replacement cost of maple trees. The Cornells argued on appeal that damages could only be assessed based on the diminished value of Dolfo’s land as a result of the destruction of the trees.

The evidence indicated that the trees were planted in a row on a small residential lot. Dolfo maintained the lawn around the trees, and when one was damaged he replaced it. The trees could be ornamental even though they marked a boundary. Had his sole purpose been to mark a boundary, Dolfo could have replaced the fence that existed before the trees, or he could have installed metal stakes or monuments.

The Court cited a Wisconsin Supreme Court decision in which the high court said, “An owner of real estate has a right to enjoy it according to his own taste and wishes… yet the arrangement… of buildings and trees selected by him might be no considerable enhancement of the sale value of the premises… and the disturbance of that arrangement, therefore, might not impair the general market value… While the owner may be deprived of something valuable to him… he might be wholly unable to prove any considerable damages merely in the form of the depreciation of the market value of the land. The owner of property has a right to hold it for his own use as well as to hold it for sale…”

The same applied here. The diminished land value rule is not exclusive. Rather, Dolfo is entitled to have his land returned to the configuration which suited him.

The trial court determined that the property lane went through the trees. The Cornells argued that they were entitled to credit for half the value of the tree, but the Court rejected the claim. “Regardless of where the trial court set the boundary after the trees were cut down,” the Court of Appeals said, Dolfo “possessed both the trees and the land around the trees since the time he planted them.” The trees belonged to Dolfo, and he was entitled to all the damage done to them.

– Tom Root


Case of the Day – Tuesday, November 13, 2018


Hawkins v. McGee - the case of the hairy hand

Hawkins v. McGee – the case of the hairy hand

There’s always a tension between the value that a lover of the land places on his or her trees and the price tag affixed to those same trees by the green-eyeshade crowd of financial experts testifying in some cold courtroom.

The general rule is that the measure of damages when trees are wrongfully cut should be the difference between the value of the property before the trees were removed and the value after the trees are taken down. Fans of the ol’ case of the hairy hand (Hawkins v. McGee) from law school remember the general diminution of value concept. Notwithstanding this staple of first-year contracts class, courts in many states have carved out exceptions to the rule for situations just like today’s case.

The problem usually arises when only a relatively few trees of limited commercial value are removed or destroyed. In today’s case, an Episcopal Church lost 22 small trees when a contractor dumped too much fill dirt – taken from a road construction project – around their bases. The Church proved in court that replacing the trees — a couple cherry trees and a score of red oaks — would cost just over $17,000. But the trial court threw the case out, because it believed that the replacement costs weren’t relevant. Rather, the trial court said, the Church was obligated to prove how much less its land was worth with the trees gone.

The "tree volcano" ... pile dirt around the base, and suffocate the sapling.

The “tree volcano” … pile dirt around the base, and suffocate the sapling. The Church lost 22 trees this way.

Holy birch bark! The problem was that the worth of the property hadn’t fallen much, it being close to a road and of limited use (there’s not that much of a market for church properties). But the Church didn’t want the diminution in property’s value for its collection plate: it wanted its trees back. The Minnesota Supreme Court had mercy on the Church, holding that where the trees served a function that was primarily aesthetic, replacement cost was a fair calculation.

Sometimes justice can’t be done by using the cold, analytical diminution-of-value approach. Occasionally, the wronged owner just plain likes the trees that had been taken, and who’s to say that because the loss may be measured psychologically rather than economically, the damaged party shouldn’t be compensated. We always thought that in such cases, the wrongdoer should be held to lose much of his or her moral standing to complain about how injured the injured party is. In this case, the Court said, that the owner’s enjoyment of the trees might not be quantifiable in a real-estate-value analysis just didn’t matter. (The second case we studied in law school, Peevyhouse v. Garland Coal & Mining Co., has always illustrated the mischief that can be done when a court ignores the aesthetic expectations of the wronged party).

The decision is necessary in the world of tree law, because otherwise, too many cases would founder on the rocks of damages: too many malefactors could cut down too many trees, and the likely penalties, even with treble damages available, would not deter the conduct.

Rector, Wardens & Vestry of St. Christopher’s Episcopal Church v. C.S. McCrossan, Inc., 306 Minn. 143, 235 N.W.2d 609 (Sup.Ct. Minn. 1975). When the Minnesota Department of Highways took about 8/10ths of an acre from St. Christopher’s to enlarge the intersection, the church lost its existing access and part of its parking area. The Rector hired C.S. McCrossan to construct a new parking space and access road.

irrelevant150123A grove of trees was located at the north end of the lot. In the process of grading, McCrossan dumped fill around the base of the trees, which the church argued caused the trees — two black cherry trees and twenty red oaks — to suffocate and die. The church’s expert testified that because of the variety, size, and condition of the trees, they had a total value of $17,267.

The church asserted that the grove of trees not only acted to screen the area from heavy traffic on two sides, but also gave the area a natural, pleasing, aesthetic, wooded atmosphere. The trial court directed a verdict for C.S. McCrossan on ground that church failed to prove damage based on diminution in value of real estate.

The church appealed.

Held: The decision was reversed. The Minnesota Supreme Court ruled that the proper measure of damages for negligence in suffocating the trees was the replacement cost of trees rather than merely the loss of value of the real estate, notwithstanding the inability of the church to prove that destruction of trees diminished the value of the property as a whole. The replacement cost of trees that have an aesthetic value to the owner as ornamental and shade trees or for purposes of screening sound and providing privacy may be considered in determining damage incurred from the destruction of the trees, to extent that the cost is reasonable and practical.

Although evidence may be presented in rebuttal that the effect on the value of land as a whole is minimal, it is for the jury to balance elements of damage in arriving at a just and reasonable award.

– Tom Root