Case of the Day – Wednesday, May 25, 2022


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.


And Now The News …

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…, 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 – Tuesday, May 24, 2022


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


Case of the Day – Monday, May 23, 2022


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


Case of the Day – Friday, May 20, 2022


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


Case of the Day – Thursday, May 19, 2022


There’s a great old adage in the law that goes something like “When your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on the law and the facts, pound on the table.” Today’s case is one in which an inventive lawyer tried just that, albeit without much result.

We’ve worked a lot with the old Restatement rule, now on its way out, that a landowner is not liable for physical harm caused to others outside of the land by a natural condition of the land. That rule, when it was a rule, came with a proviso. If the person possessing the land was in an urban area, he or she was liable for physical harm resulting from failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

In today’s case, a tree in the lush tropical paradise fell onto a road and crushed a ’77 Mercedes – a pretty nice ride – leaving the plaintiff’s lawyer with a problem. The evidence showed the collapsed tree was rotten, all right, but that none of the decay was visible from the exterior. So arguing that the tree’s owner should have inspected the tree was a loser, because even if he had done so, the owner would not have seen the decay and recognized the danger.

The plaintiff’s lawyer recognized that to win this one, he’d have to move the cheese on the defendant. So he quickly rolled out a second argument: Even if the common law (and more specifically here, the Restatement on Torts) did not impose liability without fault (that is, strict liability), the court should impose it here simply as a matter of public policy. “Public policy” is a fancy way of saying something should or should not be done because… well, because it is just common sense. So, the argument went, it did not matter if tree owner Al Gerard followed the rules as they existed now, because the rules needed to be changed retroactively, all the way back to the day the tree fell.

It’s sound public policy, the plaintiff’s lawyer argued, that is, good common sense.

“Common sense?” the Court asked incredulously. If urban owners are strictly liable for any tree that falls, it responded, then their reaction to the rule will simply be to cut down all of their trees. And where would be then? Sorry about the Mercedes, the Court said, but we’d be even sorrier about the trees.

Marrero v. Gerard, Civil No. 249/1989 (Terr.Ct. V.I., Dec. 12, 1989) 24 V.I. 275. Vic Marrero was driving his Mercedes along the East End Road in Estate St. Peters, Virgin Islands. Suddenly a tree stood on property owned by Al Gerard fell on Vic’s car. Vic claimed the car was damaged (not hard to believe) as was his psyche (harder to believe).

Norm Nielsen, who was Al’s neighbor and worked with Vic, was first on the scene. The base of the tree was inside Al’s fence, but the rest was on the road. Norm said the tree was “dry” where it broke off, “kind of rotten but green on top.” The evidence, which included photos taken by the traumatized Vic, failed to establish that a visual inspection of the tree would have disclosed that it was rotten at its base and in danger of toppling.

Held: The Court held that the facts did not show Al to be negligent, because he appeared to have no reason to know that the tree was unstable and would fall.

Vic, however, argued that even if Al was not negligent, he should be held strictly liable for any damage the caused. Vic cited the Restatement of Torts (Second), which provided at section 363 that:

(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

Vic relied on subsection 2, arguing that Al – owning trees in an urban setting – had a duty to Vic to inspect the trees. The Court ruled that whether the property on which the tree was located was urban or rural might be debatable but ultimately was irrelevant. Even if the urban standard applied, the Court said, and even if Al had adhered to the standard, “the weakened condition of the tree was not apparent upon a visual inspection, so that it matters [not whether the area was urban or rural. Perhaps a core sampling of the tree would have disclosed the problem, but such an effort, particularly when weighed against the likely risk, is far too onerous a burden to place upon a landowner.”

The Court held that the Restatement did not impose strict liability, that is, liability without fault, in circumstances like these. All Sec. 362(2) does it to apply a more specific standard of care to an urban landowner, but still within a negligence realm.

Unfazed, Vic argued that the Court should apply its own strict liability standard to this case, as a matter of public policy. The Court demurred, saying that in its view sound public policy was reflected the Restatement’s standard. The Court said that a landowner should have the duty to inspect for, discover and remedy patently hazardous natural conditions on his or her property that may cause harm to others outside the land. But where the decay is internal, and therefore not discoverable upon reasonable inspection, to “impose a rule of strict liability would be to declare, in effect, that any tree which is large enough to fall over the boundary of one’s land will subject its owner to liability in the event that a hidden weakness causes it to topple and cause damages off the land.” That would just lead prudent landowners to cut down their trees, the Court concluded, “thereby accelerating the already lamentable deforestation of the territory.”

The Court agreed that the community should be protected from reasonably foreseeable dangers, but the community – both local and worldwide – “also has a compelling interest in the protection and preservation of the environment. The same concern and sensitivity that we are just beginning to bring to the massive problem of the destruction of the Amazon rainforest, for example, should also apply to the relatively minute and particular circumstances of this case. No reasonable gain would be derived from adopting a rule of strict liability here, particularly when weighed against the potential ecological and aesthetic implications of such a decision.”

– Tom Root


Case of the Day – Wednesday, May 18, 2022


It's hard to enjoy an idyllic sunset when you can't get to the lakeshore.

It’s hard to enjoy an idyllic sunset when you can’t get to the lakeshore. Recreational use statutes make it easier.

A landowner really has no natural incentive to let people freely enjoy his or her land. You have a nice pond and woods, and, being as you’re a nice person, you let the birdwatchers’ society wander around looking for the white-throated needletail. Next thing you know, one of them steps into a prairie dog hole, and you’re being sued.

But public policy is strongly in favor of getting people out to enjoy nature’s bounty. For that reason, virtually all states have passed some version of a recreational use statute. These statutes hold generally that a landowner only has a duty not to be grossly negligent to people using his or her unimproved land without charge for recreational activities. They are intended to encourage the opening of private land – unspoiled natural areas – for free recreational use by shielding landowners from liability for the most common forms of negligence.

Today’s case raises an interesting question under the Texas recreational use statute. In this case, the City of Waco had a park that included limestone cliffs. A boy was sitting on the cliffs when a portion collapsed, causing him to fall to his death.

A user might anticipate he could fall off a cliff – but not that it would give way.

A user might anticipate he could fall off a cliff – but not that it would give way.

The City argued it couldn’t be held liable under the statute, because it did nothing to cause the defect in the cliffs. The Court of Appeals agreed with the boy’s mother, however, that it wasn’t necessary for the landowner to cause the defect, if the defect was so latent, that is, hidden, that the recreational user would not reasonably be aware of it. That one might accidentally fall off a cliff was foreseeable, the court admitted. But it wasn’t open and obvious that the cliff one was sitting on would suddenly give way.

Because the defect wasn’t obvious, all the boy’s mother had to do was advance in her pleading some allegation of gross negligence. In her complaint, she argued that the City was aware others had been hurt by falling rocks, and it had reports warning of the danger of collapsing cliffs. Those reports recommended the City post warning signs, but it didn’t do so. The court said that those allegations were good enough to make out a claim under the recreational use statute.

Kirwan v. City of Waco, 249 S.W.3d 544 (Tex.App 2008). Debra Kirwan’s son, Brad McGehee, was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the City of Waco, when the ground beneath him gave way and he fell about 60 feet to his death. Kirwan brought a wrongful death suit against the City, alleging a premises defect.

A firefighter who responded to the scene of Brad’s fall testified that an average person would “probably not understand that the ground could give way underneath them.” The trial court threw out the suit, holding that Kirwan had not: (1) “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or (2) “raised a genuine issue of material fact.” Kirwan appealed.

Held: The suit was reinstated and sent back for trial. Kirwan challenged whether Texas Civil Practice & Remedies Code § 75.002(c)the state recreational use statute – requires that all premises defect claims be based on a condition created by the defendant, thus barring any claim based on the existence of a natural condition that the defendant happened to know about. Under the recreational use statute – intended to encourage landowners to open their property to the public for recreational purposes – a landowner’s duty to a user is no greater than that owed to a trespasser, the very limited duty to not injure anyone willfully, wantonly, or through gross negligence.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy's life.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy’s life.

The law is clear that a landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, an owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But the appeals court held that the recreational use statute permits claims based on natural conditions as long as the condition is not open and obvious, and the plaintiff furnishes evidence of the defendant’s alleged gross negligence. Here, the court said, the crumbling rocks and cracks on the cliff that gave way did not conclusively prove that the danger of the unstable cliff rock was open and obvious. Crumbling rock may alert the average person to the risk of slipping and falling, but certainly not that the ground will simply fall apart beneath him. The court ruled that unstable cliff rock is not necessarily an open and obvious condition that a person might reasonably expect to encounter.

To state a claim under the Texas recreational use statute, Kirwan had to allege sufficient facts to show that the City of Waco was grossly negligent. The pleadings need only provide a plain and concise statement of the cause of action sufficient to give the defendant fair notice of the claim involved. In her pleading, Kirwan alleged that the City was actually aware of the dangerous condition on the cliff, that other park patrons had died or been seriously injured by the condition of the cliffs, that the City received a report from its own expert warning of dangerous rock falls and advising the City to post signs warning of potentially fatal rock falls, and the City’s failure to do so, in fact, to warn or guard against this danger at all amounted to gross negligence.

The court agreed that Kirwan plainly alleged the City’s conduct amounted to gross negligence. The City’s complaint that the pleading didn’t allege that the City had created the condition was meritless: where a claim is based on hidden natural conditions, such as the structurally unstable cliff rock in this case, a plaintiff need not plead that the City was grossly negligent in creating a condition.

– Tom Root