Case of the Day – Friday, November 27, 2020


There is a wonderful doctrine in the law – and the law is a place where we do not really expect to find anything wonderful – that is known as the rule of de minimis.

Mentioning de minimis gives me an excuse for another shout-out to my sainted Latin teacher from days of yore, Emily Bernges (who instilled in me a love of, if not fluency in, that grand Mother of Languages). But more to the point, the de minimis rule is a necessity: if it didn’t exist, we would have to invent it. Simply put, the rule of de minimis holds that some wrongs we suffer are so slight to be unworthy of recompense.

De minimis is the shortened form of “de minimis non curat lex,” which Emily would have told us means that “the law does not concern itself with trifles.” Queen Christina of Sweden, who occupied the throne in the mid 17th century – and who may have studied under Emily, too, for all we know – favored the more colorful adage, “aquila non captat muscas,” that is, “the eagle does not catch flies.”

We sometimes think too many plaintiffs want to sue over trifles. The plaintiffs in today’s case, the Bandys, sure did. The neighbors’ trees dropped sap and leaves on their property, and their roots clogged a sewer line. The Bandys did not find that dandy, and so they sued.

The court was aghast. A tree dropping leaves and sap! Who had ever heard of such a thing?

Besides everyone, that is. Trees drip sap and drop leaves and grow roots all the time. It’s just what trees do. Once the law starts making tree owners pay for that, there will be no end to the litigation.

The neighbor’s leaves fell in your yard? Here’s a rake. Deal with it.

Bandy v. Bosie (1985), 132 Ill. App. 3d 832, 477 N.E.2d 840. Edith and Chuck Bandy sued their neighbors, Jim and Becky Bosie, complaining that the Bosies’ maple and elm trees dropped sap and leaves on the Bandy’s property, and roots from the trees had damaged the Bosies’ sewer line, causing water to back up in their basement.

The Bosies moved for dismissal, arguing that the Bandys had no cause of action. The court agreed, and dismissed the complaint.

The Bandys appealed.

Held: The Bandy complaint failed to allege a nuisance. The court found the Bosies were entitled to grow trees on any or all of their land and their natural growth reasonably resulted in extension of roots and branches into adjoining property.

The Bandys argued first that the Bosies should be made to cut down the trees, because there was no adequate remedy at law, and the trees were a nuisance. Bosies rejoined that the trees did not constitute a nuisance and that, in any event, the Bandys were not entitled to equitable relief.

Illinois courts have previously held in Merriam v. McConnell (1961), 31 Ill. App. 2d 241, 175 N.E.2d 293, that equity could not be used to control or abate natural forces as if they were a nuisance. Illinois follows the Massachusetts Rule, and holds that an owner is entitled to grow trees on any or all of the land, and their natural growth reasonably will result in extension of roots and branches into adjoining property. The effects of nature such as the growth of tree roots cannot be held within boundaries, the risk of damage from roots on other lots is inherent in suburban living, and to allow such lawsuits as this one would create litigation over matters that should be worked out between the lot owners.

But in another Illinois decision,  Mahurin v. Lockhart (1979), 71 Ill. App. 3d 691, 390 N.E.2d 523, the plaintiff sued an adjoining lot owner for damages resulting from a dead limb falling from the defendant’s tree onto plaintiff’s property, injuring the plaintiff. The defendant contended she had no liability for damages occurring off of her land resulting from the existence of natural conditions on her land. The appellate court rejected that view, holding that defendant’s theory arose in an era when most land was heavily wooded and sparsely settled, and when the burden of inspecting those larger properties for natural defects would have been unreasonable. In a more modern urban setting, the court considered, the burden of inspecting for unsound trees which might injure persons off of the owners’ property to be reasonable.

Here, the complaint is silent as to when and how the trees gained life. That is one reason, the Court said, why the complaint failed to allege a nuisance.

In addition, the Court said, even if counts I and II had stated that defendant had planted the trees, the counts would still have failed to state a cause of action for injunctive relief. The Court said, “We do not consider trees that drop leaves on neighboring lands or trees that send out roots that migrate to neighboring lands and obstruct drainage to necessarily constitute a nuisance. We recognize that some decisions in other States are to the contrary. We agree with the Merriam court that, under the circumstances here, to permit the falling of leaves or the migration of the roots to give rise to injunctive relief would unduly promote litigation over relatively minor matters. Usually, the damage from the offending leaves would be minimal, and the accurate locating of the source of the offending roots would be difficult and expensive.”

– Tom Root


Case of the Day – Wednesday, November 25, 2020


lemonsup160302Lemon and Curington were neighbors. Things were neighborly when Curington planted a pair of poplar trees — fairly fast growing and tall things — near the property line.

Over the years, things became less so, as several legally significant events occurred. First, the trees got big. As they did, the trunks ended up crossing the boundary line so that the trees were growing on both Curington’s and Lemon’s land. Second, the root systems expanded and began putting the squeeze on Lemon’s foundation. Third, Lemon discovered that if he used self-help, trimming back the roots and topping off the trees, he would make them unstable, turning the poplars into topplers. So Lemon — who was completely soured on the trees by this point — sued Curington, asking that the trees be declared nuisances and that Curington be made to remove them.

Life had given Curington a Lemon, but he tried to make lemonade. He argued that the Massachusetts Rule gave Lemon no aid, and that he was limited to self-help. However, the court relied on the Idaho nuisance statute (noting in passing that the Massachusetts Rule didn’t really apply to a tree growing in both properties at once, a fascinating observation we wish it had explained a bit better), ruling that the trees were nuisances for having damaged Lemon’s foundation. It also seemed important to the Court that Lemon couldn’t trim the tree and roots himself without making the poplar a “danger” tree that was likely to fall.

founda160302This case is a gallimaufry of issues — the interplay of nuisance statutes with common law and the interplay of boundary trees with encroachment — as well a rather poorly-thought out dismissal of the Massachusetts Rule for reasons that were unnecessary. After all, the Massachusetts Rule was specific in its limitation to non-nuisance encroachment, twigs and leaves and that sort of thing. The Lemon decision, remarkably similar to the Hawaii Rule (but decided 14 years before the Hawaii Rule was adopted), is also quite similar in its fact pattern to Fancher v. Fagella, a 2007 Virginia Supreme Court decision. In fact, a real argument can be made that this Idaho case was entirely unnecessary in its treatment of the venerable Massachusetts Rule.  Michalson v. Nutting, in our view, is a “big tent” with enough room for all of the poplars, sweet gums and banyan trees that followed.

Lemon v. Curington, 78 Idaho 522, 306 P.2d 1091 (1957). Lemon and Curington owned adjoining land with a common boundary, on which two poplar trees had been planted over 50 years ago. The trees had grown to approximately four to five feet in diameter at the base, and the trunks and branches extended across the boundary line. The roots were surface feeders and, in one case, extended from the boundary line to and against the foundation of Lemon’s house, cracking the house’s foundation. pushing the wall of plaintiffs’ house inward.

lemondown160302If Lemon topped the trees and cut the roots extending onto his land, the trees are likely to fall over. Lemon sued, alleging the trees to be a nuisance, and asked authority to remove the offending trees.

The trial court authorized the destruction of the tree damaging the foundation, but held the other tree was healthy and mature, and thus not a nuisance. Curington appealed, arguing that the Massachusetts Rule limited Lemon’s remedies to self-help, that is, to lemon’s trimming the tree and roots himself.

Held: The tree is a nuisance, and the Court may order Curington to remove it. The Supreme Court held that the Massachusetts Rule was not dispositive where a nuisance had been shown to exist.

roots160302The Court said “[w]e think the condition here shown to exist constitutes a nuisance under the provisions of Idaho Code § 52-101.”  That statute defined a nuisance to be “[a]nything which is injurious to health … or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” Here, not only had the tree made a mess of Lemon’s foundation, but the evidence showed that if Lemon cut the roots and topped the tree, the whole thing was likely to fall over. The Court said that statute authorized an action by any person “whose property is injuriously affected or whose personal enjoyment is lessened by the maintaining of a nuisance to have it abated.”

Without explaining its reasoning very far, the Court also said that the fact the tree was a boundary tree, on the properties of both parties, made the Massachusetts Rule inapplicable. So while Lemon reserved the right of self-help, the courts were also available to him to abate the nuisance tree.

– Tom Root


And Now The News …

New York City, The Wall Street Journal, November 24, 2020: Orchard of the Dammed

November is a peaceful time in the apple orchard. This year’s crop has been harvested and sold; amber-colored leaves float earthbound in the breeze. A flick of the finger nudges still-clinging leaves to the orchard floor—a simple pleasure. So, we were more than surprised, as we opened the gate to gather the last of the season’s drops, to find a furry ball under an Idared tree, unhurriedly munching on an apple sandwiched between its paws. We chased him away with a clanking garbage can lid and the next day with a tractor. But he kept coming back. I got on the horn to Rog, who lives a mile south: “Can I put you on beaver alert?” “My .22 will be ready,” said Rog, a long-retired postmaster with time on his hands. For years Rog, a backwoodsman by instinct, has been our go-to man for beavers—and for woodchucks and chipmunks, until I completed my apprenticeship. Beavers being a board-certified specialty, a decade or more ago I had called Rog just after Thanksgiving, when beavers, using front paws and snout, had dammed up the stream that feeds into our quarter-acre pond. They had downed a 16-inch-thick weeping willow and a 75-foot-high white birch, whose branches and twigs they packed with mud and grass to secure the dam. It ran 20 feet across and 4 feet high. It took Rog a month of early-morning visits, slogging around in hip boots, to trap the responsible party, which sat in his wife’s freezer until pelt prices rose…

Portland, Oregon, KOIN-TV, November 24, 2020: Melania Trump’s error puts Oregon Christmas tree farm in spotlight

An Oregon Christmas tree farm is getting some unexpected attention after a mistake in a press release from first lady Melania Trump’s office cast a spotlight on their business. According to CNN, the first lady’s office incorrectly said the 2020 White House Christmas tree was coming from a farm in Lebanon, Oregon. A White House communications official corrected the farm and the state Friday, saying the 18.5-foot Fraser Fir is in fact coming from Dan and Bryan’s Tree Farm in Shepherdstown, West Virginia. However, confusion arose again Sunday when Melania Trump tweeted saying the tree was coming from “Oregon’s West Tree Farm.” This tweet was later deleted and replaced with a tweet that again clarified the tree was coming from West Virginia. While there is not a “West Tree Farm” in Oregon, there is West’s Tree Farm, located in Lebanon. Tree farm owner Jon West said the whole situation has given his family something to laugh about. “We are not, not, not, not, not furnishing a Christmas tree for the White House,” West said. “Somebody somewhere made a mistake and instead of the tree coming from West Virginia, it got sent out that the tree was coming from West Tree Farm – little bit of difference.” West said word spread rapidly on social media after the initial release Friday. He said Gov. Kate Brown had even tweeted congratulating his farm. Her office later left West a message apologizing for the mistake…

New York City, The Gothamist, November 20, 2020: This Owl Wasn’t The Rockefeller Center Tree’s First Feathered Stowaway

Earlier this week, days after the Rockefeller Center Christmas Tree was propped up in its open-air grave in Midtown, word came out that a secret passenger had been discovered within its lifeless branches: a tiny Northern Saw-whet Owl. Later nicknamed “Rockefeller,” the owl was transported to the Ravensbeard Wildlife Center in Saugerties, where it was fed mice and brought back to full strength after days of being trapped in the tree without food or water. Rockefeller is set to be released back into the wild at dusk on Saturday. This was not the first time that wildlife local to the tree’s roots had been transported to Manhattan on a flat bed truck, wrapped up in the tree’s branches. Angela Higgins McNeil told Gothamist that in 2018, her father, Don Higgins, was a part of the tree crew at Rockefeller Center, and found an owl in the branches. “[He was] part of the electrician crew, so as soon as the tree is up they start putting up the scaffolding and wiring extra branches in, the owl was chilling in there while the scaffolding was up,” she told us. “I believe they caught him and brought him to an animal rescue…”

Science Tech Daily, November 24, 2020: NASA Uses Powerful Supercomputers and AI to Map Earth’s Trees, Discovers Billions of Trees in West African Drylands

Scientists from NASA’s Goddard Space Flight Center in Greenbelt, Maryland, and international collaborators demonstrated a new method for mapping the location and size of trees growing outside of forests, discovering billions of trees in arid and semi-arid regions and laying the groundwork for more accurate global measurement of carbon storage on land. Using powerful supercomputers and machine learning algorithms, the team mapped the crown diameter – the width of a tree when viewed from above – of more than 1.8 billion trees across an area of more than 500,000 square miles, or 1,300,000 square kilometers. The team mapped how tree crown diameter, coverage, and density varied depending on rainfall and land use. Mapping non-forest trees at this level of detail would take months or years with traditional analysis methods, the team said, compared to a few weeks for this study. The use of very high-resolution imagery and powerful artificial intelligence represents a technology breakthrough for mapping and measuring these trees. This study is intended to be the first in a series of papers whose goal is not only to map non-forest trees across a wide area, but also to calculate how much carbon they store – vital information for understanding the Earth’s carbon cycle and how it is changing over time…

Columbus, Ohio, Dispatch, November 23, 2020: Spotted lanternfly makes landfall in Ohio; officials urge vigilance

It was a flickering neon light that may have attracted it. It’s likely the red and grey distinctive spotted fly hopped from a nearby rail car, which routinely runs about 50 feet away from the shop’s window. Jason Kopras, an auto glass shop owner, found the spotted lanternfly on the windowsill of his business JK Auto Glass, in Mingo Junction. It marks the first documented case of the spotted lanternfly in Ohio. If, and when, the invasive species becomes entrenched in Ohio, experts say it will have a devastating ripple effect on state growers. “I said, ‘Man it’s the weirdest looking moth I’ve ever seen. When I looked at it, it was dead. I picked it up, brought it inside and set it on my file cabinet for about a week,” Kopras said. He tied it to a fishing lure as a joke. “I kept showing people that came in because the design on this thing was amazing. I didn’t know it was a nuisance,” he said. The spotted lanternfly, which is native to Asia, decimates almonds, apples, blueberries, cherries, peaches, grapes and hops, as well as hardwoods such as oak, walnut and poplar, according to U.S. Department of Agriculture. The insect is likely to find Ohio’s weather ideal. About a week after Kopras found the fly, Ben Long, 43, a mechanic who follows Ohio State University’s extension Facebook group, immediately recognized the fly from posts online…

San Francisco, California, Chronicle, November 22, 2020: Judge Issues Injunction To Stop Tree Removal Along Trail

A federal bankruptcy court judge on Friday issued a preliminary injunction order stopping, at least temporarily, preventing PG&E from cutting down 17 trees along the Lafayette-Moraga Regional Trail — trees that have been at the heart of a running dispute between the city and the utility. Judge Dennis Montali of the United States Bankruptcy Court for the Northern District of California issued the ruling. That comes three days after Montali granted a temporary restraining order stopping PG&E from cutting down the trees adjacent to the trail, which is owned by the East Bay Regional Park District but within the city limits of Lafayette. The city of Lafayette sued PG&E on Nov. 13; the trees’ removal was set to begin as soon as Nov. 16 as part of a PG&E effort to improve access to underground natural gas pipelines. The city contends the trees’ removal would violate a 2017 agreement stipulates that the utility cannot remove trees within Lafayette city limits until all obligations in the agreement have been met. According to the city, “PG&E has not met its obligations under the (2017) agreement to provide all information required by the city’s Tree Protection regulations.” Friday’s preliminary injunction order will remain in effect pending further order of the court…

Mic, November 23, 2020: How counting city trees can aid the fight for racial equality

Everybody loves trees. They’re good for all sorts of things. According to a 2019 study published in the journal Plants People Planet, trees can get rid of air pollution, reduce stress, and promote a feeling of community. They can also reduce rising urban temperatures, provide shelter for local animals, and manage stormwater in the area. It’s no wonder that reforestation has become a go-to choice for corporations making pledges to become carbon neutral by mid-century. The overwhelming evidence from the scientific literature suggests that investing in trees is […] ultimately an investment for a better world,” wrote the study’s authors. However, although nature is open to all, it’s not necessarily accessible to all. A non-profit conservation group called American Forests is looking to fix this problem by creating a “Tree Equity Score” for cities. The score is obtained through calculations based on satellite imagery of tree canopy cover, estimates of the population, and census data on income levels. Then a priority is assigned based on the demographics of the location’s residents, including race, income, age, and urban heat island severity. The resulting score will show which areas should be prioritized for tree planting. “A map of tree cover in virtually any city in America is also effectively a map of income and race,” Jad Daley, CEO and president of the organization, told Grist. Lower income neighborhoods have less trees compared to higher income areas. This means that vulnerable communities, groups that suffer more from the effects of climate change and air pollution, are being neglected when they’re the demographic that could benefit the most from trees…

Wichita, Kansas, Eagle, November 23, 2020: What to do if your trees and plants are prematurely budding with the unseasonal temps

Following a cool October with a surprising snowfall, an unseasonably warm November has confused some trees and shrubs around Wichita. Thinking it’s spring already, they’ve begun breaking out with buds. While experts say that trees beginning to bud too early in the early spring or late winter isn’t a rare sight, it is less common that they start to bud in fall. Tree growth patterns depend heavily on the weather to tell them what to do, and weather fluctuations in recent months are likely the cause for trees beginning to bud. This November’s average monthly temperature is nearly six degrees hotter than it usually is, while October was 3.5 degrees cooler than average, according to Vanessa Pearce, a National Weather Service meteorologist in Wichita. Overall, 2020 has been warmer than usual. “We’re not talking crazy (increases). You’re talking a couple of degrees,” Pearce said. “This month so far is the most extreme and has the highest difference between what normal is and what the average is so far.” When late summers and early falls have hot, dry spells, some plants and trees will shed some leaves and go into a summer dormancy to survive…

Boston, Massachusetts, Globe, November 22, 2020: Christmas tree farm swamped by customers on first day of season

When Mark Harnett stepped out the door of his timber frame house and looked over his Christmas tree farm Sunday morning, he saw an endless line of cars. It was the first day Mistletoe Christmas Tree Farm in Stow was open this year, and it has never been so bustling. “This was our busiest day in 12 years of farming,” Harnett said late Sunday afternoon. With the COVID-19 pandemic shaking up norms — the busiest time for sales is usually the weekend after Thanksgiving — and customers fearing another lockdown, he said, the farm was swamped by thousands people looking for an early start to their holiday decorating. “Hundreds and hundreds and hundred of trees — and these were not small trees,” said Harnett. The farm specializes in trees of 10 to 15 feet, some that have been growing there as long as Harnett has owned the farm where he lives with his family. The farm, which decks out its own holiday decorations and blasts Christmas music, sold out almost all of its cut-your-own trees for the season, although they also have pre-cut trees grown elsewhere for sale into December. Ornaments, wreaths, and other decorations also sold tremendously, he said. “There was a run on everything.” The crowds at the tree farm were one of many indications that the pandemic is encouraging many families to begin decorating early…

Abilene, Texas, Reporter-News, November 22, 2020: Bruce Kreitler: What does a tree mean to the world?

First of all, I would like to wish everybody a good Thanksgiving. And for that matter, the entire holiday season moving forward. By the way, I just want to point out that a lot of things that grace holiday tables, especially pecan pies, come from trees. Just as trees present an opportunity for us to harvest food, so it goes for other entities that don’t operate, or feed, quite as we do. When you are looking at a tree growing somewhere, you’re seeing a lot of things that aren’t immediately apparent, unless you give it a lot of thought. It’s easy enough to see a bunch of pears hanging on a pear tree, and realize that those things are edible and represent food. It’s not quite as easy to look at a tree trunk on a big shade tree, and think about all the things that would like to feed directly on that tree trunk, and digest if for their own uses. Of course, I do think of that kind of thing, because I run into the organisms that specialize in that kind of feeding all the time. I also try to interrupt that feeding cycle, in an effort to keep the tree healthy, and retain it. Sadly, things that eat the wood in trees, do it as if their life depends on it (it does), and they can be hard to deal with. Another thing that a successful tree represents, especially the larger ones, is lost opportunities. The green world is definitely a dog-eat-dog place, with a continual fight for resources among plants…

NPR, November 22, 2020: Climate Change Closes In On Lebanon’s Iconic Cedar Trees

Khaled Taleb steps out of his vehicle high on a mountainside in northern Lebanon, and surveys the charred remains of the cedar forest he fought to save. A black carpet of the trees’ burned needles crunches underfoot. Armed with only gardening tools and cloth masks, Taleb and four friends spent the night of Aug. 23 on this mountainside battling a wildfire that swept up from the valley and engulfed this high-altitude woodland of cedars and juniper trees. “The fear we felt for ourselves was nothing compared to the fear we had for the trees,” recalls Taleb, who played under these boughs as a child, and who has worked for their protection since he was 16. Now 29, he runs an ecotourism and conservation group he founded called Akkar Trail. The cedar tree is a source of national pride in Lebanon. Its distinctive silhouette of splayed branches graces the national flag. The forests here have furthered empires, providing Phoenicians with timber for their merchant ships, and early Egyptians with wood for elaborately carved sarcophagi. But now the very survival of these ancient giants is in question. Scientists say rising temperatures and worsening drought conditions brought about by climate change are driving wildfires in this Middle Eastern country to ever higher altitudes, encroaching upon the mountains where the cedars grow…

Portland, Oregon, The Oregonian, November 22, 2020: Extension agents share pruning tips for maple trees: Ask an expert

Q: Last fall we took down two red maples that were rotting internally. The stumps have now produced a lot of shoots 3-4 feet tall. Should I thin these shoots out now. If so, which shoots should I leave and how many. I know there was a Tree School webinar that included this but I can’t remember which one. – Yamhill County
A: Even if a tree produces copious numbers of sprouts, it’s no guarantee that they’ll all live. Some trees apparently “self-thin” their sprout production. And in many cases sprouts die because they are infected by rot from the stump itself. Leave two or at most three sprouts to a clump, as widely spaced as possible, to assure good growth and form. Generally, you should thin them early and preferably when stems are 3 inches or less. Many gardeners limit pruning to fall and winter, when the tree is dormant and no longer creating new growth. Pruning does not have to be limited to dormant phases of the tree’s life, however. Maple trees contain sap, which will “bleed” if the tree is pruned in early spring or late winter. To avoid this phenomenon, pruning may be put off until summer. The only time that’s off-limits is early summer, when pruning may damage tender new bud growth. Maple trees may be pruned for shaping purposes; this is the practice of thinning and trimming trees to make them look more attractive. For some trees, the practice of thinning branches is a necessity because canopy growth becomes too dense for tree health. When pruning branches in order to maintain a specific tree shape or thin out the canopy, cuts may be made any time but early spring…

The Street, November 17, 2020: American timber industry crippled by double whammy of trade war and COVID-19

The forestry sector – landowners, logging companies and sawmills – have lost an estimated US$1.1 billion in 2020. Devastating wildfires and Hurricane Laura have played a part, but the COVID-19 pandemic has also contributed to significant losses. If workers are required to stay home, then no trees will be felled or logs sawed into lumber. These losses have been exacerbated and amplified because of a longstanding trade war that has severely curbed the sale of U.S. forestry products to foreign markets, particularly China. I am a professor of economics with a specialty in international agricultural trade, trade policy and global food demand. My work at the University of Tennessee Institute of Agriculture is informed by my nearly 10 years as a senior economist with USDA researching international trade issues affecting agriculture and forestry. Forest product exports in the U.S., including logs and lumber, were valued at $9.6 billion in 2018, according to the U.S. Department of Agriculture. Forest products are the third leading U.S. agricultural export sector after soybeans and corn. In 2018, China accounted for nearly $3 billion of U.S. forest product exports. The forest products relationship between China and the U.S. is complex. The U.S. sells logs and lumber to China; China uses the logs and lumber to produce finished wood products, such as furniture and hardwood flooring; and China exports these finished wood products to the world. Interestingly, the U.S. market is the leading destination for these exports. In 2018, U.S. imports of wooden furniture and other wood products from China exceeded $9 billion, according to the U.S. Census Bureau…

Oakland, California, East Bay Times, November 17, 2020: Judge grants Lafayette restraining order to halt PG&E from cutting trees

A judge has granted a temporary restraining order stopping PG&E from cutting down 17 trees. The trees are on the Lafayette-Moraga Regional Trail and in an open space located north of downtown, within the city limits but on East Bay Regional Parks District property. The limited temporary restraining order requested by the city of Lafayette was granted Tuesday by Judge Dennis Montali of the United States Bankruptcy Court for the Northern District of California. The city sued the utility last week, and alleges that PG&E failed to comply with a 2017 Tree Removal Agreement when it sought to cut down the trees, and didn’t give the city enough notice of the removal. “The city of Lafayette takes extremely seriously the agreements that we signed, and we expect that a major utility would do likewise, and would follow the provisions laid out in the agreement it has signed,” Lafayette spokesman Jeff Heyman told this newspaper last week…

US Army Corps of Engineers, November 17, 2020: ERDC scientist creates algorithm to distinguish the forest from the trees

When people think about the U.S. Army Engineer Research and Development Center (ERDC), there are many innovative solutions that come to mind — from blast-proof wallpaper used to protect employees at the Pentagon to the rover wheels created for landing on the moon. However, two other innovative solutions deserve to be noticed: land cover mapping and statistical modeling, which both support our nation’s Warfighters. Forest cover maps derived from satellite and aerial imagery directly support military operations, but distinguishing tree cover from other vegetative land covers is an analytical challenge. Tree cover impacts military operations by hindering vehicle and troop movement, preventing helicopter access and providing concealment to the enemy, and it’s upon these challenges that ERDC’s Geospatial Research Laboratory’s (GRL) Physical Scientist Dr. Sarah J. Becker and her team recently focused their efforts. Exploring nature is a passion for Becker, a Corte Madera, California, native, and working at GRL allows her to marry her passion and job. “I love exploring local parks and hiking trails, like Great Falls Park and the Washington & Old Dominion Trail in Virginia,” she said… “While the commonly used Normalized Difference Vegetation Index can identify vegetative cover, it does not distinguish between tree and low-stature vegetation consistently,” Becker said. “We developed the Forest Cover Index (FCI) algorithm take the multiplicative product of the red and near infrared bands to separate tree cover from other land covers in multispectral imagery…”

Dallas, Texas, Morning News, November 17, 2020: Learn about the world’s best trees — and let ideas for your own yard take root

There are many fabulous trees in the world, and some of the most interesting ones are in Texas. Learning about their unbelievable potential may help you get excited about planting new trees of your own. Rather than dropping everything to travel the world to see all the fabulous trees I know about, you can experience them without leaving your house. The Dirt Doctor organization has created two ways to experience these trees. First, we have website library entries, which are the best places to find the most details. But there is an easier way to see the basic facts and the most photographs of these great trees. It’s the Fabulous Trees Slideshow. View it free at the top right corner of I hope you enjoy it — I still do every time I see it. In the slideshow, you will see the national champion pecan, the state champion ginkgo, the largest kapok in Costa Rica, the largest Montezuma cypress in the world, the oldest trees in the world and much more. Not only can you see the greatest trees in the world — many that you can grow here in North Texas — but the slideshow also shows the planting and management details that I have discovered to be the most successful and cost-effective…

Los Angeles, California, Times, November 16, 2020: Hundreds of towering giant sequoias killed by the Castle fire — a stunning loss

Kristen Shive glanced around the blackened forest and started counting. She stopped at 13 — the number of giant sequoias she spotted with charred trunks, scorched crowns and broken limbs. The towering trees had grown on this Sierra Nevada ridge top for well over 500 years. They had lived through many wildfires and droughts. But they could not survive the Castle fire, which swept into the Alder Creek Grove in the early hours of Sept. 13. The Castle fire was different from previous wildfires as all-consuming flames turned the giant trees into sequoia skeletons. One of the monster wildfires birthed by California’s August lightning blitz, the Castle fire burned through portions of roughly 20 giant sequoia groves on the western slopes of the Sierra, the only place on the planet they naturally grow. Sequoia experts may never know how many of the world’s most massive trees died in the Castle fire, but judging by what they have seen so far, they say the number is certainly in the hundreds — and could easily top 1,000. “This fire could have put a noticeable dent in the world’s supply of big sequoias,” said Nate Stephenson, a research ecologist with the U.S. Geological Survey. The Castle fire is just the latest in a string of wildfires since 2015 that have fried monarch sequoias — trees that nature designed to not only withstand fire but thrive with it. They are armored with thick bark. Their high branches are out of reach of most flames. Their cones — no larger than a chicken egg — release seeds when exposed to a burst of heat. The problem is that the wildfires chewing through sequoia groves these days are not the kind that the long-lived giants evolved with. A century of fire suppression, the 2012-16 drought and rising temperatures have combined to produce more intense fires that are taking an alarming toll on the copper-hued behemoths…

Denver, Colorado, KCNC-TV, November 16, 2020: Colorado Wildfires Put Christmas Tree Cutting On Hold In 2 National Forest Areas

The sight of a car headed down the road and weighted down by a tree on its roof is a fairly common one at this time of year in Colorado’s high country. But those families looking to cut down their own Christmas trees in the Arapaho and Roosevelt national forests will have to wait a bit longer because those areas were affected by three large wildfires. A spokeswoman for the U.S. Forest Service said crews are still evaluating cutting locations in the aftermath of the Williams Fork Fire, East Troublesome Fire and Cameron Peak Fire, which burned more than 650 square miles. Christmas tree cutting permits are on sale at a number of other national forests in the state…

San Francisco, California, KPIX-TV, November 16, 2020: Scientists Identify Mysterious Tree Fungus Killing Thousands Of Acacia Trees In Oakland Hills

There’s new color in the East Bay Hills but they are not Fall colors. The changing leaves are the result of a mysterious and deadly tree fungus attacking Acacia trees all across the Bay Area.Tens of thousands of Acacia trees are dead and dying across this ridge above Oakland. Scientists are collecting samples of wood to study in labs, trying to determine what exactly is killing the trees. They may have a clue. Natalie Vandoorn is an Urban Ecologist Researcher for the U.S. Forest Service. “It’s a fairly new fungal pathogen called the Pistachio Canker, originated in Italy,” said Vandoorn. Scientists caution they’ve also identified several other fungi, so the preliminary data is just that, preliminary. People in the neighborhood started noticing it last summer. Marilyn Rhodes is 93. She has lived here a long time and has specific concerns. “I noticed because I am very fire conscious because these hills burned just a year after I moved here in 1960 The whole hill burned and fortunately not one of our houses burned but it very freighting to think it could happen again,’ said Rhodes. Cutting down and chipping the trees could spread the fungus spores and make matters worse. There’s no easy or cheap solution says Mark Rauzon. “We’re at just the tip of the iceberg on this problem, this ecological problem and it’s much bigger than Oakland,” said Rauzon…

Yahoo News, November 16, 2020: New Tree Equity Score Drives Home the Important Role of Trees in Creating Social Equity and Minimizing Climate Change Impacts in Cities

American Forests today unveiled its Tree Equity Score, which will help cities in the United States address a problem that exacerbates social inequities and climate change impacts nationwide—often far fewer trees in socioeconomically disadvantaged neighborhoods. Tree Equity Score provides an indicator of whether a neighborhood has Tree Equity, defined as the right number of trees so all people experience the health, economic and other benefits that trees provide. Calculated neighborhood scores are based on such factors as existing tree cover, population density, income, employment, race, ethnicity, age and urban heat island effect (as measured by surface temperatures). City government employees, community activists, urban foresters and others will be encouraged to use the scores to make the case for planting, protecting and maintaining trees in the neighborhoods that need them the most, as well as securing the funding needed to do so. “Trees are more than just scenery for our cities,” said American Forests President and CEO Jad Daley. “They are critical infrastructure to protect people in our rapidly warming climate and are as essential for public safety as are streetlights…” Tree Equity Score will eventually cover 486 U.S. Census-defined urbanized areas in the country, home to 70% of the U.S. population. This includes cities and towns that have at least 50,000 people. The initial Tree Equity Scores released today cover multiple cities and towns in Maricopa County, AZ (home to Phoenix), the San Francisco Bay area of California and Rhode Island. These initial scores, found at, consistently show a need to plant, protect and take care of more trees in socioeconomically disadvantaged neighborhoods…

Oakland, California, East Bay Times, November 13, 2020: Lafayette to sue PG&E over plans to cut down 17 trees

The city is filing a lawsuit to temporarily halt Pacific Gas and Electric from cutting down trees on a regional trail inside Lafayette, alleging the utility did not give the city enough notice or follow agreed-upon regulations. Beginning next Monday, PG&E plans to cut down 17 trees on the Lafayette-Moraga Regional Trail and in an open space north of downtown. The plan is part of a larger initiative by the utility to remove trees so that its maintenance workers can easily access gas transmission pipelines in an emergency. The city signed off on PG&E’s tree-removal efforts in a 2017 agreement that outlines several obligations the utility must fulfill. With this latest project, however, officials say PG&E has not fulfilled any of them. Specifically, the city claims it wasn’t alerted to the plan until Tuesday, and that PG&E has not gone through a local regulatory process. And while Lafayette can’t stop the utility from ultimately cutting down the trees, since they are on park district land, it wants to at least delay the procedure. “The city of Lafayette takes extremely seriously the agreements that we signed, and we expect that a major utility would do likewise, and would follow the provisions laid out in the agreement it has signed,” said Lafayette spokesman Jeff Heyman. PG&E officials would not comment directly on the city’s allegations since the utility has not yet received the lawsuit. But a spokesman said that project officials did comply with the agreement, including by paying mitigation costs for the 17 trees in question back in April…

Manchester, New Hampshire, Union Leader, November 15, 2020: Eversource pilots helicopter tree-trimming program

Eversource is piloting a tree-trimming program that uses helicopters to access areas challenging to reach with vehicles and other equipment. The energy company contracted with Rotor Blade to conduct overhead trimming along a remote power line corridor in Antrim last week. “The tree trimming that we completed in Antrim will help to ensure reliable power for nearly 1,000 of our customers in the region, addressing a circuit that has been prone to tree-related outages in recent storms,” Eversource Manager of Vegetation Management Bob Allen said in a news release. “The work we completed in one day using a helicopter would have taken four climbing crews several weeks working by foot. Enhancing the efficiency of our tree trimming in remote areas enables our team to cover more ground as we continue addressing the large number of dead, hazardous trees across the state that threaten overhead electric lines.” According to the news release, Eversource plans to explore expanding its use of helicopters for trimming along circuits in areas of the state with similarly rocky terrain. Using helicopters for the work reduces the risk of injury to tree crews and is also more time- and cost-effective than ground-to-sky trimming…

Richmond, Virginia, Times-Dispatch, November 13, 2020: 100-year old magnolia trees removed at Virginia Museum of History & Culture, neighbors express sadness and concern

The magnolia trees behind the Virginia Museum of History & Culture in the Museum District have been providing shade and sanctuary for more than a century. Richmonders have played there, proposed there and picnicked under their glossy leaves, according to social media posts. That’s why some neighbors expressed shock and concern last week when nearly 40 of the 100-year-old magnolia trees were cut down. “I heard the buzzing of the chainsaws, and I went over there to check it out. They were falling like matchsticks. They were just coming down: boom, boom, boom,” said Jane Hamilton, a neighbor on nearby Kensington Avenue. “I was shocked and saddened. I didn’t know what was going on.” The tree removal is part of the museum’s $30 million expansion and renovation project that started in October. The museum is changing the layout of the complex, expanding the parking lot and moving its green space from the center of the parking lot to be adjacent to the museum, where officials hope it will get more active use. The new green space will have seating, lighting and landscaping and will feature a grand staircase leading up to the museum’s new second-story terrace. The plan posed a problem with the magnolia trees, complicated by their old age…

Sussex, New Brunswick, Canadian Broadcasting Corporation, November 16, 2020: Woodlot owners say N.B. pricing system keeps them from cashing in on high lumber demand

About 7,000 vehicles a day pass the billboard on New Brunswick Route 1 at Sussex. ‘We’re buying wood!’, it announces, with a link to the J.D. Irving Ltd. website and a phone number: 855-WOODLOT. In the background stands the JDI sawmill, with long rows of stacked logs. Dialling that number is one of a handful of ways woodlot owners can get their timber to the province’s biggest buyer. If you sign a contract with the company, you can collect $64.25 a metric tonne for spruce studwood logs used to make two-by-fours. It’s a rate that is maddeningly low for those woodlot owners who are selling logs. And it hasn’t budged despite booming lumber sales in North America this year. These private wood sellers see the price as a symptom of a broken system, where some are quietly paid more for their logs, and an abundance of trees available to mills from Crown land prevents the majority from cashing in when times are good. About 40 minutes to the west of Sussex, at his family farm in Shannon, one of those private growers, Bruce Colpitts, recalls some wisdom shared 20 years ago by his wife’s grandfather, Lawrence McCrea. “He said, ‘Look after the land and the land will look after you,'” said Colpitts. “Well, 20 years ago the price of studwood was about $80 a tonne. Today that exact same product purchased here is $65 a tonne…

Boston, Massachusetts, WCVB-TV, November 12, 2020: Nova Scotia selects Christmas tree for annual gift to Boston, traditions adjusted for COVID-19

A 45-foot white spruce from Nova Scotia was selected for the province’s annual gift to the city of Boston. The tree is an annual gift to show appreciation for Boston’s help after the Halifax Explosion in 1917. Additionally, Nova Scotia officials said this year’s tree was dedicated to health care workers who are on the frontlines of the COVID-19 pandemic. Also because of the pandemic, Nova Scotia officials said there will be no public events for the tree, which is typically honored in a series of parades before setting out for the journey to Boston Common. This year’s tree was donated by Heather and Tony Sampson from Dundee, a community in Cape Breton Island, Nova Scotia. “My stepfather’s mother was adopted from Boston when she was two,” Tony Sampson said. “The tree comes from our property, which was passed down through the family. We’ve watched it grow for many years. It has quite a bit of meaning to me and my family to send Nova Scotia’s gift to the people of Boston.” This will be the 49th year that Nova Scotia has shown its thanks to the city of Boston by gifting a Christmas tree…

Science, November 12, 2020: Can an ambitious breeding effort save North America’s ash trees?

On a weekday morning in August, just one pickup truck sat in the sprawling visitors’ parking lot at the U.S. Department of Agriculture’s (USDA’s) Forestry Sciences Laboratory in Delaware, Ohio. A decades-long decline in research funding had been slowly quieting the place—and then came the pandemic. But in a narrow strip of grass behind a homely, 1960s-era building, forest geneticist Jennifer Koch was overseeing a hive of activity. A team of seven technicians, researchers, and students—each masked and under their own blue pop-up tent—were systematically dissecting 3-meter-tall ash trees in a strange sort of arboreal disassembly line. Over 5 weeks, the researchers would take apart some 400 saplings, peeling wood back layer by layer in search of the maggotlike larvae of the emerald ash borer (Agrilus planipennis), the most devastating insect ever to strike a North American tree. Since the Asian beetle was first discovered in Michigan in 2002, it has killed hundreds of millions of ash trees across half the continent and caused tens of billions of dollars of damage. “We have contests for who can successfully pull out the smallest larvae and the biggest larvae,” Koch says. “People get pretty excited and competitive about it. You have to do something, because it is very tedious—and [the larvae] are really gross.” The larvae kill ash trees by burrowing into them to feed on bark and, fatally, the thin, pipelike tissues that transport water and nutrients. They then transform into iridescent green beetles about the size of a grain of rice that fly off to attack other trees. Dead larvae excite Koch and her team the most. Those finds signal trees that, through genetic luck, can kill emerald ash borers, rather than the other way around. Such rare resistant trees could ultimately help Koch achieve her ambitious goal: using time-tested plant-breeding techniques to create ash varieties that can fend off the borer and reclaim their historic place in North American forests…


Case of the Day – Tuesday, November 24, 2020


Oldsters with droopy pants - not pleasant to contemplate.

Oldsters with droopy pants – not pleasant to contemplate.

A county park had a contract with Green View — a nonprofit company that had the laudable goal of putting our shiftless senior citizens to work cleaning up parks — to maintain the grounds. This is a good thing. Otherwise, retirees with their pants drooping to show their underwear and their “tatts” and funny flat-brimmed baseball caps worn sideways on their heads, just hang around and ride their little electric carts up and down streets and… you know what trouble they can be.

Green View’s people were busy staying out of trouble when a tree branch broke off a tree and struck a park patron during a summer storm. Being aware that a branch certainly would never break off in the middle of a storm unless someone was negligent, the injured woman sued the county and, for good measure, went after the old people, too. She argued that the elderly working for Green Tree had a duty to inspect the park for branches that might fall off in storms, and they had been too preoccupied with talking about their regularity to carry out their obligations.

In depositions, the Green View people admitted that they had looked for dead trees, but they explained that the county employees were responsible for removal of hazards like that. At least one deponent might have even denounced the plaintiff as a “young whippersnapper.”

The young whippersnapper was, to use an obscure legal term, whippersnapped. The court ruled that neither Green View’s contract with the county nor the job descriptions for its workers included any duty to inspect the trees or warn of their dangers. The county employees — who were immune from suit (just in case you are wondering why the old folks at Green View were being picked on to begin with) — all agreed that it was the county’s duty to inspect trees and warn of dangers.

The injured plaintiff couldn’t find any duty that Green View or its senior-citizen workers owed her. Without the duty, there could be no negligence.

Senior citizens humor aside, it is this kind of litigation — and the legal fees Green View undoubtedly had to shoulder to defend an action for which there was no factual basis — that drives beneficial programs like this one (intended to provide meaningful work and activity for seniors) out of business. While an injury like the one the plaintiff suffered was lamentable, the reason branches fall in summer storms is fairly well understood.

Sometimes stuff happens, and suing anyone who happened to be nearby seldom makes it better.

stuff150213Rolfhus v. County of Wright, 2001 Minn. App. LEXIS 319, 2001 WL 290525 (Minn.App. 2001). Dawn Rolfhus was seriously injured at a Wright County park in 1997 after a tree branch broke and struck her head during a summer storm. She and her husband sued the county and respondent Green View, Inc., a non-profit organization that provides senior citizens with maintenance and custodial work at state and county parks. Green View had a contract with the county to maintain the park at which Rolfhus was injured.

The county park manager testified that the Green View employees, without discussion, undertook to remove the tree that had fallen on Ms. Rolfhus. Harold Johnson, a Green View employee, admitted to looking for dead trees in the park, but stated that it “isn’t our job to chop down trees or anything like that.” Another employee, Frank Duncan, conceded that he never saw any county employees in the park inspect trees, but that he “knew they did it.” The county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. The district court granted summary judgment to the county based on immunity, and to Green View based on a determination that Green View had no duty to inspect trees or warn park patrons of dangerous trees. Rolfhus appealed the grant of summary judgment to Green View.

brokenbranch150213Held: The grant of summary judgment was upheld. The elements of a negligence claim include a duty, a breach of that duty, proximate cause, and injury in fact. Even where no duty otherwise exists, a person who voluntarily assumes a duty may be liable for failing to exercise reasonable care in performing the duty. One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.

The Court ruled that neither the language of the contract between the county and Green View nor the pertinent job descriptions created a duty for Green View employees to inspect trees or warn of their dangers. Furthermore, the county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. There was no issue of fact remaining, and judgment was appropriately entered for Green View.

– Tom Root


Case of the Day – Monday, November 23, 2020


Kee Nee Moo Sha, Inc., had a tract of wooded land on a lake, next to a Bible camp owned by the Baptist Church. What could be wrong with that? No loud music, no dancing all hours of the night, no boozing or riotous living… right?

The minister in charge of the Bible camp knew where the boundaries between the Baptists’ and the company’s lands lay. But he had a problem. How could he build more cabins for the pittance that had appeared in his collection plate? The Lord turned seven small loaves and a few fishes into a feast for 4,000 people. But the preacher, a lesser mortal, couldn’t stretch what little he had into more lodging.

And verily, he began to covet his neighbor’s trees.

The minister had a logger cut down about a hundred of Kee Nee Moo Sha’s pine trees. Surely this was manna from heaven — free timber! Except it wasn’t free, as the Baptists soon found out.

Kee Nee Moo Sha reacted much like a modern, more restrained version of the angry vineyard owner.  It sued. The Baptists failed to heed the Lord’s admonition to make peace with the plaintiff before you get to court.

Too bad, too. The court found that the minister’s trespass was willful, and in fact, it appeared to be rather irked with the fact that – once on the witness stand – the man of the cloth wasn’t very familiar with the 9th Commandment, you know, the one about bearing false witness and all.

Kee Nee Moo Sha wanted the Baptists to pay for the enhanced value of the timber — that is, the value of the timber after being milled — and the court agreed that measure of damages is acceptable where the trespass is willful. But the court can’t guess at what that value might be, and where Kee Nee Moo Sha failed to introduce any evidence on the enhanced value, it missed its opportunity.

The Baptists introduced evidence of the stumpage value of the timber, that is, the value at the point it had been cut down, but before it was hauled and milled. Stumpage value is always lower, because the owner of the timber has to deliver it to the sawmill and pay for the milling before having a product to sell. Because the stumpage value was the best evidence of value in the record, the Baptists were charged for the lower figure.

The trial court assessed punitive damages against the church camp instead of the treble damages for wrongful cutting which statute permits. The Court of Appeals noted that this was entirely permissible, because sometimes trebling the damages just isn’t good enough to deter such conduct. Where the trespass is wanton but the damage only amounts to $100, $300 might just not get an errant preacher’s attention nearly so effectively as a whopping punitive award. The Court said that either trebling or punitive damages may be applied, at the trial court’s discretion.

covet150212And thus, the Baptists rendered unto Kee Nee Moo Sha …

Kee Nee Moo Sha, Inc., v. Baptist Missions of Minnesota-Plymouth Point Bible Camp, 1990 Minn. App. LEXIS 1305, 1990 WL 212222 (Minn.App. 1990). Kee Nee Moo Sha, Inc., is a family-owned corporation organized for the purpose of holding more than 100 acres of forested land near Hackensack, Minnesota, with a resort on the southern end of the property. The resort belongs to the Baptist Church.

In late 1976, in connection with the transfer of the Baptist’s church property to another church unit, a surveyor was hired to survey and mark the boundary between the Baptists’ land and the Kee Nee Moo Sha property. Shortly after the survey was completed, and while the brush was all cleared and orange flags marked the line, the surveyor walked the boundary line with one of the church’s pastors, pointing out in detail the location of the boundary.

About four years later, the pastor wanted to build more camp buildings as cheaply as possible. Looking for some do-it-yourself financing, he arranged for a local logger to cut about 100 pine trees in and near the main camp buildings. While most of the timber was cut on church property, 26 pines were cut on Kee Nee Moo Sha land. In addition, the pastor had the logger clear cut nearly 100 birch and aspen from the same area of the Kee Nee Moo Sha property, along with 1,600 cubic yards of sand which was used in a drain field near the Baptist building project. Kee Nee Moo Sha was unamused.

A lawsuit inevitably followed. The trial court granted Kee Nee Moo Sha damages for trespass and an injunction against further trespass by the Baptists. Unhappy with the paltry damages awarded, Kee Nee Moo Sha appealed, seeking higher measure of compensation, a more extensive permanent injunction, and costs, disbursements and attorney fees.

Held: The appellate court upheld the trial court decision.

The Court observed that there were several possible measures of damages which could be used when trespass to property involves the taking of timber. One of the oldest is the “enhanced value” of the timber after being sawed and transported to the place of sale or transfer, to be used when the trespass is willful. The presumption in trespass cases where timber is cut is that the trespass is willful, and the burden of proof falls to the trespasser to show otherwise.

Here, the trial court found it couldn’t use the “enhanced value” measure, because no evidence was introduced to permit the Court to determine the value of the processed lumber. Consequently, the trial court used the stumpage value presented by the Baptists to set compensatory damages, and awarded punitive damages in addition to arrive at a fair number. The trial court, passing up treble damages that were authorized but not required by statute, awarded punitive damages instead. The trial court found that “even an award of treble damages for that taking would not adequately punish [the Baptists] or compensate [Kee Nee Moo Sha] for the willful trespass which has occurred.”

The Court agreed that the trial judge’s approach was justifiable under Rector v. C.S. McCrossan, Inc., and the treble damage statute. It observed that Rector, while referring to various measures of damages, does not refer directly to punitive damages. Punitive damages may be awarded, however, when “the acts of the defendant show a willful indifference to the rights or safety of others.” The trial court found that the Baptists’ behavior was willful, and the evidence supported it.

ba150212Minnesota law provides that any award of punitive damages will be “measured by those factors which justly bear upon the purpose of punitive damages, including… the profitability of the misconduct to the defendant… the attitude and conduct of the defendant upon discovery of the misconduct… and the total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct, including compensatory and punitive damage awards.” In this case, the Court didn’t think much of the Baptists’ attitude. First, the defendant cut the timber and removed the sand in order to line its own pocket, that is, to obtain cheap building materials for the camp. Second, the pastor continued to deny any willful misconduct throughout the trial, a denial that flew in the face of proof to the contrary and his own admission that he had been shown a clearly marked boundary prior to these takings. The appellate court dryly called the jury’s awarding compensatory and punitive damages a “just” result.

Kee Nee Moo Sha argued for use of the “replacement value” measure of damages also authorized by Rector, but the Court noted that in instances where the cost of replacement is unreasonable or excessive in relation to the damage to the land itself, the trial court may, in its discretion, allow the jury to consider more than one measure of damages in order to permit flexibility and achieve a just and reasonable result.

– Tom Root


Case of the Day – Friday, November 20, 2020


It’s a great old saw, but as logicians like to point out, “every rule has an exception” is a logical fallacy. As if anyone could possibly know every rule, so that he or she could be sure that every rule had an exception (sort of like the people who claim no two snowflakes are alike: how could they possibly know that?).

But beyond that, if every rule has an exception, then the rule that every rule has an exception itself has no exception, in which case every rule does not have an exception. It’s enough to make your head throb.

But all we care about here are rules in tree law. If there is any rule that seems immutable, it is the rule that a boundary tree belongs to the owners of both properties on which it is growing. No owner can do anything to trim or kill the tree without permission of the other owner. Boundary Tree Law 101 right?

Well, yes, but for the exception. In today’s case, one property owner ignores the warnings of the other, and excavates for a basement, only to sever the roots of the big, beautiful boundary oak tree. The court agreed with the aggrieved plaintiffs all the way, except at the end, where the Supreme Court said, “Sure, that’s the rule… but there’s an exception.”

The exception is that if an owner harms or kills the tree while using his property in a reasonable way, the other owner is without recourse.

Does that tiny little exception look big enough to drive a truck through?

Amazingly enough, this decision remains good law in Oklahoma.

Higdon v. Henderson, 304 P.2d 1001 (Supreme Ct. Okla, 1956). The Higdons filed their petition seeking damages for destruction of a shade tree they said was located on the lot line between their property and that of John Henderson. They said it had been a large towering oak tree which was a valuable shade tree for both lots. They claimed John had been building his house when, over their objections, he excavated a basement, cutting the tree’s roots and killing it.

John argued the Higdons could not recover, because their complaint did not say to whom the tree belonged, and at any rate, they did not state a claim on which they could collect. The trial court agreed, and the case ended up in the Oklahoma Supreme Court.

Held: Identifying the tree as a boundary tree was good enough, but the Higdons could not collect for Henderson’s killing of the tree.

The Court acknowledged the general proposition that “trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.” The Higdons’ complaint referred to the tree as a boundary tree, and that was quite adequate to identify common ownership of it by John and the Higdons. The Court acknowledged the general proposition that “trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.” The complaint referred to the tree as a boundary tree, and that was quite adequate to identify common ownership of it by John and the Higdons.

The Supreme Court also agreed with the Higdons that because the tree was standing on the boundary line, it was the common property of both owners, so that neither had the right to damage or destroy the tree without the consent or permission of the other. But, the Court said, that rule is “qualified by the right of an abutting owner to use his property in a reasonable way and conversely, not in an unreasonable way.”

Here, the Higdons complained that John was building a house. This is not an unreasonable use of the property, the Court ruled. Therefore, the resulting incidental injury to the tree did not give the Higdons a right to recover damages.

– Tom Root