Case of the Day – Thursday, July 28, 2016


skin150629We’ve seen several of these mutual acquiescence cases recently, for no apparent reason. Over the years, memories fade… and what usually began as a mistake or a matter of convenience — such as when two parties build a fence that’s not right on the proper boundary line, but decide to let it go — becomes the de facto boundary line.

In today’s case, Ms. Shoemake (she seems to be missing an “r”, doesn’t she?) established that a broken-down fence had become her property’s boundary by mutual acquiescence, but only by the skin of her teeth. The evidence that one of the former neighbors had agreed to the fence as the boundary was remembered only by Ms. Shoemake. The former neighbor remembered the conversation, but not the crucial concession.

The Court of Appeals wasn’t all that sure, but under the relaxed standard of review appellate courts give the fact-finding by trial courts, decided by a 2-1 margin that Mrs. Shoemake had shown then fence line to be a boundary by acquiescence. But a plaintiff shouldn’t try too many times to win on such a tissue-thin showing.

There’s always the chance that someone else might remember it differently. And then, the trial devolves into a “swearing contest.”

gvtwork150629Boyster v. Shoemake, 272 S.W.3d 139, 101 Ark.App. 148 (Ark.App. 2008). Teresa Shoemake owned land next to James Boyster. A boundary-line dispute arose in summer 2005 when several of Teresa’s hunting dogs went missing on her property. When she went to the disputed area on her four-wheeler to find the dogs, Ms. Shoemake saw that an old fence that had stood there for about 65 yesars had been cut, rocks had been picked up, and trees had been cut down.

Mrs. Boyster told Teresa that the Boysters had surveyed the property and discovered that the fence line was not on the boundary. Shoemake described the fence as an old, rusty strucgture that had grown into the trees. She said the fence had been on the property her entire life. Her grandmother acquired the property in 1942.

Ms. Shoemake recalled visiting the property often, and she said that in the 1960s, the property on the other side of the fence was used as pasture land. She never saw anyone other than her family use the property south of the fence. Her family’s side of the fence contained trees, which had not been used for anything other than Christmas trees and recreation.

This would have been good advice for Ms.Shoemake and her neighbor ...

This would have been good advice for Ms.Shoemake and her neighbor …

Ms. Shoemake said that Bryan Tatum, the Boysters’ immediate predecessor in interest, acknowledged the fence line as the boundary line in a conversation with her, and asked if he could dig across her property and install a water line. Others testified that they had always believed the fence line was the boundary. The trial court found that Ms. Shoemake established a boundary line by acquiescence and quieted title to the disputed tract in her name. Boyster appealed.

Held: Ms. Shoemake had proven that the fence line was a boundary by mutual acquiescence. The Court said that mere existence of a fence or some other line, without evidence of mutual recognition, cannot sustain a finding of boundary by acquiescence. However, silent acquiescence is sufficient, as the boundary line is usually inferred from the parties’ conduct over so many years. A boundary by acquiescence may be established without the necessity of a prior dispute or adverse use up to the line. For a party to prove that a boundary line has been established by acquiescence, that party must show that both parties at least tacitly accepted the non-surveyed line as the true boundary line. The mere subjective belief that a fence is the boundary line is insufficient to establish a boundary between two properties.

Not the kind of "self-serving" the court had in mind ...

Not the kind of “self-serving” the court had in mind …

Here, Boyster complained that Shoemake failed to present any evidence that Boyster or any of his predecessors in interest considered the fence line to be the boundary. But the Court observed that Shoemake said that Tatum acknowledged the fence as the boundary line. While this was rather “self-serving” testimony, it was within the province of the trial court to find whether Teresa’s evidence was credible. Besides, other testimony from Shoemake and her witnesses established that no one north of the fence used the property south of the fence and that property north of the fence was pasture, while property south of the fence was woods. The Court concluded that Ms. Shoemake had presented sufficient evidence – just barely enough –to establish that Boyster and his predecessors in interest recognized the fence line as the boundary between the two properties.


Case of the Day – Wednesday, July 27, 2016



Did that plaintiff ever have gall ... or gull ... or cojones or something...

Did that plaintiff ever have gall … or gull … or cojones or something!  What he didn’t have was any proof.

The plaintiff in today’s case had his foot broken when a branch from his neighbor’s tree fell. So how was he different from this rather odd-looking seagull sitting on a seawall to our left?

Easy – the gull has a leg to stand on.

Our hapless litigant – Rick Meyers by name – lived next to a man named Delaney, who owned a catalpa tree. The catalpa is a pretty good-looking deciduous tree that drops bean pods and leaves in the fall, but little else. It’s a solid Anglo-American tree, flowering in the spring and with large leaves and deep shade in the summer. In fact, it’s the sole food source for the catalpa sphinx moth, a creature favored by southern anglers as bait. Birds love it, caterpillars love it, fishermen love it … and so do most people.

That list would exclude our hobbling protagonist, Rick Meyers. The Delaneys’ catalpa tree provided shade to Mr. Meyers’ driveway with its overhanging branches. But one day, Rick had run barefooted outside to put up the car windows (we suspect a thunderstorm was about to hit, which would have been accompanied by gusty winds, but the record didn’t say as much). While he was doing so, a branch broke free from the tree and fell on his foot.

A catalpa -beloved by fisherman and fowl - but not by Rick Meyers.

A catalpa -beloved by fisherman and fowl – but not by Rick Meyers.

Rick didn’t have a shred of proof that anyone – including the Delaneys – had reason to know that the branch was going to break. But lack of evidence would not inconvenience our Rick. He sued anyway, claiming that as owners of a tree in a residential area, the Delaneys had a duty to know the branch was going to fall, and never mind how they were supposed to have figured that out. You see, Rick’s foot hurt, and someone had to pay.

The trial court took a more sanguine view. It believed that if the Delaneys couldn’t clearly see that the tree was dangerous, they couldn’t be found to be negligent because they had not sleuthed it out. The Iowa Supreme Court agreed. The risk has to be seeable before it can be found to be foreseeable.

A landowner has no affirmative duty to inspect trees where no defect is "readily observable."

A landowner has no affirmative duty to inspect trees where no defect is “readily observable.”

Meyers v. Delaney, 529 N.W.2d 288 (Iowa Sup.Ct. 1995). Meyers and Delaney owned adjoining properties. Standing between their homes, but on the Delaney homestead, was a large catalpa tree. The tree limbs hung over the Meyers driveway. The Meyers family parked cars under the branch each day, and the Meyers kids played around it when outside.

One evening in mid-July, 1990, Rick Meyers ran barefoot out to his car to roll up the windows. He heard a large crack, and then a large catalpa limb fell from the tree, striking and severely injuring his foot. He sued the Delaneys for negligence, claiming they failed to maintain the tree properly, failed to warn him of the dangerous condition of the tree, and failed to protect him from a danger that in the exercise of reasonable care the Delaneys knew or should have known existed.

The trial court found that the Delaneys neither knew nor should they have reasonably known the tree was dangerous, so they were not negligent. Rick Meyers appealed.

Held: The Iowa Supreme Court agreed that the Delaneys were not liable.

The Meyers v. Delaney rule - it's not foreseeable unless its seeable.

The Meyers v. Delaney rule – a tree’s defects are not foreseeable unless they’re seeable.

The Court noted that the general rule is that one who maintains trees owes a duty to avoid injuring persons on adjoining premises by permitting a tree to become so defective and decayed it will fall on them. However, the Court held, there is no duty to consistently and constantly check all trees for non-visible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. If the decay or infirmity is readily observable, the tree owner may be liable for injuries caused by a defective condition of the tree if he or she had actual or constructive notice of the trees defective condition.

In this case, the catalpa tree had had a dead limb removed by a friend of the Delaneys the summer before. The friend, who had some experience working in trees, testified he observed nothing in the tree to cause him concern about his safety. Furthermore, while Meyer’s expert tree trimmer testified that the tree was dangerous, he conceded on the stand that there was nothing that Delaneys could have observed about the tree before the accident that would have alerted them to be concerned over its safety.

Thus, there was no negligence.


And Now The News …



trimmers160728Boise, Idaho, Statesman, July 27, 2016: Tree torts in the City of Trees are rarely successful

In a way, it’s surprising how few people file tort claims against the city of Boise because tree branches fell on their cars or houses. Over the 12 months between the beginning of last July and the end of June, the city received 18 tree-related tort claims. That puts trees among the most common causes for torts, but the number pales when you consider Boise has 40,000 to 50,000 trees in public rights-of-way. Tort claims are legal notices that a plaintiff intends to sue a governing body. The city received more than 130 between July 2015 and June 2016. Besides tree issues, other common causes for these notices include sewer lines backing up into people’s basements, accidents involving police and other city-owned vehicles, as well as pedestrians tripping on sidewalks. Boise rarely pays out on legal action stemming from branches that fall from trees. Since 2010, tree-related tort claims led to just four payments from the city totaling $6,260, risk specialist Jonny Bush said. That’s out of around 100 total tree-related claims during that time…

Seattle, Washington, Seattle Weekly, July 27, 2016: Seattle’s long-neglected tree canopy is on a collision course with development

Tawny Bates knows the trees in her neighborhood well. She points them out as she walks down the street on a recent afternoon — the big leaf maple, a chestnut, a willow, a blue spruce. These towering trees, she says, are in the crosshairs of development — eight of them, each roughly 40 feet tall, in a three-block radius in her little corner of Wallingford alone. “You know, we used to have majestic old forests here,” she says, resting one hand reverently on a massive willow while holding a big binder containing highlighted sections of the Seattle Land Use Code in the other. She speaks in a calm but impassioned voice as she describes the benefits that mature trees provide: they fight air and water pollution, cool the neighborhood and buffer residents from the urban din. Bates and her fellow members of the Wallingford Community Council fear that those benefits could soon be lost as the city adopts new development plans that they feel threaten to diminish Seattle’s tree canopy…

trimB160728Duluth, Minnesota, WDIO-TV, July 27, 2016: Advice for homeowners about tree removal companies and pricing

With so many downed trees across the Northland, there is ample work ahead for tree removal companies. In the Morley Heights neighborhood, homeowners have been receiving flyers from companies, most of which are from out of town. Gerry Johnson showed us his pile of flyers. He had a 100 foot tree come down and land on a car in the street. Thankfully, it didn’t hit his home or hurt anyone. “I had a friend from the Range help me cut it up. But if he wasn’t available, I would have called Rick’s,” he told us.” Rick’s Tree and Stump Removal crews were next door at his neighbor’s, Joanne Camelon. “I’ve used Rick’s for years. I did get quotes from other companies, and in my mind, they were outrageous. Buy local, because these people want your business,” she said. We met up with Rick Hanson, owner of Rick’s. They’ve been swamped for weeks, since the first storms in July did a number on Island Lake. Now it’s even busier. “We are focusing on the trees that hit homes first, so contractors can seal the roofs. Then it will be garages, and then yards. We are working as fast as we can,” he said…

Edison, New Jersey, News 12 New Jersey, July 27, 2016: Experts: Tree pruning can help prevent damage during storms

Tree limbs brought down by recent summer storms have been the cause of lot of damage and power outages across the Garden State. Tree experts say that there are some ways homeowners can prevent major damage from happening on their property during a severe storm. “We’ve seen a lot of trees on top of cars…those branches on top of the roof of the houses from trees that have not been maintained,” says Maurcio Fallas, owner of Amazing Tree Services. Fallas says that preventative tree pruning can help prevent a disaster. He says his company helps homeowners remove tree limbs that are hanging over houses and power lines. He says that he also helps make trees stronger…

historytree160726Pomona, California, Inland Valley Daily Bulletin, July 26, 2016: Pomona tree removal fight throws major shade on permit process

The tree surgeon was in an elevated lift, sawing limbs off a towering deodar pine tree on a Saturday morning in Pomona, when the first police car pulled up. A second followed. Then a code enforcement vehicle. A neighbor was begging that the tree be saved. Another was filming on her phone. “It was like something out of a movie,” homeowner Christian Irias marveled later. Irias showed everyone his permit, issued by City Hall, which satisfied police and the first code enforcement officer, who reportedly signaled the surgeon to start up his chain saw. Then a second code enforcement vehicle arrived. That officer shut down the job until City Hall reopened Monday and the situation could be straightened out…

Science Daily, July 26, 2016: New model is first to predict tree growth in earliest stages of tree life

Land managers, forestry professionals and conservationists seek to predict how trees will grow so they can better manage existing forests and regrow forests after logging operations. Previous tree growth models can reasonably predict how trees grow once they are about 20 years old and achieve “crown closure” with the trees in the forest around them. Crown closure occurs when trees in a specific area grow wide and tall enough that their canopies connect. Now, University of Missouri researchers have created a new statistical model that accurately predicts tree growth from when they are first planted until they reach crown closure. For their study, Lance Vickers, a former doctoral student at MU, and his adviser David Larsen, a professor of forestry in the MU College of Agriculture, Food and Natural Resources, built tree growth statistical equations that describe the process of early tree growth. Larsen says being able to accurately predict how a stand of trees will grow as soon as they are planted is important for forest managers to effectively grow and maintain forests. He says the model can be applied to forests in any climate zone. “Only about 10 percent of planted saplings will survive to reach crown closure when they are about 20 years old,” Larsen said. “If forest managers can accurately predict which 200 out of 2,000 saplings will survive in a given acre of forest, those managers can spend their time more efficiently by protecting those trees and cutting back trees that will not survive, but still compete with surviving trees for resources…”

airport160726Danbury, Connecticut, News Times, July 26, 2016: Tree removal on private lots near Danbury Airport to cost $1 million

The surveyors who are evaluating trees in a high-elevation neighborhood west of Danbury Airport are not to be confused with vegetation managers working across greater Danbury to clear branches from power lines. The surveyors seen on Briar Ridge Road and Miry Brook Road are part of an expensive and complicated mission to remove trees that have grown into the western approach of Danbury Airport’s Runway 8. The problem trees – one dozen stands of them on eight private properties – have become such hazards that the Federal Aviation Administration has banned all bad-weather night landings at Danbury until the obstructions are removed. Since the city cannot cut back the problem trees without property owners’ permission, it is negotiating with homeowners to buy the rights…

Evansville, Indiana, WEHT-TV, July 26, 2016: State champion worthy tree receives life-saving treatment

It pre-dates electricity in our homes and cars on our roads. It even came before the days of the civil war. Thanks to a modern day treatment, however, a tree that is estimated to be at least 175 years old, and certainly wide enough to be the new state champion green ash tree, should stand for years to come. Located in the rolling farmland of southern Spencer County, the behemoth of an ash tree is protected from the destructive, invasive emerald ash borer. With a circumference of nearly 20 feet and a height likely exceeding 90 feet, the giant green ash tree on the front lawn of Monica Daming’s home is truly a sight to behold. “The first thing [Trugreen] did was take a picture [with their 6’3” employee] next to it,” Daming said. “Then, I knew they thought it was pretty big.” For Tony Rainey, the service manager for Trugreen’s Evansville location, it was an honor. Rainey, who has treated hundreds of ash trees throughout his career, was awestruck. “This is by far the biggest ash tree I have ever seen,” Rainey said…

crape160726Redlands, California, Daily Facts, July 25, 2016: Crape myrtle trees are blooming in Redlands

You can tell it’s summer in Redlands when the blooms of the crape myrtle trees, Lagersgtroemia indica, appear. Each summer, these deciduous trees put on a colorful eye-catching show. Brilliant clusters of red, purple, pink, lavender and white crinkly-edged flowers that look like crepe paper seem to fill the trees to overflowing. And the show goes on and on. This tree has one of the longest flowering periods in existence — from 60 to 120 days. It seems to bloom all summer long. The Lagerstroemia indica or crape myrtle tree is not a myrtle but a member of the Lythraceae family, named for a German woman, Myrtle von Lagerstroem…

San Bernardino, California, Sun, July 25, 2016: City tree falls on San Bernardino home, car

A tree fell on a woman’s house and car early Monday morning in what she says is an ongoing issue with city trees in her neighborhood. “I heard it and it sounded just the way it sounds like when a tree falls in the movies, like cracking and breaking wood,” said Linda Estrada, 47, who lives at the home in the 1500 block of W. Home Avenue in San Bernardino. “Then I heard the boom when it hit the house and then I heard my car alarm go off.” It was about 4 a.m. when the large tree which sits outside Estrada’s home cracked in two, sending the entire top portion on top of her home, car and into her yard. Branches even blocked her neighbor’s home. “She couldn’t get into her house,” said Estrada. Police were called out soon after the tree fell, but Estrada said it took until about 1 p.m. for San Bernardino city crews to show up to remove the debris from both her property and that of her neighbor…

businesstree160726Minneapolis, Minnesota, Twin Cities Business, July 25, 2016: A tree crash landed on my business — What do I do?

If your place of business has been affected by a severe storm or disaster, it’s important to formulate a plan before and after the event occurs. After severe storms rocked parts of northern Minnesota in recent weeks, it has become increasingly important for business owners to be aware of what actions should be taken before and after a disaster hits. If a Doppler radar shows a tornado, heavy winds or strong thunderstorm approaching, Minnesota Department of Commerce spokesperson Julia Miller suggests making sure the office space or store is well kept and all valuables are secured before leaving. Additionally, before locking the doors, take pictures of both the interior and exterior of the building. “That way, in case there is damage, you have something recent to compare when filing an insurance claim,” she said. Furthermore, double check what type of damage is covered under the insurance policy for your place of business. “We encourage everyone to talk with their insurance agents to figure out what coverage is appropriate for them,” Miller said. “Because, as a business owner, you don’t want to be either under-insured or over-insured…”

Rochester, Minnesota, KAAL-TV, July 25, 2016: City of Rochester takes new approach to save trees from Emerald Ash Borer

It was almost two years ago when Emerald Ash Borer first showed up in Olmsted County. Now, the city is working to get ahead of the problem before its too late, taking a different route than what was once used to stop the spread. Originally, the idea was to remove and replace ash trees. Now, there’s a new way of thinking. “With technology and improved chemicals, it’s quite inexpensive to retain a tree and because of the benefit we receive from a community back from the trees we found treatments are economically viable options,” said City Forester Jeff Haberman. In March, the approved a strategic plan for the infestation. For the next 20 years, Rochester has committed to treating trees by injecting a chemical called TREE-äge. At about $1,000 a tree, that total comes to just more than $5 million for the city. “It’s cheaper to treat a tree than it is to remove and replace. In fact, you can treat a tree for about 20 years right now with today’s technology for what it costs to remove and replace a 20-inch ash tree,” said Haberman…

wreck160725Columbia, South Carolina, The State, July 24, 2016: I-95 tree-cutting project delayed as state tries to avoid repeating problems

The schedule to cut down dangerous trees along Jasper County’s stretch of I-95 is slipping further behind as the S.C. Department of Transportation works to avoid miscalculations, cost overruns — and perhaps a political firestorm — that a similar tree-cutting project sparked in 2010 near Charleston. While DOT originally estimated the Jasper County work could begin this year, its construction phase is now slated to begin at the end of the summer of 2017. The delay increases the odds that more lives will be lost along the dangerous stretch of road. Since DOT originally announced plans to remove trees along the interstate’s edges and median, at least six drivers have died in tree-related crashes, according to the Office of Highway Safety. More drivers are fatally striking trees on I-95 in Jasper County than in any other S.C. county the interstate touches, according to a 2015 analysis by The Island Packet and The Beaufort Gazette. This despite Jasper being only the fifth most likely county to have a crash, according to the review. Roughly 36 percent of all tree-related fatalities — 25 deaths from 2010 through 2015 — occurred in the relatively short stretch of the interstate that runs through Jasper County, according to the papers’ analysis. That’s because some Jasper County trees are within 15 or 20 feet from the edge of the interstate — a violation of a former highway safety guideline that recommends a 30-foot clear zone. More recent national research recommends even greater distances…

Seattle, Washington, KOMO-TV, July 24, 2016: Another ‘man in tree’ arrested in Seattle

Police arrested a man on Sunday after he spent nearly 12 hours perched in a tree in Seattle’s Lake City neighborhood. Officers were called to the scene around 2:45 a.m., when the man climbed onto the roof of an apartment building near 32nd Avenue Northeast and Northeast 137th Street, then crawled across some power lines and made his way into a nearby tree. Police say it started with some sort of domestic dispute. The man was wanted for domestic violence vandalism and also had warrants out for his arrest. He refused to come down from the tree until about 1:30 p.m. No one was hurt and the man was taken into police custody…

treelawn160725Omaha, Nebraska, WOWT-TV, July 24, 2016: Homeowner order for tree trim on public right of way

An investigation into a tall order might surprise many property owners. A dangerous limb that was spotted by a city inspector was cut and now the closest homeowner has been told to pay. The woman told WOWT 6 News it’s not fair because of where the tree stands. Cheryl Weston lives along Emmet Street; she said a tree with dead branched posed a danger for those walking near the area. “I’m concerned about the tree because we have kids in the neighborhood who walk up and down the street and those can fall out of the blue, there doesn’t have to be a storm,” said Weston. A tree stands in public right of way in front of Shelly Brown’s home. “Its not my tree, its the city’s tree,” Brown told Six On Your Side. But the city’s Chief Field Inspector Dave Austin said many property owners don’t realize that trees located in public right of way are the responsibility of the adjacent property owner. Brown got a notice with a deadline of next month, but city’s inspector says he’s flexible. “If it got to the point our crews came and removed the dead wood out of the tree, you’d get a bill for it and have until the end of the year to pay it,” Austin said…

Pittsfield, Massachusetts, Berkshire Eagle, July 24, 2016: Drought hits Northeast; could last months

At Lavoie’s Farm in New Hampshire, beans and corn haven’t broken through the ground yet and fields of strawberries are stunted. The drought that has taken hold in the Northeast is especially felt at John Lavoie’s farm in Hollis, presenting him with some tough choices. Irrigation ponds are drying up, forcing him to choose between tomatoes and berries or apple and peach trees. Lavoie decided to hold off watering the fruit trees so he could quench the tomato and berry plants before they succumb to the heat. “We need some rain pretty quick,” Lavoie said. “There is just some corn that won’t make it. A lot of things we would like to give water to, we can’t.” The dry blast in New Hampshire is being felt throughout the Northeast, from Maine to Pennsylvania, driven by a second year of below-average rainfall. Though not as dire as the West Coast drought of five-years running, the dry, hot weather has stressed farms and gardens, prompted water restrictions and bans in many towns and threatened to bring more wildfires than usual…

xmastree160722Easton, Pennsylvania, Express-Times, July 21, 2016: Christmas in July: What growers hope to find at champion Pa. tree farm

The folks at Crystal Spring Tree Farm in Carbon County, Pa., are used to attention. The farm has won the privilege of supplying trees to the White House four times for the Christmas season. This weekend the farm off Route 902 in Mahoning Township will host the 2016 Pennsylvania Christmas Tree Growers Association Summer Meeting — a gathering of more than 150 growers. Farm co-founder Margaret Botek said it is more than an honor. “Let’s put it this way. It’s a commitment,” she said Wednesday. “You have all these people coming and you have to be ready. There’s lots of works to be done.” Margaret and Francis Botek celebrated 50 years in business in 2014, the last year one of their fir trees graced the Blue Room of the White House in Washington, D.C. Margaret Botek said growers will converge on the farm Friday night for a meet and greet, then spend all day Saturday sharing ideas and meeting with vendors and one another…

Quincy, Massachusetts, Patriot-Ledger, July 21, 2016: Wrongful death claim filed against Abington after tree killed Whitman couple

A Boston attorney has filed a $400,000 wrongful death claim against the town for the estates of a Whitman couple killed when a large, rotted tree fell onto their moving car. The April 3 accident killed Manuela Teixeira, 51, and Franklin Teixeira, 49, when the towering tree fell onto their BMW as they were traveling along Rockland Street in Abington. Attorney Nicholas Carter of the Boston law firm Todd & Weld LLP, representing the Teixeiras’ estates, sent a letter to Town Manager Richard LaFond and Town Clerk Leanne Adams making a claim “arising from the negligence of the Town of Abington, for pain and suffering and wrongful deaths of our clients,” the letter states. The letter, dated June 30 and received by the town on July 5, alleges the tree was on Abington town property when it fell onto the Teixeiras’ BMW, killing the couple…

cottonw17Oklahoma City, Oklahoma, The Oklahoman, July 21, 2016: Nature & You: Determining tree age is no easy task

Looks can be misleading. If you go out to any forest hereabout, you are sure to come upon some individual trees that tower way above the other trees. These forest giants are so huge at their base that it takes a multitude of people to join hands and encircle the tree. These are cottonwoods trees. That is what cottonwood trees do — grow tall and fat. You can be forgiven if you make the assumption that it would take a span of a hundred years for cottonwood trees to reach such an immense size. Here’s a little hint, however: These are actually the youngsters in the forest. Like I said, looks can be misleading. Cottonwoods grow tall in a short number of years. There is a price to be paid, however, for such a rapid growth spurt; the cottonwood trees are weak and are easily susceptible to wind damage. Add to that the fact that cottonwood trees, for some odd reason, insist on punching their crowns far and away above the tops of the other trees in the forest. As a result, the tops of the cottonwood trees catch the full brunt of the incessant winds, much like the sails on the central masts of an oceangoing ship. Wind shear can twist off large portions of the cottonwood tree…

Science Daily, July 21, 2016: Trees’ surprising role in the boreal water cycle quantified

Approximately 25 to 50 percent of a living tree is made up of water, depending on the species and time of year. The water stored in trees has previously been considered just a minor part of the water cycle, but a new study by University of Alaska Fairbanks scientists shows otherwise. Research published this week in Nature Scientific Reports is the first to show that the uptake of snowmelt water by deciduous trees represents a large and previously overlooked aspect of the water balance in boreal watersheds. The study was led by Jessica Young-Robertson, who worked with other scientists from the National Weather Service and UAF’s International Arctic Research Center and Geophysical Institute. The results are critical for understanding boreal forest hydrology and ecology, including soil moisture, the availability of freshwater, tree health and the ways trees influence regional weather, particularly thunderstorms. All of these factors are important for understanding the frequency and severity of wildland fires. Like a straw, trees draw water up from the soil and eventually release it into the atmosphere through leaves or needles. The scientists measured the water content in both deciduous and evergreen trees in several locations at different times of the year. They found that deciduous trees took up a surprisingly large amount of water in the period between snowmelt and leaf-out. These trees absorbed 21 to 25 percent of the available snowmelt water — to the point of being completely saturated. For the boreal forest of Alaska and Western Canada, this equates to about 17-20 billion cubic meters of water per year. That is roughly equivalent to 8 million Olympic-sized swimming pools or 8-10 percent of the Yukon River’s annual discharge…

elm160721Pittsfield, Massachusetts, Berkshire Eagle, July 20, 2016: ‘I want that tree to outlive me,’ says former Pittsfield resident who paid for treatment for historic elm

It’s been a while since Priscilla Rafuse would play in Brattle Brook Park under the giant American elm tree. She grew up on Dillon Street with the tree behind her house. Back then her last name was Fisher. She used to paint pictures of it or hang out with her dad in its shade. It was always in the background as she grew older, running through the park with her friends. Even though she moved away in 1979, Rafuse still has fond memories of the tree. So from her home on Cape Cod, where she still has a photograph of the tree hanging on a wall, she recently donated about $800 to Elm Watch for a medical procedure to prevent the tree from becoming infected with Dutch elm disease. “I want that tree to outlive me,” Rafuse said. So Wednesday morning, specialists with the Haupt Tree Co. inserted more than 90 taps at the base of the tree and injected about 60 gallons of a specialized treatment that traveled throughout the tree on a dry, windy day…

Sonora, California, KVML Radio, July 20, 2016: Mustering tree mortality aid for those in need

A homegrown multi-agency effort spearheaded by civic groups soon plans to help fund dead tree removal projects for those who cannot afford to tackle them on their own. As Tuolumne County, among an increasing number of counties, remains under a pervasive tree mortality emergency due to drought-induced, spreading bug-related infestations, the Sonora Lions Club has impressively stepped up to organize efforts. They are specifically targeting to help fill a daunting, doughnut hole-sized funding gap by providing private property owners without essential means a hand-up in helping remove dangerously close tree hazards that might otherwise destroy their primary residence or threaten their lives. A centennial project of Sonora Lions Club Tuolumne County, the Tree Mortality Aid Program, which will become better known in the coming months as TMAP, holds as its mission to improve the health and safety of low income seniors and disabled homeowners in Tuolumne County. This collaboration, with public and private partners, will provide resources, support, and assistance in the removal of hazardous, dead and dying trees as a result of catastrophic tree mortality…

sequoia160721Associated Press, July 20, 2016: Northern Michigan group clones California forest giants

At the foot of a giant sequoia in California’s Sierra Nevada, two arborists stepped into harnesses then inched up ropes more than 20 stories into the dizzying canopy of a tree that survived thousands of years, enduring drought, wildfire and disease. There, the arborists clipped off tips of young branches to be hand-delivered across the country, cloned in a lab and eventually planted in a forest in some other part of the world. The two are among a cadre of modern day Johnny Appleseeds who believe California’s giant sequoias and coastal redwoods are blessed with some of the heartiest genetics of any trees on Earth — and that propagating them will help reverse climate change, at least in a small way…

New York City, New York Post, July 20, 2016: Judge urges Tomei’s dad, Sean Lennon to settle tree dispute

Actress Marisa Tomei’s dad had a “My Cousin Vinny” moment in a Manhattan courthouse Tuesday when he stood up in the middle of a proceeding about a dispute with his neighbor Sean Lennon and asked to represent himself. “I’m still a registered attorney,” Gary Tomei snapped, while jumping up and pushing his own lawyer to the side. Tomei was frustrated with his lawyer’s performance during a hearing over a 60-foot ailanthus tree on Lennon’s property that has invaded Tomei’s W. 13th Street townhouse. “I’m in a dilemma,” Tomei told Judge Debra James. John Lennon and Yoko Ono’s son lives next door to the Tomeis in Greenwich Village. The Tomeis are asking the court to order the celebrity scion to chop down his tree because the roots have cracked their stoop and their basement walls.“I can’t fix my property. I would cut the tree as it encroaches onto my stoop. If I cut it, the damaged tree will die,” he said…

willow160720Off The Grid, July 19, 2016: The incredible tree that controls flooding, cleans soil, and cures headaches, too

Eking out the greatest potential from your homestead may seem like quite a challenge. Acreage is at a premium, so how can it best be utilized to produce what is needed to make a homestead more self-sufficient or even produce additional income to reinvest in the land? These are common questions, with no definite right or wrong answers. There are many good ideas to try and implement — one of which is adding a stand of willows on your land. Have you considered growing willows? The trees and shrubs that make up the Salix family are varied, including the ornamental varieties popular in modern landscaping and the supple basket willows used in ages past for creating baskets of all kinds, furniture and fences. Willows, when properly maintained, can be a wonderful addition, such as to the edge of streams and low-lying areas that retain a lot of moisture on the homestead. They can provide fuel and medicine, act as a living fence, be harvested for wickerwork or even be harvested and sold as a cash crop for biofuel energy plants…

Holmes Beach, Florida, Islander, July 19, 2016: Judge deliberates tree house owners plea for municipal vote

Whether voters in Holmes Beach will be asked to weigh in on an unpermitted, beachfront tree house is in the hands of 12th Circuit Judge Don T. Hall. After an hour of courtroom arguments July 15 in Bradenton, the judge asked attorney Jim Dye, representing the city of Holmes Beach, and David Levin, representing tree house owners Lynn Tran and Richard Hazen, to prepare proposed orders for his consideration. Dye rested his argument on state law, which provides “an initiative or referendum process in regard to any development order is prohibited.” What constitutes a development order or permit is “the nut we’re here to crack,” Dye told the judge…, July 19, 2016: Group works to save the destruction of the iconic palm tree

When a monster beetle arrived in Hawaii and began chomping down palm trees, students with Wichita State University’s Bug Lab took action. Oryctes rhinoceros, also known as coconut rhinoceros beetles, have already decimated 50 percent of coconut palms in Guam. It’s an ecological and economic disaster that has now spread to Oahu in Hawaii and is likely to continue its march to other nearby tropical areas. But WSU graduate students Josh Dunlap, Jackie Baum and Emmy Engasser – guided by assistant entomology professor Mary Liz Jameson – hope to stop the spread of this destructive species through the creation of a website and mobile app that helps the public identify the invasive pests and notify proper authorities. The website and Hawaiian Scarab ID app, available for iPhone or Android, were developed in partnership with the U.S. Department of Agriculture. They were the brainchild of Dunlap as part of his master’s thesis. Dunlap graduated from WSU in May and has since been hired full time at the USDA…

Rapid City, South Dakota, Journal, July 19, 2016: City council rejects expanding tree removal

The Rapid City Council Monday night rejected the proposed dead and diseased tree removal ordinance. The original ordinance, established to deal only with mountain pine beetle infested and damaged trees, was up for expansion to include all diseased and dead trees. But the city council voted it down for several reasons. Proposed changes included city financial aid to low-income property owners needing help to get rid of troubled trees. Several council members said the revised ordinance did not take care of safety issues as envisioned. Alderman John Roberts adamantly opposed the updated ordinance saying he would, “like to see it die.” He called its possible passage tantamount to opening “a can of worms,” where they are going to make more problems for homeowners who possibly can’t afford tree removal on their own by limiting their options to city-approved contractors on city terms…

unlawful160719San Jose, California, Mercury-News, July 18, 2016: San Jose leaders vow to replant 23 trees that were severed

Rhonda Berry, a South Bay nonprofit director who earns a living planting trees, got a frantic phone call Friday morning and raced out the door to find the worst case of vandalism she’s seen in 25 years. And then the tears started flowing. “These trees were basically hanging without their feet touching the ground,” Berry explained. Someone had sawed off the bottoms of 23 trees along Meridian Avenue overnight Thursday and Berry watched Monday as their still-green but lifeless limbs now swayed in the morning wind. “It would be like 23 people getting their feet cut off and hanging,” Berry said. “It appeared to be very premeditated. There was something so mean in the way it was done.” Berry, the CEO of Our City Forest, a San Jose nonprofit that planted the trees along the busy thoroughfare, has seen plenty of vandalism in her career. But nothing compares to this. Her organization plans to contact police about what she believes is a criminal act…, July 18, 2016: Trees rely on a range of strategies to hunt for nutrient hot spots

On the surface, trees may look stationary, but underground their roots—aided by their fungal allies—are constantly on the hunt and using a surprising number of strategies to find food, according to an international team of researchers. The precision of the nutrient-seeking strategies that help trees grow in temperate forests may be related to the thickness of the trees’ roots and the type of fungi they use, according to David Eissenstat, professor of woody plant physiology, Penn State. The tree must use a variety of strategies because nutrients often collect in pockets—or hot spots—in the soil, he added. “What we found is that different species get nutrients in different ways and that depends both on that species’ type of root—whether it’s thin or thick—and that species’ type of mycorrhizal fungi, which is a symbiotic fungus,” said Eissenstat. “What we show is that you really can’t understand this process without thinking about the roots and the mycorrhizal fungi together.” Tree species with thicker roots—for example, the tulip poplar and pine – avoid actively seeking nutrient hot spots and instead send out more permanent, longer-lasting roots. On the other hand, some trees with thinner roots search for nutrients by selectively growing roots that are more temporary, or by using their fungal allies to find hot spots…

charlotte160719Charlotte, North Carolina, Observer, July 18, 2016: Saving trees or endangering neighborhoods? City considers overhauling ordinance

Is a rule meant to save trees putting neighborhoods in jeopardy? That was the question Monday night, as Charlotte City Council considered modifying a regulation intended to preserve trees that some neighbors say developers are using as a loophole to subdivide and over-build on single-family residential lots. Known as the tree-save ordinance, the regulation requiring developers to preserve a certain percentage of trees on new building sites was first adopted in 1978. In 2002, City Council revised the ordinance, allowing developers to build more houses on smaller lots in single-family areas – if they agreed to save more trees. The idea is simple: Let developers build on smaller lots so that a larger percentage of the site – more than the minimum 10 percent requirement – can be put aside as a tree-save area. The incentive was intended to preserve open spaces in large, new subdivisions. But the revised ordinance doesn’t distinguish between new subdivisions and existing lots in established neighborhoods. That means that builders can also reduce their minimum lot sizes by preserving more than 10 percent of the area as tree-save space when they build on existing lots in established neighborhood…

Racine, Wisconsin, Journal Times, July 18, 2016: City not responsible for damage caused by trees barring negligence

A June 5 storm that wreaked havoc on Racine County also brought a pair of damage claims against the city. The claims, made by residents Viola Ellis and Ciara Watkins, totaled nearly $5,000, with nearly all of that coming from Ellis’ claim. The Finance and Personnel Committee accepted City Attorney Scott Letteney’s recommendation to deny the claims last week, and the City Council is likely to do the same Tuesday. The storm took out power to nearly 4,000 residents in the county, with roughly 75 percent of those residents living in Racine. Ellis claimed reimbursement for $4,811.43 after a tree branch allegedly fell on her parked car, while Watkins claimed $67.20 for a branch falling on her fence. Ellis’ vehicle sustained significant roof and window damage, which Letteney described as “substantial” and “pretty bad.” However, Letteney recommended both claims be denied since Wisconsin state law frees the city from responsibility…




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Case of the Day – Tuesday, July 26, 2016


mitty140808You know how free association goes. This being summer and all, we were groovin’ (a 60s term, kiddies) on an old Lovin’ Spoonful hit yesterday, “Summer in the City.

Although operating without a lot of the mental stimulants that were so freely available during the Summer of Love, we nonetheless started pondering the line “Back of my neck gettin’ dirty and gritty.” “Gritty” rhymes with “pretty,” which rhymes with “Priddy.” And there you have it. Thinking a lot about tree law (as we do), we recalled Walter Priddy.

“Oh, yeah,” you say, “that guy James Thurber wrote about. The secret life and all … The Ben Stiller movie …” No, not ‘Mitty.’ We’re talking ‘Walter Priddy.’ No “secret life” that we know of, but something just as fascinating – a line of boundary trees, an unhappy neighbor, a homeowner’s association, counterclaims. Our meat and potatoes, you know.

It ought to be rather obvious — a court can only decide issues that have been placed before it, and can only order remedies which address the causes of action that it has found to have merit. Courts sometimes lose their way, though, as did the California trial court in today’s case. The Boussiacoses (pronounced “them”) complained that the Priddys’ line of shade trees along their common boundary were a nuisance, messed up the Boussiacoses’ deck, and violated the homeowner’s associations’ rules. The Priddys argued that the trees did no such things, and anyway, the Boussiacoses’ deck had been built without homeowner’s association permission, constituted a nuisance itself, and violated the rules.

The trial court decided that neither side was right. Now your average observer would conclude that the decision meant that the Boussiacoses kept their deck and the Priddys kept their trees. But the trial court decided that the Boussiacoses must have reached an oral “understanding” (and we don’t know how an “understanding” surrounded by quotation marks differs one that isn’t in quotes) with the owners before the Priddys that the trees would be kept trimmed. Now, mind you, the Boussiacoses hadn’t argued that there was such an “understanding,” or that if there was it should be treated like some kind of enforceable agreement. But the trial judge – quite proud of his “solution” – decided that the phantom “understanding” should bind the Priddys anyway. He crafted a decision that let the Boussiacoses keep their deck provided the Priddys got to keep their trees, but the trees had to be hacked off at the height of some wrought-iron fence that was apparently part of the landscape.

Solomonic, you say? Not really. Remember that King Solomon never really intended to cut the baby in half. Plus, that decision at least directly addressed the issue the two warring women had placed before the King and no more – that questions being exactly whose baby the subject infant was. Here, the trial court found that there was nothing wrong with the trees and nothing wrong with the deck, but he ordered the trees trimmed anyway. It’s kind of like being charged with bank robbery, being found not guilty by the jury, but being sentenced to 5-10 years in the pen anyway because the judge thinks you probably cheated on your taxes.

In this dramatic re-enactment, King Solomon faces a tough decision.

In this dramatic and plastic re-enactment, King Solomon faces a tough decision – how to divide the bambino.

The Court of Appeals thought as little of the trial court’s decision as we do. It made short work of the trial court’s order. Because no one had raised the issue of whether there had been an understanding (or “understanding”) about the trees between the plaintiffs and the prior owners of defendants’ place, the trial court couldn’t find there had been one and enter an order accordingly.

Boussiacos v. Priddy, 2007 WL 4306835 (Cal.App., Dec. 11, 2007). The Boussiacoses sued their next-door neighbors, the Priddys, for statutory nuisance and violation of their mutual homeowners association’s covenants and rules. They alleged the Priddys maintained trees which blocked the Boussiacoses’ view along the parties’ shared property line. The Priddys counter-sued, alleging nuisance and violation of the covenants and rules , because the Boussiacoses had apparently built their deck without the homeowners association’s approval.

Following a bench trial, the trial court found that neither party had proved any of the claims raised in the pleadings. However, the trial court entered judgment anyway, requiring the Priddys to maintain the trees at specified heights in accordance with an “understanding” allegedly entered into by the Boussiacoses and the previous owners of the Priddys’ property. He also ruled that the Boussiacoses could keep their deck. The Priddys appealed, arguing that the trial court couldn’t enter a judgment where it hadn’t found the Boussiacoses’ underlying claims to have any merit.

No pruning for the Priddys

No pruning for the Priddys

Held: The trial court’s “judgment” was thrown out. The Boussiacoses had asserted only two claims against the Priddys, statutory nuisance and violation of the homeowners’ association’s covenants and rules. Because the trial court concluded on the record that the Boussiacoses failed to prove either claim, the Court of Appeals said, the judge was without any legal authority to make findings regarding an “understanding” between the Boussiacoses and the previous owners of the Priddys’ property. Such an “understanding” wasn’t alleged in the pleadings. The judge could not conclude that this understanding was enforceable against the Priddys, and could not enter a judgment which imposed tree-trimming maintenance obligations on the Priddys.

The Court of Appeals held that a trial court’s award of relief must be based on a pleaded cause of action. Trial courts are more arbiters than gods. Here, the trial court transcended the limits of its authority. Because the record did not show that the enforcement of any agreement between the Boussiacoses and the previous owners of the Priddys’ property was before the court, the trial court erred by awarding the Boussiacoses relief on that basis.

Groovy appellate decision, we must say.

Case of the Day – Monday, July 25, 2016


sudoku150624The story’s not new, but it’s new to us … four jurors playing sudoku during a drug conspiracy trial in Sydney, Australia, caused a mistrial to be declared after three months and 100 witnesses. We feel for them – a lot of what goes on in the courtroom is deadly dull, and occasionally, rather foolish as well.

This is one of those cases that makes our point. The Wisemans had an access easement along the boundary of their property and their neighbor, Mr. Greenfield. They sold some land to a developer, and part of the deal was that the developer would install a driveway. The developer hired a company to do it. After the job was done — and the driveway was indeed properly within the access easement — Mr. Greenfield said that some branches had been cut from a pine tree of his that stood along the drive. This being America, he sued his new neighbors.

Mr. Greenfield had no witness that his neighbor — or anyone else, for that matter — had cut off the branches. He had no evidence that the tree’s value had been lessened (except for his own claim that his property was worth $25,000 less, pretty steep for a couple of pine boughs). But the lack of evidence didn’t bother him that much.

It did bother the Court, however. First, the Court noted, the fact that the branches were missing didn’t mean the Wisemans had cut them. Second, the subcontractor for the developer wasn’t the Wiseman’s agent, even if he had cut the branches (and Greenfield had no evidence he had done so0. Third, there was no unbiased evidence as to the extent of damage, and the Court wasn’t going to sit still to hear Mr. Greenfield speculate as to how much he ought to get in damages.

Most important for us students of the Massachusetts and Hawaii rules, the Court said even if the Wisemans had trimmed the branches back to the limits of the easement, they had the right to do so, and any damages Greenfield could recover for were only for any extra branch that might have been taken beyond the property line.

This action was truly a waste of everyone’s time … Ready for a hand of Old Maid?

Sometimes, trimming trees next to driveways is a darn good idea ...

Sometimes, trimming trees next to driveways is a darn good idea …

Greenfield v. Wiseman, Not Reported in A.2d, 2008 WL 344606 (Conn.Super., Jan. 18, 2008). David Greenfield owned property next to that belonging to Carter and Eileen Wiseman. The Wisemans had access to a portion of their land only by means of a 20-foot wide corridor running across the Greenfield land. When the Wisemans sold some of their land to a development company, part of the deal was that the developer would build a gravel driveway along the access corridor. The company hired a subcontractor to do so.

Shortly after the driveway was built, Greenfield sued, claiming breach of covenants and trespass. He abandoned all claims except the trespass claim, arguing that the development company and the Wisemans trespassed while the driveway was being built, by cutting some limbs off a large pine tree on the corner of his land. No one witnessed the actual cutting of the trees, nor was any testimony presented from those who actually cut the limbs. The uncontradicted testimony was that neither of Wisemans personally cut any of the branches, or witnessed the actions of those responsible. Nevertheless, Greenfield claimed damages under a Connecticut treble damage statute.

Held: Greenfield’s case was thrown out. The Court observed that the essential elements which must be proven to sustain an action for trespass were ownership or possession of an interest in land by the plaintiff, an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest, done intentionally, and causing direct injury. Here, the Court said, the evidence failed to show any intentional intrusion or invasion of Greenfield’s possessory interest by either of the Wisemans. The treble damage statute does not provide a new or independent cause of action. Instead, it merely provides a measure of damages applicable in situations in which compensatory damages, in the absence of the statute, would be recoverable.

This was just a stupid case to bring in the first place ...

This was just a stupid case to bring in the first place … That’s why Greenfield lost. Because he was a knucklehead, and his lawyer wasn’t any better …

But Greenfield said that the Wisemans were liable because the subcontractor was their agent. In order to demonstrate the existence of an agency relationship between the defendants and the unknown individual or individuals who cut the limbs from the plaintiff’s pine tree, the Court held, the evidence must establish a manifest action by the principal that the agent will act for him, an acceptance by the agent of the undertaking, and an understanding between the parties that the principal will be in control of the undertaking. Here, neither of the Wisemans controlled the means by which the driveway would be installed, and both were unaware of the name of the person or entity engaged by the development company to perform the actual installation work. There was no agency relationship.

Finally, Greenfield produced no evidence concerning the value of the cut branches, and all of the photographs revealed a healthy pine tree which did not have to be cut down as a result of the branches being removed. Besides, the Court said, the Wisemans or anyone acting as their agent would be fully justified in cutting any portion of the branches which extended beyond the stake onto their property.

Case of the Day – Friday, July 22, 2016


Small business owners sometimes skimp on the legal niceties. After all, they reason, paying out $500 to some lawyer for a bunch of forms and a vinyl corporate book doesn’t really “grow the business,” as the buzz phrase puts it. And in these rough times, who wants to squander money on a lawyer?


Oops! Sometimes, misteaks happen.

That’s pretty false economy, it turns out. In today’s case, a mom-and-pop timber harvesting business was hired to take down trees on one owner’s land, and —predictably enough — the chain saws wandered onto Mr. Follender’s land, to the tune of 439 commercial-quality trees cut down and removed without permission. Follender lost trees worth $54,500. After trebling and some discounts, he ended up with a $120,000 judgment against Bert Maxim, the defendant.

Unfortunately, the timber harvester had involved his wife in the business, and she did enough of the paperwork in the business that she had signed the contract for the timber operation that had gone awry. Oh, if they had only incorporated, formed an LLC, something! And if only Mrs. Maxim hadn’t signed that agreement! But hubby was out cutting down trees and they were in a hurry …

The Court ruled that her involvement in the unincorporated business was enough to maker her liable for the $120,000 judgment as well.

Sure, or LawformsRUs can sell you some boilerplate-laden forms over the Internet that’ll purportedly set you right up. But how a small business can best be structured to protect its principals from liability is a matter that varies from state to state. The legal niceties of the business organization — not just in the formation of the company but in day-to-day management — is best addressed by your local attorney or a specialist to whom he or she might refer you.

corporate_structureBut get the advice now. Usually, by the time you realize you should have spent the money on the legalities of business formation and protection, it’s too late.

Follender v. Maxim, 845 N.Y.S.2d 484, 44 A.D.3d 1227, 2007 WL 3101953 (N.Y.A.D., Oct. 25, 2007). Follender sued Berton Maxim and his wife for “wrongful and/or cutting down/taking of timber” from the purchased property. The Maxims, doing business as Prime Hardwood, had entered into a contract with Follender’s adjacent landowners, Valentine Riedman and Christl Riedman, to log their property. In the process, they inadvertently trespassed on Follender’s property and removed trees. Follender alleged negligence and conversion, with a request for treble damages, against the Riedmans and Maxim. They named his wife as a defendant, too, calling her “Jane Doe Maxim.”

Follender dropped the Riedmans from the suit, but the Maxims failed to answer or defend. After learning that Maxim’s wife’s name was Eileen Tine, Follender filed an amended verified complaint against them both individually and doing business as Prime Hardwood.

hook140806Again, they failed to answer or appear. After Follender got a default judgment against them, the court ordered an inquest. When the Maxims again failed to appear, Follender offered extensive proof which included, among other things, the contract between the Riedmans and Tine (signing on behalf of Prime Hardwood), an affidavit from Valentine Riedman which explained that when Maxim came to log his property, he was given a survey map which showed the Riedmans’ boundary line. Valentine Riedman was unaware that Maxim would remove timber outside of those boundaries. Michael Greason, a professional forester, testified that 439 commercial species trees were cut from Follender’s property, 386 of which had a value of $54,506.68. The Court trebled the damages, and assessed damages of $120,000 against Maxim but never mentioned his wife, Tine. Follender appealed, contending that the failure to include Tine in the order awarding damages was a mistake.

Held: The judgment was modified, and the order of the trial court awarding treble damages of $120,000 against logger Maxim for negligence and conversion was rewritten to include the logger’s wife in the award of damages. She had signed the contract between Maxim’s business and the landowner’s adjoining property owners, in connection with which the logger had trespassed onto Follender’s property and from which he unlawfully removed trees.

Generally, appellate courts may correct any mistake, defect, or irregularity in a judgment, provided that the correction does not affect a substantial right of a party.

Case of the Day – Thursday, July 21, 2016


All right, Midsummer’s Night fell a month ago, but 30 days later – and in the July heat – we nevertheless still feel a little Puckish. So we thought we’d examine two neighbors, neither of whom reacted thoughtfully to a dangerous tree. “Oh, what fools these mortals be!” Midsummer Night’s Dream, Act III, Scene 2.

Traditionally, the Massachusetts Rule – which could be summarized as “I don’t owe you nuthin’ – held that a landowner had no liability to his neighbor for harm done by overhanging branches and encroaching root systems. If the neighbor didn’t like the mess, he or she could trim away the offending branches or roots up to the property line. The courts simply didn’t want to hear about it.

However, courts had traditionally held an urban landowner to a higher standard of care when the people being protected were passing motorists on a public highway. In those cases, an urban landowner was obligated to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

bellyachin140304In today’s case, Lois Lockhart had a decaying tree on her property. Neighbor Carl Mahurin complained about it, primarily because one of the branches was overhanging his property. But Lois did nothing. Neither did Carl – unless belly-aching counts as putting forth an effort.

Finally, the branch broke off and hit Carl, who was standing beneath it. You knew that had to happen, or else why would we be telling you this story? Being injured –and a little piqued that Lois had ignored his entreaties for so long – Carl sued. (You knew that would happen, too.)

Lois tried to get the case thrown out of trial court. She pointed out that Carl had nothin’ coming from her. The traditional rule – read “Massachusetts Rule” here ­– dictated that she had no duty to protect Carl from the natural condition of her tree.

But as the great bard once wrote, “I do perceive here a divided duty.” Othello, Act I, Scene 3. And so did the trial court. It was troubled that Lockhart’s duty to strangers passing by in their Hudsons and Desotos was greater than to her neighbor. That seem divided, and irrationally so.

Lois said, “Heaven is my judge, not I for love and duty, But seeming so, for my peculiar end.” Othello, Act I, Scene 1. The trial court said that might be so, but it nevertheless sent the case to the Court of Appeals for the appellate court’s opinion as to her duty.

William Shakespeare - he foresaw the problems with the traditional liability rule hundreds of years ago.

William Shakespeare foresaw the problems with the traditional liability rule urged by Ms. Lockhart hundreds of years ago. “Wondrous strange!” indeed.

The appellate panel said, “O day and night, but this is wondrous strange!” Hamlet, Act 1, Scene 5. It could see no reason for the disparate treatment, either. Certainly, just as Lockhart owed a duty to Mordred and Mildred Motorist, she must owe the same duty to her neighbor, Carl. However, the Court of Appeals did allow that Mr. Mahurin could have entered onto Ms. Lockhart’s place and cut the tree down itself. So he might be contributorily negligent. Likewise, could he have been a knucklehead for standing under a tree he had complained was dangerous?

To Lockhart, the Court said “There are more things in heaven and earth, Lois, than are dreamt of in your philosophy.” Hamlet, Act 1, Scene 5. Such as… a single duty owed by a landowner to both travelers passing on the road and her next-door neighbor. It sent the case back to trial.

Mahurin v. Lockhart, 71 Ill.App.3d 691, 390 N.E.2d 523 (Ill.App. 5 Dist. 1979). Plaintiff Carl Mahurin brought this action to recover damages for personal injuries he suffered when a dead branch extending over his property fell from a tree belonging to defendant Lois Lockhart, an adjoining landowner, and struck him. In his complaint, Mahurin alleged that Lockhart failed to prune the tree or take other necessary precautions after he warned her of the condition of the tree and the dangers it posed.

Lockhart moved to dismiss the complaint, arguing that a landowner is not liable for physical harm to others outside of her land caused by a natural condition. The trial court denied the motion to dismiss, certified that the question of law raised in Lockhart’s motion presented substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.

Held: The Court held that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.

The narrow issue before the court was to determine the extent, if any, of the duty that a landowner in a residential area owes to persons outside of his premises to remedy some defective or unsound condition of a tree upon his land when the tree and its condition were of a purely natural origin. Mahurin urged the Court to adopt the traditional rule set forth in section 363 of the Restatement (Second) of Torts. This section provided that 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. However, if the landowner was in an urban area, he was 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.”

The traditional rule applied even though the landowner is aware of the dangerous natural condition and the expense necessary to remedy the condition is slight.

The Court noted that the traditional rule of non-liability developed at a time when land was mostly unsettled and uncultivated. The landowner – unable to keep a daily account of and remedy all of the dangerous conditions arising out of purely natural causes – was therefore shielded from liability out of necessity.

But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it? Duh, Carl ...

But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it? Duh, Carl …

The Court disagreed that the duty an urban landowner owed to a neighbor should be less than owed to people passing in cars and trucks. It thus ruled that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.”

Therefore, Lockhart’s duty to Mahurin should “be defined using the ordinary rules of negligence. It is therefore appropriate for the trier of fact to consider … such factors as “the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented” in resolving the issue of liability.

The Court noted Lockhart’s argument that Mahurin was contributorily negligent because he stood under a tree that he, by his own admission, knew was dying and dangerous. The Court noted that the Restatement provided that a landowner is privileged to enter upon a neighbor’s land to abate a condition thereon which constitutes a private nuisance. “While this privilege alone does not establish the contributory negligence of plaintiff, it could be considered by the jury in resolving this issue.”

The Court remanded the case for trial, using the standards it had adopted.