Case of the Day – Thursday, September 24, 2020


Cute ... but varmints

Cute … but varmints

It seems that the furry little critters called marmots dig holes and generally make pests of themselves. At least, that what Pam Tessman would tell you.

She spent July 4th one year at a Wyoming RV park with her son, where at one point in the day she walked through a field and saw a marmot hole, the very one she later tripped on in the dark.

Of course, the fact she knew the hole was there and that the marmot probably wasn’t in the employ of the park owner, didn’t matter to the limping and litigious Pam — she sued park owner Mary Berry anyway. The alliteratively named Ms. Berry might tell you that Pam was something of a varmint herself. Nevertheless, the jury awarded Pam a cool quarter million dollars at trial (reduced by 25% because the jury figured that she should have remembered the hole in the grassy field from earlier that day).

But the Supreme Court of Wyoming had other ideas. Before there can be liability, the Court said, there has to be a duty. And in Wyoming, a landowner isn’t responsible to protect guests from dangers that were known and obvious. Little furry burrowing animals tend to leave holes that are completely natural, the Court said, as well as open and obvious. There was no reason to hold the RV park owner liable for Pam’s clumsy misfortune, or to sting Mary Berry to line Pam’s pocket.

trip150112Berry v. Tessman, 170 P.3d 1243, 2007 WY 175 (Sup. Ct. Wyo., 2007). Pam Tessman was staying at Mary Berry’s RV park. At check-in, Pam asked Mary Berry where she could take her son fishing. Mary Berry pointed Pam to a river just off the property, and Pam followed the directions. She and her son cut behind a bathhouse across several fields, over a broken-down fence and over a set of railroad tracks, to the fishing hole.

Pam saw a lot of adults and kids using the “grassy area” behind the bathhouse to get to and from the river. In fact, on the way back, Pam saw several boys playing by a marmot hole in the field behind the bathhouse. That evening, Pam was watching fireworks when she saw her son was up by the railroad tracks with some children who appeared to be setting off fireworks. Concerned for his safety, Pam left the lit pool area and went out into the grassy area behind the bathhouse to call him back. She stepped in the marmot hole she had seen earlier that day, twisting her ankle.

Pam sued to recover for her injuries. The trial court found in Pam’s favor and awarded her $259,000, which it reduced by 25% for her own negligence.

Pam appealed.

Held: The Wyoming Supreme Court reversed the trial court, and Pam got nothing.

The elements of a negligence action are a duty owed the plaintiff by defendant to conform to a specified standard of care, a breach of the duty by defendant, and that the breach of the duty of care proximately caused injury to the plaintiff. A landowner in Wyoming owes a general duty to act reasonably in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Landowners have no duty to protect from known and obvious dangers, even those resulting from natural causes.

However, a plaintiff may show that an otherwise naturally occurring condition does not fall within this rule by showing that the defendant created or aggravated the hazard, that the defendant knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Even a naturally occurring, known and obvious hazard that the landowner has not aggravated could result in liability if the landowner were to create an expectation of heightened safety for people on the premises. The Court saw no reason the known and obvious danger rule should not apply to the ubiquitous hazard posed by the holes of burrowing animals.

slip_and_fall150112However, Pam Tessman hadn’t shown that her circumstances warranted a finding that the marmot hole she stepped in was anything other than a naturally occurring, known and obvious danger, from which Mary Berry had no duty to protect her. She made no showing that Mary Berry owed her any other duty that would support a finding of negligence here. The marmot hole was not a hazard she had created. The marmots weren’t domestic animals or pets but wild animals present in the surrounding area, as well as on the property itself.

Simply enough, the record evidence didn’t suggest that Mary aggravated the danger posed by the marmot hole. To the contrary, the trial court found that Mary tried to minimize the danger from such holes on her property by filling them regularly and by having the animals trapped whenever they became a nuisance. A landowner does not have a duty to protect a guest on her property from a naturally occurring, known and obvious hazard she has not aggravated if she has not, through her own undertaking, created an expectation in her guests that they will be protected from such a hazard.

Mary didn’t create or aggravate the marmot hole that caused Pam Tessman’s injuries, nor did Mary undertake any act that could have caused Pam to rely reasonably on a heightened expectation of safety or special protection from marmot holes on her property. Thus, Pam gets nothing.

– Tom Root


Case of the Day – Wednesday, September 23, 2020


I do not know,” wrote Robert Frost in Stopping in the Woods on a Snowy Evening. That appears to have been precisely the problem for neighboring rural landowners in Kentucky, one the titleholder to pasture and the other owning a large glade of trees.

The neighbors, Marv and Gene, had a common boundary on the edge of the forest, populated by some pretty nice hardwood specimens. When Gene decided he wanted to cut down and sell some of the timber, he asked Marv for permission to come onto his land to cut down the first of some eight trees he wanted to sell. Marv thought the trees all straddled the boundary, and so belonged to the both of them. He let Gene cut them down and haul them away, naturally believing that Gene would come back around to hand Marv a share of the cash.

Marv may have been the kind of guy who went through junior high school with a “kick me” sign taped to his back. It turned out, of course, that while there may be a Santa Claus, it wasn’t Gene. Gene came back from selling the trees, asking for permission to come onto Marv’s to cut down some more trees, all without offering Marv a farthing. Still, Gene cut down four more trees before Marv gave him the heave-ho.

Unwilling to be fooled again, and unwilling to let Gene get away with selling commonly-owned trees as his own, Marv sued. And here’s where he let his fury get ahead of his common sense (which was his lawyer’s job, by the way, to talk his client off the ledge when prudence dictated he get his facts straight first).

It turned out that the first four trees Gene cut down were in fact completely on Gene’s property, but the second four were not. After the dust settled and Marv had a definitive survey done, Gene had to pay Marv $7,168.15. That was not a lot of money in 2008, at least for all of the litigation that ensued. The legal bills alone were probably bigger than that.

Gene’s attorney, however, might have been worth it. He was pretty crafty, throwing plenty of legal roadblocks in the way of the courts. The appellate panel, sad to say for Gene, swept them all away, and – rather piqued at Gene’s attempts to limit his liability after selling trees that only half belonged to him – said treble damages were only Gene’s due for selling the neighbor’s trees, especially when he had just been told not to cut them.

Smith v. Unger, Case No. 2007-CA-000318-MR (Ct.App. Kentucky, June 6, 2008). Marv Unger and Gene Smith owned adjacent properties in Lincoln County, Kentucky. Unger bought his place in 1997, and Smith purchased his in 2003. Marv’s property was primarily pastureland, while Gene owned some prime woodland.

Gene removed eight trees from the area of the common boundary line, in which Marv asserted part ownership. Gene said he believed the trees were on his land when he cut them down. Marv sued Gene for trespass, and demanded treble damages for wrongful cutting under KRS 364.130.

A lot of the dispute arose from the presence of a fence running along the boundary between the properties. Gene and Marv agreed the fence in question has been there as long as Marv had owned his land, but they disagree as to how many years prior to that time the fence had been there. Everyone agreed neither Marv’s nor Gene’s deed referenced the fence. Gene admitted he did not have the boundary line surveyed before cutting, but he said Marv told him the fence was the boundary. Marv says he never told Gene any such thing, and that he always determined the boundary line by some stakes that had been there at least since Gene bought his place.

Just before Marv purchased his property in 1997, the former owner had a survey of what became the Unger property performed. The surveyor placed stakes in the ground to mark the boundaries, and those stakes his property extended beyond the fence.

Gene never questioned the location of the boundary from the time he bought his land in 2003. However, Marv said that about a month after Gene bought his woods, the two men discussed the trees located near the fence line between the properties. Marv said he understood the true boundary line between the properties to run according to the stakes, and not according to the fence. Gene disagreed, believing the fence to be the boundary line between the properties.

Marv testified he told Gene before the trees were cut they were “line trees” and, as such, he deserved a portion of any money made from their sale. Marv admitted that after the conversation, he allowed Gene and his assistant onto his property for the purpose of removing the first four of the eight trees. After the first four trees were removed, Marv waited for Gene to share the wealth, When Gene offered nothing, but instead tried to come back onto the property to cut more trees, Marv told him to leave, and Gene did, but not before cutting four more trees.

Marv then had the property resurveyed. The survey showed that the prior survey was somewhat off, and that Gene in fact owned four of the eight of the trees that had been cut.

A master logger valued the four trees that were not Gene’s “on the stump” and “at the market,” which was twice the stumpage value. The trial court entered a judgment for Marv for $4,614.90 plus, consisting of $1,538.40 in compensatory damages (representing the stump value of the trees) trebled (as set forth in KRS 364.130(1) and (2)), costs in the amount of $1,399.25, and attorneys’ fees in the amount of $1,154.00, for a total of $7,168.15.

Gene appealed.

Held: Judgment in favor of Marv was upheld.

Gene argued that KRS 372.070(1) declared Marv’s deed void to the extent that it purported to convey land within Gene’s boundary, including the timber upon it. That statute provided that any conveyance of any land of which any other person has adverse possession at the time of the sale or conveyance, is void. Here, the Court said, Gene never disputed Marv’s proof of the boundary and never sought to quiet title. It was too late for Gene to argue that he had all along been claiming to hold the land up to the fence by adverse possession.

Under Kentucky law, land held by adverse possession only ripens into title when it has been held by 15 years openly, hostilely and notoriously to a well-defined boundary, giving others who may claim an interest notice of the adverse claim. The adverse holder’s intent at the time the possession begins is key: where one through ignorance, inadvertence, or mistake as to true location of his boundary line enters into neighboring land up to a certain line in belief that it is the true line, the occupancy is deemed amicable, mistaken perhaps, but not hostile.

In this case, Gene did not intend to possess land beyond his true boundary. He never formally disputed or questioned the boundaries as they existed, and at no time did he approach Marv to request the survey stakes be moved to establish what Gene believed to be the correct boundary between the two properties. The Court said it was clear Gene did not intend to establish actual adverse possession.

Gene also complained about the award of treble damages. The Court disagreed.

KRS 364.130 governs damages for cutting timber from another person’s land. The statute provides that a person is liable for treble damages for cutting timber from another person’s land only if the person cutting the timber did not have at least color of title to the land. So, in order for Marv to receive treble damages, the evidence must show that Gene did not have color of title to the disputed property from which the timber was cut. Color of title is “that which gives the semblance or appearance of title, but which is not title….” It is color of title in appearance only and not title in fact.

Any deed or instrument that purports to convey land and shows the extent of the grantee’s claim may afford color of title. Thus, even a deed or instrument of conveyance that is defective or invalid is sufficient to afford color of title. But in this case, Gene conceded that his deed makes no mention of the fence as the appropriate boundary line, and the survey stakes marking Marv’s boundary were in place at the time Gene purchased the land.

Ultimately, the question, the Court said, was whether the jury determined that the trees themselves were on the boundary, as opposed to whether or not the trees were entirely on one property or the other. If the jury decided that the trees were boundary line trees and that notice had been given to both parties that they were boundary line trees, then the taking of the trees by either party would be against the basic title held by either property owner and constitute the unlawful taking of timber from “the land of another”.

Here, the jury found that at least four of the trees at issue were boundary line trees taken by Gene without color of title. This the case, it is clear that the statute entitles Marv to treble damages. We therefore affirm the ruling of the trial court on this issue.

The Court said the jury’s function was to determine whether or not Gene damaged Marv’s land, and, if so, what amount of money would compensate Marv up to the amount of the stump value. After that determination was made, the duty fell to the trial court to enter a judgment for triple the amount assessed by the jury.

The jury did not award Marv the entire value of the trees. The value of the trees was twice the stump value. The jury award of “stump value” actually amounted to only half the value of the standing trees. However, the Court reasoned, the jury awarded a sum of money to Marv, and implicit in that award was the finding that Gene was a tortfeasor while Marv was in the right. Gene removed the trees and, thereby, the physical evidence of the location of the trunk, the limbs, the shade the tree produced and any other benefit the tree would have had to the landowners that were provable by the physical presence of each individual tree. Certainly, there is no dispute that where each of these trees once stood, only stumps remain.

Gene, the Court said, was trying to benefit from the value of the trees both as landowner and as tortfeasor, but could not have it both ways. Based on the testimony of the logger, it is custom that one who cuts and removes trees is paid at the rate of one-half the value of the trees, which is equal to the stump value. Gene was seeking to acquire half the values of the trees on the basis of his tortious conduct, namely, cutting and removing the trees without permission. Further, as a landowner, Gene attempts to assert that he is entitled to a proportional share of the stump value. As a matter of policy, a tortfeasor should not be allowed to benefit from his wrong to the detriment of the injured party.

– Tom Root


And Now The News …

Minneapolis, Minnesota, Star-Tribune, September 23, 2020: St. Paul will cut down thousands of ash trees next year but can’t afford replanting

St. Paul’s urban forest will take a beating next year, when the city plans to chop down 3,000 ash trees without planting anything in their place. After more than a decade of scrambling to keep up with the invasive emerald ash borer, the St. Paul Parks and Recreation Department is expecting to fall further behind in 2021 as it trims spending to help fill a nearly $20 million citywide budget shortfall. In a budget presentation to the City Council on Wednesday, Parks and Recreation Director Mike Hahm called the lack of resources for tree planting in 2021 “a pretty dramatic change. It is not ideal,” he said. St. Paul has removed nearly 16,000 ash trees from its right of way since emerald ash borer was discovered in 2009 — the first documented infestation in the state. Today, more than 11,000 ash trees remain; to cut them down, grind up their stumps and plant new trees would cost nearly $20 million, or about half the department’s total budget. Heading into 2021, the plan is to cut down 3,000 trees a year over three years, plus another 2,300 in 2024. Planting will begin again in 2022, with 630 trees…

Reuters, September 23, 2020: Tree-planting rush overlooks climate benefits from natural forest recovery

Leaving cleared tropical forests to regrow naturally has the potential to absorb a quarter of global carbon emissions from burning fossil fuels each year, researchers said on Wednesday. A study led by the World Resources Institute (WRI), a U.S.-based think-tank, looked at and mapped the potential carbon-storing benefits of letting cut forests recover on their own. To meet national climate pledges, many countries have launched big tree-planting programmes, signing up to high-profile schemes like the Bonn Challenge. But some deforested areas in the tropics may benefit more from allowing them to regrow naturally – which is often cheaper and more likely to benefit native wildlife, the study said. The approach could absorb 8.9 billion metric tonnes of carbon each year through to 2050 – much higher than previously thought, said WRI researchers. That is on top of the carbon sponge already provided by existing forests, which absorb about 30% of planet-heating emissions, mainly generated by burning fossil fuels, each year

New York City, The Wall Street Journal, September 23, 2020: Stand on Precedent. That’s a Good Boy!

Among the portraits of former justices that hang in the Missouri Supreme Court building in Jefferson City stands the bust of a hound dog named Old Drum. The sculpture isn’t meant as a homage to a canine. Rather, it is a tribute to a lawyer. Old Drum was shot to death 150 years ago in Johnson County, Mo. His owner, Charles Burden, filed a lawsuit against Leonidas Hornsby, his neighbor and brother-in-law, whom he suspected of orchestrating the killing. Hornsby had lost numerous sheep to dog attacks and promised to kill the first stray that appeared on his property. George Graham Vest, a 39-year-old lawyer, represented Burden. On Sept. 23, 1870, Vest delivered one of the most enduring arguments ever performed in a courtroom. The speech is notable for what it is lacking: any mention of Old Drum or the violent act that led to his death. Instead, Vest delivered a eulogy to all dogs. He told jurors that “the one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog. A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground . . . if only he may be near his master’s side. He will kiss the hand that has no food to offer…”

Detroit, Michigan, Free Press, September 22, 2020: Joshua trees protected under the California Endangered Species Act in historic vote

In a likely precedent-setting decision, the California Fish and Game Commission on Tuesday voted 4-0 to approve the western Joshua tree for the next stage of protection under the California Endangered Species Act. This marks the first time the state law has been used to give protection to a species that is mainly threatened by climate change. The species — one of two varieties of the iconic desert megaflora — is facing habitat loss due to warming temperatures that are pushing the ecosystems where it thrives farther north and into higher elevations. Scientists predict that Joshua Tree National Park could be devoid of its namesake plant by the end of the century. The western Joshua tree now receives protection under the act for the next year as the state’s Department of Fish and Wildlife studies whether the species is indeed at enough risk to need full listing as threatened. At the federal level, Joshua trees were denied protection under the Endangered Species Act, a decision that is being challenged in federal court by environmental group WildEarth Guardians…

Do It Yourself, September 22, 2020: How to grow trees from seed

Growing trees from seed can be an interesting adventure for the amateur and expert gardener, alike. It’s exciting enough to see a small seed germinate into a flower or vegetable, just imagine watching trees mature knowing that you planted and nursed them from seed! Fruit and nut trees are wonderful edible additions to your garden, whereas woody and flowering varieties can add character, and much needed shade. While there are some downfalls to the process, growing trees from seed can be an interesting, educational, and rewarding experience. Read on to find out how! Before you begin to sow any seeds, you’ll want to decide what kind of trees and how many you would like to have. Find trees that are suitable for your land. Do some research and make sure your climate, soil pH, and land restrictions are compatible with the trees you want to grow. Most citrus trees won’t flourish in cooler climates, for example, but apple and cherry trees may thrive. Try not to fight with nature, or tamper with soil too much. Grow trees that want to live where you live. That’s the best way to ensure tree longevity, and healthy produce for decades to come. The cheapest way to get seeds is to gather them yourself. Choose local varieties, since you know they already grow in your area. Make sure to sort and clean them, and store properly until needed. …

Reuters, September 22, 2020: Aiming to be carbon-neutral? Don’t rely on planting trees, scientists say

Taking better care of nature could absorb many more climate-changing emissions – but will only work if big companies simultaneously slash their own emissions and focus on boosting biodiversity, not just planting trees, scientists warned. “It’s vitally important to understand this potential can only be achieved with rapid and aggressive decarbonisation,” said Nathalie Seddon, who directs the Nature-Based Solutions Initiative at Britain’s University of Oxford. A broad range of companies, including some fossil fuel firms, are now promoting and adopting tree planting and other “nature-based solutions” as a smart and easy-to-grasp way to tackle the twin crises of climate change and biodiversity loss. More than 560 companies, including giants such as tech titan Microsoft and retailer Walmart, on Monday urged governments to put in place stronger policies to protect nature and fight climate change, and guide business efforts toward those goals. Many of the companies, part of the Business for Nature coalition, said at New York Climate Week events that they were pressing ahead with their own green actions, from adopting clean energy to offsetting their carbon emissions by adding trees…

Public News Service, September 22, 2020: Are Trees the Key to a Sustainable Building Future?

Michigan is in a unique position to capitalize on innovative building technology that can improve the environment. Mass timber is created from smaller pieces of wood, such as two-by-fours, that are glued together to create beams, floors and other load-bearing building structures. Michigan State University’s new STEM Teaching and Learning Facility is the first building in the state to use mass timber. Richard Kobe, professor and chair of the Department of Forestry at MSU, said the material is a more sustainable and carbon-friendly alternative to steel and concrete construction. “One thousand, eight hundred and fifty six metric tons of carbon that’s contained in that building,” Kobe said. “And when the trees were growing, they took that carbon out of the atmosphere and now this is a long-term mechanism for storing that carbon that will keep it out of the atmosphere.” A virtual tour of the building will take place today during the Michigan Mass Timber Summit. The event will be held online over three sessions, and will examine the costs and benefits of mass timber projects, design and logistics, building codes and construction. Dave Neumann, forest products utilization and marketing specialist with the Michigan Department of Natural Resources Forest Resources Division, said with about 60% of Michigan covered in forest, there’s great potential for mass timber building components to be sourced from the state in the future…

Seattle, Washington, Times, September 19, 2020: Science offers compelling theories for the mysteries of our tallest trees, but their majesty requires no research — just appreciation

HAVE YOU EVER wondered how trees get water all the way to their tops? Or what limits the height of a tree? I mean, some western red cedars and Douglas firs get over 200 feet tall, but why don’t they get even taller? Given that our region is home to several of the tallest tree species on the planet, I thought I should investigate. The coast redwood is generally considered the tallest tree species on Earth. The current record-holding individual is a specimen in Northern California, known as Hyperion, which tops out around 380 feet. Though we don’t have any redwoods, our native trees are still world-class giants. Washington state is home to Douglas fir, Sitka spruce, noble fir, western hemlock, ponderosa pine and grand fir — all of which rate in the top 30 tallest tree species in the world. In fact, two of the largest known specimens in the world live in our state: a noble fir growing in the Cascades and a grand fir in the Olympics. So is there a limit to how tall a tree can grow? Researchers studying the coastal redwoods think so, and suggest the answer might lie around 400 to 430 feet. They believe the height of a tree is ultimately restricted at this height as the pull of gravity and the friction between water and the vessels it flows through make any further growth impossible. This is known as the hydraulic limitation hypothesis…, September 21, 2020: Mixed-species tree stands adapt better than pure stands

Firs and spruces dominate the tree population of the Black Forest with a share of 80 percent. However, such predominantly pure stands are particularly vulnerable to extreme events caused by climate change, such as storm damage, heat waves, and bark beetle infestations. In Baden-Württemberg, on average, every third tree is already sick. A conversion from pure to mixed stands could increase the resistance of forests. The potential benefits also include greater biodiversity, long-term economic efficiency, and stability. This is the result of a study by KIT (Karlsruhe Institute of Technology) for which experts from forestry, silviculture, and tourism were interviewed. “The natural adaptability of monospecific forests to persistent hot, dry weather periods alternating with heavy rainfall is relatively low,” says Dr. Christine Rösch, head of the Sustainable Bioeconomy Research Group at the Institute for Technology Assessment and Systems Analysis (ITAS) of KIT. “However, there is an urgent need to improve the adaptability of forest ecosystems to weather events, as stress due to climate change increases and occurs in much shorter periods than before so that the usual regeneration cycles can no longer make up for it…”

Boise, Idaho, KTVB-TV, September 21, 2020: Hazard tree mitigation efforts from Trap Creek Fire begin along Highway 21

The Trap Creek Fire, located about nine miles northwest of Stanley on the Sawtooth National Recreation Area, is currently burning at 2,211 acres and is 25% contained. It was first reported on September 14. 148 personnel are currently assigned to the fire. A cold front over the weekend brought rain that cleared the heavy smoke from the fire and provided relief for firefighters and the community. Wind, warm temperatures and dry conditions are expected today and could increase fire activity. Hazard tree mitigation began along Highway 21 on Monday is is expected to last for two to three days. A forest area closure is in effect for the area around the fire and was expanded on Saturday to include Valley Creek Road. This includes all roads, trails, campgrounds, and hunting units within the closure. The purpose of this order is to protect the public and firefighters during wildfire activity suppression activities…

CNN, September 21, 2020: A Florida woman was attacked by a 10-foot alligator while trimming trees

A Florida woman is recovering from injuries she received when she was attacked by a 10-foot, 4-inch alligator while trimming trees in Fort Myers. The 27-year-old woman was trimming by the edge of a lake near a country club on September 10 when the alligator bit her. She was taken to Lee Memorial Hospital and treated for injuries to both legs, according to the Florida Fish and Wildlife Conservation Commission (FWC). The FWC said it is still investigating the incident. A few days later, on September 13, a man suffered injuries to his leg when he was bitten by an alligator while walking his dog along a residential canal in Port St. Lucie, the FWC said. The 8-foot, 3-inch alligator that bit him was removed and transferred to an alligator farm. CNN affiliate WPTV reported that Mark Johnson, 61, said the alligator clamped onto his leg and was trying to drag him under water. When Johnson poked the alligator in the eye, the reptile let go, he said. “I kind of slide and my foot is stuck in the mud, and the next thing I know, I see the lunge,” Johnson told WPTV. “He starts clamping down pretty tight and he started to pull, and the next thing I do, I instantly, here’s my fingers, I poke through the eye.”Johnson received 62 stitches and his dog was unhurt, WPTV reported…

Hampton, Virginia, WVEC-TV, September 21, 2020: Time to go nuts! Yes, the Virginia Department of Forestry is asking for acorns from your yard

The Virginia Department of Forestry, known for developing healthy, sustainable forest resources for Virginians, is seeking 12 species of acorns and nuts that can be planted at its Augusta Forestry Center in Crimora, Virginia to help cultivate the forests of tomorrow. The department hopes to use the acorns and nuts to grow into tree seedlings. The hardwood crop will then be sold to Virginia’s forestland owners to build their future forests. Each year, VDOF asks the public from across the state to collect and donate nuts of select species to be planted at the state nursery. Seedlings developed from Virginia-grown seed generally produce trees that will best thrive in our state’s climates. Protocols and guidelines for acorn collection remain mostly the same as last year, with some minor adjustments to the collection deadline and species list. During September and early October, it is easy to pick up nuts in many yards and parking lots. Try to avoid trees in more heavily forested areas because there may be different species of trees nearby, making it difficult to sort the nuts by species for proper planting. The species the tree nursery needs this year are black oak, black walnut, Chinese chestnut, chestnut oak, live oak, northern red oak, pin oak, southern red oak, swamp chestnut oak, swamp white oak, white oak and willow oak…

Spokane, Washington, Spokesman-Review, September 19, 2020: Tree on power line likely cause of fire that destroyed Malden, Pine City

A tree that made contact with an Avista Utilities power line on the southern edge of Spokane County appears to have started the Babb Road Fire, which raced through nearly 15 miles of dry brush and timber during an intense Sept. 7 windstorm, destroying the vast majority of homes in Malden and Pine City. The Spokesman-Review on Thursday located a partially burned pine tree that had been cut down with chainsaws, lying beside a row of recently replaced Avista distribution poles in the area where residents first reported seeing smoke. In an email Friday, Avista spokeswoman Casey Fielder said “we can confirm that the tree in question made contact with the lines, and appears to be the area where the fire started.” Avista also released a public statement Friday saying it has learned of instances where “otherwise healthy trees and limbs, located in areas outside its maintenance right-of-way, broke under the extraordinary wind conditions and caused damage to its energy delivery system.” However, the company said it “has not found any evidence that the fires were caused by any deficiencies in its equipment, maintenance activities or vegetation management practices.” Avista said it is cooperating with ongoing investigations by the state Department of Natural Resources, and it’s coordinating with the agency on fire suppression efforts…

Sioux Falls, South Dakota, Argus Leader, September 19, 2020: Ash tree removal in Brandon will begin in October

The emerald ash borer has been causing havoc on ash trees in the United States. The beetle is native to Asia but was transplanted to North America. Since its discovery in the United States in 2002, it has spread across the eastern portion of the country and is now found in 33 states. Count South Dakota as one of them. The larvae of the insect is what causes most of the damage, feeding on the inner bark of the tree and eventually killing it. Although there hasn’t been a discovery in Brandon, there has been plenty in Sioux Falls and the city is in the middle of a 10-year plan to eradicate the problem. A blue No. 9 is spray painted on the side of ash trees in Sioux Falls, and last year alone, the city removed one-third of the trees in the city. Brandon parks superintendent Devin Coughlin said it’s only a matter of time before Brandon sees an infection, so the city is taking a preemptive strike to slow any spread…

Washington, D.C., Post, September 20, 2020: Ever wondered why trees ditch their leaves each fall?

Autumn arrives this week, and that means pumpkins, football and piles of fresh, crackly leaves. Did you ever wonder why trees throw away an important part of their anatomy each year? After all, wouldn’t it be similar to people losing all their hair — or even weirder, their skin — just as our part of the world gets colder? While it might seem strange from the point of view of a human, to a plant, losing leaves makes perfect sense. Trees are solar-powered. Each leaf is loaded with a pigment called chlorophyll, which absorbs light and helps convert water and carbon dioxide into energy. The process is called photosynthesis. But there’s a problem. In parts of the world that experience seasons, winter means less and less sunlight each day. It also comes with biting cold that can freeze the liquids inside leaves. These two factors hamper the tree’s ability to make energy. A full-grown oak tree might have more than 60,000 leaves, and each one requires valuable nutrients. So when fall turns into winter, trees discharge their leaves as a cost-cutting measure. If it had to spend resources on all those leaves through the winter, not only would the leaves freeze, but the tree would die. However, evergreen trees have a different strategy, says Mason Heberling, assistant curator of botany at the Carnegie Museum of Natural History in Pittsburgh, Pennsylvania. Instead of dropping and regrowing their leaves each year, pine trees and other evergreens evolved short, thick “leaves” that can withstand winter’s wrath. Of course, we call them “needles…”

Loganville, Georgia, Patch, September 20, 2020: Gwinnett Woman Walking Dog Dies When Tree Falls On Her

A 71-year-old Snellville woman was one of three Georgians killed in the aftermath of Hurricane Sally when a tree fell on her Lynn Alice Trapp was walking her dog Thursday morning near her home on Capot Court in unincorporated Snellville when the tree came down. Gwinnett rescue crews responded to a report of a fallen tree before they realized someone was pinned under it, according to Gwinnett fire Captain Tommy Rutledge as reported by The Atlanta Journal-Constitution. Trapp died at the scene, and her dog was taken for treatment. On Wednesday, 30-year-old Gerald Crawford died of his injuries after a century-old oak tree fell on his house in southwest Atlanta. Crawford’s family had recently called the city of Atlanta to have the tree removed after a branch fell and damaged a parked vehicle. Trees like that “are getting near the end of their life cycle,” said Jason Hudgins, president of the Westview community organization, to the The Atlanta Journal-Constitution. “Whenever there’s a storm, we put people in our community on alert because we do have the problem…”

Detroit, Michigan, News, September 17, 2020: You may be cleaning up in the bathroom using an old-growth tree

With everyone spending more time at home, demand for residential toilet paper is way up. That’s bad news for the world’s oldest forests. Unlike the industrial rolls found in many offices and restaurants, the cushy TP Americans love for their own bathrooms is made almost entirely of trees cut from virgin forests. Procter & Gamble Co. – maker of Charmin, the country’s most popular brand – has defended the practice in part by saying it plants a tree for every one it cuts down. It also pays to protect trees in other parts of the world as a way of offsetting some of its greenhouse gas emissions. But carbon accounting isn’t that simple. Forests store carbon in the soil, not just in trees, and that isn’t so easily replaced. A rundown of how the major manufacturers treat their trees: Procter & Gamble Brand: Charmin. Made from virgin forest? Yes. Replants trees? Yes, 1:1. Buys carbon offsets? Yes, but not to cover emissions from TP. The company says: “Every decision we make is guided by what’s best for consumers and the environment. P&G has committed to using recycled fibers where it can have the most benefit for our consumers.” – P&G spokesperson…

Philadelphia, Pennsylvania, WHYY, September 18, 2020: Philadelphia’s tree cover is vanishing. Here’s how you can help.

The Pennsylvania Horticultural Society recently launched its third “More Trees Please” fundraising campaign — a campaign desperately needed to keep the city Tree Tender crews planting saplings and growing our green canopy. The campaign undoubtedly will help Philadelphia strengthen its urban forest and reverse long-standing environmental inequities.Yet despite these laudable efforts and those of the city’s Tree Philly programs, our city continues to lose tree canopy faster than we can replant it, even prior to the current crisis. Per the Philadelphia Tree Canopy Assessment Report released in December 2019, between 2008 and 2018, we lost approximately 6% of our urban tree canopy. The report states that much of the canopy loss has occurred in park space — this loss will likely accelerate due to ash trees succumbing to the Emerald Ash Borerand weakened by the spotted lanternfly, losses from increased storm severity as our climate becomes hotter and wetter. Then there’s street tree attrition due to development-related construction. The reduced canopy coverage has largely coincided with the only period in decades when the city has gained population and experienced an increase in construction activity…

Orlando, Florida, WKMG-TV, September 17, 2020: Forecasting Change: Breaking down the benefits of trees

Trees are nature’s way of cooling off. Everyone knows the the benefit of shade, but trees also help reduce heat by pulling water up through their roots and releasing it into the air through leaves. Trees, shrubs and grass all help to reduce storm water runoff. Even mangroves help to slow down storm surge in a land-falling hurricane. Check out these graphics that show how much trees aid the environment. In areas where trees and vegetation have been removed for buildings, parking lots and other development, we have what is called a “heat island effect.” All of that concrete, pavement and brick absorb heat during the day and then releases it overnight. This link shows where areas near cities are warmer than the average for the surrounding area as a whole. Check it out to see if you live in a heat island and think about the trees, water and the heat any time you see development…

Patch-Ohio, September 17, 2020: Mentor: Talking About Trees

Trees and shrubs are an attractive and important asset to any property. In addition to their aesthetic benefits, they help improve air quality, reduce storm water runoff, and help reduce energy costs. Property owners are reminded that they are responsible for the maintenance of all trees, shrubs, and hedges on their property; including those on the tree lawn. As per Mentor City Ordinance, trees along roadways must be trimmed to a height of 14 feet above the road surface so that school buses and other vehicles can safely pass by. Trees should be trimmed to a height of at least 7 feet above the sidewalks, and bushes and shrubs should be trimmed to a height of no more than 3 feet adjacent to the Right of Way, so that walkers, joggers, and bicyclists can pass by unimpeded. Trees that are dead or weakened as a result of age or disease are a danger to you and others. Falling limbs can cause significant property damage as well as loss of life. And, property owners may be financially responsible for damage caused by limbs that fall on their neighbor’s property if those limbs have been identified as being a potential danger, and if the owner has been asked to address the problem by the City…

Portland, Oregon, Oregonian, September 16, 2020: ‘Hundreds of thousands of trees’ need to be removed along Oregon 22; nearly 300 miles of state highways closed indefinitely

Nearly 300 miles of roads remain closed across Oregon with no timetable for reopening and “hundreds of thousands” of trees need to be removed along Oregon 22 alone before highways are safe for travel. That’s according to the Oregon Department of Transportation, which released preliminary information Wednesday showing how significantly intrastate travel could be affected by the wildfires for months to come. Wildfires are still burning in several sections of the state, and fire officials have said that some of the blazes will continue burning until heavy rains come later this year. According to a new transportation map released this week, nearly a dozen highways are closed entirely, many for long stretches. The closures will impact travel across the Cascade Mountains in several key spots – with Oregon 138, Oregon 22, Oregon 126 and Oregon 242 all closed at critical spots with no timetable for reopening. Those roads are key arteries connecting Roseburg, Salem and the Eugene-Springfield areas to Central Oregon. U.S. 20 and U.S. 26 remain open, as does Oregon 58, which connects the Eugene area to U.S. 97. As of Wednesday afternoon, roughly 281 miles of highway are closed due to wildfire damage, or roughly the distance on Interstate 5 between Portland and Medford. “It’s fair to say this is a whole new level of damage,” Katherine Benenati, a transportation department spokesperson, said in an email. “These are some of the most hazardous conditions and some of the most widespread damage we’ve seen in years…”

Huntington, West Virginia, Herald-Dispatch, September 16, 2020: Cicadas will soon erupt again. Prepare your trees for the invasion.

If past is prologue, then one night next May, a funny-looking insect – plump, brown, hunched – will emerge from the ground, crawl up the nearest vertical perch and cast off its mantle. Within an hour or two, the periodical cicada will fill out to its adult form, with beady red eyes and glassy wings framed with orange ribs. Soon thereafter, hundreds, thousands, millions more cicadas will join the creature for one of the natural world’s most bizarre spectacles: a six-week bacchanalian feast of loud music, acrobatics and, yes, sex, stretching from Georgia to New York. Before this wonder fades for another 17 years, there will be a couple of lingering reminders that this wasn’t some surreal dream. The garden will be littered with the carcasses of three species of spent cicadas. More ominously, the ends of the branches of shrubs and trees will begin to droop and turn brown. The female cicada lays eggs in slits she has cut in thin branches. This ensures that the ensuing hatchling nymphs will drop and burrow into soil laced with tree roots, for they feed off the root sap. The egg-laying also means that branches from the point of injury to their tips will probably die back. On big old oaks or hickories, the resulting branch flagging is unsightly, but it’s a temporary eyesore that the tree will outgrow. But for young, small trees, the dieback can harm the tree’s future and desired shape by pruning twigs destined to become its main branches. In extreme cases, the wounds can allow disease to move into the tree and kill it. The female cicadas prefer branches that are roughly between one-quarter and one-half of an inch in diameter, and each individual makes several cuts. “For trees planted in the past four years, you may want to consider protecting,” said Stephanie Adams, plant health care leader at the Morton Arboretum in Lisle, Ill. Young redbuds, crab apples and cherry trees are among the types of trees that are at risk…

New York City, The New York Times, September 16, 2020: This Tree’s Leaves Look Soft and Inviting. Please Don’t Touch Them.

The lore that shrouds Australia’s giant stinging trees, of the genus Dendrocnide, is perhaps as dubious as it is vast. Tales abound of nightmarish encounters with the hypodermic-needle-like hairs of its leaves injecting a toxin that drives men to madness and has prompted horses to hurl themselves off cliffs. Some of these stories are centuries old and cannot be verified. But as Edward Gilding can attest, these legends contain at least one lick of truth: the absolute agony of being stabbed by the fine, downy hairs that adorn the leaves and stems of Dendrocnide. The trees, which can grow taller than 100 feet, are found throughout the rain forests of eastern Australia, where they are known to torment hikers. “It’s like having a nail shoved into your flesh,” said Dr. Gilding, a biologist at the University of Queensland and self-described sting connoisseur. The sting from the trees’ hairs also has immense staying power, doling out anguish in waves for hours or days. Some anecdotes have reported intermittent pain lasting months; a few especially bad stings have even landed people in the hospital…

Sacramento, California, KOVR-TV, September 16, 2020: Nevada City Group Sitting In Trees To Protect Them From Being Cut Down By PG&E

Some people in Nevada City are going to new heights to stop PG&E from cutting down trees. These protesters are not marching, but climbing to make sure one tree, in particular, does not get chopped down. Pitts and others are doing this for a particular reason.“What’s happening is we are having a lot of trees taken out unnecessarily, completely thoughtlessly. Like just making a huge mess; taking away our heritage,” Pitts said. That heritage is heritage trees. PG&E said some trees have to go because they’re too close to power lines and pose a fire risk. “Part of it is obviously to protect the number of the heritage trees that are here. We’re concerned about the trees that are not really presenting a threat in themselves,” Lorraine Nauman, a tree protester, said. “This particular tree was planted 160 years ago by one of the original tree foundation members in the county here,” Pitts said. Pitts told CBS13 that the tree they climbed to protect from being cut down is an Atlas cedar spruce. It’s not native to the Nevada City area. PG&E said 263 trees are marked to be cut down in Nevada City to provide shorter, smaller and smart Public Safety Power Shutoffs. But instead of cutting down, many want the utility to look down and put their power lines underground. “Undergrounding, in this case, is not a panacea to all of the problems,” Brandi Merlo, PG&E spokesperson, said. “It’s still subject to its own issues including weather impacts, dig in potential, lightning strikes…”


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Case of the Day – Tuesday, September 22, 2020


Every good trial lawyer knows how to employ the Chewbacca Defense.

Every good trial lawyer knows how to employ the Chewbacca Defense.

Sometimes you wonder when you read a decision, “What were they thinking? That does not make sense.”

Today’s case is something like that. The facts are straightforward enough. Smith sold a gas station-restaurant-bar to Mendonsa, but carefully secured Mendonsa’s promise that he wouldn’t let the trees on the plot get so high that they shaded Smith’s adjacent orchard. Wouldn’t you know it, Mendonsa at some point decided he liked tall trees, or he didn’t like trimming tree, or he couldn’t find his clippers, or something. He let the trees grow, and they shaded four of Smith’s something-berry trees (we have no idea what he was raising in the orchard, but this being California, they probably weren’t plantain trees).

Anyway, Smith sued, and Mendonsa, for some foolish reason, fought the action. The trial court found for Smith in due course, and then worked some rump math, figuring the past damages were about $140.00 a year (this was 1952, when a dollar was worth a bit more than now), and multiplied over three years, the damages were $420.00 (or $4,072.80 in 2020 dollars). The Court also enjoined Mendonsa from maintaining trees over 15 feet or branches which were hanging over on Smith’s land.

On appeal, Mendonsa complained that the damage calculations were too imprecise, and that the injunction was unduly burdensome on him. The Court of Appeals disagreed, finding the calculations pretty good for an uncertain case, and anyway complaining that “[t]he wrong was that of the appellants and they are not in a favored position to urge the technical rules governing awards of damages.”

This case may be the legal equivalent of this - what were they thinking?

This case may be the legal equivalent of this – what were they thinking?

Huh? In the words of South Park’s parody of Johnnie Cochran in the legendary Chewbacca defense: “that does not make sense.” If the wrongdoer isn’t entitled to argue that the court has to follow the “technical rules” of assessing damages, then who is? It’s a cinch the plaintiff isn’t going to do anything to restrain the court in calculating damages. This is probably one of those “hard cases make bad law” kind of decisions … but even so, it’s difficult to feel much sorrow for Mr. Mendonsa, who should have been enjoined and been made to pay damages.

A deal’s a deal, after all.

Smith v. Mendonsa, 108 Cal.App.2d 540, 238 P.2d 1039 (Ct.App. Cal. 1952). Smith entered into an agreement with Mendonsa concerning the use of a gas station, restaurant and bar he had sold to him. Mendonsa agreed that he would permit no trees to remain on the site which exceeded a height of 15 feet;, and that if any tree got taller than that height, Smith would have the right to remove the same. The purpose of the agreement was to prevent the shading of Smith’s orchard next door. land and to prevent trees on the appellants’ property from overhanging it. Mendonsa let the trees get too tall, and Smith sued to enforce the deal. The trial court agreed with Smith, and awarded him money damages for past violation as well as an injunction prohibiting Mendonsa from maintaining any tree in excess of 15 feet in height or from permitting branches of any tree to overhang the orchard. Mendonsa appealed, complaining that the damages awarded weren’t supported by the record and that the injunction was too harsh.

Mendonsa let the trees get a little too tall …

Held: The damages and injunction were upheld. The Court observed that the record showed that the shading of the orchard trees near  Smith’s property line was detrimental to the growth of the trees themselves and would, during some seasons, decrease the yield of fruit on the affected trees. Four trees were affected, the evidence showed, and while the proof of damage was not exact, it nonetheless gave some fairly definite basis for computation.

With respect to growing crops, the measure of damages is the market value of the probable yield without detriment, minus the cost of producing and marketing, and minus the return actually received. The damages awarded amounted to about $140.00 per year, and the period of the damage was three years. Additionally, there was damage in that the trees themselves were retarded in growth by the shade.

The Court concluded that the record furnished adequate support for the award made. Anyway, the Court said, Mendonsa was in the wrong, and thus he was not in any position to demand application of the technical rules governing awards of damages. Where a party has suffered damage, the Court held, a liberal rule should be applied in allowing a court or jury to determine the amount, and that, given proof of damage, uncertainty as to the exact amount is no reason for denying recovery.

As for the injunction, the Court held, in cases involving promises as to use of property, injunctive relief — depending upon inadequacy of damages — may be granted. A deal is a deal, the Court seemed to say, and where Mendonsa made the promise to keep the trees trimmed back and then violated it, the award of a perpetual injunction from maintaining any tree in excess of the agreed-upon height and from permitting branches to overhang was not an abuse of the trial court’s discretion.

It is, after all, the duty of the court to encourage the keeping of agreements properly made and to give adequate remedy for breach thereof when it occurs, particularly where breach is deliberate and wrong is willful.

– Tom Root


Case of the Day – Monday, September 21, 2020


Baseball, they say, is a game of inches. So are boundary trees, called “line trees” in the State of Pennsylvania (which, by the way, also calls itself a “Commonwealth” instead of a “State”).

Life imitates art, I guess. Last weekend, I hauled away our 25-year old shed. I am  replacing it with a newer, larger shed – complete with electricity, windows, and (if I have anything to do with it) a beer refrigerator. Behind the shed on or near our property line stands a line of arborvitae trees. They were tiny little shrubs when our next-door neighbor (two owners ago) planted them. Now, they’re monsters.

I need to trim back a few of the arborvitae before the concrete pad for the new shed gets poured. Having read some of what I have written about boundary trees over the past few weeks, I figured I had better be sure I was dealing with some good old-fashioned Massachusetts Rule trimming of branches overhanging my property, and not with some oversize arborvitae that had grown across the property line to become boundary trees.

I found the iron pin on one end of the property line and the post on the other, and ran a line through the trees. Sure enough, two of them have grown across the property line. Lucky for me, the ones I need to trim are still solidly anchored completely on my neighbor’s land. Those I can trim back, exercising both my Massachusetts Rule rights and my ratcheting loppers.

It seems strange that a matter of inches differentiates the trees I can trim with abandon and the trees that I cannot touch without my neighbor’s permission. (I have a great neighbor, by the way, so it is probably not a problem).  Nevertheless, the perverseness of the interplay between boundary trees and encroaching trees that stand completely on land other than one’s own is puzzling and irritating to me in an academic and legalistic way.

My situation is similar to the one in today’s case, which pits a car wash against a restaurant over a row of pine trees that may or may not be on the boundary. Because of the vagaries of how the pine trees at the root of the lawsuit grew along the property line, no one really won: the restauranteur wanted the trees gone, and the car wash owner wanted the trees to remain.

In the end, some of the trees stayed, some did not. And it was all a game of inches…

Wolfinger v. Moates, 7 Pa. D. & C.4th 220 (Pa.Com.Pl. 1990). A line of pine trees separated the Wolfinger Car Wash property from the Moats Restaurant property. Bill Moats received complaints from his patrons about the pine trees, that encroached on his parking lot, scratched diners’ cars and dropped pine cones everywhere (even damaging his lawnmower).

Bill decided to cut down the trees. He told his neighbor, “Suds” Wolfinger, what he planned. Suds was shocked. He liked the trees, because they served as a barrier between his business and the restaurant. Plus, his customers liked parking under them, using the shade while they wiped down their cars. He asked Bill not to cut them down.

Bill did anyway, taking down four of the 13 trees on his first day wielding a chainsaw. Suds raced to his lawyer, and together they raced to the courthouse for a temporary injunction. After Bill was forced to stop, Suds tried to make the injunction permanent.

The court found that the two tracts of real estate shared a common boundary line, and 13 trees stood on or near the line. A survey showed that the first five trees, including the four Bill had cut down, were all on his property. Lucky Bill. The next three, however, straddled the boundary. The  Court referred to them as “line trees.” Tree No. 9 was on Bill’s land, but some bark on the flare touched the boundary line. The last four trees were all on Bill’s land.

Held: Bill was not allowed to cut the three trees that straddled the boundary.

Pennsylvania law made it unlawful “for any owner or owners of any undivided interest in timber land within this Commonwealth to cut or to remove, or to cause to be cut or removed, from the said land, any timber trees, without first obtaining the written consent of all co-tenants in said premises.”

The Court held that the statute dictated its holding that the owners of adjacent tracts of real estate own all trees growing on their common boundary line as tenants in common. Tenants in common are prohibited from unilaterally cutting down or removing such commonly owned line trees.

Applying the general rules of law governing tenancy in common, the Court held, “we conclude neither adjoining real estate owner may remove a tree growing on a common boundary line. Consequently, in the case at bar, notwithstanding the fact that only inches of the trunks of trees 6, 7 and 8 are on the boundary line between the properties of the plaintiffs and defendants, those trees are jointly owned by plaintiffs and defendants. Therefore, defendants may not remove them.”

Suds was not satisfied. He argued that Tree No. 9 was commonly owned as well, because the bark of the tree’s trunk touched the boundary line. Citing the Illinois case Ridge v. Blaha, the Court held that the critical question was “whether any portion of the trunk of the elm tree grows on plaintiff’s property… The law… is determined by the exact location of the trunk of the tree at the point it emerges from the ground.” The fact that the bark of Tree No. 9 touched the line, the Court said, was insufficient to create a tenancy in common.

Trees 1 through 5 and 9 through 13, therefore, were Bill’s sole property. He could cut them down as he wished. But the injunction would become permanent on Trees No. 6 through 8, leaving them to provide both shade and pine cones.

– Tom Root


Case of the Day – Friday, September 18, 2020


You sort of wonder how a kerfuffle over some lilac bushes and a bridal wreath bush in a backyard can end up in the state supreme court. I mean, even back in 1983, legal fees were not insignificant. These bushes were on the back boundary of a couple of properties, so we’re not even talking curb appeal.

Regardless, Raymond Oye did not like the shrubs on the property line. He and his wife thought they were ugly. Neighbor Lou Ann Patterson did not. But Ray started tearing them out anyway. When Lou Ann protested, Mr. Oye said ‘Nay’.

There ensued a trial, an appeal and a trip to the Supreme Court in Lincoln, Nebraska, the principal purposes of which seemed to have been to enrich some lawyers and reach a result Mr. Oye should have seen coming like a freight train through a tunnel. Now mind you, we have no problem with enriching lawyers. We sort of see it as a happy ending. But not everyone feels that way, nor should they.

More than once, we’ve told would-be clients to save their money and suck it up, because they weren’t going to win. We often quote the old legal saw, “A bad settlement is better than a good lawsuit.” It’s an enduring aphorism, probably because it’s true.

In this case, the Oyes didn’t have it, and never did. Compromise with Ms. Patterson would have been much cheaper.

Patterson v. Oye, 214 Neb. 167, 333 N.W.2d 389 (Supreme Ct. Neb. 1983). Lou Ann Patterson owned a piece of property next to Ray and Jeanette Oye’s place. Their backyards abutted on a 132-foot north-south line, with Lou Ann’s property being slightly higher at the boundary line. Lou Ann’s house was built by Truman Clare in 1955, and she bought it in 1972. The Oyes’ residence was built in 1956 by Elmer Larsen, who planted lilac bushes and some beautiful bridal wreath on the south third of the boundary line.

Both Elmer and Truman said the bushes contributed to their privacy and improved the general appearance of their backyards. When Elmer sold the property to Lou Ann, the bushes were at least six feet high and had spread out by natural growth. Some other bushes grew on the property line, and Elmer trimmed them, but he never claimed to own the bushes.

Between 1973 and 1977, Lou Ann and the Oyes both maintained the bushes, although the Oyes performed more work than did Lou Ann. Nevertheless, Lou Ann considered the bushes to be growing on the boundary line and to be common property. She said that they provided her privacy and added to the aesthetic value of the property. The Oyes claimed that they owned the bushes inasmuch as Elmer had planted them and they had done most of the caring for the bushes. In fact, Ray Oye claimed that in 1973, Lou Ann told him she thought the hedge belonged to him.

The Oyes considered the brilliant purple of the lilacs and delicate whites of the bridal wreath to be ugly. Ray wanted to remove the hedge and build a rock wall, partly to divert runoff from his land. So Ray started to work, removing about 48 feet of bushes at the north end of the boundary line before Lou Ann objected. The neighbors’ efforts at compromise failed, so Lou Ann sued, alleging trespass and asking for damages and an injunction.

As of the time of trial, the remaining bushes were 12 to 18 inches wide at their base, growing on the boundary line, and were untrimmed, spread out and intermingled with other growth. The cost of replacing the bushes Ray had torn out was from $300 to $1,500.

The trial court found the  shrubs were on the boundary line, and issued an injunction against Ray and Jeanette cutting any more of the bushes. The court further ruled the Oyes owed Lou Ann $400.00 in trespass damages.

The Oyes appealed.

Held: A tree, standing directly upon the line between adjoining owners so that the line passes through it, is the common property of both parties, and neither owner may cut and destroy it without the consent of the other. When one common owner threatens damage to a commonly-owned tree or shrub, a court may issue an injunction to prevent the damage.

Traditionally, where the tree trunk impinges upon the lot line, “and when the respective owners have for years jointly cared for the tree, and divided the expenses of protecting it… then each has an interest in the tree sufficient to demand that the owner of the other portion shall not destroy the tree.” The equities in a boundary tree favors the shade and other benefits of a tree.

The Supreme Court of Nebraska found that Lou Ann and the Oyes owned the bushes growing on their common boundary line as tenants in common, and that the Oyes wrongfully removed and destroyed about 48 feet of those bushes, for which the trial court properly assessed $400 in damages. The Court found that if the Oyes continued on their course of conduct, they might “harm, damage, or destroy some or all of the remaining bushes growing on the boundary line, which would cause irreparable damage to plaintiff and unnecessary litigation, and that the terms of the trial court’s injunction are equitable.”

The Oyes argued that the injunction would impose years of unreasonable future hardship on them, and invite abuse from Lou Ann. The Court was unmoved: “Defendants are reminded that the law provides avenues of relief in the event they feel aggrieved. Where there is a change of circumstances they may apply to the court to vacate or modify the decree.”

To channel the late Rodney King, Mr. and Mrs. Oye, can’t we all just get along?

– Tom Root


Case of the Day – Thursday, September 17, 2020


The right things usually get done for the wrong reasons. The Internet, which knows all (or soon will, according to the AI people), attributes the aphorism to James Carville, but I remember the same line being penned by Washington columnist Drew Pearson in a political potboiler of his, The President, which I read as a lad in the summer of 1971.

Sorry, James, When it comes to credit for this particular witticism, you didn’t build that.

Today’s case is a reminder to all the states that claim the Massachusetts Rule, the Hawaii Rule, the Virginia Rule and so on that there is nothing new under the sun. Well before those rules came into being, the Washington State Supreme Court grappled with the encroachment issue, and reluctantly decided an early version of the Hawaii Rule: where there is encroachment and that encroachment causes “sensible harm,” the adjoining landowner may either trim back the offending branches and roots, or sue to force the tree’s owner to do it.

Ironically, settling the law (the right thing to do) probably got done for the wrong reason (bad blood between neighbors). We have seen how the Massachusetts Rule began in Michigan. Now, it seems the Hawaii Rule may have started in Washington.  Sorry, Hawaii, you didn’t build that.

Truly, there’s nothing new under the sun.

Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (Supreme Ct. Wash. 1921). A.L. Ryland had owned his place for many years when new neighbors, the Gostinas moved in next door. A.L. had a Lombardy poplar tree growing about two feet from the Gostina property, and a fir tree in the rear of the property, also about two feet of the division fence. On top of that, A.L. maintained a creeping vine, growing in a rustic box on top of a large stump, a few feet from the division fence, and some raspberry bushes and a rosebush growing near the property line.

About a year after they moved in, the Gostinas had their lawyer write to A.L. to tell him the branches of his fir tree were overhanging the Gostina property and dropping needles, and that A.L.’s ivy was running under the fence and onto the Gostinas’ lawn. The lawyer demanded that A.L. cut off the branches of the fir tree at the point where they crossed the boundary line, remove the ivy from the Gostinas’ property, and to keep the tree and ivy from encroaching ever again.

A.L. was unimpressed, so the Gostinas brought a suit for abatement of a nuisance. (And we thought foolish litigation was a recent phenomenon!) A.L. argued that the lawsuit was merely for spite and vexation, and that the Gostinas knew the tree and ivy were there when the moved in. Only after a neighborly disagreement, A.L. claimed, did the Gostinas sue.

The trial court did not care about any such nonsense, holding that where branches of trees overlap adjoining property, the owner of the adjoining property has an absolute legal right to have the overhanging branches removed by a suit of this character.

The Gostinas appealed.

Held: A.L.’s tree and ivy were a nuisance, and the Gostinas’ claimed damages, although ridiculously minor, were enough to permit them to maintain a nuisance action against A.L. Ryland.

The Court agreed that under Washington law, trees and plants growing into the yard of another constituted a nuisance, “to the extent to which the branches overhang the adjoining land. To that extent they are technical nuisances, and the person over whose land they extend may cut them off, or have his action for damages, if any have been sustained therefrom, and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

From ancient times, the Court said, it has been a principle of law that the landowner has the exclusive right to the space above the surface of his or her property: “To whomsoever the soil belongs, he also owns to the sky and to the depths. The owner of a piece of land owns everything above it and below it to an indefinite extent.” On the same principle, the Court held, the branches of trees extending over adjoining land constitute a nuisance, at least in the sense that the owner of the land encroached upon may himself cut off the offending growth.

A property owner may not “maintain an action against another for the intrusion of roots or branches of a tree which is not poisonous or noxious in its nature. His remedy in such cases is to clip or lop off the branches or cut the roots at the line.” What it came down to, the Court held, was that “the powerful aid of a court of equity by injunction can be successfully invoked only in a strong and mischievous case of pressing necessity” and there must be “satisfactory proof of real substantial damage.”

Here, the Court said, what the Gostinas complained of was “so insignificant that respondents did not even claim them or prove any amount in damages–but simply proved that the leaves falling from the overhanging branches of the poplar tree caused them some additional work in caring for their lawn; and that the needles from the overhanging branches of the fir tree caused them some additional work in keeping their premises neat and clean, and fell upon their roof and caused some stoppage of gutters; and that sometimes, when the wind blew in the right directions, the needles blew into the house and annoyed the occupants. We cannot avoid holding, therefore, that these are actual, sensible damages, and not merely nominal, and, although insignificant, the insignificance of the injury goes to the extent of recovery, and not to the right of action.”

Since the Gostinas had the statutory right to bring an action for abatement of a nuisance, and had shown some “actual and sensible damages, although insignificant,” they are entitled to go forward with the suit. “The remainder of the trees will doubtless shed their leaves and needles upon the respondents’ premises,” the Court prophesied, “but this they must endure positively without remedy.”

The Court was not really that fooled: this was a spite suit, but that alone was not disqualifying. While the Gostinas’ action against A.L. “has some appearance of being merely a vexatious suit,” the Court said, A.L. did “admit that the tree boughs do overhang respondent’s lot to some extent. There is sufficient foundation in fact to sustain a case…”

– Tom Root