Case of the Day – Friday, July 19, 2019

Posted on July 19, 2019 by treelawyer tagged.

WATERWORLD

In a little shot of neighbor law today, we’re going to talk about Waterworld.

No, Kevin Costner, it’s not that kind of Waterworld. Instead of a $200 million turkey, this waterworld’s a place where water is precious because there’s not that much of it, a semi-arid climate in Nebraska, a state once considered to be part of the Great American Desert but is now an agricultural powerhouse. Water’s scarce here, and water rights have been litigated ever since settlers put down their six-guns and hired the first local frontier lawyer.

In this case, a greedy downstreamer in the Lower Platte River basin had used an unnamed tributary to build his pond — his own fine little fishing pond — and he wanted his upstream neighbor to be prohibited from doing the same until his pond was full to his satisfaction. The trial court agreed with him, but the Nebraska Supreme Court found that Koch’s claim to a superior appropriative right to the water was as fictional as most of the cowboy-and-Indian stories of the old West.

As a riparian owner, Koch’s rights to the water turned out to be no better than that of his upstream neighbor.

It’s just a case about a little water, you say. What do you know? Water has been declared to be the oil of the 21st century, and it probably is. Having the right amount of water of the right degree of purity at the right place at the right time is right important. Those who have it – think of those of us in the Great Lakes watershed, for example – guard it jealously. Having some sense of how water law is applied, the world of riparian rights, is a pretty good idea.

Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (Sup.Ct. Neb. 2007). The Aupperles built a small dam to create a farm pond along the banks of an unnamed tributary of Weeping Water Creek. Loren Koch, a downstream user of tributary’s waters, sued. He complained that in 1989, he dammed the waters of the tributary and built a 3-acre pond on his property next to his house. Koch alleged the Aupperle dam would prevent his pond from filling and deprive him of stream water for livestock watering.

Koch said he bought his property in 1981 and that, aside from two brief times in the past two years, he had observed a constant flow of water in the tributary. His dam, built in 1989, impounded approximately 40 to 50 acre-feet of water. In 1990, he stocked the pond with largemouth bass, bluegill, and catfish, and, by the time of trial, the pond had become “one of the best little fishing ponds around.”

This is what the mighty Colorado used to look like when it met the Sea of Cortez, a victim of too many riparian rights holders taking too much water, A recent agreement between the U.S. and Mexico has improved matters, but not a lot.

Although Koch said he used his pond to water his livestock, he had no livestock from 1997 until shortly before trial. He said he intended to have a small number of cattle on his property again and that he had recently obtained seven head of cattle; he anticipated having a maximum of 45 head.

Koch admitted that he had other water sources for cattle on his property, but he testified that he preferred to use the running water from the tributary. He also used the pond for recreational boating. Koch was concerned that if the drought continued and the Aupperles were allowed to build their pond, no water would pass through to his pond and it would dry up and kill his fish. He asked the court require a “six-inch draw down” in the Aupperle dam so that water could be passed through the Aupperle structure until Koch’s pond was full.

Koch conceded he had no appropriative right to use the water in the tributary. He said he wanted all the water in the tributary until his pond was full. At that time, the court could authorize upstream impoundment by the Aupperles.

Koch admitted that he had other sources of water that he could use for his livestock, including several other ponds, a well, rural water spigots, and stock tanks. Paul Zillig, the assistant manager of the Lower Platte Natural Resources District, testified that based on data compiled by the Natural Resources Conservation Service, the entity that designed the Aupperle farm pond, there was sufficient water in the tributary to support both ponds.

The trial court found that while both parties intended to use the water for the same purpose, Koch “has priority of appropriation due to the fact that his dam was constructed back in 1989 and has existed since that time.” On this basis, the court concluded that “Koch’s use of the water from the stream is superior to [the] Aupperles.” The district court permanently enjoined the Aupperles from constructing their farm pond “until such time as the dam structure contains a draw-down or similar device which will allow for the passage of water through the dam structure.” The Aupperles appealed.

Held: The injunction was reversed. The basic concept of riparian rights is that an owner of land abutting a water body has the right to have the water continue to flow across or stand on the land, subject to the equal rights of each owner to make proper use of the water. Riparian rights extend only to the use of the water, not to its ownership. One of the most significant maxims of riparianism is that, unlike the rule of the prior appropriation system, there is no priority among riparian proprietors utilizing the supply. All riparian proprietors have an equal and correlative right to use the waters of an abutting stream.

Of equal importance with this maxim is that use of the water does not create the riparian right and disuse neither destroys nor qualifies the right. While a riparian right will not permit any one man to monopolize all the water of a running stream when there are other riparian owners who need and may use it also, neither does it grant to any riparian owner an absolute right to insist that every drop of the water flow past his land exactly as it would in a state of nature.

Applying these principles, the Court concluded as a matter of law that Koch could not have acquired any “senior” riparian right by constructing his dam in 1989. Any riparian right he may have to use water in the tributary would be equal and correlative to the rights of other riparian proprietors. The rights of one riparian landowner versus another is determined by examining the reasonableness of each landowner’s respective use of the water.

The record in this case did not establish that either Koch or the Aupperles held riparian rights. The Court found the parties were simply owners of adjoining tracts of land through which the tributary flows, with Koch’s land situated downstream of that of the Aupperles. Koch, as the party seeking injunctive relief, had the burden to show that the proposed Aupperle dam would infringe on his rights. Because he could not demonstrate the existence of a common-law riparian right, the Court held, he clearly was not entitled to injunctive relief.

Accordingly, the Court said, it did not need to analyze the reasonableness of the use by each party of the water flowing in the tributary. If it had, it said, it noted that both parties intended to use water in the tributary “primarily for aesthetic and recreational purposes with grade stabilization, erosion control, and domestic use (watering cattle) being secondary in nature.”

– Tom Root

Case of the Day – Thursday, July 18, 2019

Posted on July 18, 2019 by treelawyer tagged.

I CAN SEE FOR MILES AND MILES…

It may be a great car wash … but we can’t see the road.

Every morning, we look to the left and right as we pull onto the main street, only to stare into an ill-placed car wash sign. The First Armored Division could be rolling into town, and we couldn’t see it the M1A1s coming before they flattened our Yugo.

So every morning we wonder whether the sightline obstruction might not make someone liable to our next of kin when the inevitable happens. As it did one rainy night in Georgia.

A car had a chance encounter with a dump truck at a Georgia intersection. The pickup driver perished. Investigators suspected that untrimmed shrubs on vacant property at one corner of the crossroads, as well as a “curvature” in the road, made the intersection dangerous. The intersection had experienced several other accidents due to visibility.

In the aftermath of the tragic auto accident, the victim’s survivors sued the Georgia Department of Transportation, claiming it had a duty to keep trees and shrubs from a vacant lot trimmed back to protect the sight lines at the intersection in question. The trial court disagreed.

On appeal, the Court agreed that as a matter of law, DOT had no duty to maintain the intersection. But it did have a duty to inspect. It seemed that an issue of fact existed as to whether the vegetation had encroached on the highway right-of-way. But the Court discounted the plaintiff’s expert opinion that encroachment had occurred, because DOT contended it didn’t know where the right-of-way began, so who knew?

The result seems to turn summary judgment on its head, letting DOT off the hook without a trial when a real fact issue – the location of the highway right of way – remained. We were left as confused about liability afterwards as we were beforehand. And we still can’t see down the street.

Welch v. Georgia Dept. of Transp., 642 S.E.2d 913 (Ct.App. Ga., 2007). Addie D. Welch was killed when her vehicle hit a dump truck at an intersection. A policeman said the overgrown bushes on the northwest corner of the intersection contributed to the accident. A sheriff’s department investigator said overgrown shrubs on the vacant property and a “curvature” in the road combined to make the intersection dangerous. Several other accidents due to visibility had occurred previously at the intersection.

Welch’s expert witness said that a driver’s line of sight was obstructed by overgrown shrubs and trees on the northwest corner of the intersection. The expert said that the overgrowth extended two feet into the Georgia DOT right-of-way, and that DOT was responsible for maintaining the line of sight. The expert also said American Association of State Highway and Transportation Officials’ (AASHTO) guidelines for that intersection require a line of sight of 430 feet. Because of the overgrown vegetation, Welch’s line of sight was between 143 and 277 feet.

After the accident, DOT employees cut the overgrowth. Claiming that trees and shrubs on the property adjacent to the intersection were negligently maintained and obstructed her line of sight, Welch’s estate and surviving children and grandchildren sued the Georgia DOT. DOT moved for summary judgment, arguing that state law precluded plaintiffs’ claim, or in the alternative, that plaintiffs presented no evidence that Welch’s line of sight was obstructed. The trial court granted DOT’s motion, and Welch appealed.

Held: DOT was not liable. The Court ruled that DOT was immune under OCGA § 32-2-2. That statute gives DOT has the general responsibility to design, manage and improve the state highway system. But, where state highways are within city limits, the DOT is required to provide only substantial maintenance and operation, such as reconstruction and resurfacing, reconstruction of bridges, erection and maintenance of official department signs, painting of striping and pavement delineators and other major maintenance activities.

Although the road Welch was on was a state highway, the intersection lay within the corporate limits of Quitman. Accordingly, DOT was required only to provide substantial maintenance activities and operations. Those activities, the Court said, did not include the maintenance of shrubbery and vegetation. Thus, the statute did not impose a duty on DOT to maintain the shrubbery. But Welch also argued that another statute, OCGA §50-21-24(8), made DOT liable for failing to inspect its right-of-way. In order to prevail on this claim, the Court said, Welch had to show that the vegetation extended into DOT’s right-of-way. DOT argues that the overgrowth was on private property.

Although Welch’s expert believed the vegetation encroached on the DOT right-of-way, the Court agreed with DOT’s view that the extent of the right-of-way couldn’t be ascertained without using courthouse records and surveyors. Because Welch’s expert had not relied on DOT testimony to opine that vegetation extended into the right-of-way, and the Court found that the evidence was uncertain as to the location of the right-of-way, Welch’s expert’s opinion that vegetation extended into the right-of-way was disregarded, and plaintiff was found not to have established DOT’s liability.

-Tom Root

And Now The News …

Posted on July 18, 2019 by treelawyer tagged.

Nashville, Tennessee, The Tennessean, July 17, 2019: Commercial developers will have to plant more trees under new Nashville legislation

The Metro Council on Tuesday passed a new ordinance that attempts to slow some of the Nashville’s rapid tree loss from development. The legislation requires commercial developers to replace or plant more trees during construction and gives incentives for saving large trees on commercial projects, which include office, retail, apartments and condominiums. It stops short, however, of bolstering tree regulations for lots with single-family homes and duplexes. Nashville has been grappling with the side effects of the unprecedented real estate development over the past few years: increased traffic, construction sites blocking sidewalks, displacement of low-income renters, and the loss of thousands of trees. From 2008 to 2016, officials from Metro Water Services estimate the city lost 918 acres of tree canopy — the equivalent of 695 football fields…

Peoria, Illinois, WMBD-TV, July 17, 2019: Tree service workers take precaution in excessive heat

With excessive heat in the forecast several people are looking for ways to stay cool, especially tree workers. Bennett and Sons Tree Service employees have a job to do regardless of the temperature, but they take appropriate measures to make sure they are safe. Vitamin B-12 is one supplement workers use in the heat. It’s a tablet that helps keep the body functioning correctly. Workers also wear, dry-wicking clothing, attire made of a material that keeps them cooler. Bennett said he makes sure that his employees take breaks and stressed that their health is most important…

St. Louis, Missouri, KSDK-TV, July 17, 2019: Neighbors complained of dangerous trees for years, then one fell on their house

When the 100-foot-tall tree in Roosevelt Hawkins front yard fell Wednesday night, there was no mistaking something was wrong. “We heard it, and the house was shaking,” Hawkins said. But this was a day Hawkins knew was coming and warned the city. “I have called the city forestry department for two-and-a-half years trying to get these trees taken care of out here,” Hawkins said. “And we called again last month, Nothing. They only said, ‘We got you on the list.'” When we tell Hawkins he’s likely at the top of the list now, he only says “I hope so” with a chuckle. The tree landed with the bulk of its weight on Hawkins’ home, but branches affected the structures on either side too. Now his neighbor, Barbara Harris, worries she might be next as a large tree leans towards her home. “These trees are too big to be in the neighborhood,” Harris said. “They are too big and too old.” Harris said she reported the trees in front of her home as recently as three months ago since branches keep breaking off…

Science News, July 17, 2019: Planting trees could buy more time to fight climate change than thought

A whopping new estimate of the power of planting trees could rearrange to-do lists for fighting climate change. Planting trees on 0.9 billion hectares of land could trap about two-thirds the amount of carbon released by human activities since the start of the Industrial Revolution, a new study finds. The planet has that much tree-friendly land available for use. Without knocking down cities or taking over farms or natural grasslands, reforested pieces could add up to new tree cover totaling just about the area of the United States, researchers report in the July 5 Science. The new calculation boosts tree planting to a top priority for gaining some time to fight climate change, says coauthor Tom Crowther, an ecologist at ETH Zurich. The study used satellite images to see how densely trees grow naturally in various ecosystems. Extrapolating from those images showed how much forest similar land could support. Plant a mix of native species, he urges. That will help preserve the birds, insects and other local creatures. The analysis revealed space to nourish enough trees to capture some 205 metric gigatons of carbon in about a century. That’s close to 10 times the savings expected from managing refrigerants, the top item on a list of climate-fighting strategies from the nonprofit Project Drawdown, a worldwide network of scientists, advocates and others proposing solutions to global warming…

Cleveland, Ohio, WOIO-TV, July 16, 2019: Walmart and Rural King recall potentially diseased rhododendron plants after sudden death of oak tree

The Ohio Department of Agriculture (ODA), in coordination with USDA Animal and Plant Health Inspection Service, detected a sudden oak death caused by rhododendron plants shipped to Walmart and Rural King stores throughout the state. Both retailers have agreed to initiate a voluntary recall of plants from their stores. It was recently confirmed that Ohio is one of several Midwest states that have received infected plant material. Approximately 1,600 rhododendron plants from the infected nursery were shipped to Ohio retailers. This shipment went to at least 17 other states. Gardeners and homeowners who have recently purchased a rhododendron from Walmart or Rural King should monitor the plant for signs of disease, including leaf spots and shoot dieback. It is also advised that Ohioans who purchased rhododendrons or lilac plants from these stores between March and May of this year should dispose of them to prevent further spread of the disease. Plants can be destroyed by burning, deep burial or double-bagging the plant, including the root ball, in heavy duty trash bags…

Jacksonville, Florida, WTLV-TV, July 16, 2019: Jacksonville man claims city contractor removed wrong tree from his property

Is this a case of the contractor removed the wrong tree? Larry Dixon said he was surprised to find a city hired a tree contractor at his West Jacksonville home removing his Pecan tree. “I’m very frustrated,” Dixon said. Dixon said his battle with the city’s Municipal Code Enforcement Division began in March. He said he contacted the city about two trees in the city’s right-of-way because they look like they’re dying. He said that’s when he was given a citation for the dead branches on his maple tree. “I reported their trees and they gave me a citation for mine, that is correct,” said Dixon. In April, his citation was referred to abatement. Last Thursday a city contractor showed up and removed his pecan tree, not the maple with its dead branches. “I said ‘stop that’s the wrong tree,'” Dixon said. “It is the wrong tree. The tree did not have a dead leaf on it.” Five days after cutting down the tree, the same the contractor was back removing the debris…

Phys.org, July 16, 2019: Should we resurrect the American chestnut tree with genetic engineering?

The wild chestnuts around this leafy college town used to grow in such great numbers that locals collected the nuts by the bushel and shipped them off to New York City for a small fortune. These days, though, it can be hard to find a single tree thanks to a devastating blight imported from Asia in the late 1800s. “Every fall, I look for the burs,” said Neil Patterson of the Tuscarora Nation, a Native American tribe that has lived in the region for centuries. His ancestors depended on the trees for food and medicine. But in 10 years of searching, he’s never found the spiny pods that hold the chestnut’s prized fruit. Soon, scientists at the SUNY College of Environmental Science and Forestry here could change that. They say they’ve found a way to resurrect the chestnut by giving it a gene from wheat that shields it from the blight’s poison. If the federal government gives its blessing, these genetically engineered trees could be ready to plant in a few short years. It would mark the first use of the technology for ecological restoration, and probably not the last…

Kansas City, Kansas, WDAF-TV, July 16, 2019: KCK man gets outpouring of support from community after botched tree removal

Volunteers are stepping up to help a single father of four in KCK. He hired a man to cut down a tree, but the tree fell on his house. Now thanks to viewers it could soon be a problem solved! Outside, you could see a man hammering wood where none previously stood. Inside, volunteers were in each bedroom of the house repairing the walls and patching holes. AJ Reese is happy to see his home is a construction zone after FOX4 viewers saw his story. “I just started receiving calls after they saw it for the second or third time,” Reese said. “They saw the story, and I just started receiving calls. Over 25 calls of people that want to come and help and give them their all.” Reese has until July 25 to make the home safe for his four sons, or the city will force him to leave because the building was deemed unfit after the incident. “Getting in and helping someone when they’re down and out and need it, you know that’s just the thing to do,” retired construction worker Jack Reed said. “Come help,” Roberto Chavez, owner of Chavez Renovation, said. “It’s just donating time that you’ve got plenty of…”

Miami, Florida, New Times, July 15, 2019: State Says No to New Tree Regulations, but Miami Plans to Enforce Its Own Laws

From the oaks of Coconut Grove to the mahoganies of the Upper Eastside, the trees in Miami give each neighborhood a distinctive flair. So, for years, the City of Miami — which is designated a Tree City USA by the Arbor Day Foundation — has passed myriad regulations protecting the canopy and preventing residents from chopping down trees without significant approval. That could soon change: Earlier this year, the Florida Legislature passed a bill to bar local municipalities from regulating tree removals on residential properties. House Bill 1159, also known as the Private Property Rights Protection Act, went into effect July 1. Under the new legislation, municipal governments are not allowed to require any permits, notice, or approval from residents who wish to remove dangerous trees from their properties. All a homeowner needs is a report from a certified arborist or landscape architect who says the tree poses a danger. Current Miami law says that unless residents can prove a tree is dangerous, they have to pay for a number of surveys and mitigation practices that some consider far too onerous. “My clients have to spend thousands of dollars just to remove one tree from their property,” says Ron von Paulus, a certified arborist and the owner of Big Ron’s Tree Service. “They need to get a land survey, a tree survey, a tree risk assessment, and still have to mitigate by planting trees or donating to the tree trust fund. That’s already over $3,000…”

Phys.org, July 16, 2019: Joshua trees facing extinction

They outlived mammoths and saber-toothed tigers. But without dramatic action to reduce climate change, new research shows Joshua trees won’t survive much past this century. UC Riverside scientists wanted to verify earlier studies predicting global warming’s deadly effect on the namesake trees that millions flock to see every year in Joshua Tree National Park. They also wanted to learn whether the trees are already in trouble. Using multiple methods, the study arrived at several possible outcomes. In the best-case scenario, major efforts to reduce heat-trapping gasses in the atmosphere would save 19 percent of the tree habitat after the year 2070. In the worst case, with no reduction in carbon emissions, the park would retain a mere 0.02 percent of its Joshua tree habitat. The team’s findings were published recently in Ecosphere. Project lead Lynn Sweet, a UCR plant ecologist, said she hopes the study inspires people to take protective environmental action. “The fate of these unusual, amazing trees is in all of our hands,” she said. “Their numbers will decline, but how much depends on us…”

Manchester, New Hampshire, Union Leader, July 15, 2019: Kingston ‘palm tree’ has people wondering if they’re really in Miami

The towering spruce tree on Mark Cyr’s Main Street property has passersby doing a double-take. The tree was recently stripped of its branches as Unitil prepares to have it removed before it threatens nearby power lines, but crews couldn’t reach the top. With all of the branches gone and the tip left untouched, the tree looks more like a palm tree. “People walk by and look at the palm tree,” Cyr said. The tree transformation on Cyr’s property at 159 Main St. happened about a month ago. At the time, the tree-cutting crew didn’t have a bucket that could go high enough to reach the top. The rest of the branches were cut, but workers had to leave the top alone until they could get a truck with a bucket that would extend that far. The result was a palm tree that makes traveling Main Street feel more like cruising a street in Florida, especially with the summer heat that’s gripping New Hampshire and is expected to worsen later this week. “When a spruce like that needs to be removed, the typical practice is to remove all the limbs first and take the tree down in chunks; this makes it much easier to safely control the removal and keep branches falling in unexpected directions, like onto the lines of other peoples’ property,” said Unitil spokesman Alec O’Meara…

Omaha, Nebraska, World Herald, July 15, 2019: Should we resurrect the American chestnut tree with genetic engineering?

Bakersfield, California, Californian, July 14, 2019: As trees die in Sequoia, Forest Service hopes new plan will save the ecosystem

A massive tree die-off in both the Sierra and Sequoia national forests have caused officials to revise a plan meant to save the parks as climate conditions have worsened. Across the state, about 147 million trees lie standing dead, according to a report by the U.S. Forest Service, with about 1.4 million acres of the destruction concentrated in both national forests. A drought starting in 2011, combined with mismanagement of the forests by the Forest Service, left trees vulnerable to intense fire hazards and bark beetle infestations, the report said. Around 2015, “the Sequoia and Sierra National forests began seeing die-offs at an alarming rate,” the report said. “Scientists are monitoring the massive tree die-off in the Sierra Nevada and warn that climate change impacts over the next decade will increase the threat of ongoing mortality in the region.” The Forest Service is in the process of devising two plans meant to restore the parks to healthy ecosystems. Its current management plan was last updated in 1990, and park officials consider it to be out of date. Among other flaws, the agency’s policy of suppressing fires within the parks allowed both Sequoia and Sierra forests to become too overgrown, which increased the risk of catastrophic wildfires and beetle infestations, according to the Forest Service’s own report…

Chicago, Illinois, WBBM-TV, July 14, 2019: West Lawn homeowner in need of tree trimming months after asking City for help

Low-hanging tree branches are a big cause of concern for a West Lawn homeowner. After months of asking the city for help, signs were put up and the service was scheduled. But the work still did not get done at 65th and Hamlin, where a trio of trees with branches draped over Eddie Guillen’s property. Orange no parking notices were posted on these trees indicating work would be done to trim the branches, days later, tickets were issued, the signs were removed, but these tree branches are still untouched. “How long? How many more months?” Guillen questioned. The West Lawn homeowner told CBS 2 he’s been asking the city to trim them since April, before something bad happens. “One of the branches falling down, hitting the house,” Guillen said…

Chicago, Illinois, WBEZ Radio, July 11, 2019: Andersonville neighbors hope State rule change can save Chicago Trees

Andersonville neighbors Tamara Schiller and Lesley Ames were heartbroken when they got the letter from their alderman on June 18. It read: “After exhausting all options and alternatives, the Department of Water Management has determined that the trees on Balmoral, Summerdale, Berwyn and Farragut listed below will have to be removed…” The two neighbors had been working for months to protect the trees from removal by the water department for infrastructure work. The letter from Chicago Ald. Harry Osterman, 48th Ward, felt like a final defeat and the certain loss of some of the neighborhood’s biggest and oldest trees — more than a dozen on adjoining blocks. But, by early July, they got word that Mayor Lori Lightfoot’s office had put a temporary hold on the tree cutting to await the outcome of a proposed state rule change due for a hearing on July 16. If accepted, it would explicitly offer municipalities less disruptive repair methods. In Chicago, the proposed rule change could save more than 100 trees across the city slated to be removed this summer. This inspired Ames to write a letter of her own to Lightfoot on July 3…

Richmond, Virginia, Associated Press, July 14, 2019: Virginia launches new forestry program to help James River

Virginia is trying to protect its longest river by launching a new program to plant 900 acres of trees, shrubs and other vegetation along waterways. Gov. Ralph Northam announced Friday an initiative to plant forested buffers in the James River watershed between Lynchburg and Richmond. The Virginia Department of Forestry is partnering with the James River Association on the project, which is part of a $15 million, multi-year plan to improve the river’s quality. The buffers slow flood water, filter runoff, and provide shade and shelter to wildlife. The 340-mile long James is fed by 15,000 miles of tributaries…

Denver, Colorado, KMGH-TV, July 11, 2019: Developer chops off multiple branches from neighbor’s tree in Potter Highlands Historic District

The pounding of hammers and whirring of saws constantly echo throughout the Potter Highlands Historic District, where several homes and duplexes are under construction. Longtime resident Michele Gabriel is trying to get acclimated to the noise, and to other impacts. “I grew up in this neighborhood,” she said. “I lived in the house (catty corner) that got torn down.” She told Contact7 that a tall evergreen tree in her front yard has become a victim to that growth. “When my husband asked me this morning if I knew our tree had been trimmed, I said, ‘no,'” she said. Ms. Gabriel was stunned when she looked up and noticed that multiple branches had been removed on the south side of the trunk, leaving a gap about two stories tall. “It’s been mutilated,” she said. “It’s asymmetrical now and just unsightly…”

Albany, New York, WAMC Radio, July 11, 2019: Appellate Court Rules Cutting Trees To Create Trails In Adirondack Forest Preserve Unconstitutional

In 2013, Protect the Adirondacks filed a lawsuit challenging the legality of New York state’s plan to cut trees in the Forest Preserve and build nearly 27 miles of snowmobile trails. The New York Appellate Court issued a split decision recently, ruling that while building the trails did not violate the state constitution, the planned destruction of timber did. The New York state Constitution’s Article 14 states that Forest Preserve lands “..shall be forever kept as wild forest lands…nor shall the timber thereon be sold, removed or destroyed.” Protect the Adirondacks had filed suit against a DEC plan to construct snowmobile trails, arguing it would mean cutting more than 25,000 trees, or timber, at least three inches in diameter. The Appellate Court determined that construction of the trails would result in “…an unconstitutional destruction of timber in the Forest Preserve.” Executive Director Peter Bauer says the ruling is important because only two other decisions over the past 75 years have set precedent for tree cutting on the Forest Preserve. “This case actually expanded upon and provided greater definition for the protection of trees on the Forest Preserve. Those trees need protection. The Constitution doesn’t say what trees are protected and what trees are not protected or that only some trees are protected or some trees are not protected. The Constitution says the trees on the Forest Preserve are protected. Of course the state of New York can cut trees for its management activities but in this case cutting 25,000 trees went over any reasonable standard…”

Southern Pines, North Carolina, Pilot, July 11, 2019: Sycamore Tree Stump Granted Clemency

The loss of a century-old sycamore tree in downtown Southern Pines was inevitable. The massive branches had deteriorated over time, damaged by bacterial leaf scorch, a condition common to sycamores in this area. On Sunday at dawn, a professional tree removal service will remove everything down to the eight-foot mark. The sycamore stump — with its textured bark and rumpled roots — will then be reborn to serve a new purpose, said Suzanne Coleman, who oversees the town’s Welcome Center and is spearheading a grassroots initiative to convert the spot into a new Free Little Library site. Coleman was inspired by Sharalee Armitage Howard, an artist and librarian from Coeur d’Alene, Idaho, who turned a 110-year old cottonwood stump in her yard into a tiny library. The project involved carving bookshelves into the stump, then adding lighting, a small door and a shingled roof. Earlier this week, she reached out to Southern Pines Town Manager Reagan Parsons and said he accepted her proposal…

Sarasota, Florida, Herald Tribune, July 11, 2019: North Port tree ordinance discussion touches on private property rights

As part of the rewrite for the city of North Port’s tree protection regulations, the City Commission has decided to base the ordinance on Sarasota County’s. The city is working to maintain 35% tree coverage within the city limits — including private property, parks and other public land. A survey of tree coverage within the 1997 city limits using i-Tree Canopy, which can be found at canopy.itreetools.org, estimated that in 1995, tree coverage was at 41.2 percent. That year was chosen because an aerial photo from 1997 was not available. In 2019, the tree coverage in that same area was only 35.6%. That survey does not include two major annexations — Warm Mineral Springs Park and Taylor Ranch, where the West Villages is being developed. While North Port’s draft ordinance is modeled after Sarasota County’s, ordinances for three other platted communities — Deltona, Key Biscayne and Port St. Lucie — were also reviewed…

New York City, Wall Street Journal, July 11, 2019: PG&E Knew for Years Its Lines Could Spark Wildfires, and Didn’t Fix ThemPG&E Corp. knew for years that hundreds of miles of high-voltage power lines could fail and spark fires, yet it repeatedly failed to perform the necessary upgrades

Documents obtained by The Wall Street Journal under the Freedom of Information Act and in connection with a regulatory dispute over PG&E’s spending on its electrical grid show that the company has long been aware that parts of its 18,500-mile transmission system have reached the end of their useful lives. The failure last year of a century-old transmission line that sparked a wildfire, killed 85 people and destroyed the town of Paradise wasn’t an aberration, the documents show. A year earlier, PG&E executives conceded to a state lawyer that the company needed to process many projects, all at once, to prevent system failures—a problem they said could be likened to a “pig in the python.” Even before November’s deadly fire, the documents show, the company knew that 49 of the steel towers that carry the electrical line that failed needed to be replaced entirely. In a 2017 internal presentation, the large San Francisco-based utility estimated that its transmission towers were an average of 68 years old. Their mean life expectancy was 65 years. The oldest steel towers were 108 years old…

Washington, D.C., WTOP Radio, July 10, 2019: Is standing water threatening your tree? Know the warning signs

Standing water can damage or drown tree roots after about a week, warns an arborist from Chesapeake Bay, Maryland. “Trees breathe through their roots, like you and I breathe through our lungs,” said Lou Meyer, assistant district manager of the Davey Tree Expert Company. “A full week of standing water — that’s when you need to get really concerned.” Oversaturated soil can asphyxiate and kill a tree, lead to root rot or prevent an appropriate intake of nutrition. To help prevent flooding, consider getting or adjusting downspouts on your home to redirect water away from a tree. Other options include creating a small berm of soil around the tree to divert water, or installing a French drain system or dry well to slowly absorb water underground…

Washington, D.C., WTTG-TV, July 10, 2019: Exclusive: Documents show warnings on Arlington path where tree limb killed woman

FOX 5 obtained county Parks and Recreation Department work orders that show numerous complaints about low-hanging or falling limbs on a path just weeks before a woman was killed there last month. The woman, 67-year-old Louise Peabody, died after a limb from an 80-foot oak tree fell on her on June 27 at Lucky Run Park off South Walter Reed Drive. In the days after Peabody’s death, Arlington County officials told FOX 5 the most recent complaint was received in May 2018, but now a county spokeswoman says that information was not as detailed as what FOX 5 uncovered through a public records request. A complaint on June 6 documents “a partially fallen tree over the trail.” County officials say they respond to tree complaints regularly and maintain they never got a complaint about the tree that killed Peabody. They also say they examined the limb and determined it was healthy…

Charlotte, North Carolina, Observer, July 10, 2019: Duke Energy sued for halting work on a Lake Norman home — due to a tree, owner says

A Lake Norman property owner is suing Duke Energy for ordering him to remove his $10,000 dock and halt the planned construction of a $342,000 home — all because his landscapers mistakenly cut down a tree, he says in a federal lawsuit. Douglas Ehmann says in the lawsuit that “as a result of the inadvertent cutting of one tree,” Duke “unilaterally, capriciously, and unfairly revoked” his pier permit for five years and “ordered a hold” on a building permit for the home. The property is off N.C. 73 in the Tranquil Cove subdivision in Huntersville. Ehmann claims in the lawsuit that spite might also be involved: The Duke Energy official who revoked his dock permit lives just across the cove from his land “and has developed a personal animosity” toward him, according to the lawsuit, which does not elaborate…

Case of the Day – Wednesday, July 17, 2019

Posted on July 17, 2019 by treelawyer tagged.

SKIN OF HER TEETH

I’ve seen several mutual acquiescence cases recently, for no apparent reason. “Mutual acquiescence” is the term for a mistake agreed to by the affected parties: a driveway wanders over a property line, a fence gets built a few feet over from where it should be, the parties agree that a couple trees mark the boundary line when they really don’t, but it’s more convenient then looking for buried iron rods or PK nail. 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.”

Boyster 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 …

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 …

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.

Tom Root

Case of the Day – Tuesday, July 16, 2019

Posted on July 16, 2019 by treelawyer tagged.

A LEG TO STAND ON

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.

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.”

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.

Tom Root

Case of the Day – Monday, July 15, 2019

Posted on July 15, 2019 by treelawyer tagged.

THE BOUNDARY TREES OF WALTER PRIDDY

You know how free association goes. It’s summer, hot and humid, and we face a string 90-degree days in our future, so we’ve been groovin’ (a 60s term, kiddies) on an old Lovin’ Spoonful hit, “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 Cal. App. Unpub. LEXIS 9979, 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

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.

– Tom Root

Case of the Day – Friday, July 12, 2019

Posted on July 12, 2019 by treelawyer tagged.

SUDOKU, ANYONE?

The 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 so). 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 …

Greenfield v. Wiseman, 2008 Conn. Super. LEXIS 198, 2008 WL 344606 (Conn.Super., Jan. 17, 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 … 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.

– Tom Root