WHEN GOOD FENCERS GO BAD

Today, we consider what liability you might have when the people doing work for you cross the line. Literally. You know, as in trespass on the neighbors’ estate.

The little Schievink homestead (300 acres, but that’s little in Texas, where everything’s bigger) was surrounded by the mega-hunt reserve Wendylou Ranch. Wendylou was having some fence put in, and hired Rudy’s Fencing to do the work. Eventually, Rudy’s Fencing accidentally colored outside of the lines with its bulldozer – a fairly minor mistake, which was promptly corrected and seemed to cause little damage – but the Schievinks raced to their lawyer’s office.

Something seems rather peculiar about this case, and we wish we knew the backstory. Maybe it was the Hatfields and McCoys. Or David and Goliath. Whatever the history between them, the Schievinks were bound and determined that they were going to hang the trespass on Wendylou (despite the fact that Rudy’s, a company with 25 employees and 20 years in business, probably could have easily paid for the actual damage caused to the 15-foot-wide, 1,600-foot-long strip that had been bulldozed accidentally). The cost and aggravation of litigation hardly seem worth it for them, although their lawyer must have been pleased.

To be sure, he fired both barrels at the mega-hunters. But he missed. The Court found that Wendylou hadn’t been an aider or abettor of the trespass, because its people had been careful to identify the property lines, to instruct Rudy’s to install the fence 15 feet inside the boundaries, and to even walk the boundary with Rudy’s staff before each segment of fence was installed to be sure everyone knew where the frontier on the frontier really was. It was mere happenstance that Rudy’s crew got ahead of schedule, and pressed on one day into new territory without alerting Wendylou’s manager that more boundary needed to be identified.

More important for our purposes today, the Court agreed with Wendylou that Rudy’s was an independent contractor. This is important, because while Wendylou would be responsible for the negligent acts of its employees, it was not responsible for its independent contractor’s accidental trespass.

So what is the difference between this case and those situations where the owner has to pay when the hired bulldozer over-dozes? Chiefly, it would seem to be the extra care Wendylou took to ensure that its contractor remained independent yet adequately directed. “Misteaks” do occur, but a careful property owner can minimize their effect. Usually, when an owner hires a guy with a ‘dozer, the transaction is much more casual.

Schievink v. Wendylou Ranch, Inc., 227 S.W.3d 862 (Tex.App., 2007). The Schievinks own 300 acres of land, surrounded on all sides by land owned Wendylou, which does business as Wendy Lou Classic Game Ranch, a “true Tex African game experience” on 4,500 acres of land.

Wendylou hired Rudy’s Fencing to build a game fence around parts of its ranch. The manager of Wendylou, Mike Odell, gave verbal instructions to Rudy’s Fencing personnel about where the fence should be, and Rudy’s Fencing used its own equipment and — other than being told where to start, stop, or put a gate —was not instructed as to the details of building the fence or clearing the fence line.

Odell walked the boundary line with Rudy’s Fencing’s on-site manager during each stage of the construction, only going as far as the fence builders were expected to go in that stage. Odell checked the progress occasionally but did not supervise the day-to-day activities. He did tell Rudy’s to build the new fence two to three feet inside the old fence (which followed the boundary line) to keep from encroaching on the Schievinks’ land. Odell had not yet walked the fence line with Rudy’s at the point where the fence veered onto the Schievinks’ place, because Odell had thought the previous phase through a creek would take longer than it did.

Rudy’s used a bulldozer to clear the fence line. Rudy’s supervisor was confused about his location, and he directed the bulldozer operator to cut the boundary fence and follow another fence row onto the Schievinks’ property. The operator bulldozed a strip of land approximately 15 feet wide by 1,600 feet long before Mr. Schievink arrived to tell Rudy’s supervisor that they were on Schievink’s land.

The Schievinks sued Wendylou for trespass and for breach of its duty as an adjoining landowner. Wendylou moved for summary judgment because the evidence showed that Wendylou did not trespass on the Schievinks’ land or instruct Rudy’s Fencing to trespass, and because Wendylou is not liable for the trespass of an independent contractor. The trial court granted Wendylou’s motion for summary judgment. The Schievinks appealed.

Held: Wendylou is not a trespasser. The Schievinks argued Wendylou breached a duty as an adjoining landowner by failing to instruct Rudy’s Fencing as to the property line, that Rudy’s Fencing wasn’t really an independent contractor, and — even if it were an independent contractor —Wendylou was negligent for failing to give adequate instructions to Rudy’s Fencing.

The Court agreed that a person may be liable for trespass if he aids, assists, advises, or causes another to enter the property, even if the person entering the adjoining land is an independent contractor. But here, the Court said, there was no evidence that the Ranch manager had any role in the trespass. Instead, he had guided the contractor to avoid trespass, but through confusion on the part of the independent contractor, the trespass had occurred anyway. The Court found no genuine issue of fact concerning Wendylou’s breach of any duty that it owed to the Schievinks to instruct Rudy’s Fencing as to the correct property line.

The Schievinks also argued that an issue existed whether Rudy’s Fencing was an independent contractor. If Rudy’s Fencing or its personnel were employees of Wendylou, rather than independent contractors, then Wendylou could be liable for their negligent acts under the doctrine of respondeat superior. But a person who hires an independent contractor is generally not liable for the acts of an independent contractor unless the employer exercises sufficient control over the details of the independent contractor’s work.

The Court considered seven factors in deciding that Rudy’s was an independent contractor: (1) the independent nature of the business; (2) the obligation to furnish necessary tools, supplies, and material to perform the job; (3) the right to control the progress of the work, except as to final results; (4) the length of time for which Rudy’s was employed; and (5) the method of payment, whether by time or by the job. The uncontested evidence showed that Rudy’s Fencing had been in the business for over 20 years, had 25 employees, had bid the job competitively by the foot, had furnished its own people and tools, and had supervised the day-to-day work.

The Court thus held that the evidence established as a matter of law that Rudy’s Fencing was an independent contractor.

– Tom Root

IT TAKES A THIEF

It was perhaps the last of the 60s-era TV spy genre series: It Takes a Thief featured the adventures of cat burglar, pickpocket, and thief Alexander Mundy, suavely played by Robert Wagner, who stole to finance his life as a polished playboy and sophisticate. He ends up in prison, which is where the story begins. A U.S. spy agency proposes a deal to Mundy: steal for the government in exchange for his freedom.

Real life thieves are not so accomplished, and seldom so handsome and cosmopolitan. Which brings us to Logan County, Ohio, and Lowman Lumber Company.

We’re not calling company owner Sturgil Lowman a thief. The courts of Logan County have already done that for us. Sturgil was in the timber harvesting business. Over 40 years, he seems to have developed what the criminal justice people call a modus operandi: Cut a few corners, cross a few boundary lines, and wherever possible, take some timber from the neighbor’s land as well as the tract you’ve bought the right to harvest.

Sometimes you get caught. Then, you affect your most self-deprecating head shake and chuckle, admit you made a dumb mistake, and compensate the victim for the trees you unlawfully took. When you balance the books at the end of the year, the timber you got away with is enough to make the timber you got caught taking worthwhile. Cost-benefit, baby.

The problem is that word spreads – especially at the courthouse, where every lawsuit record is preserved. After awhile, the “oops, I goofed” schtick gets old. That’s what happened to Sturgil.

He finally crossed someone who filed a criminal complaint, and he was convicted of receiving stolen property (the trees). He paid restitution and did a little probation for the misdemeanor. But at the same time, another timber trespass case was playing out across the hall in a different courtroom.

Sturgil was logging Dale’s place under contract. While doing so, he busted the boundaries with the Shanklin’s wooded tract, and proceeded to butcher 15 of the prettiest acres in Logan County (which is a rather pretty place to begin with). This time, the owners pursued him with a vengeance, and Sturgil’s history of being private property-challenged – as well as the grossness of his violation of the Shanklin land – was enough for the jury to inflict real pain on him. Sturgil was ordered to not just pay for the damage to the Shanklins, but to pay treble damages for recklessness and punitive damages on top of that for malice.

Sturgil especially contested the trial court’s award of punitive damages on top of treble damages, and frankly, it is rare for a Court to approve both. But this case, if any, proves the old maxim that “hard cases make bad law.” The jury and the courts knew a bad actor when they saw one, and they used the tools at hand to dissuade him from continuing his malefaction. The final ticket was $45,000 in compensatory damages, increased by another $90,000 under ORC § 901.51, and an additional $33,500 in punitive damages, and $35,600 in the Shanklins’ attorney fees. A bill of $204,100 for $30,600 in stolen timber.

How’s that cost-benefit analysis looking now, Sturgil?

Shanklin v. Lowman, 2011-Ohio-255 (Ct.App. Logan Co., Jan. 24, 2011). Sturgil Lowman, a lumber company owner, harvested some timber for landowner Dale Kauffman. Dale identified the fence line that marked the boundary between his land and that of the Shanklin family, next door.

The Shanklins were retirees living in Florida, who used the wooded tract they owned solely for recreational purposes. The man who looked after the land for them, Tom Stacey, said that it was an “old growth area” with a beautiful high canopy, completely shading when leaves were present, and with tall, straight trees. He described it as having “the most lush undergrowth” he had seen anywhere in Ohio, and that the east edge of the back parcel had a dramatic, deep, narrow ravine that was about forty or fifty feet deep, with rich wildlife.

In the spring of 2006, Tom was cleaning up the Shanklin property due to an ice storm. As he walked the back of the property near the ravine, he discovered a road and bulldozer tracks. About twelve to fifteen acres of the property had been clear-cut, except for some stumps, and a logging road had been cut nearly a quarter mile into the property from the Kauffman property line. There two points of entry into the property, with the main logging road going through the fence line, with the fence cut off and rolled up. In addition to the removed trees, Tom found damage to trees that were not taken, including scars and “chunks” resulting from equipment being moved through the area.

It did not take long to connect it to Sturgil. Sheepishly, he admitted that Dale had shown him the property line, that he never hired a surveyor to confirm the property lines, that he never consulted any maps or real estate records to determine the property lines, but instead had an employee “mark the lines with ribbons,” and that neither he nor his employees kept any documentation about how many trees or what types of trees were cut.

This was not Sturgil’s first rodeo. He had been sued perhaps five times in his 40 years of operation for trespass to timber, and he was convicted of the felony of receiving stolen timber, for which he paid restitution and was sentenced to probation. Even more troubling, Tom reported that a Lowman employee had approached him a year earlier to learn who owned the Shanklin land. Tom walked the man through the property, whereupon the man offered him $10,000 if he could convince the Shanklins to let Lowman cut the timber. Tom refused and told the man that if the Shanklins were interested, they would contact Sturgil’s company directly.

James Bartlett, a consulting forester, performed a stump count for the Shanklins, identifying species and estimating the value of the wrongfully cut trees at the time they were cut. He found 282 stumps, and – using a United States Forest Service formula – found the aggregate value of the timber to be at least $30,671. He said he could not put a value on the “loss of beauty” to the property or the loss of enjoyment of the property.

A professional registered surveyor testified that he had examined the property line, and it “seemed very straightforward to him where the property line was.” He said that if Sturgil had hired a surveyor prior to the cutting, the line between the properties would have been easily determined.

A licensed realtor who had lived in Logan County his entire life testified that the property was unique because it was directly across from the highest point of Ohio, and was the most scenic ground in Logan County. He estimated that the value of the area that had been harvested, prior to the cut, would have been about $6,000 an acre, or $90,000 for the 15 acres affected. He estimated the value after cutting was about $3,300 an acre.

The jury returned a verdict awarding the Shanklins compensatory damages of $45,000, resulting in trebled damages of $135,000, and punitive damages of $33,750.

Sturgil appealed.

Held: The $168,750 damages award was upheld.

The Court found that the compensatory damages were amply justified by the testimony that the 15 acres fell in value from $90,000 to about $49,000. Additionally, the evidence showed that the timber was worth at least $30,671, but possibly more, because the Shanklins could have put the timber out for competitive bidding. Thus, the Court ruled, the record contained “competent, credible evidence supporting the jury award of compensatory damages.”

Sturgil complained that the evidence did not show that the timber trespass had been reckless, which is necessary under ORC § 901.51 in order for treble damages to be assessed. The Court of Appeals made mincemeat of this argument:

Evidence showed that a man identifying himself as representing Lowman Lumber approached Tom Stacey and inquired about harvesting the timber on the Shanklin property. The man offered Tom $10,000 if he could convince the Shanklins to let his company harvest the timber, but Tom declined the offer and gave no indication that the Shanklins were willing to sell timber to Lowman. Tom eventually discovered that twelve to fifteen acres of the Shanklin property had been cut, that a logging road had been cut nearly a quarter of a mile into the Shanklin property from Dale Kauffman’s property line, and that there were two points of entry into the Shanklin property with about twenty branches off the main logging road. A fence marked the property line between the Shanklin property and Dale’s property, but the main logging road went through the fence line, with the fence itself cut off and rolled up.

A professional surveyor identified the property line between the Kauffman and Shanklin properties and observed that cutting had taken place across the line onto the Shanklin property. The cutting extended five or six hundred feet across the property line.  Lowman did not hire a surveyor before cutting on the property, but Dale had showed him the corners of the property. Sturgil Lowman admitted he had previously been convicted of receiving stolen property and criminal damaging involving tree trespass in August 2007, and that there had been several judgments in civil cases against him for cutting onto neighboring property without authorization.

The foregoing litany, the Court ruled, was “credible evidence that Lowman perversely disregarded a known risk with heedless indifference to the consequences.”

Sturgil argued that the trial court should not have awarded both punitive damages and treble damages.

The Court disagreed. “An award of punitive damages in a tort case may be made only upon a finding of actual malice on the part of the defendant,” the Court said. “‘Actual malice’ for these purposes is ‘(1) that state of mind under which a person’s conduct is characterized by causing substantial harm’… When ordering punitive damages, the trier of fact is to make a “reasoned  determination… of an amount that fairly punishes the tortfeasor for his malicious or malevolent acts and that will deter others from similar conduct.”

The Court held that an award of punitive damages “will not be overturned unless it bears no rational relationship or is grossly disproportionate to the award of compensatory damages.”

The Court easily found that the long list of horribles that supported a finding of recklessness also rose “to the level required to demonstrate ‘a conscious disregard for the rights… of other persons that has a great probability of causing substantial harm’.” There can be little doubt that the jury, and later the Court of Appeals, saw Sturgil as a serial trespasser who had long ago concluded that the cost-benefit analysis of stealing timber was such that it was worth getting caught now and then, passing it off as a “mistake,” given all the times he could get away with it.

– Tom Root

ACT IN HASTE, REPENT IN LEISURE

Many years later, we can still see Mom shaking her head at us kids over some blunder or another, asking us, “What were you thinking?”

The answer, of course, is that we were kids, so of course, we weren’t thinking at all.

But you wonder how a guy who has been in the timber business for 30 years, has been shown the property boundaries and has a clear visual cue – a line of trees – to remind him, can nonetheless overshoot by three acres, and commit an expensive timber trespass on someone else’s land. So what was he thinking?

The issue was whether Cameron Klinck (no known relation to Colonel Wilhelm Klinck) was merely negligent or instead forged on heedless of the consequences (which is the very essence of recklessness). The difference is crucial because mere negligence would cost Klinck about what he sold the Shanghai’ed trees for, and thus leave his wallet smarting only a bit. Recklessness, on the other hand, will trigger ORC § 901.51, and entitle aggrieved tree owner Ishan Judeh to three times the compensatory damages – in this case, the stumpage value of the trees – what we call “treble damages.”

Judeh v. Mahoning Valley Timber & Land Co., Case No. 03-MA-138, 2004-Ohio-4819 (Ct. App. Mahoning Co., Aug. 31, 2004), 2004 Ohio App. LEXIS 4353, 2004 WL 2029136 (2004). Ishan Judeh owned land next to acreage owned by Gene Pyle, portions of which were wooded. Cameron Klinck, a logger who owned Mahoning Valley Timber & Land Co., contracted to remove timber from Pyles’ land. Pyles described the location of the boundary dividing his and Judeh’s property.

Klinck removed trees from Pyles’s land as arranged, but also removed trees from about three acres of Judeh’s land. Judeh sued Mahoning Valley Timber for trespass, conversion, and wrongful taking of timber from his land. The trial court awarded Judeh $6,000, representing the stumpage value of the wrongfully cut trees, and trebled the damage to $18,000 under ORC § 901.51, finding that Klinck had been reckless in harvesting the trees from Judeh’s property.

Klinck appealed.

Held: The record showed Klinck had been reckless.

The Court of Appeals reviewed the decision with a deferential standard. It “indulge[d] every reasonable presumption in favor of the lower court’s judgment and finding of facts” and “[i]n the event the evidence is susceptible to more than one interpretation, [the court] construe[d] it consistently with the lower court’s judgment.”

In this case, evidence showed that Klinck knew where the property boundaries lay. The line was clearly visible by virtue of a tree line that extended 416 feet from south to north between the two parcels. Klinck admitted he knew where the boundary line was located, had maps and had walked the boundary line. Although he did not have the land surveyed, Klinck admitted that it was good business to survey the area of the property to be logged and that he used a surveyor 98% of the time. He had been in the timber business for over thirty years and was aware of the risks of failing to survey the property. In addition, the Court said, the magnitude of the trespass – being two to three acres – suggested recklessness.

– Tom Root

HOBNAIL BOOTS

I spent about 13 years living in suburban Washington, D.C., where everything that happened on Capitol Hill and at the White House was a local news story. Still, until I decamped for small-town and rural-county America, I didn’t really understand how heavy-handed and ugly politics could be until I observed local politics up close and personal. By comparison to county, municipality and township governance, a Trump rally is tame enough to be put to music.

Today’s case could be Exhibit A. A three-member township board of trustees approves a sewer improvement project. As the job progresses, the chairman of the board decides on his own that he’s going to modify the plans to have some trees along the highway right-of-way removed. He is on the site supervising the work when two homeowners approach to complain that one of the trees the chairman intends to have cut down belongs to them.

Here’s where big politics and little politics diverge. If that happened on a federal project (or even a state project), the bureaucrats in charge would stop everything until the engineers and surveyors who had planned the work verified that the subject tree was or was not within the right-of-way. But Uncle Joe was not some pusillanimous bureaucrat: he was the “go-to” guy who had neither qualms nor the time to listen to the petitions of lowly citizens, and he was not about to let the complaints of the hoi polloi get in the way of his government’s work.

“Police power” is a constitutional concept, the power of the government to regulate behavior and enforce order within its territorial jurisdiction for the betterment of the health, safety, morals, and general welfare of the inhabitants. But in the real world, Joe showed us what “police power” is all about: a small-town cop ready to arrest homeowners on the say-so of a government functionary, solely because they are defending their property against the unlawful taking by the state. The cop need say nothing: he’s got a potsie on his chest, handcuffs on his belt, and a Glock 22 in his holster that say it all.

But we still have courts, and to court is where the homeowners repaired. It turned out the tree straddled the right-of-way boundary line, which helped Uncle Joe not at all: citing the Ohio Jurisprudence legal encyclopedia (which passes for primary authority in Ohio, or so I learned in law school), the court of appeals joined courts in an overwhelming majority of states that hold a boundary tree is owned by the property owners on both sides of the boundary line. As property of the tenants-in-common, the tree may not be removed without the consent of both parties. 

Pinkerton v. Franklin Township. Board of Trustees, Case No. 83AP-946 (Ct.App. Franklin Co., July 17, 1984), 1984 Ohio App. LEXIS 10484, 1984 WL 13994. Joe Donovan, Chairman of the Franklin Township Board of Trustees, was a no-nonsense, get-it-done guy. Plus, he had the power of the state (or at least the township) behind him.

When Joe’s three-member Township Board of Trustees authorized a storm sewer improvement along the west side of Gladstone Avenue, Joe was the guy who would see that the job was done right. When it turned out that the sewer improvement project would be facilitated by the removal of several trees, Joe was the guy who made the decision on his own that the trees would go. Two of the trees were in the highway right-of-way, but the third – a stately oak – straddled the boundary between the Gladstone Avenue right-of-way and the Pinkertons’ property.

Unfortunately for everyone involved, the Pinkertons strenuously objected to removal of the boundary tree. Joe, however, was not a guy who needed anyone’s approval, so he did not bother to consult the other two Trustees about removing the trees. Instead, he forged ahead, ignoring the Pinkertons’ objection. He even directed a local police officer to be present in case the Pinkertons tried to intervene.

The tree was removed just as Joe ordered. The Pinkertons’ complaints, however, were not as easily dispatched as was the oak. They sued the Township Board for trespass, demanding compensatory and punitive damages. The jury agreed, awarding them $2,000 for the tree, and trebled it to $6,000 due to Joe’s willfulness.

Joe appealed.

Held: Joe, acting in his official capacity, caused the trespass and wrongful cutting, entitling the Pinkertons to $6,000.00 in damages.

The Court of Appeals made short work of Joe’s claim that the evidence showed no wrongful cutting. It held, citing Ohio Jurisprudence 3rd, that “[a] tree standing on the boundary line between adjoining landowners, so that the boundary passes through the trunk or body of the tree, is the common property of both proprietors as tenants in common.”

Likewise, the Court ruled that given that Joe steamrolled the Pinkertons’ legitimate objections, even bringing in the police to stifle their complaints of trespass, it was not error for the trial court to tell the jury it could assess punitive damages.

Finally, because the Pinkertons testified the tree was worth $6,000, there was evidence in the record to support the damage award.

– Tom Root

LET’S GET THIS STRAIGHT – JOYCE KILMER WAS NOT A GIRL

Today’s case reminded me of the love many of us have for trees because of all of the intangible benefits they deliver – shade in the summer, shelter from the rain, a windbreak, a place on which to mount our birdhouses and hammocks and tires on a rope for the kids…

What all of these have in common is that none of them is accounted for when a tree is cut down, stripped of branches and run through the sawmill. The stumpage value – the worth of the tree’s harvestable wood to the mill on the ground in the woods – doesn’t tally up the value of all of what we like about our ornamental trees.

That reminded me of Joyce Kilmer, who was among the first to calculate the noncommercial value of ornamental trees (after a fashion), writing, “I think that I shall never see a poem as lovely as a tree…”

And that in turn reminded me to be proactive in telling everyone that Joyce Kilmer was not a girl. Not that there’s anything wrong with girls or girl poets (I’m a big Emily Dickinson fan myself), but I regularly come across knuckleheads who say “Joyce Kilmer wrote those words because she…”

Nope, nope, nope. Joyce was a boy, and later a young man, His poetry and writing career was cut short when he fell, killed in action in France 108 years ago this month.

In the case we’re talking about today, it’s a cinch that Gordon Lamb – who is also a boy – didn’t read much Joyce Kilmer. He was probably more a William Blake fan, because he sure hit his logging assignment like a “tyger, tyger burning bright…” He cut all of the trees he was supposed to, and then, for good measure, cut or destroyed about 400 more.

The trial court held that the homeowners whose trees fell victim to the tigrine Mr. Lamb were limited to stumpage value. It was a sweet outcome for the defendant: 400 trees ended up costing Gordon about $7,000, well less than $20.00 per tree destroyed. But then the court of appeals stepped in, applying what is by now universally recognized as the proper measure of damages: noncommercial trees are generally worth more than an equal number of commercial trees.

Denoyer v. Lamb, 490 N.E.2d 615 (Ct. App. Hamilton Co., Ohio, December 5, 1984). Murphy Development Company marketed subdivided lots from a wooded parcel it owned. It sold five parcels, of which four had homes built on them. The parcels were cleared except for a mature woodland behind them (which Murphy still owned), which growth extended onto the rear of the five lots.

Murphy Development hired Gordon Lamb to harvest mature timber from the woods the development company still owned. Gordon Lamb set off like a tyger, cutting not only trees from the Murphy acreage, but sawing into the woodlands on the five private lots. When the sawdust settled, Gordon’s crew had cut 68 trees that did not belong to the Murphy company and destroyed 331 more.

The afflicted property owners whose trees were decimated, including the Denoyer family, sued.

The trial court limited the Denoyers’ compensatory damages to the stumpage value of the cut and destroyed trees. It also restricted their recovery to either punitive damages or treble damages, but not both. The jury awarded the Denoyers $7,412.00 in compensatory damages but found no grounds to award punitive damages.

The Denoyers appealed.

Held: The trial court judgment was reversed, and the Denoyers were permitted to claim restoration damages

The Court of Appeals laid the framework for assessing when replacement damages should be awarded. “In an action for compensatory damages for cutting, destroying and damaging trees and other growth, and for related damage to the land,” the Court wrote, “when the owner intends to use the property for a residence or for recreation or both, according to his personal tastes and wishes, the owner is not limited to diminution in value (difference in value of the whole property before and after the damage) or to the stumpage or other commercial value of the timber.”

Instead, the Court ruled, an owner may recover as damages the costs of reasonable restoration of the property to its preexisting condition or (because regaining the preexisting condition of often not possible) to a condition as close as reasonably feasible. “Reasonably feasible” means that the courts should not order grossly disproportionate expenditures and should allow for natural regeneration within a reasonable period of time.

Where cut trees have been used for a specific purpose – such as a sound barrier and screen from highway traffic or shade or even mere ornamentation – restoration cost is the proper measure of damages. Additionally, the cost of restoration should be used as the measure of damages where “the owner’s personal use is neither specific nor measurable by commercial standards, and when the trees form a part of an ecological system of personal value to the owner.”

The Court reasoned that in the present case, stumpage value could be determined in several ways, but all of those methods would yield a much smaller amount than the cost of replacement. To limit the Denoyers’ and their fellow lot owners’ recovery to stumpage value would be to enforce a timber harvest the plaintiffs never contracted for or even wanted. It would fail to account for their intended use or real loss.

The Court of Appeals thus held that the trial court erred in excluding evidence of reasonable restoration costs, including cleanup, repair and regrading.

– Tom Root

THE MASSACHUSETTS RULE STILL LIVES!

We should all age this well. Right, Donny? Joe?

The Massachusetts Rule, which we have rightly or wrongly identified as the wellspring whence flows all tree law on encroachment, is a spry 95 years old this year. Older even than our current President. Over the years, other states have chipped, chipped, chipped away at its granite-solid underpinnings, the notion that your neighbor has no right to sue you if your healthy tree sends branches spanning over her property or roots snaking through her subsoil.

After being belted and flayed by decisions from a host of more encroachment-progressive states over the years, the Massachusetts Rule finally received some good news in just a year or two before COVID: Massachusetts’ highest court issued an opinion that was a full-throated defense of the venerable Rule.

Don’t like the mess your neighbor’s honey locust makes in your gutters? Or the way his sweet gum roots are displacing your basement wall? Tough noogies. The Massachusetts Rule holds that you are free (at your expense, so maybe we should not use the word “free”); that is, you are entitled to cut down the offending branches or dig up the offending roots up to your property line with his place.

What you are not free to do is to sue your neighbor because his tree is a nuisance. As the Bay Staters put it, your rights are limited to self-help.

To be sure, the Massachusetts Rule has gotten a raft of bad press in the last few decades. Hawaii is the most famous, with the Hawaii Rule (set out in Whitesell v. Houlton). That rule holds that your neighbor is liable to you if encroaching branches or roots from her tree cause “sensible harm” to your property. Complaints that the Massachusetts Rule was archaic, a relic of an era when population density was much less and life was simpler, have become common. Don’t believe it? Refer to the definitive decision assessing the various rules, Herring v. Lisbon Partners, for the modern view that the Massachusetts Rule is an arboreal dinosaur.

Well, it turns out the old dinosaur still has a bite. A Massachusetts litigant with more spare change for legal fees than she had common sense sued her neighbors because, she claimed, their stately oak caused algae to grow on her roof. She demanded her neighbors cut it down. They declined, pointing out to her that the Massachusetts Rule immunized the owner of a healthy tree from such an obligation, and, by happy coincidence, they were all in Massachusetts, so the Rule applied to them.

The neighbor was undeterred, and she hired a lawyer (who undoubtedly told her she was backing the wrong horse). But back it she did. She lost in the trial and appeals courts, both of which took pains to explain the Massachusetts Rule to her.

“But,” we imagine she said, “the Massachusetts Rule is a doddering fossil, rejected by just about all modern thinking in our sister states’ courts! It should be consigned to the dustbin of history!”

Alas for her, the Supreme Judicial Court of Massachusetts seized the opportunity not only to refuse to undo the plucky 87-year-old Rule but to explain how all the other states that had rejected it as irrelevant in the modern day and age are just plain wrong.

Famous Massachusetts patriot John Adams died on July 4, 1826. His last words were reputed to be a joyful acknowledgment that his old friend, Thomas Jefferson, survived him. As he expired, Adams breathed, “Jefferson still lives!”

He could have said the same about the Massachusetts Rule. Despite all the grief that the Herring court, the Fancher court, the Lane court, and even the Whitesell court have given it, the Rule still lives.

Shiel v. Rowell, Case No. SIOC-1274 37, 480 Mass. 106, 101 N.E.3d 290 (Sup.Jud.Ct. Mass, 2018). Keli-Jo and John Rowell owned property next to Mary Shiel. The Rowells’ property included a 100-foot-tall sugar oak tree with majestic branches that stretched over Mary’s property.

Alas, Mary was not a fan of the tree. She complained that the tree caused algae buildup on her roof. She demanded that the Rowells cut it down. They refused. So Mary sued, demanding money for damage to her roof and an injunction ordering the Rowells to cut back the branches overhanging Mary’s land.

A District Court judge dismissed Mary’s claims on the ground that under Massachusetts law, a person whose property is injured by a neighbor’s healthy tree has no cause of action against the tree’s owner. The appellate court agreed.

Mary appealed to the Supreme Judicial Court, admitting that the Massachusetts Rule was against her but asking that the Rule be thrown out as antiquated.

Held: The Massachusetts Rule remains the law.

The law in Massachusetts has long been that a landowner may not hold a neighbor liable for damage caused by that neighbor’s healthy tree.

In Michalson v. Nutting, roots from Nutting’s poplar tree clogged the Michalsons’ sewer and drain pipes, and cracked his concrete cellar, risking serious damage to the house’s foundation. The Court concluded that Mr. Nutting could not be held liable for that damage because “an owner of land is at liberty to use his land, and all of it, to grow trees.” The Court recognized Mr. Michalson had the right to cut off intruding boughs and roots and reasoned that “it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

Mary urged the Court to adopt the Hawaii Rule, which grants neighbors the right to sue to resolve disputes in court over healthy trees. A neighbor may use the courts to require that the tree owner pay for damage and cut back branches and roots if the tree causes, or there is an imminent danger of it causing, “sensible harm” to the neighbor’s property. The Hawaii Rule, like the Massachusetts Rule, allows any landowner the right to cut back overhanging branches or intruding roots from a neighboring landowner’s tree. But unlike the Massachusetts Rule, the Hawaii Rule offers the aggrieved homeowner a right to sue to have branches and roots removed by the tree’s owner.

Mary argued the Massachusetts Rule is outdated because these days people are living in closer proximity to one another on smaller tracts of land than when the Massachusetts Rule was adopted. She contended that trees today are more likely to cause damage to neighbors’ property than in days past, and tree owners are better able to manage their trees. This, she maintained, justifies giving parties a right to sue to resolve disputes in court.

The Rowells argued in favor of stare decisis, the doctrine that courts should adhere to rules previously adopted in resolving similar cases. While adhering to stare decisis is not an inexorable command, the Court held, it is “our preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

Even more than that, the Rowells maintained, the Massachusetts Rule is more sensible than the Hawaii Rule. The Court agreed. “We would discern a need to change the Massachusetts Rule if it were outdated and no longer fit the circumstances of contemporary life,” the Court said. But, the Court ruled, the Rule is still very relevant.

It may be true that people today live in closer proximity to one another on smaller tracts of land than they did when the Massachusetts Rule was adopted in the early Twentieth Century. But if changes in property ownership would lead us to believe that tree owners are now better able to monitor their trees,” the Court said, “the same would be true for their neighbors to monitor and trim encroaching trees. It may be easier to recognize impending or potential harm to one’s own property from overhanging branches and intruding roots than it would be for the tree owner to recognize what is happening next door. And even if it is also true that trees today are more likely to cause property damage to neighbors’ property, it would be “undesirable to categorize living trees, plants, roots, or vines as a ‘nuisance’ to be abated.”

The Court recognized that other states, such as North Dakota, Tennessee and Virginia, had declared the Massachusetts Rule to be an antique. The Court rejected the rationales in those cases, observing that while the cases all said the Massachusetts Rule was outdated, none ever explained satisfactorily why that would be. True, as those decisions noted, the Massachusetts Rule law arose at a time when land was so unsettled and uncultivated that the burden of inspecting it and putting it in a safe condition would have been unduly onerous and out of all proportion to any harm likely to result. But this rationale seemed to apply to danger trees only. If a tree is healthy, it does not need to be put “in a safe condition” to begin with, and Massachusetts Rule trees must be healthy trees to begin with in order to come within the Rule.

Mary did not identify any consequences of the Massachusetts Rule, the Court observed, that would not have been thoroughly appreciated by when the Rule was adopted. The growth of trees “naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others,” the Court declared in Michalson, and that has not changed.

Contrary to the criticisms of the Rule, the Court ruled, “multiple benefits to the Massachusetts Rule [are] still relevant to circumstances of contemporary life. The rule simplifies the assignment of responsibility, leaving no doubt as to the rights and obligations of the parties and minimizing legal costs. It reduces “unnecessary burdening of courts” and vexatious lawsuits: “The Massachusetts Rule today, just as it did when Michalson was decided,” the Court found, “may prevent unnecessary legal harassment from neighbors who merely have an axe to grind for reasons other than purported tree problems.”

Thus, the Court ruled, “We retain the law that an individual whose property is damaged by a neighbor’s healthy tree has no cause of action against a landowner of the property upon which the tree lies.”

The dinosaur still roars! John Adams would approve.

– Tom Root