Case of the Day – Friday, April 3, 2026

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CORNER WITH A VIEW

We’re watching the spring wheat green up along country roads. It’s still doggone cold – we had snow on the ground last weekend – but it is spring. It won’t be long until everything is growing, including at Ohio agricultural affliction, “corn to the corners.”

Corn to the corners – and no clear sightline.

We saw a great example of it at a crossroads last fall, the practice of planting right up to the edge of a field. We can hardly blame the farmer, who has to maximize the land’s yield in order to stay in business (and to cover the payments on a $200,000 tractor). But corn to the corners – like planting trees and shrubs near the road – can play havoc with sightlines and pose a real hazard to motorists.

When an accident does happen, lawyers scramble to find as many defendants as possible because each defendant usually has his or her own insurance policy. As one old lawyer we practiced across from years ago used to say, you have to “get the money flowing.” Nothing makes it flow like a whole passel of deep-pocket insurance companies lined up on the defendants’ side of the room.

But what duty does a landowner have to people traveling by? After Margaret Sheley was killed when her automobile collided with Kimberly Cross’s vehicle at an intersection, her family decided to test those limits. They sued Cross, the County and Buryl and Hazel Grossman, who owned the land by the intersection. The Sheley family argued that the Grossmans negligently planted crops on their land such that a motorist’s view of oncoming traffic at this intersection was impaired. The trial court ruled for the Grossmans, holding that they owed no duty to Margaret Sheley.

The Court of Appeals agreed, drawing a distinction between a landowner who creates hazardous conditions on the roadway as opposed to conditions – hazardous or not – wholly contained on the landowner’s property. Like corn to the corners, or perhaps big, bushy trees.

sightline140613Sheley v. Cross, 680 N.E.2d 10 (Indiana Ct. of Appeals, 1997). On October 15, 1992, Margaret Sheley was killed when her car ran into Kimberly Cross’s vehicle at an intersection. Margaret’s survivors sued Kimberly Cross, the County, and Buryl and Hazel Grossman, the farmer who owned the land next to the intersection. The Sheley family argued that Grossmans, as owners of the land next to the intersection, negligently planted crops on their land such that a motorist’s view of oncoming traffic was impaired. The trial court granted summary judgment in favor of the Grossmans, finding that they owed no duty to Margaret. The family appealed.

Held: The Grossmans owed no duty to Margaret Sheley. Admittedly, the planting of vegetation is considered to create an artificial rather than a natural condition. A “natural” condition is limited to land unchanged by humans. The difference is significant since there are differing duties for natural versus artificial conditions.

Nevertheless, to recover under a theory of negligence, a plaintiff must first establish that the defendant had a duty to conform his or her conduct to a standard of care arising from a relationship with the plaintiff. Absent a duty, there can be no breach and, therefore, no recovery in negligence

care161129The Court said that an occupier of land abutting on or adjacent to a public highway owes a duty to the traveling public to exercise reasonable care to prevent injury to travelers from any unreasonable risks created by such an occupier. The landowner has no right to use the property to interrupt or interfere with the exercise of the traveling public’s right by creating or maintaining a condition that is unnecessarily dangerous.

The issue, the Court said, is whether the scope of this duty extends to refraining from creating conditions wholly on a landowner’s property that may impair a traveler’s vision of oncoming traffic at an intersection. The Court ruled that the landowner does, but “that duty is limited to refraining from creating hazardous conditions that visit themselves upon the roadway. Where an activity is wholly contained on a landowner’s property, there is no duty to the traveling public.”

The corn may have extended to the corners, but those corners remained on the Grossmans’ property. Thus, the Sheley family got nothing from the Grossmans.

– Tom Root

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And Now The News …

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San Francisco, California, KGO-TV, April 2, 2026: SF property owner fined $50K for ‘illegally pruning trees’ cited by insurer: ‘Feels like bullying’

A San Francisco homeowner is facing a series of fines totaling $50,000 for illegally trimming five trees believed to be on his property. Trees located right outside his home. But as the city explains, they’re not his, and he wasn’t authorized to do it. Paul Dennes was trying to get his property in San Francisco’s Panhandle neighborhood insured. “I got an email from my broker saying in order for you to qualify for insurance you need to trim the trees so many feet from the property,” Dennes said. “You thought, OK?” Stephanie Sierra asked. “Yeah! I’ll just take care of that,” Dennes said. So Dennes trimmed down five trees in front of his unit that he says were touching the building and, in some cases, even power lines. “You see that? I wanted to get them out of the power lines. I didn’t want to be responsible for that,” Dennes said. Three trees in front… “And on the other side,” Dennes said, there were two more. His family has owned the home since 1988. Since then, Dennes always thought it was the property owner’s responsibility to trim. “I’ve never seen the city trim these trees, never!” Dennes said. Well, he learned the hard way, not in his case. The trees aren’t his…

Kalamazoo, Michigan, Gazette, April 2, 2026: Several walnut trees cut down and stolen in Southwest Michigan

Several walnut trees were cut down and stolen while a property owner was out of town, police said. A white truck was seen in the area around the time of the crime. This isn’t the first walnut tree theft in the area. The theft happened at a home in Hartford Township, the Van Buren County Sheriff’s Office said in a Wednesday, April 2, news release. In an unrelated 2024 incident, Trever Wallace was arrested and later sentenced for a walnut tree theft on Oct. 10, to three years and two months up to 10 years in prison…

New York City, The New York Times, April 2, 2026: New York City’s Cherry Blossom Season Is Beginning. Here’s What to Know.

After a long winter, spring is in full swing, and with it the cherry blossom season in New York City. Tens of thousands of ornamental cherry trees around the city have started bursting with white and pink petals in a display that lasts about a month. Here’s an overview of what kind of cherry blossoms are in New York City, when they’ll bloom and where to find them. Most of New York’s cherry trees bloom by mid-April, though some types bloom earlier or later. A blooming tree holds its blossoms for about 10 days. When exactly each tree begins to flower is hard to predict and can depend on the temperature and the amount of daylight it receives. As winters in New York have become shorter and more mild, the city’s cherry trees are blooming earlier than they did a decade ago, said Shauna Moore, the director of horticulture at the Brooklyn Botanic Garden. Blossom lovers can check the garden’s CherryWatch tracker, updated daily with information on whether each cherry tree is in pre-bloom, first bloom, peak bloom or post-peak bloom. By April 1, the garden’s early-season cherries, including the fuchsia-flowered Okame, were already in full bloom…

Charleston, West Virginia, WCHS-TV, April 2, 2026: Tree canopy clearing put on hold until November due to bats

March 31 was the last day to clear tree canopy overhanging West Virginia roadways until mid-November because of bats. The restriction comes because of tree-clearing rules tied to bats in West Virginia under the Endangered Species Act. A deal with the federal government cuts red tape and protects bats but limits when work happens. “We’ve got a programmatic agreement with Fish and Wildlife Services to be able to cut during those times without going through all of the processes that you would have to do in other projects,” West Virginia state highway engineer Jacob Bumgarner said. The work is limited from Nov. 15 to March 31. The Division of Highways can still remove brush anytime, but canopy clearing along roads that often involves removing limbs or entire trees is on hold. Disturbing edge forest habitat – a prime bat roosting area – is a no-no now until Nov. 15. The overhanging trees can create shadows that let water build up and ice that can damage roadways. Trees can fall on block the road, and in rare cases, fall on a car and injure or even kill someone…

Wisconsin DNR Forestry, April 1, 2026: ‘Exploding Trees’ Face Long-term Impacts

This past winter, “exploding trees” went viral on social media. Many news outlets followed up with a more realistic explanation of the dramatically named phenomenon, pointing out that while the bitter cold can cause sudden cracks to form on trees, the trees don’t truly explode. But what happens to those damaged trees as we warm up and move into the growing season? Trees don’t heal wounds the same way that people heal wounds. Instead of repairing the damaged cells, trees compartmentalize the damaged area, serving to limit the ability of bacteria and fungi to invade. Trees then begin growing callus tissue over or around the wounded area. How trees respond to wounds can vary based on the species of tree, its health, the location and extent of the wound and any further stress the tree might face during the upcoming growing season…

Washington, DC, Post, April 1, 2026: Yes, you can make friends with trees. Here’s why it’s a good idea.

RJ Laverne’s childhood home in Detroit had a big elm out front. In fact, the whole neighborhood was lined with them: great, graceful trees whose branches spread across the street to create a shady canopy. Elms were so widely planted in cities and suburbs in the 19th and 20th centuries that they became known as the “Main Street tree.” Then, in the 1930s, Dutch elm disease began to ravage them, and by 1989, most of America’s 77 million mature elms were dead. Laverne’s elm and its demise remain seared into his memory decades later. “I was maybe 8,” he says, “and I remember standing at the front door next to my sister when the trucks came down the street and cut down the elm trees one by one. When they cut ours, it felt similar to losing a pet. I imagine I was not the only person who grieved to see our neighborhood transformed from this beautiful cathedral of trees to clear cut…”

Needham, Massachusetts, Observer, April 1, 2026: Draft tree bylaw presented

In a little more than a year, less time than it takes a sapling to fully take root, the Tree Preservation Planning Committee has agreed on most of the specifics of a draft bylaw. The details were presented on March 25. Fourteen people attended the session in person and seven joined online. Almost all of the public comments supported the committee’s efforts to slow down the rate of deforestation, and many thought that the committee’s proposed restrictions were too lax. The proposed bylaw is triggered only by construction and is applied only to trees along the property line within current setbacks, usually an unbuildable area the Tree Preservation Committee calls the “tree yard.” It requires the input of a certified arborist who, among other determinations, will assess how to protect the critical root zone, an area which may extend inside the tree yard. The bylaw also applies only to overstory trees, or trees that have reached or will reach a height of 40 feet at maturity. “If the tree is in the buildable area of the lot, you can take it down with no penalty,” said Heidi Frail, committee chair and Select Board member. She told the Observer the draft gives homeowners a variety of options to help them reduce or eliminate any potential fees…

Orion Magazine, April 1, 2026: A Tulip Tree in Winter

I have come to the tree again, with a data sheet and an offering. That stately tulip tree above the creek in the woods behind our Catskills home, the one I lean my forehead against to speak to someone no longer here, and to give thanks for someone who is. I press my palms to the deeply furrowed bark and say what I came to say. Then I pour a little honey onto the ground beside her roots. I marked her with a yellow ribbon more than a decade ago, the first tree on what would become my phenology trail—a way to track seasonal timing in the living landscape, year after year. A flicker of sound breaks through the quiet ritual: the faint creak of a leafless branch shifting its burden, the tiny crackle of ice falling from bark. High in the canopy, a male cardinal, backlit by a web of sky, forages among the highest branches, prying seeds from last year’s fruits. If I tilt my head just so, I can take in the whole of him: obsidian eye mask, scandalously scarlet wings and crest, a sturdy flame-colored beak working carefully at dried husks. I could stop here with the pleasure of him…

Inside Climate News, March 30, 2026: The Wabanaki Basketmakers’ Plans to Save Maine’s Ash Trees

Each strip of wood in Richard Silliboy’s hands started as a year of an ash tree’s life. Silliboy, 79, is a member of the Mi’kmaq tribe and a master basketmaker. His blue eyes are kind and frequently crinkle into a smile, and his hands are constantly busy as he talks. In his workshop in Littleton, Maine, surrounded by logs, splints and the sound of country music, Silliboy says making ash baskets is “so peaceful and spiritual.” His baskets are bound up in the past: the history of his tribe, his family and the trees themselves. But lately, Silliboy is thinking more about the ash tree’s future. The emerald ash borer, an invasive species of beetle, is creeping across Maine, bringing the possibility of near-total extinction for the state’s ash species, and a potentially devastating loss to what Silliboy calls “the oldest art in the Northeast.” But so far, a majority of Maine’s trees are alive and healthy, and tribe members, scientists and government officials are trying to keep it that way…

Nashville, Tennessee, WKRN-TV, March 30, 2026: Restoring West Nashville’s tree canopy

Ahead of Arbor Day, District 20 Metro Council member Rollin Horton is drafting a proclamation to mark the progress West Nashville has made in restoring its tree canopy. According to Horton, new development has taken out many mature trees that previously existed in and around The Nations. However, new rules in the district took effect last August to help restore some of the trees that have been lost. “A lot of times when developments come to our neighborhoods, they will scrape the entire lot, cut down four or five healthy, mature trees, and until recently only planted one in its place. And it’s really [led to] a significant loss of our tree canopy over the last 10 and a half years,” Horton said. “The tree canopy brings a lot of benefits to our neighborhood,” he continued. “It provides shade and privacy, helps combat the urban heat island effect, trees soak up a lot of storm water and combat the flooding problem that we have in our neighborhood. It also functions as natural traffic calming; it forces people to drive slower and more cautiously when there’s a lot of trees in the neighborhood…”

Pullman, Washington, Washington State University, March 30, 2026: Why do some apple trees produce more apples than others? Some produce almost none!

Cats are carnivores, but I can never turn down a juicy apple. I asked my friend Kate Evans about apple trees. She’s a plant biologist and apple breeder at Washington State University. She told me that how many apples appear on a tree starts with the blossoms. Every apple tree makes blossoms. Tucked inside the flower is the pollen-making part called the stamen. When a bee visits the apple blossom to slurp up nectar, it picks up some pollen there. Then the bee zooms to another apple tree. Some pollen falls off. It lands in the sticky center of the flower—on the pollen-catching part called the pistil. The pollen forms a tube that grows down to the bottom of the pistil. There, it fuses with an ovule. That makes an embryo inside a cute little package—an apple seed…

The Spruce, March 30, 2026: These 5 Spring Tree Pruning Mistakes Might Harm Your Trees for Years to Come, Arborists Say

Spring tree pruning is often done to shape branches and encourage new growth. But DIY pruning can sometimes cause problems, especially if proper techniques or timing aren’t observed. Arborists are good resources for this kind of work, so we asked them about the most common spring pruning mistakes people make in their yards—and how to avoid them for peak tree health. Tree pruning can be relatively straightforward, or specialized and complex. Pruning for good tree health requires appropriate tools, proper methods and techniques, good timing, and knowledge of individual trees and their needs. Below are some common tree pruning mistakes observed by tree care professionals…

Tacoma, Washington, News Tribune, March 29, 2026: WA’s urban tree program faced elimination. Here’s how it was saved

Washington state tree lovers were in shock last month when they found out that a forestry program that helps plant and sustain trees in urban areas was about to be eliminated. The Department of Natural Resources (DNR) was informed in February that the state House appropriations committee had a budget proposal that included the elimination of its urban forestry program. Urban forestry programs across Washington help communities sustain urban tree canopies, promote tree equity and plant and maintain vegetation in metropolitan environments. The News Tribune originally covered the House’s budget proposal on March 1. On March 11, Mike Carey, Tacoma’s urban forest program manager, received word that the proposal had been axed. The community showed up when there was the potential for taking out urban forestry funding,” Carey told The News Tribune. “The urban forestry council got all of their networks involved, and local officials who were concerned about losing potential grants that their communities had been awarded made themselves heard as well…”

Adirondack Explorer, March 29, 2026: A ‘three-legged stool’ of hemlock conservation

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Case of the Day – Thursday, April 2, 2026

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COLORADO SUPREME COURT BRINGS FORTH A MOUSE

Tree law fans (and we consider ourselves to be fans) couldn’t wait for the Colorado Supreme Court to decide Love v. Klosky, and do away with the clunky old Rhodig v. Keck rule. The Rodig rule holds that a tree that has grown up to be a boundary-line tree is not owned by both property owners unless the neighbors claiming part ownership can jump through hoops to prove they (or their predecessors-in-interest) helped plant or nurture the tree, or treated it as the boundary line. When the Court finally acted six years ago, it brought forth a silly mouse of a rule that tries to save Rhodig by “clarifying” it in the most meaningless way possible.

The story bears repeating.

In the rest of the civilized world (sorry, Minnesota, not you), a tree that straddles a boundary line is owned by both property owners as tenants-in-common. One owner can’t mess with the tree without the other one’s permission. As 1970s television cooking personality Chef Tell would have said, “Very simple, very easy.” No messy litigation, no one keeping tree-feeding logs, garden shop receipts, or detailed journals of joint plantings of years gone by. Just a simple, binary rule: If the tree crosses the property line, both landowners have an interest. If it does not cross the line, only one does.

Unfortunately, the Colorado Supreme Court’s love affair with stare decisis – the legal doctrine that holdings of prior cases should govern the outcome of present and future cases – has led it to a tortured defense of Rhodig. Everyone has it wrong, the Court said: Rhodig doesn’t apply to all boundary trees, just to trees that started growing on one side of the property line and grew across the line to encroach on the other property.

It is more than a little ironic that a cartoon set in Colorado, South Park, once featured the Chewbacca defense, spun out by a Johnny Cochrane caricature. As Johnny put it in his closing, “That does not make sense.”

Johnny could have been talking about this decision. We all learned in 7th-grade math that a line segment stretches between points A and B and has no thickness. Unless that tiny little sprig of an oak tree in your backyard has the dimensions of, say, Flat Stanley, the odds that it will not start growing on one side of the boundary or the other approach zero. And 10, 20 or 50 years down the road, proving that the tree began its arboreal life straddling a boundary line of no thickness will require legal and arborist legerdemain that will make the Chewbacca defense sound like a Supreme Court argument.

Love v. Klosky ought to start a real cottage industry for Colorado lawyers and arborists, proving where young maple or catalpa shoots began their lives. The only trees not subject to this nonsensical rule would be those old enough to have been standing in the 19th century when Colorado was first platted.

The Colorado Supreme Court had a chance to clean things up by running Rhodig through the tree chipper of legal history. Instead, it labored mightily… and brought forth a mouse.

Love v. Klosky, Case No. 16SC815, 2018 CO, 413 P.3d 1267 (Supreme Court Colo., 2018). Carole Bishop and Mark Klosky (the Kloskys), and Shannon and Keith Love (the Loves) own adjacent parcels of land in Denver’s Washington Park neighborhood. A 70–foot-tall catalpa tree towers over two adjacent properties. At the base of its trunk, the tree sits roughly three-quarters on the Kloskys’ property and one-quarter on the Loves’ property. The tree began growing on the lots well before the parties moved in, and no one knows who (if anyone) planted it. Whatever its pedigree, the tree sheds leaves, seed pods, and branches on both properties.

Catalpa tree

Unhappy with the debris, the Kloskys wanted to cut down the tree. The Loves unsuccessfully tried to convince their neighbors not to do so. When persuasion failed, they sued. The trial court ruled for the Kloskys, holding – consistent with the Colorado rule enunciated in Rhodig v. Keck – that unless the Loves could prove that they or their predecessors had helped in planting or maintaining the tree, or that they and the Kloskys’ predecessors had treated the catalpa tree as the boundary, the tree belonged solely to the Kloskys.

On appeal, the Loves argued that Rhodig should be overturned, but the court held it was bound by Rhodig, which it interpreted to mean that “boundary trees are held as common property only if the landowners jointly planted, jointly cared for, or jointly treated the trees as a partition between the properties.” Two of the appellate judges, however, called on the Colorado Supreme Court to overturn Rhodig and instead require that, whenever a tree straddles two parcels, the adjacent property owners jointly own the tree as tenants in common.

The Loves asked the Colorado Supreme Court to review the case.

Held: The Supreme Court, refusing to overturn Rhodig v. Keck, held that the Kloskys could remove the tree because it remained the sole property of the owner of the land where the tree first grew, unless the tree was jointly planted, jointly cared for, or treated as a partition between the two properties. Because the Loves could not prove any shared property interest in the tree, they could not prevent the Kloskys from removing the tree.

The Loves argued that Rhodig should be overruled and that the Court should automatically make them tenants in common with the Kloskys for no reason other than that the catalpa tree had crossed the property line. The Kloskys, on the other hand, argued that Rhodig holds that even when a tree crosses over a boundary line, it remains the property of the owner of the land on which the tree originally grew unless one of the joint-action situations enumerated in Rhodig applies.

The Court said there was no sound legal basis for abandoning Rhodig, surmising that “our ambiguous precedent caused the lower courts to conflate the common law rule for true boundary-line cases and the test for encroachment trees.” Instead, it clarified that Rhodig only governs “encroachment trees,” trees that begin life entirely on one property only to migrate partially to another. Under Rhodig, a landowner may remove such a tree without first securing his neighbor’s approval, unless the landowners jointly planted, cared for, or treated the trees as boundary markers. The Court said that Rhodig does not represent some weird minority rule on boundary trees. Indeed, the Court lectured, the common law rule regarding true boundary-line-tree cases – where the tree sits squarely on a property boundary with no evidence of migration – is not implicated by Rhodig. In such a case, a tree standing on the division line between adjoining landowners is generally considered the common property of both landowners, even in Colorado. 

Thus, the Court ruled that Rhodig applied only when a tree originally growing on one property grew and encroached on another. Having clarified what Rhodig means, the Court concluded it was correctly decided and remains sound. “And, we see no conditions that have changed to make the above reasoning any less compelling today than when we decided Rhodig.”

In this case, the Court held that the Loves did not sufficiently show other circumstances that could create joint ownership of the encroaching tree. “Just as the Rhodigs had no property interest in the trees that had encroached onto their land because there was not sufficient evidence the parties jointly planted the trees, jointly cared for the trees, or intended for the trees to serve as a boundary,” the Court wrote, “here, the Loves have no property interest in the tree that has encroached onto their land because they have not shown such joint activity implying shared ownership.”

– Tom Root

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Case of the Day – Wednesday, April 1, 2026

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I CAN SEE FOR MILES

In the land of pleasant living, we can and often do sue for almost anything. Even so, today’s case is especially egregious.

Today’s plaintiff, Betsy Stibler may be hypersensitive (as the Court of Appeals hinted. She clearly is an April Fool, a suitable icon for today.

Whatever else, she certainly had gotten used to seeing for miles and miles from her kitchen window. Or at least to the 18th hole of the golf course next door. When the owner of the country club next door planted a number of additional trees on its golf course – trees that neither hung over nor grew under Betsy’s property – she sued. Sued for no better reason than the trees interfered with her seeing goings-on on the golf course.

OK, the world is full of people like Betsy (who should be named Karen). Not only do such people claim a right to the air they breathe, but they also claim the air we’re breathing, too. And everything is personal. Note that Betsy did not just sue because the golf course’s trees accidentally or even negligently blocked her view of its property; she claimed the trees were planted maliciously for the purpose of annoying her.

There are a lot of Betsys in this world who think it’s all about them. But most of those other Betsys don’t have the spare change to hire a lawyer to sue the offending tree planters. Those who do have the money usually have better sense than to fritter it away in a foolish lawsuit, and even then, those who don’t have that good sense usually cannot find a lawyer with the same reckless approach to litigation as they do. They enter their attorney’s office full of rage, and then he or she patiently talks them off the ledge.

As my famed relative (so we Roots like to think he’s our relative, at least) Elihu Root once said, “About half the practice of a decent lawyer is telling would-be clients that they are damned fools and should shut up.”

But occasionally we hit the frivolous litigation trifecta, and that happened here. Betsy convinced herself that God, the subdivision or someone had decreed that she should always be able to see the golf course (although why she wanted to see it puzzles us), and she apparently had the extra money to pay a lawyer to tilt at her windmill for her. Unsurprisingly, the magic combination of wealth, entitlement and stupidity enabled Betsy to find a lawyer hungry or foolish enough to take the case.

Now, all that was missing was a compliant judge. Fortunately for the defendants, Betsy could not find one of those. It turns out that for trees to be declared a nuisance in Tennessee requires a less sensible judge than the one she found, not to mention more sensible harm than some cranky lady who does not like the neighbors’ new landscaping is able to claim.

Stibler v. The Country Club, Inc., Case No. E2014-00743-COA-R3-CV (Ct.App. Tenn., Mar. 9, 2015). Betsy Stibler owned a residence next door to The Country Club’s eponymous golf course. In 2013, The Club planted trees all over its golf course, including Green Giant and Skip Laurel trees planted on the portion of the course that lies behind Betsy’s house. The trees do not encroach on Betsy’s land and cause no physical damage to her place. But what they do do is obstruct Betsy’s view of the course.

Betsy sued, claiming The Club had created a nuisance by planting the trees and thereby obstructing her view of the golf course. In fact, she claimed the trees were planted “for the purpose of annoying Plaintiff and decreasing the property value of Plaintiff,” and that she was “being deprived of her right/easement appurtenance of enjoyment of all persons owning lots in said sub-division of the park space (i.e. [sic] golf course) as provided by the [subdivision restrictions].” 

The applicable subdivision restrictions state that “no noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood,” and “any park spaces as shown upon the plat, will not be built upon but preserved as ornamental park spaces for the enjoyment of all persons owning lots in said sub-division.”

The Club filed a motion for summary judgment, which the trial court granted on the grounds that Betsy could not prove that the trees constituted a nuisance.

Betsy appealed.

Held: The trees are not a nuisance.

Betsy argued that the subdivision restrictions meant that The Club should be prohibited from interfering with her enjoyment of her property “by changing the very character and nature of her home as a golf course view property.” Betsy asserted that because the trees are a nuisance, they are prohibited by the subdivision restrictions. She also contended that the requirement that park spaces, which Betsy asserted included the golf course, must be preserved for the “enjoyment of all persons owning lots in said subdivision” meant her view of the course had to be maintained.

The Court disagreed with Betsy’s premise. The subdivision plat designated park spaces as “park spaces.” The golf course was labeled “golf course.” The Court said that Betsy’s “desire that the golf course be treated as a park space even though it is not designated as such on the plat is contrary to the very paragraph 7 that Plaintiff relies upon. Further, nothing within the subdivision restrictions guarantees Plaintiff an unobstructed view of the golf course. Nor is there any provision within the subdivision restrictions that prohibits Defendant from planting trees on its own property. This issue is without merit.”  

The Court observed that under Tennessee law, a nuisance is anything that annoys or disturbs the free use of one’s property or renders the property’s ordinary use or physical occupation uncomfortable. “It extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of the property… As long as an interference with the use or enjoyment of property is substantial and unreasonable enough to be offensive or inconvenient, virtually any disturbance of the use or enjoyment of the property may amount to a nuisance.”

However, a use of property that constitutes a nuisance in one context does not necessarily constitute a nuisance in another context. Whether an activity or use of property amounts to an unreasonable invasion of another’s legally protected interests depends on the circumstances of each case, including “the character of the surroundings, the nature, utility, and social value of the use, and the nature and extent of the harm involved.” Whether a particular activity or use of property is a nuisance is measured by its effect on a normal person, not by its effect on the “hypersensitive.” The standard for determining whether a particular activity or use of property is a nuisance is “its effect upon persons of ordinary health and sensibilities, and ordinary modes of living, and not upon those who, on the one hand, are morbid or fastidious or peculiarly susceptible to the thing complained of, or, on the other hand, are unusually insensible thereto.”

When trees are involved, Tennessee law holds that “encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.”

Here, the only damage Betsy can cite is that she thinks her property is worth less because she can no longer see the golf course. The Court held that her claims “are simply insufficient to give rise to a claim for nuisance. Plaintiff has directed us to nothing which would give her a protected legal right entitling her to a view of Defendant’s property.”

The Court cautions that it was not suggesting that trees could never constitute a nuisance, but just that “given all of the facts and circumstances in the case now before us at this time, Defendant has shown that Plaintiff cannot prove that the trees at issue in this case constitute a nuisance.”

– Tom RootTNLBGray140407

Case of the Day – Tuesday, March 31, 2026

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THE CURE IS TOO MUCH BETTER THAN THE DISEASE

I had a call recently from a North Dakota lawyer, who was involved in a tree case where the standard for measuring damages being considered was the “cost to cure.” He wondered whether I was familiar with the concept.

In losses due to wrongful cutting of trees, we traditionally see damages being applied as diminution of value of the property (noncommercial trespass), the value of the timber (in commercial trespass cases), and, occasionally, restoration value (the cost to restore that which was lost). The ultimate goal, as we once noted, “is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss.”

The question posed by our attorney friend from the Flickertail State left me scratching my head, (not a good idea, because it dislodged some of the little hair I have remaining): it sounded to me that “cost-to-cure” was being used in the case as a fancier name for restoration costs (sometimes called replacement costs). The only place I had seen the term “cost to cure” used was in condemnation cases. A Texas appellate decision in such a case defined the “cost-to-cure” approach as “an appraisal technique used to arrive at the taken property’s market value and the diminished market value of the remainder, which included the cost to replace improvements taken, damaged, or destroyed after they have been appropriately depreciated.

The attorney asked me whether I could verify “that the Cost of Cure Method has been accepted by the Courts.” Not really. My problem is that “cost of cure” has been accepted by the courts in condemnation cases, where the government decides to take your property for some more-or-less debatable public “good.” But I have never seen it called “cost of cure” in a tree damage case, where “cost of restoration” is the term applied when that measure of damage is called for.

Nevertheless, I found a condemnation case from Michigan that tangentially involves trees (and thus meets my exacting standards for this blog). So, as a consolation prize, let’s see how a fruit farmer tried to jack up the value of the loss of 20% of his acreage with a “cost to cure” analysis, and how the court – quite appropriately channeling Publilius Syrus – told him the cure couldn’t be better than the disease.

Dept. of Transportation v. Sherburn, 196 Mich.App. 301, 492 N.W.2d 517 (Mich.App. 1992). Loris Sherburn was a fruit farmer along Lake Michigan. When the Michigan Dept. of Transportation decided to extend U.S. 31 in Berrien County, it took 28 acres of Loris’ 124-acre farm. A court battle ensued, as it often does, over the value of the property taken. The State argued the value of the 28 acres was $47,200. Farmer Sherburn argued the property carved off his farm was worth closer to $183,000, claiming that this was the cost to cure the loss caused by the loss of the acreage.

The trial court found Loris was entitled to $56,600 for the condemnation of 28 acres of the farm.

Loris appealed.

Held: Loris was only entitled to $56,600. The Court of Appeals acknowledged that in a condemnation case like this one when only part of a larger parcel is taken, the owner is entitled to recover not only for the property taken but also for any loss in the value to his or her remaining property. The measure of compensation is the difference between the market value of the entire parcel before taking and the market value of what is left of the parcel after the taking.

Loris’ expert witness used the “cost to cure” method of calculating damages. The appellate court agreed that the cost-to-cure method is a measure of damages that may be considered by the jury, provided the cost to cure does not exceed that difference between the market value of the entire parcel before the taking and the market value of what is left of the parcel after the taking.

MDOT’s expert witness, an independent real estate appraiser, calculated the value per acre of the farm, which made the place worth $122,800 for all 124 acres. Using the same method, he found the 96-acre parcel remaining after condemnation to be worth $75,600. Thus, he concluded that Loris Sherburn’s damages were $47,200, the difference between the value of the entire parcel and the value of the remaining parcel after condemnation.

Farmer Sherburn had different ideas. His first expert witness, a real estate appraiser, using a comparable sales method, testified that the market value of the farm before condemnation was $215,000. He also estimated it would cost the farmer about $183,000 to replace the mature vineyards, peach and apple trees, and buildings lost in the condemnation. The witness contended that Loris, in addition to retaining possession of the remaining 96 acres, should recover the $183,000 cost-to-cure damages.

Loris’ second witness, an independent fee appraiser, testified that using the market data approach, the market value of the defendants’ farm before the taking was $345,000, while the market value of the remaining 96-acre parcel after the taking was $139,000, leaving a difference of $206,000.

The Court of Appeals agreed with Loris that where a partial taking occurs, it is possible for the property not taken to suffer damages attributable to the taking. “These damages have been described as ‘severance damages’,” the Court held, “which may be measured by calculating the difference between the market value of the property not taken before and after the taking. Where severance damages have occurred, it may be possible for the property owner to take steps to rectify the injuries in whole or in part, thus decreasing the amount of severance damages and correspondingly increasing the parcel’s market value.” These actions constitute a “curing” of the defects, according to the Court of Appeals, and the financial expenditures necessary to do so constitute the condemnee’s cost to cure.

However, the Court held that the cost-to-cure damages in a given case are not unlimited. Where the market value of the property taken, the value of the property remaining, and cost-to-cure expenses exceed the market value of the land before condemnation, cost-to-cure damages will not be awarded. “An owner is not to be enriched because of the condemnation,” the Court said.

This leaves “cost-to-cure” damages as a valid measure of damages “only when it is no greater in amount than the decrease in the market value of the [remainder] property if left as it stood.” Thus, the Court concluded, “where there is no claim of severance damages, the maximum damages recoverable equal (the market value of the entire parcel before the taking) minus (the market value of the remainder after the taking). Where severance damages are claimed, the maximum damages recoverable equal (the market value of the parcel taken) plus (the market value of the remainder after the taking) plus (the cost-to-cure expenses); however, the total damages awarded may not exceed the fair market value of the whole parcel before the taking.”

For Farmer Sherburn, the trial court correctly concluded that cost-to-cure damages are not recoverable to the extent that they exceed the market value of the entire property before the taking.

– Tom Root

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Case of the Day – Monday, March 30, 2026

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CECIDERIT LIGNUM IDEO DEBITUM

Emily Bernges, my sainted high school Latin teacher, would have been proud. We all recall René Descartes and his famous “Cogito ergo sum,” the philosophical proposition “I think, therefore I am.” For today’s case, I have coined a new maxim: “Ceciderit lignum ideo debitum.”

Today’s case, a fairly pedestrian fallen-tree situation, features a plaintiff that everyone will love to hate: an insurance company. When a tree fell on the neighbor’s garage, the victims, alliteratively named Robert and Roberta, called their local insurance agent. The insurance company paid off. Under the agreement (hidden in everyone’s policy) that gives the insurer the right to step into the insured’s shoes – called subrogation – the insurance company sued the neighbor whose tree fell.

One has to wonder why the insurance company even bothered. It agreed before trial that the neighbor had no idea – nor should he have had – that there was anything wrong with the hackberry tree.

Descartes was arguably right when he said, “Cogito ergo sum.” ‘I think, therefore I am.’ But Mrs. Bernges would have translated the Latin maxim, “Ceciderit lignum ideo debitum,” as, “A tree falls, therefore, I pay.” That’s not so catchy, and, as we will see, it’s just plain wrong.

Not so, but sometimes they’re rather obtuse…

American Family Insurance v. Anderson, 107 P.3d 1262 (Kan.App. 2005). Dean Anderson owned property next door to a place belonging to Robert and Roberta Stenfors. One summer evening, a hackberry tree on Dean’s property blew over onto Bob and Bobette’s garage. The Bobs called their insurance carrier, American Family Insurance, which paid to remove the tree and fix the garage. Repair cost: $24,837.47.

American Family then sued Dean, claiming he had been negligent in letting the tree fall on the Bobs’ garage. Dean moved to have the claim thrown out, and the trial court obliged.

American appealed.

Held: Dean owed nothing for the fallen hackberry. A directed verdict is appropriate where no evidence is presented on an issue or where the evidence is undisputed and is such that the minds of reasonable persons may not draw differing inferences or arrive at opposing conclusions.

In this case, American Family had to establish that Dean had a duty to the Bobs, that he breached the duty, and that the breach caused the damage to the garage. The Court said that in order for Dean to have had a duty to remove the hackberry tree before it fell, he first had to have actual knowledge that the tree was defective, or there had to be evidence that any reasonable person would have understood meant the tree was defective (which is known as “constructive knowledge”).

Before the trial ever began, American Family stipulated that Dean lacked actual or constructive knowledge that the tree was defective. But American Family urged the appeals court to look at the evidence presented at trial. Bob and Bobette, joined by Roy, the guy they hired to remove the fallen hackberry, recalled an incident a decade before in which Roy told Dean he should remove the hackberry along with an adjacent rotten tree. Roy admitted, however, that the hackberry seemed to have gotten healthier in the ensuing 10 years. Roy testified he saw no outward signs of disease or decay on the tree and did not believe that the average non-tree person could have seen any indications of internal rotting. The appeals court concluded that based on this record, the testimony presented at trial also failed to establish that Dean had actual or constructive knowledge of the tree’s defects.

American Family also argued the tree was a nuisance. Under Kansas law, “[a] person is liable in damages for the creation or maintenance of anything that unreasonably interferes with the rights of another, whether in person, or property, and thereby causes [him or her] harm, inconvenience, or damage.” The court of appeals said a nuisance is not a separate type of tortious conduct. Rather, in this case, American Family’s nuisance claim was a “sub-variant” of its negligence claim.

A hackberry tree.

The trial court threw out American Family’s nuisance claim because the insurance carrier did not prove Dean had knowledge of the tree’s defective nature. The tree appeared healthy and showed no outward signs of decay or disease. Further, the trial court noted the tree had withstood 90-mile-per-hour wind gusts two months before it fell. A reasonable person, the trial court concluded, would not, under these circumstances, have removed the tree.

The appellate court held that American Family’s failure to prevail on its negligence claim doomed its ability to establish that the tree was a nuisance. Knowledge that the tree presented a danger to Bob and Bobette’s property was crucial, and American Family did not show that Dean knew or should have known of the tree’s defective condition.

American Family’s ‘Hail Mary’ argument was that the fallen tree presented a strict liability situation. The appellate court made short work of the claim, noting that the insurance company never raised strict liability at trial, and it could not do so for the first time on appeal.

– Tom Root


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Case of the Day – Friday, March 27, 2026

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THOSE OLDIES BUT GOODIES

Anglo-American jurisprudence is built on stare decisis, the notion that a decision, once rendered, may be relied upon by future generations to be a correct and reliable explanation of the law.

It does not always work this way. Some decisions are sufficiently wrong-headed (take, for example, Plessy v. Ferguson) that reversal is both legally and morally right. But as the row over Roe v. Wade illustrates, reversal of precedent is never undertaken lightly.

That’s how a Pennsylvania decision that’s almost 96 years old can make its way into our lineup. Dare v. City of Harrisburg is old, but it’s still good law. As an application of the law of nuisance, as well as an explanation of a municipality’s police power to regulate nuisances for the commonweal, this case is fresh enough to have been tweeted just yesterday. It’s an old case, but a good one.

Mr. Dare clearly was a guy who loved his Carolina poplar. The tree is vigorous and rapidly growing, and – at least by the account in the case – can sniff out a water source like a bloodhound working a spoor. When it finds a water source – especially one as nutrient-rich as a sewer, it pries the source open like a squirrel cracking a nut.

Great for the tree. Not so great for the sewer. Or the city that has to maintain it, or the poor homeowner who watches unspeakable things backflow into his or her basement.

Carolina poplar – a cottonwood-family tree

Dare v. City of Harrisburg, 16 Pa. D. & C. 22 (Pa. Common Pleas 1930). In August 1925, the City of Harrisburg established a Shade Tree Commission under an Act providing for the planting and care of shade trees. A few short years later, the Commission ran headlong into Mr. Dare, who had a healthy, full-grown 35-year-old Carolina poplar shade tree in front of his property, one of nine such trees along the street.

In the fall of 1929, the Shade Tree Commission ordered the Carolina poplar removed to be replaced with a Norway maple tree.

The Norway maple was well-suited to the Harrisburg climate and soil. The Carolina poplar, on the other hand, grows rapidly, is short-lived and has fibrous roots which can extend up to 100 feet in search of water. The roots have a tendency to penetrate the smallest crevices and particularly to enter sewers seeking moisture and food.

The City had a sewer about 38 feet from the tree, which was clogged twice, backing up into nearby homes, during the summer of 1929. Each time, crews pulled bushels of small, matted Carolina poplar roots from the sewer. The Shade Tree Commission found that Mr. Dare’s Carolina poplar tree was likely to continue to clog the sewer, costing the City money and causing sewer backups that damaged other homes.

Mr. Dare argued that the Commission’s proposal to remove the tree was arbitrary, unreasonable, and an abuse of any discretion that the statute may have vested in the Commission. He said the problem was a shoddily built sewer, and that removing the tree constituted an unconstitutional taking of his property without compensation.

Held: The tree was a nuisance, and the Shade Tree Commission could order its removal without paying compensation to Mr. Dare. The evidence showed that the tree grew out to the sewer and stopped it, different from a case where the growth of the city around the tree was what created the condition now being called a nuisance.

The Court admitted that “it is a serious matter to destroy a beautiful shade tree and thus somewhat diminish both the market value and the advantages of one’s home. But when the tree has become a nuisance, and the municipal authorities have upon proper evidence so determined, the court cannot say that a determination to remove such tree is either arbitrary or unreasonable.”

The Shade Tree Commission Act of 1907 gave the Commission the “exclusive and absolute custody and control of and power to plant, set out, remove, maintain, protect and care for shade trees.” This language, the Court said, gives the commission the exclusive power to remove. A municipality has a right to control trees and to remove them, and courts will not interfere unless there is an abuse of discretion or the power is exercised willfully, wantonly and unnecessarily. Where trees become a nuisance, the municipality does not act in the exercise of eminent domain but under the police power and needs no permissive statute.

Nor must the City pay compensation to the tree’s owner. The Court agreed with the principle from a Municipal Corporations treatise that “without regard to who owns trees in the street, the municipality has the right to control them, and it may in proper cases in the interest of public safety, convenience or health, cut them down. It is well settled that a municipality, even in the absence of a permissive statute, may remove trees, when necessary as against the objection of the abutting owner, without compensation, in connection with making improvements on the street, or where they are an obstruction to travel. For example, to improve and render a highway safe and convenient for travelers, to carry out a plan or system of street improvements, or to prevent the roots of trees from clogging a city sewer.”

Mr. Dare cited Bushong v. Wyomissing Borough, a prior case, in which municipal authorities were denied the right to remove a private landowner’s tree. But there, the Court said the City attempted to remove Norway maple trees (which is the species intended to be substituted in the instant case), which were well adapted to the conditions in the borough, and to plant in its place a Crimean linden, which had not been planted in the borough before and was not an established shade tree. In that case, the Court said, “it was very properly held that shade trees were not nuisances per se, and that the removal of beautiful and ornamental trees which add to the desirability and the value of properties, merely for the sake of uniformity, would be exercising an unreasonable and arbitrary power. But in the case of Mr. Dare’s Carolina poplar, there was “no question of the removal of the tree for the purpose of making municipal improvements, thus exercising the power of eminent domain or merely removing the tree to plant a tree of another kind, which may not be any better adapted to the soil and environment. The question is whether the city has the right, in the exercise of its police power, to direct the removal of a tree which has become a nuisance. We base our decision on that proposition alone.”

– Tom Root

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