Case of the Day – Tuesday, February 3, 2026

Posted on February 3, 2026 by TLRoot tagged.

DOING DAMAGE

Most of the time, the object of a civil lawsuit is to collect damages. Damages may either be compensatory – intended to compensate or to put the victim in the same place he or she would have been had the wrong not occurred – or punitive, intended to punish the wrongdoer.

Today, we’re going to talk about compensatory damages. How much has an injured party been damaged by loss of or damage to trees? The first question to be answered is whether the trees were commercial or “ornamental” in nature.

If the tree taken was commercial timber, the calculation is straightforward. Courts use either the stumpage value or the timber value. Stumpage value and timber value estimates depend upon timber volume estimates, which in turn are based upon the raw data collected in the field by timber cruisers. Put another way, estimating the value of timber taken in a trespass involves a three-step process. First, a timber cruise is conducted, and measurements are taken in the field. Timber cruising includes identifying a tree species, taking measurements of the stump diameter and from the stump to the top of the tree left on the ground, measuring any logs left on the ground, and recording measurements on a tally sheet. Second, the collected measurements are converted into volume estimates using established mathematical formulas. Third, those volume estimates are then converted into value estimates.

The distinction between timber and stumpage value only comes into play during the third step of the process. Stumpage value is the value of standing trees or what one might pay for the right to cut and remove trees. Timber value is the value paid by mills for cut logs. If timber value is used, it would be fair to argue to the Court that a deduction should be included for the cost of cutting and hauling the lumber. But where the timber trespass was especially egregious, don’t hold your breath waiting for compensatory-damage compassion from the bench.

But what about where the tree is not commercial timber, like that 80-year-old oak that used to shade your front yard before a confused tree service company employee cut it down, thinking he was supposed to be at your house instead of a place two streets away. The single oak’s commercial value won’t begin to compensate you for the loss.

There’s always a tension between the value a lover of the land places on his or her trees and the price tag affixed to those same trees by bean counters testifying in some cold courtroom. That’s why courts in many states apply different rules when the wrongfully taken tree was a stately old elm shading the farmhouse, a tree with maybe $1,000 in timber value but much greater value to the wronged property owner. The fact is that the wronged owner just plain likes the trees that had been taken, and the fact that his or her enjoyment of the trees might not be quantifiable in a real-estate-value analysis makes little difference.

Anderson v. Howald, 897 S.W.2d 176 (Court of Appeals of Missouri, 1995). Melba Anderson discovered the limits of gratitude. For 40 years, she had let her neighbors, the Howalds, use a 7-foot-wide path across the corner of her land to get to their property. In 1991, the Howalds – apparently deciding that they shouldn’t settle for free use of a mere path where a free superhighway could be installed – brought bulldozers onto the Anderson land to “improve” the path. They knocked down trees, dug up rocks, and gouged things out but good.

Ms. Anderson sued and won an injunction, throwing the Howalds and their bulldozer out, but the trial court only gave her $6.40 in damages.

She appealed.

Held: The puny damage award was reversed. The Court of Appeals noted that “ordinarily, the measure of damages… is the market value of the property at the time it was removed from the land.” In this case, the trees being shade and ornamental trees of no commercial value, their value was slight. That seemed to offend the Court, especially when it saw the photos in the record of the extensive damage done by the Caterpillars.

The Court held that “in at least one instance, this court approved the use of before and after values of the real estate as a measure of damages… where the things taken, injured, or destroyed by a willful trespass have no substantial market value when considered in their severed state. The “general rule is that the measure of damages for trees that are not valuable for timber is the injury to the land caused by destroying them. This rule is based on the obvious reason that the value of such trees considered apart from the land would not be adequate compensation for the trespass.”

Courts, then, generally apply a measure of damages that considers the fair market value of the property with the tree and without the tree (which can be substantial for a single huge specimen that is the signature tree on the property). More often, the courts hold that the proper measure of damages is the replacement cost of trees rather than the value of real estate, even if the property owner cannot prove that the destruction of trees diminished the value of the property as a whole.

Courts often permit consideration of such replacement costs where the trees have aesthetic value to the owner as ornamental or shade trees, or for purposes of screening sound and providing privacy, in determining damages. Because one simply cannot replace a 50-year-old sugar maple tree with a similar tree, the courts apply a multiplier to the replacement cost to account for the number of years it will take for a replacement tree to reach the size and maturity of the tree that was removed.

– Tom Root

And Now The News …

Posted on February 3, 2026 by TLRoot tagged.

Minneapolis, Minnesota, Minnesota Public Radio, February 1, 2026: Invasive, tree-killing emerald ash borer confirmed in Fargo

The invasive emerald ash borer, a type of beetle that bores into and eventually kills Ash trees, has been discovered in Fargo for the first time, raising concerns that insects could devastate trees and wooded areas here as it has in other parts of the country. The invasive species, originally from Asia, is believed to have come to North America in wooden pallets and other imports. It was first discovered in North America in southeast Michigan in 2002, and according to the U.S. Department of Agriculture, it has now spread to 37 states, including Minnesota and North Dakota, killing tens of millions of Ash trees across the country. The discovery of the emerald ash borer is not a surprise to Fargo city officials, considering the bug has plagued the neighboring city of Moorhead since 2023…

Tullahoma, Tennessee, News, February 1, 2026: Understanding our urban forest: Why trees matter after Winter Storm Fern

I know what you have seen in the news these last few days. Trees, and lots of them causing damage during this winter storm. I’ve seen it, too. I also know why trees are so often shown as the result of storm damage. It’s hard to capture a heavy wind gust or the immediate effects of snow and ice buildup in a single photo. However, a massive tree laying on a house or a car, or branches falling and arcing on a power line are visceral. They show nature’s might and fury in a single image. It makes trees look terrifying. In the aftermath of Winter Storm Fern, I have received messages from concerned residents asking if they should remove trees from their property. The fear is understandable. I get it. When you watch a massive oak limb crash onto a neighbor’s roof or see your own driveway blocked by a fallen pine, the instinct to eliminate the threat is powerful and completely valid. No one wants to stay awake during the next storm wondering if tonight is the night a tree comes through their bedroom window. All that said, I want to take a moment to talk about what we would lose if we let fear drive our decisions about Tullahoma’s urban forest…

Phys.org, February 1, 2026: Strategic tree planting could help Canada become carbon neutral by mid-century

A new study finds that Canada could remove at least five times its annual carbon emissions with strategic planting of more than six million trees along the northern edge of the boreal forest. The paper, “Substantial carbon removal capacity of Taiga reforestation and afforestation at Canada’s boreal edge,” appears in Communications Earth & Environment. Researchers at the University of Waterloo factored in satellite data, fire probabilities, loss of vegetation, and climate variables to estimate how much carbon the forests would remove. They found that planting about 6.4 million hectares of trees in that region could remove roughly 3.9 gigatonnes of CO₂ by 2100. Scaling up to the most suitable areas increased the potential to around 19 gigatonnes…

The Spruce, January 30, 2026: If Your Tree Falls into Your Neighbor’s Yard, Who Actually Cleans It Up? We Asked Pros

If you have large trees growing on your land, around your house, you know high winds and trees don’t mix. If you don’t, you will be next time a hurricane comes. Huddled in the dark with your family because the power’s out, you hear the wind whipping outdoors, each gust stronger than the last. The branches of that tree hanging over your home are groaning and creaking, tossed against each other like so many toothpicks. Will they hold out, or will one of them come crashing down onto your roof? Will the tree itself be left standing by morning? And what if it falls on your neighbor’s side of the property line? Are you responsible for the consequences? If your tree falls into a neighbor’s yard, the first question to ask yourself to determine legal responsibility is, was the tree healthy? If the tree was healthy and fell due to a weather event such as high winds, you are not responsible for cleaning up the mess afterwards. Insurance companies consider such an incident an “act of God” or “act of nature,” meaning nobody is at fault…

Hilo, Hawaii, Spectrum News, January 29, 2026: $65,000 removal of banyan tree from Banyon Drive in Hilo requires single-lane closure

A single banyan tree will be removed for nearly $65,000 after an assessment found that out of 48 banyan trees on Banyan Drive in Hilo, this was the only one with structural instability. Hawaii County officials will close a single lane on Bayan Drive between Thursday, Jan. 29, to Thursday, Feb. 12, in order to allow a contractor to remove the banyan. The work requires the closure of the southbound lane of Banyan Drive, between Banyan Way and Kamehameha Avenue, from 7 a.m. to 6 p.m. Monday through Friday. The assessment by a certified arborist says the tree’s structural defects and recent canopy failure pose a major public safety risk. The tree has shed about 20% of its upper branches, with the risk of further sections falling onto the roadway. “This emergency action is part of our efforts to protect public safety and ensure that this iconic part of Hilo gets the care and attention it deserves,” said Mayor Kimo Alameda in a news release…

Farm and Dairy, January 29, 2026: Right tree, right place: A guide to spring tree planting in Ohio

It’s cold and white outside, but warmer weather is bound to come, hopefully sooner rather than later. This time of year, most soil and water conservation districts throughout the United States, especially here in Ohio, are hosting a spring tree sale. Whether it is in your yard, a tree farm, a wooded patch in the back forty or a favorite hunting spot, there are always spaces to plant more trees. When it comes to trees for conservation purposes, there are so many benefits. One of our first and foremost concerns is keeping soil where it is and managing as much water as possible. Trees have the ability to do bot, as their broad, deep root systems hold on to soil. Through years of growth, the roots are also supplemented by the falling leaves and a hearty soil biome, developing a deep forest soil. Not only does forest soil enrich the plants and animals, but they are a fantastic sponge for our ever-changing rainfall…

Phys.org, January 28, 2026: Fast-growing trees are taking over the forests of the future and putting biodiversity, climate resilience under pressure

Trees play a central role in life on Earth. They store CO₂, provide habitats for animals, fungi, and insects, stabilize soils, regulate water cycles, and supply resources that humans rely on—from timber and food to recreation and shade on a hot day. But the world’s forests are entering a new era, characterized by homogenization, biodiversity loss, and weakened ecosystems. This is shown by a comprehensive international study published in Nature Plants. The researchers analyzed more than 31,000 tree species worldwide and provided a global picture of how forests are likely to change—in terms of composition, resilience, and ecological functioning. According to the study, forests will increasingly be dominated by fast-growing tree types, while slow-growing and more specialized species are at risk of disappearing…

Washington, DC, Post, January 30, 2026: ‘Ghost forests’ are even more widespread than we thought

From above, there’s no mistaking the loss. More than 11 million points pepper a map of the East Coast, each representing a once-living tree, in a trail of mortality stretching from South Carolina to Maine. “We can pretty confidently say we can count basically every dead tree,” said Xi Yang, a University of Virginia professor and one of a team of researchers whose recent work has helped shed new light on the proliferation of what are known as “ghost forests.” These haunting landscapes, with their unmistakable gray, barren tree trunks rising like sentinels, offer one of the most startling and recognizable signals of a changing climate…

The Conversation, January 27, 2026: Do trees prevent landslides? What science says about roots, rainfall and stability

In the days since last week’s fatal landslides at Mount Maunganui, there has been widespread discussion about what may have caused the slopes above the campground to fail, including the possible role of recent tree removal on Mauao. In the aftermath of such tragedy, it is natural to search for clear explanations. But landslides typically reflect a complex combination of factors – from geology and long-term slope evolution to weather, climate and land use. The Tauranga region is underlain by volcanic materials that are well known for their instability. Over time, volcanic rock weathers into clay-rich soils, including a problematic mineral known as halloysite. During heavy rainfall, water infiltrates these clay-rich soils, increasing porewater pressure between soil particles. This reduces the soil’s shear strength, making slopes more prone to failure…

Mongabay, January 26, 2026: Tree spirits: The unintended ecology of belief

In parts of Indonesian Borneo, forests endure not because they are fenced off or regulated, but because they are feared. Among the Indigenous Iban people of Sungai Utik, large strangler fig trees are believed to house spirits that can mislead, sicken, or even kill those who disturb them. The belief is not abstract. It is anchored in stories, warnings and remembered loss, Mongabay’s Liz Kimbrough recently reported. One such story recounts a boy who vanished near a rice field, only to be found hours later by a towering fig. He said spirits had called to him and hidden him in plain sight. His family took him to a shaman. His name was changed, to sever the spirits’ hold. The tree remained. For researchers, these accounts might read as folklore. Yet new fieldwork shows that the consequences of such beliefs are visible on the land. When the Iban clear fields for farming, they leave large strangler figs standing. They also leave a buffer of forest around them, creating islands of vegetation scattered through farmland. The practice is called dipulau, a word that translates simply as “island.” These islands occupy only a small fraction of the cultivated landscape, perhaps 1 or 2%. Still, they matter. Different species of strangler figs fruit at different times of the year and draw birds, primates and wild pigs when other food is scarce. Hunters once waited beneath them. Today, wildlife still moves between forest and field along these living stepping stones…

T&D World, January 13, 2026: The Future of Vegetation Management: Building a Smarter, Safer, and More Resilient Grid with Predictive Intelligence

Vegetation encroachment is one of the most persistent and costly risks utilities face. Overgrown trees and brush do not just interfere with power lines; they represent one of the leading causes of outages, wildfires, and regulatory fines. In fact, nearly half of all weather-related power outages are linked to vegetation issues. In recent years, catastrophic wildfires tied to vegetation encroachment have cost utilities billions in fines and settlements. At a time when utilities are under pressure to ensure reliability, reduce wildfire risks, and meet stricter compliance standards, vegetation management has transformed from a periodic maintenance task into a mission critical priority. This shift aligns with broader industry trends: utilities face mounting regulatory scrutiny, accelerating digital transformation, and the urgent need to modernize outdated infrastructure in the face of climate-driven risks. Today, we are at an inflection point. Utilities are evolving their vegetation management strategies from reactive to proactive and now, with the help of advanced AI and geospatial analytics, toward predictive. This transformation is not just about trimming trees more efficiently. It is about harnessing RGB, LiDAR, and multispectral aerial imagery, geospatial data, and artificial intelligence to anticipate risks, allocate resources smarter, and ultimately safeguard communities and critical infrastructure…

Evansville, Indiana, RoundTable, January 28, 2026: The fragile life of a parkway tree

What started as a simple 311 call — a broken tree limb — ended with the removal of a beloved tree. We called the city when we noticed a large branch dangling unattached from a parkway tree outside our home. A city forestry department crew arrived in no time. I watched from our third-floor apartment as a forester headed to the top of the tree in a cherry picker to untangle the branch. The job seemed quick and easy. But when I went downstairs to talk to the crew, I could tell things were not that simple. “I have concerns about the tree,” crew leader Juan Octaviano told me. He could see a cavity in another large branch, and he wanted to take a closer look at the tree.I couldn’t imagine what was wrong. The tree, which I learned that day was a big-leafed linden, about 60 years old, looked perfectly healthy. Its leaves were as beautiful this year as ever before. They blossomed at the same time as the other trees and fell right on time not too long ago. But Octaviano, who has 28 years of experience, saw the tree differently and he wanted the city to take a closer look. Kindly, he didn’t want to say much…

Tacoma, Washington, KNKX Radio, January 26, 2026: Tumwater’s historic oak tree protected by court order

Community activists worked for more than a year and a half to protect a Garry oak tree in Tumwater, Washington, that the city estimates is 400 years old. A superior court judge ruled in late December that the city’s Historic Preservation Commission has the final word on what happens to the tree, not the city. The concerns started in 2024. The former Mayor of Tumwater announced that the city would remove the huge oak tree, citing safety concerns, after it dropped a large branch from 50 feet. The tree soars 85 feet tall. Its crown spans 80 feet from edge to edge and the trunk’s diameter at breast height is five and a half feet. Several city council members objected to the mayor’s executive action. Dozens of community members spoke out in a packed public hearing in June. And a small group took legal action to stop the city from cutting the tree down. They argued that the tree is listed with Tumwater’s Historic Preservation Commission, so only the commission can decide the tree’s fate…

Good News Network, January 26, 2026: Once Wiped Out by Blight, Thousands of American Chestnut Trees are Thriving on Biologist’s Land in Maine

Wild American chestnut trees, deemed “functionally extinct” decades ago, may already be quietly mounting an unexpected comeback in the northern forests of the US. Thousands of naturally thriving, wild trees in Maine contradict decades of assumptions about the species’ extinction—and how genetic engineering is the only solution. When an accidental importation of an Asian fungus in 1904 began killing this majestic tree—once abundant along the U.S. East Coast and Canada—ghostly gaps left in the landscape haunted biologists. But a new documentary (watch below) brought to light a remarkable and little-known success story: thousands of wild, healthy American chestnut trees are flourishing on the Maine forest land of renowned biologist and author Dr. Bernd Heinrich…

Phys.org, January 24, 2026: Ancient Spanish trees reveal Mediterranean storms are intensifying

Ancient pine trees growing in the Iberian mountains of eastern Spain have quietly recorded more than five centuries of Mediterranean weather. Now, by reading the annual growth rings preserved in their wood, scientists have uncovered a striking message: today’s storms and droughts are becoming more intense and more frequent than almost anything the region has experienced since the early 1500s. New research, published in Climate of the Past, reconstructs 520 years of rainfall variability in the western Mediterranean using tree-ring data from long-lived Spanish pines (Pinus sylvestris and Pinus nigra). The findings show that recent decades stand out sharply in the historical record, marked by an escalation of both extreme rainfall events and prolonged dry spells as the climate warms. Each year, trees add a new growth ring, forming a natural archive of environmental conditions. In wet years, trees typically produce wider rings as water is readily available for growth, while dry years leave behind narrower rings as growth slows…

Case of the Day – Monday, February 2, 2026

Posted on February 2, 2026 by TLRoot tagged.

ELECTRIC BOOGALOO

There are all sorts of ways that tree trimmers can die. They can cut an artery, fall from a bucket truck, or even get walloped by a branch (and sometimes, the whole tree). On occasion, they even get fried by electric lines.

None of it is pretty, either before or after the funeral. After the dust settles, the decedent’s estate (that is, the people the dead guy left behind) looks for someone to sue. Usually, the pickings are sparse. Maybe the bucket truck was defective, and the employer, the manufacturer and the mechanic who serviced it can be sued. Maybe it was a defective saw, and everyone who touched it could be a defendant. But negligence actions are expensive, and contrary to legend, they pay out a jackpot less often than a rigged lottery. Those lawyers on the back of phonebooks (there are still phonebooks, aren’t there?) and in the late-night ads? They won’t charge plaintiffs upfront, but they’re pretty picky about which cases they’ll take.

You would think that an electric utility would be the toughest nut to crack of all the potential defendants out there. What, you’re going to sue because the overhead wires had electricity in them? C’mon, man.

But every once in a great while, the utility is found to be liable for essentially having done nothing. Such is the case in today’s decision, which – while it does not involve a tree – gives us an excellent principle to apply to arboriculture activities.

Cyril Cronk lost his life by electrocution while digging a ditch for a water main on the south side of Park Avenue in Des Moines, Iowa. Iowa Power and Light had electric transmission lines running overhead, and a backhoe boom got close to one of the lines. It turned out that the boom did not have to touch the line for high voltage to jump the air gap. When it did, and Cyril (down on the ground) touched the backhoe, he became the ground wire. Not good.

The three lower wires on IPL’s poles were not insulated, a condition that was permitted by the applicable electrical code (although insulating material was available for such lines).

As it turned out, IPL was on notice of the water main work, or as the court put it, “It was reasonably to be anticipated and the defendant either knew or should have known that men would likely be working in the streets with modern machinery, such as was used in this instance, for the purpose of excavating or digging ditches or trenches for the laying of water mains.”

But the power lines were clearly visible to the guys on the ground. And the lines were necessary for the public good, and the danger that would result from coming in contact with such lines was hardly unknown. So the court’s conclusion that IPL was responsible for Cyril’s death is surprising. Maybe it was because the electric company had a deep pocket.

Tree trimmers frequently work near power lines. Would putting the power company on notice in advance make Reddy Kilowatt a codefendant if the unthinkable happens? Regardless of whether it did or not, it would probably be a good idea, just for the extra level of safety that power company participation in the project might bring.

Cronk v. Iowa Power and Light Company, 138 N.W.2d 843 (Supreme Court, Iowa, 1966). The deceased plaintiff, on whose behalf the suit was brought, Cyril Cronk, had been a waterworks employee. He was working on the ground helping free a crane bucket when the boom came in contact with a high-voltage transmission line, and he was electrocuted.

The trial court found liability strictly on the utility company’s failure to warn of the danger or insulate the wires after the utility company was fully aware the work was going to be done near the line, and the company had time to give a warning or insulate the wires. Defendant Iowa Power and Light (“IPL”) appealed.

Held: The Iowa Supreme Court held that the electric utility was liable. Compliance with the safety code is relevant to the question of due care, but not determinative. Proof of compliance with the standards furnished by the National Electrical Safety Code is not conclusive proof on the question of IPL’s due care. Actionable negligence may exist even if the utility company complied with the safety code requirements.

It was IPL’s duty to use reasonable care to prevent the escape of electricity in such a way as to cause injury to persons who might lawfully be in the area of danger incident to the escape of electricity from such lines. One who furnishes electricity, while not an insurer, is nevertheless held to the highest degree of care consistent with the conduct and operation of the business. A person or corporation maintaining and controlling wires for the furnishing of electricity to others must insulate their wires at all places where there is a likelihood or reasonable probability of human contact by people whose business or duty or rightful pursuit of pleasure brings them, without contributory fault on their part, into the zone of danger. However, in the absence of statute, this duty does not compel the electric company to insulate or adopt safeguards for the wires everywhere, but rather only at places where people may reasonably be expected to come in proximity to them.

The Supreme Court held that the evidence supported finding the utility company had been negligent in failing to insulate wires at such a point, and that this negligence had been the proximate cause of Cronk’s death.

– Tom Root

Case of the Day – Friday, January 30, 2026

Posted on January 30, 2026 by TLRoot tagged.

“YO-YO” MA

Don’t ever let your local attorney pull an abscessed tooth. And do not let your dentist practice law.

Dr. Ma needed a new office after he lost his lease to redevelopment. He found a vacant dentist’s office next to a vacant church. The empty dental abattoir was run down and needed work, but otherwise it was perfect. Dr. Ma signed a purchase agreement which expressly advised him not to rely on anything the seller or his broker said, but instead to hire his own consultants to check the place out stem to stern.

But Dr. Ma was a dentist. According to an old ad campaign for Aspen Dental, dentists can fix stalled cars, stop bank robbers in their tracks, free people trapped on an elevator… all sorts of stuff. Sort of like MacGyver with a mouth mirror. Dr. Ma didn’t need any other licensed professionals to check the property out. He could handle it. He was, after all, a dental professional.

Dr. Ma would never miss a cavity. But he did miss the fact that the property’s fenced side yard, which was the only access to the shed in which he had installed the air compressor that ran all of his dentist stuff, was really not his at all. Instead, almost all of it was part of the church. In fact, the 6-foot fence that enclosed the side yard was 3½ feet onto the church land.

A few months and countless fillings later, Dr. Ma got a letter from the church property owner, saying Grace Chinese Alliance Church wanted to buy the church property, but a survey showed Dr. Ma’s shed and fence were on church land. Dr. Ma should have referred the matter to legal counsel right then, but (did I already say this?) he was a dentist. A trained professional. He had this covered, too. The good doctor wrote back, saying, “No problem.” The church property owner could remove the fence whenever it needed to. Based on this answer, Grace bought the vacant church.

However, eight months later, when the Grace Church elders were ready to have the fence moved back to the real property line, Dr. Ma told them to go floss. He informed them that they could not move the fence, and if they tried, he would give them a root canal without novocaine. Or call the police. Or both.

First, Dr. Ma said, “Yes.” Then he said. “No.” Yes and no, up and down… Kind of like a yo-yo. “Yo-yo” Ma, it seemed.

The Church was not about to turn the other cheek. It sued, and Dr. Ma, who by now had a lawyer, claimed he had a prescriptive easement.

Everyone is familiar with adverse possession. If you squat on someone else’s land long enough without their permission, the property may become yours. A prescriptive easement is the easement version of that, a right to use a portion of someone else’s property gained by brazenly using it without permission for a sufficient period of time. If a claimant uses a property owner’s driveway without permission to reach the claimant’s back lot and does it openly, regularly and continuously for long enough, the claimant gets a prescriptive easement. It does not prevent the property owner from using his own driveway; rather, it just lets the claimant use it, too.

To establish a right to a prescriptive easement in California, a claimant must prove use of the property in question for five years.* The use has to be (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. Even where all of these elements are met, “when a claimant cannot satisfy the requirements for adverse possession, the claimant may not receive a prescriptive easement which extends so far that it becomes the equivalent of a fee interest and dispossesses the record title owners of part of their property.”

A true prescriptive easement does not deprive the property owner of the right to use the affected property, but rather just limits that use in favor of whatever rights the claimant has established. Dr. Ma argued he had a prescriptive easement, but his failure to determine the boundaries of his own property when he should have and his promise to let the Church move the fence when it needed to didn’t help him make his case. The real problem, however, was that Dr. Ma wanted exclusive use of the disputed property, and if he got that, it would deny Grace Church the ability to use the disputed property at all and would frustrate Grace’s intended use of the vacant chapel as its place of worship.

That dentist-as-MacGyver ad campaign we mentioned promises a “different kind of dentist.” Dr. Ma should have been a different kind of dentist: the kind who uses surveyors and lawyers early enough that these sorts of problems don’t happen.

Grace Chinese Alliance Church of the Christian and Missionary Alliance of West Covina v. Lin Ma DDS, Inc., Case No. B272415 (Ct. App. California, Second Appellate District, Jan. 25, 2018), 2018 Cal. App. Unpub. LEXIS 511

In 2010, Dr. Ma was looking for a commercial property to which to relocate his dental practice. The property at issue in this case, the Hayden property, had been used as a dental office at one time, but it was vacant and in disrepair.

Dr. Ma met with Hayden’s real estate agent to look at the property. One of Dr. Ma’s concerns was having a place to locate the air compressor used to power his tools. He discovered that the property had a compressor room, accessible only from the outside from a yard along the side of the building, adjacent to the property owned by Grace Chinese Alliance Church. The side yard was completely fenced in; it was about six feet wide from the building to the fence.

Dr. Ma entered into an agreement to purchase the Hayden property. The standard form agreement included provisions allowing Ma 30 days to obtain a survey of the property; acknowledging that Ma was buying the property in its existing condition and that no representations, inducements, promises, agreements, or assurances concerning the property had been made by the seller or his broker, and advising Ma to retain his own consultants to investigate the property. In addition to these standard provisions, the parties added several other provisions, including that “Seller and Buyer have agreed that there will be no credits given to Buyer with regard to the condition and the size of the property”; and “Seller and Buyer acknowledge that Broker has made no representations or warranties regarding the physical condition of the property. Seller and Buyer are relying on their own independent investigation in making or accepting this Agreement.”

After closing, Dr. Ma moved his dental practice into the Hayden property. A few months later, he received a letter from a lawyer for Grace Church, who said the Church property was subject to a sale escrow, and that a boundary survey conducted in connection with the sale showed that a fence and shed along Hayden’s east property line was encroaching into the Church property by about 3½ feet along nearly the entire length of the boundary between the two properties. The letter asked Dr. Ma to agree that the encroachment could be removed, and Ma replied, “We have no problem with whatever you want to do with the fence as long as it is on your property. Please let us know your future plans if the fence is removed, so that we can prepare for any security issues to our office related to this.” In reliance upon Dr. Ma’s friendly response, the Church completed the purchase of the Church property and began renovations.

Eight months later, Grace Church’s pastor wrote to Dr. Ma, telling him that for the Church to comply with City parking lot codes, it had to move the fence to the correct property line and tear out a piece of the encroaching shed. That required the Church to repave the entire parking area. The Church offered Ma $500 to help him defray the costs of compliance.

This time, getting Dr. Ma’s cooperation was like pulling teeth. He wrote back, telling the Church its survey was both unrecorded and bogus. The Church recorded the survey, but Dr. Ma continued to argue. He said the fence had been in its current location when he purchased the Hayden property, and that he had spent more than $50,000 improving the side yard where the encroachment existed. He said his possession and improvement of the property had been open and continuous, and that, therefore, the disputed property was his, or, if not, he at least had an easement by prescription. He threatened to call the cops if the Church tried to remove the fence.

The Church sued Ma to quiet title and get his fence and shed off of its land. Dr. Ma counterclaimed, saying he had a prescriptive easement to use the disputed 3½ feet, or at least an equitable easement. The trial record showed the fence was 6 feet tall, with locked gates on both ends and that the Church did not have access to its property on the other side of the fence. The Church needed to move the fence in order to use the property behind it to comply with certain parking lot requirements for the Church’s conditional use permit. The trial court ruled against the dentist, and Dr. Ma appealed.

The problem here is that a true prescriptive easement does not deprive the property owner of the right to use the affected property, but rather just limits that use in favor of whatever rights the claimant has established. If a claimant uses a property owner’s driveway without permission to reach the claimant’s back lot and does it openly, regularly and continuously for long enough, the claimant gets a prescriptive easement. It does not prevent the property owner from using his own driveway: rather, it just lets the claimant use it, too.

Here, if Dr. Ma got a prescriptive easement to use the disputed property, the Church could not use it at all. The fence prevented the Church from getting a permit to build a parking lot. Without a parking lot, Grace could not conduct services for its parishioners. Not only could Grace Church not use the disputed area behind the fence along with Dr. Ma, but its whole intended use of the church property would be frustrated.

The trial court found that Dr. Ma could not be granted a prescriptive easement because to do so would deny the Church of all of its rights to use the property. Thus, even if the court erred in finding that DDS failed to establish that its use of the disputed property was hostile, the court’s denial of the prescriptive easement was proper. The Court of Appeals agreed that in some circumstances, a court could find an exclusive prescriptive easement to be justified. “But those circumstances are very limited, and involve instances where the easement was necessary to allow a utility to provide an essential service, such as water or electricity, or to protect the health and safety of the public.”

The Court of Appeals was probably influenced by the fact that Grace Church only bought the property because of Dr. Ma’s letter saying that the fence could be moved to the correct position. It did not help that, after Dr. Ma told Grace Church he did not believe its survey, all of Ma’s own surveys showed Grace was right. It also did not help that testimony showed the dentist had tried to make a secret deal with the seller to cut out the broker’s fee, or that Dr. Ma tried to get the judge removed from the case on a spurious claim of bias. Whatever else happened, Dr. Ma did not come out of the trial looking entitled to equity, and things did not improve on appeal.

Unsurprisingly, with regard to Dr. Ma’s request for an equitable easement, the court found the equities did not weigh much in his favor. It noted that, on the one hand, the Church was unable to function as it wanted to function because it could not complete its parking lot as required for its conditional use permit without access to the disputed property; on the other hand, Dr. Ma could not show he would suffer any comparable hardship, even if he had to move the compressor or any other equipment from the shed as a result of the fence being shifted to the correct property line.

The Court of Appeals agreed. In order to be awarded an equitable easement, a claimant must be innocent. “That is, his or her encroachment must not be willful or negligent. The court should consider the parties’ conduct to determine who is responsible for the dispute. Second, unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff ‘will suffer irreparable injury… regardless of the injury to defendant.’ Third, the hardship to the defendant from granting the injunction ‘must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment, and this fact must clearly appear in the evidence and must be proved by the defendant.”

The trial court found that the Church would be irreparably injured if an easement were granted because it would be unable to function as it wanted to function. It also found that Dr. Ma failed to show he would suffer hardship if the easement were denied that would compare to the hardship suffered by the Church if the easement were granted. Because Dr. Ma did not even try to show those findings were unsupported by the record, the Court of Appeals denied his request for an equitable easement.

* The length of time needed for an adverse possession or prescriptive easement varies from state to state. California’s 5-year period is actually much shorter than virtually all other states. Talk to a local lawyer.

– Tom Root

Case of the Day – Thursday, January 29, 2026

Posted on January 29, 2026 by TLRoot tagged.

FOR THE LORD’S SAKE, PEOPLE… STOP!

You would think that a church could get along with its neighbors. Maybe it was the Methodist elders. Maybe the neighbor was a minion of hell. Who can tell from the abbreviated decision in today’s case, handed down by the New York Supreme Court, Appellate Division.

A word of caution here: New York is not like the rest of the world. In New York State, the Supreme Court is a trial court, the Supreme Court Appellate Division is the court of appeals, and the Court of Appeals is the supreme court. There – isn’t that easy? So the next time someone claims to sit on the New York Supreme Court, just say, “Yeah, you and a thousand other judges.”

Today’s decision involved a party wall, hardly a matter of importance to most folks. But the principle is an important one. Trespass is one of those common law torts (consider a tort to be a “wrong”) that can be committed all too easily. You don’t have to intend to commit a trespass. All you have to do is intend to step where you step. So if you trip on the sidewalk and fall onto someone’s front lawn, it’s not a trespass, but if you step off the sidewalk to avoid a puddle, it is.

What’s more, in every trespass, damages are presumed. There have been cases in which people trespassed while all the while believing they were on their own property. Sometimes, they leave the premises on which they trespassed better off than before they arrived.

No matter. The law presumes they damaged it.

Obviously, this can cause all sorts of nonsensical results. For that reason, while the law will always assume damages, it won’t always order the trespass to end. Sometimes, the trespass causes so little inconvenience to the property owner and – if it were ordered to cease – would cause such injury to the trespasser, that an injunction would not make sense. The law will generally avoid ordering a result that is wasteful.

In today’s case, Mr. Kimball installed drip edge and cladding on the party wall, with a small portion of it (we’re talking inches) protruding over the Church’s vacant property. Drip edges prevent rainwater and ice melt from running under the shingles and into the wall. Cladding is a finish, such as vinyl siding, covering the rather ugly concrete block wall. In this case, it protruded onto church property probably 2” beyond where the wall stood.

What would have been the point, other than sheer orneriness, of making Mr. Kimball rip the siding and drip edge off the wall? After all, those additions were needed only because the Church tore down its building, leaving a bare wall exposed to the elements. The court of appeals was not going to demand such a wasteful and damaging result.

The law is not always an ass.

Kimball v. Bay Ridge United Methodist Church, Case No. 2017-03575 (Sup.Ct. New York, Appellate Div., Jan. 24, 2028), 2018 N.Y. App. Div. LEXIS 443. Mr. Kimball and the Bay Ridge UMC owned buildings with a party wall, that is, a common wall along the property boundary that supported and was integral to both buildings.

The Lord only knows what went on between the Church and the Kimballs, but things seemed to start when the Methodists tore down their building a decade ago (leaving the party wall, of course, because it was part of Mr. Kimball’s building, too. About seven years after the church building was razed, Mr. Kimball installed cladding and a drip edge along the church side of the wall.

For reasons not clear in the opinion, Mr. Kimball sued the Church for a declaratory judgment and injunction. The Church rendered unto Caesar itself, and its lawyers counterclaimed for trespass, because Mr. Kimball’s cladding and drip edge extended however so slightly into Church airspace, on the holy side of the party wall. In addition to damages, the Church wanted an injunction requiring Mr. Kimball to tear out the cladding and drip edge.

The trial court granted the Church’s trespass complaint, awarding it damages and ordering Mr. Kimball to remove the offending installation. Mr. Kimball appealed.

Held: The appellate court agreed that there was undoubtedly a trespass, but drew the line at an injunction. New York law provided that an “action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land [but n]othing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify.”

In order to obtain injunctive relief under the statute, the appellate court said, the Church was “required to demonstrate not only the existence of [an] encroachment but that the benefit to be gained by compelling its removal would outweigh the harm that would result to [the encroaching party] from granting such relief.” Here, the Methodists did not show that the “balance of equities weighed in its favor.” In other words, what it gained by having Mr. Kimball rip out the cladding and drip edge was bupkis, maybe an inch of space eight feet or so off the ground. But by tearing out the cladding and drip edge, Mr. Kimball would lose the ability to keep water from rotting his roof and joists.

So Mr. Kimball had to pay some damages (and they probably amounted to $1.98 or so), but the law would not make him rip out the cladding and drip edge to satisfy the Church elders.

– Thomas L. Root

Case of the Day – Wednesday, January 28, 2026

Posted on January 28, 2026 by TLRoot tagged.

CLIPPING

The Super Bowl® brand football game (which, as my old friend David Oxenford has made clear, is a registered trademark of the NFL) will be upon us before we know it. Everyone I know is already excited beyond all reason that the Seattle Seahawks – who brought us one of the worst Super Bowl® brand football games in history the last time they appeared – are willing to risk being deflated by the Belichick-less New England Patriots. Already, the commercial teasers are airing.

Alas, if Bill Belichick attends the game, he’ll need tickets. The Grumpy Lobster Boat Captain didn’t have a stellar season at the helm of the North Carolina Tar Heels and probably longs for the days of secret video and soft footballs.

But we both honor and follow the rules here at treeandneighborlawblog.com. Today, I review the old 15-yard standby, clipping. The clipping in today’s case was done not by a offensive player, but rather by an electric utility.

Tree trimming along and under an easement to protect power lines is typically done according to standards set by the North American Electric Reliability Corporation, known as NERC. Standards for tree trimming sound dry to you? Maybe a little looting, people trapped in elevators, and a power outage affecting 50 million people will get your attention. The great blackout of August 2003 had many contributing causes, but it all started when power lines – sagging in the heat of the day and under the load put on the system – became entangled in poorly-trimmed trees.

OK, tree trimming is important work. And so it was in Louisiana. It seems that a road was widened, and power lines were relocated as a result. The electric utility came along to clip vegetation along the route, but ran into Mr. James, who objected to the vigorous removal of trees and brush. He kept running the crews off, until the utility sued for a ruling that it had an agreement with the city that superseded Mr. James’ complaints.

That’s where things got interesting. Mr. James and the utility signed an agreement that permitted the utility to trim back to the historical trim limits or to an established limit according to the kind of tree. No sooner was the ink dry but Mr. James argued that the utility had violated the deal. He sought all sorts of damages — even emotional distress — for the alleged violations.

The utility of course loaded up at trial with three of four experts, who carefully showed that the trees were cut back to their historical trim point and no more. The trial court found for the utility. On appeal, the Court agreed that despite all of the tort theories and general complaints alleged by Mr. James, because he had signed the deal with the utility, the only question was whether the deal had been kept. And as for that, the utility’s thundering herd of experts trumped Mr. James’ speculation.

With the new NERC reliability standards requiring more aggressive vegetation management, it is likely that clashes as to the extent to which utilities may trim will be more frequent and substantial. Thus, there are likely to be more Mr. James v. Entergy battles throughout the country.

Entergy Louisiana, Inc. v. James, 974 So.2d 838 (La.App. 2 Cir. 2008). In 1991, Highway 143 — located next to Tupaw Manor Apartments — was widened. Entergy’s distribution lines ran along Highway 143 and with the widening of the highway, several poles were relocated. Three poles were placed so that the lines crossed the highway diagonally to the southeast corner of the apartment complex. The distribution lines at issue were contained within what Mr. James, the owner of the apartments, characterized as a “green zone” that buffers the apartment complex from the highway traffic, adding to the aesthetic value of the complex.

Tree trimming – boring. Mass panic – not so boring.

Entergy hired West Tree Service to trim vegetation encroaching on electrical distribution lines, the work to be done in compliance with Entergy’s “Distribution Vegetation Management Line Clearance Specifications” (“Clearance Specifications”) on file with the Louisiana Public Service Commission. During August 2004, another subcontractor sprayed the area with herbicide. Then, West cleared vegetation that had been sprayed and performed additional trimming on Mr. James’ property as per Entergy’s contract. Mr. James objected, but the West crews made several additional attempts to trim vegetation on the property. Unable to obtain consent from Mr. James, Entergy filed a petition asserting that it had an agreement with the city of West Monroe to operate electric facilities within the city and had a right-of-way easement onto Mr. James’ property for maintenance purposes. Mr. James answered and demanded damages in excess of $410,000. He claimed that Entergy engaged in the clear-cutting of trees, harvesting and removing over 200 trees, far in excess of the allowed or agreed upon width of trimming.

Prior to trial, the parties entered into a stipulated declaratory judgment in which they agreed that Entergy has the right to maintain all of its electric distribution lines and poles by trimming any encroaching trees, limbs, shrubs and other vegetation within 10 feet of Entergy’s lines in accordance with modern arboretum standards and as specifically outlined in Entergy’s Clearance Specifications, and as long as Entergy complied in good faith with the vegetation maintenance standards, Mr. James would have no right to prohibit with Entergy’s reasonable and necessary trimming of encroaching trees, limbs, shrubs and other vegetation along its distribution lines.

The Clearance Specifications provided that at a minimum, all trees would be trimmed back to the previous trim point or according to a table, whichever was greater. The table provided that slow-growth trees in rural settings would be trimmed to 10 feet and fast-,growth trees in rural settings would be trimmed to 15 feet. An exception would be made where there was a customer refusal where procedures outlined in the Clearance Specifications have been followed, provided that the exception would not result in unsafe conditions or jeopardize reliability.

Mr. James argued Entergy could only trim to an indefinite width depending on the extent to which it had actually claimed and used a right-of-way in the past or 10 feet under the Clearance Specifications. Mr. James alleged that Entergy exceeded the allowable width, causing damage to the aesthetic value of the “green zone” around the apartment complex. Mr. James filled out a Tree Cutting Refusal Form expressing his objection to having any trees removed, which he contended requires Entergy to then seek a court order to continue trimming. Entergy’s letter to Mr. James noted that the trimming was necessary to ensure safe, reliable electrical service to the area, including the apartment complex.

Entergy sued to get the court order. At trial, Entergy provided detailed testimony regarding the existence of a prior trim point, and that all trimming was within that point. Mr. James provided testimony that there were log trucks being loaded with cut trees coming and going from the property, which was contradicted by West employees. The trial court framed the issue as whether Entergy had complied with its Clearance Specifications in performing the trimming and found that Mr. James failed to carry his burden of proof and was, therefore, entitled to no damages. He appealed.

Held: Entergy had the right to trim the vegetation. The Court concluded that the stipulated declaratory judgment signed by the parties prior to trial controlled the allowable trimming width of the vegetation on the James property. Thus, the issue was whether Entergy complied with its Clearance Specifications. Entergy produced several qualified witnesses, whose testimony was thoroughly outlined by the trial judge, who found strong evidence of re-sprouts and prior trim points. The Court found no abuse of discretion. Although the Court noted that the Clearance Specifications might, in certain circumstances, lead to unauthorized, increased and unchecked trimming on private property, it concluded that under the specific facts of the case, Mr. James was bound by the stipulated declaratory judgment.

– Tom Root

Case of the Day – Tuesday, January 27, 2026

Posted on January 27, 2026 by TLRoot tagged.

LIFE IS A BOWL OF BERRIES

Who knows how neighbor feuds that simmer for years and years suddenly explode? Maybe Tom Schwendeman knows.

Tom lives next to the Roaches (who are people, not insects). About 14 years ago, the Roaches surrounded their property with a chain-link fence, which was clearly on their land. They even had a surveyor lay down pins before the fence went up. Since that time, the Roaches have engaged in such loathsome activities as building campfires in their backyard on as many as five, yes, FIVE occasions, and even spraying herbicide on poison ivy growing along the fence.

Oh, the humanity!

We get a sense of how things were going with the Roaches, given that grumpy neighbor Tom called the EPA to complain about the campfires (which occurred at a frequency of about one every two years – if our math skills remain sharp). Being busy creating environmental disasters of its own, the EPA apparently declined to intervene. Also, Tom liked to pick berries that grew along the fence. The herbicide on the poison ivy was the last straw for Tom. Convinced that his next blueberry smoothie would be his last, Tom tried to kick the fence down.

You, of course, have heard the Miranda warning on countless police shows. You know the schtick: “You have the right to remain silent….” Heed it well. Tom should have. As we like to tell clients, remaining silent is not just your right: usually, it’s a damn good idea, too.

Tom did not remain silent but instead vented his spleen in the presence of the deputies who responded to the call. He admitted the fence belonged to the Roaches and was on their land, but… well… the campfires! And the berries! How much is a man supposed to endure?

When it came time for Tom’s misdemeanor trial, his lawyer did not have much to work with, other than Tom’s frivolous argument that the fence was already in bad shape, and his tirade did not make it materially worse. For good measure, Tom threw in the woof story that he was only trying to get the fence off his land. The last defense might have worked… if Tom had kept his mouth shut when the cops had first shown up.

State v. Schwendeman, Case No. 17CA7 (Ct.App. Athens Co., Jan. 17, 2018) 2018 Ohio App. LEXIS 242. The state charged Tom Schwendeman with criminal damaging, a misdemeanor, because he damaged a chain-link fence between his property and that of his neighbors, Dawn and Gordon Roach.

The Roaches installed the fence about 13 years ago. One day last summer, Tom – apparently furious because the Roaches had sprayed herbicide along the fence to kill poison ivy – began yelling, kicking, and showing “a lot of anger towards the fence,” as a witness put it. Someone called the sheriff, and Tom admitted to a deputy that he knew it was not his fence, that the Roaches liked to have campfires in their backyard, which bothered him, and that they had sprayed herbicide for poison ivy along the fence line. Tom said he picked berries along the fence.

By the time he got to trial, Tom had an explanation that was a little more congruent. He complained about his problems with the five or six fires the Roaches had built in their backyard and argued that because the fence was 12 years old, the only damage he saw to it was “wear and tear that’s happened over the period of twelve years. More than twelve years it’s been there.” He claimed he witnessed tree branches falling onto the fence and the Roaches’ children climbing it, causing it to come apart. On more than one occasion, Tom claimed, the kids made “the fence pull loose and collapse…. when they were climbing it.” He said he carefully disconnected the cyclone fence from the posts because it was on his property and he wanted to move it. Tom claimed the Roaches knew it was on his land, but they refused to move it unless Tom had the property surveyed and took them to court.

But on cross-examination, Tom admitted he was angry when he began dismantling the fence. “I had been poisoned,” Tom testified. “My berries had been poisoned… my food had been poisoned, and my next smoothie would make me very ill.” Tom admitted he did not “own” the fence, but he continued to press his claim that “it was on my property.”

Tom’s lawyer argued that children, dogs, and trees caused the damage to the Roaches’ fence. However, Tom’s defense counsel did not seek a jury instruction that Tom was exercising a privilege to remove an obstruction on his own land and did not object to the court’s jury instructions.

The jury found Tom guilty. He was ordered to pay restitution and a fine. Tom appealed.

Held: The conviction was upheld. Tom claimed on appeal that he had the right to remove obstructions from his land, but he never asked the court to instruct the jury on that defense.

When a party fails to object in the trial court, generally, he or she cannot make a claim on appeal that was not raised below unless he or she can show “plain error” that affects substantial rights. It’s a tough standard to meet.

Ohio law indeed holds that a landowner has the right to use self-help to remove encroachments on his property, provided he acts with reasonable care. That is what is called an “affirmative defense” to the criminal damaging charges that were brought against Tom. But a defendant is not entitled to have the court give the jury that instruction unless he has come forward with at least some evidence that, if believed, raises the affirmative defense. Otherwise, the court is not permitted to give a jury instruction on the affirmative defense.

Tom testified that the fence was on his land, but he didn’t offer any evidence that that was so. He could have shown a deed, a survey or even a plat map. But he had to show something. What’s more, not only did Tom offer nothing at trial, but his testimony that the fence was on his land directly contradicted his statements to two sheriff’s deputies. Without providing a rationale for the inconsistency with his prior admissions to the deputies, the Court said, Tom’s trial testimony was not credible. Because there was no credible evidence supporting his contention that he owned the land, the trial court – as a matter of law – could not properly give a jury instruction on the affirmative defense.

Tom also argued to the court of appeals that his defense attorney was a putz. The 6th Amendment to the Constitution guarantees all criminal defendants effective assistance of counsel. Here, Tom fumed, his attorney was ineffective because he failed to request the jury instruction on Tom’s privilege to remove an encroachment from his land. The appellate court said no dice: based on the lack of evidence supporting the claim, the court properly would have refused to give the instruction. Tom’s trial counsel cannot be deficient for failing to request an unwarranted jury instruction. Anyway, the Court of Appeals observed, Tom’s lawyer was pursuing a “wear and tear” defense at trial, making a decision not to argue that Tom also had the right to move it off his property fairly sound trial strategy.

Trial counsel cannot be found deficient, the Court of Appeals said, for failing to request an unwarranted jury instruction or for exercising sound trial strategy.

– Tom Root