“WHOSE WOODS THESE ARE…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gene appealed.

Held: Judgment in favor of Marv was upheld.

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

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

In this case, Gene did not intend to possess land beyond his true boundary. He never formally disputed or questioned the boundaries as they existed, and he never approached Marv to request that the survey stakes be moved to establish what Gene believed was the correct boundary between the two properties. The Court said it was clear Gene did not intend to establish actual adverse possession.

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

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

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

Ultimately, the Court said, the question was whether the jury determined that the trees themselves were on the boundary, rather than whether the trees were entirely on one property or the other. If the jury decided that the trees were boundary line trees and that notice had been given to both parties that they were boundary line trees, then the taking of the trees by either party would be against the basic title held by either property owner and constitute the unlawful taking of timber from “the land of another”.

Here, the jury found that at least four of the trees at issue were boundary line trees taken by Gene without color of title. Accordingly, the statute entitled Marv to treble damages.

The Court said the jury’s function was to determine whether Gene damaged Marv’s land and, if so, what amount of money would compensate Marv up to the stump value. After that determination, the trial court had to enter a judgment for triple the amount assessed by the jury.

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

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

– Tom Root

IT DOES NOT MAKE SENSE

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

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

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

Anyway, Smith sued, and Mendonsa, for some foolish reason, fought the action. The trial court found for Smith in due course and then worked some rump math, figuring the past damages were about $140.00 a year (this was 1952, when a dollar was worth a bit more than now), and multiplied over three years, the damages were $420.00 (or $5,136 in 2026 dollars). The Court also enjoined Mendonsa from maintaining trees over 15 feet or branches that were hanging over Smith’s land.

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

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

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

A deal’s a deal, after all.

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

Mendonsa let the trees get a little too tall …

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

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

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

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

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

– Tom Root

A GAME OF INCHES

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

Life imitates art, I guess. Last weekend, I hauled away our 25-year-old shed. I am replacing it with a newer, larger shed – complete with electricity, windows, and (if I have anything to do with it) a beer refrigerator. Replacing it will come with a set of problems, specifically a line of arborvitae trees, standing behind the shed along the property line.

The arborvitae were tiny little shrubs when our next-door neighbor (two owners ago) planted them in the late 1990s. Now, they’re monsters.

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

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

It seems strange that a matter of inches separates the trees I can trim with abandon from the trees I cannot touch without my neighbor’s permission. (I have a great neighbor, by the way, so it is probably not a problem).  Nevertheless, the perverseness of the interplay between boundary trees and encroaching trees that stand entirely on land other than one’s own puzzles and irritates me, both academically and legally.

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

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

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

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

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

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

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

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

The Court held that the statute dictated its holding that the owners of adjacent tracts of real estate own all trees growing on their common boundary line as tenants in common. Tenants in common may not unilaterally cut down or remove such commonly owned line trees.

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

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

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

– Tom Root

THE OYES DON’T HAVE IT

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

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

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

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

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

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

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

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

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

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

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

The Oyes appealed.

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

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

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

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

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

– Tom Root

RIGHT THING, WRONG REASON

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

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

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

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

Truly, there’s nothing new under the sun.

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

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

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

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

The Gostinas appealed.

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

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

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

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

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

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

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

– Tom Root

BLINDED BY THE LIGHT

None of us really knew what the lyrics were to that great piece of mid-’70s music by Manfred Mann’s Earth Band (written and first recorded by Bruce Springsteen). You know, Springsteen wrote the second line as “cut up like a deuce.” It wasn’t until Manfred Mann rewrote the line as “revved up like a deuce” that the mondegreen became a reference to a feminine hygiene product.

But we digress. We’re really talking light and soybeans here. Recently, I read a 2013 book on light pollution called “The End of Night,” completing it all by the light of the nearby church parking lot LEDs that burn at 3 a.m., illuminating the lot and the surrounding neighborhood like a high-security prison.

It all reminded us how soybeans like the dark, and about the plight of Farmer Smalley.

Farmer Smalley raises soybeans in Wyandot County, Ohio. When the Ohio Department of Transportation installed high mast lighting at the US 30/US 23 interchange, Mr. Smalley’s soybeans would not flower and flourish under the bright nighttime lights. This effect is apparently not unknown. He sued the DOT in the Ohio Court of Claims, seeking damages in a self-written complaint.

The Clerk heard the matter administratively and concluded that the lights were not a nuisance, apparently because of the benefit they provided to the motoring public. However, the loss of two acres of beans did constitute a constitutional “taking of property” for which he should be compensated. The damages were pretty meager even for 2007: $512 plus his $25 filing fee.

Still, the Clerk did not dismiss out of hand the notion that light pollution could constitute a nuisance in some circumstances, those where the social benefit of the light was insignificant next to the interference caused to the neighbor.

A few months later, the full Court of Claims reversed the judgment. It held that the Ohio Constitution did not permit compensation for consequential damages to property, only for the actual taking of property. Because of that. Farmer Smalley’s loss was not compensable.

Even so, both the Court and the Clerk apparently accepted the notion that the light pollution damaged Smalley’s property. The damage, however real, could not be compensated.

Smalley v. Ohio Dept. of Transportation, 142 Ohio Misc.2d 27, 869 N.E.2d 777, 2007-Ohio- 1932 (Ohio Ct.Cl., Mar. 15, 2007). Farmer Smalley has a soybean field next to a four-lane highway intersection. The Ohio Department of Transportation constructed high-mast lighting at the intersection in 2005, and since then, Farmer Smalley’s soybeans have failed to mature during the growing season. Smalley was forced to mow down two acres of failed crop, a failure he attributes to the lighting. He lost about 120 bushels of beans, which — at $6.00 a bushel — were worth $720. (These days, they’re $13.25 a bushel).

Farmer Smalley sued the DOT in the Ohio Court of Claims. DOT admitted it had installed the mast lighting, which it said was intended to “safely illuminate the expressway.” DOT argued the installed lights “are the safest and most efficient lighting source given the traffic flow and lighting required at interchanges.” It admitted that light did “occasionally bleed onto adjacent property [and] there is little doubt that defendant’s light encroaches upon plaintiff’s property.” It argued, however, that it could not be held liable for any damage to the plaintiff’s bean crop caused by its light encroachment. It also argued that Farmer Smalley’s cost of raising the beans was $256.47 an acre, reducing his net loss to $512.94.

Held: The Clerk of the Court held that the light pollution was not a nuisance. However, he found that the harm the farmer suffered was different in kind from the harm suffered by the general public, as required to establish a taking under the “Takings Clause” of the Ohio Constitution.

It appears that farmer Smalley filed his complaint himself, because DOT flailed about in its defense as if it wasn’t sure where the farmer was going. It argued at length that its lighting was not a nuisance, because Smalley had offered no proof that DOT was negligent in erecting the lighting. It asked the Court to weigh the benefit that the high mast lighting gave to thousands of motorists against the harm the lights caused the plaintiff in destroying two acres of his bean crop.

The Clerk sagely noted that DOT “… essentially proposed that plaintiff should have to bear a financial burden for his crop loss in a situation where he was legally using his land for a specific valuable purpose and the harm caused was attributable to the acts of DOT.”

He defined an absolute nuisance as a distinct civil wrong arising from the invasion of a legally protected interest, consisting of unreasonable interference with the use and enjoyment of another’s property. Such a nuisance was the doing of anything without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his or her legal rights, or the collecting and keeping on one’s premises of anything inherently dangerous or likely to do mischief, if it escapes, which, escaping, injures another in the enjoyment of his legal rights. A qualified nuisance, on the other hand, was distinguished from absolute nuisance as being dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm which, in due course, results in injury to another.

Considering the utility of the high mast lighting to the motoring public, the Clerk correctly concluded that the lighting was neither an absolute nor qualified nuisance. But that didn’t mean that Mr. Smalley was out of luck. Under the “Takings Clause,” any taking—whether physical or merely depriving the owner of an intangible interest appurtenant to the premises—entitles the owner to compensation. To establish a taking, a landowner must show a substantial or unreasonable interference with a property right, and that interference may involve the physical taking of real property or the deprivation of an intangible interest in the premises. Something more than the loss of market value or loss of comfortable enjoyment of the property is needed to constitute a taking under the “Takings Clause.” The governmental activity must physically displace a person from space in which he was entitled to exercise dominion consistent with the rights of ownership. To constitute a taking, the plaintiff must suffer an actual harm that differs in kind, not just in degree, from that suffered by the general public.

Later, the full court reversed on different grounds, holding that the Ohio Constitution did not permit compensation for less than a full loss of land.

Nevertheless, the notion that light can constitute a nuisance and that a property owner suffering from light shining onto his or her land from another location appears to be accepted.

– Thomas L. Root