Case of the Day – Thursday, March 26, 2026

Posted on March 26, 2026 by TLRoot tagged.

ANGELS WITH DIRTY WINGS

Any fan of the Christmas comedy hit of the 1990s, Home Alone, remembers Angels with Dirty Wings. It was the fictional film noir movie that the kid protagonist played repeatedly. The mobster’s taunt –“Keep the change, ya filthy animal” – punctuated with a spray of .45 caliber bullets from a Model 1928 Thompson submachine gun – was used as a sound effect, part of the boy’s plot to keep the bad guys at bay.

In today’s case, the angel is Angel’s Path, a developer, and the dirt on its wings slid off a big mound the company put right on its property line as it built houses. The neighbors didn’t much like the dirt sliding into their back yard, and weren’t big fans of the stagnant water that collected after every rainstorm. But when Angel’s Path asked for summary judgment on the trespass and nuisance claims the Peters brought, for some reason, the couple opposed it on the cheap, with an affidavit from Mr. Peters and a bare letter from their engineer.

It’s seldom a good idea to save money at the most crucial moment in the litigation. Better to adhere to the old law school maxim, “too much is not enough.” You have affidavits from five experts? Use ’em all. You have five boxes of documents? Attach ’em. Opposing a motion for summary judgment is no time to spare the horses. Here, Mr. Peters should have had an affidavit from his engineer, his own survey done by a registered surveyor and recorded down at the county building, and enough pictures of shifting dirt piles and standing water to start his own Instagram site.

But he didn’t. The trial court granted summary judgment to Angel’s Path, finding the survey of property lines — showing the dirt piles on its own land — more persuasive than Mr. Peters’ affidavit claim that the dirt had sloughed over the line. Peters’ affidavit was “self-serving,” the trial judge complained.

The Court of Appeals reversed. Sure, the affidavit may be a little self-serving, the Court said, but for purposes of summary judgment — a fairly high bar for a defendant to leap — the Court had little problem believing that a property owner knew where his own boundary lay. The summary judgment test, after all, is whether the evidence, taken in the light most favorable to the party against whom summary judgment is sought, shows there’s no material question of fact.

This standard required that the trial court assume that any reasonably detailed facts Mr. Peters raised in his affidavit were true. If, after doing this, the court still believes that Peters was not entitled to a judgment, then summary judgment could go for Angel’s Path. It was pretty clear that Mr. Peters was going to need a whole lot more persuasion at trial to pull the halo off Angel’s Path, but for now – at the summary judgment stage– his showing was enough to stay in the hunt. Just barely.

Incidentally, this case was brought with a companion case from the Kramers, who sued Angel’s Path, too. That decision is an interesting study in nuisance and trespass. We’ll consider that decision tomorrow.

Peters v. Angel’s Path, L.L.C., 2007-Ohio-7103, 2007 Ohio App. LEXIS 6211, 2007 WL 4563472 (Ct. App. Ohio, 2007). Clarence and Nanette Peters complained that Angel’s Path, LLC, a developer, damaged their two residential properties. As a result of residential property development by Angel’s Path, dirt mounds at the edge of the development property caused water run-off and flooding on their adjacent land. They sought restraining orders to prevent Angel’s Path from trespassing on their properties or continuing to alter the natural flow of water, as well as damages.

Angel’s Path filed a motion for summary judgment, arguing (1) that the earth mounds did not cause run-off to the Peters property or any sinkhole conditions and, therefore, were not a nuisance and (2) that their surveyor said that the mounds did not encroach upon appellants’ property, so no trespass had occurred. The trial court also granted summary judgment against the Peterses on both their nuisance and trespass claims. The Peterses appealed.

Held: Summary judgment was reversed. A “nuisance” is the wrongful invasion of a legal right or interest. A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. In order for a private nuisance to be actionable, the invasion must be either intentional and unreasonable, or unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

If the private nuisance is absolute, strict liability will be applied. By contrast, a qualified nuisance is premised upon negligence, essentially a negligent maintenance of a condition that creates an unreasonable risk of harm. To recover damages for a qualified nuisance, negligence must be averred and proven. A qualified nuisance is a lawful act so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.

Where damage to one property by water run-off from an adjacent property is alleged, Ohio has adopted a reasonable-use rule. A landowner isn’t allowed to deal with surface water as he or she pleases, nor is the owner absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Instead, each landowner over whose property water flows is allowed to make a reasonable use of the land, even though the flow of surface waters is altered thereby and causes some harm to others. He or she incurs liability only when the harmful interference with the flow of surface water is unreasonable.

In answer to Angel’s Path’s motion for summary judgment, Mr. Peters provided an affidavit along with photos that claimed the mounds created by Angel’s Path had slid across the common property onto his property. His affidavit also said that Angel’s Path workers entered his property to cut the weeds because the slope of the mounds didn’t allow appropriate maintenance without entering his land. Finally, the Peters’ affidavit stated that the back portion of his property was now flooding and would not dry out, preventing his use of the land for rental or farming. Peters also included as a letter from his expert stating the mounds blocked the natural flow of the water, creating a “permanent pond,” and suggesting possible ways to eliminate the problem.

The Court said that Mr. Peters’ testimony about the location of his property lines, although perhaps not the best evidence to rebut a commercially prepared survey, was something presumably within the property owner’s personal knowledge. Therefore, despite the fact that he had not yet had a separate survey done, the Court would not disregard the affidavit. At the same time, the Court criticized the trial judge for placing too much weight on the fact that Angel’s Path plans had been approved by the local county engineers. The Court of Appeals said that while the county engineer and other agencies approved the Angel’s Path development plans, including the projected effects that it might have on surrounding properties, “such facts are of little consequence and comfort when examining the real-world results of the construction…”

Here, for the purposes of summary judgment, the Court concluded that the Peterses had presented prima facie evidence to establish causes of action for private nuisance and trespass. Whether Angel’s Path’s actions were reasonable, intentional, or negligent, the Court said, are decisions to be made in a trial and not on summary judgment.

– Tom Root

And Now The News …

Posted on March 26, 2026 by TLRoot tagged.

NBC News, March 25, 2026: Clones of Stumpy, Washington, D.C.’s beloved cherry blossom tree, have flowered for the first time

Clones of the scraggly, beloved cherry blossom tree felled two years ago in the nation’s capital have flowered for the first time this spring, reaching what federal officials described Wednesday as a “pinnacle achievement.” The National Arboretum said in a statement that the plant material used to propagate the Yoshino cherry clones was collected in the summer of 2024. It was one of thousands that line the banks of the Tidal Basin reservoir between the Thomas Jefferson and Franklin Delano Roosevelt memorials. The new trees are healthy and have put on substantial growth since they formed their own root systems, according to the statement. They will remain at a nonpublic research area until the National Park Service can replant them, perhaps as soon as next spring, the arboretum said…

Valencia, California, The Signal, March 25, 2026: Group threatens city over oak-tree changes

It wasn’t a love of the oaks, appreciation for the shade or a love of the city’s bucolic greenbelt, but a legal threat letter and a closed-door decision that saved the trees this week, according to a report out of closed session from City Attorney Joe Montes. On Tuesday, the city had previously planned a second reading and approval of changes to its oak-tree ordinance that the City Council had expected to finalize this week. Then a council agenda was released that called for a special closed-session conference with the city’s attorney, Joe Montes, who shared the following in his report out of his closed-session talk with the council: “With regard to the first closed-session agenda item: In light of the environmental issues raised, with the unanimous direction of council, staff is going to take another look at this item rather than schedule it for a second reading at this time…”

Politico, March 24, 2026: Lithuanian oak defeats Polish elm in Eurovision of trees

A Lithuanian oak was named the 2026 European Tree of the Year on Tuesday, putting an end to four years of Polish domination in the Eurovision-like contest. The Oak of Laukai, a 400-year-old specimen standing proud in the rural community of Rukai, was crowned at a ceremony in Brussels’ European Parliament, defeating a wild apple tree overlooking a Slovak village and a crooked elm leaning over the moat of a Polish castle. “This is truly an exceptional, historic moment for Lithuania … At one point, this tree was almost forgotten, but people came together, took care of it and gave it a new life. Today, we’re here because of that,” said a Lithuanian representative in accepting the award, while Polish commenters implored officials to “stop the count” on the ceremony’s YouTube stream. It’s the first time a Lithuanian tree has won the prize in the contest’s 15 annual iterations. The Oak of Laukai’s victory follows a change in the online voting system that used to favor bigger countries and last year fueled a bitter feud between Polish and Spanish tree lovers…

Toronto, Ontario, City News, March 24, 2026: Oakwood Village homeowner alleges developers tried to cut down a tree on his property without permission

An Oakwood Village homeowner is alleging chainsaw-wielding developers tried to cut down a tree on private property without his permission. Ian Pearson tells CityNews Modcity, a development company accused of cutting down trees at multiple properties across Toronto, had workers come to his property and try to cut down his tree. “There were guys with chainsaws back here and they had taken out two sections of my fence,” said Pearson. “The property owner had told them that the property line was on the other side of this tree, that I had built my fence into his property, and that it was his tree and he was cutting it down.” Pearson said Modcity bought the house behind him with plans for a major redevelopment. Before they even had a permit to build at the address on Glenholme Avenue, workers were hacking down the tree at the corner of Pearson’s property…

Ann Arbor, Michigan, News, March 23, 2026: Residents fought to save trees from roadwork. A judge just ruled against them.

The removal of dozens of trees for roadwork just outside downtown Chelsea will move forward despite pushback and a lawsuit aimed at stopping it. On Monday, March 23, a Washtenaw County judge ruled in favor of the Washtenaw County Road Commission in a lawsuit filed by residents over the planned removal of trees on a section of Werkner Road in Sylvan Township just outside downtown Chelsea. Tree clearing will happen in advance of the two-part road improvement project on the road between Sibley Road and M-52. The road commission is gearing up to remove 42 trees from along the road right-of-way where a portion of the road needs to be widened for shoulders and drainage improvements. All of the trees to be removed are located between an entrance to a city water plant south of Ivy Road and M-52. That stretch of Werkner Road needs more extensive repairs and upgrades than in the remainder of the construction project. It is where the road will be widened by a total of 8 feet for road shoulders, including 2 feet of pavement and 2 feet of gravel shoulders on each side of the road. The road commission will begin marking trees as they finalize the timeline for removal with a contractor, the road commission announced Monday. Tree removals will cause brief traffic delays, with flaggers managing traffic. Residents Gregory Johnson and Nan Spike filed suit in February under the Michigan Environmental Protection Act (MEPA). They were seeking to prevent the removal of the trees. Spike lives on the road, and Johnson owns property there and lives nearby…

Olympia, Washington, The Olympian, March 23, 2026: Is there enough money to save this 400-year-old oak tree in Thurston County?

The City of Tumwater now has a plan to keep the 400-year-old Davis Meeker Garry Oak tree standing, almost two years after former Mayor Debbie Sullivan called to cut the tree down after a large branch fell near Old Highway 99. The plan consists of a three-year maintenance plan. However, the funds the city has set aside to care for the tree might not cover what needs to be done in the first year. The city’s Historic Preservation Commission unanimously approved the work plan for the tree on March 12. City spokesperson Jason Wettstein said the plan will be brought to the City Council in late April or early May. A Thurston County Superior Court judge ruled in December that the city can’t cut down the historic tree without prior approval from its Historic Preservation Commission…

Adirondack Explorer, March 23, 2026: How to spot old trees and old-growth forests in the Adirondacks

Old trees have a special beauty and significance. They inspire awe. When hiking through the Adirondack Park’s forests, most of which have regrown beautifully following logging in the 1800s, it is a special treat to find these ancient residents. Perhaps surprisingly, very old trees are quite easy to find. Many Adirondack logging operations were selective—involving harvest of the most valuable softwood tree species: white pine, spruce and hemlock. Hardwood trees, including beech, birch and maple, were often left in place. Even in areas where logging nearly denuded large tracts (“clear-cuts”), individual trees with blemishes, like large fire scars or burls, were often skipped. Thus, old trees can still be found growing in otherwise second-growth forests. Despite the intense logging history of the Adirondacks, some patches of old growth forests survived. Two fabulous and easy-to-access examples can be visited on the Cathedral Pines Trail near Seventh Lake and the Ampersand Mountain Trail near Middle Saranac Lake. Many old growth tracts remain undiscovered. This guide has two goals. The first is to help hikers recognize individual old trees that still stand in otherwise second-growth forests. The second is to help hikers recognize those rare tracts of forest that were never logged—the pristine old growth forests…

SuperTalk Mississippi Media, March 23, 2026: Mississippi landowners urged to be on alert for tree-killing beetles

As temperatures rise in Mississippi, landowners are urged to be on the lookout for one pesky insect known to wreak havoc on trees. Forestry specialists with Mississippi State University Extension Service warn that bark beetles could be on the hunt for trees to destroy, especially after January’s ice storm made much of the state’s land vulnerable. Of Mississippi’s five species of bark beetles, the three species of Ips engraver beetles and southern pine beetles, or SPB, raise the most concern, officials say.Pine bark beetles are known to kill stressed pine trees in Mississippi by boring into the cambium layer and feeding on vascular tissues, which disrupts water and nutrient movement. “Any of our five species of bark beetles will take advantage of stressed pines, particularly broken limbs and trunks from the recent ice damage,” MSU Extension forestry specialist Butch Bailey said…

Reasons To Be Cheerful, March 20, 2026: Can a Legendary Tree Keep Louisiana’s Coastal Lands From Slipping Away?

Bald cypress trees have loomed over Louisiana’s landscape for thousands of years, their feathery leaves offering shade from on high. In a state that contains 40 percent of the wetlands in the Lower 48, the cypress has always been a natural companion for residents. It thrives in soggy bottoms that would smother most trees, lives for hundreds of years under the right circumstances, and brings comfort to Louisianans “like warm bread at home,” as Blaise Pezold, an ecosystem restorationist, puts it. As the state tree, the cypress is “as legendary [in Louisiana] as the chestnut tree in Appalachia.” Now, it’s also helping to bring back the wetlands. Across southern Louisiana, the bald cypress is at the center of efforts to reverse the crisis of coastal land loss that has cost Louisiana 2,000 square miles of coastal land over the last century. Over the next 50 years, that figure could swell to 5,000 square miles without intervention…

Las Vegas, Nevada, KNPR Radio, March 22, 2026: Tree pruning in the desert: Norm Schilling’s guide to wind-ready trees

Las Vegas arborist Norm Schilling explains how to prune trees for desert wind, why most people remove too much, and how to spot a bad tree trimmer before it’s too late.
Here it is, March already, and I’m standing in my garden listening to the wind try to rearrange everything I’ve spent years putting in place. It’s been a strange year so far — temperatures swinging from unseasonably high to bitterly low — but the wind is the one constant. It always arrives in March, and it always makes me think about my trees. Because trees are structural beings. They don’t get to duck inside or brace themselves against a wall. They stand there and absorb every gust, and that wind stress accumulates. Which is why March, for me, is really about pruning — and about understanding the principles that separate good pruning from the kind that can actually destroy a tree. Here’s the first thing I want every Southern Nevada gardener to take to heart: In any given year, try not to remove more than about 25 to 30 percent of a tree’s total foliage. That’s your ceiling. And you should adjust it downward based on three factors — if the tree is older, if it’s diseased or stressed, or if it’s a species that already struggles in our climate. Any one of those conditions means you want to prune less. Sometimes 5 or 10 percent is plenty. Sometimes the best thing you can do is leave it alone entirely…

New York City, The Wall Street Journal, March 20, 2026: ‘The Lawrence Tree’: Georgia O’Keeffe’s Wondrously Painted Pine

In the summer of 1929, Georgia O’Keeffe discovered New Mexico. Although she had already received a good deal of acclaim, O’Keeffe had begun to feel oppressed by her life in New York with her husband, the pioneering photographer and art dealer Alfred Stieglitz. The Southwest was soon to become home, for a portion of each year, and it would also provide virtually inexhaustible subjects for her iconic paintings. The mountains, flowers and animal skulls she depicted have made her one of the most widely known and beloved 20th-century American artists. Yet one magnetic painting is atypical of that first stay in the Taos area: a striking ponderosa pine. The tree sat on the Kiowa Ranch, a property that noted arts patron Mabel Dodge Luhan had given to Frieda Lawrence, wife of the British writer D.H. Lawrence, in 1924 in exchange for the manuscript of his novel “Sons and Lovers.” “The Lawrence Tree” is a beautifully crafted painting. Trunk, branches, leaves and night sky form an intricate pattern, creating the taut balance between image and abstract form that O’Keeffe was achieving in many of her paintings of the 1920s…

Detroit, Michigan, WDIV-TV, March 20, 2026: Sterling Heights senior out $3K because manufactured home community wouldn’t remove dangerous tree

A senior in Sterling Heights is out thousands of dollars after being forced to remove a towering tree from her front yard at a manufactured housing community. She’s turning to Local 4 to get answers after publishing several stories about issues plaguing the manufactured housing community. Susanne DeRosa has owned her home in Rudgate Manor for nearly 50 years. For most of them, that tree offered more than shade, it held history. Most summer days, you’d find her granddaughter out front swinging and smiling. “A lot of me is just angry that I had to get rid of it, that nobody would take care of it, that nobody would help me out with it,” DeRosa said. Decades ago, the owner of the park at the time noticed an issue with the tree. “They noticed my tree with the branches, one was headed my way, one heading toward the neighbor,” DeRosa said… For years, it worked. “In 2019, that cable broke,” DeRosa said. After that, it wasn’t just an eyesore; it was an accident waiting to happen, one storm away from crashing onto her house. DeRosa kept track of everything, starting with management. By then, ownership of the park had changed to Sun Communities. “They said, ‘That’s your problem. It’s on your property,’” she said. “I’m sorry, but this is your property. I shouldn’t have to fix a cable you put on my tree, or your tree…”

Cheyenne, Wyoming, Cowboy State Daily, March 18, 2026: Hunters Say BLM Wiped Out Favorite Hunting Location With Tree Removal

Russian olive trees are widely regarded as an invasive species and the general rule among land management agencies is to get rid of them. But when that was done on Bureau of Land Management (BLM) land along Dry Creek near Greybull, it ruined some of the best pheasant hunting in the entire region, some sportsmen said. To make matters worse, the public apparently wasn’t informed or given a chance to comment on the Russian olive removal plan before it happened, Colin Simpson of Cody told Cowboy State Daily. “It’s hard to understand why that action would be taken on public land without notification of the public beforehand,” said Simpson, a former Wyoming legislator and son of the late U.S. Senator Alan Simpson. He understands the need to control Russian olive as an invasive plant species, but thinks officials went overboard in Dry Creek…

Washington, DC, WUSA-TV, March 18, 2026: Tree safety under review after deadly crash, NPS conducting additional assessments along affected areas

The National Park Service says it is reviewing maintenance practices and conducting additional assessments after two separate crashes in which trees fell onto moving vehicles along parkways in the D.C. region, including one that killed a Frederick man. The crashes, which happened just one day apart, are raising new concerns about roadway safety and whether more could have been done to prevent them. Elik Topolosky, 39, was killed Thursday when a tree fell onto his car along the George Washington Memorial Parkway. His brother, Uri Topolosky, described the loss as sudden and devastating. “It’s a one in a trillion insanity. What are the chances a tree comes down on a highway when you are driving, and he was the only victim?” Uri Topolosky said. “It’s just so heartbreaking right now.” Uri Topolosky said his family has been searching for answers about how the incident happened and whether it could have been prevented…

Denver, Colorado, KUSA-TV, March 18, 2026: Winds topple historic Colorado tree

A massive Engelmann Spruce believed to be the oldest and tallest tree in Georgetown came crashing down Monday, destroying a 50-year-old gazebo and damaging historic park infrastructure after powerful winds swept through the state. Estimated to be 150 years old and planted when Georgetown City Park was established in 1890, the tree snapped under the force of recent high winds. The falling tree narrowly missed a historic fountain and some of Colorado’s first electric lights before striking picnic tables, historic benches, and the beloved gazebo. Longtime Georgetown resident Peter Werlin, who has lived in the area since 1964, described the moment of impact. “At 10 a.m., we were over in our house and we heard a tremendous bang,” Werlin said. For Werlin, the loss was deeply personal. “I was married in 1988, so our wedding photos were taken inside the gazebo, as are so many people from Georgetown,” Werlin said. “Everybody’s very sad about it…”

Providence, Rhode Island, WPVI-TV, March 18, 2026: Arborist urges homeowners to check trees for hidden dangers

Cleanup crews were still at work on the 100 block of Timber Springs Lane in Exton, Chester County, where a tree crashed into a home Monday night. “All of sudden it was like a bomb hit…the whole house shook and the tree fell on top of the house,” said homeowner Jacqui Mershurle. The tree narrowly missed seriously injuring her adult son, who was sleeping in his bedroom when it came down. “He said if he’d slept on the other side of the bed…he wouldn’t be here,” Meshurle said. While her son survived, another incident ended tragically. Authorities said Gilberto Senecio Feregrino was killed while cleaning up a fallen tree on Earles Lane. As he worked, a tree from a neighboring property suddenly fell, striking him. “We’re looking for mortality in the upper canopy…so dead limbs directly over our heads,” said John Rockwell Hosbach, a consulting arborist who evaluates trees and testifies in civil cases…

St. Louis, Missouri, KMOV-TV, March 16, 2026: Tree Trouble: Warning signs a tree could come down in a storm

Strong winds and stormy weather like we’ve been having lately can bring weakened trees and limbs down on property, causing thousands of dollars in damage. The best way to prevent it is to catch disease and weakness in trees before they can fall over. We went to Forest Park with Alec Hall, ISA Certified Arborist with The Davey Tree Expert Company, to talk about the warning signs that a tree may need treatment or removal. He pointed out a tree with a wound channel in the trunk. “Most certainly when you see something like this, with the heartwood exposed, it’s worth having an arborist look at it,” Hall said. “Additionally, we can see carpenter ants are starting to boar the area out,” he said, pointing out tiny holes in the heartwood. “Now carpenter ants don’t kill trees, but they can hurt the integrity of the tree by taking out the heartwood,” he explained. “Another thing we want to watch for with our trees is if we have an area where the roots seem to be maybe moving, or where the roots are may be more exposed. That’s worth keeping an eye on,” Hall said…

Charlotte, North Carolina, WCNC-TV, March 16, 2026: Who’s responsible if a tree falls on your property?

A line of strong thunderstorms took down trees and power lines Monday, leaving residents across the Charlotte area with a trail of damage to clean up.
The damage left many people wondering who is responsible for the cleanup if a tree from their neighbor’s yard falls onto their property and damages their home or belongings. The Insurance Information Institute says if a tree lands on your home, you should immediately file a claim with your insurance company. After you file the claim, an insurance adjuster may collect your neighbor’s information in a subrogation process. If this happens and your insurer is successful, you may be reimbursed for your deductible.
Attorney Gary Mauney said if you notice a tree in your neighbor’s yard is rotten, you should tell them so they can fix the issue. And if they don’t? “But it matters if you’re proving negligence against someone, then one of the ways that it would help you to prove that, of course, is if you could show that they knew that the tree was rotten or infirm, or that there was something wrong with the tree,” Mauney said…
Reno, Nevada, Gazette Journal, March 16, 2026: Reno’s least-favorite tree back in full bloom

Reno’s least favorite tree, the Bradford pear, is back in full bloom. The City of Reno’s Urban Forestry Commission cares for 2,137 Bradford pear trees. That makes it the most common publicly maintained tree in the city, at about 8% of the total inventory. That doesn’t factor in the thousands more that grow on private property in the city. And for a few weeks each spring, they’re utterly offensive to everyone within sniffing distance. The tree’s specific odor is in the nose of the beholder, although people generally agree that it’s putrid. The good news: The city has a self-imposed moratorium on planting new ones on public property. In fact, the number of Bradford pear trees on city property is down from last year’s number…

Toledo, Ohio, WTOL-TV, March 16, 2026: Tree removal companies see increase in calls after wind storms bring down hundreds of trees

Strong winds over the past couple of days have brought down trees across the area, bringing headaches for homeowners but lots of business for tree removal companies. Steve Pryba, owner of Steve’s Tree Service, said when there are big storms like this, business is non-stop. “Insane,” he said when talking about the last couple of days. “Call after call.” Pryba estimated he’s gotten at least 150 calls since Friday about downed trees, removals and cleanups. He had been at multiple sites throughout Monday, including one house where a giant tree partially fell on a house. “We got it off the house,” he said. “The guy got lucky…”

Case of the Day – Wednesday, March 25, 2026

Posted on March 25, 2026 by TLRoot tagged.

CRY ME A RIVER

Law students learn in first-year civil procedure that it’s entirely proper to file utterly inconsistent pleadings. For example, if a complaint is that the defendant borrowed the plaintiff’s bucket and broke it, the defendant can answer that (1) he never borrowed it; (2) when he returned it, it wasn’t broken; and (3) it was broken when he borrowed it. And lawyers wonder why there are so many attorney jokes …

But there are limits, and complaints in civil actions should not be completely mindless in their allegations. In today’s case, landowner Fischer changed the slope of his land, rebuilt a driveway and installed a retaining wall. His neighbor, Christiana, complained that the effect of his neighbor’s construction project was to send unwanted drainage onto his property. Fischer was unimpressed. “Cry me a river,” you can imagine him saying. Christiana’s lawyer – who perhaps was charging his client by the word – obliged, tearfully filing a four-count complaint claiming negligence, recklessness, nuisance and trespass.

Fischer filed a motion to strike the recklessness and trespass counts. He argued that the complaint — even assuming everything Christiana has alleged was true — simply didn’t state a claim. Christiana depended on pretty much the same facts for recklessness as he did for negligence, except in the recklessness count, he charged that, on top of everything else, Fischer hadn’t gotten permits from the town for the project. Well, maybe that was a little sloppy, at least as far as paperwork goes, but the Court held that Fischer’s lack of a few permits didn’t constitute recklessness towards Christiana. The recklessness count was bounced.

Fischer argued that the trespass count should be dismissed because there was no allegation that he intended for the water to flow onto Christiana’s land. The Court disagreed with Fisher’s novel interpretation of trespass, holding that Fischer didn’t have to intend that the water trespass on Fischer’s land, just intend the act – that is, the diversion of the water – that resulted in the trespass. The distinction is subtle but crucial.

Thus, the trespass count remained, an important holding: the Court said, in essence, that without ever setting foot on Christiana’s property, Fischer could have trespassed just by being negligent in the way he altered water flow.

Christiana was upset because Fischer’s retaining wall left his place a little soggier than it had been before …

Christiana v. Fischer, 2007 Conn. Super. LEXIS 2660, 2007 WL 3173949 (Conn. Super.Ct., Oct. 17, 2007). Christiana sued Fischer after Fischer altered the slope of his land and built a retaining wall. Christiana sued for negligence, recklessness, nuisance, and trespass. Fischer moved to strike the recklessness and trespass counts as insufficient to state a cause of action.

Held: The Court split its holding, striking the count for recklessness but not the trespass count. Recklessness is a state of consciousness with reference to the consequences of someone’s acts, more than negligence, more than gross negligence. While the actor’s state of mind amounting to recklessness may be inferred from conduct, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Reckless conduct takes on the aspect of highly unreasonable conduct involving an extreme departure from ordinary care in a situation where a high degree of danger is apparent.

In Count 2, Christiana repeated his allegations of negligence and additionally alleged that Fischer rebuilt a driveway without a building permit and in violation of the town’s zoning regulations. Christiana, however, made no allegation that Fischer was made aware prior to completion of the alteration and construction work of any problems that he was causing that would drain water onto Christiana’s property. The Court found that the allegations failed to support a cause of action for recklessness.

As for the trespass count, Fischer argued that Christiana failed to allege any intentional conduct essential to state a cause of action for trespass, pointing out that there was no allegation that the defendants intended to direct water or other debris onto the plaintiffs’ property or that they acted knowing to a substantial certainty that the water or other debris would enter the plaintiffs’ property. But the Court held that to make out a trespass, a plaintiff had to have ownership or possessory interest in the land; there had to be an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; the act had to be done intentionally; and the act had to cause direct injury.

In his complaint, Christiana alleged that he had notified Fischer on several occasions of severe drainage problems resulting from the land alteration and construction and that Fischer failed to take corrective action. The Court found that Christiana’s allegations were sufficient to establish a cause of action for trespass.

– Tom Root

Case of the Day – Tuesday, March 24, 2026

Posted on March 24, 2026 by TLRoot tagged.

THE MASSACHUSETTS RULE GETS FLUSHED

Greed may be good … but it doesn’t get a lot of love from the court.

Gloria Lane was a down-on-her-luck middle-aged woman who managed to just eke out an existence with her disabled brother in an old house. Their place was next to a rental property, a house equally as old, but owned by a corporate slumlord, W.J. Curry & Sons.

Do you see where this one is going? Hard cases can make bad law. Even where the result isn’t necessarily wrong — and we’re not hard-hearted enough to criticize people who were too poor to afford to fix the bathroom — cases are fact-driven.

We can imagine the scenario: a faceless corporation rolling in dough, too chary to keep up its properties and too avaricious to pay damages inflicted on the impoverished neighbors. That, at least, is the innuendo.

The Curry property included three large, healthy oak trees near the boundary with the Lane homestead. The trees are much taller than either of the houses, and those towering oaks featured limbs that protruded over Gloria Lane’s house and caused manifold problems. First, the court said, she had to replace her roof 15 years before the lawsuit “because the overhanging branches did not allow the roof to ever dry, causing it to rot.” She complained that prior to replacing the roof, “[e]very roof and wall in [her] house had turned brown and the ceiling was just falling down. We would be in bed at nighttime, and the ceiling would just fall down and hit the floor.”

In 1997, one of the oaks shed a large limb, which fell through the Lanes’ roof, attic, and kitchen ceiling. Rain then ruined her ceilings, floor, and the stove in her kitchen. The Lanes were physically unable to cut back the limbs hanging over the house, and they couldn’t afford to hire it done. For that matter, Gloria couldn’t even afford to fix the hole in her roof.

If that weren’t enough, the oaks’ roots clogged the Lane’s sewer line, causing severe plumbing problems. Gloria tried to chop the encroaching roots away from the sewer over the years, but they kept growing back and causing more plumbing problems. At the time of the lawsuit, she hadn’t been able to use her toilet, bathtub, or sink in two years because of the clogs. Instead, she went to the neighbors’ house (presumably not the Curry rental) to use the toilet. Meanwhile, raw sewage was bubbling into her bathtub, and the bathroom floor had to be replaced due to toilet backups and water spills.

Gloria told the trial court that “everything is all messed up. I can’t bathe. I can’t cook. I don’t want people coming to my house because it has odors in it, fleas, flies, bugs. It’s just been awful for me.” Ms. Lane, already under a psychiatrist’s care, said she “just can’t take too much more.”

After the branch punched a hole in her roof, Gloria asked the owner of W.J. Curry – one Judith Harris, a corporate minion who was neither W.J. nor any of his sons – to do something. She had a tree service trim the lower branches, but not the ones that would have been more expensive to reach. This didn’t solve the problems. When Gloria complained again, Ms. Harris told Gloria that she was on her own.

Now, boys and girls, these are hard facts. We aren’t dealing with the Schwalbachs, who were perfectly fit and reasonably flush, complaining to an underfunded cemetery association about a few twigs and leaves. Here, we have a dramatis personae that includes – as protagonist – a pathos-inducing poor woman caring for an invalid sibling, and – as antagonist – a soulless corporation destroying her happy home, one dropped limb by one dropped limb by one rotten roof by one clogged sewer at a time. And we’ve got some real damage, too. You try knocking on the neighbor’s door eight times a day and night to use the ‘loo, and see how you feel. Did the Massachusetts Rule have any chance of survival in the face of this heart-wrenching tale?

Of course not. The evil slumlord defendant (and we don’t know that he was evil or even a slumlord, but the story has a life of its own) argued that Tennessee followed the Massachusetts Rule. After all, it pointed out, Gloria was free to fire up her Husqvarna and clamber out onto her roof to cut down the offending limbs herself. Tennessee law firmly established that her remedies were limited to Massachusetts-style “self-help.” That means Gloria should get nothing for the hole in her roof, nothing for her falling plaster, nothing for her waterlogged stove, and nothing for the sewage bubbling in her bathtub.

The trial court agreed with W.J. Curry. It held that while it was “certainly a serious situation that the plaintiff has not been able to use her bathroom for two years … these three trees are alive and living and they do what trees normally do. They produce branches and grow, and they produce a root system. And even though you trim the branches back or you trim the roots back, they are going to produce more branches and more roots.”

Spoken like a judge whose own toilet flushes just fine. The three-judge appellate panel – a trio of jurists who were also not worried about the efficacy of their respective commodes – agreed. They observed that, after all, the trees were not “noxious” (which was a quaint notion championed by Smith v. Holt but since abandoned in Fancher v. Fagella).

The Tennessee Supreme Court reversed, adopting the Hawaii Rule, holding that living trees and plants are ordinarily not nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. When that happens, the Court said, the owner of the tree had some responsibility to clean up the mess. No doubt swayed by the extensive record of travail propounded by Ms. Lane, the Court held that W.J. Curry’s trees clearly satisfied the definition of a “private nuisance.” It sent the case back to the trial court for a remedy to be crafted, one that no doubt included money damages and probably an order that the landlord cut down the oversized trees.

Sure, Gloria … get up there and trim those branches yourself.

Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002). The long-suffering Gloria Lane sued W.J. Curry and Sons, Inc. a landlord owning a rental property next to her house. Over the years, her roof was damaged by branches overhanging from oaks growing on the Curry property, a branch fell, smashing into the home and causing extensive damage, and the root system substantially damaged her sewer system, rendering her home almost uninhabitable.

Gloria sued, asserting that encroaching branches and roots from the Curry trees constituted a nuisance for which she was entitled to seek damages. W.J. Curry responded that Ms. Lane’s sole remedy was Massachusetts Rule-style self-help, and she could not recover for any harm caused by the trees.

The trial court and Court of Appeals agreed with W.J. Curry and Sons, holding that an adjoining landowner’s only remedy in a case like this one was self-help, and that a nuisance action could not be brought to recover for harm caused by encroaching tree branches and roots.

Ms. Lane appealed to the Tennessee Supreme Court.

Held: Self-help is not an adjoining landowner’s sole remedy when tree branches and roots encroach. A nuisance action may be brought when the encroaching branches and roots damage the neighboring landowner’s property.

The Supreme Court held that although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.

Thumbs down to the Massachusetts Rule.

The Court engaged in a lengthy discussion of the various theories of liability adopted in various states, including the Massachusetts Rule, the Hawaii Rule, and the old, pre-Fancher Virginia Rule. The Court decided that the Hawaii Rule should be followed, because it “voices a rational and fair solution, permitting a landowner to grow and nurture trees and other plants on his land, balanced against the correlative duty of a landowner to ensure that the use of his property does not materially harm his neighbor,” while being “stringent enough to discourage trivial suits, but not so restrictive that it precludes a recovery where one is warranted.” The Court criticized the Massachusetts Rule, agreeing with the notion that limiting a plaintiff’s remedy to self-help encourages a “law of the jungle” mentality by replacing the law of orderly judicial process with the doctrine of “self-help.” Yet, the Court said, the Hawaii Rule was consistent with the principle of self-help that Tennessee courts had previously enunciated.

The Court was careful to note that it was not altering existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line – whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property.

– Tom Root

Case of the Day – Monday, March 23, 2026

Posted on March 23, 2026 by TLRoot tagged.

MY DAD’S GONNA SUE YOUR DAD

We had some great trees in our back yard when I was a kid. My parents let each of the four of us children “claim” one of the trees as our own, although I must now confess that the utility of doing so is no longer obvious to me. My sister staked out the sugar maple on the north side of the house, my brothers had a box elder and a red maple, respectively, and I got a magnolia that stood outside the kitchen window.

It’s not like we children had any responsibilities for our trees, either trimming them or raking up their leaves or even pulling suckers off their trunks. We had ownership but no responsibility, which is a great segue into today’s classic case from New Jersey.

I bring up our “claimed” trees because of the young rascal Rick, an ornery kid who lived next door. One warm rainy day in the spring, when intelligent people were inside to avoid getting wet (and you can see what that implies), young Rick was outside playing in the downpour. He somehow decided that conditions were perfect for climbing my magnolia. However, when his foot slipped on a wet branch, gravity ensued. Rick was treated to what would have been a jarring but harmless fall, except for his chin making rather sharp contact with the branch on the way down.

We were blissfully unaware of the life-and-death drama occurring beyond our kitchen window until the next day, when Rick – with his chin stitched and bandaged – told my siblings and me what had happened. He matter-of-factly announced that because of the accident, “My Dad’s gonna sue your Dad!”

I recall being shocked that an injury so directly resulting from Rick’s own knuckleheadedness could somehow strip us of all possessions and leave us living in a cardboard refrigerator carton in the back lot of Brown & Miller’s Hardware. Of course, Rick’s appreciation for the finer points of tort law matched his understanding of gravity, and no suit ever resulted. But I found the idea alarming that merely owning a tree (and letting it be a tree) could make us liable for injury to others.

But the notion is not so ridiculous that people aren’t still trying to sell it to trial courts. Today’s case resulted from a perfectly healthy tree falling from one property onto a garage on another property. The aggrieved property owner argued that the tree was a nuisance because it fell (for whatever reason), and because it was a nuisance, the tree’s owner was liable. When I read the case, I felt that same alarm young Rick engendered in me all over again. Fortunately, the appellate court was not so cowed by the premise that it could not make short work of such a foolish claim.

So, what is the standard to be applied to determine the liability of a landowner for a tree that falls from his property onto his neighbor’s property for no apparent reason?

Burke v. Briggs, 571 A2d 296 (N.J. Super.Ct. 1990). Robert Briggs and the Burkes owned adjoining properties. One June evening, a large white oak tree growing on Bob’s property suddenly fell over onto the Burkes’ property, crushing their garage. The tree appeared to be perfectly healthy, and no one could assign a reason for its falling.

That hardly stopped the Burkes, who sued Bob for negligence but later added a count citing the elements of a nuisance. The Burkes argued Bob was “strictly liable” for the damages caused by the fallen tree because it amounted to a nuisance. Bob countered that liability should be determined on the basis of traditional negligence principles of tort liability. The trial judge agreed with the Burkes, reasoning that the fallen tree constituted a “nuisance” because Bob had failed to use his property in a manner that did “not damage or unreasonably interfere with the use of an adjacent land owner’s property.” The judge said that a private nuisance “imposes a strict liability” on the responsible party, and summarily found for the Burkes without the need for a trial.

Bob appealed.

Held: A nuisance can only be created by unreasonable use of land, meaning that the trial court must look at the circumstances of the case to decide whether Bob was unreasonable in permitting the tree to grow as it did. Thus, the lower court was wrong to decide the matter without a trial.

The appellate court noted the distinction that had arisen in tree law over the years between conditions of land artificially created and those that arise naturally. Historically, if Bob’s tree had been growing there on its own, he would not have been liable for any damage it caused, but if he had planted it or nurtured it, he would be accountable. The appellate panel concluded that the natural-artificial distinction makes little sense in modern life.

The appellate court admitted that “there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance’,” but it nonetheless held that the law was clear enough that a private nuisance must be based on the defendant’s interference with another’s use and enjoyment of his or her own land. The superior court fell back on the Restatement, Torts 2d, for the general rule that

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

The appellate court held that liability without fault should not be imposed “whether that activity be classified as a nuisance or a trespass, absent intentional or hazardous activity requiring a higher standard of care or, as a result of some compelling policy reason.”

In other words, the appellate court said, regardless of whether the falling tree was a nuisance, trespass or negligence, “the issue here should logically depend on whether the offending landowner somehow has made a negligent or unreasonable use of his land when compared with the rights of the party injured on the adjoining lands.”

So, the court concluded that the focus of the case should be on whether Bob was negligent in some way. To figure this out, the trial court should have considered the nature of the incident, the danger presented by the presence of the tree, whether Bob could or should have known of the tree’s condition by making inspections, and what steps Bob could have taken to prevent it from falling onto the Burkes’ garage.

– Tom Root

Case of the Day – Friday, March 20, 2026

Posted on March 20, 2026 by TLRoot tagged.

JUST AN OLD-FASHIONED LOVE SONG …

The other day, I had a faithful reader ask whether he could use the Massachusetts Rule to trim a neighbor’s pesky oak tree back to the property line. “Of course,” I said, with some important caveats.

The question got me thinking last night about the Massachusetts Rule. It’s good sport these days to criticize the Massachusetts Rule — that landowners are limited to trimming tree roots and branches back to the property as the exclusive remedy for encroachment by a neighbor’s tree — as being a relic of a time gone by when everyone lived in a rural or semi-rural area and times were simpler. The more modern Hawaii Rule — that permits a landowner to sue for damages and injunctive relief when the encroachment causes “sensible harm” — makes more sense in urban environments and in our modern-day (and, dare we say, litigious) society.

The Virginia Supreme Court said as much in Fancher v. Fagella. And North Dakota weighed in with Herring v. Lisbon Partners Credit Fund. When it comes to the old Massachusetts Rule, it’s pretty much “you hold him down, and we’ll kick him.”

Call me an apostate, but I’m skeptical that the Massachusetts Rule’s demise is such a good thing. So today, we’ll sing a love song to the Massachusetts Rule. And a reprise of Kentucky’s leading encroachment case provides the perfect illustration. Schwalbach’s neighbor, Forest Lawn Memorial Park, had trees that were dropping leaves and twigs that were as dead as the cemetery’s patrons. When Schwalbach sued, the Court held that the only remedy when branches behave like normal trees – specifically, by dropping twigs and leaves – is Massachusetts-style self-help.

Tennessee criticized the approach 17 years later as old-fashioned in Lane v. W.J. Curry Sons, but the plain fact is that the Hawaii Rule would have had precisely the same outcome: under that rule, branches dropping a normal load of twigs and leaves were not causing actual, sensible harm. No court would have intervened to order any outcome other than the one found in the Schwalbach case.

The case is a perfect example of how the facts of the case — be they extreme (such as in Virginia’s Fancher case or North Dakota’s Herring case) or slight annoyance (such as in today’s case) — drive the decisions. It’s not just that hard cases make bad law, as I pointed out yesterday: the law is always driven by the facts of the case. A careful comparison of the decisions establishing the Massachusetts Rule to the decisions favoring the Hawaii Rule suggests that the rules may not be very far apart at all.

Schwalbach v. Forest Lawn Memorial Park, 687 S.W.2d 551 (Ct.App.Ky. 1985). The Schwalbachs owned an apartment building located next to the Forest Lawn Cemetery. They bought the property in 1969. By 1972, they were whining that overhanging limbs from some of Forest Lawn’s trees dropped twigs and leaves and other detritus. What a shocking indignity.

Forest Lawn trimmed some of the branches, but the problem persisted. The Schwalbachs were more into brickbats than chainsaws. They never trimmed any of the overhanging branches themselves but were content to let their mouthpiece do their work for them in court.

Forest Lawn will handle the dead people … but the Schwalbachs are responsible for the dead leaves.

The Schwalbachs replaced their flat roof with a pitched one at the cost of $14,300, the result of damage done by an accumulation of leaves and twigs. The trial court found that the damages resulted from normal deadfall of leaves and small debris from the trees. It applied the Massachusetts Rule set forth in Michalson v. Nutting, concluding that the Schwalbachs should have removed the offending limbs back to the boundary line.

The Schwalbachs appealed.

Held: Kentucky follows the Massachusetts Rule. The Court rejected the Schwalbachs’ argument that Kentucky should follow the rule that every owner should be held responsible for private nuisances on real estate, essentially an ordinary negligence rule. The Court observed that “[i]mposing liability upon a landowner for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees.”

The Court did suggest that were the tree in question dead and likely to fall and cause serious injury, “[a] claim for damages or removal of such a tree might be based on the theory of negligence for damages or nuisance for removal.”

This decision was criticized by the Tennessee Supreme Court in Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn., 2002) as among those antiquated cases that didn’t permit any remedy for encroaching branches and roots beyond self-help.

– Tom Root

Case of the Day – Thursday, March 19, 2026

Posted on March 19, 2026 by TLRoot tagged.

I CAN SEE CLEARLY NOW…

It’s easy to dismiss the belly-aching of people who claim that their view of the ocean, the mountains, the lake, whatever, has been ruined by someone else’s construction, or even – as we have seen all too often – by trees that grow too tall. But it’s a different matter when your own 0x is the one being gored.

Thanks to the nosy people at Google Earth, we can clearly see the problem that resulted in today’s case from 435 miles out in space. The parties to the kerfuffle – the Ceynars and the Barths – are clearly more than one missed paycheck away from a cardboard box. And for a lot of people, it’s hard to muster up a lot of sympathy for someone who claims a diminished view of the prairie reduced their home value by an amount that would buy almost half the average U.S. home.

Still, it’s easy enough to understand—if not to empathize—with the consternation you must feel when you spend a big chunk of money in expectation that you’ll enjoy watching the sun set on the prairie while you sip Mai Tais, or whatever the 1% in North Dakota like to sip.

Clearly, the Ceynars were sufficiently exercised about this that they spent lavishly on lawyers, all the way through the North Dakota Supreme Court. It did not do them much good, because it turns out that a property owner’s right to perpetually enjoy the view that existed on his and her property on move-in day is simply too contingent, too mushy, too prone to generate litigation rather than progress, for any court to infer its existence – at least absent a well-written easement signed by everyone involved that establishes the right.

Ceynar v. Barth, 904 N.W.2d 469 (N.D. 2017). The Ceynars and the Barths are neighbors at The Ridge at Hawktree, a Bismarck subdivision (that appears not to be Section 8 housing) near a golf course. Both families are members of the homeowners’ association. Before the Ceynars purchased their home, Mr. Barth won approval from the Association to build a “pool house” on his property, connected to his house with a breezeway. After the Ceynars occupied their place, the Barths commenced construction, whereupon the Ceynars complained to the Association. They claimed the pool house would block their view to the north and west toward the Hawktree Golf Club.

After the Association did nothing, the Ceynars sued the Barths and the Association, alleging breach of contract and nuisance. They claimed the pool house violated restrictive covenants and unreasonably interfered with the enjoyment of their property and diminished its value. Mr. Barth and the Association moved for summary judgment dismissing the action. The district court granted the motion, concluding the pool house did not violate any of the Association’s restrictive covenants. As well, the trial judge said, under N.D.C.C. § 42-01-01, “a nuisance consists in unlawfully doing an act or omitting to perform a duty,” and the Barths’ construction of the pool house was completely lawful.

The Ceynars appealed.

Held: It’s party time at the Barths’ pool house.

The Ceynars argued that the “pool house” violated the restrictive covenants governing the Hawktree development, because Section 4 of those rules – entitled Nuisances: Construction Activities – stated that “no other nuisance shall be permitted to exist or operate upon any Lot or other property so as to be offensive or detrimental to any other Lot in the vicinity thereof or to its occupants.” The Supreme Court, however, found that the restrictive covenant clearly related in context to construction activities “rather than the finished product.” At any rate, the Court said, the homeowners association has the authority in its sole discretion to determine whether a nuisance exists for purposes of the covenant. The Association approved the Barths’ construction plans and found no nuisance exists.

But, the Ceynars complained, there was an implied covenant that prohibited the pool house because it “destroys the open prairie look and overall theme of the community in the subdivision.” The Ceynars relied on a text message sent by, and deposition testimony of, the Association’s secretary indicating fences, outbuildings, and trees were not allowed in order to preserve an “open prairie look” in the subdivision, and on the Association president’s deposition testimony that the covenants require an “overall theme of the community.”

The Court made short work of that claim, holding that implied covenants are not favored by the courts and that, at any rate, the Ceynars could point to no evidence that these vague statements had anything to do with the developer’s plans or that the Barths were aware of a policy favoring the “open prairie look.” North Dakota precedent clearly holds that covenants will be given effect only “when clearly established,” and this implied covenant was as solid as Jello.

The meat of the Ceynars’ claim was that the district court erred in dismissing their statutory private nuisance claim against the Barths. Section 42-01-01, N.D.C.C., defines a nuisance as “unlawfully doing an act or omitting to perform a duty, which act or omission… annoys, injures, or endangers the comfort, repose, health, or safety of others; or in any way renders other persons insecure in life or in the use of property.” The Ceynars complained that before the pool house, “we enjoyed the open prairie look and feel. Not only have we also lost views of the Burnt Creek Valley and the golf course because of the pool house, the size and scope of the pool house and breezeway towers over our property, depriving us of anything that could be considered an open prairie look.” In fact, they presented an appraisal of their property indicating the obstructed view lowered its value by $140,000. They also presented photographs taken before and after construction of the pool house, demonstrating their obstructed view.

The district court dismissed the statutory nuisance claim, reasoning that the construction of the Barths’ pool house was lawful, so there could be no statutory nuisance. The Supreme Court agreed with the Ceynars that this holding was wrong, but any sense of victory they experienced was short-lived.

The Ceynars argued the district court failed to engage in the required balancing test, “a balancing of the utility of defendant’s conduct against the harm to the plaintiff, plaintiff’s attempts to accommodate defendant’s use before bringing the nuisance action, and plaintiff’s lack of diligence in seeking relief.” The Supreme Court acknowledged that while “scenic views may enhance the value of a tract of land… [and] such a benefit, while intangible may enhance market value, with buyers willing to pay extra for the view,” that did not translate to a legally protectable interest. “Traditional American property law fails to protect access to light over neighboring land,” the Court held, at least “in the absence of an express easement or covenant, advantageous views are unprotected.” Because a landowner has no right to an unobstructed view, the size and shape of a neighboring structure cannot be a nuisance, even if it causes a material reduction in market value.

This rule is necessary, the Court observed, because

extending the law of nuisance to encompass obstruction of view caused by lawful construction of a neighboring building would unduly restrict a landowner’s right to the free use of property, interfere with established zoning ordinances, and result in a flood of litigation. Because every new construction project is bound to block someone’s view of something, every landowner would be open to a claim of nuisance. If the first property owner on the block were given an enforceable right to unobstructed view over adjoining property, that person would fix the setback line for future neighbors, no matter what zoning ordinances provide. The practical implication of such a right would be the need of every ‘servient’ owner to obtain a waiver of the easement of view created in the “dominant” landowner. Such obstacles to land ownership and development, for the sake of a clear view, hardly commend themselves.”

Inasmuch as the Ceynars had no cognizable right to an unobstructed view from their property, the Barths’ construction of the pool house as a matter of law did not unreasonably interfere with the Ceynars’ use and enjoyment of their property.

– Tom Root