Case of the Day – Thursday, March 5, 2026

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TRUE CRIME

You’d think that with all of the murder, mayhem, opioids, election-diddling, crypto crooks, Epstein-ing and computer fraud, we’d have enough crime out there to satisfy the most hidebound law-and-order type. But no, we need even more criminal statutes to serve as a trap for the unwary.

Unwary folks like Mohammed Azmat of Franklin Township, New Jersey. There has to be a backstory of ill will here, but – in honor of Sgt. Joe Friday – we’ll stick to the facts. Mohammed’s neighbor, Tony Gaylord filed a complaint in court against Mo, alleging violation of Ordinance § 222.17 for failure to maintain the trees along their shared property line.

Not that! Not Ordinance § 222.17! Old ladies swooned. Town elders gasped. It was the Queen Mother, the local ordinance that required homeowners to maintain their trees “in a safe manner” or face the full wrath of the criminal law.

This is ridiculous. Lock a homeowner up for not trimming trees? And not keeping them “in a safe manner so they shall not create a hazard to the general public,” whatever that meant? Mo argued that the criminal statute was so vague as to not fairly inform those subject to it what was required. For those of you who were on senior “skip day” when your high school government class covered the topic, such vagueness violates a citizen’s right to “due process of law” under the 5th and 14th Amendments.

But the Court didn’t buy it. It held that anyone who read the ordinance could tell that “all trees… [shall be] maintained in a safe manner so they shall not create a hazard to the general public” would inform the reader that a dying tree or one likely to fall had to be removed. That’s so, but just about every vague statute or ordinance clearly covers hazards on the far shore of reasonableness. Imagine a state law that punished people who weren’t nice. Obviously, punching a Brownie in the gut because you were on a diet and couldn’t eat cookies would break the law. (Plug: Buy cookies from Brownie Erin). But how about roaring into a parking place ahead of a grandmother in a Buick? Or walking past a homeless person with a thousand-yard stare? Or even just ducking around an aisle at the grocery store to avoid a talkative neighbor because you’re in a hurry?

Generally, the “void-for-vagueness” doctrine requires that a criminal statute define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. The legislature – or, here, the township government – is required to establish minimal guidelines to govern law enforcement. Without some kind of guidance, a criminal statute may permit what the Supreme Court once called “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.”

Such as letting a neighbor who has a bone to pick turn his complaint into a criminal case. We would never suggest that a guy with a WASP name decided to lay the leather to the guy with the Middle Eastern name who just happens to worship on Fridays at a mosque. But we will suggest that slippery criminal ordinances like this one are perfect bludgeons if you want to oppress someone for reasons having nothing to do with the putative issue.

The thing about vagueness is that it doesn’t really inform one of what is permitted and what is proscribed on the margins, where the differences may be slight. Some places really love statutes like that. But this is America.

Beyond the vagueness issue, of what social utility is an ordinance that uses the loss of liberty to punish someone for not maintaining property? Fines, liability for foreseeable effects of sloth, or even having the municipality perform the maintenance and then billing the owner at a punitive rate, all work as well, and do not soak up municipal resources needed more for those whose conduct poses a more clear and present danger to the public than a dead tree, or – for that matter – encourage people other than the complainant in this case (of whom we suspect nothing but pure motives) to pursue statutory mischief.

State of New Jersey v. Azmat, Case No. A-0296-14T3 (Super.Ct. N.J., June 13, 2016) 2016 N.J. Super. Unpub. LEXIS 1348, 2016 WL 3221907: Anthony Gaylord filed a complaint in the Franklin Township Municipal Court against his neighbor Mohammed Azmat, alleging violation of Ordinance § 222.17 for failure to maintain the trees along their shared property line. The ordinance provides: “The owner or tenant of any lands lying within the Township shall keep all trees… maintained in a safe manner so they shall not create a hazard to the general public…” Tony said trees on Azmat’s property had fallen onto his property, causing damage to his property and to power lines. Tony said he was afraid other trees that he deemed dangerous could fall in a windstorm, hurricane, or snowstorm.

Tony and Mo could not agree on which trees should be removed, and at trial, the State of New Jersey presented testimony from Tony and its expert, Robert Wells, an International Society of Arboriculture certified master arborist. Tony generally bellyached about the “hazardous conditions” he claimed existed on Mo’s property. The expert identified two white Ash trees near Tony’s power lines, which he opined were hazard trees that posed a “non-imminent threat” of “tree failure” and could possibly fall on the power lines. He also cited two of Mo’s Locust trees, which were leaning over power lines connected to Tony’s property, and he said were hazardous and should be cut down. Finally, he pointed out some dead limbs on a Sweet Gum and Red Oak tree, which extended over Tony’s power lines. The expert did admit that the trees he identified as hazardous had already survived Hurricane Irene in August 2011 and Hurricane Sandy in October 2012.

The municipal court found that “[c]ertain trees of defendant’s property pose a clear and present danger to complainant… his house and to utility lines that transverse both parties[‘] property.” He ordered Mo to cut down and remove the trees identified in the expert’s report within sixty days, or be fined or jailed. Mo appealed to the Law Division of the Municipal Court, which upheld the judge.

After that, Mo appealed to Superior Court, claiming the ordinance was unconstitutionally vague, and that even if it was not, there was not enough evidence to convict.

Held: The criminal ordinance was not unconstitutionally vague, and ample evidence supported Mo’s guilt. The Court said that for an ordinance to be vague, there had to be so little guidance “that an enforcement officer would not be able to point to objective facts that would lead a reasonable person to realize his or her conduct was a violation.” But here, the ordinance is specific; Ordinance § 222-17 plainly states that “all trees… [shall be] maintained in a safe manner so they shall not create a hazard to the general public.” Thus, the ordinance is clear “that a tree that is dying or likely to fall must be removed by its owner if it can cause a hazard to others.”

Mo also complained that the State’s expert had only visually inspected the trees from 12-15 feet away, not an acceptable methodology within the arboriculture profession. Mo argued that the fact that the “hazardous” trees did not fall during Hurricane Sandy, which occurred after the complaint was filed, showed that the expert’s opinion was unreliable and speculative. Finally, he pointed to some inconsistencies between the expert’s written report and his testimony.

The appellate court found no merit to Mo’s contention that the expert testimony was inadmissible net opinion. “The net opinion rule… forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data,'” the Court said. “Here, the expert based his opinion on more than 40 years of experience as a certified master arborist, who, based upon his personal observations, determined that certain trees on the defendant’s property were hazardous and should be removed.” Mo never rebutted the methodology of citing dead and detached limbs to conclude that the trees were a threat to Tony’s power lines. “Further,” the Court held, “the cited inconsistencies between the expert’s report and his testimony do not cause us to take issue with the trial court’s reliance on his opinion to find that defendant violated the ordinance.”

Can you tell I think this law is an unconstitutional mess?

– Tom Root

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And Now The News …

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Centennial, Colorado, Colorado Public Radio, March 4, 2026: Colorado launched a task force to fight the pine beetle outbreak — but will the plan work?

Across the Front Range, century-old, iconic ponderosa pines span thousands of acres — stretching from the rugged foothills and into the neighborhoods and backyards of local communities. But over the past three years, that landscape has noticeably shifted. More hillsides are now marked by thinning crowns and shades of brown — signs of a growing pine beetle outbreak, according to the state’s Forest Service lead entomologist, Dan West. “The ability for these small, little insects to work in concert to all attack one tree all at the same time and to overcome the tree’s defenses that have been there for a century is truly staggering,” West said. “And then on top of that, when you think about the breadth of which we’re looking at, just as far as you can see, there’s dead trees.” It only took a few years for these tiny insects, no bigger than a grain of rice, to explode across the Front Range…

New York City, The New York Times, March 4, 2026: Tree Rings Reveal Origins of Some of the World’s Best Violins

Everyone wants a piece of some of the world’s famous violins. Switzerland, France, Slovenia and other European countries have all claimed that the wood used in the celebrated stringed instruments of Antonio Stradivari came from their forests. But now, a study of the tree rings in Stradivarius violins, published in January in the journal Dendrochronologia, has revealed the most likely origin of some of the craftsman’s violins: wood from trees growing at high elevation in northern Italy in the same valley that hosted part of the 2026 Winter Olympic Games. Antonio Stradivari produced over 800 instruments in the 17th and 18th centuries, most of them violins but also cellos, guitars and a harp. A Stradivarius instrument is treasured for many reasons, but most notably its superior sound quality. “It does everything better,” said Peter Beare, a director of Beare Violins Ltd. in England, a company that restores, sells and authenticates high-end violins…

Detroit, Michigan, WDIV-TV, March 4, 2026: Why hundreds of trees were cut down along I-94 in Wayne County

Drivers traveling along Interstate 94 coming from Detroit Metro Airport might have noticed a stark change in the landscape. A lot of trees were cleared from the median. One Local 4 viewer wrote us, concerned about the apparent loss of “thousands” of trees, the piles of logs and stumps now visible from the freeway, and what would happen to the deer that had long lived there. In response, Local 4 visited the site with Diane Cross from the Michigan Department of Transportation. She said the tree removal is part of its long-term Restore 94 project and is primarily about safety and rebuilding the aging freeway. A freeway she said over 100,000 drivers use daily. The work covers a stretch of I-94 from I-275 to Michigan Avenue at the Dearborn–Detroit border. MDOT is “rebuilding part of the freeway totally down to the dirt,” said Diane Cross, a communications representative for the agency. “ And here in the area Inkster and Ecorse we are moving the freeway through this wooded area. To make room for that reconstruction and realignment, MDOT has cut down hundreds of trees in the area. Cross said the agency plans to replace the lost trees. “We are putting back 3,000 trees once the project is done,” Cross said. “They will be along the outside lanes because we want the trees to help absorb the fumes coming off the freeway and help with noise, that kind of thing…”

Greenville, South Carolina, WYFF-TV, March 4, 2026: Columbia and Greenville host pick-ups for Bradford Pear replacements

The South Carolina Forestry Commission and Clemson University are encouraging homeowners to cut down their Bradford Pear trees. Clemson University said that Bradford Pears are not native to the U.S. and have been widely planted across the Palmetto State for years. The trees produce a pungent odor while blossoming and they often break during storms. The invasive trees also directly contribute to one of the worst invasive plant species in the Southeast – the Callery pear. The Bradford Pear Bounty 2026 is an invasive tree replacement program that rewards property owners with native replacement trees in exchange for removing Bradford pears from their property. In the month of March, there are two scheduled events across the state… The Forestry Commission says eligible property owners can register online to claim free native replacement tree(s) in exchange for the removal of invasive Bradford pear tree(s), up to five total per person. Supplies are limited and registration is required. Trees are available first-come, first-served while supplies last…

 
Invasive beetles are killing hundreds of thousands of oak trees in Southern California. and it’s even adding to the wildfire risk in local forests. However, we can help prevent the damage. CAL FIRE estimates that the Goldspotted Oak Borers, also known as GSOBs, have killed at least 200,000 oaks across the Southland. “So, you can look up at the tree, and you see a lot of the tree has no leaves on it or very few leaves. It probably has like 60% crown loss, 70%,” said Kim Corella, a forest pathologist with CAL FIRE. “So, once a tree has that much crown loss, the chance of it surviving is minimal because there’s so much crown lost, the ability to take up water nutrients is minimized.” CAL FIRE has also discovered an area in Simi Valley that is infested and now has many dead oak trees. These dried out oaks and fallen branches are not only a loss of habitat but also adding fuel for wildfires. “Oaks are a keystone species in the environment and provide a lot of habitat resources. They’re good fire protection; they’re ember catchers,” said Corella. “So, when you have these insects attacking these large diameter trees, which the insect prefers, you lose that habitat and that fire protection…”

Miami, Florida, WTVJ-TV, March 2, 2026: Mangrove magic: how a tree saved Florida $1.5 billion in hurricane damages

 
The coasts of Florida are renowned for their beaches, however, these tourists attractions are not the only thing contributing millions and millions of dollars to the state of Florida. A study by The Nature Conservancy (TNC) showed that mangroves, throughout counties in southwest and southeast Florida, averted $1.5 billion in storm damage during Hurricane Irma. Coastal protection is just one of the countless and crucial services that mangroves in Florida provide to Floridians on a daily basis. The amount of damage averted by mangroves resulted in savings of 25% in counties where mangroves were present. Mangroves live in salty waters and are the only tree species that can do so, as stated by TNC. “Mangrove forests act as natural barriers against extreme weather events. Their dense root systems and coastal position help absorb the force of storm surges, reducing the impact before it reaches inland communities,” according to Abigail Davis from the Florida Museum…

Detroit, Michigan, WDET Radio, March 2, 2026: Humans thrive with trees, not computer screens, says new research

 
New research shows the presence of trees where people live may significantly impact human heart health. The results find that those living in greener neighborhoods have lower risks of heart attacks, strokes, and other cardiovascular diseases. Peter James is a lead researcher of the study at the University of California – Davis. Using over 350 million Google Street View images analyzed with deep learning, James’s team identified street-level vegetation and linked it to long-term health data. However, areas with more grass were linked to higher cardiovascular risk. James says trees help by cooling neighborhoods, filtering air, reducing noise, and promoting activity and social interaction. “We’ve evolved as human beings to be in nature….this is our natural setting, not staring at a computer screen….that’s where we thrive… out in trees and nature,” James says…

Richmond, Virginia, The Richmonder, March 1, 2026: ‘A love-hate relationship:’ Managing Rosedale’s aging trees is a tricky balance for Northside residents

 
Tara Beaghan’s brother had just entered the garage in her backyard when the rain started. As the wind picked up, Beaghan decided to go outside to put down the cantilever umbrella on her back patio. Wrangling with the umbrella, she was unaware that the massive willow oak in front of her house was about to topple toward her. “All of a sudden I see my patio table flying at me and I remember seeing green. That’s all I remember. The top of the tree actually hit my ankle,” said Beaghan. “The very tippy top, like the leaves and twigs.” The thick foliage of the tree obscured Beaghan from her brother’s view in the garage, leading to a few heart-pounding moments of terror before she emerged unscathed. “We got my chainsaw,” said Beaghan. “I had to cut my way back in to get my dog.” Within minutes, calls came in from neighbors and Beaghan, surveying her house, began to understand the extent of the damage. “It went through the roof, through the attic, so I just got a free skylight out of all of it,” she joked. Stories like Beaghan’s, from last July, illustrate the predicament faced by residents of the Rosedale neighborhood in Richmond’s Northside…

New York City, The New York Times, February 27, 2026: An Update: Did a Brooklyn Couple Kill a Neighbor’s Trees for a Better View in Maine?

Nearly five years after the Maine Board of Pesticides Control found that a New York couple had killed a neighbor’s trees in Rockport to improve their waterfront view, the state on Friday approved a settlement that included a $3,000 fine but no admission of guilt. A lawyer for the couple — Stephen Antonson and Kathleen Hackett of Brooklyn — released a statement from Mr. Antonson saying he was “glad” that the board and Maine’s attorney general approved the agreement. But he did not acknowledge responsibility for the death of the trees. Instead, the chairman and a member of the pesticides board apologized to the neighbor’s son that the board could not do more to hold the couple to account. The New York Times reported on the tree saga last September. In 2017, Mr. Antonson and Ms. Hackett, Brooklyn-based creatives who met while working for Martha Stewart, bought a summer house in Rockport, a scenic Penobscot Bay town. They asked their neighbor, Ruth Graham, if they could remove trees from her land outside their rear windows to give them a better view. Mrs. Graham said no…

Bondi, NSW, Australia, ABC, March 2, 2026: Bondi neighbourhood split over illegal chopping of tree in broad daylight

The men came wearing high-vis and wielding chainsaws, claiming they were contractors for the local council before chopping the paperbark limb by limb. But the lopping of the tree on New Street, Bondi, was, in fact, an alleged act of illegal vandalism now under investigation — and, according to residents, the fourth tree targeted on the short suburban street in about four months. Five of the quiet street’s residents who spoke to the ABC — and who asked not to be identified to avoid tension with neighbours — are split on the chopping of the paperbark. One woman told the ABC she was pleased to see the tree being pruned and had assumed the council was “finally paying attention to my 100 requests.” She said she had repeatedly complained about the street’s trees and their debris, which she said regularly blocked a stormwater drain, causing flooding on and near her property. “I didn’t organise for that to be done, but I’m not crying about it,” she said…

Mongabay.com, March 2, 2026: Brazil wanted more protections for its endangered national tree. Then France called

Just three months ago, Brazil seemed close to winning the highest level of international trade protectionsfor the country’s symbol and namesake, the Brazilwood tree (Paubrasilia echinata). On Nov. 26, Brazil’s delegation was in Samarkand, Uzbekistan, for the summit of CITES, the global trade convention under which 184 countries plus the European Union have agreed on rules to protect wildlife from unsustainable commerce. The Brazilians were confident that they would gain approval for their formal proposal to protect the endangered tree from all international commercial trade. “There was massive support,” said a Brazilian delegate attending the meeting, who requested anonymity for fear of retaliation. “There was a feeling that it would pass.” Found only in Brazil’s Atlantic Forest, P. echinata’s population declined by 84% over the last three generations, and is currently down to around 10,000 adult trees, according to Brazilian environmental officials. The species was exploited during colonial times to meet European demand for the red dye that comes from its wood and was used to color fabrics. Since the mid-18th century, the world’s music industry has prized the wood, also known as pernambuco, for its resonance, durability and flexibility for bows to play violins, cellos and other stringed instruments. Each bow can be worth up to 7,000 euros (more than $8,200), making the wood treasured not just by those in the music business, but also by smugglers. As the tree’s numbers dwindled, Brazil’s National Center for Flora Conservation (CNCFlora) escalated the species’ conservation status in 2024 from endangered to critically endangered…

Trees are a wonderful asset to any property. If you’re afraid of falling branches or allergic to raking, just remember that those messy leaves turn beautiful colors in the fall. A tree’s shade cools your house, and the branches provide a home for birds and other creatures. But when a tree entangles with your plumbing, feelings can change. Certain trees are more destructive to pipes, potentially forcing you to replace sewer lines for thousands of dollars. If you live in an older home with aging pipes, there are some trees you won’t want growing anywhere near your plumbing. We talked with urban forester Keith O’Herrin about five trees that can wreck your plumbing, where to safely plant trees in your yard, and what to do when tree roots invade pipes. Tree roots invade pipes in search of water, oxygen, and nutrients. Sewer lines are an especially good source of all three. But despite what many people think, O’Herrin says tree roots cannot break into pipes with brute strength. “I feel like most people’s fears are unfounded unless they have a 100-year-old cast-iron sewer line. Modern PVC should be impenetrable to tree roots if it was installed properly,” O’Herrin explains. “They’re just not physically capable of banging their way in…”

The Cool Down, February 21, 2026: Homeowner returns from vacation to discover neighbor cut down their maple tree without permission: ‘I am devastated and furious’

It’s never fun to fight with a neighbor, especially when it comes to property lines and landscaping. Knowing your local laws could help alleviate some stress in the long run. In the r/TreeLaw subreddit, a Reddit user asked for advice on a tense situation with a neighbor. They posted several photos of their friend’s backyard, where the neighbor cut down a mature maple tree without permission that straddled the homes’ property line. “My good friend is currently traveling in Europe and while she is gone, her next-door neighbor […] cut down the shared tree,” the original poster said. They added that the neighbor had previously spoken with the homeowner about the tree, and they disagreed on cutting it down. The OP’s friend was devastated to come home from vacation to find the tree removed. They said they intend to sue the neighbor because their property was surveyed in the past, which determined that 60% of the tree was technically on their side of the property line. However, the tree was on the neighbor’s side of the fence…

Savannah, Georgia, WTOC-TV, February 25, 2026: ‘Unfortunately, the tree must be removed’: Historic 300-year-old oak tree taken down in Chatham Co.

Georgia Power issued an update about a live oak on Little Neck Road that has garnered significant community attention this month. In a quote to WTOC, Georgia Power said while they understand the oak’s significance, the tree must be removed. “We appreciate the important cultural and historical significance of Savannah’s live oaks. For more than 100 years, Savannah Electric and Georgia Power have worked to protect our area’s trees and other natural resources as the area has grown. We also recognize the history of this tree and the sentimental attachment many have to it – we have explored all options and, unfortunately, the tree must be removed. While we always work to listen to different perspectives and minimize our impact as much as we can, our priority has to be maintaining reliable and affordable electric service to thousands of customers in Savannah,” said William Mock, region executive for Georgia Power based in Savannah…

SciNews, February 26, 2026: Scientists Observe Electrical Discharges on Trees under Thunderstorms

For as long as thunderstorms have rolled across the planet’s forests, cloud-to-ground lightning has commanded attention: splitting trunks, igniting wildfires and briefly turning night into day. But scientists are now focusing on a far subtler electrical phenomenon that forms on the tips of leaves during thunderstorms. Unlike lightning, which superheats the air to tens of thousands of degrees, coronae are weak electrical discharges, with temperatures only slightly above the surrounding air. Yet these understated sparks produce extreme amounts of hydroxyl, the atmosphere’s main oxidizer, damage tree leaves, and potentially contribute charged particles to the thunderstorm cloud base. “These things actually happen; we’ve seen them; we know they exist now,” said Dr. Patrick McFarland, a meteorologist at the Pennsylvania State University. “To finally have concrete evidence of that…is what I think is the most fun…”

Insurance Journal, February 25, 2026: Tree-Planting in Louisiana Wetlands Aims to Rebuild Natural Barriers

Across the calm waters behind a pumping station near Lake Borgne, hundreds of saplings stand out in the mist, wrapped in white plastic cylinders. To get there and to other sites like it, organizers have ferried dozens of volunteers week after week in airboats. They have a trailer equipped with supplies. Rubber boots in all different sizes. Bins full of snacks for the end of a hard day’s work. One day, they hope to see 30,000 fully grown trees like bald cypress and water tupelo at this and other sites that restore the natural barrier of wetlands into the protective forest it once was. The goal is for the roots of these native trees to hold the earth around New Orleans in place as it slips further below sea level, create habitat for wildlife and help shield the city from storms…

New York City, The New York Times, February 24, 2026: When Do You Need to Call a Tree Doctor?

Homeowners who plant trees know how crucial care is during the formative years of the investment. But what about that front yard guardian that is likely older than the house itself? Although a mature tree may not demand the same attention as a young Japanese maple, problems still arise. And while a property owner with a green thumb can usually prune young trees from terra firma, mature trees require specialized cutting, pest and disease management that professionals should handle. It’s worth the extra effort. Environmental studies and real estate experts agree that a mature tree near your home can boost its value by 3 to 15 percent. “You do not, in fact, need to own the tree to see the financial benefits,” said Geoffrey Donovan, an economist and scientist who consults on the benefits of urban trees. Renters might see reduced cooling costs in summer because of a mature tree’s shade, along with better air quality and reduced traffic noise, he said…

Medford, Oregon, The Rogue Valley Times, February 25, 2026: Apple sleuths uncover unique trees on Peter Britt grounds in Jacksonville

A team of apple sleuths has uncovered four unique trees at the former site of pioneer orchardist Peter Britt in Jacksonville, and preliminary DNA tests showed their special character. “They may not be found anywhere else in the world,” team leader Carol Knapp told Jacksonville City Council during a study session Feb. 17, where she updated members on the latest developments for the Britt Heritage Apple Project. Knapp, Gayle Lewis and Jill Brenkman having been working on identifying 10 apple trees, half of which are on the Britt Festival grounds and the other half on the city’s adjacent Britt Gardens. The four unidentified trees and six other heritage apple trees are not in great shape, although all produce some fruit…

Eureka Alert, February 25, 2026: Source or sink? Trees with heart rot disease emit more methane, upending forest carbon models

Throughout their lifetimes, healthy forests produce more oxygen than they use, while taking in greenhouse gases via plants and soils. This ecosystem-wide service, called carbon sequestration, regulates global climate and is an essential component of climate models and goals. Forest health, however, influences carbon cycling, and when trees get sick, the net reduction of greenhouse gases may be more limited than previously thought. New research conducted at the University of Notre Dame Environmental Research Center (UNDERC) suggests that upland forests harboring trees with a common and incurable fungal disease known as heart rot could actually be emitting more methane than they take in, therefore releasing more greenhouse gases than previously thought. Methane, a flammable natural gas, is more than 30 times more effective at trapping heat than carbon dioxide. “Historically, upland forests were thought to be strong methane sinks because they have organisms in their dry soils that take up methane instead of releasing it to the atmosphere,” said Adrian Rocha, an ecologist at the University of Notre Dame who supervised the research. “Heart rot disease has the potential to switch upland forests from being methane sinks to methane sources since diseased trees emit more methane than healthy trees…”

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Case of the Day – Wednesday, March 4, 2026

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SOME LATE-SEASON SNOW

The valentine cards are in the trash. That can only mean one thing: St. Patrick’s Day is right around the corner. We wandered into a Family Dollar the other morning for some pork rinds and red pop, only to be assaulted by not just shamrocks, but Easter bunnies, IRS forms and even Mother’s Day cards. Halloween is just around the corner.

We’ll launch our First Meteorological Day of Spring festivities a few days late (it was last Sunday) with some late-season Snows. And as you’ll see, Snow is a distinct possibility.

The Snows we consider today were a couple, one party in a convoluted adverse possession case. The surveyor began the problems in 1969 by taking the landowner’s word that a rock marked the corner of the 40-acre tract. It was the wrong marker by about 40 feet, and so everything he did from there was wrong, too. Garbage in, garbage out.

But no one knew about the error. The landowners used the faulty centerline to give an easement to neighbors, and the neighbors put a driveway on it. That was off-center as well. To compound problems, there was a decrepit barbed wire fence off-center from the off-center centerline that Mr. and Mrs. Snow — who had bought land a year after the faulty survey — believed to be the real centerline.

When the owner next to the Snows sold in the mid-1990s, he knew they claimed the 1.5 acres between the easement and the old fence as theirs, so he sold 8.5 of his 10 acres by warranty deed but conveyed the disputed 1.5 acres  by quit-claim deed (which meant that the seller wouldn’t help out the buyer in any legal battle arising with the Snows).

And the battle inevitably came. The Snows argued that the old fence enclosed the land, and they had exercised control over the disputed acreage by cutting a firebreak and harvesting cedar. But landowner Camp said the land was so densely wooded, no one could see what – if anything – that the Snows had done. The trial court held that the Snows hadn’t exercised continuous control over the land and that the old fallen-down fence didn’t demark or enclose anything. And there was no evidence that Camp or his predecessor had acquiesced in the old fence being the boundary. If he had, he wouldn’t have conveyed the disputed area, even by quit-claim deed.

(By the way, contrary to popular belief, the deed is not called a “quick claim” deed.)

Snow v. Camp, 2007 Ark. App. LEXIS 631, 2007 WL 2782825 (Ark.App., 2007). When the Snows purchased a 40-acre tract in Baxter County in 1967, an old barbed-wire fence crossed the property. It seems that at the time the surveyor, John Ed Isbell, set the boundary between the Snows’ lands and that now owned by the Camps in 1969, he used a stone shown to him by the property owners as the corner of the 40 acres, and then goofed, laying out lines that were about 80 feet short of a true forty acres. Then, in 1970, the Snows, the purchasers of another tract, and the grantor signed a right-of-way easement agreement. The legal description for the 50-foot easement agreement used the 1969 survey’s centerline as the midpoint of the easement. The Snows built a 15-foot gravel driveway that was mostly within – but was not in the center of – the 50-foot easement.

Twenty-five years later, the Williamses bought the tract now owned by the Camps. During his 18 months of ownership, Williams learned that the Snows claimed the 1.5-acre portion lying south of the old fence line and north of their actual boundary line. When he sold 10 acres in 1997 to Camp, Williams knew there was an issue about the area, so he conveyed 8.5 acres north of the old fence by warranty deed and the 1.5-acre area at issue by quitclaim deed.

In May 2000, the Snows sued the Camps for adverse possession of the 1.5-acre tract and for an injunction preventing the Camps from interfering with the easement. They argued that the boundary line between the parties’ properties was established by acquiescence along the fence line. As a result of the error in the survey on which the easement’s legal description was based, the Snows sought reformation of the easement to reflect their actual use.

It’s “public” with an “l”. Likewise, it’s “quitclaim” and not “quickclaim.”

At trial, Isbell admitted that his survey was wrong. Ramona McDonald, who was a party to the easement agreement, said that they had intended for the road to be in the middle of the easement. The Snows had exercised control of the 1.5-acre tract by cutting cedar up to the fence line and mowing for a firebreak. When they bought the property, the land was so heavily wooded that the area in question could only be accessed on foot. Williams said he had understood that he owned property north and south of the fence; that he maintained his yard to the fence line; and that on the other side of the fence were dense woods, which he was unaware had been mowed. He said that, once, when he had discovered some men hired by the Snows cutting sprouts close to the easement, he told them that it was his land. He said the fence was completely down on the ground for about twenty feet in at least two places, that it did not surround the Snows’ property and that no one kept animals on either side of the fence. He knew that the Snows claimed the land. He said that neither he nor the Snows had used the area, which he called “just a vacant, barren strip of woods.” Michael Camp admitted that Williams had informed him, after giving him the two separate deeds, that the Snows claimed the 1.5-acre tract. He said he had never considered the old fence to represent the boundary line.

barbwire151005The trial court ruled that the Snows failed to establish adverse possession of the area in dispute, which it found to be unenclosed because they did not continuously occupy or use the property for more than seven years and they never excluded any record owner from it. The Snows appealed.

Held: The Snows didn’t prove their adverse possession. The Snows argued the trial court should have considered the significance of the surveyor’s incorrect centerline in deciding the claim for adverse possession, although the old fence line to which they claim adverse possession is considerably north of that Line. They argued they had shown control of the 1.5-acre tract since 1969 by clearing a fire break around and making repairs to the fence, cutting trees and bushes, harvesting rocks, mowing, parking equipment, and feeding forest animals there. However, the appeals court held that due deference had to be given to the trial court’s superior position to determine the credibility of the witnesses, and the trial court had found some testimony more compelling than others.

In order to prove the common-law elements of adverse possession, the Snows had to show that they had been in possession of the property continuously for more than seven years and that their possession had been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. It is ordinarily enough proof of adverse possession that a claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. For possession to be adverse, it must be hostile only in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the holder of title to the land.

There is every presumption that possession of land is subordinate to the holder of the legal title. The intention to hold adversely must be clear, distinct, and unequivocal. What’s more, the General Assembly added a requirement for adverse possession in 1995, that the claimant prove color of title and payment of taxes on the disputed property or a contiguous piece of land for seven years. Fencing the disputed area is an act of ownership evidencing adverse possession, and the fact that the fence may have deteriorated does not necessarily mean that the property is not enclosed. Instead, the question is whether the enclosure is sufficient to put the record title owner on notice that his land is held under an adverse claim of ownership. In this case, the Court ruled, the evidence easily supported the trial court’s decision. The Snows’ use of the disputed land was sporadic and inconsequential, and in no way exclusive.

The Court rejected the Snows’ argument that the parties acquiesced to the fence line as the boundary. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. A boundary line by acquiescence may be inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. All the Snows had here was a dispute and no evidence of a tacit recognition by the Camps or their predecessors in title that the old fence line was the boundary.

– Tom Root

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Case of the Day – Tuesday, March 3, 2026

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TOLD YOU SO

Perhaps we should use Mr. Peabody's Wayback Machine ...

Perhaps we should use Mr. Peabody’s Wayback Machine …

Travel back in time with me… back, back, back to July 10, 2025, when we solved the poor Mazda owner’s problem by determining that maybe, just maybe, his landlord was liable for injuries to the unhappy sports car enthusiast’s set of wheels. As in all cases, liability depends on the specific facts. That’s why there’s no substitute for a good local attorney.

While considering the RX-8 owner’s dilemma, I came across today’s case. A hospital was built back in the early 1970s. A landscape architect suggested sweetgum trees on the grounds. When the trees were planted, they seemed like a nice touch, an architectural exclamation point to the building. The sweetgum is a good-looking tree but rather prolific in its production of sweetgum balls.

Times changed, more people were getting sick (what with coronavirus and all), and the hospital grew. So did the trees. When a parking garage was added in the 1980s, the designer told the hospital the trees should be removed because they dropped sweet gum balls that got everywhere and were a nuisance. The hospital refused.

Ten years later, a hospital visitor slipped on a sweetgum ball in the parking lot and fell, breaking her wrist. Lucky for her there was a hospital nearby. She didn’t feel lucky, however … rather, she felt aggrieved. So she sued the hospital for negligence. What else does an aggrieved person do?

The Court applied the reasonable care standard to the case and found the hospital was negligent. Crucial to the decision was the fact that the parking lot designer had told the hospital years before that the trees were a nuisance, for the precise reason that led to Ms. Henderson’s injury. The hospital didn’t necessarily have to cut down the trees, the Court said, but it could have at least instituted a regular clean-up program to stay on top of the sweet-gum ball problem

Sweetgum's aborted seeds are rich in shikimic acid.Henderson v. St. Francis Community Hospital, 303 S.C. 177, 399 S.E.2d 767 (Sup.Ct. S.C. 1990). Florence Henderson (probably not her real name) visited a friend who was a patient at St. Francis Hospital. As she was walking in the hospital parking lot to her car, she stepped on an accumulation of sweet gum balls, turned her foot and fell, breaking her wrist. The balls had fallen from a sweet gum tree planted in the parking lot. She fractured her wrist and sustained various bruises and abrasions.

The original parking lot of St. Francis was designed by CRS Sirrine, Inc. in 1969. The sweet gum trees were planted soon after that. In about 1982, Snoddy & McCulloch Associates, Inc. designed an addition to the parking lot, which had several levels or tiers. Snoddy & McCulloch recommended that the sweet gum trees be removed because they produced debris that would accumulate and become a nuisance. St. Francis refused to remove the trees, instead building a stairway next to one of them.

Sweetgum tree ... star of Fancher v. Fagella, making an encore appearance here.

   The sweetgum tree … star of Fancher v. Fagella, makes an encore appearance in the St. Francis parking lot.

Henderson sued St. Francis, Sirrine and Snoddy & McCulloch, alleging negligent maintenance and negligent design of the parking lot. The jury returned a verdict against St. Francis and Sirrine, but the trial court reversed the jury, entering judgment n.o.v. in favor of the defendants. The Court of Appeals affirmed, and Ms. Henderson took the matter to the South Carolina Supreme Court.

Held: The Court reversed the judgment. It held that the Hospital was negligent, but not the parking lot designer or the landscape architects. The Court held that the evidence supported the finding that the Hospital had been advised to remove sweet gum trees because the trees produced debris which created nuisance and maintenance problems. It didn’t and thus was negligent in failing to provide reasonably safe conditions for its visitors and patients by not removing the trees or employing an adequate maintenance program. The Court said that although the operator of a parking lot is not an insurer of the safety of those who use it, it must nevertheless use reasonable care to keep the premises used by invitees in a reasonably safe condition.

The idea is hardly novel – the New York court said it over a century ago in Gibson v. Denton – if you’re aware of the risk, you had better do something about it. Here, the Hospital had been warned that the trees required removal or regular care. Neither happened.

The degree of care to be exercised by a property owner must be commensurate with particular circumstances involved, including considerations like the age and capacity of the invitees who will be using the premises. For purposes of measuring whether the Hospital discharged its duty, the “invitees” are the people who visit patients in the hospital and use the parking lot.

– Tom Root

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Case of the Day – Monday, March 2, 2026

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SMILE WHEN YOU SAY THAT

ralphie150930“I get slandered, libeled, I’ve heard words I never heard in the Bible …”

Oh, thank heaven for nosy and nasty neighbors. Because of them, we have a case today that started out as a tree problem but ended up as a neighbor law problem.  And a dignatory tort, to boot. Forgive me, but I love this stuff.

Matters began between neighbors Joe Bouler and Linda McKeever Bullard when she claimed that he had trespassed on her land and cut down some trees. Things devolved from there. At one point, Joe was sure Linda was taking pictures of his wife – oh, the horror of it all! – and he complained to the cops. For good measure, he told the officer that Linda also had an anti-9/11 sign in the window.

The sign allegedly said, “9/11 F*** You.” Without the asterisks, of course. Pretty caustic stuff, huh?

If the report was something Joe made up to inflame the police officer’s passions, it fell short. It was hard for a police officer to be too fired up when he couldn’t really tell what the sign meant.

Not literally. The literal meaning of the Queen Mother word was clear enough. But not the context, a distinction that Ms. Bullard belatedly appreciated when she sued her big-mouthed neighbor for slandering her to the police by accusing her of posting such a scurrilous sign.

The court was puzzled, too. Did the sign indicate that Ms. Bullard was one of those conspiracy types? Maybe she figured America deserved to suffer 9/11. But maybe she meant to flip the bird (figuratively speaking) to Osama bin Laden. If so, she would hardly be the first person to use both the term “9/11” and the f-bomb together.

Now if Joe had said he'd seen any of these signs in Linda's window, the slander per se would probably have been complete.

Now if Joe had said he’d seen any of these signs in Linda’s window, the slander per se would probably have been complete.

That was a problem, the Court said. You can’t be slandered unless you’ve been damaged. Some slander is so bad that damages are presumed. That is called “slander per se” under Georgia law (a term fairly common among the states). But slander per se must meet a strict definition, and one element is that it must be clear without resorting to extrinsic facts.

The problem, the Court said, is that the “9/11 F*** you” sign wasn’t clearly pro-American, pro-Al Qaeda, pro-religious right, pro-wacko conspiracy, or pro-anything. Without more information, the sign didn’t suggest what — if anything — Ms. Bullard believed or was trying to convey. And because that information wasn’t a part of the sign she had allegedly put up, she had no case against her neighbor.

Bullard v. Bouler, 286 Ga.App. 218, 649 S.E.2d 311 (Ga.App. 2007). Linda McKeever Bullard and her neighbor, Joe Bouler, had quarreled previously in a trespass action in which she claimed Joe had caused trees to be cut down on her land. Bullard took pictures of the trees that had been cut down as evidence for the trespass suit.

SlanderShortly thereafter, a Fulton County Police officer came to her door and asked to speak to her. The officer said Bouler had complained that she was taking pictures of Bouler’s wife in the Bouler’s backyard and that he also had said Bullard had been posting signs in her window that said, “9/11, F- – – You.” Bullard testified that the police officer reported these allegations “with a look of utter contempt.” Bullard vehemently denied she had posted such signs.

The police officer confirmed that Bouler had made the allegation about the signs and that she had denied it. Bullard sued, alleging that Bouler’s statement damaged her by accusing her “of a debasing act that may exclude her from all of American society,” an allegation which tracked OCGA §51-5-4(a)(2).

Following discovery, the trial court granted Bouler’s motion for summary judgment. It held that the words spoken were not slanderous because they were “an expression of pure opinion, which is neither provable as true nor as false.”

Bullard appealed.

Held: Bouler’s allegation to the policeman was not slander. Bullard alleged a claim of slander or oral defamation under OCGA §51-5-4(a)(2), which defines one form of defamation as “charging a person … with being guilty of some debasing act which may exclude him from society.” For this form of defamation, damage is inferred, making this type of slander “slander per se.” In other words, malice is inferred from the character of the charge. In order to constitute slander per se, the words must be injurious on their face (meaning that extrinsic facts may not be considered), and the court may not rely on innuendo.

innuendo150930When words are defamatory per se, innuendo — which merely explains ambiguity where the precise meaning of terms used in the allegedly slanderous statement may require elucidation — is not needed. Here, the Court said, any slanderous meaning applicable to Bullard from a statement that she had posted a sign with the words “9-11 F— You” is not apparent in the plain meaning of Bouler’s statement. At most, the Court said, Bouler’s words mean that Linda Bullard was the type of person who would say to the public, “Nine-eleven, F— You.” But what the sign meant was ambiguous.

Bullard thought it meant Bouler was saying that she was the type of person who would disparage America’s loss on September 11, 2001, and that Bouler intended to inflame the police officer, a “first responder,” who might have taken offense at that thought. If that was what the words meant, Bouler’s words might very well constitute slander. But, the Court said, the words do not constitute slander per se here because what they really mean is not apparent from the plain meaning of the words.

In order to find the meaning, the viewer would have to rely on some extrinsic fact, and that takes the words out of the “slander per se” category.

– Tom Root
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Case of the Day – Friday, February 27, 2026

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THINGS ARE SELDOM WHAT THEY SEEM

Buttercup:        Things are seldom what they seem,
                                Skim milk masquerades as cream;
                           Highlows pass as patent leathers;
                                Jackdaws strut in peacock’s feathers.

Captain:           Very true,
                                So they do.

Things are Seldom What They Seem
(duet with Buttercup and Capt. Corcoran)
Gilbert & Sullivan, H.M.S. Pinafore

Pinafore140317So property rights are as dry as toast? Well, maybe, depending on whether it’s your ox that’s getting gored. Consider Marvin Brandt. This hard-working son of a hard-working lumberman is a Wyoming rancher. His father, who started in the 1930s as a lowly sawmill worker, ended up owning the place. Marvin worked at his Dad’s mill as a youth, and he ended up running the mill himself.

The year of our Lord 1976 was an important year. It was the America’s Bicentennial. I had this hot little Datsun 240Z, a rust bucket if ever there was one, but she screamed. Marvin bought the sawmill from his father. Congress repealed the General Railroad Right-of-Way Act of 1875. And Marvin bought a nice chunk of land for his sawmill – not to mention plenty of standing timber – from the U.S. Forest Service. He obtained it through a procedure known as a land patent, in which the Government deeds its rights in land to private property holders.

It was a pretty good deal, sold to Marvin without many restrictions. There was an easement for the Laramie, Hahn’s Peak and Pacific Railroad, but that wasn’t much of a problem for him. Easements weren’t such an impediment, he thought. But then, things are seldom what they seem…

Buttercup:    Black sheep dwell in every fold;
                        All that glitters is not gold;
                     Storks turn out to be but logs;
                        Bulls are but inflated frogs.

Captain:     So they be,
                        Frequentlee.

The Union Pacific had tracks running through the property that Marvin bought. He wasn’t alone in this: some 30 other people bought Government land subject to the UP’s railroad right-of-way. The right of way originally was obtained by LHP&P in 1908, pursuant to the 1875 Act. The 200-foot-wide right of way meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border.

After the railroad line was abandoned, the Government claimed that the land underlying the old track bed had reverted to Uncle Sam. The Washington bureaucrats had plans to turn the route into a hiking trail. When the Government sued to quiet title on the right-of-way, it named all 31 landowners as defendants. None of them owned more than 3 acres affected by the right-of-way, and none of them mounted a defense. They all threw up their hands, folded quietly, and let the U.S. of A. have its way.

Except Marvin.

Marvin may be one of your rugged Wyoming individualists. He may be ornery. But one thing was for sure – unlike the others, Marvin had over 85 acres affected by the old roadbed. Nearly a half-mile stretch of the right of way crossed Marvin’s land, covering ten acres of his parcel and affecting 75 more. In other words, this wasn’t chump change.

The Government, as administrations of either political party are wont to do, tried to steamroll Marvin. The Feds claimed that the LHP&P had owned the land under its rails, subject only to a reversionary interest in the Government if it ever abandoned the line. Therefore, Uncle Sam claimed, when the tracks came out, ownership of the property reverted to the U.S. Forest Service.

The District Court agreed that the 1875 Act and the land patent were not models of clarity, but the Government won anyway. The Court of Appeals reversed. The Government, seeing its Golden Goose about to be slaughtered, appealed to the Supreme Court.

The Supremes, by a resounding 8-1 decision, held that “things are seldom what they seem.” The right-of-way granted to the railroad might seem like a transfer of the land in fee simple, subject only to being returned to the Government if the rail line was abandoned. But it was really only an easement, meaning that the land patent to Marvin had transferred all ownership to him, subject only to the easement. When the easement vanished, the land was all his.

Marvin stood to lose a big chunk of land to the Government.

Marvin stood to lose a big chunk of land – a 200′ wide strip along the north-south road on the west side of his property – to the Government.

The Government’s insurmountable hurdle was its own cuteness. Back in the 1920s, the railroad had planned to drill for oil along the right-of-way (remember Teapot Dome?). The Government had opposed it, claiming that it owned the oil. The railroad, Uncle Sam claimed, only owned an easement. The land (and the wealth under it) belonged to the Feds. The case ended up in the Supreme Court, where the Government won.

But now, the Government argued that things aren’t what they seem to be, and – for that matter – what they seemed to be back in 1942. The Forest Service never owned the land under the railroad when it gave Marvin the land patent. Instead, the railroad did, and the Government didn’t get it back until well after it had sold the rest to Marvin. The 1942 decision must be wrong, to the extent it applied to anything other than oil rights. Thus, the railroad right-of-way reverted to the U.S. Forest Service in 1988, 12 years after the rest of the land was sold to Marvin.

The Supreme Court was not amused. Applying the ancient legal principle that “you dance with the one that brung ya,” the Justices ruled that the Government persuaded the Court in 1942 that the railroad right-of-way was just an easement, and it wasn’t going let the Government change its position now just because it suited it to do so. Alas, the Justice Department (and this is a fault that has belonged to predecessor administrations, Republican or Democrat) all too often has no compunction about changing its arguments for convenience when it should adhere to them for principle. This time, it didn’t work.

Only Justice Sonia Sotomayor dissented, in an opinion that seemed peculiarly strained. Anxious to serve the back-to-nature folks who enjoyed Federally-funded hiking and biking trails, she argued that the 1942 case was only about subsurface rights – which seems to us to be a distinction without a difference – and, anyway, the Brandt decision would hurt the rails-to-trails movement and result in a lot of litigation as private landholders sought to get what was rightfully theirs. This may be so, but cost and inconvenience shouldn’t drive Supreme Court opinions. The law should.

So the right-of-way that the Government once said was an easement but now seemed to be something else, really was just an easement … as it had been all along.

Buttercup:    Drops the wind and stops the mill;
                        Turbot is ambitious brill;
                    Gild the farthing if you will,
                        Yet it is a farthing still.

Captain:     Yes, I know.
                        That is so.


Marvin M. Brandt Revocable Trust v. United States, 572 U.S. 93, 134 S.Ct. 48, 186 L.Ed.2d 962 (2014): The General Railroad Right-of-Way Act of 1875 provides railroad companies “right[s] of way through the public lands of the United States,” 43 U.S.C. § 934. One such right-of-way, created in 1908, crosses land that the Government conveyed to the Brandt family in a 1976 land patent. That patent stated that the land was granted subject to the right of way, but it did not specify what would occur if the railroad relinquished those rights.

Little Buttercup was right - things are seldom what they seem ...

Little Buttercup was right – things are seldom what they seem …

A successor railroad abandoned the right of way with federal approval. The Government sought a declaration of abandonment and an order quieting its title to the abandoned right-of-way, including the stretch across the Brandt patent. Brandt argued that the right of way was a mere easement that was extinguished upon abandonment.

The district court quieted title in the government. The Tenth Circuit affirmed.

The Supreme Court reversed.

It held that the right-of-way was an easement terminated by abandonment, leaving Brandt’s land unburdened. The Court noted that in the 1942 Supreme Court decision in Great Northern R. Co. v. United States,  the Government had argued a position – that the right-of-way was an easement, not a grant of ownership in fee simple subject to a reversionary interest – which was exactly opposite to its position in this case. In Great Northern R. Co. v. United States, the Court found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest.

Thingsareseldom140317Now, the Government was asking the Court to limit Great Northern’s characterization of 1875 Act rights-of-way as easements to the question of who owns the oil and minerals beneath a right of way. But nothing in the 1875 Act’s text supports that reading, and the Government’s argument directly contravenes the very premise of Great Northern: that the 1875 Act granted a fundamentally different interest than did its predecessor statutes. Nor do the Court’s decisions in other cases support the Government’s position, and – to the extent that they could be read that way – the Court said clearly that any such implication did not survive its unequivocal statement to the contrary in Great Northern. Later enacted statutes, such 43 U.S.C. §§ 912 and 940, and 16 U.S.C. § 1248(c), do not define or shed light on the nature of the interest Congress granted to railroads in their rights-of-way in 1875. Instead, those statutes purport only to dispose of interests the United States already possesses.

The land patent Marvin Brandt obtained in 1976 included ownership of the land under the railroad company easement. When that easement was abandoned, Mr. Brandt obtained the exclusive right of possession to the land he already owned.

– Tom Root
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Case of the Day – Thursday, February 26, 2026

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THE GRASSHOPPER AND THE ANT

grasshopper140314Perhaps the problem with America these days is that too many people want something for nothing. Former President Biden waned to give people who understood that they were borrowing money for college a free pass. President Trump wants people to believe the 2020 election was stolen, affordability is a hoax, and that the government owes him billions. And we all want the people we disagree with – and face it, they’re all wrong – to shut the hell up.

Here’s a Vermont case about someone else who wanted something for nothing, a modern take on the grasshopper and the ant. About 50 years ago, the brothers Stanley partnered up to buy some woodland. But only industrious brother George, a busy little worker ant, ponied up the cash for the place, paid the taxes, paid the rent, and managed the affairs of the woodland. Grasshopper John was too busy doing whatever grasshoppers do.

After about 45 years of this, ant George started getting tired of grasshopper John never paying his fair share. Ant George was out a lot of investment, and he decided it was time to pay it back. So he sold the timber on the land for about $46,000.

Suddenly, grasshopper John was very interested in the goings-on, and he sued ant George. But he didn’t just want half of the proceeds. Surely that would be unfair. Instead grasshopper John hires three wise old owls as expert witnesses, and they opine that the timber was really worth anywhere from $60,000 to $80,000. Plus, he retained the services of a foxy old lawyer, who told him he could get treble damages for ant George’s wrongful cutting of the timber (plus a legal fee for the fox).

foxylawyer140314The trial court suspected that John was more snake than grasshopper, but it nevertheless didn’t have much choice but to award him half the value of the timber. The court selected the lowest of the various estimates given by the several owls who testified as experts, still awarding the grasshopper one-half of the $61,785 value of the timber. The court refused treble damages.

The grasshopper was furious! He had been denied what was fair, namely all of it! He wanted the timber valued at $80,000, with his one-half share trebled to $120,000. Fortunately, the wise Supreme Court upheld the trial court, finding that treble damages for wrongful cutting don’t apply where one owner of the land — even if he’s an industrious ant — gives permission. Still, the ant lost $31,000 of his $46,000 to his brother, the grasshopper, whose investment had never amounted to a farthing.

grasshopperb140314The moral, boys and girls, is that a slothful existence and a good lawyer beats hard work and careful investment any day.

Stanley v. Stanley, 928 A.2d 1194 (Sup.Ct. Vt., 2007). Some 50 years ago, brothers John and George Stanley bought a perpetual lease of a 100-acre wooded lot in Victory, Vermont. Defendant George paid the entire purchase price, but the brothers owned the lot as tenants-in-common. From the beginning of their ownership, George paid the annual rent as well as property taxes when they were assessed.

In 1965, he received money from Portland Pipe Company for the right to lay pipe across the property. In the spring of 2002, he hired a logging contractor to harvest and sell the trees from the lot. The logging operations were completed that summer. George didn’t discuss the logging operation with plaintiff John until after it was completed. George figured that “since he had been paying all the expenses relating to the property, he should be able to make the decisions relating to the land.” George got $45,803.32 for the timber removed from the lot. When John learned that timber was being cut, he took pictures of the operation and tried to reach George — who had neither an iPhone nor broadband — without success.

John didn’t try to stop the logging, but after it was over, he sued his brother, seeking an accounting, partition, treble damages under 13 V.S.A. §3606, costs of the action, and attorney’s fees. While he couldn’t afford to share the expense of the land with his brother, John apparently found his checkbook when it came time to hire expert witnesses. He presented testimony from three experts on the value of the timber cut. Thomas Hahn, a private consulting forester, presented two different methods of determining the value of the timber cut from the property, the prevailing market price of a unit of wood in the summer of 2002 based on trade publications (using which he concluded that the value of the timber was $61,785.79), and the “timber cruising” or “sampling” method that would support a finding that the fair market value of the timber was $82,000. Stanley Robinson reviewed the logging contractor’s summary of mill slips and trip tickets, and Alan Bouthelier on his observations from visiting the property prior to the logging. The testimony of these two experts supported a finding that the fair market value of the timber cut was approximately $80,000.

woodpile140314The trial court refused to rely on Hahn’s “sampling” method, dismissing it as too speculative. Instead, it found that the fair market value of the timber cut was $61,785.79, and that plaintiff was entitled to half of this amount. It also ruled that the treble damage statute does not apply to actions between tenants-in-common for the sale of common property, and granted a request for partition. Following the hearing, George gave John $22,901.66, half of what he had been paid for the timber.

None of this was good enough for the rapacious John. So he appealed.

Held: The trial court was affirmed. The Supreme Court held that Vermont’s timber trespass statute — which reads in part that if a person cuts down trees belonging to another person “without leave from the owner,” the injured party can recover treble damages — is plain and unambiguous. The Court said that the statute’s language presupposed that the injured party had ownership rights to the exclusion of the party from whom treble damages are being sought.

The statute is a punitive one, intending to deter intentional trespass and wrongful taking of another’s timber. Because George had an undivided ownership interest in the trees at the time of the logging, the treble damages statute simply does not apply. He simply was not among the intended targets of the statute, those “‘tree pirates’ and ‘arboreal rustlers’ who trespass on another’s property and remove timber to which they have no right.”

John also argued that the trial court erred when it held that the “timber cruising” or “sampling” method of determining the quality and quantity was too speculative. The Supreme Court held that because the trial court, after evaluating several different methods, relied on the testimony of the expert as to one of the methods to determine the fair market value of the timber cut and sold, the Supreme Court would not second-guess it on whether it could have used an alternative method.

– Tom Root
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