And Now The News …

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pinebarkbeetle160825CNN, August 24, 2016: Bark beetles: How tiny tree killers have worsened California’s wildfires

A decade ago, Ben Ray had hoped to ease into retirement at his two-story wooden house nestled in the heart of the Sequoia National Forest. But the 79-year-old central California general contractor, who built homes for his future neighbors in Sierra Nevada Mountain communities such as Ponderosa and Pierpont, and his wife, Michelle, haven’t had the luxury of relaxation. That’s because hundreds of once verdant pine and cedar trees, stretching far beyond their 5 acre spread, have perished at a rate so fast he’s lost count of the carnage.”I don’t know what to do,” said Ray, a rugged heavyset man whose eyes wet behind his tinted sunglasses as he speaks of the destruction. “It’s just devastating to see our forest dying like this.” The pine and cedar trees that have died on Ben and Michelle’s property are among the 66 million trees in California that have died since 2010, according to the US Forest Service. Over the past six years, thousands of fires have raged throughout the state’s lush forests, turning tens of millions of pine trees a charred shade of black. The disastrous drought conditions in California have turned forests into tinderboxes, resulting in record levels of tree deaths during that time…

Buffalo, New York, News, August 24, 2016: Tree trimmer in Elmwood Village pinned, injured when limb breaks

A man trimming a tree over the rear of an apartment building in the Elmwood Village was injured Wednesday morning when the limb he was hanging from snapped and he and the limb tumbled to the edge of the roof below, Buffalo fire officials said. “The limb pinned him to the roof,” said Battalion Chief Steve Keohane. Firefighters were called at about 10:30 a.m. to 353 Elmwood Avenue for a report of a man trapped on a roof, he said. They used the bucket of a ladder truck to reach the man and provide emergency medical care, he said. “It was kind of a tough angle and a tough location,” Keohane said. “We couldn’t do anything from the ground…”

cutnow160825Wellness Mama, August 24, 2016: The bizarre reason to cut down your Bradford Pear Tree

When I started blogging many years ago and began chronicling my experiences making homemade deodorant and other sundries, I never thought I’d write a passionate post about why you should immediately cut down any Bradford Pear trees… but here we are. I know that is a strong statement: Go cut down any Bradford Pear Trees you have right now and never plant another one! But why? They are so pretty with their gorgeous white flowers. Sure, they smell something fierce when they bloom, but they are so pretty! You know what else is pretty? Dingo puppies and Mountain Laurel flowers. But both of those can kill you. Those cute little wild puppies will bite your throat when they grow up. Those delicate little flowers can drop your blood pressure low enough to kill you. Just being pretty doesn’t mean something is good or beneficial and while the harmless-looking Bradford Pear Tree may not bite your throat like a Dingo or lower your blood pressure dangerously like the Mountain Laurel, it is certainly problematic in its own way. In fact, they’ve even been called an environmental disaster…

Charlotte, North Carolina, Observer, August 24, 2016: City Council changes ‘loophole’ in tree-save ordinance that roiled some neighborhoods


Charlotte City Council voted on Monday to change an ordinance meant to save trees that some said was putting neighborhoods in jeopardy by exposing them to over-development. The tree-save ordinance is meant to protect trees in new developments, by requiring developers to save a percentage of trees on new building sites. But some neighbors, especially off Randolph Road, raised concerns that the ordinance was being used to let developers build too many houses on lots in existing neighborhoods. Now, the law will only apply only to larger new residential subdivisions, not existing lots. City Council voted to approve the change 7 to 1, with John Autry, a Democrat, voting against the measure. He said he had supported moving quickly, but needed more time. “I would have liked a little more time to digest this information and chew on it,” said Autry…

Cleanup160824Kalamazoo, Michigan, WZZM-TV, August 23, 2016: Insurance, tree removal tips to clean up from tornado damage

The clean-up continues in West Michigan, after tornadoes moved through the area during the weekend. For some homeowners, it meant dealing with insurance claims. Jason Allen from AAA spent the day, Monday, Aug. 22, surveying the damage. He says if there is no damage, insurance will likely not get involved. If there is, the insurance from the homeowner whose property was damaged, will take care of it. “If we had a situation where the neighbors tree fell onto your property, AAA would pay to remove that tree off your property,” Allen said. First, homeowners should leave the home and protect it from the elements. Often times, your insurance company can provide you with temporary funds, if necessary…

La Jolla, California, Patch, August 23, 2016: Controversial OB Torrey Pine tree comes down

A 73-foot-tall tree in Ocean Beach that became the focal point in a test of wills between municipal government and community activists was removed Monday. City officials contended the nearly century-old Torrey pine at 4652 Saratoga Ave. was in danger of falling and planned to cut it down 10 days ago, but area residents convinced them to have the tree examined further by outside experts. According to Jeremy Barrick, a board-certified master arborist and the city’s urban forester program manager, three arborists affiliated with the city agreed the tree had to come down while two hired by residents split in their opinion. Area resident Bill Posey told NBC San Diego that one of the experts hired by the community found the tree to be of low risk for falling…

lightning160824Laidback Gardener, August 23, 2016: When lightning strikes a tree

Lightning often strikes the highest object of a given sector… and that is often a tree. Trees most likely to be hit are those that stand alone, rise about other trees or are close to water. Oaks, elms, pines, spruce, poplars, maples and ashes are considered most likely to receive a lightning hit. This is in spite of the fact that wood is not good conductor of electricity. However, the sap just under the bark certainly is. Lightning then descends inside the trunk, from the top down and into the roots, carrying up to 100 million volts of electricity and heating the sap until it vaporizes and literally explodes. When a tree is struck by lightning, it may simply be blown apart when the sap expands, but generally the damage is much more discreet. You’ll often see a long strip of bark ripped off and maybe an equally long split in the trunk, but sometimes there is no outward sign of damage except a few branches whose leaves wilt over the following days… unless the tree simply dies, which case all the leaves will wilt and dry up. Some trees recover from a lightning strike, but most do die, sometimes directly, but often from “secondary trauma”. The open wound becomes infested with fungi or insects (borers are attracted in large numbers when a tree is struck by lightning), which can lead to a slow death that can take several years…

Delaware, Ohio, Gazette, August 23, 2016: Tree maintenance responsibility debated

The city of Delaware’s Shade Tree Commission will consider tonight whether to update an existing zoning code about the responsibility of street-tree maintenance. Ted Miller, city parks and natural resources director, said in a memo to the commission that there ”has been some debate about the maintenance practice of pruning street tree in the City of Delaware… The City of Delaware policy is to maintain and have control of trees in the tree lawn or right of way.” The Cheshire Crossing Subdivision’s homeowners association made a declaration that requires each lot owner to care for their street trees…

treefall160823Scranton, Pennsylvania WNEP-TV, August 22, 2016: Man cuts through tree, sending it crashing onto his apartment house in Luzerne County

A man in Luzerne County grabbed a chainsaw over the weekend and cut down his neighbor’s tree that he thought was ruining his car. The tree fell the wrong way and crashed into his own apartment house. Authorities closed the building on Oak Street because a man who lived there was upset about a big tree. The tree sat in his neighbor’s yard, but it had branches above his parking space. Those branches would drip sap onto his car. So Saturday afternoon, the man picked up a chainsaw and cut through the 36-inch wide trunk, knocking the tree right into part of the apartment house. “He decided it was the best thing to do, to get rid of the tree, where he thought it was going to go, I don’t know,” said Terry Best, a Pittston Township code enforcement officer…

Boston, Massachusetts, WBZ-TV, August 22, 2016: Tree worker injured cleaning up debris from Concord tornado

A tree worker has been hurt while cleaning up debris from the tornado that hit Concord Monday morning. The worker was doing private work for a homeowner on Lexington Road, one of the hardest hit areas. He suffered lacerations to his face when parts of a tree shot out of a wood chipper. “He was struck in the head to the best of my knowledge. He was transported to Lahey Clinic,” said Assistant Chief Thomas Judge of the Concord Fire Department. The worker was part of a significant number of crews doing incredibly risky work in an effort to clean up the aftermath of the tornado…

treetrim160823Duluth, Minnesota, News Tribune, August 22, 2016: Logging overtime: Duluth-area tree services have their busiest summer to date

This summer Duluth Tree Service crews have worked 50 percent more hours per week than their usual workload. Amberjack Tree Service crews are working 50 to 60 hours per week. Estimators who usually take sales calls at Rick’s Tree and Stump Removal joined tree removal crews to help with the extra work. Not surprisingly, the summer of 2016 has not been an average summer for Duluth-area tree removal services. Jim Hakala, owner of Amberjack Tree Service, said he had 500 calls asking for tree services before noon the day of the July 21 storm that knocked down countless trees in Duluth and surrounding communities. Five calls per day is a more regular total, he said. “I’ve never had anywhere near this many calls since we’ve been in business,” he said. “You can only respond to so many…”

Madison, Wisconsin, WISN-TV, August 22, 2016: Racine homeowner worries split tree will fall on his house, blames We Energies

A Racine man is worried that half of an enormous tree, left standing after a recent storm, is putting his home in danger, and he said We Energies is to blame. The tree was split in half and fell down almost a month ago. The homeowner said We Energies left the tree unstable, but the utility company said that’s not the whole story.”I said, ‘You can’t just cut all the weight off of one side and expect that it’s not going to fall,'” homeowner Mark Valade said. Valade said he saw it coming, and now can’t afford to clear away the tree that fell across his fence into his yard, or take down the rest of it still hanging over his home. He thinks it should be someone else’s responsibility…

iowaash160822Lincoln, Nebraska, Journal Star, August 21, 2016: Visit an ash tree while you still can

If this summer’s heat, humidity and insects have kept you indoors, take heart: cooler, drier days are just around the corner. I encourage you to plan a woodland or neighborhood expedition this fall to identify an ash tree. Even if you have never given much thought to specific trees, now is the time to see an ash tree up close. In the same way that an artist achieves greater recognition after his or her death, the praises of the ash tree will be sung most poignantly as these giants succumb to the Asian emerald ash borer. The emerald ash borer was identified in July 2002 in southeastern Michigan. Evidence suggested that it had been established in that area for at least six to 10 years before discovery. Tree experts are now advising both for and against treatment. The cost of treatment and eventual removal of large, dead ash trees is no doubt troubling many private and public owners of these trees…

London, UK, Daily Mail, August 21, 2016: Tree falls on camping family in Oregon killing one child, 9, and injuring 8-year-old sibling

One child was killed and a second hospitalized in rural Oregon Friday after a tree fell on a family who were out camping. The family – who are not being named by police – were camping by Fall Creek when the tree broke and fell at around 6:20pm, KVLA reported. A nine-year-old child died at the scene, while an eight-year-old was helicoptered to hospital. No others were injured in the accident…

sugarmaple160822USA Today, August 21, 2016: Rains doom 400-year-old sugar maple tree

A nearly 400-year-old sugar maple tree in Ontario, Wayne County, said to be the largest in the state, will come down soon after a massive branch fell during heavy rains. The tree stands on the property of the Heritage Square Museum, run by the Town of Ontario Historical and Landmark Preservation Society, on Ontario Center Road. Arborists measured it and took samples years ago to determine the tree’s age, said Ann Welker, vice president of the historical society. The tree was 79 feet tall and 18 feet in girth in 1996, and officially unseated another sugar maple in Chautauqua County at the time for the honor of being the state’s largest sugar maple tree. The sugar maple is New York’s official state tree, designated in 1956…

International Business Times, August 21, 2016: Bosnian pine tree Adonis is Europe’s oldest living thing

In the highlands of northern Greece lives a Bosnian pine tree — Europe’s oldest living thing. Scientists from Sweden’s Stockholm University, Germany’s University of Mainz and the University of Arizona in the U.S. announced Friday that the tree is more than 1,075 years old. “It is quite remarkable that this large, complex and impressive organism has survived so long in such an inhospitable environment, in a land that has been civilized for over 3,000 years,” Swedish dendrochronologist and leader of the expedition, Paul J. Krusic, said in a statement. The tree was found in a forest in the Pindos mountains near Greece’s border with Albania. Researchers took a core of its wood and counted the rings to determine the tree’s age.

righttree160819Vancouver, British Columbia, Vancouver Sun, August 18, 2016: Rules of replacement: Finding the right tree to plant

Yes to ash, beech and elm. No to banana, palm and laceleaf maple. Yes to dogwood, birch and hornbeam. No to topiaries, espaliers, cedar hedging and weeping cherry trees. If you’re a Greater Vancouver homeowner, you should know that if you plan to cut down a perfectly healthy tree on your property, you’ll be expected to replace it with something just as good, if not better. But let’s be clear about one other thing — August is definitely not the right time to be planting a new tree…

Madison, Wisconsin, Wisconsin State Journal, August 18, 2016: Capitol Square tree that snapped in half and injured 2 people was deemed healthy recently by tree expert

Experts may never figure out why a large oak tree on the Capitol Square that had just been inspected and deemed healthy broke in half Tuesday evening, injuring two men who were walking near it, a Madison arborist said. “It will be declared an act of God,” said Briana Frank, the owner of Tree Health Management, LLC. The men were pulled free by witnesses and taken to a hospital after parts of the tree fell on them in calm weather conditions at about 6:30 p.m. on the Carroll Street side of Capitol Square at West Washington Avenue, according to Madison Fire Department spokeswoman Cynthia Schuster. Schuster identified the two men as Casey Wittmann and Emmett Strohfeldt. She did not include ages or addresses for the two men…

juniper160819bioGraphic Magazine, August 18, 2016: The tree that ate the west

No animal is more emblematic of the sagebrush steppe in trouble than the greater sage-grouse (Centrocercus urophasianus). These iconic western birds, about the size of barnyard hens, gather each spring in groups called “leks.” Here, the males inflate yellow air sacs in their chests, spread their fanlike tails, and dance for the approval and attention of the females—a display so show-stopping that many people have dubbed them America’s birds of paradise. Unfortunately, these reproductive spectacles have become increasingly rare as the species’ population has plummeted 80 percent since 1960, primarily due to habitat loss. The sage-grouse is a kind of indicator species, signaling the health—or lack thereof—of the ecosystem it inhabits. As its name suggests, the sage-grouse depends on sagebrush for food and nesting cover. A number of factors in addition to the juniper invasion have contributed to the bird’s shrinking habitat, including energy development, invasive weeds, drought, and urban expansion. But juniper’s impacts on grouse go beyond the loss of sagebrush: Grouse have evolved to give a wide berth to any tree more than four feet tall, because anything taller than a sage bush represents a potential perch for a predatory hawk. When mature juniper cover reaches just 4 percent—picture taking a standard checkerboard and filling in just two and a half of the squares—sage-grouse abandon their leks…

Oklahoma City, Oklahoma, OK Gazette, August 18, 2016: Chicken-fried news: Treasured trees

Some people just really love trees, and some just don’t like it when companies come onto their property and cut down their trees without asking. Southwest Oklahoma City property owner Dave Moore told KOCO 5 News he was astonished to come home one day and find 10 trees on his property were cut down and ground up. There is also no way it was a case of mistaken tree-dentity either, he said, because clearing crews hopped an electric fence with their equipment in order to do it. “They took down some of our most valued trees with absolutely no notice,” Moore said. OG&E said a contractor had been leaving the Moores notes on their fence for two weeks, but Moore said he didn’t receive them. The power company explained that the trees were in the way of an easement under power lines and it hired the contractor to take care of the problem…

overgrown160818Harrisburg, Pennsylvania, Patriot-News, August 17, 2016: Massive tree from vacant lot engulfs Harrisburg home, exposing thorny situation across city

Angel Layton bought a home in Harrisburg 10 years ago next to a vacant lot with a single tree on it. Now that tree has exploded into a 70-foot tall sprawling menace that has dislodged the awning covering her back porch, ripped holes in the roof and obscured her balcony. Broken limbs drop onto her home during rain and snowstorms and others limbs dangle precariously above her home in the 200 block of North 15th Street. She’s worried the entire tree could come crashing down at any time, hurting her or her 1-year-old baby. “It’s just gotten so out of control,” she said. “It scares me.” Layton tried to trim the tree herself or hire laborers in previous years. But the tree “grows like wildfire” and lately she hasn’t been able to afford it. She also doesn’t think she should have to pay to repeatedly prune a tree owned by someone else…

Calgary, Alberta, CBC News, August 17, 2016: Dog-walking tree thief pleads guilty to ‘extremely stupid’ crime

Calgary’s most notorious tree thief pleaded guilty on Wednesday, admitting to stealing two Japanese maples worth $1,000. Ryan Duguay and his reluctant accomplice, Lucy the Jack Russell terrier, were caught on CCTV outside the Royal Brasserie last week, taking the two trees from planters outside the restaurant. Provincial Court Judge Harry Van Harten threw Duguay a bone and released the 31-year-old, agreeing with defense counsel that time served was a sufficient sentence. Duguay’s crime was a “really profoundly juvenile theft,” said prosecutor Meagan Blake. The video of the Aug. 8 theft was posted to social media last week to Inspector Gadget music and quickly went viral, prompting an anonymous tip that led officers to a home in Calgary’s Lower Mount Royal neighborhood on Thursday…

treefall160818St. Louis, Missouri, KMOV-TV, August 17, 2016: Who pays when a tree from next door falls into your yard?

If a tree from a nearby property falls onto your land, who is responsible for paying for its removal? It’s a question that a Kirkwood man was forced to answer recently when a tree belonging to a private school next door fell onto his driveway. Homeowner Bob Nelson told News 4 the school should be the one to pay for removal. However, experts say the condition of the tree determines who pays, Insurance Agent Julie Price said if the tree is alive and healthy, then the owner of the land that the tree came from is not responsible for any damages or removal fees. The tree that fell on Nelson’s property appears to be healthy, meaning he is responsible for removal costs…

Detroit, Michigan, Free Press, August 17, 2016: Police investigate man’s death while cutting a tree

Police are investigating the death of an Ogemaw County man, killed in an apparent tree-removal accident. About 3 p.m. on Monday, Aug. 15., Michigan State Police troopers responded to the site in West Branch Township. Jared Kaltenbach, 24, was working with an assistant on a tree-removal job, troopers report. Kaltenbach was wearing a climbing harness and a hard hat and was secured to the tree about 50 feet above the ground. “When attempting to fell the tree, the tree trunk broke and struck Mr. Kaltenbach,” troopers wrote in a press release. The incident caused fatal injuries to Kaltenbach…

eab160817Washington, D.C., McClatchy Newspapers, August 16, 2016: How is a New York beetle linked to wildfires in the West?


In an odd twist of politics, Western lawmakers might soon benefit as a bright green beetle spreads across upstate New York, threatening the trees used to produce bats for Major League Baseball. The pest, called the emerald ash borer, is a particular headache for New York Democratic Sen. Chuck Schumer. During a recent visit to the Rawlings Adirondack Bat Factory in Dolgeville, N.Y., Schumer said the infestation could kill millions of ash trees and that “America’s favorite pastime has also taken a hit.” He wants Congress to respond but complained that federal money to fight the beetle has been diverted to pay for the rising costs of fighting wildfires. Schumer’s frustration has sparked an unusual alliance with Idaho Republican Sen. Mike Crapo and Oregon Democratic Sen. Ron Wyden, who for years have sponsored a bill to get Congress to treat wildfires as national disasters. That would make them eligible for emergency funding, ending the practice of “fire borrowing,” in which the U.S. Forest Service is forced to transfer money from other programs to pay for the added expense of wildfires. While the legislation has fizzled since 2013, proponents say it will have a much greater chance of passing when Congress returns from its summer break, aided by Schumer’s political muscle. It’s an example of the coalition-building done by Crapo and Wyden as they seek to make the issue a national concern…

Phys.org, August 16, 2016: Tree-rings reveal secret clocks that could reset key dates across the ancient world

Oxford University researchers say that trees which grew during intense radiation bursts in the past have ‘time-markers’ in their tree-rings that could help archaeologists date events from thousands of years ago. In a new paper, the authors explain how harvesting such data could revolutionize the study of ancient civilizations such as the Egyptian and Mayan worlds. Until now scholars have had only vague evidence for dating when events happened during the earliest periods of civilization, with estimates being within hundreds of years. However, the unusually high levels of the radioactive isotope carbon-14 found in tree-rings laid down during the radiation bursts could help reliably pinpoint dates. The distinct spikes act as time-markers like secret clocks contained in timber, papyri, baskets made from living plants or other organic materials, says the paper published in the Proceedings of the Royal Society. Scholars believe that intense solar storms caused major bursts of radiation to strike the Earth in 775 and 994AD, which resulted in distinct spikes in the concentration of radiocarbon in trees growing at that time. The events are precisely datable because the tree-rings belong to archives in which the growth year of each tree-ring is exactly known. In the new research, the authors outline how they could detect similar spikes elsewhere within the thousands of years of available tree-ring material from across the world. They say even a handful of these time-markers could allow them to piece together a reliable dating framework for important civilizations. The crucial point is that the time-markers will also be present in every living plant or tree that grew at the time of a radiation surge, including in the timber used in ancient buildings or other artifacts fashioned from the plants…

trimprotest160817St. Louis, Missouri, Post-Dispatch, August 16, 2016: Neighborhood tree chop has Vinita Park woman shaken, city mayor unswayed

A Vinita Park woman is lamenting the demise of two trees in front of her house after a company hired by the city cut them down Tuesday. Verna Gremaud, 83, said Tuesday the trees had been planted in front of her house in 1979 as a part of tree planting program. But the tree’s roots had started to create unevenness in the sidewalk. Gremaud said she wanted the sidewalk fixed but the city’s board voted to cut down the trees instead at a meeting Monday by a 5-1 vote. The one person who voted against the move was Gremaud’s son. “I protested loudly,” Gremaud said of her opposition to the decision to cut down the trees. Gremaud has lived in the area since 1958 and acknowledged often being critical of the local municipality. Vinita Park Mayor James McGee said the move to cut down the trees shouldn’t have come as a surprise after weeks of discussions. He said the decision to cut them down was ultimately about safety. The city’s board voted to cut down two other trees in the area as well…

Atlanta, Georgia, Journal-Constitution, August 16, 2016: Soon-to-be father of twins dies in tree-trimming accident

A father and well-known youth baseball coach was killed while cleaning debris left behind by a tornado in Yulee, Florida. Family said Christopher “Adam” Nichols, 33, had two sons and his wife is 13 weeks pregnant with twins. The business owner was killed in a tree-trimming accident at a home on Scarlet Oaks Court on Saturday. Nichols was working with two of his employees when a large pine tree began to fall toward him. Witnesses said Nichols tried to push the tree and slipped. He fell and the tree fell on him…

 

protest160816Columbia, South Carolina, The State, August 15, 2016: Don’t let tree trimmers onto your property, leader advises upset homeowners


Arts professor Virginia Scotchie is angry that tree timmers hired by SCE&G leveled a tree she planted eight years ago in memory of her murdered brother. “It was just my way of coming to terms with it,” the University of South Carolina professor said Monday of the shooting death in Asheville of her brother, Tom Scotchie. “I think a lot of people plant trees in memory of people they’ve lost.” Virginia Scotchie was among about 60 residents of Hollywood Rosehill, Wales Garden and Shandon who gathered under a large shade tree to protest South Carolina Electric & Gas Co.’s tree trimming practices. She called it “tree butchery.” The chaste tree that reminded her of her brother is now a stump, Scotchie said. She was among several people who objected to the utility company’s practices during an outdoor protest and walking tour along South Saluda and Tugaloo avenues. Protesters took turns railing against the tree-trimming company the utility hired, Trees, Inc., whose employees entered their yards without permission, who don’t care about the appearance of their neighborhoods or who damaged their property while clearing trees and tree limbs from power lines…

Calaveras, California, Enterprise, August 15, 2016: Property owners advised to say ‘no’ to removing hazard trees

More than 100 property owners may just say “no” to Calaveras County’s offer to bear the cost of removing trees on private property killed during the Butte Fire that now pose threats to public roads. The reason: attorneys who represent Butte Fire victims say they are advising their clients not to sign forms that grant permission for county-hired contractors to go onto private property and do the tree-removal work. “The county’s trying to victimize these people again,” said attorney Steve Campora, whose Sacramento-based firm represents a number of Butte Fire victims. County officials disagree. They say that the form contains standard language. They said that if contractors make mistakes, then the contractors will be responsible for repairing damage or compensating property owners for the losses. “It is a standard cross-indemnification clause,” said Assistant County Counsel David Sirias. “The outcome in a court of law is going to be exactly the same. We cover for our mistakes. They cover for their mistakes…”

deadxmas160816Pasadena, California, Star-News, August 15, 2016: The drought is killing Altadena’s Christmas Tree Lane, but there is a last ditch effort to save it

The punishing Southern California drought is claiming its latest victim: Christmas Tree Lane. The 96-year-old tradition of colorful holiday lights draped over the outstretched branches of 150 deodar cedar trees that line both sides of historic Santa Rosa Avenue may be in trouble. That’s because 17 percent of the famous trees imported from the western Himalayas in 1885 are stressed and face imminent death unless they receive water quickly, according to the Los Angeles County Department of Public Works Tree Maintenance Department. The county has identified 26 sickly specimens out of 150 deodar cedar trees (cedrus deodara) stretching across Santa Rosa between Altadena Drive and Woodbury Avenue for about 0.7 miles, forming the basis of the oldest outdoor Christmas lighting spectacle in the United States, listed on the National Register of Historic Places…

San Diego, California, KGTV, August 15, 2016: Letting go: Neighbors to let Ocean Beach tree come down

Neighbors have given up their fight to save a nearly century-old Torrey Pine in Ocean Beach after an independent arborist determined the behemoth tree is diseased, dying and at risk of falling over. On Sunday night about two dozen neighbors gathered around the 73-foot tree at 4652 Saratoga Ave. for a candlelight vigil, a sage ceremony and some final goodbyes. “It’s sad, it’s like losing a family member almost,” said Kristi Castrogiovani, who has lived on the street for 16 years. The tree is named Esperanza, or Elvis, depending on who you ask. The old tree had neighbors divided between those who feared it would fall and wanted it removed and those who thought the tree should stay…

wire160815Laid Back Gardener blog, August 14, 2016: Free your tree

One of the damages professional arborists see the most frequently on trees is strangulation. Someone long ago staked the tree and simply never removed the wire. Or installed a hammock or a clothesline between two trees using a rope and now the rope is eating into the bark. There are dozens of other reasons why someone might think wrapping a restricting device around a tree might be a good idea, but the fact remains: this is never good for woody plants and could eventually kill the tree. It is important to understand that tree trunks increase in diameter as they grow. So do branches. So if a cord, a wire or even a supposedly safe tree tie is attached around a trunk or branch and stays in place too long, it will cause damage. The bark will start to grow around it, leaving a permanent mark. Worse, if left too long, the restriction will keep sap from flowing through the tree, eventually killing all growth above the constricted part. This is especially annoying in that it can take years to finally kill the tree and losing a long-established tree is not something anyone wants to see happen…

Temecula, California, Valley News, August 14, 2016: Nature’s air conditioners

If you have ever escaped from blazing hot sun in a shady spot under a tree, you know how these natural air conditioners can make you feel more comfortable. A mature shade tree can block up to 90 percent of solar radiation, which could translate to a significant reduction in your home cooling cost. A Pennsylvania study found that air conditioning needs could be reduced by up to 75 percent by shading a house with trees. Computer models devised by the U.S. Department of Energy predict that the proper placement of as few as three shade trees will save an average household $100 to $250 in energy costs each year – and that study was done before energy costs soared. On hot days, some large trees can pull hundreds of gallons of water through their leaves. This water evaporates, keeping the tree and its immediate surroundings cool. With the less-than-efficient use of fossil fuels for heating and cooling our buildings, it only makes good sense to take advantage of the following principles…

treecore160815New Hampshire Public Radio, August 14, 2016: Something wild: Learning from a tree core

How do you determine the age of a tree? Just count the rings, of course! One ring equals one year of growth. If you’ve ever stumbled upon a tree stump you may have even done it yourself. But if you’re counting rings on a stump, the life of that tree is over. So how do you count those rings while the tree is alive? Experts use a special tool called an “increment borer,” a tool used to extract a small core from a tree, allowing a dendrochronologist to count its rings without having to cut it down. This T-shaped device has been used for centuries. The cross of the T is the handle, which is connected to a long, hollow tube that has a drill on the end. Line up the drill with the trunk of the tree and start twisting like a screwdriver. The core is captured in that hollow tube, resulting in a long straw of wood to be examined…

San Francisco, California, Chronicle, August 14, 2016: SF officials to inspect trees after falling limb injures woman

The city will review the condition of all trees at Washington Square after a limb from a pine tree fell and hit a woman Friday, sending her to the hospital with life-threatening injuries, Mayor Ed Lee said over the weekend. The 36-year-old was walking with her children, ages 5 and 6, at the North Beach park around 3 p.m. when a roughly 100-pound branch dropped on her head from 50 feet above, authorities said. The woman, whose identity has not been released, remained in critical condition Sunday at San Francisco General Hospital. The mayor released a statement saying city officials are investigating the incident and that crews would be sent to the park to inspect the trees…

 

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Case of the Day – Thursday, August 25, 2016

GIVE ‘EM AN INCH …

fence150722We continue our tour through the House of Bad Neighbor Horrors today (see our post from Tuesday) with a look at neighbors Paula A. Luckring and Christopher Blair.

There’s an old legal adage which argues that “a bad settlement is better than a good lawsuit.” Paula sues her neighbor, arguing that branches from his trees overhung her property, and that they were doing all the kinds of things trees do – you know, dropping twigs and leaves, leaking sap, growing roots, just normal tree stuff. Paula insisted that she was entitled to something north of $13,000 because the trees were “trespassing” on her property, making claims that sounded a lot like her lawyer had read Fancher v. Fagella.

Neighbor Chris Blair counterclaimed, pointing out that if Paula wanted to really get technical, her deck – which she claimed was being damaged by his trees – was built partly on his property, and it should be removed.

The case looked like the trial would be the Saturday night main event, but alas … before trial, the parties settled. There’s nothing wrong with that. Civil actions are just a formalized means of settling disputes, a little more complex and fact-driven than “rock, paper, scissors,” but often, it seems, just as random. When the parties find a means short of a full-blown trial to resolve things, time and money are saved, and people are able to get on with their lives.

That must be what Chris Blair thought, because he settled the case with Paula Luckring before trial. He agreed to give Paula title to an 11-foot strip of his own land and to build, at his own expense, a fence marking the new boundary line between their properties.

appease150722We have to hand it to Chris. He apparently was a Bible scholar, and remembered Matthew 5:39 – 40: But I say to you, do not resist an evil person; but whoever slaps you on your right cheek, turn the other to him also. If anyone wants to sue you and take your shirt, let him have your coat also…” For that matter, Neville Chamberlain thought that giving Hitler Czechoslovakia would keep the brown shirts out of Paris.

We’re not saying Ms. Luckring was evil, nor would we ever equate her territorial ambitions with those of the Third Reich. For a concession to be effective, however, the party being appeased has to be acting in good faith. This is rarely the case. Rather, the problem is that the party being appeased has probably acted in bad faith in order for affairs to get to the point that appeasement is necessary. Hitler had the “Anschluss.” Without it, Chamberlain wouldn’t have needed to make a deal. Putin started by taking South Ossetia from Georgia. Then, he grabbed Crimea, and now he wants a piece of Ukraine (if not Moldova, Estonia and the other Baltic states as well). History has shown us that appeasement doesn’t work, because appeasement only convinces the appeased party that bad conduct pays.

Just ask Chris Blair. Chris thought he had bought peace by giving away a piece of this land. But when Chris hired a fence company to build the agreed-upon fence along the new boundary, Paula Luckring refused to let the contractor set foot on her property during the construction process. It’s hard to build a fence from one side only. To further appease Ms. Luckring, the contractor built the fence 13 inches into Chris’s side of the boundary. After that, when Chris’s caretaker (Chris himself had severe Parkinson’s, a condition that undoubtedly only goaded Ms. Luckring into further predations) would try to use a weed whacker on the grass growing in the 13-inch space between the new boundary and the fence, Ms. Luckring demanded that he go the cutting without setting foot on her property. However, she magnanimously conceded, she would cut the grass on the 13-inch strip … if Chris gave her an easement for the 13 inches of space.

nomans150722The trial court was drawn back into what it called the “predictable drama” that arose by Ms. Luckring’s demands. It told Paula that she had to pay to have the fence moved and reinstalled right along the boundary. No 13-inch “no man’s land.” No easements. No more trespassing actions.

Naturally, Ms. Luckring appealed. The appellate panel was having none of it. It held that “a mere cursory review of the Plaintiff’s pleadings and her own testimony … adduces an ongoing pattern of bullying of a Defendant who granted her the moon and the stars in acquiescing to her unceasing demands, and yet was confronted with demands for more …” It’s not unheard-of for a plaintiff to cripple her case by her own testimony, but to prove yourself to be a bully?

Under the circumstances, making Paula pay to relocate the fence seemed to the court to be a lot like justice. Approximate justice, but still justice.

Luckring v. Blair, 2014 Pa. Dist. & Cnty. Dec. LEXIS 3 (Com.Pl.Ct. Pennsylvania, Dec. 3, 2014). Paula Luckring sued neighbor Christopher Blair, alleging that his pine and sycamore trees trespassed onto her property, causing public safety issues that had been presented to the local township authorities. She additionally complained of damage caused by “tree sap, needles, branches, cones, roots” constituting a “nuisance” because the trees overhung, fell upon, and grew under her property which caused damage such as a broken window, damage to a deck and stamped concrete, as well as clogging a sewer line and causing landscape damage. She demanded $13,369 for cutting down or trimming the offending trees and restoring her property to its previous condition.

trespass150722Blair countered that he had given Luckring permission to trim the sap-dripping white pine tree all the way back to its trunk, but her trimming caused the sap to drip excessively because there were no tree branches remaining to catch and absorb its flow. He also said that she had previously accepted his written permission and cut down the encroaching white pine tree at her own expense. He argued she should not now be able to renegotiate that contract. He also counterclaimed, alleging that Luckring was trespassing on his property with her deck and retaining wall.

The parties settled the case before trial by signing a settlement agreement that called for Blair to grant title to Luckring, free of charge, to an 11-foot strip of his own land and to build, at his own expense, a fence marking the new boundary line between their respective parcels. Nevertheless, the parties were back in court a year later seeking to resolve the predictable drama ensuing from the Plaintiff’s abject and literal refusal to allow the fence company to set foot on her newly acquired property in order to erect the structure. The contractor then built the fence thirteen inches inside the Blair’s side of the new property line in order to appease the Plaintiff in that regard. Adding further insult to injury to Blair, who suffered from severe Parkinson’s Disease, Luckring demanded that when Blair cut the tall grass and weeds on the 13-inch strip of his property on Luckring’s side of the fence, such work must be accomplished without setting foot on her land. She offered to cut the grass and weeds herself, but only if Blair granted her an easement to that additional piece of his property.

The appellate court enforced the settlement agreement by ordering Luckring to move the fence to the boundary line of the respective properties at her own expense.

Luckring appealed.

Held: The enforcement of the settlement agreement was upheld.

The appellate panel noted with disdain that after Blair applied for a building permit for the fence in May 2013, Luckring made multiple calls to Haverford Township officials to note her opposition to the fence despite having agreed in the settlement not to oppose in any manner the erection of the fence and to waive any and all objections thereto. She also erected signs on her property pointing in the direction of Blair’s residence saying “No Trespassing,” and put up a sign on her property order-ing the fence company not to install the fence all the way to the sidewalk, contrary to Blair’s in-structions. She also initiated a verbal confrontation with Mary Blair, in which she accused the Blairs of being “too cheap to get their own survey”, even though the settlement agreement required Luckring to bear the expense; and she hammered stakes into the ground on Blair’s property and – after the fence was built – she entered the Blair’s property to “wash” the brand new fence.

Whatever Ms. Lucking might do for a living, we're betting it's not driving the Welcome Wagon.

Whatever Ms. Lucking might do for a living, we’re betting it’s not driving the Welcome Wagon.

The Court noted that when Luckring was asked at the hearing to expound upon her belief that the parties must strictly adhere to the terms of their settlement agreement regarding the need to care for the portion of the Blair’s land outside the fence line and abutting her property, she replied that, if the caretaker stepped on her property during this process, he would be trespassing and that she would sue.

The Court concluded that a “mere cursory review of the Plaintiff’s pleadings and her own testimony at the Hearing on the Defendant’s Petition to Enforce Settlement adduces an ongoing pattern of bullying of a Defendant who granted her the moon and the stars in acquiescing to her unceasing demands, and yet was confronted with demands for more. The parties’ Settlement Agreement and Release provided for a fence to be built by the Defendant on his side of the new boundary line of the neighboring properties, albeit without trespassing on the Plaintiff’s land. A reasonable interpre-tation of this requirement would result in the edge of the fence being placed on the edge of the Plaintiff’s new property line and not crossing this point of demarcation. Moreover, the momentary intrusion involved in its construction would be of no concern whatsoever with regard to the fence contractor’s presence on the Plaintiff’s side of the boundary line in order to complete the effort. However, the Plaintiff took the extreme position that enforcement of these provisions must be strict, and refused to permit the fence installer to step on her property to undertake its construction in the place designated by the Defendant in express accordance with the parties’ stipulated Agreement. As a result, the fence contractor took it upon itself to erect the structure thirteen inches inside the Defendant’s side of the boundary line, instead of on the line itself, in order to placate the Plaintiff. The Plaintiff then added to this mix of unreasonableness and bad faith by complaining that the Defendant’s landscaper was stepping on her property when clearing weeds and high grass growing on the thirteen inch strip on her side of the fence that remained in the ownership and possession of the Defendant.”

Calling Luckring’s conduct “obdurate and [in] bad faith,” the Court concluded that Luckring had not acted in good faith, and the trial court’s order that she pay to move the fence “ was warranted and necessary to achieve justice in this case.”

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Case of the Day – Wednesday, August 24, 2016

DANGER TREES, WILL ROBINSON!

No danger trees in the middle of the woods...

No danger trees in the middle of the woods…

In the tree world, a danger tree is generally defined as a tree that (1) is diseased, decayed or injured; and (2) is located in a place where it can hurt people or property if it falls. A dead tree standing in the middle of Winnie the Pooh’s Hundred-Acre Wood is not a danger tree, because if it falls, it won’t hit Pooh’s house or Christopher Robin.

If you’re a public utility, however, you don’t take such a Pollyannish view of danger trees. Instead, a utility tends to define a danger tree the real estate agents define houses: it’s location, location, location. To the power company, a tree is a danger tree if it is too close to power lines, no matter what its condition.

Naturally, this leads to plenty of tension. It’s simple math for the utility: if the tree is within x feet of a conductor, it comes down. To the landowner who waxes rhapsodic about his or her silver maple, there’s no justification for removing a healthy, beautiful hardwood just because of where it is standing.

dangerwill160824Our sorry plaintiffs today, the Raglands, found out the power company was clearing its right-of-way, and demanded that that the utility negotiate with them about leaving some beloved pines. The power company didn’t bother, but instead came through with chainsaws a–buzzing, and removed every tree within 5 feet of a conductor. That was the company’s standard. When the Raglands sued, they hired an expert who testified that the trees removed were young, healthy, and posed no risk to the power lines.

Especially in the Internet age (which started after this case), there’s no excuse for failing to check out your expert. The unsuspecting Raglands had hired a guy who used to work for Alabama Power Company. When he did, he based his opinion solely on height, the standard the power company used.

After the expert’s past conspired to kneecap his testimony, the Supreme Court of Alabama held that the beauty of Alabama Power’s standard was that it was so easy to use. If you use the Raglands’ proposal to measure age, health, size and some mushy opinion testimony on how likely the tree was to fall on power lines, there would be no end to litigation. No one wanted that (lawyers excluded). The power company’s simple distance-to-conductor standard was easy for homeowners and utilities to understand and apply.

The power company’s trimming of Raglands’ trees based on distance-to-conductor was held to be proper.

Alabama Power Co. v. Ragland, 406 So.2d 363 (Sup.Ct. Ala. 1981). The Raglands had a two-acre plot near Bessemer next to land on which Alabama Power had a right-of-way and on which it ran three high-voltage transmission lines, the closest of which was only a few feet from the Raglands’ property. When building his house, Mr. Ragland left standing some pine trees that blocked the view of the power lines from his house. Alabama Power gave him notice that the company would be cutting trees along its right-of-way.

Mr. Ragland called an attorney, who told him to have the Alabama Power call him before cutting the trees. Alabama Power did not, but instead proceeded to cut down 15 trees and top two others. Ragland sued Alabama Power for trespass.

After the trees were cut, Mr. Ragland hired a forester who inspected the stumps and other conditions about the Raglands’ property. He testified that these trees did not pose a concrete threat of injury to the transmission lines. But the forester also had worked for Alabama Power, and when he did, he considered height almost exclusively. When working for the Raglands, he also considered health of the trees, neighboring trees, and weather conditions.

treelines160824Alabama Power’s standards for clearing trees along transmission lines were to cut any tree that would fall within five feet of the nearest conductor. Alabama Power’s 1975 records showed 1,807 tree-caused outages on 5,000 miles of distribution lines and five tree-caused outages on 500 miles of transmission lines. Nevertheless, the trial court found for Ragland, holding that Alabama Power had not shown the trees it removed were “danger trees.”

Alabama Power appealed.

Held: The Supreme Court reversed. It found that if Alabama Power had to make a tree-by-tree determination of “concrete threat of injury” based on the health of the tree and other arguable factors, the efficiency of tree-clearing operations would be substantially reduced and outages would probably increase. Alabama Power would also be subject to suit from any disgruntled property owner who does not agree that his trees pose a threat to neighboring lines.

On the other hand, if Alabama Power continued using its 5-foot rule, property owners would have a definite standard by which to trim their trees. Thus, the trial court’s jury instruction defining “danger trees” as trees which by reason of size or condition and contiguity to power company right-of-way involved a concrete threat of injury to power company transmission lines placed too great a burden of proof on the power company, which had a right and authority to remove trees outside of its right-of-way as might injure or endanger by shading, falling or otherwise any of its works.

Alabama Power thus could properly rely on its 5-foot rule, which allowed it to cut any tree that would fall within 5-feet of the nearest conductor.
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Case of the Day – Tuesday, August 23, 2016

PEOPLE BEHAVING VERY BADLY

Hope Solo, Vijay Goel, that finger-waving Russian swimmer Yulia Efimova, and of course Ryan Lochte … we’ve had a belly full of people behaving badly in the past 10 days of Olympic Games. We’re going to make you earn that gold medal for patience, because here are a few more. 

Welcome to the neighborhood ...

Welcome to the neighborhood …

Meet the Cooleys, neighbors who were so bad as to drive the Court to write a plaintive plea that everyone try to get along. How bad, you ask? Well, Mrs. Cooley tried to run down her neighbor with her car. She built a chicken-wire spite fence. Her son threatened to beat up his elderly neighbor (who had just had a heart transplant). Yes, that bad …

This case is one of those rare fact-driven trial court decisions worth reading just to get the flavor of the Court’s incredulity that people could carry on like this. At one point, the judge observes that “[o]ne could almost use that well worn lawyer’s expression ‘I rest my case’ after merely viewing Mrs. Cooley’s Exhibit 12, which in gruesome detail sets out the ‘this is my property’ syndrome.” The court finally issues a 15-point injunction ordering the Cooleys to stop doing 12 acts of malice, and the Quarantas to refrain from three others. It found application for a seldom-used Connecticut statute prohibiting structures built out of malice, banning a chicken-wire monstrosity erected by the Cooleys as a “spite fence.” Finally, it found the often-alleged but seldom-proven “intentional infliction of emotional distress” tort to have been shown here, and ordered the Cooleys pay the Quarantas legal fees.

At the end of its opinion, the Court ordered each party to read his final words out loud. Those were a plea by the Court for these people to rewind the clock to the beginning and try to get along. The Court’s frustration and sense that no matter what the law said, nothing would stop the bickering, comes through. Not great moments in the development of the law … just a neighbor law tale worth reading.

There was even a

There was even a “spite fence” in the story …

Quaranta v. Cooley, Not Reported in A.2d, 2007 WL 4577942 (Conn.Super. 2007). People behaving very badly. You know how the opinion’s going to go when the Court begins by quoting an old Supreme Court opinion that “… it is the bickerings, spite, and hatred arising from neighborhood quarrels; it is difficult for any legislation to remedy such evil.”

The Quarantas were senior citizens who had lived in the same home for 26 years. Mr. Quaranta was on life support system and eventually had a heart transplant. The Cooleys were younger than the Quarantas, but had a 25-year-old son and health considerations of their own. When the original landowner subdivided his property into the lots which became the homes of the Cooleys and Quarantas, there was an existing paved driveway to the Quarantas’ home from the street, bordered with a split rail fence and a grassy area on each side. The landowner created by deed two 25’ easement roads (for a total width of 50 feet) over the same area on which his driveway existed. Each lot owned 25’ of the road, and each owner had the right to pass over the 25 feet owned by the other. The practical effect of these easements is to allow all three parcels of land to share access to the public street with one common driveway. Although the neighbors couldn’t see each others’ homes, they ended up in a continuing vitriolic spat in which each side accused the other of using the “F” word, raising the middle finger on numerous occasions, and other immature and harassing behavior, such as the noisy racing of vehicles, the blowing of car horns and trash placement fights.

ass150721The Court held that the Cooleys, who were New York City dwellers unused to the suburban life, utterly lacked credibility on the stand. It found that the battle began with Mrs. Cooley delivering a letter to the Quarantas within 30 days of her having moved in, in which she told them their lampposts and driveway sat on the Cooley property. Then, the Cooley son began throwing keg parties at the Cooley home, with noisy partygoers parking all along the right-of-way. The parties were noisy and annoying, and afterwards, the Quarantas found themselves cleaning up empty bottles and cigarette butts. The parties were held about four times a month. The Quarantas complained without effect. The grand finale was the Cooley Halloween Party in 2005. When Mrs. Quaranta went out in her nightgown to ask for peace and quiet, the partygoers cursed her – one exposing himself to her – and urinated toward her. After this, Mrs. Cooley and her daughter, took to riding at high speed over the grassy area, even leaving deep tire tracks. Although the Cooley’s trash pickup was on Friday, they would put their trash out all week long, at a spot where it was viewable only from the Quarantas property. Animals got to the trash during the week and the plaintiffs did the clean up. Mrs. Cooley would to drive fast down the mutual passage raising dust and her middle finger while blowing her horn the entire distance. She overdosed her own lawn with weedkiller, killing all of the grass ostensibly so she wouldn’t have to mow. Her lawn, of course, fronted on the Quarantas’ lush and meticulous.

badneighbora140204There were countless verbal confrontations as well. The Cooley son yelled at Mr. Quaranta, a man past 65 with a heart transplant, “Hit me! I’ll wipe the ground up with you.” Previously, another judge had ordered the parties to refrain from intimidating, threatening, harassing, stalking, assaulting, or attacking each other, and to refrain from entering the property of the other, until the dispute was tried and resolved on the merits. After that, the Cooleys built an ugly chicken wire fence on the side of the passage that fronts the Quarantas’ house only. The trial court was called upon to mediate the dispute.

Held: The Court found for the plaintiffs, the Quarantas. It held that Mrs. Cooley’s testimony was so bad that it noted that “[o]ne could almost use that well worn lawyer’s expression ‘I rest my case’ after merely viewing Mrs. Cooley’s Exhibit 12, which in gruesome detail sets out the “this is my property” syndrome. The court found it unsurprising that she took an axe to, and threatened to destroy, anything – even things of beauty – found on her property. These items included a lamppost, (that provided her light with the Quarantas paying for the electricity), fences (that enhanced the entrance to both their properties), a beautiful birch tree (with no professional evidence that it had to be cut down), a ceramic nameplate, (which her son admitted smashing) and even shrubbery. “Such warmth!” the Court said. “And it shows in the fifty plus exhibits.”

The Court held that the chicken wire fence was maliciously erected, based on its character, its location, and the obvious state of mind and motive of the defendant. It ordered the fence removal pursuant to §52-480 of the Connecticut Statutes. It found that the Cooleys had exceeded the use of the right of way in a vindictive and malicious manner so as to harm the Quarantas, rather than just for ingress and egress. It held that number of the Cooleys’ activities on this simple right-of-way were, “in layman’s terms, ludicrous, and in legal terms harmful, unnecessary, illegal and unreasonable.” It issued a detailed injunction spelling out 12 acts in which the Cooleys were not to engage, and 3 acts in which the Quarantas were not to engage.

A happy ending? Not with these folks ...

A happy ending? Not with these folks …

Based upon the totality of the evidence, the Court held that the Cooleys directly and indirectly negligently and intentionally caused severe emotional distress to the Quarantas, and knew or should have known that their acts would result in severe emotional distress to the plaintiffs. In the case of Mr. Quaranta, the distress was found to be life threatening. The Cooleys evidenced a reckless indifference to the Quarantas’ rights and showed an intentional and wanton violation of these rights. The injury was inflicted maliciously, with evil motive and violence. The Court awarded the Quarantas their legal fees as damages.

The Court took the unusual step of ordering a final statement to be personally read by the parties. It begged both parties to “go back to the day the Cooleys moved in and put everything back the way it was. Let us dig a hole and bury all of the ill feelings and hatreds that are all consuming.” The Court, writing this on Thanksgiving Eve, ended by noting that “[t]he person whom many people honor in this Holiday Season forgave everyone. Isn’t it time that the Quarantas and the Cooleys caught the spirit of the Season?”

Postscript: They did not. Rather, they were back in court repeatedly between 2007 and 2013, arguing over contempt motions filed against each other. Oh, the humanity …

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Case of the Day – Monday, August 22, 2016

OUT OF SIGHT

You know the kind... never owned a saw, never used a set of hedgeclippers.

You know the kind… never owned a saw, never used a set of hedgeclippers.

It’s late summer now, the kids around here are heading back to school today, and we’ve had a season of growing grass, trees, shrubs and weeds. You, of course, being a conscientious type, have been taking care of your yard. Your grass is cut, your trees are trimmed, your sidewalk is neatly edged. But you’ve got a neighbor – we all have that kind of neighbor – who’s not as diligent.

His or her grass is high, green plants are growing in the house gutters, and bushy branches overhang sidewalks, streets and yards. We know – we’ve whacked our heads on more than one branch that should have been trimmed before it became a hazard on the sidewalk.

So what kind of duty does Joe Sixpack have to people passing on the sidewalks or streets?

Iowa says not much. Low-hanging limbs obscured sightlines on a curve, and motorist Marilyn Fritz claimed the obstructed line of sight caused her to run into another car. She sued the County for not maintain clearance so drivers could see where they were going. The County in turn sued landowners Eugene and Doris Norton for having an inoperable chainsaw (that is, for not trimming their trees).

The Court grappled with the question of who had the duty to maintain the sightlines. It noted that Iowa had a policy of encouraging safe travel on the roads, but also had a policy of encouraging trees. So that analysis wasn’t very helpful. Although Dallas County urred the Court to stick the Nortons, the Court was clearly troubled that if it obligated – having no expertise in determining what sightlines were appropriate – would have no idea what was right and what was wrong.

The County, on the other hand, has the expertise, maintaining a highway department staffed with trained professionals. The Court ruled that that fact convinced it the County should be the party which is be most responsible for maintaining highway sightlines.

cynicism160822Plus, given its taxing authority, the County undoubtedly had the most money. Cynical of us, you say? Cynicism is not a synonym for the word “wrong.”

It was important to the Court that the Norton’s had not planted the trees, but rather they were “natural.” Also, while the branches were obscuring sightlines, they were not actually blocking anyone’s way down the road.

Fritz v. Parkison, 397 N.W.2d 714 (1986) Trees growing on the property of Eugene and Doris Norton limited the sight distance of two drivers whose vehicles collided on the curve. Plaintiff Marilyn Fritz sued Dallas County for failing to trim vegetation on the inside of the curve that obstructed the vision of each driver of the colliding vehicles. Dallas County in turn sued Eugene and Doris Norton alleging that trees, bushes, and shrubs growing on Norton’s land blocked the view of each oncoming motorist and the Nortons were liable for failing to remove the sight obstruction caused by this vegetation. The question presented to the court is whether landowner’s whose property abuts a curve on a rural road are potentially liable in tort when trees growing on their property limit the sight distance of drivers whose vehicles collide on the curve.

Held: The Court agreed that the Norton’s land abutted the curve and that the terrain in the area was fairly level, and but for the trees growing on Norton’s land, motorists approaching the curve from the north and from the east would be able to see each other for a longer period of time before meeting. The Court found that limbs on a few older trees growing on Norton’s land overhung the road’s right-of-way but not the traveled portion of the curve and that the Norton’s had planted a few fruit trees along the roadway.

sightlines160822The Court identified two well developed and clearly recognized public policies implicated in this case. First, in light of the increasingly mobile society, highways must be kept free from obstructions and hazards. Indeed, courts have at various times imposed liability against individuals for allowing a highway to become obstructed or hazardous. The second policy implicated by this action is the well-established state goal to encourage the growth and cultivation of trees and discourage their wanton destruction.

Here, the Court found that Nortons’ trees did not physically obstruct or intrude upon the traveled portion of the road and neither directly impeded nor constituted any kind of latent defect that without warning might fall across the road or onto a passing vehicle. In this case, the Court held, the owner of land abutting curved highways owed motorists no duty to remove trees located on the landowner’s property where the trees did not actually obstruct traveled way even if the trees were planted by the landowner.

The Court further held that naturally occurring or artificially created conditions on a landowner’s property should be taken into consideration in deciding the case and whether the property is located in an urban or rural area is an additional consideration to determine liability.

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Case of the Day – Friday, August 19, 2016

FISTS, NOSES AND TREES

punch50720Everyone’s heard the old saw that “The right to swing my fist ends where your nose begins.” Imagine your nose is a 65-foot tall maple tree, and my fist is a backhoe. Good luck with that – most imaginations aren’t quite that agile.

Here’s the problem. We all know about “self help,” the venerable old Massachusetts Rule that limits a landowner to trimming away encroaching branches and roots from a neighbor’s tree up to the property line. Michaelson v. Nutting – and virtually every encroachment case decided in the eight decades since that decision – has given a property owner the right to trim back a neighbor’s tree to the boundary without any limitation.

At the same time, we all know about boundary trees, those trees whose trunks enter the earth smack on the property line, so that tree is attached to the ground in both properties. Boundary trees are special, and the general rule is that neither property owner may trim the tree without the consent of the other.

But what happens when a neighbor’s tree is not on the boundary, but so encroaches on a landowner’s property – both above ground and below ground – that the practical effect of the landowner’s Massachusetts Rule self-help will be to kill the tree?

solomon150720Remember King Solomon? When two women appeared in front of him arguing over who was the mother of a baby, he proposed to settle it by cutting the baby in half so that each woman would get 50 percent of the child. That threat was enough to smoke out the imposter. In today’s case, dividing the tree in half would have had the same effect as cutting up the infant (albeit it with less blood).

The Alvarezes own a nice place in Vermont, complete with a view of Lake Champlain. They have a 65-year old maple tree next to the property line of their neighbors, the Katzes. It was close, but the base of the tree was completely on Alvarez property, so this was no boundary tree the parties were dealing with.

The tree had been standing for almost seven decades. In fact, when the Alvarezes bought the property 20 years ago, the maple had already sent roots and branches across the boundary between the two parcels.

The Katzes, who also enjoy a view of Lake Champlain, have planned for a number of years to add on to their house, essentially doubling its size with a two-story addition. The only problem – or at least, the only problem we care about – was the maple tree. To add on, the Katzes would have to cut away about half of the maple tree’s branches and roots, in all likelihood killing the tree.

The Alvarezes and Katzes tried to resolve the problem amicably, but – just as happened with the women in front of King Solomon – there really wasn’t any middle ground. Either the Katzes would get their way, building onto their house and killing the tree, or the Alvarezes would have it their way. Like Dr. Seuss’s north-going and south-going Zax, neither neighbor would budge.

But then Katz somehow learned all about the Massachusetts Rule. It dawned on him that he could cut back the offending maple tree to the property line, both roots and branches. Sure, the tree might die, but the Massachusetts Rule said nothing about what happened to the tree after a neighbor used “self-cutting” trimming on it.

The Alvarezes ran to court, and obtaining an injunction against Katz. The trial court found that trimming the tree as Katz proposed doing would probably kill it. The injunction prohibited cutting away only about 25 percent of the tree, about half of what the Katzes needed for their ambitious plans.

The Katzes appealed, and the Vermont Supreme Court threw out the injunction. It held that the Massachusetts Rule was a blunt object, and had always been one. A landowner owns everything above and below ground level, and that owner can cut anything he or she wants to cut, without regard for the effect of the cutting. The Court said that was the law in Vermont and just about everywhere else.

The Zaxes wouldn't budge, either ...

The Zaxes wouldn’t budge, either …

The Supreme Court seemed a little uncomfortable with its decision, but it ruled in essence that the law is the law, and that’s the way Vermont had always done it.. It noted, in a hint that was as subtle as an anvil, that cases where Massachusetts-style self-help had been limited – such as in Booksa v. Patel – the theory that had been advanced was that of nuisance. In other words, the Alvarezes could have argued that Katz’s proposed trimming would so endanger the tree that it would interfere with their enjoyment of their property. Recall in Booksa, the court ordered the defendant to trim the encroaching tree reasonably. The Vermont Supreme Court telegraphed that it would probably have done the same, if the Alvarezes’ lawyer had only thought to make the argument. Oops.

Alvarez v. Katz, 2015 VT 86 (Supreme Court of Vermont, June 19, 2015). The Katzes own property at in South Burlington in the Shelburne Bay area. The Alvarezes own the adjoining lot just to the north of the Katzes. The Alvarezes have a 65-ft. tall maple tree, the trunk of which is located entirely on their property. About half of the branches and roots from the tree cross the property boundary and encroach onto the Katz lot. Some roots extend under the Katzes’ existing deck.

For several years the Katzes have sought to expand their home by adding a two-story addition on the rear. The plans for the construction of the addition would require cutting the roots and branches that are encroaching onto their property. This could encompass up to half of the tree’s roots and branches.

The Alvarezes and the Katzes have been unable to amicably resolve the problem of the maple tree. In 2013, when the Katzes considered taking unilateral action to trim the tree’s roots and branches, the Alvarezes filed for an injunction. The superior court found it more likely than not that removal of 50% of the tree’s roots and branches would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting. The court employed what it called the “urban-tree rule,” under which trimming the roots or branches of an encroaching tree may be proscribed if the trimming will destroy the tree. The injunction barred the trimming of more than 25% of the roots and branches of the tree.

The Katzes appealed.

Held: The injunction was vacated. The Supreme Court reaffirmed “Vermont’s long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree.”

Vermont has long recognized ownership of property to include the ownership of that which is below the ground and that which is attached overhead. The right has been clear for almost 100 years, since Cobb v. Western Union Telegraph Co., (a 1916 decision which stated the Massachusetts Rule before there ever was a Massachusetts Rule). Cobb held that “it is a sound principle that where a tree stands wholly on the ground of one and so is his tree, any part of it which overhangs the land of an adjoining owner may be cut off by the latter at the division line.” The Supreme Court criticized the trial court for conjuring up an “urban-tree rule” that would be an exception to Cobb. The trial court had considered this case to be one of first impression in Vermont because of the anticipated adverse – and likely fatal – effect the root-and-branch cutting would have had on the encroaching tree. The Supreme Court held that any attempt to “distinguish” Cobb, that is, to find that the Cobb case was somehow different just because the Cobb tree was located in a rural setting, was wrong.

Further, the Supreme Court said, the “urban-tree rule” does not enjoy the support attributed to it by the trial court. Outside of two cases, the California decision in Booksa and one obscure New York decision, the Massachusetts Rule (which maybe we should have called the “Vermont Rule”) enjoys extremely widespread support. What’s more, the Court reasoned, the Vermont legislature has had 99 years to modify the Cobb holding by statute, and it has not bothered to do so. The Supreme Court concluded that the “right to cut encroaching trees where they enter the land of another, without regard to the impact on the encroaching tree by such cutting, is well-established under Vermont law.”

The Supreme Court noted that at common law, the right to cut encroaching boughs and roots historically counterbalanced a landowner’s right to grow shade trees on his land, regardless of the impact those trees may have in casting shade or encroaching upon the neighboring property. Common law provided no claim for damages caused by encroaching roots or branches. Instead, the remedy was one of self-help, allowing the cutting of roots and branches to the extent of encroachment.

Where other jurisdictions have departed from the common-law rule and allowed actions for damages as a result of encroaching roots or branches, they have generally relied upon nuisance principles. Even where such actions have been permitted, those jurisdictions continue to recognize the right to self-help. In this case, the Alverezes did not raise a nuisance claim, so “the issue of whether a nuisance claim might exist for the encroachment of roots and branches from the Alvarezes’ tree is not presently before the Court.”

The Supreme Court subtly suggested that the proper way for the Alvarozes to address the problem would be through the law of nuisance ...

The Supreme Court subtly suggested that the proper way for the Alvarozes to address the problem would be through the law of nuisance …

The Supreme Court defined the conundrum as follows: “[T]his case presents the competing interests of neighboring property owners. On the one hand, [the Katzes] have an interest in using their land, which they have purchased and upon which they pay taxes, as they see fit, within permissible regulations, free from limitations imposed by encroaching roots and branches from the neighbors’ tree, which they did not invite and for which they receive no benefit. The Alvarezes seek to restrict the use of the Katz property by preventing the removal of branches and roots on land that is not theirs and for which they have given nothing of benefit to [the Katzes] for suffering the encroachment. On the other hand, the Alvarezes wish to continue to enjoy their tree, which has been there for many years, without placing its viability in peril due to the construction that [the Katzes] wish to undertake.”

The Court observed that if the Alvarezes had the right to have their tree encroach onto the neighboring property, the obvious next question would be to what extent the encroached-upon property owner must suffer such an encroachment. The Supreme Court admitted that on some occasions the “exercise of self-help may result in the immediate or eventual loss of an encroaching tree, given the long-recognized rule in Vermont and its widespread support elsewhere, we decline to depart from the common-law rule in favor of the approach adopted by the superior court.”

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Case of the Day – Thursday, August 18, 2016

CHIA JERK

chia-pet140508Should we be talking about Chia Pets? Sure. With school starting here next Monday, the Christmas shopping season is just around the corner.

Alas, the CHIA we’re discussing here isn’t a ceramic figurine smeared with seeds. Instead, it’s the Connecticut Home Improvement Act. And the “jerk” is a slick lawyer who tried to use it to cheat a local tree trimmer. We’ve told you about this case before, but this sad little cautionary tale bears repeating. And it warms us up for some new cases we’ll be talking about next week.

The takeaway here for the aspiring arborist should be entitled “make sure all your oral contracts are in writing.” That rule goes double when you’re messing with a homeowner who happens to be a slick lawyer. Don made a deal with Ronnie “The Mouthpiece” LoRicco to cut the lawyer’s grass. The contract was verbal. After all, it’s a lawn, for heaven’s sake. Who needs a lot of printed mumbo-jumbo for a lousy lawn?

We think you know the answer to that one. He started with cutting the grass, but one thing leads to another. The mowing became some grass seeding became some stone moving became some grading and some tree trimming and retaining wall construction. When Don, tuckered out after all of that hard work, went to collect for his labors, slick Ronnie yelled “Gotcha!” Well, perhaps not literally, but he might as well have, because he refused to pay the $2,277 bill, claiming he didn’t owe the arborist a farthing.

nofarthing140508 Don sued. The lawyer-defendant argued that under the Connecticut Home Improvement Act, Don should have given Ronnie a written agreement. Because Don didn’t, Ronnie said, he didn’t owe anything for all the work. Shades of Henry B. Swap tricking the hapless but industrious Mike Mulligan! But like the classic story about the plucky steam shovel Mary Anne, today’s case has a happy ending.

Mulligan-swap When Ronnie moves for summary judgment on the grounds that Don violated the CHIA, the trial court showed the solicitor that it could get just as hyper-technical as he could. The work Don did, according to the court, seemed more like “maintenance services” than home improvements. That argument might be a hard sell where lawn planting and wall building are concerned, but what we have here is a court doing a little distributive justice. Plus, the court said, Don was asserting that Ronnie had raised the CHIA defense in bad faith, invoking the Act not because he was a sheep-like homeowner fleeced by an unscrupulous contractor, but instead because Ronnie had never intended to pay Don to begin with.

Don believed he was the one getting sheared, and the court — apparently thinking the same thing — intended to give Don a chance to prove it. But what a cautionary tale! Simple projects all too often become complex projects, and the fifty states have a patchwork of consumer protection laws that serve as a snare for the unwary arborist. Support your local lawyer! Spend a few bucks to be sure that the slick Ronnies of the world don’t try to shear you.

Don’s Landscaping and Tree Service v. LoRicco, Not Reported in A.2d, 2007 WL 2938602 (Conn.Super. Sept. 21, 2007). Don’s Landscaping entered into a verbal agreement with LoRicco for lawn cutting services, which over time mushroomed into installation of a lawn, grading, removal of stones, seeding, moving of trees, planting and building walls. When LoRicco decided not to pay, Don’s sued for the amount due, $2,277.00. LoRicco denied owing Don’s any money, and moved for summary judgment on the grounds that the landscaper’s suit was barred under the Connecticut Home Improvement Act because Don’s didn’t give LoRicco a written contract. Don’s complained that LoRicco was an experienced attorney familiar with Connecticut law looking to beat Don’s out of payment, using the CHIA in bad faith.

shyster150717Held: Summary judgment was denied to the lawyer-defendant. The trial court noted that for LoRicco to satisfy his burden he had to make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. That evidence had to be viewed in a light most favorable to the opponent. In this case, although the Home Improvement Act refers to landscaping, there was a real question of fact whether the services provided by Don’s were governed by the Act. They appeared to be maintenance services, and not “home improvements.” What’s more, the Court credited Don’s allegations, finding they raised questions of fact of whether LoRicco’s reliance on the Act was a bad-faith dodge (of course it was). For those reasons, the summary judgment was denied.

So Don got his day in court, but it was a day that shouldn’t have ever had to arrive. There is a thicket of local, state and (sometimes) Federal law out there – in addition to a substantial body of common law – just waiting to prove a snare to unwary but well-meaning people like Don. And you. A stitch in time saves nine. Here, a little piece of paper would have saved Don a lot of aggravation and legal costs.

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Far be it from us to toot our own horn, but if you’re wondering just what to put in your contract, considering getting our book:

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