Case of the Day – Wednesday, October 17, 2018


mmma160129Every red-blooded American boy (and girl, for that matter) knows the story of Mike Mulligan and Mary Anne. Work had dried up for the pipe-smoking Mike and his redoubtable steam shovel, so they took a job in Popperville digging the basement for the new town hall. The selectmen — especially one named Henry B. Swap — were dubious of Mike’s claim that Mary Anne could dig the basement in one day, so they made a deal with Mike that he wouldn’t get paid unless he completed the work in the time allotted.

Mike didn’t make the deadline, but the story had a happy ending anyway. Such was not the case for Terry W. Henry. Terry, an experienced timber harvester, needed work. He asked Bobby Hubbard, who ran a timber company working several tracts of leased land, for a job. Now Bobby appears to be one of those kinds of employers, you know, the kind of guy who “tries out” people and then finds them deficient, not hiring them and, for that matter, not paying them for the “tryout” period. On top of that, Hubbard made everyone an independent contractor, paying them in cash without any withholding and without any tax reporting whatsoever.

While Terry Henry was on his one-day “tryout” — the deal being that he would get paid if Hubbard found his work acceptable —  a tree branch fell on him. Of course, Bobby “Captain All-heart” Hubbard refused to pay him for the day’s work and fought Henry’s workers’ compensation claim. The Board found that under the law, Henry was an employee, despite the conditional promise of payment. Hubbard argued that Henry would have become, at best, an independent contractor and been ineligible for workers’ comp. But he abandoned his argument at the Workers’ Comp board level, and the Supreme Court wouldn’t let his lawyer resurrect the argument when the Court of Appeals hadn’t heard it. If he had made the independent contractor argument, he might have been off the hook, but it’s hard to see the “independent contractor” argument as anything more than a tax and responsibility dodge.

work160129Still, Hubbard’s lawyer flubbed the case procedurally by not keeping the issue alive. Maybe Hubbard had his mouthpiece working under a “tryout” deal, too, and he won’t have to pay his solicitor.

Hubbard v. Henry, 231 S.W.3d 124 (Sup.Ct. Ky., Aug. 23, 2007). Henry had operated a bulldozer and cut timber for about ten years. He responded to an ad that Hubbard, a licensed master logger who leased the right to harvest timber from landowners, had placed. Hubbard usually employed four workers to operate a bulldozer and cut and load the timber under written employment contracts. The workers were independent contractors and supplied their own saws, chaps, and safety equipment, while he provided the bulldozer, skidder, gasoline, chains, and files.  Hubbard  paid them weekly in cash for days worked, and he did not withhold taxes or issue a Form 1099 for their pay.

Henry B. Swap

     Henry B. Swap had nothing on Bobby Hubbard …

Because Hubbard wanted to be certain that Henry could do the job, Henry agreed to work on a trial basis for a couple of days and to receive no pay unless Hubbard was satisfied with his work. Henry recalled that they discussed pay of either $10.00 per hour or $100.00 per day (which Hubbard disputed) and said Hubbard never told him he would be hired as an independent contractor. Henry cut a number of poplars, one of which fell into a sycamore tree. Another worker then showed Henry how to do a hinge cut, and a branch from the sycamore struck him on the head, injuring him severely.

Henry later asked Hubbard to pay him for the day that he worked, but Hubbard refused, but gave him some money later but did not say that it was payment for the work. Henry filed for workers compensation payments, asserting he had been hired and was working as an employee when he was injured.  Hubbard countered that Henry had not been hired and was working on a trial basis only or — even if he had been hired — he was an independent contractor rather than as an employee. The ALJ found Henry was working on a trial basis when he was injured. Nothing that state law premised employee status on the existence of a contract for hire, the ALJ also found that Henry failed to show a meeting of the minds sufficient to impute an implied contract for hire or to show that he expected to be paid for the work that he performed on the date of his injury.

Henry asserted to the Board that the ALJ erred by concluding that there was no implied contract for hire, by concluding that he worked on a trial basis but was not hired, and by failing to determine that he worked as an employee. The Board held as a matter of law that Henry was Hubbard’s employee, noting the undisputed evidence that Hubbard’s outfit was a logging company in the business of harvesting lumber for profit and that, at the time of Henry’s injury, he was harvesting timber at a job site that Hubbard controlled.

The Court of Appeals affirmed, and Hubbard appealed.

pinno160129Held: Henry got his workers compensation benefits. The workers’ compensation statute defines “employee,” for coverage purposes, to include every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury. It is intended to protects workers who are injured while performing work in the course of an employer’s business by considering them to be “employees,” despite the lack of a formal contract for hire, unless the circumstances indicate that the work was performed with no expectation of payment.

Under the statute, Henry was an “employee” when he was injured during his tryout for employment as a timber cutter, despite the fact Hubbard would owe Henry nothing if Hubbard was dissatisfied with the work. There was a contract of sorts, one which held that Henry would be hired and paid for work unless Hubbard was dissatisfied with his work. A co-worker did not state that he would have discouraged Hubbard from hiring Henry, and Hubbard did not indicate that he was dissatisfied with Henry’s work or would not have hired him had he not been injured.

Hubbard did not preserve the issue of whether Henry was an independent contractor in the course of an employer’s trade, business, profession, or occupation — who by law had effectively elected not to be covered by the Workers’ Compensation Act — so that matter could not be considered.

– Tom Root

And Now The News …

New York City, New York Post, October 15, 2018: ‘Top Chef’ star admits to poisoning neighbor’s tree

Bad boy celebrity chef Adam Harvey has turned over a new leaf, admitting Monday that he did, in fact, attack a neighbor’s tree. Harvey, who copped to a misdemeanor charge of criminal mischief, must serve 20 days of community service as part of the plea deal. The onetime “Top Chef” star had been accused of boring holes in the trunk of a maple tree adjacent to his Windsor Terrace property, and inserting some sort of poison into the holes after his neighbor refused to cut it down. “Yes sir,” the chef-turned-lumberjack responded Monday when asked by Judge Joseph McCormack if he’d used a “drill to cut and drill multiple holes into the bark” of the tree, which was blocking the solar panels on his $1.5 million Windsor Terrace home. His guilty plea follows a September appearance in which Harvey turned down a plea offer on the same charge — but which included 35 days community service. He’d faced up to a year behind bars prior to cutting a deal…

Detroit, Michigan, Free Press, October 16, 2018: 11-year-old girl critically injured by tree being cut down

Authorities say an 11-year-old girl was struck and critically injured by a tree that was being cut down outside a home in western Michigan. The Ottawa County sheriff’s office says the girl arrived at the home with her family on Monday evening in Allendale Township and ran into the front yard to greet a family friend who was using a chainsaw to cut down trees. One of the trees fell as she approached, striking her in the head. The girl was taken to a hospital in Grand Rapids, where she was listed in critical condition…

Tyler, Texas, KLTV, October 16, 2018: Rain-soaked ground could lead to falling trees

With so much rain falling across East Texas, the rain-soaked ground could put trees at risk for falling, and the danger will linger long after the rain is gone. When a tree comes falling down in Rusk County, Richie Spencer at Spencer’s Nursery and Landscaping is often one of the people who gets the call. “The concern is the saturation around the root structure of the tree,” Spencer said. With much of East Texas getting a multi-day dousing, Spencer expects more and more trees to come crashing down. “Pine trees are probably the worst,” Spencer said. “That’s because they don’t have much of a root structure. That’s the problem you’ve got to worry about.” Spencer says it’s important to keep an eye on rotting trees and look for cavities or discoloration on the tree’s bark. But despite the clues, Spencer says when a tree’s ready to come down, it will. “There’s no real warning of a tree coming down,” Spencer said. “Once it’s on it’s way, it’s going…”

Greensboro, North Carolina, WGHP-TV, October 16, 2018: Greensboro residents look for tree services to clean up yards

As cleanup continues, some homeowners are finding out who is responsible for damage left by Tropical Storm Michael. Joyce Longmire learned she would have to find someone to clean up her damaged yard on Lawndale Drive, even though her neighbor’s tree caused it. “Had it gone a little bit further it would have fallen through my house, through my window,” she said. She said her insurance will cover the damage, but it’s been hard finding a tree service with so many homeowners reporting damage. Brent Burgess, a licensed agent assistant, said homeowners are responsible for damage on their own from fallen trees. She added that your neighbor could be liable only if their tree was sick or dying when it fell and you had notified them previously of the potential issue. Crews with the City of Greensboro will clear trees that have fallen into the street, but there are restrictions on how much work crews will do…

Michigan Watchdog, October 15, 2018: Township threatens nearly a half-million dollars in fines for removing trees on own property

Brothers Gary and Matt Percy, business owners in Canton Township, Michigan, face nearly a half a million dollars in fines after they removed trees from their own property without the township’s permission. Many of the plants the township is classifying as trees, their lawyer claims, are actually invasive plants. The Percy brothers are hoping to start a Christmas tree farm on the land, and are working toward planting 2,500 such trees on the property. “It is a shockingly high fine for allegedly clearing a retired grazing pasture in an industrial area,” their lawyer, Michael J. Pattwell, told The township is claiming the brothers violated a local tree removal ordinance that requires landowners to get government permission before removing trees from their property. The township defines a tree as a woody plant with a defined stem of at least three inches in diameter at chest height. Because the township does not know the exact number of trees removed, it hired an arborist to examine the make-up of trees on an adjacent property to estimate what trees were on the Percy brothers’ property before they removed them. In a settlement offer, the township proposed fines of about $450,000 for the removal of what it claims is slightly less than 1,500 trees, including 100 landmark or historic trees…

Columbia, Missouri, Missourian, October 15, 2018: Residents sue city for removing trees they say were outside utility right of way

A Columbia couple is suing the city for more than $25,000 in damages, alleging the city cut down several mature trees that were outside utility right of way. James and Susan Reynolds of 1301 Stonehaven Road allege that the city removed the trees from their property during the summer of 2017 and that the trees were beyond the boundaries of a 10-foot utility easement on the western fringe of their property. The petition outlines counts amounting to common law trespass, statutory trespass and inverse condemnation. “This is real estate they really cared about, and it was destroyed and taken without their consent and without compensation,” the plaintiffs’ attorney, Christopher Braddock, said. The trees were within an approximate 40-foot area on the southeast corner of the property and removed for the purpose of maintaining utility lines, according to the petition…

Greensboro, North Carolina, WFMY-TV, October 15, 2018: Downed trees in your yard or on your street: Is it the city’s responsibility to clean them up?

Do you have a tree in your yard, driveway, or even blocking your street? Michael has left tree limbs all across Greensboro. It can be frustrating and confusing. Do you have to clean it up yourself or is it the City’s responsibility? It is 100% the responsibility of the City to clean up tree debris on the road or on the sidewalk. But if there is a downed tree on your yard or driveway, the City of Greensboro cannot go onto your personal property and remove an entire tree. But if you take steps to cut the tree into smaller limbs, the city can assist you in removing debris. The City of Greensboro says residents who have this problem should call the City’s Contact Center hours from 7 a.m. – 6 p.m.  Representatives will advise you on whether the city will remove/clean up the tree limbs, or if it’s the owner’s responsibility. Chris Marriot works for the City of Greensboro in the Field Operations Department. He is the Deputy Director. “We are asking residents to call the City Contact Center because the tree damage is sporadic,” Marriot said. “So call into the Contact Center so we know the location. Give us your name and address. We service on our waste routes somewhere in the range of 92,000 customers, and for us to just randomly drive and find places with tree debris, it could take months. So call in so we can get you on a list and we can get to you sooner…”

West Lafayette, Indiana, Purdue University, October 15, 2018: Landscape Report: Start Preparing Trees for Winter and Next Year

It all starts with providing some supplemental nutrition for small to medium-aged trees in the late fall when trees go into a state of dormancy. This is when trees stop active growth and begin to form terminal buds, drop leaves and develop cold resistance.  Adding fertilizer to trees too early in the season can push new growth which will be prone to winter damage. A fertilization program is used to maintain trees in a vigorous condition and to improve their immune system against pests. Fertilizing trees refers to the practice of adding supplemental nutrients (chemical elements) required for normal growth and development. However, you really can’t “feed” a tree, since trees are autotrophs. They use nutrients to feed themselves by making sugar in the leaves through photosynthesis. Nitrogen (N), phosphorus (P), and potassium (K) are plant nutrients needed in the largest quantity and these are most commonly applied as a complete fertilizer. However, the addition of any soil nutrient is recommended only if soil or plant foliage tests indicate a deficiency…

Santa Cruz, California, Sentinel, Oct. 14, 2018: Wildfire safety tree-clearing program off to a bumpy start

PG&E’s wildfire safety program to clear trees and plants near power lines throughout the Santa Cruz Mountains has spurred confusion among property owners, leaving many of them wondering whether they have any say in the process. “I had no knowledge that it was happening,” said Lorrie Van Zandt, a Boulder Creek homeowner who had just moved from the property and was living elsewhere. She found out that trees on her land would be cut back only after getting a phone call from friends. The program, which PG&E began last month and hopes to finish by the end of the year, affects 7,100 miles of power lines in parts of the state that the California Public Utilities Commission has designated as high fire-threat areas. This includes 700 miles of power lines throughout the Santa Cruz Mountains. As of Oct. 9, crews had inspected more than 278 miles of lines in the Santa Cruz Mountains and cleared trees and plants along 19 of those miles, according to PG&E spokeswoman Mayra Tostado…

San Francisco, California, Chronicle, Oct. 13, 2018: Storied Congressional golf club cited for tree removal

Bethesda, Maryland’s tony Congressional Country Club, known for hosting such high-profile golf tournaments as the U.S. Open, recently was visited by some other, perhaps less welcome, guests: Montgomery County inspectors, who cited the club for denuding its picturesque fairways of shade trees without acquiring the proper permit. Large properties such as the country club are required to obtain a sediment control permit from Maryland’s most populous county if they clear more than 5,000 square feet of tree canopy. The club chopped down more than four times that amount without securing permission, according to county officials. After inspecting the grounds and comparing aerial photos with photos received as part of a complaint, authorities said the club appears to have removed roughly half an acre of tree cover in recent months – possibly in preparation for hosting several high-profile tournaments in coming years, including the PGA Championship and the Ryder Cup…

Newsweek, October 15, 2018: Warning: Christmas Tree Spotted Lanternfly could infest homes

The spotted lanternfly could spoil many families’ holiday season, according to New Jersey agricultural expert Joseph Zoltowski, director of the New Jersey Department of Agriculture’s Division of Plant Industry, speaking to Zoltowski says the tree-killing insect could potentially spread to homes by hiding in Christmas trees and leaving eggs to hatch. The spotted lanternfly, which is a native of eastern Asia, arrived in the U.S. four years ago in Pennsylvania and has spread throughout the eastern parts of the state. The bug has recently been detected in three New Jersey counties—Hunterdon, Mercer and Warren. It is believed to spread by attaching itself and its eggs to vehicles carrying wood, landscaping materials and agricultural produce, which would include the bark and branches of Christmas trees. “They’re very hard to spot,” said Zoltowski. A woman in Warren County, New Jersey, confirmed that she found lanternfly eggs attached to her Christmas tree once the insects hatched inside her home, according to Zoltowski. The expert said that there were two egg masses discovered in the bark, which are capable of storing as many as 30 to 50 eggs each…, October 12, 2018: There’s a tree that owns itself in Athens, Georgia

Tourists love trees: the Redwoods of California, the Christmas tree at Rockefeller Center, and the animatronic boughs of the Rainforest Cafe. But there’s only one tree, to our knowledge, that tourists flock to because it legally owns itself (ok, semi-legally): the aptly-named Tree That Owns Itself in Athens, Georgia. How Can a Tree Own Itself? Good question. The tree certainly wasn’t born (or didn’t sprout?) owning itself. For hundreds of years, it grew on a local family’s land and they owned it, in adherence with common sense and property law. It grew to a quite a stately size, too: in the early 1800s when Athens became an official city, it was the tallest tree in town. It wasn’t until 1890 or thereabouts that the tree made the local news: It had gained its independence. Being a tree, it had not been able to advocate for its rights. Instead, it lucked into them, thanks to a man named William H. Jackson. His family owned the tree, and Jackson, a University of Georgia professor, had grown up with it. He was emotionally attached to the tree and viewed it as a kind of bark-wrapped friend. So, legend has it, he gave it the legal deed to itself and a circular plot of land around its trunk…


Case of the Day – Tuesday, October 16, 2018



I spent the better part of yesterday trying to line up a couple of expert witnesses for a Virginia case. The eye-glazing episode left me contemplating Mark Twain’s aphorism that “an expert is just somebody from out of town.”

As I was reminded in my quest for some experts in rather arcane disciplines, it’s a little more complicated than what Twain may have thought. But not that much: certified arborists, operators of tree trimming services, even just guys from out of town – just about anyone can be qualified by courts as expert witnesses.

And what good is an expert witness? Primarily, experts testify not to facts, but rather to opinions. Juries like opinions. Opinions sway juries.

In today’s case from Arkansas, a frolicking bulldozer operator wiped out a bunch of a neighbor’s trees. Clearly, she was entitled to damages. But how much would the damages be? She hired the county extension agent to testify as to the value of the trees that had been cut down. The defendant complained that the expert relied on timber sales reports written by others, but the Court of Appeals accepted his opinion, and in the process explained what type of research process it wanted to see as a basis for an expert opinion.

Of course, the state’s treble damages statute, which multiplied the value of the lost timber by threefold, made the expert’s opinion all that more important to both sides. Incidentally, the defendant tried to argue that there was no proof that the bulldozer operator was his agent, but that was a mere sideshow: the evidence was overwhelming on that point.

Expert150116Jackson v. Pitts, 93 Ark.App. 466, 220 S.W.3d 265 (Ct.App. Ark. 2005). Richard Jackson owns land just north of land owned by Nora Pitts. Pitts claimed that Jackson or people acting for him bulldozed trees on her land where it borders that of the Jackson. Lloyd Pitts,

Nora’s son, saw John Moore operating a bulldozer in the area of the destroyed timber, which was located on Pitts’s property line with Jackson’s land. Lloyd said he walked along his mother’s land shortly afterward and saw holes where trees had been removed from the bulldozed ground. Another witness saw the bulldozer activity on Pitts’ property, and said that the bulldozer operator told him that he had been directed by Jackson to perform the work. The trial court found that the Jackson and Moore trespassed Pitts’ land and destroyed marketable timber, setting the value of the destroyed timber at $1,157.20. Treble damages allowed under §18-60-102 of the Arkansas Code increased the judgment of $3,471.60. Jackson appealed.

Held: The trial court judgment was upheld. Jackson claimed that treble damages were unjustified, but the Court disagreed. The imposition of treble damages in a trespass action for trees damaged, broken, destroyed, or carried away requires a showing of intentional wrongdoing, although intent may be inferred from the carelessness, recklessness, or negligence of the offending party.

Here, the Court said, the evidence was sufficient to support a finding that an agency relationship existed between Jackson and the bulldozer operator such that Jackson was liable for the operator’s damage to Pitts’ timber. Lloyd Pitts saw the bulldozer on his mother’s property operating in the area of the damaged timber, and saw Moore operating it. Another witness said Moore said he was working for Jackson. Jackson admitted he had hired Moore to work on his property with a bulldozer, and that if any trees had been removed from Pitts’ property, it would have been done by Moore.

Mark Twain says there are none of these ...

Mark Twain says there are none of these …

As for the amount of damages, the Court said, the evidence in each trespass case determines what measure of damages should to be used to value trees damaged, broken, destroyed, or carried away. Timber is generally valued according to its “stumpage value,” which is the value of the timber standing in the tree. Here, Pitts’ expert witness gave testimony of the estimated number of trees destroyed by Moore, and their market value at the time. The evidence was admissible, the Court said, even though the opinion relied in part on hearsay. The expert described the methodology he used to compute timber value within a specified area, which included diameter measurements of randomly-selected trees, an estimate of the timber volume multiplied by the number of trees within a specified area, and the use of a university timber market report to obtain an estimated market value.

What’s more, the Court observed, the expert testified he personally walked the area to conduct his measurements and testified he walked off the area that was bulldozed, and then went into the woods next to that area to measure a similar amount of land and counted the trees within it. The Court said an expert witness may base an opinion on facts or data otherwise inadmissible, as long as the facts or data are of the type reasonably relied on by experts in that particular field.

– Tom Root


Case of the Day – Monday, October 15, 2018


Not showing up may not make you all that interesting ... but it could lighten your wallet.

Not showing up may not make you all that interesting … but it could lighten your wallet.

The Pitts had a nice piece of undeveloped land in the outback of Utah, next to the Pine Meadows Ranch. Mr. and Mrs. Pitts weren’t exactly obsessive about checking on their land. After all, what could possibly go wrong with a chunk of meadow and pine trees?

Well, some lousy neighbors, for one thing. While the Pitts lived in the city, the people at Pine Meadows Ranch turned the Pitts’ rural paradise into … well, the pits. Pine Meadows Ranch dumped its trash on the land, drilled a well — for what, the decision doesn’t mention — and cut down a number of trees. When the Pitts finally discovered the perfidy of their adjoining landowner, they sued.

Pine Meadows Ranch never answered the suit, and the trial court — after waiting a suitable period of time — granted default judgment. The court then took the testimony of Howard Pitts — who said the land was worth $16,000 before the trespass but was “totally ruined” afterwards, the trees constituting $5,000 of the total — and granted judgment for $36,000. The 36 large ordered in the judgment finally got the Ranch’s attention.

On appeal, the Ranch complained that the dog ate its summons or some such nonsense. The Court of Appeals didn’t forgive the Ranch’s non-appearance, but it did reverse the damages. The Court thought Pitts’ conclusory testimony about the value of the trees and land was a little too light on fact to support the award. Additionally, the trial court had observed during the damages hearing that the $36,000 was probably too much, but maybe it would get the non-appearing Defendant’s attention. From that aside the Court of Appeals suspected that maybe the trial judge had assessed $36,000 to punish a no-show.

The case went back down for a new hearing, but there’s an important lesson her anyway: not showing up does not endear a defendant to a court.

Mr. Pitts wasn't sure how many trees had been cut, but he said the property was ruined.

Mr. Pitts wasn’t sure how many trees had been cut, but he said the property was ruined.

Pitts v. Pine Meadow Ranch, Inc., 589 P.2d 767 (1978).  The Pitts alleged that Pine Meadows Ranch or its agents intentionally and willfully trespassed on their unimproved real property, used it as a junkyard and a garbage dump, drilled a well in the middle of it, and destroyed a number of beautiful trees. The Pitts claimed damages in the amount of the full market value of the real property, being $16,000, of which $5,000 was the value of the trees, for which they claimed treble damages under Utah Statute § 78-38-3, together with punitive damages of $10,000.

The Ranch didn’t answer the complaint, and the trial court granted default judgment. After that, the court took Howard Pitts’ testimony under oath, and granted judgment in the amount prayed for, $36,000. The Ranch moved to vacate the judgment, which was denied.

After the Pitts started trying to collect on their judgment, the Ranch appealed.

Held: The default judgment could not be attacked, but the damage award had to be set aside. There was no evidence of market value of the plaintiffs’ property after trespass on which to base a finding of malice or wanton destruction of property.

showup160126The Court observed that the measure of damages for trespass on real property and destruction of the property is generally the difference between the value of the property before and after the trespass. Where there was no evidence of market value of plaintiffs’ property after trespass except a statement that the property was “totally ruined,” nor where any evidence had been provided upon which to base finding of malice or wanton destruction of property, the defendants were entitled to new hearing on damages issue.

The Supreme Court said that Mr. Pitts’ bare statement that the destroyed trees constituted $5,000 of the value of the property was the only evidence to support the treble damage award. Under these circumstances, the Court said, it did not find sufficient credible evidence to support the judgment of $36,000.

The record showed that the trial court thought the $36,000 to be too much, but said, “Well, if they respond to a judgment of this size, if they are faced with a collection problem maybe they will respond.” The Supreme Court found that the trial court entered judgment in that amount because the defendants had been dilatory, and he thought a large judgment would bring them into court. When the defendants did respond to the big judgment, the trial court refused to overturn it because at that time to do so would be an injustice to the plaintiff.

Damages have to be based on stronger evidence than that.

– Tom Root


Case of the Day – Friday, October 12, 2018


Here’s a strange little case from Big Sky Country. Landowner Wilber (who, if we read between the lines correctly, was an impatient man who preferred to reap that which he did not sow, if you get our meaning) was unhappy that his downhill neighbor had a tree which had grown tall, and thus interfered with his view.

Wilbur found a lawyer, to whom he complained, “I can’t see for miles.” The lawyer, Who was happy enough to take Wilbur’s money and whisper delusions of legal grandeur in Wilbur’s ear. “If the neighbors’ tree kept you from seeing the July 4th fireworks,” the attorney whispered, “then the tree is a nuisance. And if the neighbors did not remove the tree to suit you, then they’re malicious! If the tree is overhanging your yard, your neighbors are trespassers!”

Believing his highly-paid but under-informed counsel, Wilbur sued. The trial court bounced the suit, because (1) Wilbur had no common-law right to a view; (2) a naturally growing tree cannot be a nuisance; and (3) the neighbors are not trespassers because their tree’s roots and branches have encroached.

Wilbur appealed, and at last the Montana Supreme Court heard the case. And that’s where the strangeness arose. The Supreme Court agreed that Wilbur had no right to a view, and that the healthy, naturally growing tree was no nuisance. But it held that Wilbur’s trespass claim, because the tree was encroaching, had been adequately pled and would survive early dismissal.

We tend to think that the Court agreed only that Wilbur’s claim that the neighbors had caused the tree to encroach was, if true, a good claim. If Montana suggests that a tree’s encroachment itself constitutes a trespass if an owner does not take active steps to stop the encroachment, the holding goes far beyond even the Hawaii Rule or Fancher v. Fagella.

If, on the other hand, Montana suggests that such encroachment, if not halted by an owner with knowledge of the encroachment and damage to the property of another, is trespass, this may be not a lot different than the Hawaii Rule, just worded differently. After all, an encroaching tree that damages the neighbor’s property may well be a nuisance. Trespass or nuisance, the responsible landowner is liable for the damage. That is how the Hawaii Rule operates.

Martin v. Artis, 366 Mont. 513 (Mont. 2012). Wilbur Martin resides in the South Hills subdivision in Missoula. Keith and Gloria Artis’s property lies immediately below and abuts Wilbur’s property, with a boundary fence separating the properties.

The Artises had a tree, a nice large tree that had grown over the years so that it blocked a substantial portion of Wilbur’s view of the city, valley and mountains. In fact, horror of horrors, on Independence Day 2010, for example, Wilbur and his guest could see virtually none of the South Gate Mall fireworks display solely because of the Artis tree blocking the view. Wilbur said the tree’s obstruction of his views was “offensive to his senses, was an infringement upon the free use of his property, interfered with his comfortable enjoyment of his property, and diminished the aesthetic and monetary value of his property.” He said the tree was a nuisance, and in fact the Artises intended that it be a nuisance.

If that were not enough, Wilbur alleged that the tree’s roots were encroaching onto his property and were starting to buckle the boundary fence and that, in fact, branches from the tree encroached onto his property, overhanging the common boundary fence. He declared the encroachment to be a trespass.

The Artises had tried to accommodate. Wilbur admitted that after he contacted them about the tree, they had “cut a few branches from the tree,” but he nonetheless asserted that Artises “know their tree is growing over the fence onto Wilbur’s property and is buckling his fence, but refuse to do anything to stop it; that such trespass is continuing.”

Finally, alleging that Artises had notice and knowledge of the alleged facts, Wilbur accuses them of actual malice, and demands punitive damages.

Artises filed a motion to dismiss the complaint, arguing that a naturally growing tree is not a nuisance or trespass as a matter of law. The district court agreed, and dismissed Wilbur’s feverish litany of abuse.

Wilbur appealed, ending up in Montana’s Supreme Court.

Held: Wilbur had no right to an unobstructed view, and a naturally growing tree cannot constitute a nuisance. However, Wilbur had adequately pled a trespass because he claimed the tree was encroaching and the Artises knew it.

The statutory definition of nuisance provides that anything which is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance.” Section 27-30-101(1), MCA (2009). While it is possible under § 27-30-101(1), MCA, for anything to constitute a nuisance, a nuisance claim must nonetheless plead a factual foundation that satisfies governing legal standards. “A nuisance action may be based upon conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous,” the Court said. A nuisance may either be a nuisance per se or a nuisance per accidens. A nuisance per se or at law is an inherently injurious act, occupation, or structure that is a nuisance at all times and under any circumstances, without regard to location or surroundings. A nuisance per accidens or in fact “is one which becomes a nuisance by virtue of circumstances and surroundings.”

Likewise, the Court said, a nuisance may also be classified as either absolute or qualified. An absolute nuisance is ” a nuisance, the substance… of which is not negligence, which obviously exposes another to probable injury.” A qualified nuisance, on the other hand, is a nuisance dependent on negligence that consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm, which, in due course, results in injury to another.

Montana law has never held that a nuisance claim would lie for any obstruction of view whatsoever. Here, Wilbur alleges that a tree, in the course of its natural growth, has risen tall enough to obstruct his view. Although the complaint broadly claims that Artises’ tree has reduced the aesthetic and monetary value of Wilbur’sproperty, interfered with his comfortable enjoyment of his property, and offended his senses, the entire factual basis of the claim is that a tree has obstructed his view because of natural growth. The assertion that Artises’ naturally growing tree has obstructed Wilbur’s view does not constitute, as a matter of law, “conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous,” the Court said, or “an inherently injurious act or a condition which “obviously exposes another to probable injury.” The District Court properly granted the Artises’ motion to dismiss Martin’s nuisance claim.

The trespass is another matter, the Court held. Trespass is “the entry of another person or thing obstructs a property owner’s exclusive possession. A party need not establish actual harm or damages in a traditional trespass action.” One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in possession of the other, or causes a thing or third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

The “intent” element of trespass is fulfilled when an actor desires to cause consequence of his act, or when he believes that the consequences are substantially certain to result from his act. Here, the Court said, Wilbur’s complaint alleges a trespass because the Artises’ tree extends over the shared fence and the roots grow onto his property. The complaint alleges that the roots of the tree have damaged Wlbur’s property. Regarding intent, Wilbur claims alleges that the Artises “know their tree is growing over the fence onto the property and is buckling his fence but refuse to do anything to stop it,” that Artises’ conduct is motivated by malice or is in willful, wanton and reckless disregard of Wilburs’ rights,” and that Artises are guilty of actual malice “because they had notice and knowledge of the alleged facts.”

Although the Artises argue that Wilbur’s complaint fails to plead an intention to trespass by way of their tree, the Supreme Court concluded that, “for purposes of a M.R.Civ.P. 12(b)(6) motion to dismiss, intent was adequately pled.”

– Tom Root


Case of the Day – Thursday, October 11, 2018


bell160125A young girl and her friend sneaked onto church property to play. While they were doing whatever young kids do when they’re where they shouldn’t be, the girl pushed on a bell. The bell fell, injuring her foot. When kids trespass and do stupid things, how do the parents respond? Why, they sue the landowner, of course.

In this case it was a local Catholic Church, getting sued – unusually enough – for something that had nothing to do with sex abuse. Despite the Diocese’s obvious relief at being sued on behalf of a child plaintiff who wasn’t complaining about a priest, the Church nonetheless argued that under Wisconsin’s recreational use law, it enjoyed immunity.

In a strange analysis, the Court of Appeals disagreed. Reba was hurt when she pushed on the bell, and the Court held that her pushing the bell wasn’t related to the game she and her friend had been playing. This, the Court said, was mischief. Plus, the Court said, the Church wasn’t really a recreational property, and the Church didn’t invite people to use it as such. In fact, it took steps to keep kids from playing there. So because Reba was engaging in mischief as a trespasser, and because the Church was arguably acting responsibly in trying to keep this kind of conduct from occurring, it owed Reba a greater duty than had it left the place wide open. This is probably a correct application of the recreational use statute, but it certainly seems — as a matter of public policy — not to make a lot of sense.

"Trespasser William" the kid was not ...

         Remember Winnie the Pooh?  “Trespasser William” young Reba was not …

Fortunately, under Wisconsin law, the Church only would have owed a duty to a trespasser to refrain from willful, wanton, or reckless conduct, about the same result the Church would have gotten from application of the recreational use statute. Unfortunately, a jury found the Church had engaged in such conduct, and it awarded the plaintiff money damages.

You might think that you have no duty to a trespasser wandering onto your property. Guess again.

Fargo ex rel. MacArthur v. United Nat. Ins. Co., 739 N.W.2d 490 (Wis.App., 2007). A child playing house on church property was injured when she tried to push on a bell, which fell and injured her. Through her parents, the girl sued the St. Ignatius Catholic Church for negligence, and a jury awarded her damages. St. Ignatius appealed, arguing that it was entitled to immunity under the Recreational Use law, Wis. Stat. §892.52.

Daffy160125Held:  The award of damages to young Miss Fargo was affirmed. The recreational immunity statute limits the liability of property owners toward others who use their property for recreational activities. The statute defines recreational activity to include “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure…” The statute lists 29 specific activities that constitute recreational activities, but instructs that “recreational activity” should be liberally construed in favor of property owners to protect them from liability.

To determine whether a person was engaged in a recreational activity under the statute, the Court said, a fact-finder should consider the totality of circumstances surrounding the activity, examining the intrinsic nature of the activity, the purpose of the activity — including the injured person’s subjective assessment of the activity — and consequences of the activity. A court should also consider the nature of the property, including whether the owner intended the property to be used for recreational activities, and the reason the injured person is on the property.

The Church should have posted this sign. Er ... on second thought, maybe not .

     The Church should have posted this sign.  Um … on second thought, maybe not .

Here, St. Ignatius argued it was entitled to immunity because young Reba Fargo was injured while playing house with a friend on church property, and this was a recreational activity. The Court disagreed. Instead, it ruled, Reba was injured when she pushed the bell, which then fell on her foot. The Court held that her act of pushing the bell wasn’t related to the game she had been playing. Rather, viewing the activity objectively, she was attempting to move a large, stationary object by pushing very hard.

The Court concluded that this independent act was mischievous, because Fargo was trying to move an object that was not designed to move. Wisconsin law holds that mischievous conduct is not a recreational activity. What’s more, considering the nature of the property, St. Ignatius was a church, not a playground or other place where recreational activity would usually occur. The church made attempts to limit children playing on its property. While not determinative, that fact was an appropriate factor bearing on the recreational use analysis.

Considering all of the factors, the Court concluded that Reba Fargo was not engaged in a “recreational activity” within the meaning of the Recreational Use statute. Thus, St. Ignatius was not entitled to immunity.

– Tom Root

Case of the Day – Wednesday, October 10, 2018


the-muffin-man-07So who was it who lived on Byrum Lane-O?

No, it wasn’t the Muffin Man, but the Clarks. They had assembled several parcels of land into a pretty nice cattle spread and homestead along the Jefferson River. And they had always used Byrum Lane. The road passed across their land, across the Dwyer Place and ultimately back to some more of their land and up to their house.

Back in the 1960s, the land around the Byrums’ cow palace had been subdivided in smaller lots for homes, almost none of which (other than the Clarks’ place) had been built. Meanwhile, all the landowners and their guests used Byrum Lane, and had for a long while. The County had even maintained the road sporadically.

But then came the legal drama. When the Clarks completed their new home, the Dwyers (or maybe the Dwyers’ descendants, who were the parties to the case), told the Clarks they couldn’t use the road anymore. The Clarks sued, arguing they had a prescriptive easement. A prescriptive easement is much like adverse possession (the doctrine that lets an especially brazen and long-term trespasser gain title to your land). However, unlike adverse possession, the prescriptive easement isn’t about ownership: rather, it’s about the right to use someone else’s property. If you have used someone else’s driveway openly, notoriously, adversely, continuously and without interruption for the period of time required by statute, an easement in your favor has been created just by force of your chutzpah.

In this case, the Clarks had used Byrum Lane without permission for years, as had their predecessors, and as had just about everyone else. The County had even maintained it for awhile, seemingly uncertain whether it was a public right-of-way or not. The specific issue before the Supreme Court was whether the prescriptive easement extended to the Clarks’ use of Byrum Lane to reach a house on a parcel that didn’t exist when the prescriptive easement came into being. The Court said they could. The land had been subdivided before the prescriptive easement came into being, so the Dwyers had reason to think that if an easement had come into being prescriptively, it could be used to reach one of the homes which were contemplated on the vacant lots.

private160122 Clark v. Heirs and Devisees of Dwyer, 339 Mont. 197, 170 P.3d 927 (Mont. Supreme Court, 2007). The Clarks owned real estate, which they had acquired as several tracts over a seven-year period beginning in 1979. The Dwyers owned real property that bordered a piece of the Clark land with railroad tracks acting as a visible property line. The Dwyer property was bordered on the east by a county road named “Waterloo Road” and on the north by a roadway known as “Byrum Lane.”

Byrum Lane extended from Waterloo Road, across the Dwyer property, and across the northern border of the Clarks’ property – which lay between the Dwyer land and property owned by George and Virginia Byrum – before continuing onto the Byrums’ property lying to the southwest of the Clarks’ land. In essence, Byrum Lane dissects the Clarks’ land.

The Byrums used Byrum Lane by virtue of two recorded easements in their favor. The portion of Byrum Lane crossing the Clarks’ land is a recorded 60-foot wide roadway and utility easement. The portion of Byrum Lane traveling from Waterloo Road over the Dwyer property is a road and utility easement for a 30-foot wide roadway. This portion of Byrum Lane crosses the Dwyer property from Waterloo Road for a distance of about 834 feet before reaching the Clarks’ property.

Historically, Byrum Lane was used by the Clarks and their predecessors to access the tracts the Clarks had purchased. During the period of 1979 to 1986, Byrum Lane served as the Clarks’ sole access to their house. From the period of 1986 to 1991 the Clarks used Byrum Lane to feed livestock, load hay, and move equipment. Later, after they built a new house in 1988 on one of their tracts that previously had no residence, the Clarks continuously used Byrum Lane (although they also had access to their house by way of a roadway from Waterloo Road.)

The Clarks claimed a prescriptive easement along Byrum Lane, allowing them access over the Dwyer property to their land. Following trial, the court found that Byrum Lane had been used by the public and Clarks’ predecessors since the early 1900s, had been maintained by the county road department on occasion, was generally known as a public road which the public had a right to use long before the Dwyers purchased their property, and had been used without permission by the Clarks and Byrums (as well as others) since the time the Dwyers bought their land. The Dwyers and Byrums argued that the Clarks didn’t have the right to use the road to reach a residence on a tract that hadn’t had one when the prescriptive easement came into existence.

The trial court disagreed, saying that all owners of the road were put on notice in the 1960s that the road was intended to service residences when the subdivision of the property into various tracts took place. The court concluded that the Clarks established the elements of a prescriptive easement, an open, notorious, exclusive, adverse, continuous, and uninterrupted use of the roadway for at least five years. The Dwyers appealed.

barricade160122Held: The Supreme Court upheld the trial judge. The Dwyers complained that the trial court had no business making findings about the public-use nature of the road. The Supreme Court disagreed, holding that although the action involved an alleged private easement, the public-use findings served only to give credibility to the private-easement claim and had no other legal effect.

To establish a private prescriptive easement, the Court said, a party must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the full statutory period of five years required by Montana Code § 70-19-404. An open and notorious use is a distinct and positive assertion of a right that is hostile to the rights of the owner and brought to the attention of the owner. Once a prescriptive easement is established, the owners of the easement are limited to the use and frequency of use that was established during the prescriptive period. If an easement is not specifically defined, it is considered to be of a size that is reasonably necessary and convenient for the purpose for which it was created, and not more. And once established, a prescriptive easement “runs with the land,” which means that the benefit or burden passes automatically to successors.

Applying these principles, the Supreme Court found that the Clarks had a prescriptive easement to use Byrum Lane. The right to use the private prescriptive roadway easement provided subdivision access extended to the Clarks’ and other tracts, lands that never had residences. The tracts were subdivided before the prescriptive easement came into being, the Court said, and the act of subdividing the tracts of land put all landowners on notice that the disputed roadway was intended to service all residences. Furthermore, the disputed roadway had been used to service parcels for several decades.

– Tom Root