Case of the Day – Monday, November 28, 2022


lemonsup160302Lemon and Curington were neighbors. Things were neighborly when Curington planted a pair of poplar trees — fairly fast-growing and tall things — near the property line.

Over the years, things became less so, as several legally significant events occurred. First, the trees got big. As they did, the trunks ended up crossing the boundary line so that the trees were growing on both Curington’s and Lemon’s land. Second, the root systems expanded and began putting the squeeze on Lemon’s foundation. Third, Lemon discovered that if he used self-help, trimming back the roots and topping off the trees, he would make them unstable, turning the poplars into topplers. So Lemon — who was completely soured on the trees by this point — sued Curington, asking that the trees be declared nuisances and that Curington be made to remove them.

Life had given Curington a Lemon, but he tried to make lemonade. He argued that the Massachusetts Rule gave Lemon no aid and that he was limited to self-help. However, the court relied on the Idaho nuisance statute (noting in passing that the Massachusetts Rule didn’t really apply to a tree growing in both properties at once, a fascinating observation we wish it had explained a bit better), ruling that the trees were nuisances for having damaged Lemon’s foundation. It also seemed important to the Court that Lemon couldn’t trim the tree and roots himself without making the poplar a “danger” tree that was likely to fall.

founda160302This case is a gallimaufry of issues — the interplay of nuisance statutes with common law and the interplay of boundary trees with encroachment — as well a rather poorly-thought out dismissal of the Massachusetts Rule for reasons that were unnecessary. After all, the Massachusetts Rule was specific in its limitation to non-nuisance encroachment, twigs and leaves and that sort of thing. The Lemon decision, remarkably similar to the Hawaii Rule (but decided 14 years before the Hawaii Rule was adopted), is also quite similar in its fact pattern to Fancher v. Fagella, a 2007 Virginia Supreme Court decision. In fact, a real argument can be made that this Idaho case was entirely unnecessary in its treatment of the venerable Massachusetts Rule.  Michalson v. Nutting, in our view, is a “big tent” with enough room for all of the poplars, sweet gums and banyan trees that followed.

Lemon v. Curington, 78 Idaho 522, 306 P.2d 1091 (1957). Lemon and Curington owned adjoining land with a common boundary, on which two poplar trees had been planted over 50 years ago. The trees had grown to approximately four to five feet in diameter at the base, and the trunks and branches extended across the boundary line. The roots were surface feeders and, in one case, extended from the boundary line to and against the foundation of Lemon’s house, cracking the house’s foundation. pushing the wall of plaintiffs’ house inward.

lemondown160302If Lemon topped the trees and cut the roots extending onto his land, the trees are likely to fall over. Lemon sued, alleging the trees to be a nuisance, and asked for the authority to remove the offending trees.

The trial court authorized the destruction of the tree damaging the foundation but held the other tree was healthy and mature, and thus not a nuisance. Curington appealed, arguing that the Massachusetts Rule limited Lemon’s remedies to self-help, that is, to lemon’s trimming the tree and roots himself.

Held: The tree is a nuisance, and the Court may order Curington to remove it. The Supreme Court held that the Massachusetts Rule was not dispositive where a nuisance had been shown to exist.

roots160302The Court said, “[w]e think the condition here shown to exist constitutes a nuisance under the provisions of Idaho Code § 52-101.”  That statute defined a nuisance to be “[a]nything which is injurious to health … or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” Here, not only had the tree made a mess of Lemon’s foundation, but the evidence showed that if Lemon cut the roots and topped the tree, the whole thing was likely to fall over. The Court said that the statute authorized an action by any person “whose property is injuriously affected or whose personal enjoyment is lessened by the maintaining of a nuisance to have it abated.”

Without explaining its reasoning very far, the Court also said that the fact the tree was a boundary tree, on the properties of both parties, made the Massachusetts Rule inapplicable. So while Lemon reserved the right of self-help, the courts were also available to him to abate the nuisance tree.

– Tom Root


And Now The News …

Washington, DC, The Hill, November 27, 2022: That new chestnut? USDA plans to allow the release of GE trees into wild forests

Although many Americans still associate the winter holidays with chestnuts, the tree that once produced them — the American chestnut — no longer does so, except in a few rare cases. During the first half of the 20th century, billions of chestnut trees died from an exotic fungus, which was brought into this country on Japanese chestnut stock. The loss of the American chestnut was a historic event, because the trees not only supplied nuts but also wood for home, coffin and furniture construction, and the raw material for making railroad ties, shingles, telephone poles, fences and leather tannins. In the 21st century, there are those who believe the trees can be resuscitated via genetic engineering (GE). In fact, the U.S. Department of Agriculture (USDA) has just released a draft environmental impact statement and draft plant pest risk assessment that will allow the unrestricted planting of blight-tolerant GE chestnut trees on public and private lands. If approved, the tree would be the first genetically engineered plant released with the purpose of spreading freely into the wild. Although the agency is recommending the tree’s release into wild forests, they are also requesting public input regarding their recent decision to do so…

Charlotte, North Carolina, WFAE-FM, November 27, 2022: Worm Wars: Charlotte’s cankerworms are nearly gone, but tree bands are still going up

If you’re new to Charlotte, let’s catch you up on an unusual holiday tradition that takes place around this time of year, but seems to be declining. It’s called cankerworm banding. Every year around Thanksgiving, many of us buy rolls of plastic and insulation, wrap them around tree trunks, then coat the plastic with sticky, resiny-smelling goop. Charlotte City Arborist Laurie Reid Dukes got an early start this past week on a tree in Elmwood Cemetery in uptown. The tree sat on a hill surrounded by old tombstones. Dukes walked slowly around the trunk, spreading the goop with a small paint spatula. “It kind of reminds me of like, caramel ice cream topping,” she said, noting the goop’s brown color. Why do we do this? For years, these sticky tree bands have been the main weapon in Charlotte’s ongoing war against the little green cankerworm…

Columbus, Ohio, Dispatch, November 27, 2022: Gardening: What to look for when seeking the perfect live Christmas tree

The Thanksgiving Day dinner leftovers are just about gone, another Ohio State-Michigan game is in the books, and December arrives this week, so it must be time to start hunting for the perfect live Christmas tree for your family. While it is too early to put up a live tree indoors if you expect it to remain fresh and retain its needles through New Year’s Day, it’s not too early to determine what type of live tree will be best for your family and begin the hunt for a memorable tree. Purchasing a live tree every year may be more expensive over time than displaying an artificial tree each year, but live trees are more environmentally friendly than artificial trees, which at the end of their useful lives, will spend hundreds of years in a landfill. Live trees preserve wildlife and beneficial insect habitats, reduce soil erosion, sequester carbon in the soil in which they are grown, and purify the air. Live trees are biodegradable and can add organic matter to soil when they are recycled through chipping or composting…

San Francisco, California, SFGate, November 26, 2022: Selecting, keeping Christmas tree looking its best

The hunt for the perfect tree is oftentimes an important part of family tradition. Buy local whenever possible by supporting local Christmas tree growers. Purchasing locally grown trees also reduces the risk of spreading unwanted pests into your landscape. Your local Extension Service and Department of Natural Resources provide updates on any threats. Family tradition may dictate your tree choice. Many prefer the fragrance of balsam fir and needle retention of other firs like Fraser, white, Grand, and Noble. Though not a true fir, Douglas fir needles have a wonderful aroma when crushed. White pine lacks the fragrance that many prefer. Its pliable branches only support lightweight ornaments, but the soft needles have less bite than the popular Scots or Scotch pine. This evergreen has stiff branches that support heavier ornaments and its needles hold even when dry…

Hartford, Connecticut, Courant, November 25, 2022: Don’t wait to get your Christmas tree from these Connecticut farms

For many, it’s tradition after the Thanksgiving feast has been eaten and the turkey coma has subsided to go out and find the perfect Christmas tree. It’s time to start thinking about glittering lights, dazzling ornaments, a list for Santa and presents under the tree. Head out with family to buy a tree — cut-your-own or pre-cut. Most farms open the day after Thanksgiving for Christmas tree sales and you don’t want to wait. With the high demand during the pandemic and trees needing time to mature, farms could run out any day, so check websites or Facebook pages, before you get in the car. According to many of the Christmas tree farms, due to high demand during the pandemic, there are trees, but the larger ones may be harder to find…

Cision, November 23, 2022: Planting Over Seven Million Trees in Partnership with Forests Ontario

Canada is dedicated to helping restore and expand Canada’s forests from coast to coast. Trees are essential to our lives; they capture carbon, improve air quality and support wildlife — they are allies in our fight against climate change. That’s why today, the Honourable Jonathan Wilkinson, Minister of Natural Resources, alongside Adam van Koeverden, Parliamentary Secretary to the Minister of Health and to the Minister of Sport, and Lloyd Longfield, Member of Parliament for Guelph, announced a $12.7-million contribution to Forests Ontario to plant 7.2 million trees over a span of three years through the 2 Billion Trees program, aimed at partnering with governments and organizations to plant two billion trees over 10 years. As part of the 2 Billion Trees program, this project by Forests Ontario will increase forest cover and improve forest conditions. These trees will provide a nature-based climate solution by sequestering significant amounts of carbon, contribute to habitat restoration, including species and habitats at risk, and provide the many social, cultural, environmental and economic benefits that trees and forests offer…, November 24, 2022: Michigan’s famous Christmas Tree Ship sank 110 years ago this week

The shipwreck legend of Michigan’s famed “Christmas Tree Ship” remains shrouded in equal parts myth and mystery. But what we do know is this: 110 years ago this week, that worn-out schooner helmed by a man nicknamed “Captain Santa” and weighed down heavily by a load of U.P. Christmas trees bound for Chicago was fighting a mighty battle against intensifying winds and waves of a coming storm. In their final minutes, the Rouse Simmons’ crew had thrown out the schooner’s port anchor into Lake Michigan, hoping to hold her into the wind, archeologists later discovered. In the words of the dive team who pieced together her last tragic moments: “something had gone seriously wrong aboard the vessel.” Overcome by large waves, the three-masted schooner went down hard on the afternoon of Nov. 23, 1912, her bow leaving a 10-foot-deep gash in the bottom of Lake Michigan. Lost with her were 16 souls – her captain, crew, and a group of lumberjacks who were hitching a ride to the Windy City so they could get home for the holidays…

New Orleans, Louisiana, Times-Picayune, November 23, 2022: Christmas trees were scarce and expensive last year. This year might be worse, growers say.

Last year, issues ranging from robust demand to labor shortages and a lack of mature crops conspired to push Christmas tree prices up and drive availability down. This year? “It’s going to be even worse,” said Andrew Vultaggio, who owns AV Tree Farms Inc. and grows his own trees in Michigan. “Last year I said, ‘That was the low of the lows.’ I didn’t expect this year to be so bad.” Christmas tree growers and dealers said consumers should shop early and be prepared to travel further and spend more than they have in the past — and be willing to explore alternate options if their dream trees aren’t available. Matt Frost, who owns Urban Roots Garden Center in the Irish Channel, said that for the first time in the shop’s 10-year history, they won’t stock Christmas trees due to “skyrocketing” prices and an 1,100-tree order minimum from his supplier. He’s suggesting cypress trees, boxwoods and Norfolk pines to his customers as alternatives to the popular Fraser firs…

GoBankingRates, November 21, 2022: Christmas Trees Will Cost More This Year, But No More Than Shoppers Expected

With inflation hitting every corner of Americans’ lives, it’s no surprise that even Christmas trees will cost more this year. But this is not deterring consumers from buying them, and people are ready to shell out the extra dollars. A survey by The Real Christmas Tree Board (RCTB) found that a whopping 71% of tree growers cited a likely wholesale price increase of 5% to 15% compared to last year. Meanwhile, only 11% of respondents anticipated increasing their wholesale prices by a smaller amount — up to no more than 5% over last year. In addition, another 11% of tree farmers expect to increase their prices between 16% to 20% more than last year, and 5% expect their price increase to hit 21% or more. The survey also found that the top concern among tree growers was supply issues, with 44% of those polled saying as much. This concern was followed by the impact of inflation on consumer spending (35%), and labor availability and cost (21%). Despite the price hikes, Americans are ready and willing to spend more for a Christmas tree this year. Indeed, according to a survey by, more Americans plan to buy real Christmas trees this year as compared to last year — and nearly one in five (18%) are willing to pay $200 or more for their Christmas tree…, November 21, 2022: Nitrogen deposition promotes tree growth and drives photosynthate allocation into wood in temperate and boreal forests

Human activities have greatly increased reactive nitrogen (N) emissions to the atmosphere, resulting in an increasing global atmospheric nitrogen deposition. Existing stimulated nitrogen deposition experiments are carried out mostly in forests with low background nitrogen deposition, whose treatment durations are often short. In China, nitrogen deposition levels have remained steady in the last ten years at a relatively high level. Our understanding of how tree growth responds to long-term nitrogen addition is limited. Photosynthetic carbohydrates allocation among different tree organs is an important factor determining forest carbon (C) sink capacity. Nitrogen deposition may affect the allocation of photosynthates, and thus affect forest carbon sink capacity….

Knoxville, Tennessee, WVLT-TV, November 21, 2022: Real or Fake: Which type of Christmas tree should you get?

Each year, thousands of people head out to Christmas tree farms searching for the perfect tree, but studies reveal which is better for the environment. That’s exactly what the Murphys have been doing for the last three to four years. They said Bluebird Christmas Tree Farm in Anderson County is one of their favorites. “So this one of the only farms that is open before Thanksgiving and that you can cut on your own without traveling too far,” Jeremy Murphy said. After some searching, they were able to find the perfect tree for their home. “It’s symmetrical, full, and green. It looks well put together and majestic,” Murphy said. Being able to go out and choose your own tree is always a special time with your family, but did you know that getting a real tree is actually better for the environment than buying an artificial tree? Real trees are around ten times more eco-friendly in comparison to artificial trees. While artificial trees only have one use during the Christmas season, real trees can provide a more lasting impact. Burning trees and using them for mulch is the best way to lower carbon emissions with landfills being second. A huge spike in emissions occurs once you choose to go with the artificial tree; however, of course, there are certain circumstances in which an artificial tree is needed…

Stamford, Connecticut, Advocate, November 21, 2022: From air quality to flooding, trees matter. But which species are in Stamford’s urban forest?

A consultant recently inventoried the trees in the downtown, providing a snapshot of the tree population in that one area of the city. The Board of Representatives now wants an inventory of the trees that have been planted on city property across Stamford. The board approved a resolution Nov. 7 recommending that Mayor Caroline Simmons set aside funding in her next budget proposal for a geographic information system-based inventory. It also suggests that Simmons include money in her proposed budget for a water tank truck, an additional parks maintenance worker and for planting new trees in Stamford’s downtown. Downtown Special Services District President David Kooris said the downtown tree inventory, which was conducted in August, “tells us some very concrete things: Where we should prioritize planting, what types of trees we should prioritize for those empty pits or trees that need to be replaced, and what our priorities should be for pruning and maintenance of the existing trees.” For instance, the study found that 22 percent of the trees in the area are honey locust…

Seattle, Washington, Times, November 20, 2022: Christmas trees will be more expensive this year

Inflation has struck again, and this time it’s jacking up tree prices for the holiday season. According to a September report from the Real Christmas Tree Board, 2022′s Christmas tree market will look much like last year’s. “The real Christmas tree industry met demand last year and it will meet demand this year,” Marsha Gray, executive director of the Real Christmas Tree Board, said in the report. “This is essentially a year without surprises.” According to the survey, 86% of real Christmas tree buyers said they had no problems finding a place nearby to buy their tree last year. And 87% found the tree they wanted at the first place they looked. The report expects this year to be no different and demand to be healthy. In addition, retailers should see steady consumer interest in real Christmas trees and right now supply is pretty well matched to that interest, the report said. “The majority — 67% of the wholesalers we talked to — said they expect to sell all the trees they plan to harvest this year. In terms of volume, more than half — 55% — said they expect to sell about the same amount of real Christmas trees as they did last year. The balance was divided: Some expect to sell more, some less,” the report said…

Little Rock, Arkansas, Democrat-Gazette, November 19, 2022: Red buckeyes are attractive, small, spring-flowering trees — whose seeds require action if you intend to plant

Q: A friend gave me a handful of what she said were red buckeye seeds from a tree in her yard. She told me to plant them and I could have my own tree. I have no idea what to do with them. Just stick them in the ground and wait and see what happens? Do I want a buckeye?
A: Red buckeyes are lovely, small, spring-flowering native trees. They can grow readily from seed, but you do need to plant the seeds fairly quickly, as the seeds do lose viability rapidly. You have a couple of options. Buckeye seeds need to go through a cool, moist storage period before they will germinate. They get this naturally outdoors, so you could plant the seeds where you want the tree to grow. If you aren’t sure where you want it to grow, then you could put the seeds in a container outside. Buckeyes form a taproot very quickly after they germinate, which makes transplanting them later a challenge. By containerizing them, you are containing the root system, so transplanting later will be easier…

New York City, WCBS-TV, November 17, 2022: Neighbors stunned to find several blocks of trees, plants cut down next to LIRR tracks in Greenlawn

Several blocks of trees and shrubs along railroad tracks in one Long Island hamlet are suddenly gone. Greenery that provided safety barriers, created privacy and muffled sounds. As CBS2’s Jennifer McLogan reports, the homeowners are asking the LIRR “why?” Lorraine Hartnett just bough new curtains to muffle sound and protect her privacy. “With all the vegetation gone, you can see through my front window, out my back door,” Hartnett said. Across the street, where trees and shrubs once stood, stumps and lumber remain. There is nothing to block the sights and sound of Long Island Rail Road trains. “Forced to live in a cave, because I feel I’m in a goldfish bowl,” Hartnett said. Homeowners on Railroad Street in Greenlawn, Town of Huntington, are decrying what they call an aggressive, unannounced hatchet job by the Long Island Rail Road. “I’ve lived here 33 years, and they’ve never done this in 33 years. I wish they would have reached out to us, because it’s just awful,” said homeowner Douglas Purslow…

Good News Network, November 20, 2022: Planting Trees in a City 30 Years Ago May Have Lowered the Risk of Deaths From Diseases

Planting trees destined to live long healthy lives is believed to be a good way to save the planet, but what about ourselves? 30 years after a mass tree-planting event in Oregon, research has shown those who live near them are at lower risks of death from cardiovascular disease, as well as other non-accidental deaths. The study took advantage of a unique opportunity, namely that the non-profit Friends of Trees planted nearly 50,000 street trees in Portland, and kept detailed records of when and where they were planted. A research team made up of scientists from the Barcelona Institute for Global Health and the United States Department of Agriculture looked at the number of trees planted per census tract (blocks of 4,000 inhabitants) in the following 5, 10, and 15 years, and compared them with mortality data provided by the Oregon Health Authority. In neighborhoods where more trees were planted, mortality rates were lower; 6% lower for cardiovascular disease, and about 20% for non-accidental excess mortality. Furthermore, the association was higher the older the trees were, suggesting that preserving mature trees in neighborhoods perhaps should be considered a public health issue…

Case of the Day – Friday, November 25, 2022


Oldsters with droopy pants - not pleasant to contemplate.

Oldsters with droopy pants – not pleasant to contemplate.

A county park had a contract with Green View — a nonprofit company with the goal of putting our shiftless senior citizens to work cleaning up parks — to maintain the grounds. This is a good thing. Otherwise, retirees with their pants drooping to show their underwear and their “tatts” and funny flat-brimmed baseball caps worn sideways on their heads just hang around and ride their little electric carts up and down streets and… you know what trouble they can be.

Green View’s people were busy staying out of trouble when a tree branch broke off a tree and struck a park patron during a summer storm. Aware that a branch would never break off in the middle of a storm unless someone was negligent, the injured woman sued the county and, for good measure, went after the old people, too. She argued that the elderly working for Green Tree had a duty to inspect the park for branches that might fall off in storms. They had been too preoccupied with talking about their regularity to carry out their obligations.

In depositions, the Green View people admitted that they had looked for dead trees, but they explained that the county employees were responsible for removing hazards like that. At least one deponent might have even denounced the plaintiff as a “young whippersnapper.”

The young whippersnapper was, to use an obscure legal term, whippersnapped. The Court ruled that neither Green View’s contract with the county nor the job descriptions for its workers included any duty to inspect the trees or warn of their dangers. The county employees — who were immune from suit (just in case you are wondering why the old folks at Green View were being picked on to begin with) — all agreed that it was the county’s duty to inspect trees and warn of dangers.

The injured plaintiff couldn’t find any duty that Green View or its senior-citizen workers owed her. Without the duty, there could be no negligence.

Senior citizen humor aside, it is this kind of litigation — and the legal fees Green View undoubtedly had to shoulder to defend an action for which there was no factual basis — that drives beneficial programs like this one (intended to provide meaningful work and activity for seniors) out of business. While an injury like the one the plaintiff suffered was lamentable, the reason branches fall in summer storms is fairly well understood.

Sometimes stuff happens, and suing anyone who happened to be nearby when the stuff happens seldom makes anything better.

stuff150213Rolfhus v. County of Wright, 2001 Minn. App. LEXIS 319, 2001 WL 290525 (Minn.App. 2001). Dawn Rolfhus was seriously injured at a Wright County park in 1997 after a tree branch broke and struck her head during a summer storm. She and her husband sued the county and respondent Green View, Inc., a nonprofit organization that provides senior citizens with maintenance and custodial work at state and county parks. Green View had a contract with the county to maintain the park at which Rolfhus was injured.

The county park manager testified that the Green View employees, without discussion, undertook to remove the tree that had fallen on Ms. Rolfhus. Harold Johnson, a Green View employee, admitted to looking for dead trees in the park but stated that it “isn’t our job to chop down trees or anything like that.” Another employee, Frank Duncan, conceded that he never saw any county employees in the park inspect trees but that he “knew they did it.” The county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. The district court granted summary judgment to the county based on immunity and to Green View based on a determination that Green View had no duty to inspect trees or warn park patrons of dangerous trees. Rolfhus appealed the grant of summary judgment to Green View.

brokenbranch150213Held: The grant of summary judgment was upheld. The elements of a negligence claim include a duty, a breach of that duty, proximate cause, and injury in fact. Even where no duty otherwise exists, a person who voluntarily assumes a duty may be liable for failing to exercise reasonable care in performing the duty. One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.

The Court ruled that neither the language of the contract between the county and Green View nor the pertinent job descriptions created a duty for Green View employees to inspect trees or warn of their dangers. Furthermore, the county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. No issue of fact remained, and judgment was appropriately entered for Green View.

– Tom Root


Case of the Day – Wednesday, November 23, 2022


Kee Nee Moo Sha, Inc., had a tract of wooded land on a lake, next to a Bible camp owned by the Baptist Church. What could be wrong with that? No loud music, no dancing all hours of the night, no boozing or riotous living… right?

The minister in charge of the Bible camp knew where the boundaries between the Baptists’ and the company’s lands lay. But he had a problem. How could he build more cabins for the pittance that had appeared in his collection plate? The Lord turned seven small loaves and a few fishes into a feast for 4,000 people. But the preacher, a lesser mortal, couldn’t stretch what little he had into more lodging.

And verily, he began to covet his neighbor’s trees.

The minister had a logger cut down about a hundred of Kee Nee Moo Sha’s pine trees. Surely this was manna from heaven — free timber! Except it wasn’t free, as the Baptists soon found out.

Kee Nee Moo Sha reacted much like a modern, more restrained version of the angry vineyard owner.  It sued. The Baptists failed to heed the Lord’s admonition to make peace with the plaintiff before you get to court.

Too bad, too. The court found that the minister’s trespass was willful, and in fact, it appeared to be rather irked with the fact that – once on the witness stand – the man of the cloth wasn’t very familiar with the 9th Commandment, you know, the one about bearing false witness and all.

Kee Nee Moo Sha wanted the Baptists to pay for the enhanced value of the timber — that is, the value of the timber after being milled — and the court agreed that the measure of damages is acceptable where the trespass is willful. But the court can’t guess what that value might be, and where Kee Nee Moo Sha failed to introduce any evidence of the enhanced value, it missed its opportunity.

The Baptists introduced evidence of the stumpage value of the timber, that is, the value at the point it had been cut down, but before it was hauled and milled. Stumpage value is always lower because the owner of the timber has to deliver it to the sawmill and pay for the milling before having a product to sell. Because the stumpage value was the best evidence of value in the record, the Baptists were charged for the lower figure.

The trial court assessed punitive damages against the church camp instead of the treble damages for wrongful cutting which the statute permits. The Court of Appeals noted that this was entirely permissible because sometimes trebling the damages just isn’t good enough to deter such conduct. Where the trespass is wanton but the damage only amounts to $100, $300 might just not get an errant preacher’s attention nearly so effectively as a whopping punitive award. The Court said that either trebling or punitive damages may be applied, at the trial court’s discretion.

covet150212And thus, the Baptists rendered unto Kee Nee Moo Sha …

Kee Nee Moo Sha, Inc., v. Baptist Missions of Minnesota-Plymouth Point Bible Camp, 1990 Minn. App. LEXIS 1305, 1990 WL 212222 (Minn.App. 1990). Kee Nee Moo Sha, Inc., is a family-owned corporation organized for the purpose of holding more than 100 acres of forested land near Hackensack, Minnesota, with a resort on the southern end of the property. The resort belongs to the Baptist Church.

In late 1976, in connection with the transfer of the Baptist’s church property to another church unit, a surveyor was hired to survey and mark the boundary between the Baptists’ land and the Kee Nee Moo Sha property. Shortly after the survey was completed, and while the brush was all cleared and orange flags marked the line, the surveyor walked the boundary line with one of the church’s pastors, pointing out in detail the location of the boundary.

About four years later, the pastor wanted to build more camp buildings as cheaply as possible. Looking for some do-it-yourself financing, he arranged for a local logger to cut about 100 pine trees in and near the main camp buildings. While most of the timber was cut on church property, 26 pines were cut on Kee Nee Moo Sha land. In addition, the pastor had the logger clear-cut nearly 100 birches and aspen from the same area of the Kee Nee Moo Sha property, along with 1,600 cubic yards of sand which were used in a drain field near the Baptist building project. Kee Nee Moo Sha was unamused.

A lawsuit inevitably followed. The trial court granted Kee Nee Moo Sha damages for trespass and an injunction against further trespass by the Baptists. Unhappy with the paltry damages awarded, Kee Nee Moo Sha appealed, seeking a higher measure of compensation, a more extensive permanent injunction, and costs, disbursements and attorney fees.

Held: The appellate court upheld the trial court decision.

The Court observed that there were several possible measures of damages that could be used when trespass to property involves the taking of timber. One of the oldest is the “enhanced value” of the timber after being sawed and transported to the place of sale or transfer, to be used when the trespass is willful. The presumption in trespass cases where timber is cut is that the trespass is willful, and the burden of proof falls to the trespasser to show otherwise.

Here, the trial court found it couldn’t use the “enhanced value” measure, because no evidence was introduced to permit the Court to determine the value of the processed lumber. Consequently, the trial court used the stumpage value presented by the Baptists to set compensatory damages, and awarded punitive damages, in addition, to arriving at a fair number. The trial court, passing up treble damages that were authorized but not required by statute, awarded punitive damages instead. The trial court found that “even an award of treble damages for that taking would not adequately punish [the Baptists] or compensate [Kee Nee Moo Sha] for the willful trespass which has occurred.”

The Court agreed that the trial judge’s approach was justifiable under Rector v. C.S. McCrossan, Inc., and the treble damage statute. It observed that Rector, while referring to various measures of damages, does not refer directly to punitive damages. Punitive damages may be awarded, however, when “the acts of the defendant show a willful indifference to the rights or safety of others.” The trial court found that the Baptists’ behavior was willful, and the evidence supported it.

ba150212Minnesota law provides that any award of punitive damages will be “measured by those factors which justly bear upon the purpose of punitive damages, including… the profitability of the misconduct to the defendant… the attitude and conduct of the defendant upon discovery of the misconduct… and the total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct, including compensatory and punitive damage awards.” In this case, the Court didn’t think much of the Baptists’ attitude. First, the defendant cut the timber and removed the sand in order to line its own pocket, that is, to obtain cheap building materials for the camp. Second, the pastor continued to deny any willful misconduct throughout the trial, a denial that flew in the face of proof to the contrary and his own admission that he had been shown a clearly marked boundary prior to these takings. The appellate court dryly called the jury’s awarding of compensatory and punitive damages a “just” result.

Kee Nee Moo Sha argued for the use of the “replacement value” measure of damages also authorized by Rector, but the Court noted that in instances where the cost of replacement is unreasonable or excessive in relation to the damage to the land itself, the trial court may, in its discretion, allow the jury to consider more than one measure of damages in order to permit flexibility and achieve a just and reasonable result.

– Tom Root


Case of the Day – Tuesday, November 22, 2022


It’s a great old saw, but as logicians like to point out, “every rule has an exception” is a logical fallacy. As if anyone could possibly know every rule, so that he or she could be sure that every rule had an exception (sort of like the people who claim no two snowflakes are alike: how could they possibly know that?).

But beyond that, if every rule has an exception, then the rule that every rule has an exception itself has no exception, in which case every rule does not have an exception. It’s enough to make your head throb.

But all we care about here are rules in tree law. If there is any rule that seems immutable, it is the rule that a boundary tree belongs to the owners of both properties on which it is growing. No owner can do anything to trim or kill the tree without the permission of the other owner. Boundary Tree Law 101 right?

Well, yes, but for the exception. In today’s case, one property owner ignores the warnings of the other, and excavates for a basement, only to sever the roots of the big, beautiful boundary oak tree. The court agreed with the aggrieved plaintiffs all the way, except at the end, where the Supreme Court said, “Sure, that’s the rule… but there’s an exception.”

The exception is that if an owner harms or kills the tree while using his property in a reasonable way, the other owner is without recourse.

Does that tiny little exception look big enough to drive a truck through?

Amazingly enough, this decision remains good law in Oklahoma.

Higdon v. Henderson, 304 P.2d 1001 (Supreme Ct. Okla, 1956). The Higdons filed their petition seeking damages for the destruction of a shade tree they said was located on the lot line between their property and that of John Henderson. They said it had been a large towering oak tree which was a valuable shade tree for both lots. They claimed John had been building his house when, over their objections, he excavated a basement, cutting the tree’s roots and killing it.

John argued the Higdons could not recover, because their complaint did not say to whom the tree belonged, and at any rate, they did not state a claim on which they could collect. The trial court agreed, and the case ended up in the Oklahoma Supreme Court.

Held: Identifying the tree as a boundary tree was good enough, but the Higdons could not collect for Henderson’s killing of the tree.

The Court acknowledged the general proposition that “trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.” The Higdons’ complaint referred to the tree as a boundary tree, and that was quite adequate to identify common ownership of it by John and the Higdons. The Court acknowledged the general proposition that “trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.” The complaint referred to the tree as a boundary tree, and that was quite adequate to identify common ownership of it by John and the Higdons.

The Supreme Court also agreed with the Higdons that because the tree was standing on the boundary line, it was the common property of both owners, so neither had the right to damage or destroy the tree without the consent or permission of the other. But, the Court said, that rule is “qualified by the right of an abutting owner to use his property in a reasonable way and conversely, not in an unreasonable way.”

Here, the Higdons complained that John was building a house. This is not an unreasonable use of the property, the Court ruled. Therefore, the resulting incidental injury to the tree did not give the Higdons a right to recover damages.

– Tom Root


Case of the Day – Monday, November 21, 2022


liar150204Remember prescriptive easements? Those are easements and other rights over property that can be taken because they are exercised adversely to the owner for a number of years (the number varies from state to state).

For example, the electric company strings wires across the corner of your homestead. You didn’t give anyone permission to do that. The wires hang there for 21 years, providing a perch for the pigeons and a trellis for the kudzu. You don’t like them, but you don’t do anything about them. Then you sell the place to Sherman Shyster, an angry lawyer with a laptop and printer. He immediately sues the power company for trespass. But because the wires have been hanging there for a sufficient number of years, the court that the electric company has gained the air rights over that corner of the property by a “prescriptive easement.”

The exercise of adverse rights – the wires hanging there – must be done openly, notoriously and continuously. Anything less, and there’s no easement. In today’s case from California, Gabriele wanted a nice driveway on a sloping hill, but he couldn’t fit it onto his fairly vertical land. So he made a deal with his neighbor, Mrs. Hoehne. She gave him a non-exclusive easement to build a drive on a described bit of land, and in return, he agreed to build a nice road for her to use to come down to and across a retention pond and dam she had.

Before the drive was built, Mrs. Hoehne sold her land to Ms. Cobb. Ms. Cobb didn’t much want Gabrielle’s driveway cutting across her place, but she was stuck with her predecessor’s easement. Still, she asked Gabriele about his intentions before construction began, and he showed her a sketch of the proposed drive.

oops150204Oops. The driveway didn’t get built according to plan, instead wandering onto Mrs. Cobb’s non-easement property. When Ms. Cobb finally had her own engineer study the layout of the driveway eight years later, he found the encroachment. California’s time period for a prescriptive easement is only five years, but Ms. Cobb claimed that Gabriele lied to her with the misleading driveway sketch. Therefore, she argued, his possession during the five-year period was neither open nor notorious.

Ah, the Court said, there’s a real difference between predicting today how the project will turn out, and describing tomorrow how it did really turn out. A prediction that doesn’t come true is not the same as a subsequent lie swearing that something that didn’t happen really did.

Gabriele thought the driveway would lie completely within the easement. No lie. The driveway turned out not to lie completely within the easement. While the error was lamentable, it was not a lie. That is, predicting a future lie isn’t a lie. Got that?

The court ruled that the driveway could stay where it was, having acquired the right by prescriptive easement.

Cobb v. Gabriele, 2007 Cal. App. Unpub. LEXIS 3448, 2007 WL 1247308 (Cal.App. 6 Dist., Apr. 30, 2007). In 1989, the Gabrieles bought a parcel of unimproved land along Salinas Road. Their engineer prepared plans for a driveway directly onto their land from Salinas Road, but the county wouldn’t permit it because the land was too steep. The Gabrieles discussed an easement with their neighbor, Phyllis Hoehne, who ultimately executed a non-exclusive easement for ingress, egress and public utilities over a piece of her land. The easement provided that the Gabrieles would build a driveway, drainage facilities, and erosion improvements on the easement land, and would allow Hoehne to use the driveway portion to access a retention dam located on her property. The Gabrieles also agreed to build an access road across the dam.

Gabriele's driveway was this long ... but not this nice.

Gabriele’s driveway was this long … but not this nice.

Hoehne then sold her land to Cobb, who didn’t much like the easement. Gabrielle built the driveway without notice to Cobb two years later, and when she demanded to know what he was doing, showed her a sketch that depicted the proposed driveway completely within the easement boundaries.

Somehow, the driveway wasn’t built according to the plan, but instead went outside the easement and encroached on between 100 and 120 feet on Cobb’s property. The Gabrieles have used the driveway continuously since its construction, having paved it in 1997. But the Gabrieles didn’t build what they had promised Hoehne. When Cobb asked about the access road, the Gabrieles explained that the road was just going to be a roughed-in dirt road the width of a bulldozer blade, to be used only for a fire exit. Gabriele said Cobb had changed her mind and didn’t want the roughed-in road. But in March 2000, Cobb’s attorney wrote to the Gabrieles about the easement. He asserted that some of the improvements that were supposed to have been constructed in connection with the driveway had not been completed and that the driveway had been construed in a location outside of that designated by the easement. However, Cobb testified that at that time she did not have “absolute knowledge” that the driveway was outside the easement. She said her attorney had made that accusation to cover all possibilities should there be litigation.

In 2003, Cobb received a survey showing the encroachment. Cobb sued that year to quiet title and prayed for declaratory and injunctive relief. She wanted an order that the driveway must be moved. She asserted causes of action for trespass, nuisance, breach of contract, negligence, waste, failure to maintain, unreasonable use, fraud, diversion and diminution of water, and damages to trees, and she sought compensatory and punitive damages.

The trial court granted the Gabrieles’ motion for summary adjudication on the claims for trespass, nuisance, negligence, waste, fraud, diversion/diminution, and damage to trees and the request for punitive damages, finding them barred by the three-year statute of limitations, but found in Cobb’s favor on her claim for failure to maintain. The trial court also found that the Gabrieles had a prescriptive easement over the property where the driveway went outside of the written easement.

Cobb appealed.

Held: The judgment was affirmed. The Court of Appeals found that Gabrieles had shown the elements necessary to establish a prescriptive easement and that the use of the property has been open, notorious, continuous and adverse for an uninterrupted period of five years.

The Court said that the requirement that the use be hostile and adverse and under a claim of right means that the property owner has not expressly consented to or permitted, allowed, or authorized the use of his or her land, and the user does not recognize or acknowledge the owner’s rights, not necessarily that one must know that the use constitutes an encroachment or trespass. In short, where one openly and continuously — even mistakenly — uses another’s property for the 5-year period without the owner’s interference, it is presumed that the use was adverse, hostile, and by claim of right.

human150204Here, the record showed that the driveway encroached on Cobb’s property. Cobb knew about the recorded easement and had constructive knowledge of its boundaries. As well, she knew exactly where the driveway was constructed and saw the Gabrieles continuously use it for more than the prescriptive period. Finally, there was no evidence that Cobb expressly permitted the Gabrieles to use any area outside the easement, nor was there evidence that the Gabrieles intended to stop using the entire driveway or remove part of it if they had known that part of it was outside the easement.

Cobb claimed the Gabrieles failed to establish the open-and-notorious element because Gabriele concealed the fact that the driveway encroached on her property. She noted that Gabriele assured her that the driveway would be inside the easement and gave her a diagram to that effect. Given the concealment, Cobb argued, she did not have knowledge or constructive notice that the driveway constituted an encroachment.

The Court, however, said that before the driveway was actually constructed, Gabriele gave Cobb a sketch showing that it would be within the easement. Thus, it only represented his understanding of where the driveway would be located, not where it had been located. There was no evidence that when Gabriele gave Cobb the sketch, he knew the driveway would be constructed outside the easement, nor is there evidence that after it was built, the Gabrieles knew it encroached on Cobb’s property. And at trial, Cobb conceded that the Gabrieles did not know about the encroachment until her engineer conducted his survey in 2003.

Mrs. Cobb simply couldn’t have it both ways.

– Tom Root