Case of the Day – Friday, June 5, 2026

Posted on June 5, 2026 by TLRoot tagged.

EVERYTHING WE KNOW IS WRONG – PART 1

If there are two basic building blocks of tree law, they are the Massachusetts Rule – that New England rock of individualism and self-reliance – and the Hawaii Rule – that piece of creeping socialism that lets a property owner use the courts to force a neighbor to remove a tree that was a bother (we said that tongue-in-cheek).

After running out of gas and the funds needed to pay for it, I was homebound. For something to do, I went on a quest to identify the legal precedent in every state that addresses the issue of the encroachment of overhanging limbs and subsurface roots, so that we could present a state-by-state compendium of encroachment law. It was either that or cut the grass on my hands and knees with a pair of scissors (no gas for the mower). Wisely, I opted to go the encroachment route.

I had not even gotten out of the Northwest Territory – remember what that is? – when I found that the Massachusetts Rule did not start in Massachusetts. What’s more, as we see today, the Hawaii Rule was the law of the land in the Hoosier State back when Hawaii still had a queen, and the Americans had yet to diddle in the affairs of the Kingdom in order to engineer annexation.

Indiana’s rule can be summed up as this: a tree that encroaches on a neighbor’s property and creates a nuisance – producing such a condition that in the judgment of reasonable persons is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits” – has to be removed at the expense of the tree’s owners.

A tough place, Indiana… In today’s case, a tree that had once belonged to the plaintiff – who had sold the property to the defendant – had grown into the boundary fence, damaging it. The roots raised some sidewalk slabs on a walkway the plaintiff maintained near the boundary. The plaintiff, unwilling to fix the rather minor damage ($2,500 in 2010, not a princely sum), went to small claims court to make the other guys pay.

It seems to us that as a matter of equity, the plaintiff knew something like this would happen when he let the tree sprout years before, at a time when he owned the parcel on which the tree was growing. But equity appeared not to have any place in the courtroom that day.

But back to my basic point: the Hawaii Rule did not originate in Hawaii at all. What we thought we knew about that Rule turns out to be wrong. What next? Is the Massachusetts Rule equally mislabeled? Tune in tomorrow…

Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind.App. 2011). Steve Scheckel owned a piece of property separated by a chain-link fence from a plot belonging to NLI, Inc. Steve has a walkway paralleling the fence that runs about five feet from the boundary line. Steve had previously owned both his land and the NLI property, and – when he had – a tree grew on the NLI property near the fence. After he sold the land to NLI, the tree continued to grow, as trees are wont to do, until it grew into the fence and its roots grew under the walkway, leaving the gate in the fence unusable and the walkway badly cracked and buckled. Steve spent $2,500 fixing the mess.

Steve complained to NLI about the damage, but the corporation took no action. He then sued NLI for negligence and nuisance in small claims court. The court found for NLI on the grounds that while the size and placement of the tree damaged the fence and walkway, a landowner is not liable for harm caused beyond property boundaries by a natural condition of the land.

Steve appealed.

Held: The Court of Appeals reversed, and ordered that the trial court find NLI liable.

Steve contended that the trial court erred in applying the “natural condition” rule. The natural condition rule, as set out in which provides that a landowner was not liable for harms caused to others outside of his land caused by a natural condition of the land, arose “at a time when land was largely unsettled and the burden imposed on a landowner to inspect it for safety was held to exceed the societal benefit of preventing possible harm to passersby.”

Over the years, the rule has been subject to exceptions when landowners had actual knowledge of a dangerous natural condition, regardless of location, and – in an urban area – when he or she fails to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of the trees on the land near the highway. The rationale for imposing such a duty on urban landowners is that the risk of harm to highway users is greater and the burden of inspection on landowners is lighter in such populated areas.

Most recently, the Indiana Supreme Court observed that the natural condition rule, as stated in the Restatement of Torts § 363(2), has little or no utility in an urban setting. A landowner in an urban or residential area “has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring land owners, arising from the condition of trees on his or her property.”

Here, the Court of Appeals said that

[s]trictly applying the Restatement rule in these settings would leave landowners powerless in the face of a neighbor who refuses to remove or secure an obviously decayed and dangerous tree simply because it is a natural condition of the land. As a result, Indiana, along with several of our sister states, has retreated from strictly applying the Restatement rule in urban or residential settings where the landowners have actual or constructive knowledge of the dangerous condition.

Here, the small claims court held that the condition of NLI’s tree did not pose an unreasonable risk of harm to neighboring landowners, but rather the placement and size of the tree that caused the damage. The Court of Appeals, however, disagreed, seeing “no meaningful difference between the two situations. Indeed, it may be difficult to determine whether a tree is decayed to such an extent that it poses an unreasonable risk of harm to an adjoining property owner, but a tree upon one’s property that is growing into a structure on an adjoining property is readily observable.”

The Court applied a three-part duty analysis it adopted from an Indiana Supreme Court ruling, concluding that a landowner in a residential or urban community owes a duty to prevent an unreasonable risk of harm to adjoining property owners or their property resulting from trees growing upon the landowner’s property. Those three factors – relationship, foreseeability and public policy – all support its conclusion that NLI owed Steve a duty:

The relationship is significant in that it is between the owners of adjoining property, and will often be that of next door neighbors. There is a high degree of foreseeability of harm where one’s tree is growing into a structure on an adjoining property. Finally, the landowner is best situated to prevent or minimize the harm by trimming the tree upon the landowner’s property. Accordingly, we conclude that the trial court erred in applying the natural condition rule to bar Scheckel’s negligence claim.

The Court also said the natural condition rule did not bar Steve’s private nuisance claim, either. A nuisance is defined as whatever is injurious to health, indecent, offensive to the senses, or an obstruction of the free use of property, such that it essentially interferes with the comfortable enjoyment of life or property. Ind.Code § 32-30-6-6. A public nuisance affects an entire neighborhood or community, while a private nuisance affects only one individual or a determinate number of people, arising when it has been demonstrated that one party has used his property to the detriment of the use and enjoyment of another’s property.

Nuisance actions may either be nuisances per se (at law) or nuisances per accidens (in fact). A nuisance per se occurs when the use itself is unlawful. A nuisance per accidens, a nuisance-in-fact, is not a nuisance in itself but becomes one by the manner in which it operates. In determining whether a private nuisance per accidens is actionable, the inquiry is whether the alleged nuisance produces such a condition that, in the judgment of reasonable persons, is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits.”

Ever since 1894, the Court said, Indiana has recognized the right of landowners to recover damages to their property caused by trees growing on an adjoining property as a private nuisance. In the 1894 Toledo, St. Louis & Kansas City Railroad Co. v. Loop decision, the Indiana Supreme Court held that in the event of trees growing so close to the boundary line between two properties that their branches encroach on the adjoining premises, the adjoining landowner may have an action for damages in nuisance if injury were shown.

The Court of Appeals concluded that the trial court erred by applying the Restatement’s natural condition rule to Steve’s cause of action.

– Tom Root

And Now The News …

Posted on June 5, 2026 by TLRoot tagged.

Detroit, Michigan, Free Press, June 4, 2026: Michigan’s cottonwood blizzard is starting. Why they’re making a mess

Fluffy white stuff is starting to float through the summer breeze, but you don’t have to worry — it’s not another round of snow. Cottonwood trees are filling the air with seeds, creating a slow-moving spectacle — and some extra yard work. From late May to mid- to late June, eastern cottonwood trees, native to Michigan, reproduce by dispersing small seeds attached to fluffy bunches of “cotton” into the air, known as, “wind-disseminated seeds,” according to Michigan State University Plant and Pest Diagnostics. While the tree’s goal is for seeds to land in the soil, root and grow they oftentimes collect around buildings, atop grass and other spots, resembling piles of snow. Cottonwood trees release their seeds for about two weeks, according to Purdue University Forestry and Natural Resources, but that’s plenty of time to create a mess…

San Antonio, Texas, KENS-TV, June 4, 2026: Invasive tree-killing beetle spreads to three more Texas counties

An invasive insect responsible for killing hundreds of millions of trees across North America has been detected in three additional Texas counties. According to Texas A&M Forest Service, emerald ash borers have now been confirmed in Young, Montague and Clay counties after adult beetles were captured in monitoring traps. The new detections expand the known range of the destructive pest, which was first found in Texas in 2016. The emerald ash borer is a metallic green, wood-boring beetle that attacks ash trees. As larvae tunnel beneath the bark, they disrupt the tree’s ability to transport water and nutrients, eventually killing it. “Monitoring is one of our most important tools for tracking the spread of emerald ash borer in Texas,” said Allen Smith, forest health program manager with Texas A&M Forest Service. “These detections help us better understand where the insect is present so landowners and municipalities can implement management strategies as it continues to move across the state.” Foresters use a network of distinctive purple traps across Texas to monitor the insect’s spread and identify new infestations…

New Haven, Connecticut, Independent, June 4, 2026: Tree-Trial Verdict: 4 To Fall, 2 To Stay

The city has decided to remove four Willow Street trees, while preserving — for now — two others that had also been on the chopping block, following a public hearing that saw 27 neighbors debate tree health and traffic safety at a Goatville intersection. In a decision later provided to the Independent on Thursday, city Tree Warden Annie Mixsell explained that the city’s decision to remove four trees and preserve two was made based on the trees’ condition, and secondarily based on proposed construction at the Willow-Nicoll intersection. She wrote that trees that have “reached an unacceptable level of risk” in their decline, as some have, must be removed. The process of assessing these three pin oaks and three zelkovas started, Mixsell wrote, because “the history of pedestrian and vehicular accidents at the intersection prompted proposed improvements to improve sightlines, slow vehicles, and increase safety for all.” Once plans were made, Mixsell was called in to assess how construction would affect neighborhood trees, many of which are coming to the end of their life spans…

Auckland, New Zealand, Herald, June 4, 2026: Judge discharges businessman who cut native trees on public land near Tasman property

A businessman who claimed to be a guardian of native flora and who supported principles of conservation has been penalised for cutting down native trees on public land bordering his luxury property. The 62-year-old admitted Department of Conservation (DoC) charges last year for felling five native black beech trees and other vegetation on a strip of land in Tasman. He claimed the beech trees posed a fire hazard to the seafront property and that DoC had granted permission years earlier. But the state-run conservation agency said it had never given him permission, while Fire and Emergency New Zealand said in an affidavit to the court that beech trees did not burn particularly well. In the Nelson District Court today the businessman was granted a discharge without conviction on charges described as taking plants from a conservation area without authority. The remnants of the beech trees cut down on Department of Conservation land on a coastal strip bordering Tasman Bay…

Knoxville, Tennessee, WATE-TV, June 3, 2026: I-75 noise ‘unbearable’ for Knoxville neighborhood after tree removal

Dozens of people who live in North Knoxville want a noise-abatement wall put up alongside their condo community, which lies a couple of hundred feet off I-75. Ever since trees and shrubs were removed last year, residents say the rumble of trucks, cars, and engine braking has become “unbearable.” From Lee Williams’ back porch, he has a direct view of I-75. However, it didn’t look like this when he moved in three years ago. His subdivision, Alpine Meadow, is just south of the Emory Road exit in North Knoxville. Where there is now a flat terrain, a thick grove of dense trees and shrubs was cut down last year. They once served as a natural sound barrier for homeowners who are closest to the road. Since the removal of trees and shrubs, highway noise levels have risen sharply. “It has just gotten louder, a lot louder,” said Williams. “At first, I could at least go outside. We could have conversations on our back deck. Now I can’t, we can’t do any of that. I just go outside, I cook, I grill out, and I just come right back inside….”

Norwich, Vermont, Valley News, June 2, 2026: Invasive beetle prompts removal of nearly 400 ash trees in Norwich

Nearly 400 trees along the “fastest and busiest” town roads are slated to be cut down over the next four months. The 394 trees along Beaver Meadow, Elm, Hopson, New Boston, Turnpike and Union Village roads make up just under 4% of the more than 10,000 ash trees along Norwich’s roadways, Doug Hardy, a member of Norwich’s Emerald Ash Borer Management Group, said last week. The collection consists of the “most dangerous” ash trees along well-traveled Norwich roads and “virtually everything” marked to be cut down already is infested with the invasive emerald ash borer. The $106,000 removal project began Monday. “We felt that the safest thing to do in the best interest of the community was to cut any ash tree which could fall into the road,” Hardy said…

Colchester, Vermont, Vermont Public, June 3, 2026: Scientists are injecting elm trees with a killer fungus to save them

Walking down into the floodplain at the Nature Conservancy’s preserve in Benson is like walking into a sea of American elm saplings. The trees criss-cross about 30 acres on the valley floor in tight rows. “American elm is a foundation tree species in floodplain forests,” says Leila Wilson, an ecologist with the U.S. Forest Service. “These are systems which are facing severe threats from non-native pests and pathogens, but we also know from other impacts, right? Land use change, conversion to agriculture, now climate change, and changing precipitation and temperature patterns. So these are systems that are in peril.” Wilson knows these trees well. Each one comes from a seed she harvested from a tree whose flowers she isolated with little plastic bags, then hand-fertilized using pollen collected in the lab. That pollen came from big old elms scattered across the Northeast…

Jackson, Mississippi, WLBT-TV, June 3, 2026: A neighbor’s cracked tree leans toward a house, here’s what the homeowner did when the owner wouldn’t remove it

Dead and dying trees from a neighboring property threatening homes is a problem many face. How do you handle the tree owner not taking responsibility? One Ridgeland property owner had to get the city involved to remove the hazard. A more than 50-foot dead tree hovers dangerously over the Ridgeland home. It is on the property of the neighbor. The property owner said they are getting no help with having it removed. “It’s already cracked at the bottom and it could fall any time,” said Bankeni Monzilli Tillman. Since January, Tillman has worried as the dead pine rests on branches of an oak tree over her house on Lincolnshire Boulevard. The tree is on Carol Thompson’s property. Tillman said Thompson hasn’t responded to requests to remove it. Thompson declined to comment about the dead tree. Tillman reached out to the City of Ridgeland and said it’s been four months of no action. “The tree’s probably gonna fall, and I just continue to pray and just ask God to keep it up until this is resolved,” said Tillman, “And we cannot go and cut the tree because it’s on her property, and that’s gonna be a trespassing problem…”

Fargo, North Dakota, AgWeek, June 1, 2026: Is the removal of trees to blame for relentless winds and blowing dirt?

It’s been nearly a century since dust filled the skies and spread across the country during the Dust Bowl. During the peak of fieldwork this spring across Minnesota and North Dakota, it may have felt as if history was repeating itself. As thousands of acres were tilled and planted, dry weather was exacerbated by howling winds day after day. It brought the National Weather Service in North Dakota to issue High Wind warnings, Dust Storm warnings and a Blowing Dust Advisory. The Minnesota Pollution Control Agency issued warnings about air quality. Matthew Olson, a forest stewardship manager in Lisbon, North Dakota, said the winds came at a horrible time as those fields were being opened up and were most susceptible to soil loss. In one of the social media posts put out by the National Weather Service in Bismarck, a commenter responded that the reason for the “micro-Dust Bowl” activity was that farmers are removing windbreaks to make room for more farmland. Others called that claim false, even saying that there are now more windbreaks than before…

St. Paul, Minnesota, myVillager, June 1, 2026: Proposed tree preservation ordinance is laid over once again

By the time it is finally adopted, Saint Paul’s long-delayed tree preservation ordinance could resemble a mighty oak. The Saint Paul City Council on May 20 laid over the proposed ordinance for another public hearing. The ordinance, which has been on the drawing boards for more than a year, continues to be amended. The community-led Tree Preservation Ordinance Public Input Group has continued to make recommendations. So has a group of staff from the city’s departments of Public Works and Parks and Recreation. According to City Council president Rebecca Noecker, city officials intend to have the ordinance and related rules ready for approval by late June. However, she added, the tree preservation measures need to be implemented correctly. Saint Paul’s tree canopy has been decimated in recent years by the emerald ash borer. Tree diseases and weather extremes, including severe storms, have also taken a toll. Many of the city’s low-income neighborhoods also contain relatively few trees along city boulevards and parks, raising concerns about equity and urban heat islands…

Kansas City, Missouri, KMBC-TV, May 29, 2026: Northland homeowner calls for cleanup after tree trimming debris left behind

A Northland homeowner contacted KMBC 9 Investigates after a tree removal company working for Evergy left a pile of limbs and debris in her yard, leading to confusion over cleanup responsibilities. Evergy has agreed to remove the debris after hearing about Michelle Crawford’s concerns on Friday. “My neighbors have said, ‘Hey, what are you doing over there? Maybe we ought to have a bonfire,'” Crawford said. She explained that a crew of seven or eight workers brought the debris out from a tree line near power lines behind her home last month. It followed work in December on the same area. Crawford has tried contacting Evergy and the tree trimmers to address the mess but has not received clear answers on next steps. “I feel lost,” she said. “You know, I’ve called, called, called, and I haven’t gotten the answer we need because it’s still sitting here…”

New Orleans, Louisiana, WDSU-TV, June 1, 2026: New Orleans-area arborists provide tips for preparing trees for hurricane season

Tree-lined streets in areas like Esplanade Avenue, Magazine Street, Old Metairie, and the Northshore are admired for their beauty and shade, but they can become hazardous during hurricanes, causing property damage and power outages. David Benton, vice president of Bayou Tree Services, encouraged homeowners to act before hurricane season begins. “The best thing you can do is call prior to hurricane season starting, get on the list, and then that way you can make an informed decision and not make an impulsive decision on something that may be drastic as to remove a large mature tree in your yard,” Benton said. Experienced arborists can identify issues that may not be visible to the average person. “We look at the trees, and when we assess, what we’re looking for is obviously, you know, broken, dead limbs,” said Jessie Mudge, lead arborist at NOLA Tree Solutions. “Not so obviously, we look for a lot of signs of the tree moss or mushrooms growing up the base of the tree, different things like that give us an idea as to the health of the tree…”

Winnipeg, Manitoba, CBC, May 30, 2026: Wildfires are destroying trees faster than we are replacing them

Marley Moose is spending her third summer planting trees in northern Manitoba as part of a crew trying to help Mother Nature regenerate forests destroyed by wildfires. But that goal has become more challenging with the cancellation of a federal program that aimed to plant two billion trees by 2030. “Everywhere around me is burnt, but it’s where life used to be, so we’re back here giving life back to these dead areas,” said Moose, 22, efficiently digging a hole and slipping tiny jack pine and black spruce trees into the ground. In 2016, this forest in Manitoba’s Interlake region, about 300 kilometres northwest of Winnipeg, was devastated by a jack pine budworm infestation. It was starting to regenerate when wildfire ravaged the Devils Lake area in 2021. Areas just north are already burning this spring…

London, UK, BBC Wildlife, May 31, 2026: “It’s like being electrocuted and set on fire at the same time…” Discover one of the world’s most dangerous trees

The gympie-gympie tree (Dendrocnide moroides) – also known as the stinging tree – is primarily found in Australian rainforests and certainly doesn’t look all that threatening at first glance. It stands at a maximum of 10 metres tall, and its melodic name comes from a language of the indigenous Gubbi Gubbi people of south-eastern Queensland. You don’t want to get too close to this tree – its stem, leaves, and fruit are all covered in fine hairs that, when touched, inject toxin into the skin, causing severe stinging that can last for days, weeks or even longer. Among the first to document the painful effects of the gympie-gympie tree was road surveyor A.C. Macmillan, writing in a letter in 1866 that his horse “was stung, got mad, and died within two hours…”

Case of the Day – Thursday, June 4, 2026

Posted on June 4, 2026 by TLRoot tagged.

THOSE OLDIES BUT GOODIES

Back a century ago or so, when the car was new-fangled, the airplane only read about in magazines, and no one had any broadband, simpler tree questions than our usual fare were being asked. And answered.

Here’s a sample tree question from those days: I have an apple tree growing close to our mutual property boundary. Some of the branches overhang your land, and every year, beautiful ripe apples fall on your side of the property line as well as on mine. Whose apples are they?

If you read yesterday’s case, you would say, “Why they’re mine, because I own the soil, the air branches above and the roots below,” remembering well the doctrine of cujus est solum ejus est usque ad coelum et ad inferos. And you would be…

Wrong.

At common law, the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

Now let’s make the issue more complex. Mr. X owns the timber rights to Blackacre (the name of the mythical piece of land that is the centerpiece of every first-year law school property law question). Ms. Y, however, holds title to Blackacre, subject only to Mr. X’s right to cut down the trees.

Now it turns out that the Blackacre trees are quite fecund, shedding copious amounts of valuable chestnuts. Ms. Y plans to make chestnut stuffing at Thanksgiving. Mr. X, however, says the nuts are his, because they came from the trees to which he has the rights to the trees. He intends to roast the chestnuts over an open fire at Christmas.

‘Aw, nuts!’ you say. ‘You fooled me about the apples. I’m not even going to try to guess. I have no idea.’

Neither did Roscoe Vincent and S.R. Haycraft, protagonist and antagonist in today’s 104-year old antique case from Kentucky.

The court sorted it out for the boys. It’s answer? ‘It depends.’

We love those kinds of answers.

Vincent v. Haycraft, 66 S.W. 613 (Ky.App. 1914). Gillis Vincent conveyed 35 acres of woodland to S. R. Haycraft, reserving to “all timber upon the land herein conveyed with the free and unobstructed right to cut and remove same for the final period of seven years from this date.” Shortly after the sale, Gillis sold the timber rights to Roscoe Vincent. A year later, Roscoe bought the acreage from S.R. Haycraft.

But S.R. reserved possession of the acreage for a year, agreeing to give occupancy of the tract to Roscoe on New Year’s Day 1913. The timber on the land consisted principally of beech trees, and in the fall before S.R. gave up possession, the trees produced a bumper crop of mast.

Mast is the fruit of the beech tree, found in small burrs that drop from the tree in autumn. They are small, roughly triangular and edible, with a bitter, astringent, or in some cases, mild and nut-like taste. They have a high enough fat content that they can be pressed for edible oil. At the time, mast was chiefly valuable as a food for hogs. The beech mast ripened and fell on the ground in the months of October and November.

The issue was whether the mast belonged to Roscoe Vincent, who had acquired title to both the timber and the land, or S.R. Haycraft, who had retained the use and possession of the land until January 1, 1913? The court below held that the mast belonged to Haycraft. Roscoe Vincent appealed.

Held: The mast belonged to S.R. Haycraft.

Roscoe argued that S.R. never acquired any title to the timber. Therefore, when he sold the land to Roscoe, he could only reserve the use and possession of the land that he had previously owned. Roscoe argued that the reservation of the timber carried with it the reservation of the fruit of the timber. Having no title to the timber, he said, S.R. could in no way acquire title to the fruit of the timber. He compared the situation to that of a fruit tree overhanging the premises of another, in which event it is generally held that the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

The Court agreed that S.R.’s purpose was to reserve until the following January 1st whatever estate he had in the land by virtue of his original deed, and it acknowledged that mast is as much the “fruit of the beech tree as the acorn is of the oak, the chestnut of the chestnut tree, or the walnut of the walnut tree.” But it is not like the fruit of a fruit tree.

In the case of fruit falling onto adjoining property, the Court said, the neighboring landowner on whose soil the fruit falls has no interest in the adjoining land of which the tree is a part, and thus, no right to the fruit. Nor is it like the sale of an orchard with the reservation of possession of certain of the trees. “The sole purpose of reserving an orchard or certain fruit trees,” the Court held, “would be to reserve the fruit, for fruit trees are valuable for the fruit alone.”

Here, the case depends on the parties’ intention. The primary purpose of the reservation was the timber itself, and not the incidental fruits of the timber.

Generally, the Court ruled, a sale or reservation of timber to be cut and removed within a specified time is a sale or reservation of only so much as may be cut and removed within that time. Therefore, the removal of the timber within the time specified is an element necessary to the completion of the title. Here, Gillis and, later, Roscoe had the right at any time before the expiration of their timber reservation to cut and remove as much timber as they could. While S.R. reserved the use and possession of the land after sale to Roscoe, Roscoe retained the right to go upon the land and cut and remove the timber, as well as any constituent part of the timber.

Roscoe retained the right to the mast, in other words, as long as it was hanging on the tree. When, however, the mast became ripe and fell on the ground, it was no longer a part of the timber, and the right to cut and remove the timber did not carry with it the independent right to go on the premises and carry away the fallen mast.

Thus, S.R.’s retention of the use and possession of the land until the following January 1st gave him the right to collect the ripened mast that had fallen on the ground during the months of October and November.

– Thomas L. Root

Case of the Day – Wednesday, June 3, 2026

Posted on June 3, 2026 by TLRoot tagged.

WE OWN IT ALL

Over the years, these august blogs have pretty much settled the question of a landowner’s right to trim his or her neighbor’s trees to the property line – the Massachusetts Rule – whether the trimming is above the ground (branches) or below the ground (the roots). But what if the trimming kills the tree or – as in today’s case – makes it fall down?

The answer can be found in the ancient Latin maxim “cujus est solum ejus est usque ad coelum et ad inferos.” I recognize that every time I trot out any Latin, I fondly recall Mrs. Emily Bernges, my sainted Latin teacher from high school days (and those days were many days ago). I recall her again today because not only was she a crackerjack instructor and a gifted disciplinarian (in an all-male school with only two female teachers, she could calcitrare asinus when juvenile male asinus needed calcitraring), but she was able to instill in my young hormone-soaked teenage brain a love for writings of Marcus Tullius Cicero and Gaius Julius Caesar that remains with me several years later (try “57” as a good approximation).

So what would Emily tell us about today’s case? She would ring the hotel desk bell she kept next to her jar of pencils, say, “Class, attention!” and then explain that cujus est solum ejus est usque ad coelum et ad inferos translates as “to whomsoever the soil belongs, he owns also to the sky and to the depths.” We would protest that such can hardly be the state of legal affairs because that would mean that every satellite transiting the sky would be committing countless trespasses as it crossed the continent.

It is true, Emily would tell us (it seemed to me she knew everything, so her being versed in some medieval common law would hardly have surprised me), that the cujus est solum doctrine – a relic of the Middle Ages – has been somewhat abrogated by aviation. The Supreme Court severely curtailed the “to the sky” part of the rule during World War II, ruling in United States v. Causby that the amount of sky a landowner owned was paltry. However, the part of the cujus est solum doctrine addressing ownership of the depths is still pretty good law.

In today’s case, the excavation at the neighboring cancer center (a place that, unfortunately, is near and dear to my heart) pretty clearly caused the neighbor’s oak to fall, because a major part of the tree’s root system – that had grown onto cancer center property – was severed. The Alabama Supreme Court held that in excavating one’s property, a landowner should not negligently cut the roots of a neighbor’s tree. However, the Court said, as long as the cutting was non-negligent, if the neighbor’s tree fell as a result, well, cujus est solum ejus est usque ad coelum et ad inferos to you, unlucky neighbor.

That “negligent” versus “non-negligent” severing part of the ruling is puzzling. I’m not sure of the difference between negligent and non-negligent cutting, or, for that matter, whether there even is a difference. If you own ad inferos (and the Court says you do own to the depths), and remove any roots you find while excavating your inferos, that appears to be your right… no matter whether you sever them with a backhoe, hire hungry beavers or even detonate a small nuclear device. It is the fact the roots were severed that caused the tree to fall, not how the roots were severed.

Harding v. Bethesda Regional Cancer Treatment Center, 551 So.2d 299 (Supreme Court, Alabama, 1989): Bethesda Regional Cancer Treatment Center hired general contractor GBB to build a concrete containment facility for a radiotherapy linear accelerator, part of Bethesda’s cancer treatment facility. The concrete containment facility was located along the property line separating BRCT land from the rear of the Hardings’ property.

A few weeks after GBB completed the excavation needed for site preparation, a large tree located on the Hardings’ property fell during a windstorm, damaging their home. The Hardings claimed trespass, contending that the excavation work had been conducted across their property line. They also sued in negligence, claiming that the root system of their tree was cut and the tree undermined during the excavation on Bethesda Regional’s property.

The trial court entered summary judgment in favor of BRCT and GBB. The Hardings appealed.

Held: BRCT and the contractor, GBB, were not liable to the Hardings.

Intrusion upon land without the consent of the possessor is an essential element of trespass quare clausum fregit. BRCT and GBB offered affidavits of the excavators that at no time did they encroach on the Hardings’ property, as designated by boundary line markers. The Court held that the affidavits shifted the burden to the Hardings to produce some evidence of encroachment. Dr. Harding’s affidavit averred that the “excavation and digging was done on what appeared to me to be my property… Mr. Lynn [a surveyor] advised me that in fact excavation work had been performed on my property.” But that affidavit was hearsay and speculation, the Court said, not admissible evidence.

The Court held that BRCT and GBB showed that the excavation work was done in a skillful, prudent, and workmanlike manner. Under Alabama law, a landowner has a right to excavate on his own property for a lawful purpose, close to the boundary line, as long as he does not endanger the lateral support of the adjoining property. The Hardings made no claim involving lateral support, but instead only complained that their tree roots, which intruded onto the BRCT property, were cut.

An adjoining landowner has a right to remove limbs that hang over his property. Given that right (enshrined in the Massachusetts Rule), the Court said, “An analogy can certainly be made regarding a property owner’s right to remove roots extending onto his property. This is especially true in light of the landowner’s right to excavate on his own land. To deny such a right would create an oppressive restriction on the use of one’s own land.”

The doctrine of cujus est solum ejus est usque ad coelum et ad inferos (“to whomsoever the soil belongs, he owns also to the sky and to the depths”) may have been qualified insofar as air flight and oil and gas law is concerned, the Court observed, but “it still extends to air space that can be occupied by limbs of trees, and, we hold today, to the depths that can be occupied by roots of trees.”

The owner of property has no duty to refrain from the non-negligent cutting roots of a tree that intrude upon his property. Here, the Court found that a civil engineer and land surveyor indicated in his affidavit that the survey of the lot showed “the location of a large hardwood tree which evidently blew over in a recent wind storm. The tree was on the property line and had been excavated underneath for construction of the adjoining parking lot… [O]ur opinion is that the wind blew the tree over because its root system had been cut and exposed.” An agricultural extension agent said in his affidavit that the “excavation [that cut the roots] made this tree highly susceptible to wind damage.” While these affidavits provided evidence that the tree roots had been cut and that the tree became more susceptible to wind damage because of the exposed root system, the Court said, they did not set forth any facts to establish negligent excavation.

– Tom Root

Case of the Day – Tuesday, June 2, 2026

Posted on June 2, 2026 by TLRoot tagged.

TRIP, STUMBLE AND FALL

Mrs. Taubenfeld should have listened to the Mamas and Papas… they predicted that this might happen to her. It seems Mrs. T was walking past a Starbucks when she stepped into one of those tree wells cut into the sidewalk. She fell over an exposed tree root and hit the ground. She immediately hobbled off to her lawyer’s office. A lawsuit against Starbucks and the strip mall owner soon followed.

She argued that the lease between the strip mall owner and Starbucks required the mall owner to maintain the sidewalk. The Court disagreed, saying that the lease didn’t matter because a contract between parties could not create a duty to the public where one didn’t otherwise exist.

Tree well – is it a threat or simply a menace?

And no such duty existed here. A village ordinance required that property owners and lessees keep their sidewalks clear of obstructions, but that law didn’t create a right for a private person to sue. If Starbucks had failed to keep up the sidewalk, it might have to answer to the city government, but not to Mrs. Taubenfeld.

Statutes commonly make people or entities liable to the government (in the form of fines or penalties) for noncompliance. Usually, where the obligation is to clear natural problems, such as snowfall, high grass or exposed tree roots – conditions which the owner did not create – the statutes do not give the general public the right to sue for damages arising from noncompliance.

Taubenfeld v. Starbucks Corp., 48 A.D.3d 310, 851 N.Y.S.2d 512 (N.Y.A.D. 1 Dept., Feb. 21, 2008). Florence Taubenfeld fell over a tree root. The root was growing in a tree well cut into a public sidewalk in front of some premises owned by Park Plaza and leased to Starbucks. Faster than you can say sugar-free hazelnut latte made with nonfat milk, Mrs. Taubenfeld sued, claiming negligence. The trial court granted Park Plaza’s motion for summary judgment but denied Starbucks’ motion. Starbucks appealed.

Held: Starbucks prevailed, and the suit was dismissed. While the lease between Park Plaza and Starbucks required Park Place to maintain the sidewalk and landscaping, even assuming that the tree well into which Taubenfeld tripped and fell is part of the sidewalk or landscape, the lease could not create a duty to the public that did not otherwise exist. The Court held that neither Park Plaza nor Starbucks owed a duty to the public to repair the protruding root. Neither entity created the root, caused it to exist by reason of some special use of the sidewalk or tree well, or were obligated to maintain the sidewalk or tree well under some statute or ordinance.

In this case, the lease imposed on Starbucks no more than a duty to maintain those portions of the sidewalk that the coffee shop made special use of, for the purpose of providing outdoor seating for its customers. As to the remainder of the sidewalk beyond Starbucks’ outdoor seating, Park Plaza’s duty was limited by a Larchmont Village ordinance that required property owners to keep the sidewalk in front of their premises in good repair and in a safe condition for public use. That ordinance, however, did not specifically create tort liability.

While Starbucks made special use of a portion of the sidewalk by placing two tables with two chairs each, that special use did not extend beyond the tables and chairs to the tree well where Taubenfeld fell, or to the people on the crowded sidewalk. Some of those people were walking, and others were standing around the Starbucks tables chatting. Taubenfeld complained that she had had to walk around them, diverting her path into the tree well. Even if this were true, it would not have made either Starbucks or Park Plaza liable to her.

– Tom Root

Case of the Day – Monday, June 1, 2026

Posted on June 1, 2026 by TLRoot tagged.

PLEASE RELEASE ME

It’s not what you know, it’s who you know… That’s what the people looking for a break are saying about the Trump Administration these days. On day one of his second term, Trump issued a blanket pardon for people with January 6-related convictions and charges, accounting for the vast majority of his pardons. Last October, the president pardoned billionaire Changpeng Zhao, who has business connections with the Trump family. In November, Trump preemptively pardoned political allies Rudy Giuliani, Mark Meadows, and Sidney Powell, among others, none of whom was currently facing federal criminal charges.

Now, the President is reportedly considering a mass pardon of 250 people in honor of the nation’s 250th birthday.

This might be a good time to talk about releases… not the Presidential kind, but rather the kinds of prospective releases or liability waivers that are a part of our lives, from amusement parks and ski resorts to pools to dry cleaners to parking lots and hat checks. We get little tickets that have fine print on the back stating that by using whatever service we’re using, we agree that we can’t hold the vendor liable if anything goes wrong. Our fedora’s missing from the hatcheck? Too bad. Our pants have a hole burned in them from being pressed? Maybe we can cut them off and make shorts. The roller coaster collapses and crushes us to death? Sorry, pal, guess this just ain’t your day, and tomorrow doesn’t look very good, either.

Certainly, such releases serve an important purpose, being crucial grease on the cogs of commerce. You can find websites that let you “roll your own” liability waiver form for whatever event you have planned with just a few clicks. But the proliferation of such releases has left us wondering. First, are all these liability waivers enforceable? Second, can we use prospective waivers in the arboriculture industry — such as “by hiring me to trim your tree, you release me of liability if I make it fall on your Yugo” — to absolve ourselves from liability?

A California court grappled with such a release when a developmentally disabled child drowned at a city-run camp for such children. The girl’s mother had signed a release from liability – parents sign those forms all the time, and whoever reads them? – but the trial court and the court of appeals held that the release would not release the City from liability for gross negligence. The Supreme Court of California agreed, holding that an agreement to release future liability for negligence in recreational activities could not, as a matter of law, release the City or the employee from liability for gross negligence.

The case includes a detailed review of the history of such releases and a rationale for determining which types of releases are enforceable and which are not. Generally, a prospective release may not relieve a grantee of any obligation to meet even a rudimentary standard of care. If Santa Barbara had drafted its release to relieve it of liability for simple negligence, the release would probably have been valid. But it wrote it too broadly, to release it from any negligence, even gross negligence or recklessness. That was too much for the Court.

Big pigs get slaughtered ... The takeaway - write your release to be reasonable, or a court may ignore all of it.

Big pigs get slaughtered… The takeaway – write your release to be reasonable, or a court may ignore it.

In other words, little piggies go back to the trough, but big piggies get slaughtered.

City of Santa Barbara v. Superior Court, 62 Cal.Rptr.3d 527, 41 Cal.4th 747, 161 P.3d 1095 (S.Ct.Cal., 2007). The City of Santa Barbara provided extensive summer recreational facilities and activities for children, including a camp for children with developmental disabilities called Adventure Camp. Katie Janeway, who suffered from cerebral palsy and epilepsy, participated in the camp. Swimming activities were held on two of five camp days each week in a City swimming pool.

The application form for Adventure Camp included a release of all claims against the City and its employees from liability, including liability based upon negligence, arising from camp activities.

Katie’s mother signed the release in 2002, as she had in prior years. She also told the City about Katie’s disabilities, specifically that the girl was prone to seizures in the water, and that Katie needed supervision while swimming. The City knew the child had suffered such seizures in the past, and camp administrators took special precautions during the Adventure Camp swimming activities in 2002, assigning a special, trained counselor to keep Katie under close observation during the camp’s swimming sessions.

Pants came back from the cleaners with a hole? read the fine print on your claim ticket. There's probably a waiver there.

Pants came back from the cleaners with a hole? Read the fine print on your claim ticket. There’s probably a waiver in there somewhere.

Katie participated in the first day of swimming at the 2002 Adventure Camp without incident. On the second swimming day, she drowned. About an hour before drowning, Katie had suffered a mild seizure that lasted a few seconds. Her counselor observed the seizure and sent another counselor to report the incident to a supervisor. The supervisor said that the report was never received. Katie’s counselor watched her for 45 minutes following the mild seizure, and then — receiving no word from her supervisor — let Katie go ahead with swimming. Malong concluded that the seizure had run its course and that it was safe for Katie to swim. As Katie dove into the water for the second time that day, the counselor momentarily turned her attention away from Katie. When she looked back no more than 15 seconds later, Katie had disappeared. After the counselor and others looked for Katie for between two and five minutes, an air horn blew and the pool was evacuated. Lifeguards pulled Katie from the bottom of the pool, and she died the next day.

Katie’s parents filed a wrongful death action alleging the accident was caused by the negligence of the City. Relying upon the release, the City moved unsuccessfully for summary judgment. Failing in this, the City appealed, and the appellate court denied the petition, holding the agreement was effective and enforceable insofar as it concerned liability for future ordinary negligence but concluding that a release of liability for future gross negligence is generally unenforceable. Thus, the release form did not validly release any liability.

The Supreme Court granted review.

Held: The City’s release was invalid to the extent it purported to apply to future gross negligence. The Court observed that “ordinary negligence,” an unintentional tort, consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. “Gross negligence,” on the other hand, is a want of even scant care or an extreme departure from the ordinary standard of conduct. A signed release absolving the City and its employees from liability for “any negligent act” in its operation of a recreational program for disabled children violated public policy and was thus unenforceable, to the extent it purported to release liability for future gross negligence. Therefore, the Janeways were not precluded from pursuing a wrongful death action.

Sure you can impose your waiver in the fine print … but it’s not just boilerplate. Use care in drafting it, or – better yet – spend a little money to have a lawyer do it for you. Some things are too important for D-I-Y.

The Court said that public policy generally precludes enforcement of agreements that would remove the obligation to adhere to even a minimal standard of care. Courts may, in appropriate circumstances, void contracts on the basis of public policy, the determination of which resides first with the people as expressed in the California Constitution and second with the state legislature. The power of the courts to declare a contract void for contravening sound public policy is a very delicate and ill-defined power and should be exercised only in cases free from doubt. Nevertheless, the Court said, courts are authorized to distinguish ordinary negligence from gross negligence, even absent express legislative authorization.

The Court grudgingly seemed to accept that waivers of liability for future ordinary negligence – at least in recreational or sports contexts – would be enforceable. However, California does not permit a waiver of liability for future aggravated negligence. For that matter, neither do an overwhelming number of other states.

Whether this holding might have applicability before recreational and sports activities, such as in “inherently dangerous” activities like tree removal, is up in the air. While this shouldn’t dissuade an arborist or tree removal company from including a carefully drawn, limited waiver in the contract, the professional should not bank on the waiver being enforced.

– Tom Root

Case of the Day – Friday, May 29, 2026

Posted on May 29, 2026 by TLRoot tagged.

ARTIFICIAL DISTINCTIONS

When a tragedy occurs, it’s all too common to look for someone to pay for it. In today’s case, a young man was left a quadriplegic when a healthy-looking tree standing alongside a public highway fell without warning and struck his car. The trial judge was obviously moved by the sad story and felt it was his duty to open the state’s wallet.

The trial judge denied the Louisiana Department of Transportation and Development a free pass. The judge recognized that a prior holding relieved the state from the duty to inspect all sides of a tree. But he reasoned that the rule had been adopted in a case where a construction crew’s negligence had weakened the tree on the side away from the road. The trial court here reasoned that this case was different: it was natural rot, and natural rot did require DOTD to inspect all sides of a tree.

Truly a distinction without a difference! Step back and consider the implications of this holding. Besides the fact that why the tree was weakened is really not relevant to the danger it poses, the trial court’s ruling would mandate incredibly costly and time-consuming inspections. A state — even Louisiana — has a lot of highways to inspect. In Louisiana’s case, it amounts to nearly 17,000 miles of road, and lots of trees. The costs to the taxpayers of a tree-by-tree inspection would be staggering.

A perfect illustration of a distinction without a difference …

The Court of Appeals made short work of the trial judge’s higher “duty.” It held that the law was clear. Where the tree appears healthy — like the one that fell on the victim — the state’s duty could be discharged in a drive-by inspection… no matter why the tree was rotten.

Walker v. State Dept. of Transp. and Development, 976 So.2d 806 (La.App. 2 Cir., 2008). Nathaniel Walker was a passenger in a vehicle being driven by Dannie Evans on Louisiana Highway 71, when a large oak tree fell on the car. Nathaniel was left a quadriplegic, albeit one with a good lawyer. He sued Dannie, Allstate Insurance and the State of Louisiana Department of Transportation and Development.

Among other things, Walker alleged that the oak tree that fell on the vehicle was on the highway right-of-way in violation of highway safety regulations, that DOTD had prior knowledge that the tree needed to be removed, and that DOTD failed to inspect the right-of-way. DOTD moved for summary judgment, arguing that Nathaniel couldn’t show any facts in support of his allegation that DOTD had prior knowledge that the tree needed to be removed. DOTD supported this claim with an affidavit from one of its maintenance superintendents who had inspected the area in question two weeks before the mishap. The state agency argued that, under the law, it owed no duty to motorists traveling on state highways to check for damage on all sides of trees abutting state roadways. The trial court denied summary judgment to DOTD because the damage to the tree was a result of natural rot as opposed to third-party-operated construction equipment. The trial court stated that despite the holding in a prior case – Caskey v. Merrick Const. Co. – the distinction as to how the tree was injured imposed a greater duty to inspect on DOTD.

DOTD appealed.

Held: DOTD won, and Walker’s case was dismissed. The appellate court said in order to recover damages from DOTD, Walker had to prove that the state had ownership or control of the tree that caused the damage; the tree was defective (that is, it created an unreasonable risk of harm); the state had actual or constructive knowledge of the defect and failed to take remedial procedures within a reasonable amount of time, and the state’s failings led to the injuries Walker suffered.

Now this is a distinction without a difference ...

… as is this.

No one contested that DOTD had control over the rotten oak tree, that the rotten oak tree was defective, and that the rotten oak tree caused Walker’s injuries. Instead, the Court held that the primary issue was whether DOTD had actual or constructive knowledge that the tree was rotten. The condition that caused the oak tree in question to fall was visible only on the backside of the tree, out of sight of DOTD inspectors who passed by on the road. There was no genuine issue as to the location of the rotten area in question or whether the rotten area in question was observable from the roadway. Additionally, the photographs taken at the accident scene revealed that the oak tree was otherwise healthy, containing a full canopy of green leaves.

The Court said that DOTD’s duty to protect against the risk of a tree falling onto a highway required it to inspect for dead trees and remove them within a reasonable time. The state was not required, however, to inspect every tree that conceivably could fall on the road or to remove trees simply because they had the potential to fall onto the road.

In Caskey, the court held that DOTD inspectors had no duty to walk around all sides of the tree and check for damage, particularly when the tree was otherwise green and healthy. The trial court in this case imposed a greater duty on the state than the law required. The Court of Appeals ruled that the trial court’s incorrect determination – that a different duty exists when the defect results from natural causes as opposed to artificial causes – was a contradiction of the law, a distinction without a legal difference.

– Tom Root