Case of the Day – Friday, May 22, 2026

Posted on May 22, 2026 by TLRoot tagged.

GETTING BULLDOZED

Yesterday, we tackled the first of several interrelated questions raised by an Iowa reader. She wrote that a neighbor planned to bulldoze a driveway along a steep grade right next to her land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away her land.

We identified four questions in our reader’s inquiry. We tackled the first question yesterday about trees that might be exactly on the boundary line, and we concluded that Iowa law would not allow her neighbor to take steps that would destroy them (such as wiping out their root systems) without our reader’s OK.

But that answer begs the question of what will happen to trees that are growing entirely on our questioner’s land but extend their branches or root systems onto the neighbor’s place. (The third question — what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well — and the final question about whether our reader could get an injunction to stop the harm before it starts, will be addressed next week.)

The short answer to today’s question is found in the century-old case of Harndon v. Stultz. That decision adopted what, years later, would be called the “Massachusetts Rule,” specifically that a landowner has no right to judicial help in stopping an encroaching tree from his or her neighbors, but he or she may trim its branches and roots back to the property line. Under the rule of Harndon, it would appear that the neighbor could bulldoze out the root systems that have grown onto his land without liability.

But we’re not entirely satisfied that this would be the answer. Remember first that the plaintiff in Harndon complained that the trees in question were damaging her land, the roots tying up the ground and the trees shading what otherwise would be cropland. The court didn’t have much sympathy for her, but it did recognize that she was suffering because the tree was just doing what trees do.

The United States has been moving inexorably toward the Hawaii Rule, which provides a landowner with judicial relief where the trees are nuisances, and not merely being trees. Witness the Virginia decision of Fancher v. Fagella, in which the tree was causing substantial damage to the plaintiff’s home. The obverse of this coin is illustrated in the question posed here: what happens when the neighbor is suffering absolutely no damage whatsoever from the trees in question? As our reader explained it, the neighbor merely wants to bulldoze a road on a steep slope along a very narrow piece of property. During the bulldozing, it’s likely that root systems will be severed and that trees will be badly damaged or killed.

Our suggestion that there may be more to it than a century-old case suggests isn’t that far off. A California decision, Booksa v. Patel, has already held that a neighbor must act reasonably in exercising his or her self-help rights, and “reasonable” is defined as taking steps no greater than necessary to ameliorate the harm the neighbor seeks to correct. Professors Prosser and Keeton, in their seminal work The Law of Torts (5th ed. 1984) §57, say that a landowner has a privilege to make use of the land for his own benefit and according to his own desires, which is an integral part of our whole system of private property; but it has been said many times that this privilege is qualified by due regard for the interests of others who may be affected by it. The possessor’s right is therefore bounded by principles of reasonableness, so as to cause no unreasonable risks of harm to others in the vicinity.”

Remember, no one said our neighbor’s roots are invasive.

In the case our reader has raised, it may well be that the time is ripe not to reverse Harndon v. Stultz, but rather to add to the body of law it represents by finding that a neighbor’s right of self-help is circumscribed by reasonableness. Under that standard, where a neighbor kills a tree by removing a root system, where the tree admittedly has caused no sensible harm to him, might be unreasonable.

It’s certainly something our reader’s Iowa attorney might want to consider.

Tomorrow: What if the bulldozing causes landslides on our reader’s property?

Harndon v. Stultz, 124 Iowa 440, 100 N.W. 329 (S.Ct. Iowa, 1904). Harndon and her husband owned and farmed an 80-acre tract of land. Stultz had 160 acres just to the south of the Harndon farm. Many years before, the Harndons planted a willow hedge along the entire south line of the farm, and later, Stultz extended the hedge eastward. The Harndons claimed that Stultz had agreed with them to maintain the west half of the hedge line and the Harnsons would maintain the east half. Some years later, the Harndons dug up the eastern half of the hedge, replacing it with a fence. Mrs. Harndon then demanded that Stultz do the same. Stultz refused, and she sued for an order finding the hedge to be a nuisance and requiring Stultz to cut it down. She argued that the willow had spread through the soil, and so much shade was cast by willows that it rendered a portion of the Harndons’ land unusable. As an alternative, the Harndons asked that, if Stultz had no duty to remove the hedge, they be allowed to do so at their expense. The trial court dismissed the petition, and the Harndons appealed.

Tomorrow - Could our reader's neighbor cause a landslide?

Tuesday – Could our reader’s neighbor cause a landslide?

Held: The Court adopted what was essentially the Massachusetts rule years ahead of its time. Nothing in the law, the Court said, made it a defendant’s duty to cut down a hedge or tree simply because, over a passage of time, the owner’s neighbor found the roots and the shade of the growing trees injured the productiveness of his land. The raising of trees, the Court held, is a legitimate use to which an owner may put his land. If the limbs of such trees overhang the land of a neighbor, he may cut them off at the line, and, if the roots penetrate the neighbor’s soil, he may dig them out, but that is the extent to which he may carry his objection.

The Court said that an adjoining property owner may cut off the overhanging branches of trees at the property line, and dig out the roots penetrating the soil on his land. However, that property owner is not entitled to compel the owner of the tree to cut it down, regardless of whether the care and maintenance were provided by the owner or by the adjoining property owner. On the other hand, the Court said, trees standing on the boundary line between lands of adjoining owners are the common property of both parties, which neither may destroy without the consent of the other. The Court upheld the trial court but modified the decree to let the Harndons remove the hedge at their cost, based on Stultz’s statement during oral argument on appeal that she didn’t object to its removal.

– Tom Root

Case of the Day – Thursday, May 21, 2026

Posted on May 21, 2026 by TLRoot tagged.

ALL EYES ARE ON IOWA

A loyal reader from the home of the second greatest state fair in the land — and we need more of such readers, not just from Des Moines — wrote to ask some incisive questions about a rather boorish neighbor. Her questions had to do with the neighbor’s plans to bulldoze a driveway along a steep grade right next to our interrogator’s land. She feared that the bulldozing would destroy the root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away his land.

We love the Iowa State Fair, but we’re still getting over the passing four years ago of Virginia Barksdale, Iowa’s Countess of Cookies, the matriarch of the famous Barksdale State Fair Cookie. But to the question of the day, or really four questions, not just one, posed in our reader’s letter. The first question: what about trees right on the boundary line? The second question: what about trees on our reader’s land, but with roots extending into the neighbor’s land? The third question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well? And last, if our reader has some rights here, can she get an injunction to stop the harm before it starts, or is her only option to collect money damages later?

All good questions. Today we’ll answer the question about those boundary trees. Boundary trees are trees growing on the legal boundary between properties. In Iowa, the case governing boundary trees is Musch v. Burkhart. Musch valued the cottonwood trees growing along the boundary of his land and the adjacent property belonging to Burkhart; his neighbor, however, thought the cottonwoods were a pain in the neck. Musch had cut some of them down—after all, there were about 500 yards of tree line—leading Burkhart to conclude that he, too, could cut some down, in fact, cut down as many as he wanted.

The court’s analysis was interesting, in that whatever agreement the prior owners of the two parcels—who had apparently agreed to some arrangement on ownership, care and use of the tree line—may have made had been lost to history. The court said that absent some evidence to the contrary, it would assume that trees growing on a boundary line were owned by the two owners as tenants in common because they grew on both properties and “drew sustenance” from both properties. It almost suggests that trees that are provably drawing sustenance from root systems spread pretty much equally from two properties must be owned by both owners as tenants in common.

The importance is that ownership of the tree by both property owners as tenants in common establishes what essentially is a 50-50 partnership with each partner given a veto. As tenants in common, both must agree before anything happens to the tree.

The other important holding in this case is that the court found that damage to trees is, for all legal purposes, irreparable harm. Nothing is irreparable in a geologic time sense. Trees that are destroyed can be replaced, and the seedlings will become just as majestic in 50 or 100 years. The Musch decision takes a much shorter view, however, suggesting that if it will require a half-century to heal, it’s irreparable harm.

That’s significant. A showing of irreparable harm is necessary to obtain injunctions to stop tree cutting. Musch, like the rest of us, would rather keep the tree now than get a few bucks later, after a century tree is gone. Maybe not gone forever, but to almost all of humanity, ‘gone for a century’ might as well be ‘gone forever.’

So, to answer our reader’s first question, if the trees are boundary trees, an Iowa plaintiff has the right to get an injunction to save them.

Tomorrow: what if the trees aren’t on the boundary?

It seems there is a lot of drama going on in Iowa, beyond whether the mass-produced Barksdale State Fair Cookies measure up to Virginia’s original.

Musch v. Burkhart, 12 L.R.A. 484, 83 Iowa 301, 48 N.W. 1025, 32 Am.St.Rep. 305 (S.Ct. Iowa, 1891). Musch lived next to Burkhart in rural Black Hawk County. His house, barn, and other buildings are on the northwest corner of his property. Burkhart’s south boundary line is the north boundary line of Musch’s place.

About 20 years before, Jeffers—who owned the land before Musch—planted a line of cottonwood trees for about 500 yards along the north boundary of his land. The trees had grown to a height of from 30 to 60 feet, and their trunks had diameters of from 1 to 2 feet. The average space between them is about three feet. Musch attached barbed wires to the north side of the trees, making a wire fence. Musch used the fence to contain his cattle and relied on the trees as protection from storm and winter winds to his buildings and stock.

Burkhart threatened to cut the trees down. He claimed he and Musch had an agreement to maintain a common fence, but that the trees had thrown out roots extending for many feet into his land; that by reason of such roots, and the shade of the trees, a strip of his land 50-65 feet wide, immediately north of the trees, was unproductive. Burkhart argued the trees were of no value to Musch and that he had a right to remove them. What’s more, Burkhart argued that Musch had cut down some of the trees originally planted there, and he should have a right to do the same.

The trial court found that the trees had value to Musch, but that their roots had damaged Burkhart. Clearly, they stood on the common boundary line. The trees were planted before Burkhart bought his land. The trial court wasn’t able to discern the nature of the agreement between the prior owners of the two tracts of land, but it nevertheless found for Musch, and enjoined Burkhart from cutting down the trees.

Burkhart appealed.

Held: Musch was entitled to have the trees protected. The Court found that because the trees stood on and drew sustenance from both tracts of land, in the absence of a showing to the contrary, they were considered to be owned by the parties as tenants in common.

When one tenant in common destroys the subject of the tenancy, he is liable to the co-tenant for the damages he thereby sustains. A court, by injunction, may restrain one tenant in common from doing a serious injury to the common estate. While an injunction will not be allowed to restrain a trespass where damages are an adequate remedy, where the injury will be irreparable, an injunction is appropriate.

The Iowa Supreme Court held that the destruction of trees and shrubbery growing upon premises occupied by Musch would be, “in a legal sense,” an irreparable injury to him. The trees served to shelter and protect Musch’s buildings, and thus Burkhart could be enjoined from cutting them down despite the fact that their presence caused damage to his land.

– Tom Root

And Now The News …

Posted on May 21, 2026 by TLRoot tagged.

San Francisco, California, sfGate, May 21, 2026: ‘Largely intact’: Exceedingly rare trees appear to have survived Santa Rosa Island Fire

Santa Rosa Island’s grove of rare Torrey pines appears to have been mostly spared from the massive wildfire tearing through the second-largest island in Channel Islands National Park, according to initial assessments on Wednesday. The Torrey pine is “the rarest native pine in the United States and, possibly, the rarest pine in the world,” according to the National Park Service. The tree only grows naturally in two very specific areas: Santa Rosa Island and Torrey Pines State Natural Reserve in San Diego. The fate of one of the tree’s only two habitats has hung in the air this week while the Santa Rosa Island Fire burned through more than one-third of the island, including the Torrey pine habitat a few miles away from the island’s pier. But Torrey pine lovers and Channel Islands aficionados received tentative good news on Wednesday, even as the fate of the rest of the island’s unique ecology remains uncertain. Firefighters conducted initial assessments of the grove on Wednesday, and an uncrewed aircraft module also produced flight imagery of the trees…

Newark, Delaware, WDEL Radio, May 21, 2026: Downed tree in Newark causing issues

A stretch of West Park Place in Newark will be closed for an extended period of time due to a downed tree. The incident was reported Thursday morning, May 21, 2026, shutting the roadway down between South College Avenue and Orchard Road. The tree also pulled down wires which snapped multiple utility poles resulting in a power outage in the area. The damage will result in an extended road closure…

Marketplace, May 21, 2026: Cities are investing tax dollars … on trees. Here’s why it works

Ed Hoffman and his wife, Donna, just pulled up to a neighborhood park 15 minutes west of Cleveland. They checked in with a volunteer sitting at one of those plastic fold-out tables and picked out a redbud sapling from a row of native witch hazel, serviceberry, oak, and buckeye trees that their city, Lakewood, Ohio, is giving away for free. “We jumped right on it,” Hoffman said. “We missed it last year, so we decided to get it this year.” This is Lakewood’s third year doing this. It’s giving away 200 saplings this time, and every single one got claimed by residents within 24 hours. “We really take our tree canopy very seriously, and it’s something that we’ve been trying to increase for the last few years,” said Lakewood’s city planner, Sophia Szeles. “We’ve been planting, as the city, separate from this event, 350-400 trees every year. And that is a significant part of our budget.” The city of Lakewood, Ohio, hosts tree giveaway events twice per year, and their saplings typically get reserved very quickly by eager residents. That comes out to roughly $375 per tree. It’s worth it, because Lakewood estimates the average tree in city limits is worth about $1,500…”

Martha Stewart.com, May 21, 2026: The 7 Best Apple Trees to Grow for Delicious, Hassle-Free Harvests

There are over 7,000 varieties of apple trees in the world, so where do you start when it comes to your garden? Knowing the best tree for your backyard depends on your climate and region, of course, but there are a few traits that make some apple trees better suited for home gardens than others. Here, we break down some of those desirable features—like disease resistance and ripening time—and provide expert insights on the very best apple trees you can grow at home. Gala apple trees produce fruit with striking red and yellow colors. Aaron Dillon, co-founder of Four Winds Growers, loves them for their sweet texture and taste. “They perform beautifully when dried or used in cider,” he says. These trees are relatively heat-tolerant, so they can flourish in a variety of climates and regions. Their fruit typically ripens in mid-September. They are somewhat disease-resistant, but you’ll still need to watch out for scab and other common ailments…

Nashville, Tennessee, WPLN Radio, May 20, 2026: Nashville leaders request moratorium on NES tree trimming policy

Nashville’s Metro Council is asking the Nashville Electric Service for a temporary moratorium on its new tree trimming policy — though it’s unclear it will make an immediate difference. City leaders expressed concern around the lack of communication and transparency about the policy. “The request here is very simple: It’s to pause the blanket application of the 15-foot clearance rule that’s being applied to every tree of every species in every neighborhood regardless of whether that tree poses any meaningful risk to the power grid,” said Councilmember Brenda Gadd. “Treat our trees like the living biological systems they are.” NES recently expanded the zone it clears between trees and power lines from 10 feet to 15 feet for all tree species. The power company that distributes electricity across all of Nashville will now also cut or trim more vegetation growing directly below utility infrastructure. The idea is to prevent more power outages during storms. In January, a record half of Nashville lost power during an ice storm. NES does not plan to alter its policy, the company said in a statement to WPLN…

Cape Coral, Florida, Breeze, May 20, 2026: Tree removal under way along Cape Coral Parkway

Tree removal is under way along Cape Coral Parkway today. Joshua Tree Inc., subcontracted by Back Bay Construction, is removing 33 southern live oak trees along the parkway as part of an ongoing public safety and infrastructure improvement initiative. The large-scale removal was set to begin at 7 a.m. and is expected to continue until 5 p.m. along what is one of Cape Coral’s busiest and most visible corridors. The work will begin near 1331 Cape Coral Parkway E. “While Southern Live Oaks are admired for their beauty and longevity, experts say these particular trees were planted in spaces too confined to support their mature root systems safely. Over time, the expanding roots have caused sidewalk upheaval, pedestrian trip hazards, and surrounding infrastructure concerns,” officials said. “These trees are a perfect example of the wrong tree in the wrong place,” said Ryan Ishley, ISA Certified Arborist with Joshua Tree Inc., in a prepared statement. “Southern Live Oaks thrive in large open environments, but when planted in narrow urban corridors, root conflicts with sidewalks and roadways become unavoidable over time.” The tree removal is part of the Cape Coral Parkway East improvement project which city officials say will keep traffic in the South Cape moving safely and efficiently by expanding the parkway East to six continuous lanes between Coronado Parkway and Del Prado Boulevard…

Raleigh, North Carolina, The Carolina Journal, May 20, 2026: Court revives fallen tree branch lawsuit against two Raleigh employees

The North Carolina Court of Appeals will allow a man to pursue a lawsuit against two Raleigh city employees. The suit stems from injuries the man sustained from a fallen tree branch in a city-maintained park. Michael Creech was injured in June 2022 when a “large section of an oak tree” fell and struck him when he was sitting on a park bench in Nash Square. Creech sued Raleigh and three named employees: urban forester Zach Manor, city arborist Anthony McLamb, and former Parks Department director Oscar Carmona. A trial judge issued a January 2025 order dismissing the suit against the city and all three employees in their official and individual capacities. Yet a state Appeals Court panel ruled Wednesday in an unpublished opinion that two of the three named plaintiffs — Manor and McLamb — did not have “public official immunity” protection from Creech’s complaint. Unpublished opinions have limited value as precedents for future court disputes. Creech’s lawyers argued that all three individual defendants “are public employees — not public officials,” Judge Michael Stading wrote…

Denver, Colorado, Sun, May 19, 2026: Colorado launches $4M emergency tree-cutting project along highways with high risk of wildfire

With wildfire season looming, crews will begin to cut trees along some of Colorado’s busiest highways in a $4 million emergency effort aimed at reducing the risk of catastrophic fires before summer intensifies. The Colorado Department of Transportation targeted five highways determined to be at the highest risk for wildfires this summer. Work is expected to continue through the end of June.Drivers should expect alternating traffic along the following routes: — Colorado 119 from U.S. 6 in Clear Creek Canyon north to the Nederland area; — Colorado 72 from U.S. 6 in Coal Creek Canyon through Pinecliffe and Nederland to near Allenspark; — Colorado 93 between Golden and Boulder; — Colorado 128 near the junction with Colorado 93, west of Broomfield; — Colorado 67 from the Woodland Park area north toward Westcreek. The emergency project, announced Tuesday, comes as fire officials warn of a significantly high risk of devastating wildfires as temperatures rise in the coming months. It’s the first time CDOT has conducted a fire mitigation project of this magnitude, a spokesperson said. In a news conference last month with some of the state’s top fire experts, Gov. Jared Polis urged the state to prepare, as the drought, paired with long-term consequences of a changing climate, makes Colorado particularly vulnerable…

Portland, Oregon, The Oregonian, May 18, 2026: Oregon’s warm winter, spring have invasive tree-killing bugs hatching early, state says

The warm spring weather tends to get people out and about to enjoy the sun. Unfortunately, it’s not just the humans. The mild temperatures through the winter and now into spring have resulted in the invasive emerald ash borer maturing faster and emerging weeks earlier than usual, the Oregon Department of Forestry says. Wyatt Williams, an invasive species specialist with the department, confirmed he found one in early May in King City in southeast Washington County, a news release states. That’s bad news for Oregon’s ash and olive trees. Emerald ash borers have been in the state since at least 2022. As their name suggests, they infest and kill ash trees; they’re also known to attack olive trees. The National Invasive Species Information Center says they first showed up in the U.S. in 2002. They’ve killed hundreds of millions of ash trees in the eastern U.S., according to Oregon State University’s Extension Service, which shares research-based knowledge with Oregon’s 36 counties. So far there’s no cure for a tree infested with the bugs – they’re a death sentence, the Extension Service says. It can take up to six years for an infested tree to die. The bug’s larvae burrow under the tree bark and chow down on the sapwood. These damaged layers of tissue below the bark are critical to transporting water and nutrients throughout the tree…

Detroit, Michigan, WDET Radio, May 18, 2026: MSU study challenges notions about trees and human health

Health experts and urban planners have long believed that planting more trees in residential areas is good for everyone in those neighborhoods. A new study shows that’s not necessarily so. Researchers at Michigan State University found that while trees do reduce stress and extend longevity, the benefits vary based on other factors. Professor Amber Pearson led the study. She and her team examined the relationship between residential tree canopies and allostatic load. That’s the cumulative wear-and-tear that stress has on the human body. Pearson says they confirmed that trees improve human health. “What we found was that having higher percentage of residential trees was associated with lower allostatic load scores,” she says. “In other words, it’s good for your health.” But Pearson found something surprising: It wasn’t good for everyone…

Lincoln, Nebraska, Nebraska Public Media, May 18, 2026: Worsening Nebraska drought could impact tree health amid wildfire concerns

As drought conditions cover most of the state, the Nebraska Forest Service’s latest Forest Health Report flagged potential stress and disease in trees. NFS Forest Health Specialist Jennifer Morris put together the report. “These large bouts of drought that extend for a long time really do cause some issues with trees across Nebraska,” she said. Trees without enough water can’t properly photosynthesize, Morris said, halting development of the chemical processes trees need to fight off disease. After the last severe drought in 2022, Morris said many trees were affected by canker diseases. “It’s just been quite devastating on some of our oaks and hackberries and things like that,” Morris said. Trees compromised by drought are also left vulnerable to pests. “We don’t have a lot of that protection in place that the tree can have as it’s healthier,” Morris said. “We see a lot of boring insects…”

Redding, California, KRCR-TV, May 18, 2026: Arborist urges Shasta County residents to monitor tree health as fire season nears

Experts are weighing in on how to keep trees in Shasta County healthy and why that could play an important role during fire season. Lance Richards, lead arborist with Redding Tree Service, told the Northstate’s News that nearly any type of tree can grow in the county because we have ideal weather, though he recommended native oaks since they do better in the local climate. Other trees, Richards said, can have problems with the intense heat and sun. He added that it’s important to keep an eye on tree health to prevent dead trees, which can pose a fire risk. “We’re coming into the summer right now, and we’re going to get a lot of these prevailing winds out of the north,” Richards said. “So I would just recommend, if anything looks like it’s damaged or dead up in your trees, that you call a local company to have them come out and address the situation…”

Cincinnati, Ohio, WVXU Radio, May 18, 2026: How Cincinnati will use dead trees to grow the urban tree canopy

Burning trees to help other trees grow? It sounds counterintuitive, but using biochar to improve soil conditions is a practice that dates back centuries. On Arbor Day 2025, Cincinnati Mayor Aftab Pureval announced the city’s first use of biochar for tree planting to an enthusiastic crowd: elementary students at Roberts Academy in Price Hill. “Make some noise if you love trees,” Pureval exclaimed to loud cheers. “Here’s the most exciting thing, guys — you are part of history. Today, we are using a magical ingredient for the first time in Cincinnati’s history. It’s called biochar.” Biochar is more science than magic, but it’s pretty powerful. The charcoal-like material can enrich soil and keep climate-warming carbon out of the atmosphere. Cincinnati has been purchasing biochar from out of state, but soon, the city will make hundreds of tons of biochar a year right here in the city. Cincinnati Parks Director Jason Barron says the parks produce a lot of wood waste, like dead trees and trimmed branches. “And that wood waste was just decomposing and releasing that carbon back in the air,” Barron said. “And this allows us to take what we already have and turn it into something that’s beneficial, not just for us, but for others…”

Edgewood, Kentucky, Northern Kentucky Tribune, May 18, 2026: With regrets, Baker Hunt says beloved American Beech tree has to go

Baker Hunt received the unfortunate news that their beloved American Beech tree, estimated to be around 140 years old, needs to be removed. Several years ago, the team noticed a fungus, which was identified as Brittle Cinder Fungus, an incurable infection that destroys the tree trunk’s structure at the base. At that time, Virginia Kerst paid for remediation: canopy reduction, nutrient treatments, core samples for studies, etc. Baker Hunt has continued the nutrient treatments quarterly for the last four years. These steps and treatments “bought” the tree an additional 4 years. However, recent tests have shown that the fungus has grown, and the tree is no longer viable. Under the advice of six different tree experts from several reputable local companies, Baker Hunt needs to remove the tree for the safety of its campus and students, due to the progression and internal destruction the fungus is causing. This news is sure to stir a lot of feelings, and the gardeners, staff, and students are experiencing those same feelings. However, once Baker Hunt knew it was for the safety of the students, the choice was clear…

London, UK, BBC, May 18, 2026: ‘It takes 10 years to make our chair-shaped trees’

A couple has spent the past 20 years experimenting to perfect the practice of moulding trees so they grow into the shape of a chair. Alice and Gavin Munro grow their creations upside down, in a process that they say typically takes between six and nine years, before each item is dried for a year. The process involves training and pruning young tree branches as they grow over specially-made pieces of recycled plastic which help to shape the trees’ growth. Branches are then grafted together at certain points, so that the object grows into one solid piece. Gavin said the first seed for the project was sown when he was a young boy and saw an overgrown bonsai tree that he thought looked like a chair. The idea grew when Gavin was in and out of hospital with Klippel-Feil syndrome – a rare congenital condition characterised by the abnormal fusion of two or more neck vertebrae. He underwent several operations to straighten his spine during his youth, when he said he had time to “reflect and learn patience…”

Case of the Day – Wednesday, May 20, 2026

Posted on May 20, 2026 by TLRoot tagged.

SHORT AND SWEET

There have been more than a few recurring themes in our posts over the past decade-plus. Some of the most repeated are (1) hire a lawyer when you should have one, such as anytime you feel the need to sue someone; (2) courts follow prior decisions – called stare decisis – in order to bring certainty to the law; and (3) the Massachusetts Rule has traditionally been the law of the land, and while that has been changing, it is still the “go to” rule in most places.

Alas, Virginia Scott is not one of our regular readers. Had she been back in 2010 (and yes, we were around then, when people were still surfing the Web with their Packard Bell 286s sporting 56K modems), she would have consulted a lawyer about the mess that trees belonging to her neighbor, Julie, were making in her yard. She would have told the lawyer that she wanted damages for the dropped leaves and twigs, and compensation for what she had paid tree trimmers to cut the offending branches and roots back to her property line.

The lawyer would have said, “Nothing doing,” or words to that effect, which would have saved Virginia the cost and aggravation of trying a do-it-yourself lawsuit against Julie. As well as having her hat handed to her by the trial court and the court of appeals.

“But,” Virginia wailed, “the law is stupid. It should be changed.” Notably, that argument has worked some places – Virginia, Hawaii, North Dakota – but Virginia had no idea how to press for modification of the rule, and the Court was unimpressed.

At least the Court of Appeals kept it short and sweet. As we will be…

Scott v. McCarty, 41 So.3d 989 (Fla.App. 4 Dist. 2010). Virginia Scott owned property next to Julie McCarty’s place. Dr. Julie had some pretty lush trees – this being Florida, plants like to grow there – and eventually some of the branches were overhanging Virginia’s place, and the roots were intruding underground.

Virginia sued the Doc for the damages Julie’s trees caused her property and for the cost of trimming the branches back to the property line and digging up the intruding roots. Apparently, having spent so much on damage repair and tree trimming, Virginia decided to save money on a lawyer and represented herself.

The trial court dismissed her complaint forthwith, citing the Florida common law rule that “a possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner’s own expense, any encroaching tree roots or branches and other vegetation which has grown onto his property.”

This rule not seeming right to Virginia, she appealed.

Held: Virginia’s case was properly dismissed. The Court of Appeals said that the reason for Florida’s common-law rule “was that it was wiser to leave the individual to protect himself than to subject the other to the annoyance of actions at law which would likely be innumerable.”

On appeal, Virginia acknowledged that the common-law rule, first adopted in the 1987 Florida appellate case Gallo v. Heller, was the prevailing law, but she asked the Court to “take a different course.” The Court refused to do so, saying that “the Gallo view is the predominant view in the country… [and] departing from the precedent would invite further litigation between neighbors on this issue, which as a public policy matter should be avoided.”

– Thomas L. Root

Case of the Day – Tuesday, May 19, 2026

Posted on May 19, 2026 by TLRoot tagged.

MOVING THE CHEESE

There’s a great old adage in the law that goes something like “When your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on the law and the facts, pound on the table.” Today’s case is one in which an inventive lawyer tried just that, albeit with little success.

We’ve worked a lot with the old Restatement rule, now on its way out, that a landowner is not liable for physical harm caused to others outside of the land by a natural condition of the land. That rule, when it was a rule, came with a proviso. If the person possessing the land was in an urban area, he or she was liable for physical harm resulting from failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

In today’s case, a tree in the lush tropical paradise fell onto a road and crushed a ’77 Mercedes – a pretty nice ride – leaving the plaintiff’s lawyer with a problem. The evidence showed the collapsed tree was rotten, all right, but that none of the decay was visible from the exterior. So arguing that the tree’s owner should have inspected the tree was a loser, because even if he had, he would not have seen the decay or recognized the danger.

The plaintiff’s lawyer recognized that to win this one, he’d have to move the cheese on the defendant. So he quickly rolled out a second argument: Even if the common law (and more specifically here, the Restatement on Torts) did not impose liability without fault (that is, strict liability), the court should impose it here simply as a matter of public policy. “Public policy” is a fancy way of saying something should or should not be done because… well, because it is just common sense. So, the argument went, it did not matter if tree owner Al Gerard followed the rules as they existed now because the rules needed to be changed retroactively, all the way back to the day the tree fell.

It’s sound public policy, the plaintiff’s lawyer argued, that is, good common sense.

“Common sense?” the Court asked incredulously. If urban owners are strictly liable for any tree that falls, it responded, then their reaction to the rule will simply be to cut down all of their trees. And where would be then? Sorry about the Mercedes, the Court said, but we’d be even sorrier about the trees.

Marrero v. Gerard, Civil No. 249/1989 (Terr.Ct. V.I., Dec. 12, 1989) 24 V.I. 275. Vic Marrero was driving his Mercedes along the East End Road in Estate St. Peters, Virgin Islands. Suddenly, a tree standing on property owned by Al Gerard fell on Vic’s car. Vic claimed the car was damaged (not hard to believe), as was his psyche (harder to believe).

Norm Nielsen, who was Al’s neighbor and worked with Vic, was first on the scene. The base of the tree was inside Al’s fence, but the rest was on the road. Norm said the tree was “dry” where it broke off, “kind of rotten but green on top.” The evidence, which included photos taken by the traumatized Vic, failed to establish that a visual inspection of the tree would have disclosed that it was rotten at its base and in danger of toppling.

Held: The Court held that the facts did not show Al to be negligent, because he appeared to have no reason to know that the tree was unstable and would fall.

Vic, however, argued that even if Al was not negligent, he should be held strictly liable for any damage the tree caused. Vic cited the Restatement of Torts (Second), which provided in section 363 that:

(1) except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

Vic relied on subsection 2, arguing that Al, who owned trees in an urban setting, had a duty to inspect them. The Court ruled that whether the property on which the tree stood was urban or rural might be debatable but was ultimately irrelevant. Even if the urban standard applied, the Court said, and even if Al had adhered to the standard, “the weakened condition of the tree was not apparent upon a visual inspection, so that it matters not whether the area was urban or rural. Perhaps a core sampling of the tree would have disclosed the problem, but such an effort, particularly when weighed against the likely risk, is far too onerous a burden to place upon a landowner.”

The Court held that the Restatement did not impose strict liability, that is, liability without fault, in circumstances like these. All § 362(2) does is apply a more specific standard of care to an urban landowner, but it still operates within the realm of negligence.

Unfazed, Vic argued that the Court should apply its own strict-liability standard to this case as a matter of public policy. The Court demurred, saying that in its view, sound public policy was reflected in the Restatement’s standard. The Court said that a landowner should have the duty to inspect for, discover and remedy patently hazardous natural conditions on his or her property that may cause harm to others outside the land. But where the decay is internal, and therefore not discoverable upon reasonable inspection, to “impose a rule of strict liability would be to declare, in effect, that any tree which is large enough to fall over the boundary of one’s land will subject its owner to liability in the event that a hidden weakness causes it to topple and cause damages off the land.” That would just lead prudent landowners to cut down their trees, the Court concluded, “thereby accelerating the already lamentable deforestation of the territory.”

The Court agreed that the community should be protected from reasonably foreseeable dangers, but the community – both local and worldwide – “also has a compelling interest in the protection and preservation of the environment. The same concern and sensitivity that we are just beginning to bring to the massive problem of the destruction of the Amazon rainforest, for example, should also apply to the relatively minute and particular circumstances of this case. No reasonable gain would be derived from adopting a rule of strict liability here, particularly when weighed against the potential ecological and aesthetic implications of such a decision.”

– Tom Root

Case of the Day – Monday, May 18, 2026

Posted on May 18, 2026 by TLRoot tagged.

RECREATIONAL USE STATUTE AND NATURAL DEFECTS

It’s hard to enjoy an idyllic sunset when you can’t get to the lakeshore. Recreational use statutes make it easier.

A landowner really has no natural incentive to let people freely enjoy his or her land. You have a nice pond and woods, and, being as you’re a nice person, you let the birdwatchers’ society wander around looking for the white-throated needletail. Next thing you know, one of them steps into a prairie dog hole, and you’re being sued.

But public policy is strongly in favor of getting people out to enjoy nature’s bounty. For that reason, virtually all states have passed some version of a recreational use statute. These statutes hold generally that a landowner only has a duty not to be grossly negligent to people using his or her unimproved land without charge for recreational activities. They are intended to encourage the opening of private land – unspoiled natural areas – for free recreational use by shielding landowners from liability for the most common forms of negligence.

Today’s case raises an interesting question under the Texas Recreational Use Statute. In this case, the City of Waco had a park that included limestone cliffs. A boy was sitting on the cliffs when a portion collapsed, causing him to fall to his death.

A user might anticipate he could fall off a cliff – but not that it would give way.

The City argued it couldn’t be held liable under the statute, because it did nothing to cause the defect in the cliffs. The Court of Appeals agreed with the boy’s mother, however, that it wasn’t necessary for the landowner to cause the defect if the defect was so latent, that is, hidden, that the recreational user would not reasonably be aware of it. That one might accidentally fall off a cliff was foreseeable, the court admitted. But it wasn’t open and obvious that the cliff one was sitting on would suddenly give way.

Because the defect wasn’t obvious, all the boy’s mother had to do was advance in her pleading some allegation of gross negligence. In her complaint, she argued that the City was aware others had been hurt by falling rocks and it had reports warning of the danger of collapsing cliffs. Those reports recommended the City post warning signs, but it didn’t do so. The court said that those allegations were good enough to make out a claim under the recreational use statute.

Kirwan v. City of Waco, 249 S.W.3d 544 (Tex.App 2008). Debra Kirwan’s son, Brad McGehee, was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the City of Waco, when the ground beneath him gave way and he fell about 60 feet to his death. Kirwan brought a wrongful death suit against the City, alleging a premises defect.

A firefighter who responded to the scene of Brad’s fall testified that an average person would “probably not understand that the ground could give way underneath them.” The trial court threw out the suit, holding that Kirwan had not: (1) “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or (2) “raised a genuine issue of material fact.” Kirwan appealed.

Held: The suit was reinstated and sent back for trial. Kirwan challenged whether Texas Civil Practice & Remedies Code § 75.002(c) – the state recreational use statute – requires that all premises defect claims be based on a condition created by the defendant, thus barring any claim based on the existence of a natural condition that the defendant happened to know about. Under the recreational use statute – intended to encourage landowners to open their property to the public for recreational purposes – a landowner’s duty to a user is no greater than that owed to a trespasser, the very limited duty to not injure anyone willfully, wantonly, or through gross negligence.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy’s life.

The law is clear that a landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, an owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But the appeals court held that the recreational use statute permits claims based on natural conditions as long as the condition is not open and obvious, and the plaintiff furnishes evidence of the defendant’s alleged gross negligence. Here, the court said, the crumbling rocks and cracks on the cliff that gave way did not conclusively prove that the danger of the unstable cliff rock was open and obvious. Crumbling rock may alert the average person to the risk of slipping and falling, but certainly not that the ground will simply fall apart beneath him. The court ruled that unstable cliff rock is not necessarily an open and obvious condition that a person might reasonably expect to encounter.

To state a claim under the Texas recreational use statute, Kirwan had to allege sufficient facts to show that the City of Waco was grossly negligent. The pleadings need only provide a plain and concise statement of the cause of action sufficient to give the defendant fair notice of the claim involved. In her pleading, Kirwan alleged that the City was actually aware of the dangerous condition on the cliff, that other park patrons had died or been seriously injured by the condition of the cliffs, that the City received a report from its own expert warning of dangerous rock falls and advising the City to post signs warning of potentially fatal rock falls, and the City’s failure to do so, in fact, to warn or guard against this danger at all amounted to gross negligence.

The court agreed that Kirwan plainly alleged the City’s conduct amounted to gross negligence. The City’s complaint that the pleading didn’t allege that the City had created the condition was meritless: where a claim is based on hidden natural conditions, such as the structurally unstable cliff rock in this case, a plaintiff need not plead that the City was grossly negligent in creating such a condition.

– Tom Root

Case of the Day – Friday, May 15, 2026

Posted on May 15, 2026 by TLRoot tagged.

THE RV LIFE

Fun … but not that sturdy …

Carefree RV living. Groovin’ on the high life in your boyfriend’s parents’ backyard, roughing it in a Coleman camper… what fun!

At least it was fun until an unexpected storm blows through, and a devastating derecho lays waste to your suburban Buffalo neighborhood (I’m guessing this was the well-documented Labor Day 1998 Derecho event). A branch broke off a tree in during the blow, and it fell on the camper, injuring Mary Simet and apparently writing the final chapter of her relationship with beau Randy Newman (no, not that Randy Newman).

Derechos are very much in the news. One marched through Iowa and South Dakota a few years ago, and they’re still talking about it. But our focus here is not on the dust or the tornadoes it spawned, or even on the derechos that have hit metro areas like Philadelphia or Nashville. Instead, our focus is not even on the breeze itself, but rather on the legal winds that followed the storm.

Mary sued Coleman. Its flimsy camper couldn’t absorb the impact of a massive tree branch in a windstorm, imagine that! And for good measure, Mary named her soon-to-be ex-boyfriend and his parents, claiming that the branch was rotten and they should have cut it off, or not put the camper there, or warned her, or prevented the storm, or… or something. You know the drill. I’ve been injured. Therefore, someone’s gotta pay! And that’s when your lawyers start looking around for defendants who have insurance.

It’s worse than that, Bucko – she sued you, too. Relationships often end badly, but seldom this badly.

After the storm, of course, the Lehmans and their neighbors cleaned up. Mary’s alert and well-read lawyer complained that the cleanup wasn’t done because waste had been laid to the neighborhood or any reason so pedestrian as that. Instead, he bloviated that the cleanup was a grand conspiracy to destroy evidence his client needed for her lawsuit, a disreputable legal maneuver known as “spoliation of evidence.” The trial court, amazingly enough, agreed, but nevertheless concluded that because the evidence that had not been spoliated showed that any rot on the limb was not clearly observable, the Lehmans (and the broken-hearted Randy) were off the hook. And the whole derecho event was an act of God for which the Lehmans – including the Facebook-relationship-status “single” Randy – could not be blamed.

Wow. Sued by your own girlfriend. Now that’s what I call getting dumped.

Simet v. Coleman Co., Inc., 839 N.Y.S.2d 667 (N.Y.A.D. 4 Dept. 2007). Mary Simet suffered catastrophic injuries during a severe storm when a tree limb blew onto the camper in which she was sleeping with her boyfriend at that time, Randy Newman.

The camper was owned by Linda (Randy’s mother) and her husband, David, and was located in their backyard. The limb, located approximately 30 feet from the camper, broke during an unusually intense storm with high winds, known as a “derecho.” Mary and Randy were unaware of the approaching severe storms when they retired to the camper and, indeed, the first severe storm warning wasn’t issued until after the storms had passed through the area.

The Lehmans had no notice that the tree from which the limb broke was decayed or defective. Mary’s expert opined that–regardless of whether the tree appeared to be healthy–the Lehmans would have been advised by an arborist to secure the limb if they had retained an arborist to inspect their trees.

On the advice of their insurance carrier and as part of a neighborhood cleanup after the storm, the Lehmans removed the branch and the camper, which remained after photographic evidence was collected.

Mary sued Randy and his parents and moved to strike their answer based on their alleged spoliation of that evidence. The trial court struck the Lehmans’ answer because of the spoliation, but then granted summary judgment for them anyway and threw out Mary’s case.

Mary appealed, and so did the Lehmans.

A radar plot of the Syracuse-Buffalo derecho of September 7, 1998. “Derecho” is a term derived from Spanish for “straight,” and is characterized by intense straight-line winds.

Held: The Court of Appeals held that striking the Lehmans’ answer based on spoliation was not warranted, that the Lehmans were entitled to summary judgment, and the falling limb was an act of God that precluded Randy’s liability.

The Court found that the Lehmans removed the limb and camper not to frustrate the plaintiffs but only after their insurer gave permission and as part of a neighborhood effort. They had carefully photographed it before disposing of it. At most, the spoliation of the evidence was negligent, and the remedy striking a pleading for negligent spoliation is a drastic sanction that is appropriate only where the missing evidence deprives the moving party of the ability to establish his or her case. That wasn’t the situation here.

Furthermore, the Lehmans weren’t liable to Mary Simet. The Court held that they did not create the dangerous condition with respect to her presence in the camper, and did not have constructive notice that the tree from which the limb broke was decayed or defective. No one was on notice a storm was coming. The fact that an arborist, if one had been hired, might have advised the Lehmans to secure the limb is irrelevant. New York law requires that the manifestation of tree decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.

Finally, the falling of the tree limb during the storm was an act of God that precluded Randy’s liability, with whom Mary was staying in the camper at the time.

– Tom Root