Case of the Day – Friday, November 24, 2017


king160921You’d think it would be a lot of fun to be a judge, thundering orders, edits and ukases all day long down at squirming lawyers and quivering clients.

But sometimes, even judges are bound to make decisions they don’t like. That’s what happened when the Loves – who lived next to the Kloskys – sued to save a beautiful catalpa tree.

The Kloskys wanted to cut the tree down because they thought it was a nuisance to rake up the tree’s leaves and pods. The Loves, on the other hand, wanted to save the tree because it provided them with shade, beauty, and comfort, and enhanced their standard of living and the value of their home.

Because the tree was about 4/5ths on the Klosky’s land, they believed they could do with it what they wanted. In a majority of American jurisdictions, they could not, because the clear boundary tree rule is that a tree growing on a boundary belongs to both landowners as “tenants in common.” Neither landowner may do anything to the tree without the permission of the other.

Colorado, however, follows a minority rule. It does not matter if a tree is on both owners’ parcels. What matters, instead, is intent: boundary trees are as common property only if the landowners jointly planted, jointly cared for, or treated the trees as a partition between the properties. This rule, adopted in Rhodig v. Keck, creates no end of mischief. Instead of a clear rule that parties can understand and accept without resort to lawyers and courts, Rhodig makes every boundary tree issue a legal taffy-pull, with the parties trying to spin alternate histories about who said what and who did what over the 50+ years of a tree’s existence. Lawyers love it: you can hear the billing meters spinning all the way from the east coast. But, in the words of the Chewbacca defense, it does not make sense.

The trial judge understood this, but his hands were tied, because Rhodig – a Colorado Supreme Court decision – mandated that if the plaintiffs could not prove they had a deal with the Kloskys, or had otherwise nurtured the tree that the Loves loved, the Kloskys owned it and could remove it as they wished. The trial judge said:

The law often requires me to do things I don’t want to do. If I were the emperor of Washington Park, I would, I would order this tree not cut down. It’s a beautiful tree, it’s a great tree. But that’s not my role. I’m not the emperor of Washington Park. I have to follow what I think the law is, and my conclusion is that the Loves have not met their burden of proof under Rhodig

A catalpa -beloved by fisherman and fowl - but not by Rick Meyers.

     A catalpa – beloved by the Loves  – but not by the Kloskys.

The Court of Appeals agreed, but with a very pointed suggestion to the Supreme Court that it revisit the issue, and abandon the ill-advised Rhodig decision. The Colorado Supreme Court is doing so: oral arguments in the case were held before a high school audience, of all things, a little over a month ago. The end of the Rhodig rule may be near.

Love v. Klosky, Case No. 15CA1505 (Ct.App. Colorado, Sept. 8, 2016). Keith and Shannon Love were neighbors of Mark Klosky and Carole Bishop, with a 70-year old but quite healthy catalpa tree, the trunk of which straddled their common boundary. The Kloskys thought the tree was a nuisance, and wanted to cut it down. The Loves loved the tree.

At the ground level, 74 percent of the tree’s trunk was on the Kloskys’ property, with the remaining 26 percent on the Loves’ property. At the four-foot level, the numbers were 86 percent Klosky, 14 percent Love. When the tree first sprouted, it was all on the Kloskys’ property, but for the past 40 years, the tree has been on or over the property line.

The trial court felt itself bound by the Colorado Supreme Court’s decision in Rhodig v. Keck, and entered judgment letting the Kloskys remove it.

The Loves appealed.

Held: The Court of Appeals reluctantly concluded that the Kloskys could remove the tree over the Loves’ objection. The Court noted that the majority rule on ownership of boundary trees in the United States held that neither property owner can cut down a tree that straddles the shared boundary line. Colorado, however, is an outlier. Under the Colorado Supreme Court’s  Rhodig decision, the landowner of the property where a boundary tree was first planted can cut the tree down over the other landowner’s objections, unless the other landowner can prove that the tree was jointly planted, jointly cared for, or treated as a partition between the properties.

The Loves tried to fit themselves within Rhodig by arguing that they had jointly cared for the tree over the years. The trial court, however, held that the fact that they cut a branch off the tree to make room for a swing set, watered the tree as an incidental effect of watering their own lawn, and raked the leaves in their yard was insufficient to constitute joint care for the tree.

Beyond that, the Loves argued that Rhodig is the clear minority rule among jurisdictions addressing the issue and should be reconsidered by the supreme court. The Court of Appeals described Rhodig as follows:

In Rhodig, the plaintiffs planted one tree wholly on the defendant’s property, and three other trees grew on both properties. Twenty years later, when the defendant removed the trees, the plaintiffs sought damages. Logically, the court held that the plaintiffs could not affix something to their neighbor’s land and then claim ownership rights without some agreement, right, estoppel, or waiver. The court, however, stated a rule that governed all boundary trees: boundary trees are held as common property only if the landowners jointly planted, jointly cared for, or treated the trees as a partition between the properties. No Colorado case has interpreted or cited Rhodig since the supreme court set forth this rule in 1966.

boundary160921The Court observed that Rhodig is clearly the minority rule, with only five states following a similar rule that a tree, shrub, or other plant on a boundary line is the common property of adjoining landowners, or at least the subject of joint duties, only where they have so treated it by express agreement or by their course of conduct. On the other hand, at least 21 states hold that a tree, shrub, or other plant on a boundary line belongs to both landowners as tenants in common. Under the majority rule, “each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree, a property in it, equal . . . to, or perhaps rather identical with, the part which is upon his land…” and “neither property owner can cut down the tree without the consent of the other, nor can either cut away the part that extends into his or her land if that would thereby injure the tree.”

If one of the cotenants cuts down the tree without the permission of the other, the other cotenant has an action for trespass. In such a case, a court may calculate damages based on the value of the cut tree, apportioned according to the percentage of the tree that was located on the injured landowner’s property.

The Court agreed with a 2007 Washington state decision, Happy Bunch, LLC v. Grandview North, LLC, that criticized the Rhodig decision as “unsound because the Rhodig court created a new theory of adverse possession” and a 1988 Illinois case, Ridge v. Blaha, which criticized Rhodig as relying on cases that did not support its decision.

The Court observed that “the supreme court may wish to reconsider Rhodig based on the many jurisdictions adopting the majority rule and the two decisions criticizing it. If the supreme court reconsiders Rhodig and adopts the majority rule, the court could remand this case to the trial court to issue an injunction to prevent the Kloskys from cutting down the tree. The injunction could include a provision that the Loves would be responsible for all or some of the maintenance of the tree, including raking leaves and pods and trimming the tree’s branches.”

– Tom Root


And Now The News …

New York City, Wall Street Journal, November 24, 2017: New study reveals dark side of outdoor night lighting

Global night light is getting bigger and brighter, blotting out the stars of the Milky Way for one-third of humankind, according to a new study of federal satellite data measuring outdoor lighting. Spurred by a shift to more energy-efficient illumination in many areas, artificial night lighting world-wide has been expanding steadily, with potential consequences for human health, wildlife and foliage, scientists led by the GFZ German Research Center for Geosciences in Potsdam reported Wednesday in the journal Science Advances. “Earth’s night is getting brighter,” said study lead author Christopher Kyba, a physicist at the GFZ German Research Center who studies the ecological impact of light. By their calculations, artificial outdoor lighting world-wide grew in both area and intensity by 2.2% a year between 2012 and 2016. They took advantage of data collected by an orbital sensor normally used by the National Oceanic and Atmospheric Administration to track cloud patterns for weather forecasts. The sensor is sensitive to many of the same wavelengths of light as the human eye…

Denver, Colorado, KCNC-TV, November 23, 3027: National Christmas Tree shortage could affect price

Your trip to the Christmas tree lot this year could be met with some sticker shock, thanks in part to a nationwide Christmas tree shortage. Pete Elliot and his family have been operating Treeland Christmas trees for years. Most recently they set up shop just off of Santa Fe Drive. “This lot here is the largest one in Colorado,” Elliot said. This year a portion of their lot is unavoidably vacant. “That open space is where some of the trees should be, that we haven’t got yet,” Elliot said. According to the National Christmas Tree Association, a 7 to 8 foot tree takes about 10 years to grow. Doug Hundley, a spokesman for the organization, says if you go back 10 years to 2007 the country was in the beginning of a recession…

New Yorker, November 24, 2017: A brief history of time

The lifetime of a tree in a multi-panel cartoon…

Cleveland, Ohio, Plain Dealer, November 22, 2017: Second tree trimmer dies after electrocution in Akron

A second tree trimmer electrocuted while trimming trees has died. Jessica Richmond, 46, was pronounced dead Sunday, the Summit County Medical Examiner’s Office said. Richmond was trimming trees in Akron with 38-year-old George F. Csikos when they were both electrocuted just after 1 p.m. on Coventry Street near Clinton Avenue, authorities said. Csikos was pronounced dead at the scene. The couple was hired by a homeowner to trim trees, police said. They were in a lift bucket when they hit an electrical wire. The electrocution threw Richmond from the lift bucket, police said…

Washington, D.C., WJLA-TV, November 21, 2017: Experts say there’s a shortage of Christmas trees this year and it’s going to cost you

Can you image waking up Christmas morning without a Christmas tree? Well that might not be exactly the nightmare before Christmas local farms and nurseries are up against, but they say there is definitely a shortage of furs and pines this holiday season. “I’ve had vendors I’ve worked with for 30 years, even 35 years that called me this year and said they’re out of trees,” said Ron Meadows, the owner of Meadows Farms Nurseries and Landscape. The National Christmas Tree Association says the recession we experienced a decade ago and low sales are impacting this year’s harvest of Christmas trees across the country…

Athens, Ohio, News, November 21, 2017: Outfit turns dying ash trees into desirable commodity

The emerald ash borer is turning all the ash trees in our region into lemons but Chris Fox is doing all he can to make lemonade. For several years the ash borer has been eating its way through the Northeast, Midwest and northern Appalachia, killing off these trees by the hundreds of thousands. Nobody can do anything about that but Fox can save the wood ahead of the destruction. Fox operates Fox Natural Building Company in New Marshfield. His motto is “Specializing in the art of building with sustainably harvested Appalachian hardwoods.” He cuts down trees, carefully hauls them out of the woods, saws them up in special ways, and constructs unique and beautiful structures. Stop by Village Bakery and Café in Athens and look at their front porch to see one of his projects. Careful inspection will reveal the “mortise and tenon” method of framing, his specialty. This type of construction ensures extra-strong joints for the structure…

Honolulu, Hawaii, KHNL-TV, November 21, 2017: An Alaska girl gets her wish: To see a ‘magical’ Hawaii tree up close

Every child’s wish should be filled, but we think you’ll agree this one is special. When the Make-a-Wish Foundation asked 6-year-old Markella Spiropoulos, of Palmer, Alaska, what she wanted most in the world, her answer was surprising: She wanted to see a rainbow eucalyptus tree in person. Her mom, Carmen, said the wish was born out of Markella’s active imagination. When the two got on the internet to try to narrow down spots to visit, Markella saw the tree and knew — she needed to see one up close. So the folks at Make-a-Wish in Alaska searched for a rainbow eucalyptus tree and they found one in a spot that’s pretty nice to visit anyway: Foster Botanical Garden. Markella, her parents and other members of the family visited Tuesday and the 6-year-old, wearing a princess dress, lei and a haku, laid her hand gingerly on the rainbow eucalyptus, not saying a word. “To her, it was something magical,” said her mom. “She was convinced that there would be fairies there or something…”

Eco-Business, November 21, 2017: Growing urban warmth helps city trees thrive

City trees are feeling the heat – and loving it. As the global climate changes, trees worldwide are growing briskly, but those basking in the warmth of urban heat islands are growing even faster. Their root space may be more cramped, their leaves may be assaulted by more pollution, but the limes along Unter den Linden in Berlin, and the London planes of Paris, France are flourishing, to make life a little better for the citizens who walk in their shade. “We can show that urban trees of the same age are larger on average than rural trees because urban trees grow faster”, said Hans Pretzsch, a forester at the Technical University of Munich, who led the study that uncovered the trees’ behaviour. “While the difference amounts to about a quarter at the age of 50, it is still just under 20 per cent at a hundred years of age…”

Los Angeles, California, LA Magazine, November 20, 2017: Let’s take a damn moment to appreciate the coast Live Oak tree

L.A.’s iconic Mexican fan palms get a lot of attention, but the coast live oak has long been the unsung hero of our urban forest. The area’s most common native tree, it sustained indigenous inhabitants with its edible acorns, and early settlers used its wood to (quite literally) fuel L.A.’s development. Even today, the oak, which can live more than 250 years, doesn’t just pretty up the cityscape. Here, we get to the root of one of L.A.’s most venerable trees. Accustomed to going without rainfall for almost nine months a year, the evergreen has evolved some innovative water-saving techniques. Its thick leaves are small and cupped inward to reduce exposure to the sun, and downy hairs on their undersides help hold on to precious moisture. Encased in a silvery outer layer that grows, on average, an inch thick, the oak is able to withstand most low- to medium-intensity fires with its vital inner tissue intact, enabling new branches to sprout later…

Harrisonburg, Virginia, WHSV-TV, November 20, 2017: Christmas tree season begins

It’s the time of year when families head out to get their Christmas trees, but before getting a tree, make sure it will last throughout the entire season. Laura Wolfe, owner of Evergreen Tree Farm in Rockingham County, says this is her and her husband’s first tree season. Wolfe suggests when people purchase a tree, they should put it into water right away. If you can’t get it into water within the first eight hours, cut the stump again and then place it into water. The tree should get at least two quarts of water each day…

Rochester, New York, WXXI-TV, November 20, 2017: Parts of canal will soon see less trees

Some changes will be hitting the Erie Canal in Brighton and Pittsford soon. In order to maintain erosion and embankment security,  Executive Deputy Director at the State Canal Corporation John Callaghan says trees and brush along the canal must be removed. “Large vegetation such as trees can have extensive root structures which could weaken the embankment, increasing a risk of failure.” Callaghan says there is no imminent risk to properties along the canal, but embankments need to be maintained to avoid possible flooding…

Indianapolis, Indiana, WXIN-TV, November 20, 2017: Falling city-owned trees repeatedly leaving family of five without power

A family on the northeast is dealing with a mess on their property. They say city-owned trees keep falling onto their power lines and backyard. Each time, the family of five is left without power or electricity for days. Despite contacting the city, nothing has been done to fix the situation. Cassie Evans and her husband bought a home in April 2016 and thought they had found the perfect place for their young family. But now, all they in their backyard is frustration. “This beautiful wooded area that’s so hard to find in the city has just rained down on us and cost us more expense than it’s been worth honestly,” said Cassie Evans. Branches and even large tree logs litter their property. “At this point, I can’t let my kids come out here and play,” Evans said. “It’s not safe.  There’s holes in the ground…”

Denver, Colorado, Post, November 18, 2017: Boulder County could lose 650,000 trees in Gross Reservoir expansion

More than half a million trees could disappear in southwestern Boulder County if the final federal permit for Denver Water’s proposed expansion of Gross Reservoir is approved. The Federal Energy Regulatory Commission is expected to rule early next year on what would be the biggest public works project in Boulder County history, exceeding the original construction of the Gross Reservoir Dam, which was completed in 1954. The tree removal plan outlined in Denver Water’s FERC application states that all trees and their associated debris on about 430 acres along 12.5 miles of shoreline will have to be removed in the course of the expansion, which is envisioned as being completed by 2025…

Olean, New York, Times Herald, November 19, 2017: Ash trees in county forest in Portville bring $258,000 bid

Cattaraugus County lawmakers are expected to approve a bid Tuesday for ash trees on a 200-acre tract of county forest in the town of Portville. It is the first of several timber sales expected on county forest properties with large inventories of ash trees threatened by the fast-moving emerald ash borer. The invasive pest was first discovered in New York in Randolph in July 2009. It is also the first management activity in any of the more than 2,000 acres of county forests in more than 15 years…

Washington, D.C. DNR, November 19, 2017: Do trees need attention in the winter? You bet they do

Yes, your trees need care throughout the winter to maintain their health, but you need to start now before a big freeze. Even though urban trees are now going into dormancy, they require attention throughout the winter to stay strong. Here are four tips to follow: • Wrap the trunk. Some recently planted, thin-barked trees like honey locust, ash, maple and linden, are susceptible to bark-damaging sunscald and frost cracks when temperatures fluctuate in fall and winter. Wrap trunks of younger trees up to the first branches using commercial tree wrap to protect the bark. Remember to take the wrap off once weather warms in the spring…

St. Paul, Minnesota, Pioneer Press, November 18, 2017: Blundering Gardener: Cut back what you can and don’t forget your trees

The window is rapidly closing. You know the one I mean. While it’s true that I’ve been lugging a bucket of soapy water around the house all week, along with some rags and a squeegee, this isn’t a household hints column and I can’t tell you how to avoid streaks. The window I’m referring to is that brief span of time between Indian summer and the first hard freeze when the garden isn’t entirely off-limits. With daytime temperatures in the 40s, I can still perform chores that I’ll be thankful I can cross off the to-do list come spring. Pruning is generally over and done with in midsummer, but once your plants have gone dormant, you can cut them back and get a head start for planting season. I’m thinking especially of clematis vines, the ones that grow back from the roots and bloom on new wood. In my garden that means the sprawling and desicated top-growth of Huldine, Jackman, tangutica, sweet autumn and many others will go bye-bye. I’ll leave a few inches of stem above ground, mainly to remind me that the plant is there, but also to help it develop new leaves quickly, before overhead trees or neighboring plants block sunlight to lower parts of the vine…

Auburn, New York, Citizen, November 16, 2017: Taking down the tree: After 32 years, Conquest Christmas tree farm closes

For the past three decades, Bill and Sharon Forbes have tended thousands of trees in the small hamlet of Emerson in the Cayuga County town of Conquest. From Douglas and balsam Firs to white and Scotch pines, the family spent every fall and winter trimming the trees on their land and making wreaths in their barn. But this Christmas season will be much calmer for the Forbeses, as they’ve decided to retire. The idea to grow Christmas trees on their land first sprouted in the mid-1980s, when the Forbes inherited the land from Bill’s father. Bill, who worked full-time as a corrections officer at Auburn Correctional Facility, wanted to put the land to good use, but he wanted to do it part-time. “We were trying to figure out what to do with the land … and he just thought that (growing Christmas trees) was the best use we could get out of it,” Sharon said…

Kansas City, Missouri, Dos Mundos, November 16, 2017: Pests might be hiding on your Christmas tree

There could be more than just presents hiding beneath your Christmas tree this year. After all, “’tis the season for wintertime pest infestations.” This holiday season, be on the lookout for aphids, which are ant-sized insects that can spread more than 150 different plant viruses. Although harmless to humans, these pests can be formidable foes to many types of vegetation, including tomatoes, cucumbers and rose bushes. While aphids are often associated with outdoor gardens, during the winter months they can make a home inside by hitching a ride aboard foliage, shrubbery and, most commonly, Christmas trees. Once inside the warmer air of your home, these pests believe it’s spring and begin rapidly reproducing. Knowing how to identify and prevent aphids with these tips from Orkin Entomologist Glen Ramsey can help you protect your home, and Christmas tree, this holiday season. Although aphids are small, they are usually visible to the naked eye. When looking for aphids, look for soft-bodied insects with long legs and antennae. These insects vary in color, ranging from green to red or black, but all share a distinctive, pear-like shape and tend to hang out in dense groups alongside Christmas tree trunks or plant stems…

Santa Rosa, California, Press-Democrat, November 16, 2017: PG&E aims to remove 25,000 fire-damaged trees near power lines across service region

PG&E aims to cut down up to 25,000 fire-damaged trees in an urgent effort to protect power lines in 13 counties across Northern and Central California, including Sonoma, where last month’s wildfires scorched 137 square miles. Residents in fire areas may have noticed bright green spray-painted marks at the base of trunks on trees near power lines. They were left by PG&E arborists and foresters who are assessing the trees’ post-fire condition, company representatives said. Trees marked P1 are deemed dead or dying and designated for immediate removal to prevent damage to power lines, while those marked P2 have secondary priority. Trees with an FP 1 or 2 mark will be trimmed…

Chicago, Illinois, Tribune, November 16, 2017: No drop in fine for cutting down trees in Park Ridge without permit

An existing fine for cutting down a tree without a permit will stay on the books in Park Ridge — for now — after aldermen failed to reach an agreement on a new, lower charge for transgressors. The City Council on Nov. 13 considered two motions related to reducing the fine from the current $500 per diameter inch of the fallen tree. One motion called for the fine to be a minimum of $150 per diameter inch, while the other set the fine at $250 per diameter inch. In both cases, the new fines were voted down 4-3. Aldermen Nicholas Milissis, Roger Shubert and Marc Mazzuca cast the three “yes” votes on both motions. Under city ordinance, any tree on private property that has a trunk diameter of 10 inches or more requires a city permit in order for it to be removed, said City Forester Brandon Naser. This includes dead trees, he added…

Charleston, West Virginia, WCHS-TV, November 15, 2017: Scammers try to buy trees for thousands less than they’re worth

The trees on your property may be worth some money, but the Illinois Department of Natural Resources is warning homeowners to be careful. Scammers will offer to buy your trees for thousands of dollars less than what they’re worth, officials said. If you are thinking about selling your trees, the DNR advises homeowners to contact them or a forester to find out what they’re worth. “Black walnut, white oak, red oak, and then ash and hickory and cherry are pretty good in the market right now,” said DNR Forester Paul Deizman. “Oak and walnut drive the market a lot of the time in Illinois and right now those prices are very high…”

Los Angeles, California, Times, November 15, 2017: Connecticut utilities say trees to blame for October storm outages

Representatives from Connecticut’s two major electric utilities told state lawmakers Wednesday that falling trees and limbs continue to wreak havoc on power lines, despite years of tree-trimming and tree-removal efforts. “If we solve the tree problem, we mitigate a lot of damage,” said Joseph Thomas, vice president of electric systems operations at United Illuminating Co., which serves the New Haven and Bridgeport areas. Thomas said 82 percent of UI’s tree-related outages that occurred during the Oct. 29-30 wind and rain storm happened in areas where UI has not yet finished creating “utility protection zones” where trees have been trimmed away from power lines and heavier-duty infrastructure has been installed. It’s part of a 12-year, $162 million trimming and clearing program. Meanwhile, Peter Clarke, Eversource’s senior vice president of emergency preparedness, told lawmakers that three years of drought conditions and heavy rains led to the large number of fallen trees, noting how the ground was saturated with water before the high winds arrived…

Philadelphia, Pennsylvania, University of Pennsylvania, November 15, 2017: Survival of the trees on an urban campus

Sylvan lands at the University must be resilient, and able to withstand the pollution, human activity, compacted soil, poisonous salt, increased heat, and lack of water that accompanies big-city living. “It is a challenge because urban trees have a much shorter life expectancy, so it takes a lot of extra care to really help them survive,” says Chloe Cerwinka, a landscape planner in the Office of the University Architect in the Division of Facilities and Real Estate Services (FRES). “Urban trees can have a 15-year life expectancy compared to maybe a hundred years for trees in a natural setting.” Since 2015, the Office of the University Architect has been partnering with the Morris Arboretum on a tree donation program in which specific species of trees from the garden are planted on Penn’s campus—an arboretum itself—in order to determine how particular trees fare in an urban environment and protect University forestry from pests and diseases as the area experiences climate change. Close to 20 unique, young specimens have been planted since the program began, including live oak trees, Chinese ash, cherry, and Jefferson elms. Planted in March or April, the trees are placed in the ground when they are between five and 10 years old, and put in protected, interior locations on campus away from vehicular traffic, such as on College Green, Locust Walk, and by Claudia Cohen Hall…

Science Alert, November 15, 2017: Trees in some cities grow faster than in the wild, and here’s the crazy reason why

Urban trees are growing faster than rural trees across the world, according to a major new study covering 10 different cities, and the urban heat island effect could be one of the reasons why. With rising temperatures across the globe as well as increased urbanization, it’s important to understand how the heat trapped by cities is affecting our trees, and vice versa. To take a closer look, a team from the Technical University of Munich (TUM) in Germany used samples to study the growth of 1,383 trees over the past 150 years. They found that while urban trees are winning the race overall, it also depends on where in the world they are. “While the effects of climate change on tree growth in forests have been extensively studied, there is little information available so far for urban trees,” says one of the team, forest scientist Hans Pretzsch…


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Case of the Day – Wednesday, November 22, 2017


Yesterday, we wrote about our 10-year old neighbor’s remarkable good fortune in finding a Wham-O Superball, and what law governed whether he could keep it or had to return it to another claimant. All of that turned out to be moot, as he promptly lost it in a cornfield. But we had so much fun writing about finding lost property that we though we’d take up the obverse of that coin today – what happens when the lost property was stolen to begin with.

The objet d'art that started it all

The objet d’art that started it all

Now, ripped from the headlines … and based on a true story, we present the tale of poor driving instructor Martha Fuqua, whose purported avocation of haunting flea markets and garage sales brought her a brief shining moment of wealth and fame.

Martha is the woman who dropped $7.00 on a dusty and faded old painting in a dilapidated frame. Or so her story goes. She says it sat around her place for a few years before she decided to get it appraised at her late mother’s urging. Lo and behold, the painting turned out to be by the French impressionist Pierre Auguste Renoir. What a lucky break for Martha! And it seemed to be worth somewhere north of what Martha had paid for it, about 15,000 times her initial investment.

Everyone loves a story like this, an everyday Joe or Jane unexpectedly becoming rich because of serendipity. Like the German teen who just stubbed her toe on a 1-lb. gold bar while swimming on vacation. Martha’s story was equally compelling – maybe even more so, because she had just lost her teaching position and was training to be a casino blackjack dealer. No question, Martha sure could stand to be Queen for a Day, maybe stub her toe on a windfall herself right about now.

But alas, nothing ruins a good story like an eyewitness. Or two.

When Martha sought to auction the piece of art in 2012, the word quickly spread that the piece was Renoir’s On the Shore of the Seine, a 5½ x 9-inch landscape. Martha, who began calling herself “Renoir Girl,” was basking in the publicity. Reporters and art enthusiasts tried without success to establish the provenance of the work, and someone eventually tracked it back to the Baltimore Museum of Art. Officials there denied ever having had it hanging on their walls. But shortly before the auction – which was expected to bring Martha over $100,000 – the Washington Post found documents showing that the May family, a prominent patron of the BMA, had loaned the work to the museum in 1937. Museum officials checked again, and this time found records showing the landscape had been reported stolen in 1951.

Enter Renoir Girl’s brother, Matt, who said that he had seen the painting among his late mother’s possessions several years before his sister said she had bought it for the price of a Subway foot-long and a medium drink. A mother who happened to have been an art student in Baltimore in the early 1950s, right when the diminutive painting was plucked from the wall of the museum. Other family acquaintances recalled seeing the painting at the Fuqua family’s home in Virginia in the 80s and 90s. Oh, those pesky eyewitnesses!

No impressionist paintings were harmed during this raid.

No impressionist paintings were harmed during this raid.

The BMA complained that it didn’t really care how Martha Fuqua came to possess the work, it belonged to the museum. The FBI bravely swept in, shot an unarmed civilian or two, wrestled the painting to the floor, probably tased the frame once or twice, and took possession of the work. Then the courts took over.

The government filed what is known as an interpleader action in Federal court. An interpleader action states in essence that the filer is in possession of some property to which there are competing claims for ownership. It asks the Court to separate the wheat from the chaff, and sort out the claims. Ms. Fuqua said that she found the Renoir fair and square, and that anyway, she possessed it and possession is nine-tenths of the law. The BMA said that the law doesn’t let anyone, even an innocent purchaser, take title to stolen goods.

In re “Paysage Bords De Seine,” Case No. 1:13-CV-347 (E.D.Va., Jan. 14, 2014): Only two parties remained of the four claimants named by the plaintiff United States of America, Martha Fuqua – who claimed she bought the artwork at a flea market – and the Baltimore Museum of Art. The BMA claimed the Renoir landscape had been reported stolen from its walls 60 years before.

Surprisingly enough to people who follow this kind of thing, the Court actually observed that “the Fourth Circuit has endorsed the truism ‘[t]hat possession is nine-tenths of the law’.” Virginia common law presumes that the person in possession of a piece of property has a superior claim to it, although the presumption can be rebutted by sufficient evidence. The Court noted that one way of rebutting the presumption was by proving the property was stolen, because the law was clear that “even a good-faith purchaser for value cannot acquire title to stolen goods.”

Interestingly enough, Pierre

Interestingly enough, Pierre “Pete” Renoir, pictured here, was one of the few interested parties not to make a claim in the case for the landscape at issue.

BMA essentially was bringing a detinue action, a common law action to obtain an order from the court that its property be returned to it from another person – not necessarily a wrongdoer – who for whatever reason is in possession of it. In order to prevail, BMA had to prove (1) a property interest in the item; (2) the right to immediate possession; (3) that the property is capable of identification; (4) that the property is of some value; and (5) that it possessed the property at some time in the past.

The parties didn’t dispute that the property – a painting – could be identified and that it had considerable value. Ms. Fuqua, however, claimed that the museum couldn’t prove it had ever possessed the painting. The BMA produced copies of the 1951 police report, copies of its records showing that the painting had been loaned to it, and copies of board minutes from the early 1950s citing the theft and an insurance claim. (In case anyone wonders, the May family descendents had been named in the suit as potential claimants, but they waived any claim to the Renoir).

Martha Fuqua - the

Martha Fuqua – the “Renoir Girl” herself – argued that possession was nine-tenths of the law. It’s that other 10% that’ll get you, however, as it did in this case …

Martha Fuqua argued that the BMA records weren’t reliable evidence, but the District Court found the internal records showing the painting was loaned to it, that it catalogued it and exhibited it in due course, were convincing. Even more persuasive was the official copy of the police report, proving that the BMA had reported the painting had been purloined. Ms. Fuqua complained that the police report was hearsay, but the Court correctly pointed out that the report wasn’t intended to prove that the painting had been stolen, but rather to prove that it had been reported stolen. Too fine a point for you? Such is the nature of the law of evidence.

The Court concluded that Ms. Fuqua hadn’t offered any evidence that the painting had not been stolen, and the BMA had provided plenty of proof that it had been. As a final “hail Mary,” the Renoir Girl speculated that maybe Saidie May ­– who had loaned the painting to the museum – hadn’t had her husband’s permission to do so. Like that mattered. The Court dismissed this canard as rank speculation.

The painting was ordered back to the museum. And by her reckoning, Martha Fuqua is out the price of a 12” meatball marinara and Coke.

Martha most recently has said she’d like to put all of the kerfluffle behind her. One can hardly blame her. As for Marcia “Light Fingers” Fouquet, Martha’s deceased mother, the Romans had a phrase for it: De mortuis nil nisi bonum dicendum est (“Of the dead nothing but good is to be said.”) So we won’t talk about her at all.

–Tom Root


Case of the Day – Tuesday, November 21, 2017


superball140801We settled a particularly difficult case yesterday. Our 12-year old neighbor Christian found a Superball (remember those?) in the leaf-covered grass near his house. He was busy tormenting his little sister Lexia with it – something at which 12-year old boys are especially adept – when he wondered whether he could keep his find or he’d have to “give it back.”

We asked “Give it back to whom?”

He shrugged, having no idea who the owner had once been. His situation reminded us of a sad Ohio news story a few years ago about a contractor who found a wad of money in the walls of a house he was fixing up for a new owner. The contractor and the owner and — finally — the descendants of a prior owner — all became embroiled in litigation, and in the end, the lawyers got virtually all of it. Shades of Jarndyce v. Jarndyce!

fklw2Lucky for Christian, we knew what Ohio law had to say about “treasure troves,” those little bundles of cash, jewelry, art or old Hostess products that people occasionally stumble over. It turns out that the answer is, it depends on whether the property is lost, abandoned, stolen or mislaid. If it’s lost or abandoned, it turns out, Christian’s little sister was right in the advice she gave him: finders keepers.

In today’s case, a very fortunate cop found thousands of gold and silver coins scattered on a city street at 4 a.m. He picked them up, and then, being a dutiful cop, turned them in. The owner never stepped forward — and we bet there’s a story in that — so after about a year, the police officer sued for ownership.

The City opposed him, arguing that the money was located on its street and the policeman was on its time clock when he found them. None of that mattered, the Court said. All that counted was that the lost or abandoned property was found by Officer Baker, who thus had ownership rights superior to anyone other than the rightful owner.

Our advice to Christian, then, was the Superball was probably lost property, because who’d willingly abandon such a cool ball? It was his to enjoy unless the true owner stepped forward.

Sadly, our legal efforts were for naught. Shortly after our sage advice to him, Christian lost the Superball on an especially high bounce into a nearby cornfield. Losers weepers.

Baker v. City of West Carrollton, Case No. 9904 (Ct.App. Montgomery Co., August 7, 1986) (unpublished), 1986 WL 8615. Police officer Charles Baker found a large number of gold and silver coins scattered on a West Carrollton public street. After reporting the find, he and city employees picked up 6,871 gold and silver coins and placed them in the police property room. When no one stepped forward to claim them, Baker sued to establish his right to the money. The City counterclaimed, arguing that the money was found on its street, and Baker was its employee, so the money belonged to it. The trial court agreed, and awarded the money to the City. Baker appealed.

chestHeld: The money belonged to Baker, not the City. The money was considered to be “lost” or “abandoned” property. Under Ohio common law, a finder who takes possession of “abandoned property” acquires absolute title. A finder of a lost article, although he does not by such finding acquire an absolute property or ownership, has a prior claim thereto as against everyone except the actual owner. The rule is practically absolute and is not affected by special circumstances of the character of the thing found, the place of finding, or the relation of the finder to the third person, even where the finder is the employee of the owner of the premises.

money2At common law a finder who takes possession of lost property has a duty to protect the property; to seek the true owner, and to return the property to the true owner on demand. The state had no right to found property as against the finder. Although Ohio law governs disposition of lost or abandoned property by police departments, the law requires the property to be turned over to persons with a right of possession, and Ohio courts have held that a finder of lost property which is unclaimed by the true owner is a person “entitled to possession of property” under that law. Officer Baker was such a person.

West Carrollton argued that since Baker is a police officer he should not receive a reward for performing his duty. The Court agreed that rewards for police officers’ performance of their duties aren’t appropriate, but it said that the City’s award analogy was strained. It held that Baker’s primary duty was to the true owner of the coins, and he got no reward for that.

The Ohio Supreme Court later upheld the decision. Now, if those Justices can just help Christian search the cornfield.

– Tom Root


Case of the Day – Monday, November 20, 2017


The man on the right is a corporal ... and a combat vet with a Purple Heart. The man on the right, a major general, is not a corporal. The guy in the middle is just a politician. But none of them is an incorporeal hereditament.

The man on the right is a corporal. The man on the right, a major general, is not a corporal but may have once been one. The guy in the middle is just a politician and probably was never a corporal. But none of them is now or ever has been an incorporeal.

Today, we’re considering incorporeal hereditaments. Lawyers like cool terms like these, because they can charge more when their clients can’t understand what they’re saying. Here at, we demystify the law for you. That’s us – the homeowner’s friend.

Before we pull a muscle patting ourselves on the back, let’s get to today’s topic. A hereditament is nothing more than a right that can inherited. A corporeal one is that may be seen and handled, like a piece of real estate. Back in the day, conveyance of land was done by livery of seisin, wherein the propert seller would actually hand the buyer a twig or clump of dirt, a ritual conveyance of the real estate being sold. An incorporeal hereditament, on the other hand, is something that couldn’t be symbolically passed off, something intangible like an easement.

Sound boring? Some North Carolinians found out that boring or not, it’s important. A couple of landowners had, over the past 11 years or so, planted trees, built fences and otherwise taken actions inside a 30-foot driveway easement that encroached on the use of the passage by its owners. The easement owner, stymied in his use of the drive, sued. The defendants argued “too little, too late:” the plaintiffs were way beyond the 6-year statute of limitations for suing on incorporeal hereditaments. The plaintiffs said “poppycock!” (a legal term meaning “fiddlesticks!”). The statute didn’t start running until the invasion of the easement had passed the 20-year period for adverse possession of land or prescriptive easements. In other words, the plaintiff argued, he had 26 years from the time the trees were planted and fences were built to bring a lawsuit.

The Court of Appeals disagreed, siding with the defendants. This wasn’t a case of someone trespassing, taking land by adverse possession or a right by prescriptive easement. This was someone trying to undo an express easement. The lawsuit simply related to an incorporeal hereditament, and it was subject to the 6-year statute.

The incorporeal hereditament not taken ... as Robert Frost might have said.

The incorporeal hereditament not taken … as Robert Frost might have said.

The result is curious. It means that an owner of an easement, a right that is often as valuable as the property itself, can lose that right by interference by the servient estate owner in a relatively brief period of time. To use a legal term, “you snooze, you lose.”

Pottle v. Link, 654 S.E.2d 64 (N.C.App., 2007). The Pottles owned Tract 6 on Cedar Island, and Snug Harbor South, LLC, owned Tract 4. Both of these owners held 30-foot wide easements allowing ingress to and egress from the public road to Tracts 6 and 4 and other lots. Mr. Link owned Tract 3 and Mr. Willets owned Tract 5, adjacent lots which were the servient estates over which the easements ran. About 11 years before the lawsuit was filed, Link planted several oak, cypress, holly, and cedar trees on Tract 3, joined several years later by two more oak trees to replacing two that had been destroyed by hurricanes.

He maintained the trees by installing an irrigation drip line and planting other vegetation on the tract In the summer of 2004, Willets installed a post and rope fence on Tract 5, and in 2005, Link built a fence. The Pottles and the LLC sued, arguing that Link’s trees and impeded traffic on the easement, and that Willets’ post and rope fence encroached on the easement as well. Plaintiffs filed a motion for summary judgment, arguing that Link and Willets had refused to clear the easements to provide access to property that had no other routes of access. Link and Willets moved for summary judgment, too, arguing that the 6-year statute of limitations for injuries to incorporeal hereditaments had expired, and that the plaintiffs’ actions constituted an abandonment of the easement. The trial court granted summary judgment to the plaintiffs, and defendants appealed.

Here's a legal expression anyone can understand ...

Here’s a legal expression anyone can understand …

Held: Summary judgment for the plaintiffs was reversed, and the defendants won on many of the issues. The Court of Appeals noted that the parties agreed that all encroachments, except the fences installed in 2004 and 2005, were planted or installed approximately nine to eleven years before the lawsuit. The only question, the Court said, was which statute of limitations applied. An affirmative easement is a right to make some use of land owned by another without taking a part thereof, while a negative easement prohibits the owner of a servient estate from doing something otherwise lawful upon his estate, because it will affect the dominant estate. Easements are incorporeal hereditaments, which is defined as “[a]n intangible right in land, such as an easement.” N.C. Gen.Stat. §1-50(3) requires that an action for injury to any incorporeal hereditament be brought within six years. The plaintiffs argued that the injury in this case was similar to an adverse possession, having a limitation period of twenty years, but the Court disagreed, holding that the cases relied on by the plaintiffs related to a defendant’s continuous trespass onto the plaintiffs’ property, not on plaintiffs’ incorporeal hereditament.

Because an injury to an incorporeal hereditament was at issue in this case, rather than a continuous trespass or a prescriptive easement to property held in fee, the Court held that N.C. Gen.Stat. §1-50(3) applied, and that plaintiffs’ case was barred where the six-year statute of limitations had been satisfied. All but two encroachments onto the plaintiffs’ easement began 9 to 11 years before the lawsuit. The defendants were therefore entitled to partial summary judgment as a matter of law. The fences had not been in place more than six years, but because the defendants argued that the fences did not encroach on the easement, an issue of fact existed, and summary judgment in favor of the plaintiffs had to be reversed.

The case was sent back to go to trial on the question of whether the fences encroached on the easement.

– Tom Root


Case of the Day – Friday, November 17, 2017


So who you gonna call?

    So who you gonna call?

It’s not easy to defeat a utility company holding an easement for transmission lines, especially after the power outage of 14 years ago. The great Blackout of August 2003, after all, started primarily when power lines sagged into trees in the Cleveland, Ohio, area.

Yeah, it’s tough to beat the power company and its chainsaw-wielding minions … but the Corrigans did it for awhile. They had granted an easement to a Cleveland electric utility for a transmission line. In the wake of the blackout, the utility told the Corrigans (and thousands of others) that it would vigorously pursue cleaning up vegetation in the easements. This mean, among other things, no trees within 25 feet of the lines.

The Corrigans had a big silver maple that was about 22.5 feet from the lines. They loved that tree, so they hired an arborist at considerable expense to trim it away from the lines and to inject the tree with a hormone to slow growth. Tough luck, the utility said, it’s coming down anyway.

So who do you call when the power company shows up with chainsaws and a gleam in its institutional eye? The Corrigans raced to the local common pleas court, and asked for an injunction. The trial judge agreed, and the Court of Appeals concurred. Both of those courts sided with the Corrigans that the utility could only cut trees that were “a possible threat to the transmission lines.”

It seemed important to the Court of Appeals that the community had not experienced any service interruptions since the Corrigans had pruned the tree, although that reasoning’s pretty thin. The tree has to only fall once, cascading one failed transmission lines into a continental disaster. But the Court seems to have been favorably impressed by the amount of money the Corrigans had spent getting the tree professionally trimmed.

utilitytrim140515The utility saw an issue here that was bigger than just the Corrigans and their lone silver maple tree. It framed the question as being just who was in charge here, the 88-odd common pleas courts spread throughout Ohio or the public utilities commission. The Ohio Supreme Court agreed that this was indeed the issue, and ruled that the inclusiveness of the state statute and regulations delegating power to the Public Utilities Commission of Ohio gave PUCO the sole authority to decide questions of vegetation management.

We have to admit that the appellate decision had left us with the uneasy feeling that the Court of Appeals’ attempt to do some rump justice here may have made it much more difficult for a utility to exercise its easement rights. To be sure, a utility being sued in a case like this would have to be prepared with an expensive and eye-popping case that graphically depicts the dangers that a tree in the transmission path — even a well cared-for tree — can pose.

The Ohio Supreme Court’s holding provides electric utilities a much friendlier forum in which they must litigate issues of vegetation management, although that may not be a bad thing. Utilities have to walk a fine line, incurring ire if property owners think trees were pruned too aggressively, and facing universal fury (not to mention catastrophe) when service is interrupted by vegetation coming into contact with transmission and distribution lines.

Corrigan v. Illuminating Co., 122 Ohio St.3d 265 (Sup.Ct. Ohio 2009). The Corrigans granted a quitclaim deed to The Illuminating Company, the local electric utility, for a transmission line to run through their yard. The easement gave the Illuminating Company the right to “enter upon the right-of-way occupied by said transmission lines … with full authority to cut and remove any trees, shrubs, or other obstructions upon the above described property which may interfere or threaten to interfere with the construction, operation and maintenance of said transmission lines.” The Corrigans had a large silver maple tree located about 22.5 feet from the centerline of the transmission lines. At considerable expense, they had their own arborist trim the tree and inject slow-growth hormone to keep the tree from posing a risk to the transmission line. Nevertheless, the Illuminating Company decided to remove the tree, and the Corrigans sued for an injunction.

The trial court granted an injunction barring the Illuminating Company from removing the tree, and the Court of Appeals agreed. The electric utility, seeing the issue as one that transcended the issue of one tree, but rather affected the company’s ability to manage vegetation in its rights-of-way throughout the state.

Held: The Corrigans argued that the issue was purely a contract matter, but the Supreme Court disagreed. Noting that “[t]here is no question that the company has a valid easement and that the tree is within the easement” and the easement’s language was unambiguous that the utility had the right to remove trees that might interfere with its transmission lines, the Court said the issue was the correctness of “the company’s decision to remove the tree instead of pruning it.” That was “really an attack on the company’s vegetation-management plan [and] that type of complaint is a service-related issue[] which is within PUCO’s exclusive jurisdiction.”

The statute creating PUCO to administer and enforce these provisions provides that the commission hears complaints filed against public utilities alleging that “any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential.” This jurisdiction is “so complete, comprehensive and adequate as to warrant the conclusion that it is likewise exclusive.”

The Court used a two-part test to reach its determination. First, it asked whether the commission’s administrative expertise was required to resolve the issue in dispute, and, second, whether the act complained of constituted a practice normally authorized by the utility.

rules140515The Ohio Administrative Code chapter on electric service and safety standards requires that utility companies establish a right-of-way vegetation-control program to maintain safe and reliable service. The Code requires that each electric utility inspect its electric-transmission facilities (circuits and equipment) at least once every year, in accordance with written programs, and takes a number of factors into consideration such as arcing, sagging, and line voltage as well as regulatory requirements from OSHA, FAA, and the Army Corps of Engineers. In addition, electric utilities are required to comply with the American National Standard Institute’s National Electrical Safety Code. The utilities are required to submit their programs to the Commission, which will resolve any disputes as to the efficacy of the plan.

The Court concluded that the Ohio Administrative made it clear that PUCO’s administrative expertise is required to resolve the issue of whether removal of a tree is reasonable.

The second part of the test determined whether the act complained of constitutes a practice normally authorized by the utility. Again, the Court said, the Administrative Code made it clear that vegetation management is necessary to maintain safe and reliable electrical service. Thus, the Supreme Court ruled, the second part of the test was satisfied, and the Corrigan’s complaint fell within the exclusive jurisdiction of PUCO.

That meant that the Illuminating Company’s decision that the silver maple interfered or threatened to interfere with its transmission line was a service-related question, and one that the Corrigans could only dispute in front of PUCO. The Court of Appeals judgment was thrown out.

– Tom Root