Case of the Day – Friday, December 14, 2018

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DON’T SIT ON YOUR RIGHTS

burgerk150223Today’s case appears at first blush to be nothing more than a titanic conflict between a fast food purveyor and a strip mall, hardly the material that will get a tree or neighbor law fan’s blood pumping. But it illustrates a few worthwhile points.

A Burger King and a Long John Silver’s sat next to each other in Bay City, Michigan. The owners of the lots agreed to mutual easements so that patrons of each could use a common driveway while their arteries clanged shut from the cholesterol and trans fat. The easements were written without benefit of a legal description of the land subject to the easement (perhaps to save the $300 or so a surveyor would have cost). Sometime after that, the Burger King was dethroned, and the restaurant was torn down. The buyer of the land, the strip mall next door, tore down the BK and expanded the mall. In so doing, the developer built over where one of the access drive easements lay (although the actual common driveway had never been constructed).

The Long John Silver’s crew observed the construction, but the company didn’t complain until the construction was completed. Then, the fish folks sought an injunction in federal court to get the offending building torn down. The Court agreed that the mall developer had violated the easement, but the facts that the remedy was so drastic (tearing down the building) and the fact that Long John Silver’s sat on its complaint during the construction, and said nothing when the mall developer could have remedied the problem easily. That is called “laches,” and the law doesn’t think much of people who engage in it.

The case wasn’t resolved at that point, but Long John Silver’s was more likely to just win the difference in value of the real estate (about $35,000, or 1,591 8-piece family meals). But the lesson is that if you sit on your rights and permit the other party to really damage you, you may be severely limited in your remedies.

The lesson of laches - don't sit on your rights.

The lesson of laches – don’t sit on your rights.

BR Associates, Inc. v. LaFramboise, 2007 U.S. Dist. LEXIS 46036, 2007 WL 1840031 (E.D.Mich., June 26, 2007). BR operated a Long John Silver’s restaurant just west of a busy intersection in Bay City, Michigan. LR owned a commercial plaza east of the Long John Silver’s at the intersection itself. In 2004, a Burger King had operated on the LR site, but it closed and the site was sold to LR. LR demolished the Burger King and added on to its existing plaza, making space for five new tenants. BR’s fish fryers were aware of the construction, and they informed BR’s corporate offices of the activity.

BR never complained during the construction. But after LR was done, BR claimed that the plaza blocked an easement arising out of a written agreement entered into by BR and the old Burger King owner, in which BR and the prior owner gave a mutual “perpetual, non-exclusive easement” for the customers of each other to use two driveways (the “North Access Drive” and the “South Access Drive”) on the easement areas, which were the boundaries of the two properties. Under the easement, the parties had the right “to relocate from time to time and in each party’s own discretion, those driving aisles and ingress and egress points located on their own Parcels … provided that such relocation does not adversely effect the other party’s right to use the Easement Area … [and] upon the mutual written agreement of the parties hereto.” Apparently, the contemplated South Access Drive was never constructed when the Burger King still operated. The easement agreement did not specify the width or the length of the access drives nor did it have a legal description of the areas. LR did not get BR’s permission to move the North Access Drive, nor did it have permission to completely block the South Access Drive, which it did as a result of the construction.

BR sued LR for trespass during the construction, but mostly for breach of the easement agreement, seeking an injunction to compel LR to honor the easement. BR contended that LR’s conduct violated the easement agreement and placed an increased burden on the easement. LR’s actions constituted a trespass, in BR’s view, and created additional wear and tear on BR’s parking lots. Finally, LR’s activities interfered with BR’s business. BR claimed that the easement agreement simply did not contemplate loading and unloading of vendor vehicles as well as parking or that LR would use BR’s property for uses beyond simple customer ingress and egress contemplated by the easement agreement.

LR argued that any recovery for breach of the easement agreement should be limited to $35,000, because BR’s appraiser valued its property with the easement at $650,000 and without the easement at $615,000. BR and LR both moved for summary judgment on all issues.

Imagine 1,591 of these monster meals - that's probably what the damages will buy.

Imagine 1,591 of these monster meals – that’s probably what the damages will buy.

Held: BR was entitled to summary judgment on some claims, and others would go to trial. The District Court noted that Michigan law defined an easement as the right to use the land of another for a specific purpose. In order to create an express easement, there must be language in the writing manifesting a clear intent to create a servitude. Any ambiguities are resolved in favor of use of the land free of easements. The plain unambiguous language of an agreement controls the determination of whether breach has occurred.

Here, the Court said, there could be no dispute the LR breached the express terms of the easement when it constructed the addition to the plaza. The easement agreement provided that an “access drive” could only be relocated upon the mutual written agreement of the parties. LR didn’t contend that it got BR’s consent. Instead, it claimed that the South Access Drive never came into existence at all. No curb cut was made, and the electrical installations otherwise blocking the south access drive preventing its use were never removed. The parties’ course of performance, LR argued, demonstrated that there never an intent to open the south access drive.

But the Court found that the parties’ mutual intent was clearly expressed in the plain language of the easement agreement, which granted BR a “perpetual, non-exclusive easement.” The fact that one of the access drives hadn’t been built, the Court said, provided no basis for the Court to depart from the language of the agreement. However, the Court said, requiring LR to remove the building blocking the south access drive was unjustified, because BR waited until construction was complete to seek any type of relief and it couldn’t identify the specific dimensions of the South Access Drive, because neither party required that level of precision in the easement agreement. It would be difficult if not impossible, the Court said, to fashion such injunctive relief to the extent of the breach. Finally, destroying the structure would necessarily be economic waste.

The Court refused summary judgment on BR’s remaining issues, denied summary judgment on all of LR’s issues, and set trial dates.

– Tom Root

TNLBGray

And Now The News …

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Wilmington, North Carolina, WECT-TV, December 13, 2018: Judge bars tree-removal company accused of price gouging from collecting fees

A Superior Court judge has granted a preliminary injunction against an out-of-state tree removal company which keeps the owners from operating in North Carolina and collecting exorbitant fees they charged victims in Castle Hayne in the aftermath of Hurricane Florence. “This out-of-state operator tried to rip off North Carolinians coping with the devastating effects of Hurricane Florence,” said Attorney General Josh Stein. “I’m grateful that the court has blocked them from taking advantage of any other North Carolinians as we continue this case. My office will not stand for anyone who preys on the misfortune of others in violation of our state’s price gouging statute.” Stein announced that his office had filed a lawsuit against Scotts Tree Service and its owners, Scott Lacey and Randy Shannon, during an October stop in Wilmington. The judge’s order will remain in place until the trial, according to Stein. Homeowners from Castle Hayne testified that the company billed them $14,500 to remove two fallen trees without first discussing or getting an agreement on the price. The homeowners also testified that the work took approximately an hour and involved eight employees, which comes to more than $1,800 per man-hour. Lacey testified that he pays his employees around $30 to $60 per hour. The homeowners further testified that Scotts Tree Service had one of the homeowners sign a statement of work to be done and later filled in the document with the $14,500 price, which the homeowner had not agreed to. After the homeowner refused to pay, the company sent the invoice to a bill collector, Goldberg & Donovan, Inc., a Massachusetts-based company. Earlier this year, a judge granted an injunction against Goldberg & Donovan, barring them from doing business in North Carolina…

Houston, Texas, Chronicle, December 13, 2018: Initiative aims to restore American chestnut trees

Volunteers have planted more than 600 American chestnut trees at Eastern Kentucky University in an effort to restore the tree to the Daniel Boone National Forest. WKYT-TV reports the university has partnered with The American Chestnut Foundation and the University of Tennessee-Chattanooga in an effort to restore the trees to the region. A blight in the early 1900s killed millions of the trees across the Eastern U.S. Daniel Boone National Forest supervisor Dan Olsen says 615 seedlings were planted in late November at The American Chestnut Federation Regional Seed Orchard. He says officials hope to harvest seeds from the orchard in the future…

San Francisco, California, Patch, December 13, 2018: 75 Cloned Redwood Trees To Be Planted In San Francisco

Seventy-five coastal redwood tree saplings will be planted Friday morning in San Francisco’s Presidio to help alleviate climate change. A team from the Archangel Ancient Tree Archive will plant the saplings, which are clones from five local tree stumps, from 9 a.m. to noon. Organizers said the trees will be highly resistant to wildfires, disease and pests and can gather water from fog. Organizers said each redwood tree can remove up to 250 tons of carbon dioxide from the atmosphere over its lifespan, compared with one ton for more average trees…

Charleston, South Carolina, Post & Courier, December 13, 2018: Isle of Palms man sentenced to jail time for cutting down trees

An Isle of Palms man may spend five days in jail after he cut down two significant trees on the island — on land that he didn’t own. Jonathan Gandolfo, who has been battling the town over the tree cutting incident since 2016, was found guilty Tuesday of two counts related to the removal of two trees at 408 Carolina Blvd. He did not cut the trees himself but directed their cutting by a contractor, according to an IOP police incident report. Gandolfo was sentenced to 30 days in jail on each count, with the sentence suspended so that he would instead spend one day and then two consecutive weekends in the Charleston County jail, and then spend two weekends completing community service. He must also pay a fine of $1,087… At the same time, Gandolfo still may face civil penalties from the town, which also has the ability to fine him for violating the tree-cutting ordinance. Gandolfo did not own the land where the trees were cut, but its owners have not pressed charges against him to date. Their property previously was under contract with Gandolfo as the buyer, but the sale didn’t close, Cornely said. According to the police incident report from 2016, the contractor who cut the trees had texts on his phone from Gandolfo urging the contractor “be a ninja about it and be quick so the code guys don’t interrupt you…”

Cincinnati, Ohio, WLWT-TV, December 12, 2018: Fallen tree critically hurts man in Clermont County; who’s at fault?

A man was rushed to the hospital Thursday after a large tree snapped, smashing his car as he drove in Clermont County. A woman who saw it happen is calling for better oversight to prevent this from ever happening again. The man who was badly hurt was driving down a road many people use every day. Now, he’s in critical condition and facing surgeries for his injuries. “When I close my eyes, I see it, over and over again,” Melissa Morganthaler said. It’s a horrific scene Morganthaler can’t forget. She said as she left the grocery store on Loveland-Miamiville Road in Loveland, she witnessed a tree snap and a large part of it landed on a car. “It hit the car and, just, almost like an explosion, just, this horrible loud boom,” Morganthaler said. Photos WLWT obtained showed a mangled BMW sedan, where the man had been trapped. He was badly hurt and bleeding, according to people who called 911 dispatchers as they stayed by his side. “The top of the roof has came in on the person’s head and it’s bad, they’re trying to breathe right now,” a man said to a dispatcher. Morganthaler was there as well, assuring the man. “You’ve got to be calm because there’s chaos all around you, and somebody has to be calm. I just felt so sorry for the poor man,” Morganthaler said. Emergency crews hurried to the scene, cutting the man out of the car in about 12 minutes before they rushed him to University Hospital. Even after the scene cleared, Morganthaler’s mission only began. She called the Clermont County Engineer’s Office because she said the trees in the area where the incident happened are dead and need to be removed. Engineers told WLWT the trees are not in the county’s right-of-way, meaning they are on private property and officials cannot cite the owners…

Phys.org, December 12, 2018: Researchers reverse engineer way pine trees produce green chemicals worth billions

Washington State University researchers have reverse engineered the way a pine tree produces a resin, which could serve as an environmentally friendly alternative to a range of fossil-fuel based products worth billions of dollars. Mark Lange and colleagues in the Institute for Biological Chemistry literally dissected the machinery by which loblolly pine produces oleoresin. Before the arrival of petroleum-derived alternatives in the 1960s, the sticky, fragrant oil-resin mixture was central to the naval stores industry and products ranging from paint and varnish to shoe polish and linoleum. Meanwhile, the international demand for oleoresins has risen. Naturally occurring oleoresins—from sources like loblolly pine—are often preferred. A 2016 analysis by Grand View Research predicted that global sales of oleoresin will approach $1.7 billion by 2022. The Lange lab’s discovery of how it is made “could inspire new engineering approaches for the production of renewable, green chemicals,” says Dutch biologist Harro Bouwmeester in a commentary accompanying Lange’s research in the Journal of Experimental Botany. As natural factories go, said Lange, plants are industry leaders. Humans, he said, produce roughly 3,000 metabolites, the small molecules that occur in human metabolism. “Plants make hundreds of thousands,” he said, “and most of what’s out there in terms of chemical diversity is probably unknown. It would probably be in the millions…

Kelowna, Saskatchewan, castanet.net, December 12, 2018: Broncos – trees block view

A consulting firm says sight lines are a safety concern at the rural intersection where the deadly Humboldt Broncos bus crash happened. A 70-page safety review done for the Saskatchewan government says a stand of trees, mostly on private property, obstructs the view of drivers approaching from the south and east — the same directions the bus and semi-trailer were coming from when they collided. Negotiating with the landowner to remove the trees is one of 13 recommendations included in the report. Rumble strips, larger signs and painting “Stop” and “Stop Ahead” on the road are some of the other suggestions. Sixteen people died and 13 others were injured in the collision at an intersection north of Tisdale in April. The bus was travelling north on Highway 35 and the semi was westbound on Highway 335. Both roads have speed limits of 100 km/h. Highway 335 has a stop sign. Highway 35 does not. The review notes that because Sidhu’s charges are still before the court, RCMP investigators would not talk to consultants from McElhanney Consulting Services about the causes of the crash. The report’s authors found six collisions at the intersection between 1990 and 2017 and another 14 on roads nearby…

Abilene, Texas, Reporter, December 12, 2018: Evergreen trees more susceptible to damage from snow

Now that we’re well into December, which means winter is just a few days away, we recently had a good reminder of what winter weather can be like. And, by a good reminder, I mean cold temperatures and snow. Personally, I don’t remember a lot of December snows during my time in the Big Country, but what the heck, I’m getting pretty old, and maybe my memory is failing me. I do remember a lot of severe January/February snowstorms, but I’m kind of drawing a blank on tons of December snows. Think about it this way: How many white Christmases have we had over the years? I can recall some white Easters, but very few white Christmases. Well, cold and snow certainly means bundling up for us, but what do they mean for trees? One interesting aspect of the cold part of weather is that for plants it’s all about severity and timing. During December, temperatures in the low-30s and high-20s are no big deal, and our trees should have little trouble taking such temperatures, or even lower ones, in stride…

Portland, Oregon, KPTV, December 11, 2018: Oregon Christmas tree farmers to millennials: Buy real, not fake

Area Christmas tree farmers are losing business year after year to fake trees, and now, they are trying to buck the trend. When you move into your first house or apartment, that’s when traditions are made. Cutting down the perfect tree and putting it up around Christmas could be one of those traditions, but more and more, people are opting for fake trees. Casey Grogan with Silverbell Trees harvested 60,000 trees this year. That sounds like a lot, but it’s half of what he did just ten years ago. “We are about half the size we used to be, and I think a lot of farms are in a similar position,” Grogan said. He says, partly to blame are artificial trees, now a $1 billion business. “We’ve seen a rise in sales of artificial trees,” Grogan said. “That makes it a real challenge for real tree growers to estimate how many to put in the ground.” Artificial trees are becoming more realistic, come with pre-strung lights, and are easy to store. Between 75% and 805 of Americans who have a Christmas tree are using an artificial one…

Salt Lake City, Utah, KUTV, December 11, 2018: Read this before you cut down your own Christmas tree

Investigators are looking for the person – or persons – who felled a spruce tree on federal property. This happened on Dec. 2 by the Castle Rock campground near Richfield. That tree had been growing there, since the late 80s. A second tree was also chopped down illegally inside the campgrounds. John Zapell, with the National Forest Service, says this is not uncommon because people think they are going to get away with it. A newly-planted tree also just went missing from outside Timpanogos Cave. Zapell says if you are going to chop down your own tree, you first of all need to have a permit. Those will set you back up to $20, depending on the size of the tree you are cutting down, with the tallest being 20 feet high…

Saginaw, Michigan, News, December 11, 2018: Truck carrying Christmas trees crashes, giving unexpected gift to Saginaw County residents

A flipped semitrailer hauling hundreds of Christmas trees to Virginia became a blessing for less fortunate families throughout Saginaw County. On Monday, Dec. 10, Buena Vista police officers, firefighters and the township’s inspector delivered Christmas trees to residents who expressed they needed a tree. The truck overturned on opening day of deer season – Nov. 15 – near Sanford. Mike’s Wrecker Service of Saginaw and Cole’s Wrecker cleared the scene and the semitrailer was towed to Mike’s Wrecker’s tow yard at 2522 Hess. Bill Giorgis, co-owner of Mike’s Wrecker, worked out a deal with the insurance company and bought 500 trees the truck was hauling for $1,500. He’s selling the trees for $10 each or a donation, but also giving them to needy families who want, but can’t afford, a real tree for Christmas. Over the weekend, Giorgis donated 50 trees to Old Town Christian Outreach. He later received a call that they were running out of trees, so Giorgis had 50 more delivered. Sgt. Russ Pahssen and Officer Devin Heyn, of the Buena Vista Township Police Department, Deputy Fire Chief Aaron Hoeppner and Township Inspector Jeff Cain delivered about a dozen trees with tree stands to residents on Monday…

Mankato , Minnesota, Free Press, December 11, 2018: Plea deal for farmer who cut down memorial trees

A Beauford area farmer has pleaded guilty to cutting down a dozen trees planted as a memorial to veterans along Highway 22 last year. But he likely won’t have a criminal record if he pays restitution. Steven Peter Trio, 56, pleaded guilty to felony damage to public property Monday in Blue Earth County District Court. A similar gross misdemeanor charge was dismissed. Trio admitted to cutting down trees on highway right-of-way in July 2017 because the roots were clogging his drainage tiles and killing his crops. Many of the trees were planted along the highway in the 1950s as a tribute to veterans of World War I. The plea deal calls for Trio to receive a stay of adjudication — meaning the charge will be dismissed — if Trio pays restitution and completes probation…

Wired, December 10, 2018: The science of growing a perfect Christmas tree

Every winter, millions of Americans descend on farms and lots across the country with the express purpose of inspecting, and ultimately choosing from, their local selection of coniferous evergreen trees. I’m talking, of course, about Christmas tree shopping—the widely practiced pastime of publicly scrutinizing spruces, pines, and firs in search of the ideal yuletide centerpiece. Many people are practiced at picking the perfect tree. They’ll judge on things like color, size, shape, needle quality, and bushiness. But behind the annual selection of a coniferous house guest—some 30 million of them a year, in the US—is a ton of science. To Bert Cregg, identifying exactly what makes a tree perfect is more than a holiday tradition, it’s a major part of his job. He’s a forest researcher at Michigan State University and a renowned expert on Christmas tree production. His work covers two main areas: genetics and culture techniques. “Basically, how can we identify species and seed sources that are going to lead to better Christmas trees, and how can growers manage their farms to produce better trees,” he says… 

San Francisco, California, Chronicle, December 10, 2018: Christmas tree farmers combat popularity of artificial trees

Rosa Villarreal’s three young sons jumped and ran around the field of Christmas trees like jackrabbits, their excitement palpable as they raced from evergreen to evergreen. The boys, ages 2, 4 and 6, were picking out a real tree this year — a new tradition their young parents hope will create lasting memories. “I saw this video where the big tree, the mom decorates it, and the little tree, the kids get to decorate it,” she said, as her husband, Jason Jimenez, snapped a photo of their toddler posing with a tiny tree just his size. Christmas tree farmers across the U.S. worry families like Villarreal’s are slowly dwindling. Artificial trees, once crude imitations of an evergreen, are now so realistic that it’s hard to tell they are fakes even though many are conveniently pre-strung with lights and can fold up for storage at the push of a button. Between 75 and 80 percent of Americans who have a Christmas tree now have an artificial one, and the $1 billion market for fake trees is growing at about 4 percent a year — even though they can be reused again and again. To combat this trend, Christmas tree farmers have joined forces as the Christmas Tree Promotion Board and are running a social media ad campaign this holiday season to tout the benefits of a real evergreen. The campaign, called “It’s Christmas. Keep It Real!,” is funded by a 15-cent fee that tree farmers pay for each tree they harvest. It’s a modern-day attempt at such famous agricultural ad campaigns as “Got Milk?” and “Beef. It’s What’s For Dinner…”

Salem, Massachusetts, News, December 10, 2018: Historic tree to see new life at Artists Row

One of the city’s oldest and tallest trees came down on Monday, but its spirit will live on in the form of wooden bowls, table tops and more. The 85-foot-tall European beech tree, believed to be nearly 200 years old, was one of the last vestiges of the historic Manning Garden in North Salem. The tree stood at the corner of Orchard and Dearborn streets until Monday, when it was carefully removed by Essex-based Mayer Tree Service, after losing a brief battle with phytophtora citricola, a plant pathogen. As the tree was taken down, the Rainville family and close friends hosted a celebration honoring the tree, complete with pastries and appetizers. More than a dozen feet of the tree’s best wood was then taken by Tom Gagnon of Boston Woodturning, a shop at Artists Row downtown, to be turned into all sorts of gifts for the Rainvilles and eventual sale to the public. “The tree, we think, was planted in 1825,” said Loretta Rainville, who bought the property in the early 1960s and raised a family under the tree’s towering branches. “According to Rebecca Manning … for some reason, she was 99 when she was interviewed and she said it was (planted in) 1875 for the centennial. So there’s a controversy here…”

Woodworking Network, December 10, 2018: Forest Service to remove 360,000 acres of dead trees in huge project out West

The U.S. Forest Service has proposed a vast removal of more than 360,000 acres of dead trees from the Medicine Bow National Forest in Wyoming and Colorado. The Medicine Bow, which stretches across more than 2.2 million square miles in Wyoming and Colorado, has been devastated by beetle infestation. Millions of dead trees now fill the landscape – fueling wildfires, interfering with wildlife, and endangering campers. The proposal is to clear-cut 95,000 acres, perform selective logging on 160,000 acres, and carefully burn and hand-thin another 100,000. This amounts to roughly 30 percent of the entire forest. The plan comes at a time of common claims that forest fires are the result of mismanagement. It’s also a strong departure from the Forest Service’s usual approach, which has been focused on restoration.  “We hear a lot of comments that the forest fires today are so common or so bad because of poor forest management during the past 100 years,” says Gene Wengert, the Wood Doctor. “This statement has some truth in it, but we do need to understand that a forest fire is a natural event in nature. For example, in California, away from the coast, there’s evidence that the typical region should be burned every 27 years, thereby “cleaning up” the forest by removing the fuel source. When fires do not occur from time to time, the fuel level increases year after year. The eventual, inevitable fire is then ferocious…”

Spokane, Washington, Spokesman-Review, December 9, 2018: Using fallen trees for eco-friendly reconstruction promoted in disaster-hit northern Japan

Three months have passed since a strong earthquake hit Hokkaido in early September. In disaster-affected areas, an increasing number of people are using large numbers of trees felled by landslides. The central government, Hokkaido government, local forestry cooperatives and paper-manufacturing companies plan to cooperate with each other to use fallen trees, such as by making the shift to renewable energies by turning them into fuel for stove heaters and biomass power generation, as well as making paper and lumber from them. Through such efforts, they aim to achieve eco-friendly reconstruction from the earthquake. “There are no parts of a tree that can be throw away. We can use fallen trees as energy sources without wasting any parts,” Tatsuo Kobayashi, 46, an official at the Hobetsu processing center of the Tomakomai wide-area forestry cooperative in Mukawa, Hokkaido, said in late November, while looking at piles of logs…

Greensboro, North Carolina, WFMY-TV, December 9, 2018: One person dies after tree falls on car in Matthews

One person is dead after a tree fell on a car, officials say. According to Medic, paramedics responded to a report on East John Street and Charles Buckley Way in Matthews. One person was pronounced deceased by the paramedics. Matthews Police Department officers responded to the area at approximately 4:16 p.m.  According to police, the vehicle was struck by a falling tree just before the intersection of Charles Buckley Way. After the tree fell on the car, the vehicle drove through the front lawn of Matthews Church of God on the 500 block of East John Street. The vehicle then struck the front of the church, causing minor damage, before coming to a stop in the next door residential yard, police say…

Brainerd, Minnesota, Dispatch, December 9, 2018: The last Christmas: Central Minnesota tree farm to close, neighbor faces uncertain future

Hidden from view along a country lane north of Baxter is a humble meadow dotted with young evergreens. But for many lakes area families, it’s so much more than that. It’s a patch of land that’s witnessed the unbridled joy of children for two generations, offered countless neighborhood teens first jobs as “elves” and provided thousands of Christmases with the season’s most cherished symbol — the tree. And this December will be its last. “I used to say somebody would drive in here and they’d be all grumpy,” said Susan Schmidt, co-owner of Christmas tree farm Love Lake Trees, “and then they’d leave with a big smile on their face.” Susan and husband Allen Schmidt have been preparing for the farm’s closing chapters — they quit planting new firs, spruces and pines two years ago, and are sharing the news with regular customers who’ve come for this year’s tree. Age — they’re both in their early 70s — and the call of warm weather are factors in the Schmidts’ decision to end the farm’s run, but two consecutive summers of violent storms hastened its exit…

Paonia, Colorado, High Country News, December 9, 2018: In Oregon, a mysterious tree grove conjures a colder time

Botanists have a joke about time, distance and themselves. Where most people walk about three miles in an hour, botanists will tell you they dawdle along at one mile every three hours. After all, it is only when you pause that the green blur of a forest resolves into individual species. Joe Rausch, head botanist for the Malheur National Forest in Oregon, claims to be different, though. The barrel-chested 44-year-old looks more like a firefighter than someone fascinated by the genetics of miner’s lettuce plants. “I am impatient for a botanist,” he said. This “impatience” is relative. It’s true that Rausch strode down the trail, deep in central Oregon’s Aldrich Mountains, well ahead of forest geneticist Andy Bower and former Forest Service Northwest region botanist Mark Skinner, who stopped every 20 feet to inspect a new wildflower, exclaiming, “You don’t want to walk by all this stuff, do ya?” But as we switch-backed down a hot, bright slope of yellowing grass, Rausch also lingered over his fair share of plants, especially trees emblematic of the mountain range’s parched climate — juniper, ponderosa pine, mountain mahogany dangling with horsehair lichen. It was a good thing, too: Our destination was the kind you can easily miss, where a few steps take you into a different world…

Phys.org, December 6, 2018: Missing the forest for the trees: An unexpected picture of New York City forests

In recent years, most efforts to expand New York City’s tree canopy—and thus strengthen the urban environment—have focused on planting new street trees or replacing non-native species with native trees in the city’s remaining forests. Yet citywide assessments have found that non-native trees have come to co-dominate the city landscape, calling into question these management strategies and the very value of urban forests. Those assessments might have been looking in the wrong place, according to a new study by Yale scientists and the Natural Areas Conservancy. In a comprehensive inventory of the city’s expansive yet overlooked “forested natural areas,” the team of researchers found that native species still comprise about 82 percent of New York City’s forest stands. And it is in these natural areas where the majority of the city’s trees are located: more than 5 million in these landscapes compared with about 666,000 street trees. Forested natural areas are essentially places that look and feel like “the woods” or “forests” as they are more traditionally known, as opposed to urban forest areas typified by street trees and park trees in addition to natural areas. Natural areas exist in stands, or groups of stands, often growing together in patches across the landscape…

Hollywood, California, Patch.com, December 6, 2018: Hollywood trees spared from ax after legal battle

Fourteen of 18 ficus trees in Hollywood that are the focus of a legal battle and demonstrations after the city had slated them for removal will be spared, Los Angeles City Councilman David Ryu said Thursday. The trees on the 1200 block of Cherokee Avenue were scheduled to be cut down according to a summer report from the Bureau of Street Services, which said the removals were needed in order to fix the sidewalks. Two groups, United Neighborhoods for Los Angeles and Eastside Nature Alliance, took legal action to try and stop the removals, and a court injunction put the final decision in the hands of the City Council. Ryu said he worked with the Bureau of Street services on a solution, and a new report issued by the bureau concludes that 14 can be spared the ax. “When I was first told that all 18 of these beautiful, mature trees had to be removed to fix the broken sidewalks on Cherokee Street, I thought `there must be a better way.’ We cannot pit sidewalk repair against protecting our urban canopy,” Ryu said. “This report makes clear – we can do both…”

Houston, Texas, KTRK-TV, December 6, 2018: Special tree holds place of honor over Pres. George HW Bush

President George H.W. Bush and his family will forever be shaded thanks to a local farmer. Residing about an hour north of Houston is a tree farm that takes its products very serious. “We’re a mom and pop operation,” U.S. Trees of Texas owner David Kleimann said. U.S. Trees of Texas has more than 60 types of trees including hedges, evergreens, and ornamentals. “They are the top beauty of any live oak tree I’ve ever grown, and I’ve been doing this for 35 years,” Kleimann said. The Cathedral Live Oak tree is cell produced and is known to stand above any other tree. “What that means is that you look at each and every other tree that’s in this line,” Kleimann said. “Each and every limb are in the same place on every tree…”

Pittsburgh, Pennsylvania, Tribune, December 7, 2018: Murrysville native works to ‘Fight the Blight’ among Slippery Rock pear trees

Main Street in Slippery Rock is lined with a large number of Cleveland Select flowering pear trees, whose snow-white blossoms typically appear for a few weeks in April.  Unfortunately, many of the trees look as though they have burnt leaves, the result of a contagious pathogen called fire blight.  Luke Gregory, a Slippery Rock University senior and Murrysville native, is hoping to change that.  “Plants don’t complain,” Gregory said. “Trees are often overlooked so people have to look out for them. This fire blight has swept through and infected a lot of them (along Main Street), so we’re trying to remove the trees that have it and plant a greater diversity of trees.” With that in mind, Gregory and SRU biology professor David Krayesky started  Fight the Blight . The project’s goal is to remove infected pear trees and replace them with new species such as Kousa dogwoods, redbuds and Washington Hawthorns, while increasing the variety of species near Main Street to include hornbeams, ivory silks, Linden trees, Prospector elms and royal burgundy flowering cherry trees…

South Bend, Indiana, Tribune, December 5, 2018: Elkhart resident and his son feel like Grinch stole city Christmas tree from their yard

The community will gather Friday night at Civic Plaza for a ceremonial lighting of a Christmas tree, historically a symbol of life and hope during the holiday season. Here in Elkhart, it’s part of the Winterfest celebration. But the way this year’s Christmas tree was obtained has angered a property owner and his father, a situation city Building and Grounds Department head Mike Lightner says he regrets. About 9:40 a.m. on Nov. 26, Dennis Morman said he was surprised to wake up and look out his window to see a city crew cutting down the 33-foot Colorado Spruce from the tree lawn, the city-owned area between the street and sidewalk, next to his yard at 800 W. Lusher Ave. Dennis said he had recently trimmed the tree back because its branches had overtaken the sidewalk, prompting a visit from a city employee who warned him that if he trimmed it again, he could be held liable for damaging the tree, which the city had valued at $16,000 to $18,000. “It was a gorgeous tree,” Dennis said. During that initial visit, the municipal employee said the city might use it for the Civic Plaza display, but nothing was certain, Dennis said. He and his son, Kyle, a South Bend native who lives in Georgia and rents the home to his father, said the city should have shown them the courtesy of at least discussing its removal with them first. Their anger highlights the confusion some people have about city tree lawns. Residents are required to cut grass and weeds there, but the city maintains its trees, Lightner said…

Rockford, Illinois, Register Star, December 5, 2018: Tree fungus ‘as detrimental as Dutch elm’ disease affects blue spruce, including Rockford’s official Christmas tree

If you peer past the ornaments and outer branches at the base of the city’s official Christmas tree— a broad and bulky 40-foot-tall blue spruce — you’ll find yellow and brown needles along with bare limbs more fitting for Charlie Brown’s famously sad seedling than downtown’s holiday centerpiece. The tree that’s the focal point of the city’s Stroll on State is a victim of a widespread problem disfiguring blue spruces across the region. It suffers from a disease called Rhizosphaera needle cast — pronounced rye-zo-sphere-uh — which has drawn comparisons with the Dutch elm disease epidemic and emerald ash borer that nearly wiped out those trees in northern Illinois. Arborists and other tree care experts say the scourge of Rhizosphaera has surged over the past three to five years, forcing landscapers and homeowners to take down the ornamental tree known for its dense, powder-blue needles. “I think their time has passed here,” said Tim Gruner, garden curator for Anderson Japanese Gardens, the region’s premier public garden. “I wouldn’t plant a blue spruce anywhere in the region…”

Durango, Colorado, Herald, December 5, 2018: Need a tree? Take the train

The San Juan Mountains are chock-full of trees. So many, in fact, that the Durango & Silverton Narrow Gauge Railroad has to cut some down to help prevent potential wildfires. Now, as the holiday season approaches, the railway is enlisting the help of its riders to reduce fire risk – giving residents a chance to cut down a tree for the holiday season. D&SNG is offering trips to the high country for residents to pick out, cut down and bring home a tree from the mountains for the holiday season. The train has been making the opportunity available for the past four years, said Christian Robbins, spokesman for the D&SNG. Robbins said the service began with a question that sprouted in mind: Why don’t people go to the San Juan Mountains for holiday trees anymore? He did it when he was a kid, but not many people have continued the tradition. And the trees need to be cut down anyway, so why not put them to good use, he said.  Robbins took some time the next summer in Cascade Canyon to look at the trees that need to be cut down. They’re all short trees, the ones that burn most in wildfires. Those trees also make for perfect indoor decorations. The D&SNG makes a trip through Cascade Canyon anyway, so why not bring people there to cut down trees for the holidays, Robbins said…

Providence, Rhode Island, Star, December 5, 2018: Environment: Hot, dry summers have killed trees covering nearly 50,000 forest acres

About 13 percent of Rhode Island’s forest trees are dead, state environmental officials have concluded, the result of an unprecedented combination of heat, drought and insect infestations from 2015 to last year. The area of dead trees is concentrated across the western half of the state, from Hopkinton to Burrillville, with pockets on Prudence Island and the Sakonnet Peninsula, according to the just-completed assessment by the state Department of Environmental Management. While there are some large contiguous swatches of mortality — in places such as Richmond, West Greenwich and Foster — the tree death is, for the most part, diffuse, with pockets spread throughout rural and suburban communities. All told, the area of death totals about 45,000 to 50,000 acres, short of initial estimates that put the number at nearly twice as much, but still a large portion of Rhode Island’s 369,000 acres of forest. The assessment by Paul Ricard, forest health program coordinator for the DEM, was based on an aerial survey he conducted in September. The tree mortality may be a sign of things to come. Recent research summarized in the scientific journal Forestry found that climate change can facilitate the spread of both native and invasive forest pests and weaken the resistance of trees to these pests. The new update to the National Climate Assessment, released last month, makes a similar warning…

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Case of the Day – Thursday, December 13, 2018

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LICENSE TO SWIM

facts130307One of Harry S Truman’s favorite admonitions was that one should never confuse wishes for facts. In today’s case, Bill Johnson wanted to have the rights to use John Bradley’s lake so much that he convinced himself over time that he did have the rights. But (as another American president once said), “Facts are stubborn things.” Fact was, Bill didn’t own the rights at all.

Up in Shawangunk Ridge country, John Bradley built himself a nature preserve, including rehabilitating an old dam and lake.  It was a pretty nice place, so nice in fact that his neighbor, Bill Johnson, found it irresistible. 

Bill had property that came within 10 feet of the lake, and he found it convenient to push the boundaries just a bit so he could boat and swim as well (the court opinion said he used it “for his boating and bathing activities,” and we’d prefer to assume that he wasn’t floating around with a bar of Ivory soap). Property owner Bradley put up fences, sent letters, threatened and cajoled, but nothing seemed to deter Bill from using the pond as an extension of his place.

Johnson argued he had the right under the deed for his place that had been given to his predecessor in title, Miltie Quackenbush. That deed slapped a number of restrictions on the Johnson land, which included language that held no water rights in the lake were granted “except that the grantee named in this particular instrument and his or her family and the guests of his or her family are hereby permitted to use and enjoy the waters of Tillson Lake for fishing, boating and bathing.” Johnson took this language and ran with it (or swam with it).

private160307Unfortunately, the Court said Johnson was all wet. Johnson said the deed restrictions and covenants “ran with the land,” which means that they applied not just to Milton Quackenbush, but to everyone who ever bought the land after him. The Court disagreed. It said that a restriction or covenant was true where the deed language was unequivocal in doing so. Johnson’s argument sank because the fishing, bathing and boating exception — only one clause in a long list of restrictions and covenants — was clearly limited to the grantee “named in this particular instrument” — and that grantee was Miltie Quackenbush, not Bill Johnson.

State v. Johnson, 846 N.Y.S.2d 671, 45 A.D.3d 1016 (N.Y.A.D. 3 2007). The Awosting Reserve was founded by John Bradley in the late 1950s as a nonprofit organization for the purpose of preserving the natural wilderness of the Shawangunk Mountains. In 1994, Ridge Lake Partners, of which Bradley was a member, bought property that later became Tillson Lake. Ridge Lake got permission from the Department of Environmental Conservation to repair a dam on its land and flood a portion of the property that had formerly been a lake. It did so, clearing, refilling, and safeguarding the newly formed Tillson Lake, including installing a metal fence around the lake and a posting of “no trespassing” and “private property” signs every hundred feet.

pool160307The Awosting Reserve bought the lake and adjoining lands in 2002, including Lake Avenue, the only access road to the lake. By a 1994 deed, Bill Johnson obtained title to a parcel of land separated from the lake by a strip of land about 10 feet wide and 60 feet long. Johnson’s deed incorporated by restrictions and covenants contained in the deed from prior grantors Hassie Tillson and Carolyn Tillson to prior grantee J. Milton Quackenbush and Helen Quackenbush, stating “the above described premises are sold and conveyed and accepted upon and under the following restrictions and covenants on the part of the parties of the second part [Quackenbush] their heirs and assigns forever.” The sixth enumerated restriction said that “[n]o water rights in and to Tillson Lake or the inlet thereto or the outlet therefrom is granted except that the grantee named in this particular instrument and his or her family and the guests of his or her family are hereby permitted to use and enjoy the waters of Tillson Lake for fishing, boating and bathing.”

The language of the grant further permitted the grantee “to use and enjoy the waters of Tillson Lake … subject to the rules, by-laws and regulations of the Tillson Lake Property Owners Association, which … may be changed, altered or amended at any time.” The final portion of the Tillson to Quackenbush deed stated that “the above restrictions, agreements and covenants shall run with the land.” Johnson said that since the time of his purchase, he has consistently used, mowed and cleared such strip in order to access Tillson Lake for his boating and bathing activities.

Beginning in 1998, Bradley complained that he regularly saw Johnson trespass on Awosting’s land, cutting timber, mowing the grass and using the lake even after being told repeatedly that he was to leave. Since 1998, the lock on the gate nearest to Johnson’s property was frequently broken and replaced by a lock similar in appearance. In 2002, Bradley told Johnson to remove a dock he had built from Tillson Lake. Two years later, Johnson stacked firewood, parked his vehicle, planted grass seed and erected a wooden fence across a portion of Cherry Street, a private road owned by the Awosting Reserve.

In 2004, the Awosting sent Johnson a letter telling him to get his personal property out of Tillson Lake. When none of these entreaties was successful, Awosting sued Johnson for trespass, seeking a permanent injunction barring him from entering the property or using the lake. Johnson counterclaimed, asserting, among other things, easements by prescription and adverse possession. The trial court granted judgment to Awosting.

Johnson appealed.

posted160307Held:  Johnson had trespassed, and an injunction issued barring him from further trespass. The Court rejected Johnson’s claim of an easement, holding that to create an easement by express grant there must be a writing containing plain and direct language evincing the grantor’s intent to create a right in the nature of an easement rather than a revocable license. The writing must unequivocally establish that the grantor’s intent was “to give for all time to come a use of the servient estate to the dominant estate.” If there is an ambiguity with regard to the permanency of the restriction placed on the servient estate, it is to be treated as a license or an easement in gross which is revocable at will by the grantor.

Here, although Johnson said that the last portion of the Tillson to Quackenbush deed — which said that “the above restrictions, agreements and covenants shall run with the land” — created an easement entitling him to the use of Tillson Lake, the Court held that the license allowing the specific grantee to use Tillson Lake for boating, bathing and fishing was merely a temporary exception to the enjoining restriction which was intended to run with the land.

Extensive record evidence established Johnson’s trespass both on the Cherry Street property, as well as Tillson Lake. Finding these acts to establish plaintiff’s prima facie burden of a trespass, the Court said, and it was up to Johnson to show that he had either a lawful right to enter these properties or had the owner’s permission. He did not do so.

– Tom Root

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Case of the Day – Wednesday, December 12, 2018

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HIGHWAYS, BYWAYS AND WATERWAYS

By now, we all know that the modern arboriculture negligence rule places a duty on urban landowners to use reasonable care to inspect trees that could otherwise injure the public if they fell onto public highways, sidewalks and the such.

Today’s case has a twist, however, in that the owner’s tree fell onto a boat on the Cape Fear River, not a highway at all. Or was it?

This is where the courts, whether they say so or not, try to honor the intent of the rule. Here, the boaters were waiting to use the landowner’s public boat ramp, which the landowner had installed to benefit its bait shop, located right next to the ramp. The court did not expressly say so, but it clearly believed that the duty owed to an “invitee” – someone whose presence was desired for the benefit of the owner – was higher than it might be to a casual passer-by, even if North Carolina law said all comers – invitees, licensees and trespassers – were entitled to the same protection.

The other interesting aspect of the decision was the blurring of the old rural-urban distinction. Sure, the Court said, the land was undeveloped and out in the middle of nowhere. But it was developed, at least for tree inspection purposes, around the boat ramp, and that was good enough.

Wallen v. Riverside Sports Ctr., 173 N.C. App. 408, 618 S.E.2d 858 (Ct.App. N.C., Sept. 2, 2004). Since 1977, brothers John and Sol Rose had operated Riverside Sports Center. Riverside leases 25 acres of undeveloped land fronting the Cape Fear River off of Person Street in Fayetteville, North Carolina. On a portion of the leased property, Riverside operates a small bait and tackle shop and a boat repair business. Riverside held a permit from the Army Corps of Engineers to build a boat ramp by the repair shop.

As part of the construction of the boat ramp, Riverside installed wooden “pylons” in the river. These pylons, also called “fender piles,” were placed both upstream and downstream from the boat ramp to prevent logs floating downstream from harming the boat dock or ramp. Customers often tied their boats to the pylons while waiting to use the ramp.

In late August 2001, Tim met Rick George and his son at Riverside to go fishing. At about 4:00 p.m., George paid the access fee and launched his pontoon boat using Riverside’s ramp. After the party had fished for a while, the wind picked up and dark clouds rolled in. They decided to get off of the river until the storm passed. By the time Tim and Rick got back to the Riverside boating facility, it was raining and there were four boats ahead of them waiting to use the ramp to get off the river. Rick tied his boat to one of the downstream pylons. Tim and Rick began putting a tarp over the boat to keep it dry. Rick said he heard a loud noise, like an artillery round, and felt something hit the boat. When he turned, he saw Tim on his back, unconscious.

A box elder tree had fallen and struck Tim, rendering him a paraplegic.

Tim sued Riverside, alleging he was injured by their negligence. He asserted that Riverside failed to exercise reasonable care to keep the premises in reasonably safe condition, and more specifically, that they failed to properly inspect their property and remove dead trees around the pylons. As a result of their negligence, Tim said, he was injured. Riverside filed for summary judgment, contending Tim (a) failed to show Riverside owed any duty to him; (b) failed to show defendants were negligent; and (c) failed to show that his injury was reasonably foreseeable to Riverside. The trial court granted Riverside’s motion for summary judgment.

Tim appealed.

Held: Tim had raised a genuine issue of fact about Riverside’s duty to him and whether it was negligent, and the case must proceed to trial.

The Court of Appeals began its analysis skeptically, noting that summary judgment is seldom appropriate in a negligence action. In order to establish a prima facie case of negligence against a defendant like Riverside, a plaintiff like Tim must show (1) the defendant owed the plaintiff a duty of care; (2) the defendant’s conduct breached that duty; (3) the breach was the actual and proximate cause of the plaintiff’s injury; and (4) plaintiff suffered damages as a result of the injury.”

In North Carolina, the Court observed, the law had evolved to hold that a landowner has a duty to exercise reasonable care regarding natural conditions on his land which lies adjacent to a public highway in order to prevent harm to travelers using the highway. A landowner is subject to liability only if he had actual or constructive notice of a dangerous natural condition.

To impose liability upon property owners, plaintiffs must show not only that the tree constituted a dangerous condition to users of the adjacent public road, but that the landowners had actual or constructive notice of the dangerous condition.

The Court ruled that Riverside “had a duty to exercise reasonable care with respect to natural conditions on their land, which was adjacent to a public highway.” However, Riverside would be shown to be negligent only if it had actual or constructive notice of a dangerous natural condition existing upon its property.

At the time Tim was injured, he was on the Cape Fear River, a navigable waterway. Under North Carolina law, the river is a “public highway,” since navigable waters constitute a public highway.

The record contained no evidence that Riverside or its principals had actual notice of the decayed condition of the box elder tree. Thus, the Court looked to evidence of constructive notice of the tree’s condition sufficient to withstand Riverside’s motion for summary judgment. Each party offered affidavits from expert arborists expressing opinions about the condition of the box elder tree, and those affidavits directly contradicted each other. The evidence, taken in the light most favorable to Tim (the non-movant for summary judgment) showed that Riverside Sports Center has been in business since 1977, the principals knew that customers routinely tied their boats to the downstream pylons to prevent the boats from drifting downstream while they waited to use the boat ramp, that there were trees along the riverbank, the limbs of which hung over the river in the area of the downstream pylons, and that Riverside had had employees previously trimmed the trees on both sides of the ramp.

Tim’s expert said the trunk of the box elder that had fallen had snapped off 13 feet above the ground about two years earlier, and a portion of the upper tree trunk had broken off 6 to 10 years before that, causing the tree bark to be stripped, and created a V-shaped wound on the tree, which accelerated decay. The trunk was leaning at a “very pronounced angle, from the top of the bank” out over the river in the direction of the pylon where Rick had tied his boat. The expert said in his affidavit that the tree was about 40′-60′ feet in length and was definitely capable of striking Rick’s boat. The expert also said that he believed that the box elder “had been extensively decayed for many years prior to its breaking, that it exhibited a number of conspicuous dead branches and external trunk decay, and that these obvious symptoms of decline and hazard-potential (dead branches and trunk decay), should have been observed with considerable concern by the owners of the property (particularly because of the strong lean of the tree towards the water) …”

The Court held that this opinion presented a genuine issue of material fact on the issue of constructive notice.

Finally, the Court ruled, in order for a defendant to be liable for a negligence claim, the injury must be reasonably foreseeable. A plaintiff must show that a person of ordinary prudence would have known that Tim’s injury or some similar injurious result was reasonably foreseeable. The Court wrote that, “Given the facts as recited above in our discussion of duty, constructive notice, and negligence, we hold that the evidence taken in the light most favorable to plaintiff demonstrates there existed a genuine issue of material fact on the issue of foreseeability.”

– Tom Root
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Case of the Day – Tuesday, December 11, 2018

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HALFWAY BETWEEN MASSACHUSETTS AND HAWAII

In the world of tree encroachment, regular readers of this site know that there is a continuum of liability extending from the Berkshire Mountains of Massachusetts all the way to Mauna Kea on the Big Island of Hawaii.

We all know about the Massachusetts Rule, which holds that a landowner has no liability whatsoever for encroachments of the branches or roots of his or her tree over, on or under neighboring land. Your neighbor doesn’t like it? That’s why Poulan sells chainsaws.

On the other end is the Hawaii Rule, where with the privilege of tree ownership comes great responsibility. If you own a tree that causes sensible harm to your neighbor’s property and you know or should know that, you are liable for harm that it causes.

In today’s case, there is no doubt that Ken and Jeannine Carvalho suffered harm from roots belonging to Larry and Judy Wolfe’s trees. When the foundation damage was discovered, the Carvalhos reported to the Wolfes, who cut the trees down.

But that was not good enough. I suspect the Carvalhos hoped to nick the Wolfes’ homeowners’ insurance. It seems a shame that their lawyer’s pleading skills were not equal to the aggressiveness of the Carvalhos’ avarice. Or maybe they demanded that counsel bring the suit, and he or she was honest in not claiming the Wolfes knew or intended the roots grow into the Carvalho’s foundation when neither evidence no common sense suggested they did.

Still, the case gave Oregon to stake out a position on the continuum that certainly was not the Massachusetts Rule but wasn’t the Hawaii Rule, either. Instead, the Oregon Rule – such as it is – comes out something like halfway between.

Carvalho v. Wolfe, 207 Ore. App. 175, 140 P.3d 1161 (Ct.App. Oregon 2006). The former owners of Larry and Judy Wolfe’s property planted trees along the property line. Once the property became theirs, the Wolfes became responsible for the ongoing care, maintenance, and control of those trees.

In 2004, Ken and Jeannine Carvalho discovered that trees’ roots had grown to all the way to the foundation of their home, causing structural damage that then amounted to over $61,000 and that was increasing. After the Carvalhos discovered the damage, the Wolfes cut down the trees but did nothing to be sure then roots had stopped growing.

The Carvalhos sued the Wolfes for trespass and nuisance. In their trespass claim, Ken and Jeannine alleged that they had legal possession of their property and that they did not authorize the entry “of any trees, roots, or vegetation of any kind onto their land from defendants’ land.” In their nuisance claim, the Carvalhos said the roots “have severely and unreasonably invaded plaintiffs’ land” and that the invasion had interfered with their “ability to use and enjoy their land” as a result of the damage to their house. The Carvalhos did not allege in either claim that he Wolfes acted with any specific level of culpability or that they were engaged in an ultrahazardous activity.

The Wolfes moved to dismiss both claims for failure to state a claim for relief. They asserted that the Carvalhos’ claim was fatally defective in several respects, including by failing to allege the Wolfes had been negligent or had engaged in an ultrahazardous activity by allowing the roots to encroach on the Carvalho property. The Wolfes also argued that the encroaching tree roots did not constitute a nuisance, because a landowner is limited by law to using self-help remedies for such an encroachment, not seek relief in the courts. The trial court agreed, granted the Wolfe’s motion and entered a judgment dismissing the action.

The Carvalhos appealed denial of the trespass and nuisance claims.

Held: The Carvalho claims were properly dismissed.

Each of those the Carvalhos’ theories of liability – trespass and nuisance – involved a different kind of interference with their interest in their land. An actionable invasion of a possessor’s interest in the exclusive possession of land is a trespass; an actionable invasion of a possessor’s interest in the use and enjoyment of his land is a nuisance. Courts in some places have concluded that tree roots or branches that intrude into or over neighboring lands may be either a trespass or a nuisance; others have rejected liability under either theory.

The Court of Appeals reviewed the two cases of the extreme ends of the tree encroachment continuum. In Michalson v. Nutting, the Massachusetts court held that there was no distinction between an intrusion by overhanging branches and one by invading roots. In either case, an owner has the right to grow trees on its land, which naturally leads to branches and roots crossing the boundary line. When that happens, the owner of the other land is limited to cutting the branches and roots where they intrude, a holding now known as the Massachusetts Rule.

On the other end was of the continuum was Whitesell v. Houlton, in which a banyan tree’s branches overhung the plaintiffs’ property, damaged their garage and threatened additional damage until the plaintiffs had them cut back. The Hawaii court held that the Massachusetts Rule was unfair. “Because the owner of the tree’s trunk is the owner of the tree, we think he bears some responsibility for the rest of the tree,” the Court ruled. Thus, Hawaii provides that, if the owner of a tree knows or should know that it constitutes a danger, the owner is liable for harm that it causes on or off the property. In that case, the damaged or imminently endangered neighbor may require the tree’s owner to pay for the damages and to cut back the endangering branches or roots.

Splitting the difference was Abbinett v. Fox, the New Mexico case in which roots from the defendants’ cottonwood tree damaged structures on the plaintiffs’ property. The New Mexico Court of Appeals discussed Michalson and Whitesell, ultimately holding that, although landowners may use their property in ways that maximize their own enjoyment, they may not unreasonably interfere with the rights of adjoining landowners or create a private nuisance.

Here, the Court noted that intrusions were different in each of the cases that we have discussed. In Michalson, the defendants simply planted the tree and refused to remove the roots; there is no suggestion that they intentionally or negligently caused harm to the plaintiffs. In Whitesell, however, the defendants knew or should have known that their tree would cause damage to the plaintiffs’ property, which in Oregon would support a finding that they intended to cause that harm.

Unlike the Massachusetts and Hawaii Rules, the Court ruled that “the issue of culpability is decisive in this case. Thus, we do not need to decide whether we would agree with the Hawaii and New Mexico courts if defendants had acted with some level of culpability or if they had been engaged in an ultrahazardous activity.”

At common law, an unauthorized entry onto the soil of another was in itself a trespass. Oregon law appears to have applied that rule of strict liability, one court holding that because “we hold that the intrusion in his case constituted a trespass it is immaterial whether the defendant’s conduct was careless, wanton and willful or entirely free from fault.” But an Oregon Supreme Court holding applied the rule that “there is liability for an unintentional intrusion only when it arises out of negligence or an ultrahazardous activity.” After these decisions, Oregon law applying to both nuisance and trespass claims required that a plaintiff allege that the “defendant’s actions were intentional, negligent, reckless or an abnormally dangerous activity.”

Here, the Carvalhos did not allege that the Wolfes acted with any level of fault or that they were engaged in an ultrahazardous activity. Rather, they simply sought to hold Larry and Judy strictly liable for the damage that the trees caused. However, the Court ruled, “neither trespass nor nuisance provides for strict liability except for an ultrahazardous activity. While the Wolfes might be liable for intentional trespass or nuisance if they knew or should have known that their caring for the trees would result in the tree roots damaging the Carvalhos’ house, the Carvalhos did not allege that the Wolfes had or should have had that knowledge. While they do allege that the Wolfes have not taken any action to ensure that the trees have been killed and the growth of their roots permanently stopped, Ken and Jeannine seemed to be careful to not allege either that the growth is continuing or that defendants knew or should have known that it is continuing.

By failing to allege that the Wolfes acted or failed to act with any form of culpability, and to allege that they engaged in conduct that could make them strictly liable for trespass or nuisance, the Carvalhos failed to state a claim for relief under either nuisance or trespass.

– Tom Root

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Case of the Day – Monday, December 10, 2018

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MAKIN’ BACON

piggies150220Running a swine farm is a smelly but serious business. When a tree fell onto a power line on his neighbor’s land and interrupted his electricity, farmer Timmerman was glad that Northern States Power came out to his neighbor’s place and promptly trimmed the tree and fixed the lines.

But his relief turned to dismay when 10 minutes after the trimmer left, the remainder of the same tree collapsed onto the power line. It turned out the tree that had caused the first outage was completely rotten and, even after being trimmed, it remained a hazard.

The first power failure was an inconvenience. The second power failure was a catastrophe: it cut off the ventilation to Timmerman’s hog barn, and 160 pigs met an untimely demise.

Timmerman sued both his neighbor for not having inspected the tree — which had been rotten for at least five years — and the power company for being grossly negligent in trimming the tree. He claimed gross negligence because Northern States Power’s tariffs excluded it from liability except for gross negligence. The trial court turned him down.

The Court of Appeals agreed. It noted that gross negligence is a pretty serious derelection of duty, and Timmerman’s saying it didn’t necessarily make it so. The neighbors didn’t have a duty to Timmerman, it held, because he wasn’t an invitee (or even a trespasser) onto its land. It noted that NSP had trimmed the tree to the national code, and meeting a national standard was performance enough.

It’s fairly well established that an owner has a duty to inspect trees (with a degree of care that varies according whether the land is urban or rural). If Timmerman had been driving by and the tree had fallen onto his truck, there might have been liability. Why not when the damage isn’t an F-150, but instead 160 hogs’ worth of bacon?

Hard to believe the trees can interfere with the wires.

It’s hard to believe the trees can interfere with wires …

Timmerman v. Manguson, Not Reported in N.W.2d, 1996 WL 266404 (Minn.App. 1996). Timmerman owned and operated a hog farm, to which Northern States Power provides electrical power. The power lines run north across the Mangusons’ farmland and continue onto Timmerman’s land. One afternoon, limbs on a willow tree located on the Mangusons’ land broke, striking the power line and causing a power outage on Timmerman’s farm.

NSP investigated the site, found the burned tree limb that had struck the power line, and trimmed some branches back. The tree trimmer investigated the trunk of the tree from his position on the power pole, but he did not see any signs of cracking or damage to the tree trunk. Ten minutes after he left the area, the power went out a second time. The trimmer returned to the site and trimmed back the tree sufficiently so that, if it continued to topple over, the tree would not hit the power lines again. The next morning, he called another NSP representative to report the outages and suggest that they send in the tree trimming crew to clean up the area.

The second power outage left about 160 pigs in Timmerman’s barn without ventilation, and despite Timmerman’s efforts, nearly all of the pigs in two of the five rooms in the barn died. The tree turned out to be rotten and, according to Timmerman’s expert witness, “undergrown … or there was a lot of trees in that area.” The expert determined that the tree had been rotting for at least the past five years and posed a significant hazard to the power lines.

Timmerman sued NSP for gross negligence and the Mangusons for negligent maintenance and inspection. Both NSP and the Mangusons moved for summary judgment. The district court granted both motions, finding, as a matter of law, that NSP had not been grossly negligent and that the Mangusons owed Timmerman no legal duty.

Timmerman appealed.

sweating150220Held: The decision in favor of the Mangusons and NSP was upheld. The Court held that gross negligence was substantially and appreciably higher in magnitude than ordinary negligence. It was materially more want of care than constitutes simple inadvertence, an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.

Timmerman presented evidence that the tree and power lines at issue could not be viewed properly from the road, but required an on-site, on-foot inspection. He also presented evidence that NSP failed to trim the tree near the lines and allowed them to become overgrown with vines and vegetation.- But the Court said that this evidence did not rise to the level of gross negligence. NSP did not demonstrate an “indifference to present legal duty” nor did it act without “scant care” or “slight diligence.”

NSP had most recently trimmed this tree within NSP’s policy of trimming every four years. Since 1990, NSP had routinely checked the power lines at issue here in accord with the National Electric Safety Code (NESC). NSP representatives have viewed the power lines and trees from the road when driving through the area. NSP also trimmed portions of the tree after the first power outage to restore service. Although, the Court found, the evidence suggests that NSP could have more diligently exercised its duties, that evidence only raises the question of ordinary negligence, for which NSP is not liable under its own tariffs.

As for the Mangusons, the Court held that they had no legal duty to protect Timmerman because they did not have a “special relationship” in which Timmerman had entrusted his safety to the Mangusons. The parties’ relationship as neighboring farmers does not fall into any of the limited number of “special relationships” that the Minnesota supreme court has recognized. Although Timmerman contended the Mangusons had a duty to inspect and repair the tree or else warn him of the dangers on their land, the Court held that the theories of duty and liability don’t apply here because Timmerman was not an “invitee” or “licensee” on the Mangusons’ property. Furthermore, the Court said, even if the Mangusons knew the old tree was near the power lines, knowledge of a dangerous condition, by itself, without a duty to protect, was not sufficient to establish liability for negligence.

Given that no legal duty existed, Timmerman’s negligence claim against the Mangusons could not stand.

– Tom Root

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Case of the Day – Friday, December 7, 2018

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THAT DOES NOT MAKE SENSE

The news report noted in yesterday’s “And Now the News” feed nagged at me all day. You recall, the report that an Elkhart, Indiana, resident got up one morning to discover that the City had cut down a beautiful 33-foot spruce in his tree lawn – that strip of grass between the sidewalk and street – for use as the municipal Christmas tree.

That does not make sense. Unless Indiana is different from most of the other states in the nation, a property owner whose property lies along a highway (known as an “abutting landowner”) is deemed to own the land to the middle of the highway, with the highway and portions beyond it merely reserved to the City or State (or whatever political subdivision it might be) as a “right-of-way.”

The thing about a right-of-way, which is simply one flavor of an easement, is this: the political entity (we’ll just say “City” here, because that’s the bad guy in the news report) is entitled to use the right-of-way for an intended purpose, a highway. If there comes a time when it ceases being a highway, the right-of-way  is extinguished, and the landowner is free to use the property all the way up to the centerline of the old road as he or she wishes.

And that’s what bothered me so. No one would question the City’s right to remove a tree that somehow created a hazard to the public using the highway. That is simply a reasonable exercise of the City’s privileges under the easement. But here, the City decided to save a few bucks by cutting down a free Christmas tree, not to facilitate use of the highway but instead for the purpose of decorating another part of town.

The article suggested that maybe the whole episode resulted because a prior owner has asked that the tree be removed. Elkhart Building and Grounds Department head Mike Lightner said, “We thought we were doing a good thing by getting a tree removed from the tree lawn, for a resident who wanted it removed, and being able to repurpose it as a Christmas tree for other people to enjoy it instead of hauling it away, while saving the city some money.”

Maybe so, but the City should not be imperiously telling people that it owns the trees in the tree lawn. It can do what it likes with the tree lawn, as long as the act is reasonably related to the purpose of its right-of-way. But it does not “own” the trees.

While I was researching the issue, I stumbled across the obverse situation, where a homeowner who was hurt by a falling tree in the tree lawn blamed the City for not reasonably using its right-of-way, more particularly, not properly discharging its duty to inspect.

Czaja v. Butler, 604 N.E.2d 9 (Ct.App. 3rd Dist. Indiana, 1992). Karen and Joseph Czaja lived along U.S. Highway 6 in Butler, Indiana. There were three trees located on the State of Indiana right-of-way in the front yard of their home. On January 25, 1990 two severe storms blew through the city, causing severe damage in the area and blowing over several trees. The first storm dropped a 12” diameter limb from one of the trees in Czajas’ front yard onto U.S. 6. The City removed it after the first storm passed through.

But later in the day, a second storm hit. Karen was returning from picking her children up from school during the storm. As she was waiting to turn into her driveway from the street, the tree closest to her driveway fell on top of her car, injuring her.

The storms that day caused extensive damage. Roughly eight whole trees were uprooted or broken off, and many others lost large limbs or parts of their trunks.

The Czajas sued the City, alleging city employees were negligent in failing to inspect the tree in front of the Czaja home and in failing to remove the tree which the city knew, or should have known, was dangerous. The City moved for summary judgment, which the trial court granted.

The Czajas appealed.

Held: The City was not negligent.

The City’s evidence described the storms’ intensity that day, including the facts that eight trees were blown over, four other cars were struck by fallen trees and an uprooted tree fell onto the roof of the Butler Quick-Mart. In addition, it filed deposition testimony of the City superintendent that he inspected the Czajas’ tree the following day and found that while the core was rotten to within four inches of the outside diameter of the tree, there were no outwardly visible signs that any part of the tree was dead or rotten. The evidence showed that before the tree fell, the superintendent had no actual notice that the tree was rotten. The tree had green foliage two years before when Joe Czaja spoke to him about removing it so that Czajas could widen their driveway.

In their depositions, the Czajas both admitted that before the tree fell, they had no reason to believe that the tree was likely to fall. Nevertheless, at the trial court, they pressed the argument that the City had an absolute affirmative duty to maintain an inspection procedure concerning all the trees located in its right-of-way along the highway.

The appellate court rejected the Czajas’ position, holding that while the City has a duty to keep its streets reasonably safe, the duty is only triggered when it has actual or constructive knowledge of the dangerous or defective condition. Here the City’s established it neither had knowledge that the tree was defective, nor did it have any reason to know the dangerous condition of the fallen tree.

All the Czajas were able to show was that during the years they had lived there, dead branches occasionally fell from the tree, the sidewalk had buckled from tree roots, and some erosion showed next to the curb near one of the trees.

The Court held that the Czajas’ evidence was insufficient to raise a genuine issue of fact requiring trial. “We take it to be common knowledge that mature trees, as these were described to be, have limbs and branches that die and occasionally fall from the tree,” the Court ruled. “It is also a common experience that the root systems of such trees buckle and crack cement sidewalks laid too close to the tree. Indeed, the city superintendent stated in his deposition that he attached no particular significance to these conditions. The Czajas have not pointed to any evidence supporting the notion that the city should have been forewarned in this particular instance that the tree was in danger of falling. It would be nothing but sheer speculation to draw that conclusion from the evidence relied upon. It follows that the summary judgment was properly granted.”

– Tom Root

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