Case of the Day – Friday, March 20, 2026

Posted on March 20, 2026 by TLRoot tagged.

JUST AN OLD-FASHIONED LOVE SONG …

The other day, I had a faithful reader ask whether he could use the Massachusetts Rule to trim a neighbor’s pesky oak tree back to the property line. “Of course,” I said, with some important caveats.

The question got me thinking last night about the Massachusetts Rule. It’s good sport these days to criticize the Massachusetts Rule — that landowners are limited to trimming tree roots and branches back to the property as the exclusive remedy for encroachment by a neighbor’s tree — as being a relic of a time gone by when everyone lived in a rural or semi-rural area and times were simpler. The more modern Hawaii Rule — that permits a landowner to sue for damages and injunctive relief when the encroachment causes “sensible harm” — makes more sense in urban environments and in our modern-day (and, dare we say, litigious) society.

The Virginia Supreme Court said as much in Fancher v. Fagella. And North Dakota weighed in with Herring v. Lisbon Partners Credit Fund. When it comes to the old Massachusetts Rule, it’s pretty much “you hold him down, and we’ll kick him.”

Call me an apostate, but I’m skeptical that the Massachusetts Rule’s demise is such a good thing. So today, we’ll sing a love song to the Massachusetts Rule. And a reprise of Kentucky’s leading encroachment case provides the perfect illustration. Schwalbach’s neighbor, Forest Lawn Memorial Park, had trees that were dropping leaves and twigs that were as dead as the cemetery’s patrons. When Schwalbach sued, the Court held that the only remedy when branches behave like normal trees – specifically, by dropping twigs and leaves – is Massachusetts-style self-help.

Tennessee criticized the approach 17 years later as old-fashioned in Lane v. W.J. Curry Sons, but the plain fact is that the Hawaii Rule would have had precisely the same outcome: under that rule, branches dropping a normal load of twigs and leaves were not causing actual, sensible harm. No court would have intervened to order any outcome other than the one found in the Schwalbach case.

The case is a perfect example of how the facts of the case — be they extreme (such as in Virginia’s Fancher case or North Dakota’s Herring case) or slight annoyance (such as in today’s case) — drive the decisions. It’s not just that hard cases make bad law, as I pointed out yesterday: the law is always driven by the facts of the case. A careful comparison of the decisions establishing the Massachusetts Rule to the decisions favoring the Hawaii Rule suggests that the rules may not be very far apart at all.

Schwalbach v. Forest Lawn Memorial Park, 687 S.W.2d 551 (Ct.App.Ky. 1985). The Schwalbachs owned an apartment building located next to the Forest Lawn Cemetery. They bought the property in 1969. By 1972, they were whining that overhanging limbs from some of Forest Lawn’s trees dropped twigs and leaves and other detritus. What a shocking indignity.

Forest Lawn trimmed some of the branches, but the problem persisted. The Schwalbachs were more into brickbats than chainsaws. They never trimmed any of the overhanging branches themselves but were content to let their mouthpiece do their work for them in court.

Forest Lawn will handle the dead people … but the Schwalbachs are responsible for the dead leaves.

The Schwalbachs replaced their flat roof with a pitched one at the cost of $14,300, the result of damage done by an accumulation of leaves and twigs. The trial court found that the damages resulted from normal deadfall of leaves and small debris from the trees. It applied the Massachusetts Rule set forth in Michalson v. Nutting, concluding that the Schwalbachs should have removed the offending limbs back to the boundary line.

The Schwalbachs appealed.

Held: Kentucky follows the Massachusetts Rule. The Court rejected the Schwalbachs’ argument that Kentucky should follow the rule that every owner should be held responsible for private nuisances on real estate, essentially an ordinary negligence rule. The Court observed that “[i]mposing liability upon a landowner for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees.”

The Court did suggest that were the tree in question dead and likely to fall and cause serious injury, “[a] claim for damages or removal of such a tree might be based on the theory of negligence for damages or nuisance for removal.”

This decision was criticized by the Tennessee Supreme Court in Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn., 2002) as among those antiquated cases that didn’t permit any remedy for encroaching branches and roots beyond self-help.

– Tom Root

Case of the Day – Thursday, March 19, 2026

Posted on March 19, 2026 by TLRoot tagged.

I CAN SEE CLEARLY NOW…

It’s easy to dismiss the belly-aching of people who claim that their view of the ocean, the mountains, the lake, whatever, has been ruined by someone else’s construction, or even – as we have seen all too often – by trees that grow too tall. But it’s a different matter when your own 0x is the one being gored.

Thanks to the nosy people at Google Earth, we can clearly see the problem that resulted in today’s case from 435 miles out in space. The parties to the kerfuffle – the Ceynars and the Barths – are clearly more than one missed paycheck away from a cardboard box. And for a lot of people, it’s hard to muster up a lot of sympathy for someone who claims a diminished view of the prairie reduced their home value by an amount that would buy almost half the average U.S. home.

Still, it’s easy enough to understand—if not to empathize—with the consternation you must feel when you spend a big chunk of money in expectation that you’ll enjoy watching the sun set on the prairie while you sip Mai Tais, or whatever the 1% in North Dakota like to sip.

Clearly, the Ceynars were sufficiently exercised about this that they spent lavishly on lawyers, all the way through the North Dakota Supreme Court. It did not do them much good, because it turns out that a property owner’s right to perpetually enjoy the view that existed on his and her property on move-in day is simply too contingent, too mushy, too prone to generate litigation rather than progress, for any court to infer its existence – at least absent a well-written easement signed by everyone involved that establishes the right.

Ceynar v. Barth, 904 N.W.2d 469 (N.D. 2017). The Ceynars and the Barths are neighbors at The Ridge at Hawktree, a Bismarck subdivision (that appears not to be Section 8 housing) near a golf course. Both families are members of the homeowners’ association. Before the Ceynars purchased their home, Mr. Barth won approval from the Association to build a “pool house” on his property, connected to his house with a breezeway. After the Ceynars occupied their place, the Barths commenced construction, whereupon the Ceynars complained to the Association. They claimed the pool house would block their view to the north and west toward the Hawktree Golf Club.

After the Association did nothing, the Ceynars sued the Barths and the Association, alleging breach of contract and nuisance. They claimed the pool house violated restrictive covenants and unreasonably interfered with the enjoyment of their property and diminished its value. Mr. Barth and the Association moved for summary judgment dismissing the action. The district court granted the motion, concluding the pool house did not violate any of the Association’s restrictive covenants. As well, the trial judge said, under N.D.C.C. § 42-01-01, “a nuisance consists in unlawfully doing an act or omitting to perform a duty,” and the Barths’ construction of the pool house was completely lawful.

The Ceynars appealed.

Held: It’s party time at the Barths’ pool house.

The Ceynars argued that the “pool house” violated the restrictive covenants governing the Hawktree development, because Section 4 of those rules – entitled Nuisances: Construction Activities – stated that “no other nuisance shall be permitted to exist or operate upon any Lot or other property so as to be offensive or detrimental to any other Lot in the vicinity thereof or to its occupants.” The Supreme Court, however, found that the restrictive covenant clearly related in context to construction activities “rather than the finished product.” At any rate, the Court said, the homeowners association has the authority in its sole discretion to determine whether a nuisance exists for purposes of the covenant. The Association approved the Barths’ construction plans and found no nuisance exists.

But, the Ceynars complained, there was an implied covenant that prohibited the pool house because it “destroys the open prairie look and overall theme of the community in the subdivision.” The Ceynars relied on a text message sent by, and deposition testimony of, the Association’s secretary indicating fences, outbuildings, and trees were not allowed in order to preserve an “open prairie look” in the subdivision, and on the Association president’s deposition testimony that the covenants require an “overall theme of the community.”

The Court made short work of that claim, holding that implied covenants are not favored by the courts and that, at any rate, the Ceynars could point to no evidence that these vague statements had anything to do with the developer’s plans or that the Barths were aware of a policy favoring the “open prairie look.” North Dakota precedent clearly holds that covenants will be given effect only “when clearly established,” and this implied covenant was as solid as Jello.

The meat of the Ceynars’ claim was that the district court erred in dismissing their statutory private nuisance claim against the Barths. Section 42-01-01, N.D.C.C., defines a nuisance as “unlawfully doing an act or omitting to perform a duty, which act or omission… annoys, injures, or endangers the comfort, repose, health, or safety of others; or in any way renders other persons insecure in life or in the use of property.” The Ceynars complained that before the pool house, “we enjoyed the open prairie look and feel. Not only have we also lost views of the Burnt Creek Valley and the golf course because of the pool house, the size and scope of the pool house and breezeway towers over our property, depriving us of anything that could be considered an open prairie look.” In fact, they presented an appraisal of their property indicating the obstructed view lowered its value by $140,000. They also presented photographs taken before and after construction of the pool house, demonstrating their obstructed view.

The district court dismissed the statutory nuisance claim, reasoning that the construction of the Barths’ pool house was lawful, so there could be no statutory nuisance. The Supreme Court agreed with the Ceynars that this holding was wrong, but any sense of victory they experienced was short-lived.

The Ceynars argued the district court failed to engage in the required balancing test, “a balancing of the utility of defendant’s conduct against the harm to the plaintiff, plaintiff’s attempts to accommodate defendant’s use before bringing the nuisance action, and plaintiff’s lack of diligence in seeking relief.” The Supreme Court acknowledged that while “scenic views may enhance the value of a tract of land… [and] such a benefit, while intangible may enhance market value, with buyers willing to pay extra for the view,” that did not translate to a legally protectable interest. “Traditional American property law fails to protect access to light over neighboring land,” the Court held, at least “in the absence of an express easement or covenant, advantageous views are unprotected.” Because a landowner has no right to an unobstructed view, the size and shape of a neighboring structure cannot be a nuisance, even if it causes a material reduction in market value.

This rule is necessary, the Court observed, because

extending the law of nuisance to encompass obstruction of view caused by lawful construction of a neighboring building would unduly restrict a landowner’s right to the free use of property, interfere with established zoning ordinances, and result in a flood of litigation. Because every new construction project is bound to block someone’s view of something, every landowner would be open to a claim of nuisance. If the first property owner on the block were given an enforceable right to unobstructed view over adjoining property, that person would fix the setback line for future neighbors, no matter what zoning ordinances provide. The practical implication of such a right would be the need of every ‘servient’ owner to obtain a waiver of the easement of view created in the “dominant” landowner. Such obstacles to land ownership and development, for the sake of a clear view, hardly commend themselves.”

Inasmuch as the Ceynars had no cognizable right to an unobstructed view from their property, the Barths’ construction of the pool house as a matter of law did not unreasonably interfere with the Ceynars’ use and enjoyment of their property.

– Tom Root

And Now The News …

Posted on March 19, 2026 by TLRoot tagged.

Cheyenne, Wyoming, Cowboy State Daily, March 18, 2026: Hunters Say BLM Wiped Out Favorite Hunting Location With Tree Removal

Russian olive trees are widely regarded as an invasive species and the general rule among land management agencies is to get rid of them. But when that was done on Bureau of Land Management (BLM) land along Dry Creek near Greybull, it ruined some of the best pheasant hunting in the entire region, some sportsmen said. To make matters worse, the public apparently wasn’t informed or given a chance to comment on the Russian olive removal plan before it happened, Colin Simpson of Cody told Cowboy State Daily. “It’s hard to understand why that action would be taken on public land without notification of the public beforehand,” said Simpson, a former Wyoming legislator and son of the late U.S. Senator Alan Simpson. He understands the need to control Russian olive as an invasive plant species, but thinks officials went overboard in Dry Creek…

Washington, DC, WUSA-TV, March 18, 2026: Tree safety under review after deadly crash, NPS conducting additional assessments along affected areas

The National Park Service says it is reviewing maintenance practices and conducting additional assessments after two separate crashes in which trees fell onto moving vehicles along parkways in the D.C. region, including one that killed a Frederick man. The crashes, which happened just one day apart, are raising new concerns about roadway safety and whether more could have been done to prevent them. Elik Topolosky, 39, was killed Thursday when a tree fell onto his car along the George Washington Memorial Parkway. His brother, Uri Topolosky, described the loss as sudden and devastating. “It’s a one in a trillion insanity. What are the chances a tree comes down on a highway when you are driving, and he was the only victim?” Uri Topolosky said. “It’s just so heartbreaking right now.” Uri Topolosky said his family has been searching for answers about how the incident happened and whether it could have been prevented…

Denver, Colorado, KUSA-TV, March 18, 2026: Winds topple historic Colorado tree

A massive Engelmann Spruce believed to be the oldest and tallest tree in Georgetown came crashing down Monday, destroying a 50-year-old gazebo and damaging historic park infrastructure after powerful winds swept through the state. Estimated to be 150 years old and planted when Georgetown City Park was established in 1890, the tree snapped under the force of recent high winds. The falling tree narrowly missed a historic fountain and some of Colorado’s first electric lights before striking picnic tables, historic benches, and the beloved gazebo. Longtime Georgetown resident Peter Werlin, who has lived in the area since 1964, described the moment of impact. “At 10 a.m., we were over in our house and we heard a tremendous bang,” Werlin said. For Werlin, the loss was deeply personal. “I was married in 1988, so our wedding photos were taken inside the gazebo, as are so many people from Georgetown,” Werlin said. “Everybody’s very sad about it…”

Providence, Rhode Island, WPVI-TV, March 18, 2026: Arborist urges homeowners to check trees for hidden dangers

Cleanup crews were still at work on the 100 block of Timber Springs Lane in Exton, Chester County, where a tree crashed into a home Monday night. “All of sudden it was like a bomb hit…the whole house shook and the tree fell on top of the house,” said homeowner Jacqui Mershurle. The tree narrowly missed seriously injuring her adult son, who was sleeping in his bedroom when it came down. “He said if he’d slept on the other side of the bed…he wouldn’t be here,” Meshurle said. While her son survived, another incident ended tragically. Authorities said Gilberto Senecio Feregrino was killed while cleaning up a fallen tree on Earles Lane. As he worked, a tree from a neighboring property suddenly fell, striking him. “We’re looking for mortality in the upper canopy…so dead limbs directly over our heads,” said John Rockwell Hosbach, a consulting arborist who evaluates trees and testifies in civil cases…

St. Louis, Missouri, KMOV-TV, March 16, 2026: Tree Trouble: Warning signs a tree could come down in a storm

Strong winds and stormy weather like we’ve been having lately can bring weakened trees and limbs down on property, causing thousands of dollars in damage. The best way to prevent it is to catch disease and weakness in trees before they can fall over. We went to Forest Park with Alec Hall, ISA Certified Arborist with The Davey Tree Expert Company, to talk about the warning signs that a tree may need treatment or removal. He pointed out a tree with a wound channel in the trunk. “Most certainly when you see something like this, with the heartwood exposed, it’s worth having an arborist look at it,” Hall said. “Additionally, we can see carpenter ants are starting to boar the area out,” he said, pointing out tiny holes in the heartwood. “Now carpenter ants don’t kill trees, but they can hurt the integrity of the tree by taking out the heartwood,” he explained. “Another thing we want to watch for with our trees is if we have an area where the roots seem to be maybe moving, or where the roots are may be more exposed. That’s worth keeping an eye on,” Hall said…

Charlotte, North Carolina, WCNC-TV, March 16, 2026: Who’s responsible if a tree falls on your property?

A line of strong thunderstorms took down trees and power lines Monday, leaving residents across the Charlotte area with a trail of damage to clean up.
The damage left many people wondering who is responsible for the cleanup if a tree from their neighbor’s yard falls onto their property and damages their home or belongings. The Insurance Information Institute says if a tree lands on your home, you should immediately file a claim with your insurance company. After you file the claim, an insurance adjuster may collect your neighbor’s information in a subrogation process. If this happens and your insurer is successful, you may be reimbursed for your deductible.
Attorney Gary Mauney said if you notice a tree in your neighbor’s yard is rotten, you should tell them so they can fix the issue. And if they don’t? “But it matters if you’re proving negligence against someone, then one of the ways that it would help you to prove that, of course, is if you could show that they knew that the tree was rotten or infirm, or that there was something wrong with the tree,” Mauney said…
Reno, Nevada, Gazette Journal, March 16, 2026: Reno’s least-favorite tree back in full bloom

Reno’s least favorite tree, the Bradford pear, is back in full bloom. The City of Reno’s Urban Forestry Commission cares for 2,137 Bradford pear trees. That makes it the most common publicly maintained tree in the city, at about 8% of the total inventory. That doesn’t factor in the thousands more that grow on private property in the city. And for a few weeks each spring, they’re utterly offensive to everyone within sniffing distance. The tree’s specific odor is in the nose of the beholder, although people generally agree that it’s putrid. The good news: The city has a self-imposed moratorium on planting new ones on public property. In fact, the number of Bradford pear trees on city property is down from last year’s number…

Toledo, Ohio, WTOL-TV, March 16, 2026: Tree removal companies see increase in calls after wind storms bring down hundreds of trees

Strong winds over the past couple of days have brought down trees across the area, bringing headaches for homeowners but lots of business for tree removal companies. Steve Pryba, owner of Steve’s Tree Service, said when there are big storms like this, business is non-stop. “Insane,” he said when talking about the last couple of days. “Call after call.” Pryba estimated he’s gotten at least 150 calls since Friday about downed trees, removals and cleanups. He had been at multiple sites throughout Monday, including one house where a giant tree partially fell on a house. “We got it off the house,” he said. “The guy got lucky…”

San Francisco, California, Chronicle, March 15, 2026: The Bay Area’s ‘city of trees’ is cutting down hundreds of historic eucalyptuses

For as long as anyone in Burlingame has been alive, the town’s main thoroughfare has been lined with eucalyptus trees. They form a silvery canopy above 2.2 miles of El Camino Real, earning the stretch a spot on the National Register of Historic Places. But in January, the state’s transportation department rolled cherry-picker trucks into Burlingame and began taking chainsaws to the 150-year-old trees. Caltrans, which manages this section of state road, has already felled about 80 of the roughly 400 eucalyptus trees. Over the next two years, more than 80% of them will be removed and replaced by saplings…

Seattle, Washington, Capitol Hill Seattle, March 15, 2026: Pikes/Pines | Scarred, stunted, smothered, and peed on — Capitol Hill’s street trees are hardcore

Every once in a while I like to take a whole day and just walk around Seattle. I’ll wander about admiring plantings, architecture, and all the beautiful variety cities have to hold. Usually I find myself being surprised by the birds I find in the busiest blocks and realize I forgot about a specific tree planting. Seattle, and Capitol Hill truly are beautiful places worth admiring in the style of a slow poke, poking about. This most recent meander, I had trees on my mind. Despite Seattle’s urban canopy loss, (the most recent data shows a loss of about 255 acres of trees between 2016 and 2021) the Hill and Seattle in general are home to some beautiful trees, both planted purposefully or growing wild. However, while Seattle aims to increase tree cover by 30% by 2037, I can’t help but wonder what it looks like for the trees once they’ve been planted. As an arborist and lifelong gardener, I already knew it was hard being a street tree. But I was confronted by some horrible examples on my walk. Once a tree is planted and manages to survive into maturity, it still has to contend with a host of trials. A tree in the wild has to deal with wounds, disease, weather events, and more. But our urban street trees have even more piled on. They are stuck between sidewalks, power lines, and roadbeds. They are mismanaged and mangled. A cherry I saw on Harvard between Pike and Pine had been hit by cars, mangled by bad pruning, tagged, and even lit on fire. Frankly, it’s astonishing that we have any trees alive and lining urban blocks at all

Colchester, Vermont, Vermont Public Radio, March 15, 2026: Plant a small tree that bears fruit for birds, pollinators and you

The cornelian cherry or cornus mas isn’t a cherry tree at all, but rather, in the dogwood family. This low-maintenance tree grows up to be relatively small in stature but packs a four-season punch, with yellow flowers in early spring, bright red summer berries and attractive foliage and bark in fall and winter. The tree is native to regions like Ukraine, Turkey and Georgia and is so-named possibly due to the berries’ resemblance to carnelian gemstones. When the tree’s berries form, birds and another animals (including humans!) can enjoy the sour, pitted fruits. In its native regions, the cornelian cherry is grown commercially for its fruit to be used for medicinal purposes, preserves and juices. The fruits can also be salted and pickled like olives. The easy-to-care-for tree grows slowly and reaches about 15 feet tall at maturity and will blossom consistently in spring. It’ll be one of the first plants in your landscape to flower, providing a critical food source for pollinators who’ve made it through the winter and are looking for food…

Tyler, Texas, Morning Telegraph, March 14, 2026: Han: What is killing my plants and trees

A large tree and a beautiful rose were gone in my landscape over the years. The tree was an October Glory Maple (Acer Rubrum). The rose bush was the Knockout Rose (Rosa Cultivar). Let me first describe for you the symptoms of the maple tree that I never noticed. In the early summer, the Maple tree’s leaves turned red from the top of the tree down. I thought it was a gift, as I had just moved from Abilene to East Texas and was not familiar with Maple trees. It was exciting to see the red maple leaves during the summer. I assumed it was normal. Several months passed, and the leaves turned black around the edges. The black leaves fell in the wind like a blizzard. The fallen leaves covered my green grass yard. I rushed to a neighborhood garden store. One of the employees recommended I spray a fungus killer. I did it. It looked as though it worked. New leaves came out. But it did not last long. The new leaves turned brown and eventually fell. I bought a more substantial and complicated fungus-killer spray. I sprayed it all over the tree. Sadly, it did not work either. I inspected and pulled off damaged bark. I found lots of larvae on the tree. There were no windbreakers in my subdivision, which was developed on a ranch. Strong winds hit the thin maple trees, causing them to bend significantly. Winter chill attacked the weakened trees’ bark. Maple sap, coming out of the split bark during the spring, attracted insects. Insects laid eggs under the bark and made an insect family’s home. I did not notice it until the tree was almost dead…

Santa Cruz, California, Local, March 12, 2026: Santa Cruz Mountains residents clash with PG&E over tree cutting

Cathy Hoeft stood on her patio on a cloudy day in late January – she was anxious. The ground outside was still slick with moisture from the New Years Eve rain storm that soaked all of the Bay Area for days. Outside, she watched a crew of workers as they cut down trees on the slope across the creek from her Lompico home. With every felled tree, Hoeft couldn’t help but ruminate about what might happen to the land and, subsequently, her home. The trees’ roots hold the mountainside together, she said, and in heavy rain, the steep slope has been known to give way to landslides, destabilizing the ground beside her and her two neighbors’ homes. Over the years, landslides have pushed the creek closer to the dirt road that connects the three houses. As the creek moves, it erodes the road, threatening to leave all three stranded. Hoeft is one of many San Lorenzo Valley residents growing frustrated with Pacific Gas & Electric Co.’s vegetation management program, which aims to reduce wildfire risks by trimming or removing trees near power lines. In addition to concerns about erosion and environmental damage, residents described redwood trees felled by mistake, a lack of notice from PG&E prior to cutting trees on private property and challenges holding the company accountable for property damage…

Seattle, Washington, Times, March 12, 2026: Windstorm downs tree, crushing man in camper outside Carnation

A 50-year-old man was badly hurt Wednesday night when a tree fell on a camper near his family’s home in Stillwater, north of Carnation, said Eastside Fire & Rescue. A family member inside the home on the 1100 block of Lake Joy Road Northeast called 911 to report that a 70-foot tree had come down a little after 8:20 p.m. while winds raged, said spokesperson Catherine Imboden. It took rescue crews about 30 minutes to reach the man — “much longer” than expected — because fallen trees and downed power lines were cutting off access, Imboden said. When crews arrived, family members were trying to keep the man calm, Imboden said. It wasn’t until about 10 p.m. that crews were able to lift the tree off the man inside the camper, Imboden said. The nature of his injuries made the operation “extremely dangerous and technical” as crews worked to make sure he remained stable, Imboden said…

Portland, Oregon, Oregon Public Broadcasting, March 12, 2026: How Oregon scientists are solving the problem of Crater Lake’s dying trees

In 2002, Crater Lake National Park ecologist Michael Murray thought the park’s majestic whitebark pine trees were as good as gone. An invasive fungus called white pine blister rust was killing the rugged, long-needle pines that line the rim of Mount Mazama’s crater and frame its gleaming blue lake. And there was nothing he could do to stop it. “The way I see it now, the extinction of whitebark pine in the park is imminent,” he told OPB’s “Oregon Field Guide” back then. “I expect us to lose about 90% of the whitebark pine in this park — at least.” The blister rust fungus was accidentally introduced to the U.S. in a shipment of infected nursery trees from Europe around 1900. Since then, it’s wiped out millions of whitebark pine trees across the western U.S. and threatened the survival of the species. But Oregon scientist Richard Sniezko saw a way to save these trees from extinction using a method that can also help protect other species A geneticist with the U.S. Forest Service, Sniezko told Murray there might be some whitebark pine trees with natural resistance to the blister rust disease. He had already found genetic resistance to blister rust in other pine trees through his work with the Dorena Genetic Resource Center in Cottage Grove, Oregon…

Fairfax County, Virginia, FFX Now, March 11, 2026: Fairfax County offers free trees to residents in bid to expand canopy

Fairfax County is teaming up with the Arbor Day Foundation to give away free trees to residents as part of its efforts to nurture the local tree canopy. Starting today (Tuesday), all county residents can sign up online to receive up to two one-gallon trees that will be delivered directly to their homes, according to the Fairfax County Department of Public Works and Environmental Services’ (DPWES) Urban and Community Forestry Division. The deliveries will also come with stakes and protective shelters to help recipients maintain their new trees. “The trees are available on a first-come, first-served basis,” DPWES said. According to the county’s Office of Environmental and Energy Coordination (OEEC), about 55% of the county’s land is currently covered by forest or neighborhood trees, exceeding smaller localities in the area, including Herndon, Arlington County and Alexandria. However, the amount of coverage varies drastically by census tract, from little to none in urban centers like central Tysons to over 60% in more rural areas or places with significant parkland like Mason Neck and Great Falls…

Chantilly, Virginia, Northern Virginia Magazine, March 11, 2026: Maryland Man Preserves Japanese Cherry Tree’s Legacy

When Jan Herman arrived at the Navy Bureau of Medicine and Surgery in Washington, DC, in 1979, he expected history and government work. What he didn’t expect to find was a tree. Tucked between a redwood fence and a parking lot stood a gnarled, aging cherry tree. Its bark peeled, its trunk appeared twisted and weakened by rot. “Half the trunk was hollow,” says Herman, who worked as the Navy’s medical historian for 33 years. “Which is what happens to Yoshino cherry trees … after about maybe 65 to 70 years, they become very susceptible to disease.” And yet, every spring, delicate pink and white blossoms burst from its branches. Herman investigated and learned the tree had a remarkable past. “When I first saw it, I did some research on the Old Naval Hospital and found out that these were transplants that had been down on the Tidal Basin,” he says. “This tree was one of those original trees from 1912. And, being a historian, I got very excited about the possibility of — wow — this is a little icon right here in Foggy Bottom…”

Washington DC, Post, March 11, 2026: The tiny forests that could save endangered trees

David Easterbrook is an unlikely influencer. The retiree has more than 1 million followers watching him water his plants on Instagram. Easterbrook doesn’t have your average backyard garden. The horticulturalist and former curator at the Montreal Botanical Garden is one of the world’s leading experts in bonsai. The art of bonsai originated in Asia more than a thousand years ago. The word translates, roughly, to “potted tree,” and growing a bonsai involves strategically and often aggressively pruning a plant and its roots to create a miniaturized version. For Easterbrook and other experts, bonsai is a fascinating and fun hobby, but it also has potential as a tool for conservation. Bonsai trees can be remarkably long-lived — some examples in Japan are hundreds of years old — and Easterbrook sees them as a way to ensure species persist in an uncertain environmental future. Trees threatened by climate change, habitat loss, overharvesting and invasive species can often thrive in a smaller form. “Bonsai preserves genetics,” he says. “Every tree has an ecological memory in miniature. So, in that sense, bonsai practitioners are sort of very quiet conservationists…”

Discover Wildlife, March 10, 2026: Scientists looked beneath one of oldest trees on Earth. What they found is astounding

The towering conifers of Chile’s southern rainforests do far more than shape the skyline. Research in Biodiversity and Conservation reveals that these ancient trees are hubs of hidden biodiversity, highlighting their crucial role in the forest ecosystem. The temperate rainforests of the Chilean Coastal Range are home to many unique and important species, including an endangered conifer known as alerce. These slow-growing trees can grow as tall as the Arc de Triomphe, and as wide as a shipping container. Renowned for their longevity, some individuals have lived for over 3,600 years, making alerce the second-longest-lived tree species on Earth (after the bristlecone pine). Alerce forests are found along the coasts of Chile and in the foothills of the Andes, but their range has halved, as trees were felled for wood or cleared for pasture. Now, with added pressure from climate change and other threats, researchers worry about the repercussions…

Pittsburgh, Pennsylvania, WTAE-TV, March 11, 2026: One hundred trees will be removed to make room for NFL Draft Theater on North Shore

Construction for the NFL Draft Theater is scheduled to begin on March 25, but before it is completed, the Pittsburgh Local Organizing Committee says dozens of trees will be taken down to accommodate theater space. Notices have been posted on trees along Art Rooney Drive and West General Robinson Street that are marked for removal. City Forester Lisa Ceoffe says many of the trees will be replaced after the draft, at least 57 in the immediate area along West General Robinson Street and Art Rooney Avenue. “It will lose the canopy that’s here currently, but it gives us the opportunity to reimagine the space,” she said. “Right now, the trees that are here are in smaller tree pits, so we’ll have larger tree pits.” Ceoffe says the master plan is to add more trees in the city and county, in addition to replacing the trees that will be removed for the draft. “So those trees will be planted right back into these locations, and perhaps some larger treatment sizes, but the remaining trees, 200 plus, will go outside the city, into the parks,” she said…

Denver, Colorado, KCNC-TV, March 9, 2026: Denver Water prepares for restrictions, issues PSA for watering trees

For residents of Denver, there’s a fine balance between keeping trees and plants alive through the dry winter conditions Colorado has experienced this year, and conserving water. Both are important, and both can cause potential ripple effects. “We’re still among the worst snowpack that we’ve ever seen on record,” said Greg Fisher, the manager for Demand Planning and Efficiency for Denver Water. “So we’re actively preparing for supplies that won’t fill our reservoirs and ready to start conserving.” It’s something that’s been said all season long. But you don’t need to hear it from the experts; Coloradans have been feeling the effects of dry conditions for months. “Spring, March and April, tend to be some of our wettest months,” Fisher said. “So we’re going to keep watching, but we are preparing for a drought response.” That makes the likelihood of water restrictions in Denver in the coming months nearly inevitable. However, the effects on trees can’t be ignored, and therefore, Denver’s tree canopy…

Eugene, Oregon, LookOut, March 8, 2026: Man cited after refusing to climb down tree in Friendly, invoking warning

An hours-long standoff Saturday, March 7, led to criminal citations against a man who climbed a 100-foot spruce tree in Eugene’s Friendly neighborhood and threatened to pull a handgun, the Eugene Police Department said in a statement. The incident began at about 2:15 p.m., when Eugene police officers responded to reports of an “armed” and “suicidal” man in a tree along the 2400 block of Jackson Street. He was bleeding from a “non-life-threatening, self-inflicted knife wound,” police said. Officers saw the knife and attempted to calm the man. After the man, 36, said he had a handgun on him and threatened to pull it, police sent an emergency message to nearby residents asking them to shelter in place, and the department’s SWAT and Crisis Negotiation Team were activated. Team members tried negotiating with the suspect to come down, but after six hours, including with the help of the suspect’s family members, those attempts were unsuccessful. Police and firefighters used drones to get a closer view of the suspect and confirmed he was not armed with a handgun. He eventually dropped the knife, which officers recovered. By 8 p.m., the man was still in the tree and refused to come down…

Case of the Day – Wednesday, March 18, 2026

Posted on March 18, 2026 by TLRoot tagged.

CLIVEN BUNDY HAS A GUN… OHIO HAS THE COURT OF CLAIMS

Recently, we had a kerfuffle in our home county over pipeline company employees giving notice to people that they would be coming onto private land to survey for a new underground pipeline. The nature lovers on the left united with the libertarians and assorted wingnuts on the right to argue that the state could not let these pipeline renegades trespass on our sacred private homesteads in order to plan an environmentally cataclysmic pipeline. Think “pipeline construction equals K-T extinction event,” and you get the idea.

You may remember that famed anti-government rancher Cliven Bundy had a similar problem – government functionaries trespassing on his land just because he was letting his cattle trespass on government land. His approach was much more direct, employing caliber .223 (essentially 5.56 mm, although there are differences between the cartridges and loadings we won’t get into here) and ending up with two criminal trials in two different federal courtrooms (and two “not guilty” verdicts, we hasten to add). Clive’s approach was every bit as effective as that of our home county protesters… which is to say “not very.”

Our ad hoc coalition of pipeline opponents lost, of course. They, like many landowners, were unhappily surprised to learn that state laws – written by state legislators, after all – permit state employees, agents, and even employees and agents of public utilities to come onto private land at any time to conduct surveys for public works projects.

That’s what happens when you get in the way of progress. You get both disappointment and a pipeline through your sideyard. But sometimes, some landowners can bite back.

Ron and Maggie bit back, maybe not hard, perhaps just nipped back a little, when the Ohio Dept. of Transportation sent some local yokels onto their land to remove three trees believed to be in a highway right-of-way. But no one checked the R-O-W to be certain, and half of the three trees – yes, your math is right, 1.5 of the 3 trees – were not ODOT’s to cut. What’s more, the county boys seemed to have run bulldozer races through Ron’s and Maggie’s protected wetlands, laying waste to a fragile ecosystem, harming the habitat of the woolly salamander (or something like that), and pissing off the landowners.

Ron and Maggie demanded justice in the Ohio Court of Claims. By the time the Court was done whittling down their claims, they got their measure of justice – but it was a small measure, indeed.

Kerns v. Ohio Dept. of Transportation, 2017-Ohio-7154 (Ct. of Claims, July 25, 2017): Ronald Kerns and Margaret Ruth Leslie owned 18 acres of mostly wooded property, including federally protected wetland with vernal pools that provide a habitat for salamanders. When the State of Ohio had to replace a bridge on a road in front of the property, the State notified the owners that its representatives would be coming onto the land to survey, that they would use due care in doing so, but if there was any damage to the land, the State would pay for it. Like most states, Ohio had laws that authorized state employees to come onto private property for such purposes.

The day after Christmas 2014, crews from the Portage County Engineer’s Office came onto the property and laid waste, cutting down trees inside and outside of the state right-of-way, running heavy equipment across the property, dumping wood chips in the vernal pools (resulting in ecological damage to the wetlands on the property); and leaving large drag marks where larger trees were removed. Ron and Maggie asserted that trees and vegetation on their property were damaged or removed without either their permission or the permits required by the EPA.

The engineer testified he asked Portage County to remove a hickory tree that was larger than 18″ wide, a swamp white oak that was over 50” wide, and a dead tree trunk. He thought the three trees that he had marked to be removed were all within the right-of-way. When he learned that more than those three trees had been removed, he sent an assistant to check on the damage. The assistant found that heavy equipment had been on the property, that the wetland was disturbed, that wood chips had been cast into the vernal pools, that many more trees had been cut down, and that vegetation had been disturbed.

Jason Knowles, a certified arborist, used the Trunk Formula Method to calculate a core value for each type of tree. According to Knowles, Ohio has its own guide for what the value of a tree should be. Knowles examined the tree stumps to determine the species and size of the trees that were removed. Knowles determined that a total of 18 trees were removed, in an area that was 60 feet long by 60 feet wide. Although Knowles observed damage to the vernal pools from the wood chips and damage to the soil due to the heavy machinery tracks, he did not determine a value for either soil compaction or vegetation that was removed. Knowles testified that the value of the trees that were removed totaled $18,200.

ODOT’s expert, Charles Flagg – a real estate appraiser – testified the damage to the plaintiffs’ property had no impact on its market value in that the property was densely wooded and the loss of trees was not substantial and had no effect on the market value of the property.

Held: The Court first concluded that the Portage County Engineer did not trespass on the property. A trespass occurs when a person, without authority or privilege to do so, physically invades or unlawfully enters the private premises of another. Because state law granted ODOT the privilege to cut, trim, or remove any grass, shrubs, trees, or weeds growing or being within the limits of a state highway, and enter private land to conduct a survey for plans and specifications for proposed projects, the agency and its representatives had a privilege to enter plaintiffs’ property and, therefore, did not commit a trespass.

Although ODOT could not be liable for cutting down vegetation within the right-of-way, the Court ruled, plaintiffs could prevail if they were to prove that ODOT removed trees outside of the right-of-way. Here, ODOT directed Portage County to remove three trees in what it assumed was the right-of-way. But the bitternut hickory was not within the right-of-way, and the swamp white oak straddled the right-of-way boundary. ODOT thus trespassed when its agents removed those trees. Accordingly, the magistrate recommends judgment in favor of the plaintiffs on their claim of trespass with regard to the swamp white oak and the large bitternut hickory tree.

While Ron and Marge could not prove that ODOT was liable for treble damages under O.R.C. § 901.51 – because they could not prove ODOT was reckless – ODOT nevertheless was responsible for the removal of one and a half trees on plaintiffs’ property outside of the right-of-way (one of the trees straddled the right-of-way boundary line, although it is not clear how ODOT could have removed only its half). Still, the Court said, the removal of those trees “was not so extreme as to amount to a substantial deprivation of all of the rights of ownership of plaintiffs’ property” and thus did not rise to an unconstitutional “taking” of property in violation of the 5th and 14th Amendments.

What’s more, because ODOT only told the County to remove three trees, it was not responsible for the additional trees, including two green ash trees, two 12” wide bitternut hickory trees, and twelve saplings, that the County Engineer destroyed.

When a party trespasses and cuts trees that are part of a woodland mix and not unique, the ordinary measure of the harm is the difference in the fair market value before and after the cutting. However, the Court said, “there is an exception… in which restoration costs may be recovered in excess of diminution in fair market value when real estate is held for non-commercial use, when there are reasons personal to the owner for seeking restoration, and when the diminution in fair market value does not adequately compensate the owner for the harm done.” The Court held that “destruction of trees that form part of an ecological system of personal value to the owner justifies restoration cost as a measure of damages. In addition, in an action based on temporary injury to noncommercial real estate, a plaintiff need not prove diminution in the market value of the property in order to recover the reasonable costs of restoration, but either party may offer evidence of diminution of the market value of the property as a factor bearing on the reasonableness of the cost of restoration.” Diminution in value is a factor to be considered in determining whether restoration costs are reasonable, but it is not itself an element of damages that must be considered. Finally, in cases involving trespass that results in the removal of trees or other vegetation, “a landowner is entitled to recover reasonable restoration costs, plus the reasonable value of the lost use of the property between the time of the injury and the restoration.”

Plaintiffs’ expert arborist testified that the swamp white oak had an appraised value of $8,498.00 and that the large hickory tree had an appraised value of $4,345.00. The Court found that the Trunk Formula Method is an acceptable way of determining damages in the case.

The appraised value of the trees may not necessarily be the same as restoration cost, the Court said. While there was no change in the market value of plaintiffs’ property as a result of the tree cutting, certainly, the Court said, the three trees “had some value, especially the swamp white oak, in that it was located in a federally protected wetland on plaintiffs’ property, and plaintiffs testified credibly that the trees form part of an ecological system of personal value to them.” The Court found the plaintiffs were entitled to $12,843.00 in reasonable restoration costs and reasonable value of the lost use of the property between the time of injury and the restoration.

– Tom Root

Case of the Day – Tuesday, March 17, 2027

Posted on March 17, 2026 by TLRoot tagged.

DRAINING MY HALF OF THE LAKE

Regular devourers of news know that the vaguely scandalous acronym SCOTUS is not really an intimate body part at all, but rather stands for the Supreme Court of the United States. Likewise, the President is regularly referred to as POTUS, and the First Lady FLOTUS and so on. But you have to be a real policy wonk to ring on a Jeopardy! clue reading “This definition, known as WOTUS, is one of the hottest environmental issues of the day.”

The proper answer is “What are the Waters of the United States?” The definition of what streams, rivers, rivulets and trickles are considered the “waters of the United States,” and thus to be regulated by the Environmental Protection Agency, has been debated since the Obama administration redefined just about everything short of a Dasani bottle to be WOTUS, and thus reachable by EPA clean water regs. The Sixth Circuit United States Court of Appeals has already enjoined the U.S. Environmental Protection Agency from enforcing new “clean water rules.” The Court held, among other things, that the likelihood that the rules were unconstitutional is pretty substantial, because the rules are “facially suspect” (which is the judicial equivalent of holding one’s nose).

After Trump took office, the EPA and Army Corps of Engineers announced in the spring of 2018 that the new WOTUS rule would not become effective until February 2020 to give everyone time to “study them” (code for “figuring out how to kill the new reg once and for all). In late January 2020, the final rule was adopted.

But nothing’s final in politics. After Biden was sworn in, the EPA announced yet another WOTUS change, a change back to the pre-Trump proposal. But then that was placed on hold after the Supreme Court decided Sackett v. EPA, a case challenging the EPA’s expansive interpretation that WOTUS includes anything larger than a mud puddle.

Last year, SCOTUS redefined WOTUS. While the law’s use of the term “waters” generally refers to relatively permanent bodies of water such as lakes and rivers, the Court held, some “adjacent” wetlands also qualify as “waters of the United States” where they are “as a practical matter indistinguishable from waters of the United States” because they have a “continuous surface connection” with a larger body of water, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

All of this got me musing about “waters of the United States,” and the expression’s older cousin, “navigable waters.” That brought to mind Orr v. Mortvedt.

In Orr, our latest installment of neighbors behaving badly, we find a gaggle of adjacent homeowners living around a flooded quarry in Iowa. The owner of the quarry sold off the land in pieces to several buyers; apparently, he may have oversold it a bit.

The Mortvedts made a deal in which they bought land and some real estate under the lake, all the way to the west shore. That’s what the sales agreement said. The problem was that the deed delivered to the Mortvedts at closing didn’t exactly agree, and no one read the fine print.

Later, they got into it with the neighbors, who actually did own some of the land the Mortvedts thought they had bought. The neighbors were frosted because the Mortvedts were boating and fishing on parts of the lake over their land. Eventually, this being the land of the free and all, everyone sued everyone else.

The case went all the way to the Supreme Court of Iowa, which held that the Mortvedts couldn’t get their deed reformed to match the sales agreement because the law didn’t let that happen where an innocent third party was involved. The Orrs — who were the neighbors who would be affected by such a reformed deed — weren’t a party to the original deal. If the Mortvedts got their deed changed to reflect that they owned more property, the Orrs’ deed would necessarily have to be changed to show that they owned less. They weren’t a party to the original deal between the Mortvedts and the sellers, and therefore, it would be unfair to take their land to satisfy the Mortvedts.

As for the widespread boating on the lake, the Supreme Court of Iowa was forced to make a decision of first impression in the state, and adopt the common law rule that for non-navigable water (such as this lake), an owner was restricted to boating and fishing only on the part of the lake which lay over lake bottom that the party owned. This was pretty much an unsatisfactory result — the case discusses at length all of the good reasons for adopting the Scottish rule to the contrary — but as the old legal aphorism goes, “hard cases make bad law.”

Orr v. Mortvedt, 735 N.W.2d 610 (Supreme Court of Iowa 2007). The Twedt family owned a rock quarry and the land surrounding it in Hamilton County. There came a time when the mining of the quarry was discontinued, and the excavated area – consisting of about thirty acres – became a lake. The Twedt family sold the land in a series of transactions over a period of years. Each of the transactions resulted in the conveyance of a portion of the lakebed and land surrounding it. Jeffrey and Susan Mortvedt purchased a tract west and north of the lake, including the northern tip of the lake bed, in 1996. Two years later, Stephen and Shirlee Orr bought a parcel situated primarily on the east side of the lake and including that part of the lake bed located between the parts previously purchased by another party, the Sevdes, and the Mortvedts. The Orrs soon conveyed a piece of the property they had acquired, including a part of the lake bed, to Ronald Cameron.

The Mortvedts argued their property extended to the water’s edge on the west side of the lake, but the Orrs claimed a survey filed at the time of the Mortvedts’ purchase established that the Orrs owned a narrow strip of land on the west side of the lake. The boundary dispute escalated when the Orrs cut down trees and planted other vegetation on the disputed narrow strip of land, as well as from the parties’ inability to agree about their respective rights to use the lake. The Sevdes and the Orrs objected when the Mortvedts used parts of the lake beyond the boundaries of the lake bed owned by the Mortvedts for fishing and boating. The Orrs, the Sevdes, and Cameron sued, seeking a resolution of the boundary dispute and other relief, and the Mortvedts counterclaimed, asking that the plaintiffs be required to restore the lake water level to that which prevailed when the Mortvedts purchased their property in 1996 and that the plaintiffs be held not to have a right to install or maintain a fence in the lake. The Mortvedts also sought reformation of their deed to conform it to the understanding of the parties to the 1996 conveyance that their east property line extends to the lake water’s west edge.

The trial court held the parties were entitled to the exclusive possession, use and enjoyment of the water covering the real estate described in their respective deeds. It also held that each of the parties owned any minerals located on the real estate described in its respective deed, that the Mortvedts were prohibited, absent express written permission, from entering upon or using the water overlaying the properties owned by the Sevdes, the Orrs, and Cameron — who were legally entitled to construct a fence, berm or other structure to mark the boundaries of their properties — and the Sevdes, the Orrs, and Cameron were entitled to drain the water covering, mine minerals from, and restore wetlands upon their properties. The court denied the Mortvedts’ counterclaim. The Mortvedts appealed.

This guy is charged with assaulting a child and her mother. Truly a defense attorney’s nightmare … and a living example of a “hard case” that may lead a jury to make bad law.

Held: The Mortvedts were not entitled to obtain reformation of the deed, because the remedy of reformation was unavailable under the circumstances of the case.

The Iowa Supreme Court ruled that it would only order reformation of a deed against a party to the deed, a person in privity with such a party, or a person with notice of the relevant facts. Reformation will not be ordered to the prejudice of innocent third persons.

The Orrs were innocent third parties as to the transaction between the Twedt estate and the Mortvedts, and had no knowledge that the Mortvedt transaction was anything other than was recorded in the deed. The Court found that a reasonably prudent person would interpret the survey filed with deed, prepared by a professional surveyor, as an illustration of the boundary legally described in the Mortvedts’ deed and as confirmation that the Mortvedts had not acquired from their grantor the narrow strip of land on the west side of the lake that is the subject of this dispute. Nothing stated or illustrated in the Mortvedts’ recorded deed and survey would cause a prudent subsequent purchaser to further inquire into the deeding parties’ intentions and to consequently discover any discrepancy between those intentions and the legal description in the deed. The holding, of course, meant that Mortvedts had no claim for damages for the Orrs’ removal of trees from the narrow strip of land on the west side of the lake.

The Court also held that while the public generally has a right of access to navigable watercourses, the term “navigable watercourses” refers to watercourses “susceptible of use for purposes of commerce” or “possess[ing] a capacity for valuable floatage in the transportation to market of the products of the country through which it runs.”

The Court said that the landlocked body of water, in this case, had never served as a highway of commerce, and the non-navigable status of the lake dictated that the bed of the lake was owned by the state or by private parties. The non-navigable lake was privately owned by the parties because each of their deeds included part of the lake bed. And in an issue never decided in Iowa before, the Supreme Court held that the common law rule adopted by most states — that on non-navigable waters, users are limited to the areas of the watercourse which lie on lands they owned, rather than having a right to use the whole watercourse if they owned land underlying any of it.

Ironically, there is little doubt that under the EPA’s rules, the 30-acre quarry sitting in the middle of the Great Plains is among the “waters of the United States.”

– Tom Root

Case of the Day – Monday, March 16, 2026

Posted on March 16, 2026 by TLRoot tagged.

THINK DIFFERENT

The late Steve Jobs — whose equipment we use in running treeandneighborlawblog.com — exhorted us all to “think different,” by which he meant “buy Apple products.” Since his death, Steve’s life became a best-seller and a major motion picture a decade ago… but like its competitors, Samsung, Google, and Microsoft, Apple’s brand has tarnished a bit as of late.

Notwithstanding Steve’s Einsteinian advice, my late mother – a retired English teacher – used to lecture me that Apple really meant “think differently.” No matter.

Today, we’re taking a fresh look at the Virginia Supreme Court’s decision in Fancher v. Fagella, the seminal 21st-century case on tree encroachment. In so doing, we re-read the old Smith v. Holt decision credited with first adopting the old Virginia Rule 85 years ago. And we’re “thinking different” about it. Sorry, Ma.

Initially, we confess, we joined with the Virginia Supreme Court and commentators in ridiculing Smith v. Holt’s focus on whether a tree was “noxious” or not. We liked the newer Fancher approach, which the Washington Post, after all, hailed as breaking new ground. But now, after revisiting Smith v. Holt and considering the 19th-century cases on which it was based, we’re wondering why Virginia ever thought the Fancher decision was necessary at all. Thinking different … can a set of Apple Vision Pro goggles be in our future?

Over the years, the law on what a neighbor may do with encroaching trees branched into three or four divisions. The flinty, self-reliant New Englanders have followed the Massachusetts Rule, a holding that landowners may resort to self-help to stop encroaching trees and roots by trimming them back to the property line, but courts are not available to hear encroachment disputes if self-help is not adequate. At the other end of the United States (and 50 years later), Hawaii adopted what is unimaginatively known as the Hawaii Rule, a holding that while Massachusetts Rule-style self-help was always available to a landowner, so were the courts: landowners could sue to collect damages and to force a neighbor to trim or remove a tree when that tree was causing actual harm or was an imminent danger to his or her property.

The disrespected Virginia case on the issue, Smith v. Holt, was in fact forward-looking and logical: in essence, Smith v. Holt adopted the Hawaii Rule years ahead of the Ahola State, and did so with law which — had the Virginia courts not acted so precipitously in Fancher v. Fagella — would still be the law in the Old Dominion.

Smith v. Holt was the 1939 decision — handed down only eight years after the Massachusetts Rule was adopted in the Bay State — that the Virginia Supreme Court repudiated in its 2007 Fancher opinion. In Smith v. Holt, the Virginia Supreme Court reviewed a dispute in which a neighbor’s private hedge had grown over the years to the point that it was growing on the complaining neighbor’s lawn and shading a large portion of it. The Court held that the Massachusetts Rule should apply unless the hedge in question was (1) causing actual harm or was an imminent danger to the neighbor; and (2) was “noxious.” Because Mrs. Smith had not shown that actual harm was being caused, the Supreme Court declined to order Mr. Holt to remove the hedge. The Smith v. Holt holding was seen at the time as a variation on the Massachusetts Rule — although we doubt that it was any real departure from the implied limits of that rule — and became known as the Virginia Rule.

In Fancher v. Fagella, the Supreme Court abandoned the Virginia Rule it adopted in Smith v. Holt. We think this abandonment was unnecessary, premised on a misunderstanding of its own holding 68 years earlier. The adoption of the Hawaii Rule is happening increasingly throughout the United States, and it is probably as inevitable as urban growth. However, the Virginia Supreme Court’s overturning of Smith v. Holt was an overreaction predicated on its own misunderstanding of what is meant by a “noxious” tree. Even in the Massachusetts Rule decision eight years before, the court had cited a 19th-century New York decision that held “[i]t would be intolerable to give an action in the case of an innoxious tree whenever its growing branches extend so far as to pass beyond the boundary line and overhang a neighbor’s soil.” The Massachusetts Rule was never intended to extend noxious trees. And what the Smith v. Holt court meant by “noxious” was clear in the context of that case. The court relied on an 1884 Mississippi case in which a mulberry tree was held to be “noxious” because its roots had penetrated and contaminated a neighbor’s well. There was nothing inherently poisonous about the tree: it was just growing in such a way as to cause real harm to the neighbor, beyond mere shade and encroachment. In fact, in the only Virginia case ever to rely on Smith v. Holt -— the case we’re reviewing today — a trial court found in 1990 that “under the circumstances of this case, the “mock” or “osage” orange trees are noxious.”

So it’s clear that whether a tree is “noxious” has nothing to do with the inherent characteristics of the tree or hedge, but has everything to do with where the tree or hedge is located and what it is doing to the neighbor. And that is the classic definition of a nuisance given by the U.S. Supreme Court in a 1926 case: “merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” A noxious tree is a perfectly good tree, but one in the wrong place causing actual, substantial harm, or threatening the same.

But the Fancher Virginia Supreme Court ran off on a tangent, talking about kudzu and poison ivy when it is clear that the courts that first enunciated the “noxious” standard meant nothing more than a tree that was causing or threatening real harm. Ironically, under the Hawaii Rule adopted in Fancher, the plaintiff would have done no better than she did in Smith v. Holt. The hedge she complained about in 1939 wasn’t causing her any harm other than shade and encroachment on her property. That’s not actionable under the Hawaii Rule. If it had been destroying her foundation or choking her sewer, the Smith v. Holt court would have declared it “noxious” and thus a nuisance.

Likewise, Smith v. Holt was all Mr. and Ms. Fancher needed to carry the day. In fact, their arborist understood: he testified that the sweetgum “tree was ‘noxious’ because of its location …” (emphasis added). The arborist and the Fanchers both understood Smith v. Holt. Why the trial court could not, and why the Virginia Supreme Court found it necessary to overrule a perfectly serviceable decision — something courts are traditionally loathe to do — we don’t know. But contrary to the hand-wringing and the editorializing, no new day has dawned on Virginia encroachment law. Under Smith v. Holt, a tree causing actual or imminent sensible harm to a complaining neighbor was a “pig in a parlor.” Under Fancher v. Fagella, it still is.

Arrington v. Jenkins, Chancery 89-173, 1990 WL 751069 (Cir.Ct.Va. Feb. 20, 1990) (unreported). This decision, which relied on Smith v. Holt, a landmark Virginia case which was overruled in September 2007 by Fancher v. Fagella, appears to have concerned a suit by one urban neighbor against another because her Osage orange tree had limbs that were overhanging his yard. The Osage orange, of course, drops round fruit of about 5 inches in diameter, which are green and lumpy and inedible to humans. They are known as “hedge apples.”

Arrington sued for an injunction, asking the Court to order Jenkins to trim the branches that were overhanging the Arrington yard, apparently because of the 5” inedible “hedge apples” the tree dropped on his lawn every fall.

Held: The trial court held that “under the circumstances of this case, the ‘mock’ or ‘osage’ orange trees are ‘noxious’” within the meaning of Smith v. Holt. Because of that fact, the trial court said, the responsibility for the trimming of the trees to avoid the fruit from falling upon Arringtons’ property must rest with Jenkins. The court issued an injunction that restrained Jenkins from allowing the limbs of the Osage orange trees to grow over and above the Arringtons’ land.

– Tom Root

Case of the Day – Friday, March 13, 2026

Posted on March 13, 2026 by TLRoot tagged.

ROCKIN’ DOWN THE HIGHWAY

More unneighborly neighbors …

Ms. Smith owned 134 landlocked acres, and she gained access to them only by using a township road that was no longer maintained and, by all accounts, appeared abandoned. But the road led through the Thompsons’ place, and — for reasons not revealed in the case — they didn’t much like Ms. Smith crossing their land on the abandoned township road.

They sued to keep her off the road, claiming trespass. Ms. Smith responded that it was still an official township road. “We’ll see about that,” the Thompsons must have grunted in reply. They were grunting because they were busy pounding metal posts into the old road so she couldn’t use it. For legal cover, the Thompsons petitioned the Township to vacate the road.

Here’s where it gets murky. The Township apparently refused to vacate the road, and Ms. Smith asked for summary judgment. She pointed out that the court couldn’t issue an injunction to keep her off a public road. The court agreed, but the Court of Appeals did not. It found that the general public had no absolute right to use an unmaintained township road and that the trial court could enjoin Ms. Smith from doing so if it were so inclined. Also, it said that there were way too many moving parts to this case for summary judgment to be appropriate.

Frankly, the notion that the general public has no right to transit a public highway that isn’t being maintained is an alarming one for a number of reasons. Chief among them is the difficulty anyone would have in telling when a road ceases to be poorly maintained and instead falls into non-maintenance. This decision strikes us as a lousy one.

Thompson v. Smith, 172 Ohio App.3d 98, 873 N.E.2d 323 (Ct.App. Columbiana Co., 2006). This case arose from a property dispute that began when Marlene Smith attempted to use an old township road, Ashton Road, in Madison Township near the Columbiana County Airport. The road hadn’t been maintained by Madison Township for many years and was mostly overgrown with trees. Ashton Road cuts through property owned by both Donald and Rebecca Thompson, as well as land owned by Ms. Smith, a 134-acre tract abutting and just north of the 53 acres owned by the Thompsons. Ashton Road begins somewhere west of the Smith property, then cuts generally southwest through both properties and eventually connects to other township and county roads to the south and east of the Thompsons.

It appeared from the record that Ms. Smith’s 134 acres were landlocked, and Ashton Road might be her only access to other improved and maintained roads, but it was unclear. The Smith property was cut off from access to the north many years ago when State Route 11 was built. A portion of Ashton Road served as a private driveway to the houses around the southwest corner of the Thompson property, and it is partly maintained by the Thompsons. The Thompsons do not maintain any portion of Ashton Road beyond their own driveway and private home.

Some time prior to the filing of the complaint, Ms. Smith or her agents entered what they assumed was Ashton Road and removed a locked gate that crossed the right-of-way. The gate had actually been installed by Ms. Smith some years earlier, but it had not been locked until the Thompsons began locking it. The Thompsons then filed a complaint against Ms. Smith, alleging trespass and seeking a temporary and permanent injunction, and an order quieting title. Ms. Smith filed an answer and counterclaim.

Sometime after the complaint was filed, the Thompsons installed seven metal posts across what they considered to be an abandoned portion of Ashton Road, and they petitioned the Township to officially vacate the road. Ms. Smith then filed a motion for summary judgment. The motion argued that a member of the general public could not be found to be trespassing on a public road and that the court of common pleas had no jurisdiction to quiet title to a township road. The motion asked the court to dismiss the trespass claim and the quiet-title claim.

The trial court held that Ashton Road was a public road, that none of the parties had acquired any private ownership interest in the road, and that none of the parties could be held to trespass on the road simply by using it. The court dismissed the Thompsons’ requests for an injunction, finding that no person has the authority to erect obstacles on a public road. The court also held that it had no authority to quiet title to Ashton Road.

The Thompsons appealed.

Held: The Court of Appeals reversed, finding that genuine issues of material fact precluded summary judgment, and that the trial court had the power, if it so elected, to grant an injunction against a private person using a public road.

The Thompsons demanded that Ashton Road be the road not taken … but the whole idea “frosted” Ms. Smith.

The Court found that genuine issues of material fact concerning the landowners’ and the neighbor’s property rights and their actions and intentions with respect to the road – a road that the township had not vacated but which had become overgrown with weeds and bushes – precluded summary judgment for the neighbor on landowners’ claim for injunctive relief to prevent the neighbor from using the road.

The Court held that the general public has no absolute right to use or to change a township road not being maintained by the township, whether or not the road has been formally vacated by the township. Also, § 5553.042(B) of the Ohio Revised Code holds that a township shall lose all rights in and to any public road, highway, street, or alley that has been abandoned and not used for a period of 21 years after formal proceedings for vacation have been taken. “Upon petition for vacation of such a public road, highway, street, or alley filed with the board of county commissioners by any abutting landowner, if the board finds that the public road, highway, street, or alley has been abandoned and not used for a period of twenty-one years as alleged in the petition, the board, by resolution, may order the road, highway, street, or alley vacated, and the road, highway, street, or alley shall pass, in fee, to the abutting landowners, as provided by law…”

The Court of Appeals held that the trial court erred in concluding that no circumstances existed in which an injunction could be granted to prevent a private citizen from using a public road. But one of the primary purposes of injunctive relief in Ohio is to protect property rights. The trial court in this case is free to use injunctive relief to protect the parties’ rights, even though the primary dispute concerns access to and use of a public road.

The Court concluded that there remained unresolved factual disputes concerning the parties’ property rights and their actions and intentions with respect to Ashton Road. Therefore, summary judgment was not appropriate.

– Tom Root