Case of the Day – Monday, February 9, 2026

Posted on February 9, 2026 by TLRoot tagged.

WYSIWYG

Referees make mistakes. And that’s a good thing. It keeps our juices flowing, gives us a safe target for our anger, and even – thanks to the Internet – lets us relive our ire even when the underlying game’s been forgotten.

Judges make mistakes, too. If that weren’t so, there’d hardly be a need for courts of appeal or even the Supreme Court.

In today’s case, an electric utility sued back in the 1960s to force a landowner to give it an easement for building and maintaining power lines. The court granted the easement — which consisted of four separate rights — but somehow left out the part where it got an easement of 25 feet on either side of a right-of-way to keep trees trimmed. Some 45 years later, the utility wanted to assign its right to the City of Jackson, Missouri, so the City could build its own power line.

The case ended up in court, where the utility argued that just because the 1969 court forgot to mention the 25-foot easement, that didn’t mean it wasn’t there. After all, the utility asked for it and the court never said it couldn’t have it. When the damages were assessed so that the landowner could get fair compensation for the condemnation, the commissioner charged with assessing the cost included the 25-foot easement. Just an oversight, the utility argued.

There’s an old adage in the law that a court speaks through its record. And in this case, while the 1969 Order probably did omit the 25-foot easement through oversight, that didn’t matter. The Order was clear and unambiguous in how it described the easement. Where the language is clear, a reviewing court won’t second-guess.

The 25-foot wide strips were not covered by the prior easement, no matter what the parties may have meant at the time. Like the Dramatics’ old song went, “Whatcha see is whatcha get.”

City of Jackson v. Bettilee Emmendorfer Revocable Trust, 260 S.W.3d 913 (Mo.App., 2008). The Bettilee Emmendorfer Revocable Trust owned land in Jackson, Missouri, which had been the subject of a condemnation action 40 years before, when the property was owned by others. Back then, Union Electric petitioned for rights over four portions of the land: a 100-foot easement, for the purpose of installing electric transmission lines, 25-foot sections on either side of the 100-foot easement for maintaining trees, overhanging branches and obstructions, two smaller easements for use in connection with the transmission lines, and an easement for ingress and egress.

The court’s order in that prior case granted Union Electric the 100-foot easement, easements to the two separate parcels, and an easement for ingress and egress. However, the court failed to mention Union Electric’s request for an easement on the 25-foot strips on either side of the 100-foot easement. A report of commissioners filed in the case indicated the commissioners viewed the 25-foot sections on either side of the 100-foot easement as well as the 100-foot portion itself to be within the easement, and it set damages at $22,224.

In October 2006, Union Electric entered into an agreement with the City of Jackson to allow Jackson to build a new electric line on the eastern edge of the 100-foot easement. Jackson and Union Electric entered into a partial assignment of the easement in accordance with that agreement. But noticing the old trial court order had a hole in it, the City sought a declaration of rights as to whether the 1969 condemnation action awarded Union Electric the 25-foot sections on either side of the 100-foot easement, whether Union Electric has the right to assign to Respondent the right to construct an electric transmission line on the 100-foot easement, and whether the construction of an additional electric transmission line amounts to an additional taking of property from the Trust. The Trust asserted the 1969 Order made no mention of an easement or other rights condemned or established on either side of the 100-foot easement. The Trust also argued that construction of an additional electric transmission line would increase the burden on the property “beyond the scope of the intended and authorized use of the easement,” grant of the easement would be “inconsistent with the original use of the easement,” and the additional utility poles and electric transmission lines would interfere with reasonable use and enjoyment of the property.

The trial court held that Union Electric’s easement included the right, permission and authority to trim, cut and remove trees, overhanging branches and obstructions on 25 feet on each side of the 100 feet right of way which may endanger the safety of or interfere with the transmission lines, and it had the power to assign the right to the City. The Trust appealed.

What the court’s actual order says is what goes …

Held: The 25-foot strips are not covered by the easement. The 1969 order establishing the easements made no mention of and contained no reference to the 25-foot sections on either side of the 100-foot easement, and thus, those portions are not part of the easement. When interpreting easements, courts ascertain the intention of the grantor from the instrument itself. Only when the language of the deed is “unclear and ambiguous” should a court resort to the rules of construction and consider extrinsic evidence. A contract is not ambiguous simply because parties disagree about its meaning. Rather, an ambiguity arises only “when the terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms.

Here, the Court said, nothing in the lower court language was unclear or ambiguous in the documents creating the easement, thus leaving a court to judge the easement only by the plain language of those documents without the need to refer to extrinsic evidence. The report of the commissioners, while it apparently valued the 25-foot sections in determining damages, does not supersede the court’s unambiguous order.

As for the right to assign, the Court held, it was equally clear and unambiguous that the order granted the easement holder the ability to construct a “line or lines,” permitted the holder to “add to and relocate” the electric transmission lines, and referenced “successors and assigns,” thus indicating that assignments are permitted.

– Tom Root

And Now The News …

Posted on February 9, 2026 by TLRoot tagged.

Tacoma, Washington, News Tribune, February 8, 2026: 900-year-old Pierce County tree may be cut down for new semi-truck parking lot

The city of Lakewood is considering approving permits that would allow a landowner to cut down an oak tree that is at least 900 years old to make way for a semi-truck parking lot. Birds could be heard chirping in the tree’s enormous branches on Wednesday afternoon when The News Tribune visited the site in the industrial Woodbrook neighborhood. The 3.8-acre vacant lot was riddled with stumps. Some time between 2023 and 2024 the property owner razed 70 trees at 7319 146th St. SW without authorization, public records show. The city of Lakewood fined the owner $1,130,724 for the “malicious cutting,” but that fine was reduced to $346,920, according to a letter dated Jan. 5. According to a Jan. 16 city memo, the Emerson Lake Business Park has proposed extending a truck-and-trailer parking lot in association with an existing lot in the Industrial Business Park. Applicant Jason Hubbell and landowner Jane Yin, as well as representatives with Emerson Lake Business Park, did not respond to The News Tribune’s requests for comment. Tax records indicate the property has an assessed value of $1.6 million as of 2025…

Naples, Florida, News, February 6, 2026: Is my Florida palm tree dead after freezing temps? What to do

After freezing temperatures that not only broke record lows over the weekend but lasted for several days, Florida residents are looking at their yards and wondering, “now what?” Especially after another cold front that sent temps dropping across the state Friday, Feb. 6. If you were looking at all the brown palm fronds and wondering if your tree is dead, here’s what you should know and what you should do. Is my palm trees dead if all the fronds are brown? Not necessarily, but be patient and don’t do anything for a few weeks, just in case more freezing temperatures hit the state. “Foliar necrosis is typical of cold damage but these fronds provide some insulation to the apical meristem, which is the growing point of palm trees,” according to Dr. Mica McMillan, University of Florida, Institute of Food and Agricultural Sciences, via email Feb. 5. “Once there is no threat of another freeze/cold temperatures, and (if) the fronds are completely dead, remove these fronds. “If all of the fronds are dead, then the palm will probably not survive…”

Marthastewart.com, February 7, 2026: Can You Legally Trim a Neighbor’s Tree Roots in Your Yard? What to Know Before You Cut

The large, majestic tree in your neighbor’s yard may not be on your property, but its roots might be. In fact, the root system of a mature tree is often two to four times the diameter of the tree’s crown, which means those expansive roots are quite likely taking up residence on your side of the property line. This can create a tricky situation if those roots are causing havoc around your home’s foundation or otherwise disrupting your landscaping. But are you allowed to cut the roots of a neighbor’s tree? And will it harm the tree? Ahead, our experts get to the root of the matter. Can You Trim a Neighbor’s Tree Roots on Your Property? There is no one-size-fits-all answer to this question. From a legal perspective, the answer depends on your location. States have varying laws and regulations, and these can vary even down to the county or city level. “State law and even local codes may prevent removal of roots to a certain degree, so it’s important to review your local laws to determine if there are any regulations on trimming the roots,” says real estate attorney Gilbert Morales…

Wausau, Wisconsin, Pilot & Review, February 8, 2026: Wisconsin Yard & Garden: Dormant tree pruning guidelines

Now that February has arrived and weather conditions moderate across Wisconsin, gardeners can consider venturing outside for the task of dormant pruning of trees. Bare trees this time of year make it easy to see what issues can be corrected via pruning. While individual trees may vary in specific pruning needs, some general guidelines ensure success. Start by removing damaged or broken branches. Always cut back to a side branch or lateral twig, rather than leaving a stub. Make clean cuts using the proper tool for the size of branch that needs to be removed, choosing from pruning shears, loppers or pruning saws. Avoid flush cuts against the trunk. Instead, allow the collar region where branches meet trunks to remain, as wounds will be smaller and create callus, or “heal” better…

New York City, Post, February 4, 2026: Goldman Sachs president John Waldron clashes with Martha’s Vineyard officials in tree-chopping fracas

The president of Goldman Sachs has roused the ire of local officials on Martha’s Vineyard after he allegedly flouted a town order and chopped down 19 trees that were blocking views at his lavish waterfront vacation home, The Post has learned. John Waldron — the Wall Street giant’s No. 2 executive who is seen as the likely successor to CEO David Solomon — sparked a fracas last spring when the alleged violation was discovered on their sprawling four-acre estate near Katama Bay, the quaint maritime enclave where Steven Spielberg filmed his 1975 blockbuster “Jaws.” The 56-year-old Waldron and his wife, Amanda, bought the vacant Edgartown lot in 2020 for over $11 million. They built a four-bedroom summer home two years later on the Massachusetts island getaway for the East Coast elite; the spread is now valued at more than $30 million. But last spring, local officials discovered that the deep-pocketed investment banker had apparently chopped down 19 cedars and pitch pines — some of them 60 years old and as much as 60 feet high — that were blocking the mansion’s water view, according to filings lodged with the Edgartown conservation commission…

Nashville, Tennessee, WKRN-TV, February 5, 2026: Nashville homeowner says he lost thousands to tree removal company after ice storm

After last week’s ice storm, the damage across Forest Hills and nearby neighborhoods is easy to see: split trees, sagging limbs, yards left exposed. What is harder to spot, state officials say, is the risk that follows close behind. The Tennessee Attorney General’s Office issued a consumer alert this week warning homeowners about tree removal scams targeting storm-damaged areas. Complaints have increased about door-to-door crews asking for cash, offering immediate cleanup, and then failing to deliver any work. For homeowners eager to clear dangerous trees, the pressure to act can be intense. One Nashville homeowner told News 2 he paid more than $6,000 to a company operating under the name Certified Tree Care LLC for tree removal services that were never performed. The homeowner said repeated attempts to reach the company went unanswered…

Live Science, February 3, 2026: ‘Nitrogen fixing’ trees could help tropical forests bounce back, research suggests

An extra helping of nitrogen can double the growth of tropical trees in a recovering forest, vastly boosting the amount of carbon dioxide (CO2) they can absorb for a decade, according to a new study. Researchers found that adding a nitrogen fertilizer to the soil in the youngest forests — those that had been pastures less than a year ago — increased their tree biomass by 95% compared with a non-fertilized control group. Ten-year-old forests also bounced back with the nitrogen treatment, showing a 48% increase in growth compared with the control group. “We all rely on tropical forests to stabilize our climate,” study co-author and principal investigator Sarah Batterman, an associate professor at the University of Leeds and ecosystem ecologist at the Cary Institute of Ecosystem Studies, told Live Science. “They store about half of forest carbon and sequester about 20% of our carbon emissions. But there’s huge uncertainty in whether tropical forests will continue to take up CO2 or will become a source of carbon into the atmosphere in the future. One of the key uncertainties is the role of nutrients in supporting more carbon sequestration and recovery from disturbance…”

Grayling, Michigan, mLive.com, February 5, 2026: A tree that lived up to its name: ‘The Monarch’ ruled over an old growth forest for generations

For generations, this was the biggest and most-hugged tree in the largest stand of old growth pine trees remaining in Michigan’s Lower Peninsula. “The Monarch” presided as the crowned sovereign of the 49-acre Old Growth Forest at Hartwick Pines State Park for years. It was 325 years old when it died in 1996. This Eastern white pine was – and continues to be – a destination. Today, the Monarch’s stump remains a regal presence. It stands about 71 feet at marker 6 of the 1.25-mile Old Growth Forest Trail. Footprints in the snow show that visitors still approach for a hug, a photo or a closer look at this huge specimen. It’s been that way for decades. “I have pictures of my mom hugging this tree with my grandparents when she was 10,” said Craig Kasmer, park interpreter, “and pictures of me and my sister hugging it when I was 8. Hundreds of thousands of people have their picture taken hugging the Monarch…”

The Conversation, February 3, 2026: Victoria’s mountain ash forests naturally thin their trees. So why do it with machines?

There has been much global discussion about the best ways to manage Earth’s forests in an era of climate change and more frequent bushfires. Some foresters and forest managers support and recommend large-scale industrial thinning of forests, where a proportion of the trees are removed (thinned) with machines to increase the size of the remaining trees. Thinning is commonly used in timber plantations, as it accelerates the development of timber trees. In its new forest plan, the Victorian government has funded a “healthy forests” program. This will likely entail reducing the number of trees in the forest and increasing the space between trees. This plan could lead to extensive mechanical thinning in the state’s forests. Large-scale mechanical thinning has already been used in native forests in western Victoria. Plans for mechanical thinning of forests raises important questions…

Memphis, Tennessee, WMC-TV, February 4, 2026: Tree trimming & removal scams to watch out for

The Tennessee Attorney General’s Office urges citizens to use caution when selecting a business to provide tree trimming or removal services after recent ice storm. The Tennessee Attorney General’s Office offers tips for citizens in search of tree services: • Verify if the contractor is properly licensed in Tennessee by visiting verify.tn.gov; • Get reference from people you trust and look up the review on the business; • Ask for proof of insurance that covers tree services; • Take your time and get multiple written estimates and research each company; • Governor Lee’s executive orders do not provide contractors or other professionals with the appropriate insurance. Red flags to look out for: • Door-to-door sales; • High-pressure sales tactics; • Demand of full payment upfront; • Insistence on cash-only payment; and • Refusal to set out terms in writing…

North Carolina State University College of Natural Resources, February 4, 2026: Elm Zigzag Sawfly: Tiny Invader Poses Growing Threat to Tree Health

For much of the 19th and early 20th centuries, American elms were more than just trees. They were defining features of the nation’s streetscapes with their tall, arching branches creating shaded tunnels that lined city streets and small-town avenues. Today, however, these iconic trees are far less common. Dutch elm disease decimated much of the population, and a new threat has emerged: the elm zigzag sawfly. This small, invasive pest is spreading across North America, feeding on elm leaves and adding a new layer of stress to already vulnerable trees. The damage caused by elm zigzag sawfly larvae is distinctive. As they feed, they leave behind the zigzag patterns that give the insect its name. While infestations primarily stress the trees, severe outbreaks can strip leaves, weaken elms and sometimes cause dieback. Scientists are still studying the long-term impacts of this pest. Efforts to restore elm populations have led to the development of disease-resistant varieties designed to withstand Dutch elm disease. These new elms offer hope for the species, but the arrival of the elm zigzag sawfly complicates restoration efforts, affecting not only elms but also alternative species such as the Japanese zelkova…

Fairfax, Virginia, FFXNow, February 3, 2026: New agreement aims to protect both trees and power lines along W&OD Trail

After months of negotiations and pressure from both elected officials and community members, Dominion Energy and NOVA Parks have settled on a new path forward for managing trees near power lines along the Washington & Old Dominion (W&OD) Railroad Regional Park. Dominion and the regional park authority, which owns and manages the 45-mile-long W&OD Trail, have reached an agreement governing vegetation management activities that, among other provisions, requires the utility to provide advanced notice of any major maintenance work and to plant native species in affected areas when possible. “We sincerely appreciate NOVA Parks’ partnership on this important effort and their dedication to preserving the W&OD Park,” Dominion Energy Senior Vice President of Electric Transmission Joe Woomer said in a press release. “By working together, we are balancing the safety and reliability of the grid with the long-term stewardship of this cherished resource. That’s a win-win for our customers and communities.” NOVA Parks Executive Director Justin Wilson, who assumed the leadership role last October, agreed that the new memorandum of understanding “reflects a shared commitment” by both parties “to protect both the health of our community and the natural resources that define this region…”

Case of the Day – Friday, February 6, 2026

Posted on February 6, 2026 by TLRoot tagged.

“SQUIRREL!”

Squirrel – before …

Last June, we looked at a case in which a squirrel frightened a Massachusetts resident who was taking out her garbage. Today, it’s deep-fried southern squirrel… or at least that’s what the plaintiff had on her hands.

Mrs. Pardue was talking on her cordless phone when a squirrel jumped onto a power company transformer and closed the circuit. The squirrel got zapped (it happens, you know) when it jumped from an untrimmed tree to the transformer. The power went out, and an “acoustical shock” — which the plaintiff called an explosion — came from the cordless phone and injured Ms. Pardue.

She, of course, sued the power company for not trimming the trees. That was a little too much for the trial court, which threw out the case. The Court of Appeals agreed. Remember that Louisiana civil law is a little different: down in bayou country, the standard is “ease of association,” the likelihood that the complained-of conduct could have been foreseen to cause the damage. It bears a resemblance to Palsgrafian causation.

A reasonable person can imagine a lot of bad things happening as a result of power companies not trimming trees. However, the Court held, loud noises coming out of cordless phones wasn’t one of them. Rube Goldberg would have been proud.

Squirrel – after …

Pardue v. AT&T Telephone Co., 799 So.2d 710, 2001-0762 (La.App., 2001). Louise Pardue was at her cordless phone at home when there was a sudden explosion in the handset and, simultaneously, the electricity went out at her home. After Central Louisiana Electric Company (CLECO) was notified of the outage, its personnel fixed the problem, later reporting to Ms. Pardue that a dead squirrel was found on the line.

According to Ms. Pardue’s expert, the squirrel’s presence on the lines caused an electrical surge into the ground system that was shared by the telephone line. Although the expert admitted it would have been “a very difficult thing” to get an electrical shock from a cordless telephone, he opined that the electrical surge created an acoustical shock, that is, a loud noise. As a result of the incident, Ms. Pardue immediately developed a headache and experienced ringing in her ear, followed by problems in her neck, shoulder, arm, and foot.

Ms. Pardue sued the phone manufacturer (who was dismissed) and CLECO, seeking damages related to the alleged injuries. She claimed that the power company was negligent in failing to adequately trim the trees around the line so as to prevent the squirrel’s interference with the transformer. CLECO filed a motion for summary judgment, which the trial court granted.

The court held that “we don’t know that the squirrel came from the tree, or whether it climbed the pole that the transformer was on, or it climbed another tree, or another pole. I think that when you do the first analysis, the ‘but for’, you can’t answer that; and when you can’t answer it, under the jurisprudence, then the plaintiff’s action fails, and a motion for summary judgment in this instance is warranted.”

Disagreeing with this sage analysis, Ms. Pardue appealed.

Held: Ms. Pardue’s suit was dismissed. The Court of Appeals observed that negligence cases require consideration of the duty/risk analysis. A plaintiff must prove the defendant had a duty to conform his conduct to a specific standard, the defendant failed to conform to the appropriate standard, the substandard conduct was a cause-in-fact of the plaintiff’s injuries, the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries and actual damages. For the purposes of negligence analysis, the risk cannot be held to be within the scope of a duty where the circumstances of that particular injury or of the plaintiff could not reasonably be foreseen or anticipated, because there was no “ease of association” between that risk and the legal duty.

Cause-in-fact determinations are factual in nature, while the legal cause or scope of the duty determination is a legal one. Here, the Court ruled that CLECO — the electric utility — did not owe a duty to protect Ms. Pardue a duty. Even assuming CLECO had a duty to maintain the trees surrounding its lines, the Court said, the scope of that duty did not extend to protect Ms. Pardue under the particular facts of this situation.

Ms. Pardue was at home talking on a cordless telephone (and the Court emphasized the word “cordless”). Not only did an animal gain access to the transformer, but the resulting outage caused an “acoustic” shock — not an electric shock — sufficient to result in serious injury. In the least, the Court held, under the particular facts and circumstances of this case, there was simply no “ease of association” between that risk and the legal duty.

– Tom Root –

Case of the Day – Thursday, February 5, 2026

Posted on February 5, 2026 by TLRoot tagged.

ROCK SOLID

The solid rock on which the many decisions on landowner liability for trees that fall on neighbors’ land, houses, cars and sundry possessions is the unremarkable notion that a landowner is not responsible for damage caused by the natural condition of the land. In other words, if it’s just a tree growing naturally on the property – and not some exotic species you saw on your last safari and just had to plant in your backyard in scenic Bugscuffle, Tennessee – any damage it might cause by shedding its limbs or invading with its roots is pretty much an Act of God.

A monkey on Gibraltar … but no monkeyshines at Gibralter Fire & Marine Insurance. The company wanted Mr. Griefield to pay for the damage that his fallen limb had caused.

Such was the case in 1946, when the Gibraltar Fire & Marine Insurance Co. tried to collect money from Mr. Griefield for the damage his tree had done to its insured. Mr. Griefield told Gibraltar that it had rocks in its head if it thought he was liable for damage caused by a falling limb. But Gibraltar wasn’t monkeying around. It sued, claiming in essence that a landowner was liable whenever one of his or her trees caused harm to a neighbor.

The case didn’t involve questions of whether the tree was diseased, whether Mr. Griefield had a duty to inspect his trees, or whether any defects in the tree were readily apparent. Decisions refining a landowner’s duty – even where the tree is a natural condition of the land – were years in the future. Rather, today’s case established as rock-solid the principle that a landowner has no obligation to trim or take other steps to limit the damages that a tree growing as a natural condition of the land might otherwise cause to a neighbor.”

The Mississippi Supreme Court pondered the issue in 1946. Because the decision – although written with some of the ruffles and flourishes typical of decisions of that era – is fairly short, we set it out in full:

Mr. Griefield's tree was a sturdy, natural, plain vanilla oak.

Mr. Griefield’s tree was a sturdy, natural, plain-vanilla variety oak.

Griefield v. Gibraltar Fire & Marine Ins. Co., 199 Miss. 175, 24 So.2d 356 (Sup.Ct. Miss. 1946).” This action was begun by the appellee in a County Court and was there tried by agreement by the Judge without a jury, resulting in a judgment for the appellant, which was later reversed by the Circuit Court with judgment rendered for the appellee.

The test of the appellant’s liability vel non is whether the tree from which this limb overhung the land of the appellee’s assignors was of natural growth or had been planted by the appellant or a former possessor of her land. If the latter is the case, liability appears, the court said, citing 4 Restatement, Torts, § 839; Buckingham v. Elliott, 62 Miss. 296, 52 Am.Rep. 188; but if the former is the case the appellant is not liable, 4 Restatement, Torts, § 840, Comment (a). The former is the case here, for there is nothing in the agreed statement of facts to indicate that the oak tree was not of natural growth.

Perhaps an exotic balloon tree in your backyard? Sure ... just remember, it's probably not a "natural growth" on the land.

An exotic balloon tree in your backyard is probably not a “natural growth” on the land.

“The broad language of the opinion in Buckingham v. Elliott, supra, if given effect, would sustain the judgment of the Circuit Court, but when the authority of that opinion is limited, as it should be, to the issue then before the court, it will be seen that the judgment there rendered is not in conflict with the rule announced in 4 Restatement (Torts), § 840, for the trees there, the roots of which caused the plaintiff’s damage, were not of natural growth but had been planted of the defendant’s land. The appellant was under no obligation to the appellee’s assignors to remove the limb of the tree which overhung their land, and her gratuitous promise so to do was not binding on her, but the appellee’s assignors had the right at all times to themselves remove so much of the limb as overhung their land. 1 American Jurisprudence, Adjoining Landowners, § 56.”

The judgment of the Circuit Court was reversed and the judgment of the County Court was affirmed.

– Tom Root

Case of the Day – Wednesday, February 4, 2026

Posted on February 4, 2026 by TLRoot tagged.

INTENTIONAL GROUNDING

Intentional grounding? You can bet that was the call after Mr. and Mrs. Peters bought a lot next to the Kriegs.

The Peters didn’t know where the lot lines were. Their real estate agent didn’t, either. Ah, details, details … That didn’t stop them from hacking down trees on the property as soon as the ink was dry on the deed, in order to build their dream house. You probably know where this is going. Harry Peters, acting as his own tree service, goofed and cut down 29 trees on the Kriegs’ land.

The Peters admitted their honest error. OK, they intended to ground the trees. They just didn’t know that the trees they grounded were the Kriegs’. They were willing to pay for the mistake. But what they were not willing to do was pay the treble damages authorized in the law for wrongful timber cutting.

It was sort of like the intentional grounding foul in football. It’s one thing to get assessed a 10-yard penalty. But on top of that, the team loses the down. Sort of like the double whammy (or triple, if you like) of the statutory multiplier for wrongfully cutting trees.

C’mon, the Peterses said, there wasn’t any evidence they knew they were cutting Kriegs’ trees. The Court pointed out that the state of the evidence was precisely the problem. It was up to the Peterses to prove that they thought the land was theirs. The wife’s testimony was all they had offered, and it didn’t help: she explained they didn’t really know where the boundaries were, and never bothered to find out. But the biggest problem was what Mr. Peters testified to: nothing. He was the one who cut the trees down, and the Court seemed to expect that he would have material testimony to offer. But he didn’t testify.

There’s a well-known principle in evidence known generally as the “missing witness instruction.” As the legendary Professor Wigmore put it, the principle holds that “the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” In other words, if you have particular control of evidence, and you do not bring it forward, a court is allowed to assume it would have been harmful to your cause if you had done so.

The Court didn’t say it here, but it strongly implied that the absence of testimony from Harry Peters led it to conclude that if he had taken the stand, he wouldn’t have helped his cause any.

Krieg v. Peters, 46 A.D.3d 1190, 850 N.Y.S.2d 211 (N.Y.A.D. 3 Dept., 2007). In May 2004, the parties became adjoining property owners when the Peters family purchased the vacant lot next to the Kriegs. The Peterses intended to construct a house on their property, so Mr. Peters began clearing land without consulting the map referenced in their deed or having a survey conducted. He removed 29 trees from Krieg’s property. Following a jury trial, the Kriegs were awarded damages, including treble damages under New York statute for the removal of this timber. On appeal, the Peterses only contest the treble damages award.

Held: The treble damages were upheld. Under RPAPL §861[2], the New York treble damage statute, in order to avoid treble damages, the Peterses had the burden of proving by clear and convincing evidence that when they removed the trees from the Kriegs’ property, they “had cause to believe the land was [their] own.” Their proof in this regard was woefully inadequate. Mrs. Peters was the only defense witness to testify on this critical issue, and the appellate court found that her testimony had been more damning than helpful in sustaining their burden. She said that, before she and her husband purchased the property, she walked it on one occasion with their realtor. At that time, she specifically asked about the boundary lines but the realtor couldn’t answer her question with any certainty. She said she told her husband of the realtor’s uncertainty when they later walked the property together. She also candidly admitted that no steps were taken to obtain a survey or consult the map referenced in their deed before clearing the land. The Court found it significant that, although he had logged the property, Mr. Peters never testified. It found plenty of evidence that the defendants had no cause to know whether the land Mr. Peters was logging belonged to them or not.

The Peterses also argued that the legislature never intended for RPAPL §861 to apply to individuals such as themselves who make “honest” mistakes about boundary lines. The Court disagreed, holding that on its face, the statutory scheme clearly applied to the facts and circumstances of the case and, in the absence of sufficient proof on the defendants’ part to avoid treble damages, it didn’t find the treble damage award to be inconsistent with the law’s purpose or intent.

– Tom Root

Case of the Day – Tuesday, February 3, 2026

Posted on February 3, 2026 by TLRoot tagged.

DOING DAMAGE

Most of the time, the object of a civil lawsuit is to collect damages. Damages may either be compensatory – intended to compensate or to put the victim in the same place he or she would have been had the wrong not occurred – or punitive, intended to punish the wrongdoer.

Today, we’re going to talk about compensatory damages. How much has an injured party been damaged by loss of or damage to trees? The first question to be answered is whether the trees were commercial or “ornamental” in nature.

If the tree taken was commercial timber, the calculation is straightforward. Courts use either the stumpage value or the timber value. Stumpage value and timber value estimates depend upon timber volume estimates, which in turn are based upon the raw data collected in the field by timber cruisers. Put another way, estimating the value of timber taken in a trespass involves a three-step process. First, a timber cruise is conducted, and measurements are taken in the field. Timber cruising includes identifying a tree species, taking measurements of the stump diameter and from the stump to the top of the tree left on the ground, measuring any logs left on the ground, and recording measurements on a tally sheet. Second, the collected measurements are converted into volume estimates using established mathematical formulas. Third, those volume estimates are then converted into value estimates.

The distinction between timber and stumpage value only comes into play during the third step of the process. Stumpage value is the value of standing trees or what one might pay for the right to cut and remove trees. Timber value is the value paid by mills for cut logs. If timber value is used, it would be fair to argue to the Court that a deduction should be included for the cost of cutting and hauling the lumber. But where the timber trespass was especially egregious, don’t hold your breath waiting for compensatory-damage compassion from the bench.

But what about where the tree is not commercial timber, like that 80-year-old oak that used to shade your front yard before a confused tree service company employee cut it down, thinking he was supposed to be at your house instead of a place two streets away. The single oak’s commercial value won’t begin to compensate you for the loss.

There’s always a tension between the value a lover of the land places on his or her trees and the price tag affixed to those same trees by bean counters testifying in some cold courtroom. That’s why courts in many states apply different rules when the wrongfully taken tree was a stately old elm shading the farmhouse, a tree with maybe $1,000 in timber value but much greater value to the wronged property owner. The fact is that the wronged owner just plain likes the trees that had been taken, and the fact that his or her enjoyment of the trees might not be quantifiable in a real-estate-value analysis makes little difference.

Anderson v. Howald, 897 S.W.2d 176 (Court of Appeals of Missouri, 1995). Melba Anderson discovered the limits of gratitude. For 40 years, she had let her neighbors, the Howalds, use a 7-foot-wide path across the corner of her land to get to their property. In 1991, the Howalds – apparently deciding that they shouldn’t settle for free use of a mere path where a free superhighway could be installed – brought bulldozers onto the Anderson land to “improve” the path. They knocked down trees, dug up rocks, and gouged things out but good.

Ms. Anderson sued and won an injunction, throwing the Howalds and their bulldozer out, but the trial court only gave her $6.40 in damages.

She appealed.

Held: The puny damage award was reversed. The Court of Appeals noted that “ordinarily, the measure of damages… is the market value of the property at the time it was removed from the land.” In this case, the trees being shade and ornamental trees of no commercial value, their value was slight. That seemed to offend the Court, especially when it saw the photos in the record of the extensive damage done by the Caterpillars.

The Court held that “in at least one instance, this court approved the use of before and after values of the real estate as a measure of damages… where the things taken, injured, or destroyed by a willful trespass have no substantial market value when considered in their severed state. The “general rule is that the measure of damages for trees that are not valuable for timber is the injury to the land caused by destroying them. This rule is based on the obvious reason that the value of such trees considered apart from the land would not be adequate compensation for the trespass.”

Courts, then, generally apply a measure of damages that considers the fair market value of the property with the tree and without the tree (which can be substantial for a single huge specimen that is the signature tree on the property). More often, the courts hold that the proper measure of damages is the replacement cost of trees rather than the value of real estate, even if the property owner cannot prove that the destruction of trees diminished the value of the property as a whole.

Courts often permit consideration of such replacement costs where the trees have aesthetic value to the owner as ornamental or shade trees, or for purposes of screening sound and providing privacy, in determining damages. Because one simply cannot replace a 50-year-old sugar maple tree with a similar tree, the courts apply a multiplier to the replacement cost to account for the number of years it will take for a replacement tree to reach the size and maturity of the tree that was removed.

– Tom Root

Case of the Day – Monday, February 2, 2026

Posted on February 2, 2026 by TLRoot tagged.

ELECTRIC BOOGALOO

There are all sorts of ways that tree trimmers can die. They can cut an artery, fall from a bucket truck, or even get walloped by a branch (and sometimes, the whole tree). On occasion, they even get fried by electric lines.

None of it is pretty, either before or after the funeral. After the dust settles, the decedent’s estate (that is, the people the dead guy left behind) looks for someone to sue. Usually, the pickings are sparse. Maybe the bucket truck was defective, and the employer, the manufacturer and the mechanic who serviced it can be sued. Maybe it was a defective saw, and everyone who touched it could be a defendant. But negligence actions are expensive, and contrary to legend, they pay out a jackpot less often than a rigged lottery. Those lawyers on the back of phonebooks (there are still phonebooks, aren’t there?) and in the late-night ads? They won’t charge plaintiffs upfront, but they’re pretty picky about which cases they’ll take.

You would think that an electric utility would be the toughest nut to crack of all the potential defendants out there. What, you’re going to sue because the overhead wires had electricity in them? C’mon, man.

But every once in a great while, the utility is found to be liable for essentially having done nothing. Such is the case in today’s decision, which – while it does not involve a tree – gives us an excellent principle to apply to arboriculture activities.

Cyril Cronk lost his life by electrocution while digging a ditch for a water main on the south side of Park Avenue in Des Moines, Iowa. Iowa Power and Light had electric transmission lines running overhead, and a backhoe boom got close to one of the lines. It turned out that the boom did not have to touch the line for high voltage to jump the air gap. When it did, and Cyril (down on the ground) touched the backhoe, he became the ground wire. Not good.

The three lower wires on IPL’s poles were not insulated, a condition that was permitted by the applicable electrical code (although insulating material was available for such lines).

As it turned out, IPL was on notice of the water main work, or as the court put it, “It was reasonably to be anticipated and the defendant either knew or should have known that men would likely be working in the streets with modern machinery, such as was used in this instance, for the purpose of excavating or digging ditches or trenches for the laying of water mains.”

But the power lines were clearly visible to the guys on the ground. And the lines were necessary for the public good, and the danger that would result from coming in contact with such lines was hardly unknown. So the court’s conclusion that IPL was responsible for Cyril’s death is surprising. Maybe it was because the electric company had a deep pocket.

Tree trimmers frequently work near power lines. Would putting the power company on notice in advance make Reddy Kilowatt a codefendant if the unthinkable happens? Regardless of whether it did or not, it would probably be a good idea, just for the extra level of safety that power company participation in the project might bring.

Cronk v. Iowa Power and Light Company, 138 N.W.2d 843 (Supreme Court, Iowa, 1966). The deceased plaintiff, on whose behalf the suit was brought, Cyril Cronk, had been a waterworks employee. He was working on the ground helping free a crane bucket when the boom came in contact with a high-voltage transmission line, and he was electrocuted.

The trial court found liability strictly on the utility company’s failure to warn of the danger or insulate the wires after the utility company was fully aware the work was going to be done near the line, and the company had time to give a warning or insulate the wires. Defendant Iowa Power and Light (“IPL”) appealed.

Held: The Iowa Supreme Court held that the electric utility was liable. Compliance with the safety code is relevant to the question of due care, but not determinative. Proof of compliance with the standards furnished by the National Electrical Safety Code is not conclusive proof on the question of IPL’s due care. Actionable negligence may exist even if the utility company complied with the safety code requirements.

It was IPL’s duty to use reasonable care to prevent the escape of electricity in such a way as to cause injury to persons who might lawfully be in the area of danger incident to the escape of electricity from such lines. One who furnishes electricity, while not an insurer, is nevertheless held to the highest degree of care consistent with the conduct and operation of the business. A person or corporation maintaining and controlling wires for the furnishing of electricity to others must insulate their wires at all places where there is a likelihood or reasonable probability of human contact by people whose business or duty or rightful pursuit of pleasure brings them, without contributory fault on their part, into the zone of danger. However, in the absence of statute, this duty does not compel the electric company to insulate or adopt safeguards for the wires everywhere, but rather only at places where people may reasonably be expected to come in proximity to them.

The Supreme Court held that the evidence supported finding the utility company had been negligent in failing to insulate wires at such a point, and that this negligence had been the proximate cause of Cronk’s death.

– Tom Root