Case of the Day – Thursday, April 9, 2020

LETTING SLEEPING EASEMENTS LIE

poster151022The fight against the current COVID-19 pandemic has been compared to a war effort. That is in part to remind us that we all have to contribute to the common struggle. A long time in a war far away, everybody was doing all he or she could for the war effort. Buying bonds, working on the home front, soldiers marching, airmen flying, sailors sailing, marines landing… we were all in it together.

The Heaths, who owned property in New Jersey, were in it, too, and were only too happy to provide an easement to a defense plant for a natural gas pipeline to be laid under their land.

The War ended but the easement lived on. It passed from owner to owner (as did the unimproved land to which the easement applied) until the easement for the gas lines was owned by Duke Energy and the unimproved land had become University Heights. By then, the easement for the gas lines was lined up with a beautiful boulevard that had been built over it. That boulevard, Fountain Avenue, in turn, but was lined with 75’ tall trees.

Fast forward to 2001, a new century, a time when World War II vets were octogenarians. Duke Energy announced that it was going to cut down the trees to better service the gas lines. All that collective “we’re in it together” twaddle had long since gone the way of Howdy Doody and the jitterbug. By the new millennium, it was every dog for himself. Thus, as they say in legal circles, litigation ensued.

The trees belonged to the Township, although as the Court of Appeals observed, the homeowners thought of them as their own. The Township rolled over and agreed that Duke could take down 55 of the 80 it had planned to cut, but the residents kept up the fight. The trial court sided with them, and prohibited Duke from cutting the trees.

Duke appealed, arguing the homeowners had no standing to stop it. After all, the trees didn’t belong to them. Standing is a powerful concept in the law. The Constitution empowers courts to hear “cases and controversies,” and those words have meaning. If a party lacks standing, that is, skin in the game, there’s no real case or controversy, because the parties aren’t really at loggerheads.

Here, the Court disagreed with Duke. A 75’ shade tree in your front yard is, the Court said, powerful incentive to litigate vigorously. However, the Court said, the trial court’s siding with the homeowners on summary judgment was too hasty. Real questions existed whether aerial surveillance was necessary, whether the tree roots were really invading the gas line, and whether the trees would keep crews from an emergency break.

Gas line explosions are usually big enough to get ...your attention ... hence, Duke Energy's concerns were entirely fanciful

Gas line explosions are usually big enough to get your attention. Hence, Duke Energy’s concerns were not entirely fanciful …

Township of Piscataway v. Duke Energy, 488 F.3d 203 (3rd Cir., June 6, 2007). In the early 1940s, Flora and H. Morgan Heath took title to a large tract of undeveloped land in the Township of Piscataway. The Heaths granted Defense Plant Corporation “the right to lay, operate, renew, alter, inspect and maintain” two pipelines for the transportation of natural gas across the land. The 1944 grant required Defense Plant “to bury such pipelines so that they will not interfere with the cultivation or drainage of the land, and also to pay any and all damages to stock, crops, fences, timber and land which may be suffered from the construction, operation, renewal, alteration, inspection or maintenance of such pipelines.” Defense Plant subsequently installed two 20-inch diameter natural gas pipelines.

In January 1960, the Richters and Gerbers (who now owned the property) granted TETCO — which was Defense Plant’s successor — the right to construct a third pipeline across the property. The 1960 grant allowed the owners “to fully use and enjoy the said premises, except for the purposes granted to [TETCO] and provided the [owners] shall not construct nor permit to be constructed any house, structures or obstructions on or over, or that will interfere with the construction, maintenance or operation of, any pipe line or appurtenances constructed hereunder, and will not change the grade over such pipe line.” TETCO agreed to bury all pipes to a sufficient depth so as not to interfere with cultivation, and agreed to pay such damages which may arise to growing crops, timber, or fences from the construction, maintenance and operation of said lines. TETCO then constructed a third 36-inch diameter pipeline.

Three years later, three real estate development companies that then owned the property entered into an agreement with TETCO in which TETCO agreed to reduce the size of the easement by releasing all portions of the land in the prior grants not needed for the pipelines. Attached to the 1963 agreement was a drawing prepared by TETCO, which showed a proposed residential neighborhood through which TETCO’s 60-foot wide easement ran at a slight diagonal. The 1963 agreement preserved all of the rights and restrictions set forth in the prior grants. Later, Duke Energy succeeded TETCO.

Meanwhile, as a result of residential development of the property, the land on which the easement is located became a one-block long public street named Fountain Avenue. The street became flanked by a large number of trees, many of which were planted in the early 1960s as part of the original residential development of the neighborhood and have grown to about 75 feet tall.

The homeowners who became part of this lawsuit lived in single-family homes built by the developers on lots lining Fountain Avenue. Although all of the trees at issue in the case were located on Township property, the homeowners viewed the trees, from a practical and aesthetic perspective, as extensions of their front yards. In April 2000, Duke announced that it would be removing approximately 80 trees from Fountain Avenue in order to better maintain the pipelines. Township residents vehemently opposed the proposed action, and sued Duke for an order prohibiting the Township and the homeowners from interfering with Duke’s rights under the easement.

The Township settled with Duke and consented to the immediate removal of fifty-five trees from Fountain Avenue, as well as to the future removal of any trees that exceed eight inches in diameter. The homeowners disagreed, and proceeded with the case. Following a hearing, a federal district court granted the homeowners’ motion for summary judgment, concluding that Duke failed to offer any evidence that removal of the trees was “reasonably necessary” to the maintenance of the pipelines and that Duke was barred by the doctrine of laches from asserting a right to remove the trees pursuant to the terms of the easement grant.

Duke appealed.

street151022Held: The case was sent back to the trial court. Duke argued that because the homeowners didn’t own the trees, they lacked the legal standing to stop Duke from cutting them down. But the Court disagreed, finding that removal of the trees from in front of homeowners’ property would have caused actual injury to the homeowners’ servient estates. The trees added to the value of the owners’ property, and they helped reduce air pollution, improved air quality, and provided cooling shade which reduced energy costs in summer months.

Under New Jersey law, the Court said, there is an implied right arising out of every easement to do what is reasonably necessary for its complete enjoyment. However, that right is to be exercised in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner. Therefore, summary judgment for the homeowners wasn’t proper here, because a genuine issue of material fact existed as to whether aerial surveillance was reasonably necessary to the maintenance of natural gas pipelines and, if so, whether the trees along Fountain Avenue prevented such surveillance. Likewise, a question existed as to whether the trees prevented operators from gaining quick access to pipelines in event of an emergency, as well as to whether the root growth of the trees posed a significant threat to the integrity of the pipelines.

The trial court also found that Duke was barred by laches from seeking to remove the trees now, after having had the right to do so for many years without exercising it. Under New Jersey law, laches may be enforced only when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned. The key factors to be considered when deciding under New Jersey law whether to apply the laches doctrine, according to the Court, were the length of the delay, the reasons for the delay, and the changing conditions of either or both parties during the delay. In this case, the Court said, there was evidence of newly promulgated natural gas transmission standards, as well as greater attention paid to natural gas pipeline safety, as a result of recent catastrophes. Those new developments, the Court said, were sufficiently compelling to create a genuine issue for trial.

– Tom Root

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And Now The News …

Farm and Dairy, April 9, 2020: Don’t top trees, you’re basically killing them

Topping a tree is an all-too-common practice among homeowners, particularly when their trees become too tall and pose a possible threat to the house or overhead power lines. Some have the trees topped because they believe, or are led to believe, that topping is a good pruning practice. Some situations obviously require the removal of large limbs for the sake of safety. But topping is a drastic step that ultimately endangers the tree’s life. Removing such a great quantity of growth in one shot throws off the roots-to-shoots balance that the tree has gradually developed all those years. The much-reduced leaf surface will not be able to manufacture sufficient food reserves to feed the large root system. As roots starve, the rest of the tree will suffer from insufficient moisture and nutrients. Another drawback to topping for many tree species is the stimulation of numerous, upright branches that grow straight up. These shoots are typically very soft, weak growth that breaks easily and is more susceptible to attack by diseases and insects…

Ottawa, Ontario, Citizen, April 4, 2020: Science of spring: Why trees are the last plants to green up

With people stuck at home and worried about their future, there is no better time to remind ourselves of the wonders of spring. The change of season is all around us with many facets of backyard biology, perhaps even things your kids might want to learn. In today’s Science of Spring, Tom Spears looks at nature’s timetable for greening up. Trees often look as though early spring is passing them by as they stand, grey and leafless, while lawns turn green and early flowers bloom. In fact, the tree is busy during this season, especially the deciduous trees that dropped their leaves in the fall. But all their work in April is under cover. Like a car that spent all winter in a snowbank, the tree has a big job coming back to life. Sally Aitken, a researcher and associate dean of forestry at the University of British Columbia, leads us through it. “The thing about being a tree is you’re stuck there all winter in the cold,” she said. “You’ve got a big stem and you’re very exposed to the cold,” unlike little perennial plants that die back above ground and shelter underground. Some of these even have ready-to-use food in bulbs…

Fine Homebuilding, April 8, 2020: Salvaging Trees for Lumber

Back in the late 1970s, my wife and I purchased 25 acres of forested mountain land in Virginia with the intention of homesteading. In the ensuing years, careers developed, the kids grew up, and the homestead never happened—but we kept the land anyway. Call me a tree-hugger, but there was something satisfying about keeping that little piece of Creation wild. Meanwhile, the forest kept on growing. We cut firewood as needed, but had no real desire to harvest timber. The situation changed recently, however, due to a freak storm and an insect blight. The storm knocked down a number of mature hardwoods and the blight, caused by the emerald ash borer, is gradually wiping out an entire species. We had to decide to either salvage the trees or let them rot in the woods. of invasive species, such as the ash borer—a wood-boring beetle… As a builder and woodworker, my instinct was of course to salvage the wood from our doomed trees. That turned out to be more challenging than I realized it would be. There are four distinct issues that need to be addressed in order to convert trees to lumber: logging, milling, drying, and storage…

New Zealand, Newshub, April 4, 2020: Coronavirus: Growers fear millions of fruit will rot on trees

One Hawke’s Bay grower fears 12 million of his apples will rot on the trees because the lockdown has slowed production. The apple and kiwifruit industries are facing growing uncertainty as the COVID-19 crisis shuts down supply chains around the world. Apple trees are overflowing at this time of the year. But for Yummy Fruit manager Paul Paynter it’s a picking season like he’s never seen before. “This is really unique,” he told Newshub. That’s because the nationwide lockdown has come right in the middle of the apple harvest. Usually bustling packhouses are slowing down due to social distancing rules. “[It’s] pretty traumatic, very hard on the staff,” Paynter says. “In an already difficult time of the year they’re already tired and stretched and it’s a whole other level of complexity and pressure but that’s just the game, we’ve got to suck it up…”

Fast Company, April 6, 2020: We need trees to fight pollution in cities—but which trees we use matters a lot

Though having a lot of greenery indoors may not significantly remove pollutants from the air of your home (though the plants do look nice), green infrastructure does have a large impact. Some outdoor vegetation does directly remove pollutants from the air, but even on the scale of an entire city, this effect is pretty negligible. Instead, what greenery can do in a specific area or on a specific street, though, is form a physical barrier between traffic emissions and pedestrians walking around, which does protect from the health effects of air pollution. It’s not that just having trees somewhere in a city helps to make the air less polluted; it’s more about having the right kinds of trees in the right places. Trees that are part of these green barriers do directly capture some pollutants. They also divert and dilute plumes of polluted air, even affecting wind flow depending on how porous or dense the green infrastructure is. In a paper recently published in Climate and Atmospheric Science, two experts from the Global Center for Air Research (GCARE) analyzed scientific literature on what aspects of green infrastructure influence ambient air quality, and put together information about 12 influential traits for 61 tree species to help urban planners and landscape architects pick which trees to plant to be the best barrier against pollutants…

Exeter, UK, University of Exeter, April 6, 2020: Unplanned tree planting could increase global warming and damage the environment, experts warn

No one doubts that trees can help suck carbon dioxide, the main greenhouse gas, out of the atmosphere and help tackle climate change. However, a new report from the Government’s independent advisors, the Natural Capital Committee (NCC), shows that unless the massive expansion of tree planting promised in the run up to the last UK general election is planned with an eye to its wider effects, it could cause problems for the environment, or even result in increased greenhouse gas emissions globally. The report lists a number of ways in which unregulated planting could increase global warming. Boggy peatland soils lock up vast quantities of carbon, but planting trees here can dry these soils out, leading them to emit far more greenhouse gas than will ever be captured by those trees. There is also uncertainty regarding the extent to which planting trees on some types of farmland might cause the UK to increase its imports of meat from countries which farm beef by cutting down rainforests, thereby releasing huge quantities of carbon into the atmosphere. These problems might well arise if tree planting subsidies simply focus on the cheapest land available, such as wetlands or upland farming areas…

Little Rock, Arkansas, Democrat-Gazette, April 7, 2020: Springtime jelly straight from the tree

A highlight of our white bass fishing trip came at the end when Becky Roark surprised us with a jar of her home-made redbud jelly. Redbud trees are pretty to look at, for sure. Their flowers are the main ingredient in Roark’s redbud jelly. We were tickled that she gave Alan Bland and me each a jar to take home. First thing I did after cleaning fish was to pop a slice of wheat bread into the toaster. A little butter and a slather of Roark’s jelly had the toast ready to try. Redbud jelly was all new to me. I’d never heard of such a thing. Friends and neighbors, it is delicious. It’s even better that Roark, of Fayetteville, is happy to share her recipe for redbud jelly with us here today. Here’s the recipe she sent, along with some notes: We usually gather flowers from one or two branches of several trees so we don’t take too much from any one redbud, since they are pollinators for bees. Eastern redbud is an Ozark native and a great replacement for those pesky Bradford pear trees. This springtime jelly recipe will be a family favorite for years to come! We’ve added strawberries to a batch and made strawberry redbud jelly. Yum! You can add lavender, vanilla, and other ingredients, too. We also messed up a batch (didn’t set right) but it turned into some amazing pancake syrup, ha…

Roanoke, Virginia, WDBJ-TV, April 6, 2020: Tree sitters adjust to coronavirus concerns, continue blockade

Opponents of the Mountain Valley Pipeline took social distancing to new heights, when tree sitters blocked the path of the project in Montgomery County, but they aren’t isolated from concern about COVID-19. The tree sitters established their blockade a year and a half ago, and they are still there. We checked in with them recently to see if they have been affected by the coronavirus pandemic, and they provided a video. They say they remain committed to stopping construction of the controversial project. “As I’m sure you all well know, it is so hard to watch the coronavirus sweep across the globe, taking and threatening the lives of so many,” said the unidentified tree sitter…

Courthouse News Service, April 3, 2020: Ninth Circuit Halts Feds’ Tree-Thinning Project Over Its ‘Vague’ Science

The United States Forest Service prematurely authorized a tree-thinning project in Mt. Hood National Forest without assessing its environmental impact, the Ninth Circuit ruled Friday. In 2018, several conservation groups sued the agency over plans to sell timber harvested from about 12,000 acres of public land, including roughly 4,000 acres of old-growth conifers in Mt. Hood National Forest. The Forest Service dubbed it the Crystal Clear Restoration Project, saying the tree-thinning would reduce wildfire risk. But Cascade Wildlands, Bark, and Oregon Wild argued that mature tree removal may not actually help with fire suppression, pointing to articles from The Open Forest Science Journal and Forest Ecology and Management, as well as other expert sources to support their claims. “The plaintiffs, especially Bark, got people out into the landscape and spent thousands of hours collecting information about what was going on in the land and gave that information to the Forest Service,” said attorney Brenna Bell…

Arlington Heights, Illinois, Daily Herald, April 5, 2020: Tree pruning is underway

When pruning large limbs off trees, it is a good idea to make an undercut first. This is a cut from the bottom up, about one-third of the way through the limb, 4 inches or so away from the main trunk. Make the next cut from the top, an inch or so outside of the undercut to remove the limb. The undercut keeps the limb from splitting and breaking off, which could damage the trunk. Do not cut flush to the trunk, but just outside the branch collar at the base of the branch. Look for the point where the branch is enlarged close to the main trunk of the tree. It is generally not recommended to paint the wound; make the cut with a sharp saw at the proper point for best results…

Dayton, Ohio, Daily News, April 5, 2020: Local lumber business helped tornado trees find new life

During this difficult time, it’s easy to forget that last May, Dayton was in the middle of another crisis when several powerful tornadoes left many homeless and many more to deal with property damage and devastation. Barrett Niekamp and his dad, Tony, are owners of Moraine-based Outdoor Living Group. Niekamp had been working on expanding the business when the tornadoes hit last Memorial Day weekend. “My dad started the company in 2003 and historically we have been in the hardscape and water-feature industry,” Niekamp said. “We’ve done a lot of water gardens and we even built the big children’s garden at Wegerzyn Garden Center.” After majoring in entrepreneurship at Sinclair Community College, Niekamp knew he’d follow in his dad’s footsteps in the family business. And he started becoming more involved in the company. “I started the sawmill part of our business mainly to provide income in the winter,” Niekamp said. “It’s been a good move.” It may seem completely contrary to his business model, but Niekamp has developed an enduring respect for trees over the years and salvages nearly everything he processes from locally sourced trees…

Million Acres, April 5, 2020: Tree Removal for Do-It-Yourselfers: Get Referrals and Call a Pro

Paying someone to remove trees from your yard can be expensive, but so is a trip to the emergency room. Chain saws, ladders, gravity. What could go wrong? That said, there is some advice out there for do-it-yourselfers determined to rid their property of a dead, dying, or just, in their eyes, distasteful piece of tall, woody vegetation. First, determine whether the tree is one you can, indeed, remove safely on your own. A piece of advice worth considering, albeit from a company that wants to do it for you, is this: “If the tree is small enough that you could remove it without climbing a ladder, it’s likely OK if you remove it yourself.” That’s according to Davey Tree, an Ohio-based firm that’s been coming between chain saws and do-it-yourselfers since 1880, before there even were chain saws or middle-class suburban homesteads by the millions. A tree that small, of course, can be easily toppled and limbed up for disposal. As for the trunk and stump, here are three steps to consider according to the company…

BBC, April 2, 2020: Conifer is top tree in urban sound absorption test

Scientists say trees have a role to play in combating noise pollution in urban environments and have identified the best species for the job. The larch was found to be the most effective tree when it comes to absorbing noise with its bark. The conifer was the most effective out of 13 tree species in a laboratory-based sound absorption test. The researchers say the findings can help urban planners use trees for noise control. The results have been published in the Applied Acoustics journal. The study assessed 76 samples from 13 tree species that displayed a variety of different bark characteristics. Co-author Jian Kang, from University College London (UCL), said: “Beside emphasising the effects of vision and shade, urban greening should be considered as well to achieve noise reduction during propagation.” He told BBC News: “Using plants as a potential ‘silencer’ of urban noise could combine environmental protection and landscape business.” The samples were selected by using a range of criteria, including bark thickness, tree age and trunk diameter. Disks of the trunks were collected from recently felled trees. “The main goal was to have a sufficient variety of species, including broadleaved and coniferous,” Prof Kang observed…

Davis, California, University of California, April 1, 2020: Almond Orchard Recycling a Climate-Smart Strategy

Recycling trees onsite can sequester carbon, save water and increase crop yields, making it a climate-smart practice for California’s irrigated almond orchards, finds a study from the University of California, Davis. Whole orchard recycling is when old orchard trees are ground, chipped and turned back into the soil before new almond trees are planted. The study, published in the journal PLOS ONE, suggests that whole orchard recycling can help almond orchards be more sustainable and resilient to drought while also increasing carbon storage in the soil. “To me what was really impressive was the water piece,” said corresponding author Amélie Gaudin, an associate professor of agroecology in the UC Davis Department of Plant Sciences. “Water is central to how we think about agriculture in California. This is a clear example of capitalizing on soil health. Here we see some real benefits for water conservation and for growers.” Drought and high almond prices have encouraged higher rates of orchard turnover in recent years. The previous practice of burning trees that are no longer productive is now restricted under air quality regulations, so whole orchard recycling presents an alternative…

Spokane, Washington, Spokesman-Review, April 3, 2020: High demand for apples keeps production workers on the line with new safeguards

In recent weeks, Nadia Manjares has been waking up at 4 a.m. to get ready for a 10-hour shift of packing apples, making sure people all over the country can buy the fruit at their local grocery store. “The work is always heavy, but it’s been heavier because the company received a higher number of orders,” she said. Manjares has been working at Stemilt Growers for 16 years. Two weeks ago, Washington had its largest volume of orders since 2015, shipping about 3.9 million boxes in one week, said Tim Kovis, communications manager for the Washington State Tree Fruit Association. A 40-pound box usually contains about 80 to 88 apples, depending on variety. Although the overall demand for apples from foreign markets went down this week, the domestic demand is still greater than normal, making up for declines from trade disruptions to foreign markets. “But it’s very difficult to know whether or not that (domestic increase) is due to the current COVID-19 issue or our ongoing trade issues that we’re facing,” Kovis said. Packing warehouses have been following Centers for Disease Control and Prevention and state Department of Health guidelines, ensuring workers wash their hands properly and stay home if they’re not feeling well, Kovis said…

Houston, Texas, Chronicle, April 2, 2020: Time to thin certain fruit on trees

You are probably saying!! “What? My tree needs to be thin?” Well, that is almost the idea. Your stone fruit trees can benefit from a little reduction of production. Reducing the amount of fruit on the tree has more benefits than you think. Your stone fruits are the peaches, apricots, nectarines, cherries and plums. Some fruit shedding occurs naturally as fruit develops on the tree. This is due to lack of pollination, environmental conditions or stress. Granted, if a tree is in perfect health, the main factor that will truly influence fruit production load and quality is chill hour accumulation. There are additional reasons like lack of water, overwatering, improper fertilization, diseases and insect damage. Mother Nature has control! Unfortunately, some of the previously mentioned reasons can be controlled by the keeper of the tree. Moving forward, I will refer to peaches for the examples. Without any intervention, most peach trees set more fruit than can be consumed. So, now onto the hardest part for any gardener! Removing fruit!!! I know, I said it. So why remove fruit? Thinning controls the number of fruit on the tree. The result will be an increase in fruit size and better quality. In addition, it will decrease the cumulative weight of fruit that will impact individual limbs and branches. A massive fruit load can break or crack the limbs and branches. Without going into great detail, thinning reduces the overall stress for the tree during the production season which makes for a healthier tree in the long run. I almost forgot! This thinning process will also help the tree produce with more consistency in the future. This is especially important with most citrus…

Agana, Guam, Stars & Stripes, April 1, 2020: Beetles are wiping out Guam palms, including those at Andersen’s Palm Tree Golf Course

The way things are going, the Air Force may have to come up with a new name for its golf course at the home of the 36th Wing on Guam. The Palm Tree Golf Course, as Andersen’s 18 holes are known, is infested with voracious coconut rhinoceros beetles, Oryctes rhinoceros, whose meals of choice are the coconut palms that the links are named for. Course manager Steven O’Hearne can only watch from his clubhouse — formerly the base officer’s club — as the beetles gnaw their way, one-by-one, through the beautiful palm trees outside. The damage caused by the tenacious insects is visible yards from the clubhouse door where several nearby coconut trees are on their last legs. Stripped of fronds, the diseased trees look a little like telephone poles. The University of Guam College of Natural and Applied Science has a website devoted to waging war on the invasive beetles, which were discovered on the U.S. island territory in 2007…

Wired, April 1, 2020: Why Old-Growth Trees Are Crucial to Fighting Climate Change

Ken Bible steps over a carpet of bracken and vanilla leaf to get closer to the big Douglas fir. He gives its furrowed bark an affectionate slap, as if introducing a prize racehorse. “It’s about 70 meters tall and 2.6 meters in diameter,” Bible says, leaning back to take in the behemoth stretching above him. From way down here on the shady floor of the forest, he has no hope of seeing all the way to the tree’s top. But thanks to a 279-foot-high tower that rises above the trees, Bible, who helps manage this site on behalf of the US Forest Service, has had the chance to know this old Doug from above as well as below. From hundreds of feet up, at canopy level, he says, you begin to get a new vision of the complexity of structure that defines an old forest. “It looks like a mountain range,” Bible says. “You’ve got ridges and peaks and valleys.” Singular trees like the big Doug reach high over their neighbors. At around 500 years of age, it isn’t the oldest tree in the forest, but a lucky location near a wetland has made it one of the biggest. The Doug is lucky in other ways too. Once upon a time, its particular seed happened to fall from a particular drying cone into what, hundreds of years later, would become a small section of protected old growth inside the Wind River Experimental Forest, a research area in southern Washington state originally created to study the best ways to exploit forests for human use…

Ars Technica, April 1, 2020: BBC’s 1957 April Fool’s “spaghetti-tree hoax” is more relevant than ever

We here at Ars do not typically indulge in the online prankery that comes with April Fool’s Day and are even less inclined to do so in the current climate. But it does provide an opportunity to revisit one of the most famous media hoaxes of the 20th century: the so-called “spaghetti-tree hoax,” the result of a two-and-a-half-minute prank segment broadcast on the BBC’s Panorama current-affairs program on April Fool’s Day in 1957. It’s a fun, albeit cautionary, tale of not believing everything you see on television (or read online). The man largely responsible for the hoax was Austrian-born Panorama cameraman Charles de Jaeger, who liked to play practical jokes. As a kid, one of his school teachers used to tell the class, “Boys, you’re so stupid, you’d believe me if I told you that spaghetti grows on trees.” De Jaeger had always wanted to turn this into an April Fool’s prank, and in 1957, he saw his chance. April Fool’s Day fell on a Monday, the same night Panorama aired. He argued that he could do the shoot cheaply while working on another assignment in Switzerland, and Panorama editor Michael Peacock approved a tiny budget of £100 for the project. The sequence was shot at a hotel in Castiglione on the shore of Lake Lugano. De Jaeger bought 20 pounds of uncooked homemade spaghetti and hung the strands from the branches of the laurel trees around the lake to make it seem like they were “spaghetti trees”…

Forbes, April 1, 2020: Turning Olive Tree Branches Into Biofuel For Clean Energy

The road to sustainable farming is not just about saying goodbye to pesticides and chemical fertilizers and going organic. In the olive-oil producing region of Puglia in Southern Italy, olive farmers are converting agricultural waste into a source of clean energy. Branches cut down during the olive harvest are collected from farms surrounding the small town of Calimera and turned into wood chippings. The chippings are used as a biofuels that feed the boiler of a local power plant. But unlike other biomass power plants, this system does not use the hot water from the boiler to drive a steam turbine. Instead, the water passes through a heat exchanger, which contains a separate fluid with a lower boiling point than water, operating in a closed loop. The resulting vapor drives an Organic Rankine Cycle (ORC) turbine, rotating at a relatively slow RPM. This system can generate power from lower temperatures, making it more energy efficient…

 

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Case of the Day – Wednesday, April 8, 2020

WORKERS COMP TRUMPS CREATIVITY

cash151021Whenever an accident results in permanent disability, it is understandable that the injured party and his family looks for as many deep pockets as they can find.

A million bucks sounds like a lot of money (unless you’re Congress), at least until you deduct a third for the lawyers, and spend the rest on a lifetime of care and support for a paraplegic. The facts of today’s case are rather prosaic: workers from a landscaping service were trimming a tree. Something may have slipped — or maybe it was just one of those things — but a tree limb fell and struck José Garza, who was on the ladder, knocking him off and causing spinal cord injury.

Missouri workers’ comp awarded José $1 million. But he nevertheless sued his employer and the other workers who present that day, alleging negligence. The Missouri trial court quickly threw out the claim against the employer — after all, this kind of litigation was just what workers’ comp was supposed to avoid. But the Court struggled with the claims against his jobsite supervisor and two fellow landscapers.

noway161205The move was creative.  After all, José argued, the statute just protected the employer from liability, not anyone else who happened to be there (like co-workers, who – face it – can sometimes be dim bulbs). Why shouldn’t other employees, especially supervisors, be liable for negligence?

The Court of Appeals  said, “No way, José.” In order to take the co-workers outside the protection of the statute, José would have to show some they had engaged in some sort of purposeful, affirmatively dangerous conduct, much more than the garden-variety negligence he alleged had occurred that day. To rule otherwise would completely undermine the policies underlying workers’ comp, and at the same time make it just about impossible to recruit and afford to keep employees (who would demand insurance coverage as a condition of employment).

Thus, the courts never reached the question of whether anyone had been negligent that day, because even if everything José alleged were true, it would just not be enough.

falloff151021Garza v. Valley Crest Landscape Maintenance, Inc., 224 S.W.3d 61 (Ct.App.Mo. 2007). José Garza worked for Valley Crest Landscape Maintenance, Inc., as a landscaper. One day, he was told to report to a home to provide landscaping services. Brad Mason, a supervisor, directed which trees to trim. Garza’s crew leader, Rafael Moya, instructed Garza to climb a ladder and cut a specified limb. Moya placed the ladder against the tree, held the ladder, and rigged ropes to the limb to be cut. Javier González held the rope which Moya had rigged, while Garza climbed the ladder. While Garza was on the ladder, the limb knocked him to the ground, causing a permanent spinal cord injury.

Garza filed a worker’s compensation claim and collected over $1 million on the claim. He then filed a complaint in state court against Valley Crest, Mason, Moya and González, alleging negligence. The Defendants moved to dismiss on lack of subject matter jurisdiction, claiming that worker’s compensation was the sole remedy available to Garza.

The trial court agreed. Garza appealed.

negligence151021Held: The dismissals were affirmed. Normally, workers compensation is intended to be a worker’s only remedy for injuries on the job, even where those injuries are the result of the negligence of the employer. Generally, co-employees enjoy the same protection under the exclusive remedy provision of the workers compensation statute as the employer, absent a showing of something more. That “something more” is a determined on a case-by-case basis and includes any affirmative act, taken while the supervisor is acting outside the scope of the employer’s duty to provide a reasonably safe environment, that breaches a personal duty of care the supervisor owes to a fellow employee.

Allegations by Garza against his co-workers that they failed to securely hold a ladder, failed to properly rig ropes to the branch being cut, failed to create a proper support with the rope, and failed to use reasonable care in holding the rope did not amount to the purposeful, affirmatively dangerous conduct that was required to move the co-workers outside the protection of the statute’s exclusive remedy provisions.

The Court held that mere allegations of negligence are “not the kind of purposeful, affirmatively dangerous conduct that Missouri courts have recognized as moving a fellow employee outside the protection of the Workers’ Compensation Law’s exclusive remedy provisions.

– Tom Root

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Case of the Day – Tuesday, April 7, 2020

BLINDED BY THE LIGHT

Angelspathsite140325Rare is the opportunity to glean two instructive cases from one malefacting (if that’s a word) defendant. However, such is our good fortune with Ohio developer Angel’s Path, LLC (and yes, the apostrophe suggests there was only one angel on the path). Last month, we reported on disgruntled Angel’s Path neighbor Clarence Peters, who narrowly escaped being thrown out of court because he defended against summary judgment on the cheap. At the time, we promised the tale of the Kramers the next day. Sorry about that – who knew how much interesting stuff would happen in the meanwhile?

But at long last, we find out how his neighbors, the Kramers, fared when they went after the same developer because their home was disrupted by noise, dirt and even light from the new home development.

The Kramers claimed the dust and dirt was a public nuisance, and that Angel’s Path was causing the light to trespass on their homestead. These were both creative arguments, but the Kramers were doing their best to find a legal theory that would address the injustice they were experiencing. The developer leveled its legal guns, taking a very legalistic approach: the nuisance couldn’t be a public nuisance, it said: a public nuisance has to be affecting the plaintiff differently from the general public, and the general public was eating Angel Path’s dust just as badly as were the Kramers. As for the annoying light, Angel’s Point contended, there just weren’t any cases that said light could be a trespasser.

Chief Justice Oliver Wendell Holmes once famously chided a lawyer arguing before him that “this is a court of law, young man, not a court of justice.” Fortunately for the Kramers, the Ohio Sixth District Court of Appeals wasn’t having any of that. Often one can tell when a court is stretching to find some way to do justice. Clearly, the appellate judges were disenchanted with the developer, the lawyers for which were essentially telling them that while Angels’ Path had done everything the Kramers accused it of, there wasn’t anything the law could do about it. Nyah-nyah-nyah-nyah-nyah.

But it turned out that there was something the Court could do about it. It reinstated the suit, warning the Kramers that they might find it tough to win a trial, but the facts they had alleged suggested several theories they could pursue.

With the case once again headed for a jury of just plain folks who would be unimpressed with Angel Path’s legal hair-splitting and probably sympathetic to the sleep-deprived, dust-covered Kramers, one imagines that Angel’s Path very quickly recalled another pithy legal aphorism: “A bad settlement is better than a good lawsuit.”

Our takeaway from this case is that nuisance actions can be both flexible and powerful means of redressing neighbors’ activities that interfere with the legitimate enjoyment of home and hearth.

Kramer v. Angel’s Path, LLC, 174 Ohio App.3d 359, 882 N.E.2d 46 (Ct.App. 6 Dist. Ohio 2007). William and Patricia Kramer, sued Angel’s Path, L.L.C., alleging that construction in a housing development resulted in blowing dust and dirt tracked onto their street and trespass from a lighted “promotional” sign that lighted the front of the Kramers’ residence 24 hours a day. They alleged that Angel’s Path’s development was a public nuisance because of the dirt and Angel’s Path was actually trespassing on their land with the 24-hour lighted sign.

The trial court threw the suit out altogether. The Kramers appealed.

Held: The Kramers could proceed to trial against Angel’s Path.

The Court of Appeals held that the Kramers were clearly wrong that the development was a public nuisance, but the facts they had alleged in their complaint, if true, did make out a claim for a private nuisance. The rule is that courts should interpret complaints to do “substantial justice,” and it would be unfair to make hyper-technical demands for precision in complaints. The rules only require that a complaint “contain a short and plain statement of the circumstances entitling the party to relief and the relief sought.” The factual allegations in the complaint should control whether some legal cause of action has been properly pleaded and supported on summary judgment.

The opinion contains a welcome primer on nuisance law. The Court noted that the law of nuisance “has been described as the most ‘impenetrable jungle in the entire law’.” Generally, though, nuisance” is defined as “the wrongful invasion of a legal right or interest.” It may be designated as “public” or “private.” A public nuisance is “an unreasonable interference with a right common to the general public,” and arises only where a public right has been affected. To recover damages under a claim of public nuisance, the plaintiff must establish (1) an interference with a public right and (2) that the plaintiff has suffered an injury distinct from that suffered by the public at large.

To the Kramers, “Blinded by the Light” was more than a Springsteen ditty once covered by Manfred Mann … it was an every-night occurrence.

By contrast, a “private nuisance” is a non-trespass “invasion of another’s interest in the private use and enjoyment of land.” Unlike a public nuisance, a private nuisance threatens only one or few persons. In order for someone to be entitled to damages for a private nuisance, invasion has to be either (a) intentional and unreasonable or (b) unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

A nuisance may be “continuing or permanent.” A continuing nuisance arises when the wrongdoer’s tortious conduct is ongoing, perpetually generating new violations. A permanent nuisance, on the other hand, occurs when the wrongdoer’s tortious act has been completed, but the plaintiff continues to experience injury in the absence of any further activity by the defendant.

For a nuisance to be an absolute nuisance, it must be based on intentional conduct or an abnormally dangerous condition that cannot be maintained without injury to property, no matter what precautions are taken. Strict liability is imposed upon an absolute-nuisance finding. When a defendant commits an unlawful act deemed to be an absolute nuisance, he or she becomes an insurer, and will be liable for “loss resulting from harm which may happen in consequence of it to persons exercising ordinary care, irrespective of the degree of skill and diligence exercised by himself… to prevent such injury.”

Every day seemed like the Dust Bowl to the Kramers ...

Every day seemed like the Dust Bowl to the Kramers …

On the other hand, if the conduct is a “qualified” nuisance, it is premised upon negligence. A qualified nuisance is defined as essentially a lawful act “so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.” Under such circumstances, the nuisance arises from a failure to exercise due care. To recover damages for a qualified nuisance, negligence must be alleged and proven. Whether a party’s actions were reasonable is generally a matter for the trier of fact.

Trespass on real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another. The elements of a trespass claim are “(1) an unauthorized intentional act and (2) entry upon land in the possession of another.” A trespass claim exists even though damages may be insignificant. A person can be a trespasser without actually stepping onto another’s property. A trespass may be committed by invading the airspace of the property. This principle is based upon the concept that an owner of land owns as much of the space above the ground as he or she can use.

Here, Angel’s Path argued that the Kramer’s “public nuisance” was undercut by their admission that several neighbors suffered from the same excessive dirt and dust that bothered the Kramers. Therefore, it claimed, the Kramers failed to establish a claim for nuisance, because their injuries were no different that those suffered by the public in general. Angel’s Path also argued that the light shining into the Kramer home was not a trespass.

The Kramers countered with an affidavit and photos of the property across from their home and of their home, showing that the dirt and dust blew straight from the Angel’s Path property across their land. They even produced Weather Service wind records supporting the claim. As for the light, they contended that the entrance-sign light ­– directly across from their house – continuously lit up their home “in an annoying and harassing manner,” including the three front bedrooms. They had asked Angel’s Path turn off the light, nothing changed until after they sued, and took the deposition of an Angel’s Path executive.

The Kramers showed proof of the dirt in their home, and documented the costs of cleaning it up. They also described the Angel’s Path sign – “like a headlight shining into [the] bedroom windows” – and the problems this caused.

The Court of Appeals disagreed with Angel’s Path that a claim for “public” nuisance could not be sustained, because too many people apparently suffered the same deprivations. Under this line of reasoning, the Court observed, a person creating a public nuisance could escape liability simply by harming more than one party. Plus, the Court held, even if the Kramers had no public nuisance claim, they may still have a claim for private nuisance. Although Angel’s Path construction may be lawful, questions of fact remained as to whether the developer failed to exercise due care and was so negligent “as to create a potential and unreasonable risk of harm” resulting in the Kramers’ injuries. Thus, the Court wouldn’t through out the suit.

The Court was concerned that light invasion claim was “an unusual and perhaps creative application of trespass law.” The Court conceded that arguably, the Kramers could assert that the light physically invaded the airspace over their property. But even if this argument doesn’t carry the day, the Court said, genuine issues of material fact remained as to whether the lighted sign may be a public or private nuisance.

– Tom Root

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Case of the Day – Monday, April 6, 2020

COULDA, SHOULDA, WOULDA

Trials are much more of an art than a science. Trial attorneys walk a fine line between not putting enough evidence on to support their case and dumping so much data into the record that the factfinder cannot dig its way out of the pit of minutiae to reach the right conclusion. I once had an old law professor who cautioned us not to tell him more about the elephant than he ever wanted to know. It’s sort of like that.

Still, the sense that you should never leave any fish in the pond when you’re done angling is not the worst instinct to act upon.

Take the Wolfenbargers, people who probably should have read their property deed a little more carefully when they bought their property next to the Woods’ place. If they had, they probably would not have mistakenly thought they owned the common driveway and thus could cut down the six Eastern Red Cedars that flanked the gravel strip. It’s a bad idea to cut down the neighbors’ trees, even when you think they’re yours. It’s a worse idea to try to defend a tree case against plaintiffs whose surname is “Wood.”

But it’s a worse idea still for your lawyer to figure he or she can rely on rapier-like cross-examination of the plaintiffs’ experts to make your valuation case. The Wolfenbargers’ mouthpiece may have saved them a few bucks on an expert, but “pennywise and pound foolish,” as they say. The old aphorism is “hope is not a strategy.” Neither is complaining to the court that the plaintiffs did not make the kind of damages showing you think they should have. You want a damages showing you can argue to the judge or jury? If so, you had better put the evidence on yourself.

The Wolfenbargers coulda, shoulda, woulda put some diminution of value evidence on, expert testimony that showed the Woods’ place did not lose a third of its value because six lousy trees were cut down. But they didn’t…

Wood v. Wolfenbarger, Case No. E2011-01953-COA-R3-CV (Ct.App. Tenn. Aug. 15, 2012), 2012 Tenn. App. LEXIS 563, 2012 WL 3329525. The Woods owned property next to that of the Wolfenbargers. The two parcels share a gravel road, which the Wolfenbargers mistakenly believed they owned. They did not.

In spring 2009, the Wolfenbargers cut down trees on both sides of the road. The trees, Eastern Red Cedars, belonged to the Woods, and were healthy mature trees when they were cut down. The Woods sued.

The only issue to be decided at trial was the amount of damages. The Woods offered testimony of Jim Cortese, a certified master arborist. He testified that there were varying approaches to figuring the value of the trees. First is the cost approach. One subset of the cost approach is repair cost, which measures the cost to repair broken branches and other less-than-fatal damage to the tree. There is also replacement cost, a method used when the trees are a total loss, but are of the size that can be replaced with the same species of roughly the same size and quality.

Then there is the “trunk formula method.” Jim testified that the trunk formula method is to be used when the is tree is too large to be replaced. The value calculated in that method is the cost of replacing the tree with the largest locally available plant, and then adjusting for the size difference, species classification, condition classification, and location classification of the appraised tree.

Jim also described a timber value method, to be used for trees grown as commercial lumber, employed to determine value for a stand of timber in a woodland setting where the trees are of sufficient size and character to be harvested. Here, Jim said, the timber value was not the appropriate method for determining the value of the Woods’ trees. He explained: “It was my opinion that there were  not enough trees to justify a timber sale. It was – the trees were not really – they just wouldn’t be suitable for a timber sale.” He also explained that “a timber sale is always between a willing buyer and a willing seller. It is not a forced upon somebody valuation that they have to accept what the value of the trees are.”

Jim calculated that if the timber value of the trees was considered, it would be just $840.00. However, he opined that the timber value should not be used here, because this was no commercial timber stand. Instead, Jim testified that the replacement cost method should be used to value the six trees cut in this case. testified that he has successfully transplanted trees as large as the ones at issue in this case. He figured the replacement cost for the trees at $161,300.

He also used the trunk formula method to value the damages. He testified in detail about this method, and  valued the first tree at $14,700; the second at $5,400; the third at $19,000; the fourth at $10,600; the fifth at $5,800; and the sixth at $6,600, for total damages of $62,100.

The trial court said that because the Woods had not offered any evidence of the value of their land or how the aesthetics of the property had been damaged, it would not entertain any damages other than the timber value of the cut trees, citing Tenn. Code Ann. § 43-28-312. Because the cutting was negligent, the trial court said, the statute authorized doubling the damages. The trial judge awarded the Woods  $1,680.00.

The Woods appealed.

Held: The statute did not limit the Woods to the mere value of the wood. Instead, they were entitled to damages calculated by the trunk formula method, raising their take to $62,100.

The Wolfenbargers argued that because no evidence of diminution of value was presented, the timber value was the only appropriate measure of damages under Tenn. Code Ann. § 43-28-312. The Woods responded that they had presented three estimates of damages, and if the Wolfenbargers wanted the trial court to apply a different measure of damages than the Woods’ showing, they should have put on their own evidence. The Court of Appeals agreed. “Plaintiffs presented no evidence with regard to diminution of value. Neither, however, did Defendants. Neither the Trial Court nor this Court may award damages based upon a measure of damages when there is no evidence in the record regarding that measure of damages.”

The Court said, however, that the statute “clearly and unambiguously provided that ‘nothing in this section precludes an owner of property on which timber has been cut by another from recovering damages for loss of value other than commercial timber value, if any, of the timber negligently or intentionally cut’.” Thus, the Woods were free to produce evidence of the measure of damages other than the timber value, which is what they did.

The Court of Appeals found that using timber value was inappropriate, observing that Jim Cortese specifically testified that timber value should not be used. No evidence the record rebutted this testimony, the Court said, and the trial judge found Jim to be a credible witness. On the other hand, the Court of Appeals rejected the Woods’ contention that replacement cost should be used, noting that the Woods had bought their place in 2006 for $185,000. It was   “unreasonable to argue that the proper measure of damages for the wrongful cutting of these six trees is the replacement value of $161,300,” the Court said, which was “an amount almost equal to the price… paid for the entire 38 acres only a couple of years earlier.”

However, the Court ruled, the Woods’ trunk formula evidence did make sense. The evidence showed that the six lost trees were too large to be replaced for a reasonable cost. Jim’s trunk formula method provided a value for each tree, evidence which the Wolfenbargers did not challenge. “Given all this,” the Court said, “we find and hold that Plaintiffs proved that the trunk formula method was the appropriate method of valuing the damages in this case. We note that Tenn. Code Ann. § 43-28-312 provides for doubling or tripling, when appropriate, only of the current market value of the timber. As Plaintiffs are not awarded the current market value of the timber, they are not entitled to an award of double the amount of their damages. We modify the Trial Court’s judgment to award damages to Plaintiffs in the amount of $62,100…”

– Tom Root

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Case of the Day – Friday, April 3, 2020

CORNER WITH A VIEW

We’re watching the spring wheat green up along nearly empty roads, as everyone is social distancing and sheltering in place. It hardly seems like spring. But it is spring, and it won’t be long until everything is growing, including at Ohio agricultural affliction, “corn to the corners.”

Corn to the corners - and no clear sightline.

                           Corn to the corners – and no clear sightline.

We saw a great example of it at a crossroads last fall, the practice of planting right up to the edge of a field. We can hardly blame the farmer, who has to maximize the land’s yield in order to stay in business (and to cover the payments on a $200,000 tractor). But corn to the corners – like planting trees and shrubs near the road – can play havoc with sightlines and can pose a real hazard to motorists.

When an accident does happen, lawyers scramble to find as many defendants as possible, because usually, each defendant comes with his or her own insurance policy. As one old lawyer we practiced across from years ago, you have to “get the money flowing.” Nothing makes it flow like a whole passel of deep-pocket insurance companies lined up on the defendants’ side of the room.

But what duty does a landowner have to people traveling by? After Margaret Sheley was killed when her automobile collided with Kimberly Cross’ vehicle at an intersection, her family decided to test those limits. They sued Cross, the County and Buryl and Hazel Grossman, who owned the land by the intersection. The Sheley family argued the Grossmans negligently planted crops on their land such that a motorist’s view of oncoming traffic at this intersection was impaired. The trial court held for the Grossmans, finding they owed no duty to Margaret Sheley.

The Court of Appeals agreed, drawing a distinction between a landowner who creates hazardous conditions on the roadway, as opposed to conditions – hazardous or not – . wholly contained on the landowners’ property. Like corn to the corners, or perhaps big, bushy trees.

sightline140613Sheley v. Cross, 680 N.E.2d 10 (Indiana Ct. of Appeals, 1997). On October 15, 1992, Margaret Sheley was killed when her car ran into Kimberly Cross’ vehicle at an intersection. Margaret’s survivors sued Kimberly Cross, the County, and Buryl and Hazel Grossman, the farmer who owned the land next to the intersection. The Sheley family argued that Grossmans, as owners of the land next to the intersection, negligently planted crops on their land such that a motorist’s view of oncoming traffic was impaired. The trial court granted summary judgment in favor of the Grossmans, finding that they owed no duty to Margaret. The family appealed.

Held: The Grossmans owed no duty to Margaret Sheley. Admittedly, the planting of vegetation is considered to create an artificial condition, not a natural one. A “natural” condition is limited to land unchanged by humans. The difference is significant since there are differing duties for natural versus artificial conditions.

Nevertheless, to recover under a theory of negligence, a plaintiff must first establish that the defendant had a duty to conform his or her conduct to a standard of care arising from a relationship with the plaintiff. Absent a duty, there can be no breach and, therefore, no recovery in negligence

care161129The Court said that an occupier of land abutting on or adjacent to a public highway owes a duty to the traveling public to exercise reasonable care to prevent injury to travelers from any unreasonable risks created by such occupier. The landowner has no right to use the property to interrupt or interfere with the exercise of the traveling public’s right by creating or maintaining a condition that is unnecessarily dangerous.

The issue, the Court said, is whether the scope of this duty extends to refraining from creating conditions wholly on a landowner’s property which may impair a traveler’s vision of oncoming traffic at an intersection. The Court ruled that the landowner does, but “that duty is limited to refraining from creating hazardous conditions that visit themselves upon the roadway. Where an activity is wholly contained on a landowner’s property, there is no duty to the traveling public.

The corn may have extended to the corners, but those corners remained on the Grossmans’ property. Thus, the Sheley family got nothing from the Grossmans.

– Tom Root

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Case of the Day – Thursday, April 2, 2020

HURTS SO BAD

In case you missed it the past two days, this is a trackhoe removing a tree.

In case you missed it the past two days, this is a trackhoe removing a tree.

Today is our last day down on Dick Lavy’s Darke County farm. As you recall, Tuesday we watched the fun ensue after Dick’s faithful employee Sylvester trimmed the trees along a fencerow that separated one of the Lavy from land belonging to his neighbor, Jim Brewer.

We were quite impressed to watch Sylvester run a trackhoe down the Lavy side of the fencerow, smacking down branches with the machine’s bucket. It was not pretty, but it got the job done effectively and cheaply.

Jim Brewer, however, wasn’t very happy with the result, and sued Dick Lavy Farms. Farmer Lavy argued the Massachusetts Rule let him trim overhanging trees any way he liked, that Sylvester wasn’t negligent or reckless, and that the damage – if there even was damage – didn’t amount to much. The jury thought it was arboricide and socked Farmer Lavy for $148,350.

Yesterday, we watched the Court of Appeals for Darke County, Ohio, fillet Dick Lavy’s argument that the Massachusetts Rule was a license to butcher. The Court affirmed a landowner’s right to trim encroaching trees and roots to the property line, but held that such trimming had to be done in a reasonable manner so as not to injure the adjoining owner’s trees.

The Court compared the various means of trimming a fencerow, comparing for ease of use, custom in the area, and cost. It concluded that the trial court was right to find DLF negligent in trimming part of the fencerow and reckless in continuing after a sheriff’s deputy advised Dick Lavy to get legal advice before continuing (advice the farmer ignored).

Today, the Court delves into the $148,350 damage award. Clearly, the Court is troubled that Jim only paid $170,000 for the whole 70 acres, and provided no evidence that the value of the land fell a farthing because of Sylvester’s trimming activities. The Court felt hard pressed to see Jim get almost $150,000 when no trees other than some saplings were destroyed.

Jim didn’t help his cause by admitting (as he had to) that he only visited the land about eight times a year to hunt and picnic, and the trimming didn’t interfere with those activities. He argued that he planned to build a house there in another 14 years or so, but the Court couldn’t see that the damaged fencerow trees had any impact on those plans.

Usually, the measure of damages for a trespass where trees are cut is the difference in the land’s value after the cutting versus before the cutting. There are times where this measure does not capture the real loss: a family loses a cherished ornamental tree, for example, or the landowner nurtures trees for their ecological value.

hurtsobad160929

That’s what Jim Brewer claimed, too…

In this case, however, it’s hard to see how Jim was hurt at all, not to mention hurt as badly as he claimed to be. Indeed, that’s how the Court of Appeals seems to read it, too. Come with us now on a detailed and thoughtful journey through all of the matters a court (and aggrieved party) should consider in setting the amount of loss. Although the Court sends the damage award back for the trial judge to deal with, it’s quite clear that the appellate panel is disinclined to turn the case into a winning lottery ticket for Jim Brewer.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016)

(These facts are repeated from the previous two days: If you don’t need the refresher, skip to the holding)

In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.

The former owner had allowed his neighbor Dick Lavy Farms to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees were ornamental or unique.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line, and that such clearing was important for crop production, yield and safety for farm equipment. Using a track hoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the track hoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch Sylvester stated that he never consciously reached over with the bucket to try and break a branch at the tree trunk that was on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation, and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County sheriff’s deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

Or, if you're Sylvester, don't use a chainsaw at all...

Or, if you’re Sylvester, don’t use a chainsaw at all…

The deputy told Brewer that Lavy said that he was allowed to take tree branches from his side, and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.

Although the deputy suggested that Lavy obtain legal advice before continuing, Lavy continued clearing the fencerow. Knowing that Brewer was upset, Lavy told his employee not to clean up branches that fell on Brewer’s side.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging a violation of O.R.C. § 901.51, reckless trespass, and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

DLF argued that it had a common law privilege to cut off, destroy, mutilate or otherwise eliminate branches from Brewer’s trees that were overhanging DLF land. The Farm also argued that if it was liable, the proper measure of damages should be the diminution of Brewer’s property value; in the alternative, the court’s holding on the issue of damages was against the manifest weight of the evidence. Finally, DLF claimed it had not negligently or recklessly trespassed on Brewer’s property.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515.

Dick Lavy Farms appealed.

(If you remember the facts from the previous two days, start here)

Held: The $148,350 in damages was set aside, because Jim Brewer’s property really didn’t diminish in value.

The Court observed that in a previous case, it had held that where the trespasser could not reasonably foresee that trees had a special purpose or value to the landowner, and where the trespasser “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.” The trial court, however, had relied on a different standard:

treeworth160929

The question facing the court…

In an action for compensatory damages for cutting, destroying and damaging trees and other growth, and for related damage to the land, when the owner intends to use the property for a residence or for recreation or for both, according to his personal tastes and wishes, the owner is not limited to the diminution in value (difference in value of the whole property before and after the damage) or to the stumpage or other commercial value of the timber. He may recover as damages the costs of reasonable restoration of his property to its preexisting condition or to a condition as close as reasonably feasible, without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

At trial, Jim’s expert arborist testified that the cost of removing the trees Sylveste3r had damaged would cost $55,000, and the cost of replacing them would be $138,000, plus tax. Jim did not offer any evidence that his 70-acre property’s fair market value had fallen by so much as a penny. DLF’s arboriculture expert testified the life expectancy and service life functionality of the fencerow was not affected by the manner in which the trees were pruned. He valued the fencerow as a woodland edge fence and argued that real estate or fair market value would be the proper way to assess damages. Another DLF expert also testified that the fair market value of Brewer’s property was the same before and after the incident.

The trial court found that removal of the damaged trees was unnecessary, and thus discounted that $55,000 cost. In addition, the court concluded that the $138,000 estimate for tree replacement was excessive, and reduced that amount by 50%. The court also deducted 14% for ash tree disease, which had already caused the death of a number of trees on both sides of the lane. The trial court thus arrived at $59,340 in compensatory damages.

Next, the trial judge decided that DLF had negligently trimmed one-fourth of the property (or about 1,000 feet), and recklessly trimmed remaining three-fourths of the fencerow. The trial court awarded $14,835 for negligence, and $44,505 for DLF’s recklessness. Pursuant to O.R.C. § 901.51, the court trebled the recklessness amount to $133,515. This brought the total damages to $148,350.

The Court of Appeals noted Ohio’s general rule that “recoverable restoration costs are limited to the difference between the pre-injury and post-injury fair market value of the real property,” The courts have carved out an exception, however, that permits restoration costs to be recovered in excess of the decrease in fair market value when real estate is held for noncommercial use, when the owner has personal reasons for seeking restoration, and when the decrease in fair market value does not adequately compensate the owner for the harm done. This restoration cost exception has been applied, for example, where the damaged trees have been maintained for a specific, identifiable purpose (like recreation, or a sight, sound, or light barrier), when damaged trees are essential to the planned use of the property, or when the damaged trees had a value that can be calculated separate from ornamental trees have been destroyed, or where the trees form part of an ecological system of personal value to the owner.

Even where the restoration exception is applied, the Court said, “the proposed cost [cannot be] grossly disproportionate to the entire value of the injured property.”

The Court said that the damage to Jim Brewer’s trees was “temporary” (meaning, apparently, that the damaged limbs would grow back), and that the Ohio rule is that “damages for temporary injury to property cannot exceed the difference between market value immediately before and after the injury, is limited. 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.”

The trial court seemed certain that Dick Laye was a deep pocket, and that may have driven its damage award.

The trial court seemed certain that Dick Lavy was a deep pocket, and that may have driven its damage award.

“Viewing the trial court’s award of damages from the perspective of reasonableness,” the Court of Appeals said, “we must conclude that the award for restoration was objectively unreasonable.” First, the application of O.R.C. § 901.51 “almost exclusively involves situations where trees have been completely cut down, making it considerably easier to determine the full extent of the damage to the plaintiffs’ property.” Here, Jim Brewer admitted that other than a few small saplings, he was not claiming that any large trees had been removed from his land. Instead, he contended only “that 326 trees had been damaged in some manner and would ultimately die, even though pictures of the area taken in June 2014 depict a substantial canopy of foliage… Brewer also testified that a number of trees had died, but he did not give any specific number.”

The Court found that Jim Brewer’s trees were not ornamental and were not located at his residence. Instead, they were native trees that were just part of a fencerow. Jim testified he used the property for hunting only about six times a year, and for family get-togethers maybe twice a year. He also admitted the removal of branches had not had any effect on these activities or his ability to rent tillable land to farmers. Jim intended to put a house on the property after his 4-year old child graduates from high school, but he didn’t claim that DLF’s tree trimming affected his plans to do so.

The Court found it noteworthy that Jim Brewer paid $180,000 for all 70 acres, yet claimed the restoration cost (including removal and replanting of trees) for a very small part of that property was more than $200,000.

Jim did not present any proof that the fair market value of the land had fallen because of the tree trimming. The Court agreed that he was not required to present such evidence, bur said “it would have been helpful, particularly since two defense witnesses indicated that removing vegetation from the fence row did not impact the fair market value of the land.” Additionally, the Court found that much of the trial judge’s calculations “were based on speculation or were incorrect. For example, the court concluded that one-fourth of the fence row was trimmed negligently, but the plaintiff’s own evidence showed that more like 1,800 feet had been trimmed when Jim Brewer first complained. “The trial court could have chosen to disregard [the DLF employee’s] testimony,” the Court said, “but there is no logical reason to disregard the plaintiffs own admission about how far the fence row had been cleared.”

The Court of Appeals was not inclined to see Jim Brewer get a winning lottery ticket...

The Court of Appeals was not inclined to see Jim Brewer get a winning lottery ticket…

The trial court also gave no particular reason for its 50% discount on damages. What’s more, the Court of Appeals complained, “the trees on the fence row were a woodland mix of native trees, not ornamental trees. A number of the trees were undesirable, and there was no evidence of special value. In addition, the fence row had been unmaintained for ten or twenty years. Even though these facts no longer require damages to be limited to diminution in value, they are still points that should be considered in deciding whether an award is reasonable.”

The Court of Appeals vacated the damages, and directed the trial court on remand to consider the reasonable restoration costs, taking into consideration the decrease in the fair market value of the land; the fact that the trees were a common woodland mix, not ornamental trees or trees that Jim had planted for a particular purpose; the fact that the fence row was not maintained for many years, and had undesirable and dead trees on each side of the row; the extent to which the trees have regenerated since the date of the 2013 trimming; the lack of impact on Jim’s intended home site; and the fact that Jim’s use of his property is “sporadic and is not impacted by any injury to the trees.”

The detailed list of evidence the trial court is to consider pretty much tells the trial judge how the Court of Appeals expects this to turn out.

– Tom Root

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