Case of the Day – Wednesday, December 28, 2016

ALL EYES ARE ON IOWA


outback161228Our attention is riveted on Iowa right now. OK, really, on Ohio State (because we’re grads and Buckeyes fans) for the OSU-Clemson game Saturday night, but also to see the 8-4 Hawkeyes take on the 8-4 Florida Gators in the Outback Bowl.

But we’re thinking about Iowa for another reason, too. It seems that there are all sorts of unpleasant people going around the state blathering negativism. No, no, no… we’re not talking about the presidential candidates. That was last year. Besides, look what the primaries yielded: Hillary and the Donald.  Hardly a serious subject.

And we’re talking about something serious, too… trees.

A loyal reader from the home of the greatest state fair in the land — and we need more of those, not just from Des Moines — wrote to ask some incisive questions about a rather boorish neighbor. Her questions had to do with the neighbor’s plans to bulldoze a driveway along a steep grade right next to our interrogator’s land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away his land.

We found four questions, not just one, in our reader’s letter. The first question: what about trees right on the boundary line? The second question: what about trees on our reader’s land, but with roots extending into the neighbor’s land? The third question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well? And last, if our reader has rights here, can she get an injunction to stop the harm before it starts, or is her only option to collect money damages later?

All good questions. Today we’ll answer the question about those boundary trees. Boundary trees are trees growing on the legal boundary between properties. In Iowa, the case governing boundary trees is Musch v. Burkhart. Musch valued the cottonwood trees growing along the boundary of his land and the adjacent property belonging to Burkhart; his neighbor, however, thought the cottonwoods were a pain in the neck. Musch had cut some of them down — after all, there was about 500 yards of the tree line — leading Burkhart to conclude that he, too, could cut some down, in fact, cut down as many as he wanted.

The court’s analysis was interesting, in that whatever agreement the prior owners of the two parcels — who had apparently agreed to some arrangement on ownership, care and use of the tree line — may have made had been lost to history. The court said that absent some evidence to the contrary, it would assume that trees growing on a boundary line were owned by the two owners as tenants in common because they grew on both properties and “drew sustenance” from both properties. It almost suggests that trees which are provably drawing sustenance from root systems spread pretty much equally from two properties must be owned by both owners as tenants in common.

The importance is that ownership of the tree by both property owners as tenants in common establishes what essentially is a 50-50 partnership with each partner given a veto. As tenants in common, both must agree before anything happens to the tree.

The other holding of significance in this case is that the court found that damage to trees is, for all legal purposes, irreparable harm. Nothing is irreparable in a geologic time sense. Trees that are destroyed can be replaced, and the seedlings becoming just as majestic in 50 or 100 years. The Musch decision takes a much shorter view, however, suggesting that if it will require a half century to heal, it’s irreparable harm.

That’s significant, because a showing of irreparable harm is necessary to obtain injunctions to stop tree cutting. Musch, like the rest of us, would rather keep the tree than get a few bucks later, after a century tree is gone. Maybe not gone forever, but to us humans, gone for a century might as well be.

So our reader has a couple answers here. If the trees are boundary trees, an Iowa plaintiff has the right to get an injunction to save them.

Tomorrow: what if the trees aren’t on the boundary? Next Monday: can the Hawkeyes whump the Gators (who are slightly favored)?

A lot of drama going on involving Iowa. Stay tuned.

hawkeyes161228Musch v. Burkhart, 12 L.R.A. 484, 83 Iowa 301, 48 N.W. 1025, 32 Am.St.Rep. 305 (S.Ct. Iowa, 1891). Musch lived next to Burkhart in rural Black Hawk county. His house, barn, and other buildings are on the northwest corner of his property. Burkhart’s south boundary line is the north boundary line of Musch’s place.

About 20 years before, Jeffers — who owned the land before Musch — planted a line of cottonwood trees for about 500 yards along the north boundary of his land. The trees had grown to a height of from 30 to 60 feet, and their trunks had diameters of from 1 to 2 feet. The average space between them is about three feet. Musch attached barbed wires to the north side of the trees, making a wire fence. Musch used the fence to contain his cattle and relied on the trees as protection from storm and winter winds to his buildings and stock.

Burkhart threatened to cut the trees down. He claimed he and Musch had an agreement to maintain a common fence, but that the trees had thrown out roots extending for many feet into his land; that by reason of such roots, and the shade of the trees, a strip of his land 50-65 feet wide, immediately north of the trees, was unproductive. Burkhart argued the trees were of no value to Musch and that he had a right to remove them. What’s more, Burkhart argued that Musch had cut down some of the trees originally planted there, and he should have a right to do the same.

The trial court found that the trees had value to Musch, but that their roots had damaged Burkhart. Clearly, they stood on the common boundary line. The trees were planted before Burkhart bought his land. The trial court wasn’t able to discern the nature of the agreement between the prior owners of the two tracts of land, but it nevertheless found for Musch, and enjoined Burkhart from cutting down the trees.

Burkhart appealed.

boundary151111Held: Musch was entitled to have the trees protected. The Court found that because the trees stood on and drew sustenance from both tracts of land, in the absence of a showing to the contrary, they were considered to be owned by the parties as tenants in common.

When one tenant in common destroys the subject of the tenancy, he is liable to the co-tenant for the damages he thereby sustains. A court, by injunction, may restrain one tenant in common from doing a serious injury to the common estate. While an injunction will not be allowed to restrain a trespass where damages are an adequate remedy, where the injury will be irreparable, an injunction is appropriate.

The Iowa Supreme Court held that the destruction of trees and shrubbery growing upon premises occupied by Musch would be, “in a legal sense,” an irreparable injury to him. The trees served to shelter and protect Musch’s buildings, and thus Burkhart could be enjoined from cutting them down despite the fact that their presence caused damage to his land.

TNLBGray

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