Case of the Day – Tuesday, June 22, 2021


Marlborough should have heeded Marlboro's advice -

Marlborough should have heeded Marlboro’s advice – “better makin’s” … as in “we’d better be makins sure we own the land befores we go digging’ it up.”

Some time years ago, Marlborough (the City, not the cigarette) abandoned a seldom-used city street, even recording in the land record the misspelled sentiment that it “hearby abandon[ed] and discontinu[ed] any and all rights …” in the street.

Well, time passed and while much improved in the world, the competence of decision-by-committee did not. When the Marlborough powers that be decided that a new water main had to be installed, they concluded they should go right down the right-of-way they had abandoned. “What, we abandoned it? Well,” the city fathers and mothers chuckled, “we’ll just take it back!”

And they did, too, going right up the center of the abandoned street, tearing up the place and downing a number of trees (which is how we ended up writing about this to begin with). America’s a relatively civilized place (albeit one with a lot of lawyers), so the landowners sued.

Obtaining a judgment that the City had trespassed was easy: after all, the land records themselves revealed the City had no rights in the street. But damages were tricky, especially because the landowners wanted treble damages. In Massachusetts, a trespasser to trees is liable for treble damages unless he or she had “good cause to believe” that he or she had a right to cut down the trees. The City argued it had relied on one of its attorney-employees, who opined that the street remained a public thoroughfare despite the unambiguous and misspelled language of the recordation and Massachusetts law. The City said it took “extensive steps” to determine its rights.  Sure, and COVID-19 came from Australia, the Arizona audit is going to hand the 2020 election to Trump, and vaccines make you magnetic.

The Court said “nonsense” to Marlborough (and probably would have said the same to that other stuff).  It seemed the plans for the water main construction themselves carried the notation “Ownership to be determined,” and the trial judge warned the City at the temporary restraining order stage that its rights were pretty shaky. But the City dug and cut on. Sow the wind, reap the whirlwind.

An interesting damages note to the case: the City offered “expert” testimony from a real estate professional as to the loss of value of the property because of the trespass, calling this a “common sense” approach to valuation. The Court rejected the expert and the approach, because the loss calculation necessarily must include the value of the trees that had been cut down. Besides, the Court said, a real estate expert — no matter how good in his or her area of expertise — knew diddly-squat about trees.

street150615The damage approach approved by the Court – the “cost of cure” method – took into account the cost of replacing the trees that had been curt, as well as removal of the larger stumps.

Smith v. City of Marlborough, 67 Mass.App.Ct. 1104, 852 N.E.2d 137, (Mass.Ct.App., 2006). Abutting landowners brought an action against the City of Marlborough, alleging that the city had trespassed, destroyed trees, and removed soil and gravel during the installation of a water main through their properties along an allegedly abandoned lane. The Superior Court entered judgment for landowners and awarded treble damages, and City appealed.

Held: The award of treble damages was upheld. The Court agreed that the City of Marlborough had abandoned the street, and it thus committed trespass when it destroyed trees while installing a water main along the abandoned street. A recorded order stated that the city “hereby abandons and discontinues any and all rights that it now has or ever had” in the lane. The Court held that the City did not have a good reason to believe that it owned land which it had previously abandoned, and thus the landowners abutting the street — who received the property following abandonment — were entitled to treble damages due to the city’s removal of trees while installing the water main.

Marlborough tried to make Sandy Posey's 1967 country-pop song into the city anthem ...

Marlborough tried to make Sandy Posey’s 1967 country-pop song into the city anthem …

The evidence showed that the survey “was performed without the benefit of the determination of the status” of the lane, and that the landowners raised questions about the ownership of the land with city personnel immediately after receiving notice of blasting near the lane, but the city continued its work nonetheless.

The amount of damages determined under the “cost of cure” method were not disputed on appeal. The damages included the cost of replacement of trees, as well as the removal of stumps of larger trees that had been cut. Marlborough complained that it was deprived of an opportunity to present its own “common sense and expert approach” when its expert, a real estate appraiser, was not allowed to testify because he was not an arborist and did not determine the value of the trees.

Marlborough offered no specific allegations of errors in procedure or in the jury instructions and merely concluded that “according to common sense” the loss of trees could not be worth more than the damages awarded for the land taking. The Court rejected this argument, too.

– Tom Root


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