Case of the Day – July 2, 2021


paradewatch140703 We must seem like pretty serious killjoys at treeandneighborlaw. Yesterday, we dumped a bucket of water on backyard fun with fireworks. Today, we rain on your parade.

Remember parades? Mobs of people, most of whom seem to be performing useless tasks while not social distancing, flowing down the street in a chaotic mob? Sort of like Minneapolis, but without the tang of pepper gas in the air. Back in the pre-COVID-19 days, we had a lot of them on days like tomorrow. And now, delta variant or no, they’re back.

And back then, at least in small-town America, confusion reigned over who owns and controls the tree lawn, that strip between your front sidewalk and the street. And this July 4th, we’re again hearing the same question we hear every year: can I, Harry or Harriet Homeowner, keep parade watchers off my beautiful tree lawn (or, in the alternative, can I reserve the best seats for my family and friends)?

Generally speaking, it’s your tree lawn (subject to the rights of the city to maintain its right-of-way). That’s what the Miller-Lagro family established in today’s case. It seems that they arrived home one day to find that the electric utility and its tree-trimming subcontractor had butchered the trees on their tree lawn. This being America and all, they did the American thing.

No, they didn’t unlimber their assault rifles to threaten the mob, like some lawyers might do. Instead, they did what almost all other lawyers would have their clients do. They sued, citing a Minnesota statute giving them the right to treble damages for wrongful cutting on their property.

The trial court sided with the utility, holding that because the tree lawn was land dedicated to the road right-of-way, the Miller-Lagros could not recover.

The Court of Appeals reversed.

The Minnesota Supreme Court sided with the Miller-Lagros. It held that they had standing under common law and the statute. Sure, the Court said, their interest in the trees was subordinate to the right of the city, as exercised by the electrical utility in its utility line maintenance function. But the utility’s rights to trim, derived from the city’s right-of-way maintenance rights, existed only to the extent that the trimming was reasonable and necessary.

The Miller-Lagros had the right to their day in court to prove that the trimming was unreasonable.

Normally, a landowner owns property to the center of the roadway passing the land, including the tree lawn. Obviously, the public has the right to occupy the roadway and sidewalks for their intended purpose, to transit across the land. However, there is no similar public purpose that would let people occupy the tree lawn. It seems to us that a landowner has the exclusive right of possession to the tree lawn, subject only to utility easements and rights-of-way (if the city wants to widen the street, you’re probably out of luck). As for the sofa, beer refrigerator, umbrella and roped-off area that some people from the other side of town have erected on your tree lawn (with the parade still a day away): they’re trespassers. Pure and simple.

That’s the legal end of it… of course, there are social and political considerations in evicting them as well, especially if the patriarch of the parade squatters is 6’5”, 290 lbs. and goes by “Bubba.”

You’re on your own.

Miller-Lagro v. Northern States Power Co., 582 N.W.2d 550 (Sup.Ct. Minn. 1998). When Heidi Miller-Lagro and Kent Lagro returned to their home in Medicine Lake on the afternoon on October 21, 1992, they were shocked to discover that Northern States Power Company and Asplundh Tree Company had cut down several trees that were located on the city right-of-way between their lot and the paved roadway. The Lagros sued NSP and Asplundh, who promptly submitted surveys showing the trees were on land that was dedicated as a public roadway in 1887 and thus were property of the City of Medicine Lake, not the property of the Lagros.

The trial court granted NSP’s and Asplundh’s motion for summary judgment, concluding that the Lagros lacked standing and could not recover because the trees were not located on their property. They appealed, citing Minn.Stat. §561.04, that stated “[w]hoever without lawful authority cuts down or carries off any… tree… on the land of another person, or in the street or highway in front of any person’s house… is liable…” The Court of Appeals reversed, holding that the statute did apply, remanding the case for further proceedings on the issue of whether NSP had lawful authority to cut down the trees.

Held: The Miller-Lagros control the tree lawn. The Minnesota Supreme Court held that homeowners had standing under both common law and wrongful tree removal statute to bring a claim for removal of trees located on the tree lawn in front of their residence by a utility company’s contractor.

The homeowner’s interest in the trees is subordinate to the right of the city, as exercised by the electrical utility in its utility line maintenance function, to trim or cut trees in performance of its public works, the broad grant of authority provided by the statute governing utility’s maintenance of its lines, and the corresponding city ordinance. However, the statutes do not divest the property owner of ownership or control of the tree lawn, but rather only give] utility companies the lawful right to trim or remove trees to the extent that the trimming is reasonable and necessary for purpose of constructing, using, operating, and maintaining lines.

– Tom Root


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