SUDOKU, ANYONE?
The story’s not new, but it’s new to us … four jurors playing sudoku during a drug conspiracy trial in Sydney, Australia, caused a mistrial to be declared after three months and 100 witnesses. We feel for them – a lot of what goes on in the courtroom is deadly dull, and occasionally, rather foolish as well.
This is one of those cases that makes our point. The Wisemans had an access easement along the boundary of their property and their neighbor, Mr. Greenfield. They sold some land to a developer, and part of the deal was that the developer would install a driveway. The developer hired a company to do it. After the job was done — and the driveway was indeed properly within the access easement — Mr. Greenfield said that some branches had been cut from a pine tree of his that stood along the drive.
This being America, he sued his new neighbors.
Mr. Greenfield had no witness that his neighbor — or anyone else, for that matter — had cut off the branches. He had no evidence that the tree’s value had been lessened (except for his own claim that his property was worth $25,000 less, pretty steep for a couple of pine boughs). But the lack of evidence didn’t bother him that much.
It did bother the Court, however. First, the Court noted, the fact that the branches were missing didn’t mean the Wisemans had cut them. Second, the subcontractor for the developer wasn’t the Wisemans’ agent, even if he had cut the branches (and Greenfield had no evidence he had done so). Third, there was no unbiased evidence as to the extent of damage, and the Court wasn’t going to sit still to hear Mr. Greenfield speculate as to how much he ought to get in damages.
Most important for us students of the Massachusetts and Hawaii rules, the Court said even if the Wisemans had trimmed the branches back to the limits of the easement, they had the right to do so, and any damages Greenfield could recover for were only for any extra branch that might have been taken beyond the property line.
This action was truly a waste of everyone’s time… Ready for a hand of Old Maid?
Sometimes, trimming trees next to driveways is a darn good idea …
Greenfield v. Wiseman, 2008 Conn. Super. LEXIS 198, 2008 WL 344606 (Conn.Super., Jan. 17, 2008). David Greenfield owned property next to that belonging to Carter and Eileen Wiseman. The Wisemans had access to a portion of their land only by means of a 20-foot wide corridor running across the Greenfield land. When the Wisemans sold some of their land to a development company, part of the deal was that the developer would build a gravel driveway along the access corridor. The company hired a subcontractor to do so.
Shortly after the driveway was built, Greenfield sued, claiming breach of covenants and trespass. He abandoned all claims except the trespass claim, arguing that the development company and the Wisemans trespassed while the driveway was being built, by cutting some limbs off a large pine tree on the corner of his land. No one witnessed the actual cutting of the trees, nor was any testimony presented from those who actually cut the limbs. The uncontradicted testimony was that neither of Wisemans personally cut any of the branches, or witnessed the actions of those responsible. Nevertheless, Greenfield claimed damages under a Connecticut treble damage statute.
Held: Greenfield’s case was thrown out. The Court observed that the essential elements which must be proven to sustain an action for trespass were ownership or possession of an interest in land by the plaintiff, an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest, done intentionally, and causing direct injury. Here, the Court said, the evidence failed to show any intentional intrusion or invasion of Greenfield’s possessory interest by either of the Wisemans. The treble damage statute does not provide a new or independent cause of action. Instead, it merely provides a measure of damages applicable in situations in which compensatory damages, in the absence of the statute, would be recoverable.
This was just a stupid case to bring in the first place … That’s why Greenfield lost. Because he was a knucklehead, and his lawyer wasn’t any better …
But Greenfield said that the Wisemans were liable because the subcontractor was their agent. In order to demonstrate the existence of an agency relationship between the defendants and the unknown individual or individuals who cut the limbs from the plaintiff’s pine tree, the Court held, the evidence must establish a manifest action by the principal that the agent will act for him, an acceptance by the agent of the undertaking, and an understanding between the parties that the principal will be in control of the undertaking. Here, neither of the Wisemans controlled the means by which the driveway would be installed, and both were unaware of the name of the person or entity engaged by the development company to perform the actual installation work. There was no agency relationship.
Finally, Greenfield produced no evidence concerning the value of the cut branches, and all of the photographs revealed a healthy pine tree that did not have to be cut down as a result of the branches being removed. Besides, the Court said, the Wisemans or anyone acting as their agent would be fully justified in cutting any portion of the branches which extended beyond the stake onto their property.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 