Case of the Day – Thursday, July 21, 2020


I spent about 13 years living in suburban Washington, D.C., where everything that happened on Capitol Hill and at the White House was a local news story. Still, until I decamped for small-town and rural-county America, I didn’t really understand how heavy-handed and ugly politics could be until I observed local politics up close and personal.

Today’s case could be Exhibit A. A three-member township board of trustees approves a sewer improvement project. As the job progresses, the chairman of the board decides on his own that he’s going to modify the plans to have some trees along the highway right-of-way removed. He is on the site supervising the work when two homeowners approach to complain that one of the trees the chairman intends to have cut down belongs to them.

Here’s where big politics and little politics diverge. If that happened on a federal project, or even a state project, the bureaucrats in charge would stop everything until the engineers and surveyors who had planned the work verified that the subject tree was or was not within the right-of-way. But Uncle Joe was not some pusillanimous bureaucrat: he was the “go-to” guy who had neither qualms nor the time to listen to the petitions of lowly citizens, and he was not about to let the complaints of the hoi polloi get in the way of his government’s work.

Police power” is a constitutional concept, the power of the government to regulate behavior and enforce order within its territorial jurisdiction for the betterment of the health, safety, morals, and general welfare of the inhabitants. But in the real world, Joe showed us what “police power” is all about: a small-town cop ready to arrest homeowners on the say-so of a government functionary, solely because they are defending their property against the unlawful taking by the state. The cop needs say nothing: the handcuffs and Glock 22 on the officer’s equipment belt say it all.

But we still have courts, and to court is where the homeowners repaired. It turned out the tree straddled the right-of-way boundary line, which helped Uncle Joe not at all: the Court of Appeals, citing the Ohio Jurisprudence legal encyclopedia (which passes for primary authority in Ohio, or so I learned in law school), joined the overwhelming majority of states that hold that a boundary tree is owned by the property owners on both sides of the boundary line. As property of the tenants-in-common, the tree may not be removed with the consent of both parties.

Pinkerton v. Franklin Township. Board of Trustees, Case No. 83AP-946 (Ct.App. Franklin Co., July 17, 1984), 1984 Ohio App. LEXIS 10484, 1984 WL 13994. Joe Donovan, Chairman of the Franklin Township Board of Trustees, was a no-nonsense, get-it-done guy. Plus, he had the power of the state (or at least the township) behind him.

When Joe’s three-member Township Board of Trustees authorized a storm sewer improvement along the west side of Gladstone Avenue, Joe was the guy who would see that the job was done right. When it turned out that the sewer improvement project would be facilitated by removal of several trees, Joe was the guy who made the decision on his own that the trees would go. Two of the trees were in the highway right-of-way, but the third – a stately oak – straddled the boundary between the Gladstone Avenue right-of-way and the Pinkertons’ property.

Unfortunately for everyone involved, the Pinkertons strenuously objected to removal of the boundary tree. Joe, however, was not a guy to need anyone’s approval, so he did not bother to consult the other two Trustees about removing the trees. Instead, he forged ahead, ignoring the Pinkertons’ objection. He even directed a local police officer to be present in case the Pinkertons tried to intervene.

The tree was removed, just as Joe ordered. The Pinkertons’ complaints were not as easily dispatched as was the oak. They sued the Township Board for trespass, demanding compensatory and punitive damages. The jury agreed, awarding them $2,000 for the tree, and trebled it to $6,000 due to Joe’s willfulness.

Joe appealed.

Held: Joe, acting in his official capacity, caused the trespass and wrongful cutting, entitling the Pinkertons to $6,000.00 in damages.

The Court of Appeals made short work of Joe’s claim that the evidence showed no wrongful cutting. It held, citing Ohio Jurisprudence 3rd, that “[a] tree standing on the boundary line between adjoining landowners, so that the boundary passes through the trunk or body of the tree, is the common property of both proprietors as tenants in common.”

Likewise, the Court ruled that given that Joe steamrolled the Pinkertons’ legitimate objections, even bringing in the police to stifle their complaints of trespass, it was not error for the trial court to tell the jury it could assess punitive damages.

Finally, because the Pinkertons testified the tree was worth $6,000, there was evidence in the record to support the damage award.

– Tom Root


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