Case of the Day – Thursday, January 5, 2023


Anyone wanting to witness an exercise in futility only has to examine some of the laws passed by Congress, largely meaningless gestures intended to prevent something that has already happened.

I give you TSA for example. To be sure that no one takes a utility knife (the uninitiated call them “box cutters”) onto a  plane again after 9/11, TSA makes grannies remove their shoes and uses machines that reveal your bodily imperfections to the world. This is little more than “security theater,” intended to make us feel safer despite the government’s own evidence that TSA checkpoints are weapons sieves.

In the tree world, after the Emerald Ash Borer was already hopping amok across North America, states responded with roadside signs warning people against transporting firewood.

The Emerald Ash Borers, of course, being illiterate insects, did not read the signs. Rather, the little green destroyers continued their march unimpeded.

Sure stopped those Emerald Ash Borer critters…

When Frances Levine’s neighbor Ida decided to hack down a boundary tree, Frances got a restraining order stopping the butchery. By then, the tree was pretty much done for. The trial court, recognizing that the tree was much too far gone, declined to issue a permanent injunction against further tree removal. The tree was already beyond repair: issuing an injunction against killing it now would be futile.

Frances would not take ‘no’ for an answer… until she heard it two more times from two higher courts.

What Ida did was not right, and could get Frances some damages. But the act was done, and an order prohibiting the act would not unring the bell.

Levine v. Black, 312 Mass. 242, 44 N.E.2d 774 (Supreme Ct. Mass. 1942): A large tree was located on the property line between Frances Levine’s lot and a parcel owned by Ida Black. The boundary line ran just about through its center, which was only about two feet from Frances’ southerly wall. It was from 50 to 60 feet high and in “a reasonably healthy condition” before Ida began chopping the branches.

Ida was looking to build a new repair shop extending to the northerly boundary of their land, and finding the tree in her way, began to cut it down without Frances’ consent. Ida intended to remove the entire tree. She cut and carried away branches and limbs, some of which extended over Frances’ residence.

When Frances yelled at Ida about the arboreal butchery, Ida stopped, and thereafter a court issued a restraining order. The trunk of the tree is still standing, but the upper part has been reduced to two denuded limbs, the highest point of which is about forty feet from the ground. , “and there is an entire absence of branches and foliage.” On the south side of the trunk, there is a large scar resulting from the removal of the bark by chopping it with an axe.

Frances sued, but the trial court dismissed the action. She appealed. The appellate court ruled that both parties equally owned the tree, but Ida had damaged the tree so badly that an injunction would have served neither party. The court held that the tree would never grow back, and therefore it would have been more beneficial to both parties to have the tree chopped down. Thus, the court of appeals affirmed the trial court decree dismissing  Frances’ action for a permanent injunction to prevent Ida from cutting down a tree.

Frances appealed to the Supreme Court of Massachusetts.

Held: The court of appeals was right. The damage had been done, and an injunction should not issue.

The Court observed that where the trunk of a tree stands wholly on the land of one property owner, he is deemed the owner of the entire tree. This is true despite the fact that the Massachusetts Rule gives his or her neighbor the right to cut off limbs and roots which invade his premises. But where, as in the present case, the trunk stands across the boundary line, it has generally been said that under these circumstances both parties own the whole tree as tenants in common.

In other cases, the Court admitted, it has been held that each party has title to only that part of the tree on his side of the line but has a right to prevent his neighbor from so dealing with his part as unreasonably to injure or destroy the whole. But here, resolving inconsistencies in the two approaches is not necessary. Under either view, “it is difficult to see why either owner should have any less right to cut off branches and roots than he would have if the trunk stood entirely upon the other’s land.”

But this case, the Court ruled, it is unnecessary to determine whether “the value of a tree to one owner is to be weighed against the detriment to the other owner of being unable to use all of his land for building purposes.” That is because the overarching principle applicable here is that relief by injunction will not be granted where the granting of it would be but a futile gesture and would serve no useful purpose in protecting any substantial right or interest of the party applying for it.

Before this suit was brought, the Court said, “the tree had been reduced to a condition in which it could be of no benefit to the plaintiff from the viewpoint either of beauty or of utility. It was and still is a bare skeleton consisting of a trunk and two limbs, with no other branches or foliage whatever. There is nothing to show that the lapse of any reasonable period of time will restore it to attractiveness or value. Its removal would now appear to be advantageous to both parties and harmful to neither.”

The Court did not intend to reward Ida’s trespass, Rather, it simply recognized reality, that to deny a permanent injunction under these circumstances “is merely, in dealing solely with the question of injunctive relief, to take a practical view of an existing situation for which an injunction can afford no genuine remedy.”

– Tom Root


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