WHO ARE YOU GOING TO BELIEVE?
We make countless assumptions every day, based on our experience and education and sometimes prior hard luck. Where we live, whenever you see a deer cross the road in front of you, you slow way down, because experience has taught you that there’s probably a second, and even a third, tailing along. When we grab some fast food, we assume that the acne-challenged teens cooking it in the back are practicing good hygiene, because we know that the County Health Inspector is on the case, and we know that the restaurant knows that, too. When vicious killers are sent to Death Row, we know that the manifold guarantees and procedures in our criminal justice system assure that the mutts are guilty beyond any reasonable doubt. And we fly with confidence that our government inspectors have worked tirelessly to ensure that the complex systems that carry us six miles above the earth at eight-tenths the speed of sound are free of flaws.
The law indulges us our reasonable assumptions, because those assumptions are the grease that makes society work. If we see a person collapsed by the side of the road and call an ambulance, the law will protect us from a claim by the injured party that we should pay for the emergency squad because they never asked us to call. If we see a toddler wandering in the Walmart parking lot, our reasonable assumption that the child is lost protects us from liability for taking her hand and leading her to the store manager.
Even in this era of unusual domestic arrangements, the law permits us our reasonable assumptions. When Phil and Marlee Snowdon decided they wanted to clear some trees and brush along their property line adjoining the neighbors, Hal and Carol Dickinson, they did what good neighbors do: they asked for the Dickinsons’ consent. Phil and Hal walked the boundary line, Phil described what he and Marlee wanted to do, and Hal consented.
What Phil and Marlee did not know was that Carol had owned the property since before she married Hal, which was about 15 years before. She paid all the bills on the place and made all the decisions. Hal was just a kept husband.
Believing they had permission, Phil and Marlee hired Charter Oaks Tree & Landscaping Co., Inc., to perform the work. Charter Oaks was a few days into the tree and shrub removal when Carol returned from an out-of-town trip and blew a gasket. It did not matter that Hal had given permission, Carol fumed, because she had not.
Carol sued the Snowdons and Charter Oaks for trespass and wrongful cutting of trees. The Snowdons admitted she had not given them permission, but argued that her husband, acting as her agent, had done so. Carol said that didn’t matter, because he lacked the authority to do so, and no sense that he was acting as her duly-authorized agent could be inferred from her conduct, because she had never said a thing that would make Phil and Marlee think he could speak for her.
Poor Hal, the kept man. He could not have felt very good about how his wife legally emasculated him. And neither, apparently, did the court. Not because he’s a guy, but rather because you ought to be able to rely on the promises of one marriage partner to bind both.
Sure, marriage alone isn’t enough to presume an agency relationship exists, but assuming that hubby and wifey speak for each other is some of that societal grease we mentioned. Clearly, the court – while mouthing the legal platitude about no presumption of agency arising from the marriage – was going to find a way to make Hal his wife’s agent. The alternative would be to throw sand in the neighborhood gears, requiring the folks next door, the banker, the grocer, and auto mechanic all to question one marital partner expressing the demands and desires of the couple. How could anything ever get done?
This court wasn’t going to be a party to that. Hal was found to have apparent authority to let Phil and Marlee cut the boundary trees.
Dickinson v. Charter Oaks Tree & Landscaping Co., Inc., Case No. 02AP-981 (Court of Appeals, Franklin County, Ohio, April 24, 2003) 2003-Ohio-2055, 2003 Ohio App. LEXIS 1940. In October 1997, Marlee Snowdon and her husband Richard moved next door to Carol Dickinson and her husband, Hal. Carol Dickinson had lived in her house for 30 years. After Hal and Carol married some 15 years before, he began living there, too. Notwithstanding that, Carol owned and managed the property. Significantly, she admitted the Snowdons had no idea who owned the property.
One spring, the Snowdons decided to clean out substantial vegetation overgrowth along the side of their property abutting the Dickinson property. After Marlee and Richard decided to do the work, Richard told her he had received permission from Hal Dickinson after the two men walked the joint property line together and Richard Snowdon pointed out to Hal Dickinson what the Snowdons wanted to do. Marlee Snowdon hired Charter Oaks to do the work.
Marlee Snowdon told Charter Oaks that the Dickinsons had given their consent to removing vegetation along the border between the properties. Charter Oaks’ normal practice was to rely on the representations of the contracting party about the consent of adjoining landowners. Charter Oaks began removing the vegetation between the Dickinson and Snowdon property.
Hal watched Charter Oaks run chippers and perform its work the first day. But on the second day, Carol returned from an out-of-town trip and became upset about the work.
Carol sued the Snowdons and Charter Oaks for trespass and wrongful cutting.
Held: Hal acted with apparent authority, and the Snowdons and Charter Oak were within their rights to rely on his consent. The evidence showed that not only did Hal work frequently in the Dickinson yard, both alone and with Carol, but he trimmed and removed vegetation from the Dickinson property, including the area along the joint property line with the Snowdons. Hal dealt with contractors, including a tree service Carol hired that performed work on the Dickinson property. No evidence suggested the Snowdons were told Hal had limited or no authority to make decisions regarding landscaping matters on the Dickinson property. That evidence let a reasonable person infer that Carol knowingly permitted Hal to act as though he had authority over landscaping matters on the Dickinson property.
What’s more, the evidence showed that Richard Snowdon believed in good faith that Hal had apparent authority to give permission to the Snowdons and Charter Oaks to enter onto the Dickinson property to remove vegetation in the area of the joint property line.
A defendant is not liable for trespass or destruction of vegetation if he is privileged, by receiving the consent of the owner or her agent, to enter onto the property of another to remove vegetation. “Because competent evidence was presented at trial to support a reasonable conclusion that Hal Dickinson was Carol Dickinson’s agent and had apparent authority to give consent to defendants to enter onto the Dickinson property and to remove vegetation,” the Court said, Carol’s claims against the Snowdons and Charter Oak failed.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 