Case of the Day – Friday, January 18, 2019

SO WHAT IF YOUR NEIGHBOR BUGS YOU?

You remember that neighbor kid when you were young, the one who was always threatening to tattle to his mother or father about your alleged misdeeds?

All right, you never committed misdeeds. I did, however, and I remember my neighbor Rick, who would run to his parents at the drop of a hat. One July 4th, he told them I was responsible for some shenanigans that resulted in his burning his eyebrows off – I won’t go into details – and I was only saved because I happened to be 500 miles away at summer camp at the time.

Even then, his parents blamed me.

Some people never grow out of that urge to tattle and whine. When they become adults, they like to call the police, complain to the zoning people, and even sue. Many times, they complain about conduct that is legal (or nearly so), but merely bothersome: the neighbor puts her garbage out early, or shovels his walks late or not at all, or never weeds the garden, or parks his truck on the street, or his boat in the yard…

Nuisance is the legal doctrine that lets you bend your neighbor’s conduct to your whims. It is not easy to prove a nuisance, nor should it be. It must be an unreasonable, unwarranted or unlawful use of one’s property, and even then, the use has to annoy, inconvenience or disturb you enough that the law will presume damage.

In today’s case, the neighbor’s stand of trees bugged Chuck Merriam – literally. But swarms of disgusting insects was not enough to convince the court to boss around Chuck’s neighbor for his benefit.

Merriam v. McConnell, 31 Ill.App.2d 241 (Ct.App. Illinois 1961). Charles Merriam and next-door neighbor Jean McConnell lived in a well-populated residential area of Northfield. Jean was growing a large number of box elder trees on her property. As part of the box elder ecosystem, Jean played host to box elder bugs – ugly, black and red, three-quarter inch long insects – that infest the box elders every summer. Swarms of the bugs migrated from the trees to Chuck’s house and yard, endangering his “comfortable and peaceable use and enjoyment” of his residence, impairing the value of his property, and “embarrassing and distressing” his guests. The bugs invade Chuck’s residence and mess the furniture and draperies, which are expensive and time consuming to clean.

Chuck complained to Jean repeatedly, but she was powerless to keep the bugs out unless she cut down the trees, which she was not about to do. Chuck asked for $150.00 in damage (this being 1961) and for an injunction to get rid of the trees.

The trial court dismissed Chuck’s complaint, and he appealed.

Held: Jean’s box elders were not a nuisance, and Chuck had no basis for an injunction against her maintenance and growing of box elder trees or, alternatively, the control of the box elder bugs.

Chuck’s complaint was based on the theory of private nuisance. In general, a private nuisance is an individual wrong arising from an unreasonable, unwarrantable or unlawful use of one’s property producing so much annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage.

This means that the complaint, in order to be successful, ought to allege facts that justify the inference that the defendants are using their property in an unreasonable, unwarrantable or unlawful way.

The Court cited Michalson v. Nutting for the notion that “an owner of land is at liberty to use his land, and all of it, to grow trees. Their growth naturally and reasonably will be accompanied by the extension of boughs and penetration of roots overhead and into adjoining property of others.” The Michalson court thought it “wiser” to adopt the common law practice of leaving the neighbor to his own protection “if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

The Court noted that no Illinois precedent enjoined the operation of natural forces. Instead, only where “a human agency has intervened in a negligent, careless or willful way to turn the natural creation into a nuisance, as for instance, where cities have polluted natural water courses, or an individual has done so.” The court said

a nuisance cannot arise from the neglect of one to remove that which exists or arises from purely natural causes. But, when the result is traceable to artificial causes, or where the hand of man has, in any essential measure, contributed thereto, the person committing the wrongful act cannot excuse himself from liability upon the ground that natural causes conspired with his act to produce the ill results.

The Court observed that Chuck asked that Jean be forced to take “necessary steps” to limit the bugs to her property. “On its face,” the Court said, “this prayer is obviously impossible. Plaintiff does not suggest how the defendant could limit the bugs to her property. He asks that defendant be restrained from growing box elder trees upon her property. There is nothing unlawful about growing of box elder trees: Jean may grow trees to whatever extent she wishes on her own property. “The fact that box elder bugs may annually infest the trees, in our opinion, does not make the trees a private nuisance nor does the conjunction of the bugs and the trees constitute a private nuisance.”

The law requires that Jean would have to be guilty of some carelessness, negligence or willfulness in bringing, or helping to bring, about a harmful condition in order to entitle Chuck to the relief he sought in his complaint.

The Court concluded:

When a person moves to a wooded suburban area he should know that he is going to a place where nature abounds; where trees add to the pleasure of suburban life; and where the shade of trees, leaves, overreaching branches, roots, squirrels, birds, insects and the countless species of nature tend to disregard property lines. The effects of nature are incidents of suburban living…

We think that reversing the decree before us would probably expose property owners, especially in wooded suburban areas, to much vexation. And, it might result in adding the weight of “clothes-line” disputes, which ought to be settled amicably by neighbors, to the mounting burden of law suits now impeding the administration of justice… Equity should not lend its jurisdiction to the control or abatement of natural forces as though they were nuisances.

– Tom Root

TNLBGray

And Now The News …

Phys.org, January 17, 2019: Researchers race against extinction to uncover tree’s cancer-fighting properties

Three Chinese fir trees on a nature reserve in Southeastern China are the last of their kind. As their existence is threatened by human disturbance and climate change, researchers are hurrying to learn everything they can about the tree—which might inspire new and more effective ways to treat various cancers. Chemists in China were initially studying the tree, Abies beshanzuensis, to look for molecules that might be able to treat diabetes and obesity. Using only bark and needles that fell from the trees, in order to not further disturb the small population, researchers found that the tree’s makeup wasn’t as effective as they’d hoped in treating these diseases. The tree’s healing powers looked grim until Mingji Dai, an organic chemist at Purdue University, started tinkering with some of its molecules in his lab. His team created synthetic versions of two, and then a few analogs, which have minor structural modifications. In collaboration with Zhong-Yin Zhang, a distinguished professor of medicinal chemistry at Purdue, he found that one of the synthetic analogs was a potent and selective inhibitor of SHP2, an increasingly popular target for cancer treatment. The findings were published in the Journal of the American Chemical Society. “This is one of the most important anti-cancer targets in the pharmaceutical industry right now, for a wide variety of tumors,” Dai said. “A lot of companies are trying to develop drugs that work against SHP2…”

Cleveland, Ohio, Plain Dealer, January 17, 2019: Bad things can and do happen to good trees. Always check the credentials of your tree care specialist

I hope Rabbi Harold Kushner will forgive me for the obvious take-off of the title of his 1981 book, “When Bad Things Happen to Good People,” but the older I get, the more accurate it becomes as applied to trees. This time of year is especially hard for a tree nerd like me. With their leaves gone, the butchery done to perfectly healthy trees is no longer hidden. Now, before you nod your head and start thinking about what utility companies do to street trees in your city, what they do is a separate issue. They simply cut branches away from utility wires in order to prevent problems. They don’t function under the same rules that govern most arborists. They’re essentially not subject to private or public oversight. They’re only tasked with keeping the grid functioning. I just needed to clear that up before we start. Tree care “professionals” come in all forms. Big companies with names you know, small companies, and even ones with badly stenciled names on their trucks. But for me, the best way to determine if a current or potential tree care or landscape company is capable is to ask this question: Are they “tree doctors” or “tree undertakers?” There is a tremendous difference. Are they going to care for your tree, or do they just cut things off and cut things down? If you don’t know the difference, your tree(s) will suffer. They are often less safe after the work is done. How do I know this? Science…

Salisbury, North Carolina, Post, January 17, 2019: Don’t forget about the trees in winter months

Did you know that trees fall into a couple of basic categories? Trees are either evergreen or deciduous, which may help to explain how trees deal with the cold winter. Evergreens usually have some kind of needles and keep their foliage throughout the winter months. An exception would be the live oak or Southern magnolia which have leaves all season long. Deciduous trees like the maple and most of the oaks shed their leaves in winter to reduce winter damage. An exception would be the bald cyprus, like the ones along Arlington Street here in Salisbury, which drop their needles in the winter. Although evergreen and deciduous trees handle the winter cold a little differently they both have a similar strategy to keep from freezing in the winter – sap. Sap, which acts like an antifreeze, takes a little longer to freeze than water and usually doesn’t freeze solid. Pine trees produce sap that can be super sticky and is flammable. Most hardwood sap is watery but can be very sweet like maple sap used to make maple syrup…

Roanoke, Virginia, Times, January 17, 2019: Court filing asks judge to deny Mountain Valley’s request for injunction against tree-sitters

A federal judge should not act as an “enforcer” for the Mountain Valley Pipeline by using her power to remove two protesters from trees blocking the path of the controversial pipeline, supporters are arguing in court. U.S. District Court Judge Elizabeth Dillon was asked in a brief filed Wednesday to deny Mountain Valley’s request for a preliminary injunction, which the company says it needs to evict two people identified in court records only as “Tree-sitter 1” and “Tree-sitter 2.” Since early September, two protesters have been living in tree stands about 50 feet above the forest floor on a steep mountainside in eastern Montgomery County, frustrating Mountain Valley’s efforts to complete tree-cutting. But Mountain Valley is “improperly seeking to enlist this Court to act as its enforcer in its dealings with persons opposing pipeline activities and construction,” Roanoke attorney John Fishwick wrote in a friend-of-the-court brief in support of the tree-sitters. Fishwick does not represent the actual protesters, who have kept to their perches rather than attend court proceedings and defend themselves against Mountain Valley’s civil action…

Roseburg, Oregon, News-Review, January 16, 2019: Ahead of storm, power company works to trim trees damaged by recent droughts

A powerful Pacific storm that began drenching the West Coast on Wednesday is expected to include rain for Douglas County through Friday, according to The National Weather Service. Rain in Douglas County should persist through Monday, according to forecasts. As much as 0.61 inches of rain could fall in Roseburg through Friday afternoon. Wind gust could reach 26 mph Thursday. As always during powerful storms, Douglas Electric Cooperative, which covers about 2,200 square miles in the area, is expecting downed trees and branches to cause power outages, said Don Utley, arborist with the company. Extreme droughts in recent years are damaging trees across the region, Utley said, and that’s increasing the number of trees at-risk of falling on power lines. Douglas Electric recently increased funding and staff for its right-of-way program, which is tasked with trimming and removing trees at-risk of falling on power lines. “We’ve been upping it since 2015 and we’ve gotten more aggressive in the removal of these dead trees,” Utley said. The company invested more in the program to stave-off future costs of responding to power outages, he said…

Greensboro, North Carolina, WFMY-TV, January 16, 2019: Tree company accused of price gouging

According to court records, a Browns Summit family had to have three trees removed after Michael blew through, and the company billed them $37,000. This after another company quoted only $800 for the job. So now NC Attorney General Josh Stien is suing National Emergency Restoration Services to get that family’s money back. The suit also asks the court to ban the company from doing business in North Carolina. We’ve reached out to National Emergency Restoration Services multiple times, and we’re still waiting to hear back. This is the sixth case of price gouging that AG has sued over in recent months…

New Haven, Connecticut, Register, January 16, 2019: ‘Frosty had the last laugh’: Vandal tries to run over giant snowman, hits tree stump instead

A would-be vandal was stumped after they tried to run over a 9-foot snowman in Kentucky, only to find it had been built over a large tree stump. Cody Lutz told KCCI that he, his fiancee and his soon-to-be sister-in-law made the oversized snowman in Petersburg, Kentucky, while enjoying the winter weather this past weekend. Lutz said his fiancee’s sister was “elated to experience the biggest snowfall she’s ever seen.” Lutz said he decided to use a tree stump as the base for the snowman. After coming home from work, Lutz said he found tire tracks leading up to the snowman, leading him to believe that someone tried to run over the giant snowman, which they had named Frosty. There’s now a massive stump now exposed, with a snowy imprint of a bumper stuck to it. “You reap what you sow,” Lutz said. “Still standing and still smiling, Frosty certainly had the last laugh…”

Columbia, Missouri, KOMU-TV, January 16, 2019: Upcoming winter weather could contribute to mid-Missouri tree damage

Lately, mid-Missourians have had the chance to build a snowman or go sledding and then eventually warm up next to a fire. But behind all of this fun, the snow is actually causing a lot of trouble for the trees in the area. The arctic blast that had swept through mid-Missouri left tree limbs on the ground and trucks split in half. The weight from the snow piled on until the branches snapped under pressure. One Columbia resident explained how he’s seen first-hand a tree break due to snow. Joe Burch, a resident of the First Ward in Columbia, MO, explains that he was sitting on his couch when he and his friends heard a loud noise outside. “I thought it was a car backfiring because it was so loud,” Burch says. He realized that the tree in his front yard had snapped due to the additional weight from the snow and landed on his gutter. “If the tree would have fallen five feet to the left, it could have really damaged my place and went through the window,” Burch says. Rachel Eckert, a frequent runner at Stephens Lake Park, explains that she hopes that the trees will be okay once the snow melts away. “It’s really going to ruin my view when I run,” Eckert says. With another snowstorm projected to come in on Friday, tree specialists are warning people. Stewart Scott is a tree care expert at Cevet Tree Care located in mid-Missouri. Scott is offering advice on how to prevent further damage to the trees…

San Francisco, California, Chronicle, January 16, 2019: Protesters, police square off over tree removal at People’s Park in Berkeley

A steady drizzle fell Tuesday morning as a dozen protesters and several dozen police squared off while UC Berkeley crews cut down what officials said were five damaged and diseased trees in People’s Park. Protesters milled around the east side of the park, where construction crews arrived just after 5 a.m. to take down the pines and cedars behind police tape. At least 50 California Highway Patrol and University of California Police Department officers were on scene. “Everything we do around protests and situations like this is informed by our desire to avoid conflict if at all possible, and having a large number of officers is a good way to achieve that,” said UC Berkeley spokesman Dan Mogulof. The school has a memorandum of understanding with CHP to provide additional officers if needed, he added…

Springfield, Massachusetts, Republican, January 15, 2019: After wood taken from Ledges, South Hadley imposes new rules for cutting trees

After allegations that an unknown person made off with wood from the Ledges Golf Course, Town Administrator Michael J. Sullivan has imposed new protocols for the cutting and removal of trees. Sullivan said he investigated after receiving an anonymous phone message about a person who took cuttings from the golf course. “There was some tree limbs and branches taken by an unknown person, reported by the Ledges IGM Superintendent when asked during the inquiry. He did not know the person or get his license plate,” Sullivan stated in an email. IGM, a Florida-based company, manages the golf course. “I met with IGM, the contractor who now manages Ledges, and we developed a new protocol where anytime trees are being considered to be cut on the property, they will be inspected by the Town Tree Warden prior,” he said…

Oakland, California, Eastbay Times, January 15, 2019: Grassroots group repeats call to end PG&E’s tree-removal project in Lafayette

Emboldened with news about PG&E’s bankruptcy filing Monday and the hobbled utility’s uncertain future, a grassroots group is repeating its call for Lafayette to end its tree-removal agreement with the utility company. “I’m here to formally ask that — once and for all — we start the process to unwind the tree-cutting agreement with PG&E,” Michael Dawson of Save Lafayette Trees told the City Council on Monday. In 2017, Lafayette and Pacific Gas & Electric entered into an agreement to uproot 272 trees as part of the utility’s $500 million Community Pipeline Safety Initiative. “At this point, the Lafayette trees issue has not changed,” said PG&E spokesman Jeff Smith in an email Tuesday. “We will let you know of any future developments.” PG&E, facing as much as $30 billion in liability for damages from two years of wildfires, filed for bankruptcy protection Monday, which sent the company’s shares plunging more than 50 percent. On Sunday, PG&E announced the departure of CEO Geisha Williams, who left with a $2.5 million cash severance…

Westmoreland, UK, Gazette, January 15, 2019: Splitting bark on any tree or shrub should set alarm bells ringing

It’s a 30-year-old mountain ash (Sorbus), which has limped along for the last two years and has some large cracks/mini fissures in its bark. I’m not able to see the tree in person as it’s the other end of the country but I’m convinced that the likelihood of bad news is likely to be on the horizon. Splitting bark on any tree or shrub should set alarm bells ringing and should never be overlooked. It is possible for trunks to split due to freezing where damage may have occurred in the past, creating cavities or spaces where water can enter and then freeze. This, however, is not normally the reason for it happening – underlying disease is normally to blame…

Washington, D.C., Post, January 14, 2019: Trump’s executive order will aggressively cut more forest trees

With a partial government shutdown looming, President Trump quietly issued an executive order that expands logging on public land on the grounds that it will curb deadly wildfires. The declaration, issued the Friday before Christmas, reflects Trump’s interest in forest management since a spate of wildfires ravaged California last year. While many scientists and Western governors have urged federal officials to adopt a suite of policies to tackle the problem, including cuts in greenhouse gases linked to climate change, the president has focused on expanding timber sales. The executive order instructs the secretaries of agriculture and interior to consider harvesting a total of 4.4 billion board feet of timber from forest land managed by their agencies on millions of acres, and put it up for sale. The order would translate into a 31 percent increase in forest service logging since 2017…

Greensboro, North Carolina, WFMY-TV, January 14, 2019: What to do if a tree (or your neighbor’s tree) falls on your home, property

The ice over the weekend caused problems throughout the Piedmont Triad when it comes to downed trees and power outages. As crews work to restore power, people may be left to pick up a mess made by a fallen tree. The Insurance Information Institute says that no matter where a tree came from, if it hit your house, your homeowners insurance will cover the cost. That means if a tree blew in from around the block or leaned over from your neighbor’s yard. You just need to file a damage claim with your insurer. If a falling tree hits your car, you can also file a claim with your auto insurance. The key works here are “comprehensive coverage.” That covers any vehicle damage besides collisions, including theft, hail and falling trees. According to All State, comprehensive coverage is sometimes optional if you own your vehicle so check with your provider to see if you have it. If you’re leasing or financing a car, your lender might make it mandatory…

Atlanta, Georgia, Saporta Report, January 14, 2019: Atlanta’s tree ordinance a sore spot among residents as city eyes a new code in July

Atlanta’s aged tree ordinance of 2001 looks so good that some folks say they’d be happy if the city would enforce it – until it can be updated. Meanwhile, the city says it’s on track to update the existing tree ordinance in July. The board of the Buckhead Council of Neighborhoods voted unanimously at its Jan. 10 meeting to ask BCN’s full membership to support a pointed resolution about the existing tree ordinance. The organization represents some 80,000 residents, and some said they’re weary of seeing trees cut on private property with what they perceive as little oversight from the city. The resolution calls for (1) the city to increase the transparency surrounding the current effort to revise the tree ordinance; and (2) the Arborist Division, in the Department of City Planning, and the Department of Parks and Recreation to comply with a host of existing tree protection regulations…

Seattle, Washington, KOMO-TV, January 14, 2019: How to hire a tree service

Winter winds are tough on the trees. After a big storm, you may find yourself needing to hire a tree service. You want to get several bids, if possible, but there may not be time for that. “Even if you’re in a rush, you really still have to do your homework when choosing one of these companies,” said Kevin Brasler, executive editor at Checkbook.org. “Tree care work, even if the tree has fallen across your yard, is still dangerous work. You want to make sure you’re hiring a company that has proper insurance – worker’s compensation insurance to protect its employees and liability insurance to protect you and your property.” Remember: Before any work begins, get a written contract. “Even if you don’t have time to get bids, even if you only have one company that’s available to do the work, get their price in writing and get in writing what they’re going to do, so there’s no misunderstanding when it’s all done,” Brasler said…

Kansas City, Missouri, KSHB-TV, January 13, 2019: Tree removal companies inundated with calls

Winter Storm Gia pummeled the metro with wet, heavy snow that weighed down limbs and left thousands without power. As utility crews got to work over the weekend, so did tree removal companies. Three local companies that responded to emergency calls Sunday said the real work, removing the debris, begins Monday and could last for more than a month. Ward Tree Care fielded 50 calls Sunday alone. “As I was driving around, it’s kind of like every house, every street,” Ward Tree Care owner Anthony Ward said of the damage. He as his crew worked to remove branches from the roof of a Leawood home. “This is a River Birch, and it was pretty heavy,” Ward said. “It’s so thick at the top, so it just bent it all the way down and broke.” According to Ward, softwoods like pines and spruces are impacted most by storms like this one. That’s why it is important to have such trees trimmed every three to four years. Ward also had advice for homeowners looking to hire companies in the coming weeks — make sure the business is professionally licensed and insured. “If they don’t have worker’s comp and one of the guys gets injured, then they could sue the homeowner,” Ward said…

St. Paul, Minnesota, Pioneer-Press, January 13, 2019: Get ready for more fights about trees and sidewalks and neighborhoods

Out at the west end of St. Paul, about where Oliver Crosby built a magnificent estate called Stonebridge, is a neighborhood without sidewalks. This is a quadrant of the city west of Cretin Avenue between St. Clair and Jefferson, with curving streets and a still visible curb cutout for an entrance to the long-gone Crosby estate. The neighbors don’t want sidewalks. They have lived without sidewalks since their neighborhood was developed after the fall of Stonebridge in the early 1950s. Oh, no, you’re getting sidewalks, the city effectively said. We are in the business of canonizing the pedestrian and you will get sidewalks along with your street and utility upgrades. But we don’t want sidewalks. We have lived without sidewalks for more than 50 years and there has never been a problem, never a fatality, probably never even a sprained ankle. We don’t care. It says right here in this official Public Works Street Reconstruction Program document that you are getting sidewalks. The neighbors rallied. A petition was started and enough neighbors so readily joined in that the city had no choice but to back off. So they won, right? Not really. In one of the clearest examples to date of what happens when you fight City Hall and win, the residents of that Macalester-Groveland neighborhood were told, “Fine, you won your sidewalk fight, but now you go to the end of the line when it comes to the reconstruction of your streets and your utility upgrades.” “This was never really about sidewalks, per se,” said a resident who didn’t wish to be named. “It was about the loss of 53 trees. A neighborhood should not have to choose between infrastructure and mature trees.” Normally, I would not defend trees, at least stridently. They grow back. But that isn’t the case here, or in any neighborhood in the city that loses trees. Trees give a neighborhood, especially this one in question, a distinctive character. Some of the sugar maples are 100 years old. The neighborhood is leafy and shaded…

Global Plant Council, January 13, 2019: Trees’ enemies help tropical forests maintain their biodiversity

Scientists have long struggled to explain how tropical forests can maintain their staggering diversity of trees without having a handful of species take over – or having many other species die out. The answer, researchers say, lies in the soil found near individual trees, where natural “enemies” of tree species reside. These enemies, including fungi and arthropods, attack and kill many of the seeds and seedlings near the host tree, preventing local recruitment of trees of that same species. Also playing a key role in the tropical forest dynamic are seed dispersers. Seeds from individual trees that are carried a distance away – often by rodents, mammals or birds – have a chance to get established because the fungi and arthropods in the new region target different species. This restriction of tree recruitment near the adult trees creates a long-term stabilizing effect that favors rare species and hinders common ones, the researchers say. Overturning previous theory, the researchers demonstrate that these interactions with enemies are important enough to maintain the incredible diversity of tropical forests. Results of the study are being published this week in Proceedings of the National Academy of Sciences (PNAS). “In many North American forests, trees compete for space and some have a niche that allows them to outcompete others,” said Taal Levi, an Oregon State University ecologist and lead author on the study. “Douglas-firs are the species that grow best after a fire. Hemlock thrives in the shade and grows well under a canopy. Some species do well at elevation. “But in the tropics, all of the tree species appear to have a similar competitive advantage. There is an abundance of species, but few individuals of each species. The chances of blinking out should be high. But there has to be a mechanism that keeps one species from becoming common, becoming dominant. And it is these natural enemies that have a high host-specificity…”

Arlington Heights, Illinois, Daily Herald, January 13, 2019: How tree services can protect your property

Cold weather can take its toll on a property, especially in regions of the world where winters are harsh. Most parts of the landscape are vulnerable to damage from winter storms, but trees may be especially susceptible. By the end of winter, many homeowners wonder if their trees would benefit from some professional TLC. Tree services provide a host of services. While fall is a popular time to remove trees from a property, doing so in spring is not unheard of, especially if trees were affected by winter storms and now pose a threat to a home and the people who live inside it. Homeowners considering tree services can explore the following ways that some professional arbor attention can protect them and their homes. Tree services can help protect a home’s foundation. Old trees that stretch well into the sky can be captivating, but they also can pose a threat to a home’s foundation. Such trees may have especially large root zones that may extend beneath walkways and even a home. In the latter instance, foundations may crack as roots try to stake their claim to the ground beneath a home. According to the home improvement resource HomeAdvisor, homeowners pay an average of just over $4,000 to repair foundation issues, though major problems can cost considerably more than that. A professional tree service can remove aging trees that might be beautiful and awe-inspiring but still pose a threat to a home and the areas surrounding it…

iheartintelligence.com, January 10, 2019: On a global scale, tree cover growth has outweighed tree cover loss, recent research claims

Land change is a cause and consequence of global environmental change. Changes in land use and land cover considerably alter the Earth’s energy balance and biogeochemical cycles, which contributes to climate change and-in turn-affects land surface properties and the provision of ecosystem services. However, quantification of global land change is lacking. This is an extract from research published in the journal Nature. It was conducted by a group of scientists from the University of Maryland, the State University of New York and NASA’s Goddard Space Flight Center. According to the results of the study, which is based on data gathered by satellite that has been monitoring tree growth and loss, the growth of new trees during the last 35 years has significantly outweighed the loss in the world. Most people all over the world live with the idea that on a global scale the tree cover is declining because of the intense cutting down of trees in the forests, especially in the rainforests. However, the research discussed above has proved this theory wrong claiming that the world tree cover is in reality expanding. The scientists who took part in the study examined the information provided by high-level radiometers with detailed resolution over a group of 16 weather satellites in the span of 35 years between 1982 to 2016. By analyzing the data provided every day, the researchers noticed some minor repeated changes that eventually led to more significant changes in the longer period…

Bangor, Maine, Press-Herald, January 9, 2019: Tree-cutting accident kills Maine man

A Washington man was killed Wednesday when a tree he was cutting fell on him. Shannon Condon, 47, of Washington, died at the scene. According to a news release from the Knox County Sheriff’s Office, a passer-by spotted Condon lying by a tree just off Razorville Road, which is also Route 105, and called 911 just after 1 p.m. When deputies arrived, they found Conden had died. Union Emergency Medical Service and the Washington Fire Department also responded…

Scientific American, January 10, 2019: Biotech could modify trees to protect against pests

U.S. forests are among the most vulnerable in the world to predators and disease, and those threats are being compounded by climate change, according to a new report from the National Academies of Sciences, Engineering and Medicine. The report suggests that two U.S. agencies—the Department of Agriculture and EPA—and the nonprofit U.S. Endowment for Forestry & Communities Inc. consider using more tools from emerging fields of biotechnology to promote healthy forests. They would include the use of genetically engineered trees to prevent the loss of forested lands from pests. It notes that the United States has more than 100 million square miles of forests, an area exceeded only by Canada, Brazil and Russia. A panel of scientists convened by the National Academies to explore deteriorating forest health estimates that 7 percent of U.S. forests could lose at least 25 percent of their trees by 2027…

Science, January 10, 2019: Surprise: These termites are good for trees

When it comes to floorboards and furniture, termites get a bad rap. But there’s one type of wood they may be good for: the trees of rainforests. During an extreme drought that struck the island of Borneo during late 2015 and early 2016, researchers studied eight widely scattered plots on the forest floor. In four of those 2500-square-meter areas, team members dug out or leveled termite mounds and then left poison baits for the insects that remained. In the other four areas, researchers left the insects alone. In the plots with intact termite mounds and nests, soil moisture at a depth of 5 centimeters was 36% higher during the drought than it was in plots where termite activity was disrupted. Termites (above) generally require a moist environment and, when necessary, will dig down dozens of meters or more to bring water up to their living spaces, the scientists note…

Oakland, California, KTVU-TV, January 9, 2019: PG&E may need to inspect entire territory for trees, wildfire risks

A federal judge in San Francisco on Wednesday tentatively ordered PG&E Co. to inspect its entire electrical service area and remove or trim any trees and repair any damaged transmission equipment that could cause wildfires. U.S. District Judge William Alsup will hold a Jan. 30 hearing to decide whether to go ahead with the order. He invited representatives of Cal Fire and the California Public Utilities Commission to attend the hearing, in addition to PG&E and federal prosecutors. Alsup is overseeing the utility’s five-year probation, which started in 2017, for a criminal case in which the utility was convicted of violating federal pipeline safety rules and obstructing justice in a probe of a fatal natural gas pipeline explosion in San Bruno in 2010. Alsup wrote that the purpose of his proposed order is “to protect the public from further wrongs by the offender” and to “reduce to zero the number of wildfires caused by PG&E in the 2019 wildfire season.” The season runs from June 21 to the first region-wide rainstorm in November or December. The judge noted that Cal Fire has determined that San Francisco-based PG&E caused 18 wildfires in its northern and central California service areas in 2017. The agency is still investigating the cause of the devastating 2018 Camp Fire in Butte County that killed 86 people…

Nashville, Tennessee, WKRN-TV, January 9, 2019: Middle Tennessee Electric wants to use chemical to control tree branch growth

Middle Tennessee Electric customers could soon be getting a notice on their front doors. The electric provider wants to apply a tree growth regulator to the trees to slow down the growth of branches. This would keep branches away from electrical lines. But, many question how safe the chemical is for kids, pets, and adults playing or working in the yards. “I grew up in agricultural areas, and I have been diagnosed with Lymphoma. Lymphoma is a cancer of the blood. It’s thought to have been caused by chemicals either sprayed on trees or residences,” says Steve Anderson, an MTEMC customer, and Wilson County resident. So just how safe is the chemical? “This is EPA approved and it is not a spray. This is something that is sub-surface. And it’s put into the ground. So it is not something that is put out into the air. And so it’s really designed to treat the specific tree the way the tree needs to be treated,” says Brad Gibson with MTEMC. “What we found is, that if we look at vegetation management, and making sure that we maintain that right away properly, that people want choices. And the choices we are giving them is, ‘do you want to have it trimmed? Do you want something removed? Or would you like to look at this tree growth management option…”

Richmond, Kentucky, Register, January 9, 2019: Topping trees is extremely bad for trees

When a tree grows too large for the space it is in, people often feel it should be topped. Topping is the drastic removal or cutting back of large branches in mature trees. These cuts often stimulate new vigorous growth. At one time, this was thought to be an acceptable way to reduce the height of a tree. Researchers have now found that this practice is extremely bad for the tree. Topping is injurious to trees in many ways. By removing a major portion of the canopy, the delicate balance between foliage and the remainder of the tree is upset. Through the process of photosynthesis, leaves manufacture chemical energy required by the tree for growth and maintenance of branches, trunk, and roots. With large portions of leaf surface area removed, a tree’s energy producing potential is severely reduced. Large reserves of stored energy in many stems and branches also are lost when trees are topped. These imbalances can lead directly to decline and death or can make the trees susceptible to invasion by canker and root rot diseases. Topped trees frequently produce vigorous regrowth, called water sprouts, just below the pruning wound. These rapidly growing shoots can have very weak attachment to the remaining stub, making topped trees highly vulnerable to wind and ice damage. So, what can you do if you have a tree that has outgrown its space? Thin out selected branches by removing them back to their point of origin, or prune to a side branch that is large…

Foxboro, Massachusetts, Reporter, January 10, 2019: Foxboro officials defend tree trimming operations

Mindful of public frustration over what some view as a blizzard of storm-related power failures, town officials went out on a limb this week to defend ongoing efforts at keeping trees and other vegetation away from power lines. According to Tree and Parks Supervisor David LaLiberte, Foxboro’s preventative maintenance program enlists both public works employees and utility crews (primarily National Grid) in an effort to identify, cut back and/or remove diseased or dead trees before they succumb to Mother Nature. Accompanied by Public Works Director Roger Hill and Fire Chief Roger Hatfield, LaLiberte on Tuesday provided selectmen with a common-sense overview of how hazardous trees along local roadways are assessed and managed. In recent years, LaLiberte said, town and utility workers have combined resources to remove hundreds of trees and trimmed along scores of public ways…

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Case of the Day – Thursday, January 17, 2019

SITTING ON YOUR RIGHTS

Equity is a beautiful thing.

There was a time, back in merry olde England, went the courts of law had gotten so hidebound and formalistic that your average aggrieved peasant couldn’t catch a break. So people who needed something more than what the law could provide would petition the Lord Chancellor.

Thus began the courts of chancery, known more commonly as courts of equity. A court of equity is authorized to apply principles of equity, as opposed to those of law, to cases brought before it.

Equity courts hear lawsuits and petitions requesting remedies other than damages, such as writs, injunctions, and specific performance. Most equity courts were eventually merged with courts of law, but some American states, including Delaware, Mississippi, New Jersey, South Carolina, and Tennessee, preserve the distinctions between law and equity and between courts of law and courts of equity.

Today’s case, being from Tennessee, started with a Chancellor (something like this fellow), because what the plaintiffs really wanted was an injunction, a court order that the owner of the hedge trim it. But it ended up in Tennessee Supreme Court.

At its root, equity is nothing more than fairness. Note how equity creeps into this case, not only in the application of the Massachusetts Rule – and how much a creature of equity is that? – but in the observation at the end of the decision that laches should prevent Bill Granberry from getting any relief from his claim.

Bill sat on his rights. If he had sued Penelope when the hedge was still short and young, the outcome might have been different.

Granberry v. Jones, 188 Tenn. 51, 216 S.W.2d 721 (Supreme Ct. Tenn. 1949): Bill Granberry and Penelope Jones each owned a residence on adjoining lots in Tullahoma. Due to the narrow frontage, Bill’s residence is a little less than five feet from the boundary line between the properties.

Penny planted an evergreen shrubbery hedge entirely on her side and within a few inches of the boundary line. The hedge has grown to a height of about twenty feet and its branches and foliage have grown over the boundary line and over Bill’s property to the extent that they rub the side of his house and enter his open windows.

Bill sued for an injunction that would require Penny to trim the hedge back to the boundary line. For good measure, he also asked for decree requiring her to move the hedge entirely or at least to cut it down to a height of not more than 24 inches and to keep it that way, and for damages.

Penny demurred (which is legalese for saying to the court “even if everything he says is true, Bill’s got nothing coming). Penny argued that she had the legal right to grow the shrubbery on her own property to any height she desired, and if any of the branches or foliage protruded onto Bill’s land, his remedy was only to cut the hedge to the extent of the protrusion. The trial court overruled her demurrer, and Penny appealed.

Held: Penny’s demurrer was correct: Bill’s remedy was limited to self-help.

The court reversed the lower court’s decree which had overruled defendants’ demurrer to the complainant’s bill, seeking inter alia to enjoin defendants from permitting their hedge to extend onto his land. The court dismissed the bill.

Noting that it could “find no Tennessee case where resort to a Court of equity has been attempted on the facts alleged by this bill,” the Supremes ruled that every owner of land has dominion of the soil, and above and below to any extent he or she may choose to occupy it. As against adjoining property owners, the owner of a lot may plant shade trees or cover it with a thick forest, and the injury done to them by the mere shade of the trees is damnum absque injuria.

No landowner has a cause of action from the mere fact that the branches of an innocuous tree belonging to an adjoining landowner overhang his or her premises. The afflicted owner’s right to cut off the overhanging branches back to the property line is considered a sufficient remedy, the Court said, citing the Massachusetts Rule.

The principle, the Court said, is that an owner of land is at liberty to use his land, and all of it, to grow trees. Their growth naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others.

Bill argued that the overhanging branches and foliage had caused the outside wall of his home to rot and decay, and the sills and woodwork have been caused to rot to such an extent that they will have to be replaced by reason of the constant leaning against them of the hedge.

The Court was a mite troubled that it obviously had taken many years for the hedge had grown to its current size. Bill could have taken action when the hedge was much smaller, and the damage to him and burden to Penny – were she to be required to cut the hedge – would have been much less. “The long acquiescence and laches upon the part of [Bill] without any notice to [Penny] and with no attempt to aid himself,” the Court wrote, “is clearly the cause of the damage for which he seeks equitable relief. Of course, the Courts are open to [Bill] if in legally aiding himself he is improperly interfered with by [Penny] or her brother. Our conclusion, also, is without prejudice to whatever rights, if any, [Bill] may have for recovery of the expense to which he may be put now or hereafter in cutting the overhanging branches or foliage.”

– Tom Root

TNLBGray

Case of the Day – Wednesday, January 16, 2019

THERE ARE LEGAL COSTS, AND THEN THERE ARE LEGAL COSTS

fees160104Let nothing come between a lawyer and his fee.

You might be cynical, and see today’s case as nothing more than a lawyer worried about collecting a large and unwarranted fee. But the case is much more than that.

The facts are rather prosaic. Some landowners failed to carefully mark the common boundary with their neighbor before setting a timber company loose on the property. Sure enough, the cutters harvested some of the neighbor’s trees. That much wasn’t an issue.

When Valarie Garvey sued the Chaceys for timber tress, property damage and a collection of related causes of action, the Chaceys hired some aggressive litigators. Their lawyers knew that the best trial defense often is a good pretrial offense. They fought tooth-and-nail before trial, gaining their best tactical high ground when Valerie’s lawyer inexplicably didn’t identify the plaintiff’s timber expert by the pretrial deadlines.

The expert was crucial, because he was going to testify as to the value of the timber that had been wrongfully cut. But once the expert established the value of the missing trees, Section 55-332 of the Virginia Code would let Valerie Garvey collect three times the value of the wrongly-cut timber, plus reforestation costs, plus other damages to the property (such as the private road the timber harvesters ripped up) plus “legal costs directly related to the trespass.” In short, it looked like a big payday for Valerie Garvey. She just had to do one thing. She had to prove the value of the stolen timber.

Alas, she screwed it up. Perhaps it would be more appropriate to say her lawyer screwed it up. Without the expert, Valerie had no way to get the value of the timber into evidence. When the jury decided the case, it was able to award her the princely sum of $15,135.00 (only a fraction of the reforestation costs she estimated to be $ 78,000.)

expert160104Valerie’s lawyer, trying to save a case that was going south pretty fast, successfully convinced the trial court that the “directly associated legal costs incurred by the owner of the timber as a result of the trespass” included attorneys’ fees. Valerie claimed she had spent over $135,000 in legal fees, and the trial court awarded even more than that – $165,000 – in fees.

I doubt that Valerie’s lawyer was going to get all of that pile of cash. In fact, Val had every right to be as mad as a wet hen over counsel’s missing the expert witness deadline. I suspect that the lawyer and client had made a deal to salvage something out of the case, and counsel would had ended up with little more than cabfare (but no malpractice claims). Unfortunately, we’ll never know, because on appeal, the Chaceys convinced the Virginia Supreme Court that whatever “directly associated legal costs” might be, they are not “attorneys fees.” The Supreme Court was impressed that wherever the legislature intended to authorize the award of attorneys fees – in over 200 statutes in the Code – it was able to clearly say so.

The Chaceys – not satisfied with hitting a triple – swung for the fence. They asked the Supreme Court to rule that where a plaintiff claiming timber trespass did not prove the value of the missing timber, the case should be thrown out. The Supreme Court disagreed. Proving a timber trespass does not require that one prove the value of the purloined pines. Of course, not doing so cuts the plaintiff out of a lot of damages, but the offense does not depend on proven damages. It just requires that a trespass to timber occur, whether the tree is worth anything or not.

As for Valerie’s attorney, I suspect he marched straight from the courtroom to his malpractice carrier’s office.

reforest160104Chacey v. Garvey, 295 Va. 1, 781 S.E.2d 357 (Supreme Court of Virginia, 2015). In 1995, Valerie Garvey bought 50 acres of land from Allan and Susan Chacey. The Chaceys retained ownership of adjacent property, and they reserved to themselves an easement over Garvey’s property as a means for ingress and egress to their property.

At the end of 2012, Garvey sued the Chaceys and Blue Ridge Forestry Consultants, Inc., alleging timber theft and trespass. Garvey said the Chaceys had hired a logging company a few years previously to remove some timber located on their property, and that the company had trespassed on her property and removed timber without her permission. She alleged that she was entitled to damages for timber theft at three times the value of the timber on the stump, as well as reforestation costs not to exceed $450 an acre, the costs of ascertaining the value of the timber, and her attorney’s fees. She also asked for $30,000 for damages to her property caused by the trespass, including damage to the road, fencing, and the stone bridge.

Prior to trial, Garvey attempted to designate an expert witness for the purpose of establishing the monetary value of the timber on the stump at issue in the complaint. However, she did so too late, and trial court refused to let her expert testify during the three-day jury trial.

While she was testifying at trial, Garvey was asked by her attorney whether she had incurred legal costs in connection with the trespass. The Chaceys objected, but the trial court ruled that legal costs included attorney’s fees. Garvey told the jury that she had incurred more than $135,000 in legal costs, including attorney’s fees, which she claimed were all directly associated with the trespass. She also testified that she had negotiated with Bartlett Tree Services for the restoration of the trees, and she had paid a deposit of $440 towards that work, against a total price of $78,000.

The trial court ruled that Garvey could not recover treble damages since her expert evidence regarding the value of the timber on the stump had been excluded. However, the case could still go to the jury for consideration of damages for reforestation and legal costs.

The Chaceys argued that attorneys’ fees are not recoverable by a prevailing party in an action for timber theft pursuant to the Virginia Code § 55-331. They also contended that Garvey’s timber trespass claim should not have been submitted to the jury, because she had failed to provide any evidence related to the value of the alleged damaged timber. However, the jury found for Garvey on her claims of timber theft, trespass, and property damage. On the timber theft claim, the jury awarded Garvey $135.00 in reforestation costs. The jury also awarded her legal costs. On the trespass count, the jury awarded Garvey $15,000 in damages. The trial court held that Garvey was entitled to $165,135 in “directly associated legal costs incurred by Plaintiff as a result of the trespass, including attorney’s fees, in the amount of $150,000 …”

The Chaceys appealed.

needlawyer160104Held: The Virginia Supreme Court split the ticket. It observed that although Virginia Code § 55-331 permits any victim of timber trespass to collect “directly associated legal costs incurred by the owner of the timber as a result of the trespass,” whether Garvey was entitled to attorney’s fees depends upon the meaning of “costs.” Garvey argued that her attorney’s fees are legal costs directly associated with the trespass. The Chaceys argued that Garvey is merely entitled to the costs necessary for the prosecution of her suit.

Tracing the definition of “costs” in other proceedings, the Court held that “the term ‘costs’ is limited to the costs necessary for the prosecution of a suit, and does not include attorney’s fees. The Code of Virginia contains more than 200 instances where the General Assembly has determined a successful litigant is entitled to ‘attorney’s fees and costs’ or ‘costs and attorney’s fees’ … However, the General Assembly did not include the right to recover attorney’s fees in this statute, something it has done in more than 200 other separate instances.”

The Court disagreed with the Chaceys, however, about the timber trespass claim. The Chaceys, no doubt wanting to capitalize on their pretrial success in keeping Garvey’s expert off the stand, argued that the trial court erred in permitting Garvey’s timber trespass claim to proceed to the jury because Garvey failed to provide any evidence related to the value of the alleged damaged timber. Essentially, the Chaceys were contending that evidence related to the value of the damaged timber is a prerequisite to awarding any of the additional damages provided for under Code § 55-332(B).

Virginia Code § 55-332(B) holds that any person who removes timber from the land of another without permission is liable to the rightful owner for “three times the value of the timber on the stump and shall pay to the rightful owner of the property the reforestation costs incurred not to exceed $450 per acre, the costs of ascertaining the value of the timber, and any directly associated legal costs incurred by the owner of the timber as a result of the trespass.” The Court held that there was nothing in the statute that stated that an owner is only entitled to reforestation costs, legal costs, or the costs of ascertaining the value of the timber after he or she had first established the value of the timber that was improperly taken. Instead, the Court said, the statute made clear that the person who removed the timber “shall be liable to pay” all of these damages to the owner. The fact that Garvey was unable to prove the value of the timber on the stump in this case did not preclude her from being able to recover the other damages she was entitled to under Code § 55-332(B).

– Tom Root

TNLBGray

Case of the Day – Tuesday, January 15, 2019

MISSION CREEP

It pretty much stands to reason that landowners whose trees and shrubs overgrow signs along the road, thus endangering motorists, might have a duty to trim their trees.

That’s the law in Florida. But what happens when the vegetation mere creeps up over an extended period of time? That happened on a country road in Dade County, where pine tree roots over 50-70 years submarined a roadway and turned the pavement into corduroy. Of course, it did not help that at some point, the County widened the road, so that trees that were once well away from the road ended up uncomfortably close to the shoulder.

I once had a dapper contracts law prof – a partner in a downtown law firm – who explained to us well-scrubbed first-year students that the law was a seamless web. We would never, he explained, have a case that was exactly like a case that had already been decided. Instead, our fact patterns and legal issues would fall somewhere in between cases and legal principles that had been settled by courts and lawyers who had gone before. Our job as attorneys, he said, was to convince the judge that our clients’ cases fell closest to the legal principle that best served our client’s interest.

That’s what the lawyer for injured passenger Mary Sharon Sullivan tried to do, when he sought to convince a Florida appellate court that if a landowner can be dinged because its trees overgrow a stop sign, it certainly ought to be liable when roots from the landowner’s trees grow beneath a public street, breaking up the pavement.

Silver Palm Properties, Inc. v. Sullivan, 541 So.2d 624 (Ct.App. Florida, 1988). Bob Stevens was driving with a passenger, Mary Sharon Sullivan, on a two-lane county paved road in an agricultural section of Dade County. Bob’s car hit a series of bumps submerged in rainwater, and he lost control, swerved to the left and crashed into a tree several hundred feet away. Both Bob and Mary were injured.

Mary sued Silver Palm, the owner of property next to the accident site, complaining that the company had a duty to maintain the trees on its property so that “subterranean growth” would not cause dangerous bumps, cracks, and protrusions in the road. She argued Silver Palm was negligent in allowing the trees to grow in such a manner as to damage the road, and in failing to inspect, discover, or repair the area. She said Silver Palm knew or should have known of the condition of the road “and therefore had a duty to take action reasonably calculated to correct the dangerous conditions created by its actions or inactions.”

Since 1974, Silver Palm has owned the avocado grove adjacent to the road where the accident occurred. About fifty to seventy years earlier, a prior owner planted Australian pine trees alongside the grove as windbreaks to reduce wind damage to the avocados. Silver Palm had never trimmed or pruned the trees. The trees were not originally located right next to the road, but when the county widened the highway in 1974, they end up much closer than they had been before.

Mary’s expert witness, a mechanical engineer, said that about three and one-half to four feet of pavement had been uprooted and broken up to a height of five or six inches because of the pine tree roots. Another expert witness corroborated the engineer’s testimony. The expert explained that four methods were generally employed to prevent the growth and spread of tree roots. Two of the methods would kill the tree outright. In a third method – topping – limbs are cut away to reduce the height of the pine tree from about 30 feet to six feet. In a fourth method, root trenching, a trench is dug parallel to the roadway, severing the roots.

The horticulturist admitted that locally, he never seen had any owner other than Dade County perform root trenching, and he had never known of any company, individual, or landowner who had done root work on pine trees within 15 feet of a roadway. No one testified as to when in the past the topping method would have had to have been performed in order to retard the root growth enough to prevent the pavement from buckling and cracking.

The horticulturist also testified that when the County widened the road in 1974, its workers merely scraped over the tops of the existing roots instead of root trenching, which would have been the proper means of controlling the root problem. Had the county root-trenched in 1974, he testified, the trenching would have retarded root growth for about ten years, well beyond the date of the accident.

Dade County admitted it had prior knowledge of the condition of the road, and it admitted it had had the responsibility to maintain and repair it. It settled for $50,000 just after the jury had retired for deliberation.

Sliver Palm did not, and the jury found it 22.5% negligent; Dade County, 15% negligent; and Bob (the driver) 62.5% negligent. The trial court entered a final judgment against Silver Palm and its insurer for $200,000.

Silver Palm appealed.

Held: Silver Palm was not liable to Mary.

Florida law holds that users of a public right-of-way have a right to expect that the roadway will not be unreasonably obstructed. Thus, a landowner may incur liability for damages caused by something which grows on private property but which obstructs the public right-of-way.

The Court distinguished the situation from other cases where obvious conditions created hazards, such as vegetation obscuring traffic signs. In those cases, “common sense required that a duty be imposed upon the landowner to remove landscaping which obstructed critical traffic signage. Vegetation that overhangs and blocks out a traffic control device constitutes an obvious condition and presents an imminent danger of uncontrolled traffic. The offending branch, moreover, need only be clipped away, a straightforward remedy.”

In this case however, “the offending vegetation was anything but obvious. The root growth was slow and subterranean; the defect in the right-of-way became noticeable only after a considerable passage of time; and the remedy was known only to horticulturists and practiced only by a governmental entity.” Everyone agreed that Dade County, not Silver Palm, owned and maintained the roadway shoulder and surface in the area of the accident. Silver Palm had no right, the Court observed, to repair or alter the surface of the roadway.

To hold a landowner liable for failing to clip back vegetation that has overgrown a traffic control device is reasonable. To impose upon a landowner a duty to undertake root trenching or tree topping purely in anticipation that subterranean growth may alter the surface of a public right-of-way at some indeterminate time in the future is both burdensome and unreasonable.

– Tom Root

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Case of the Day – Monday, January 14, 2019

CONNECT THE DOTS

A negligence action is a lot like a child’s “connect-the-dots” game. If you want to win, you have to connect the dots of “duty” to “breach of duty” to “proximate cause of damages” to “amount of loss.”

Skip a step, and you can walk away empty-handed, or – like the couple in today’s case – with a lot less.

We find it a bit unsettling that a tree service was not alerted to a bigger problem by the 100-lb. concrete plug stuck in the bottom of a tree it was to trim, and that the trimming crew proceeded to “top” the tree in order to make it healthier. Perhaps using animal magnetism on the tree or dousing the roots in snake oil might have helped.

This case has cautionary tales aplenty. First, with digital film as cheap as it is (as in, 80% of Americans have smartphones), take pictures of the trees before and right after trimming. This is true whether you’re Harry and Harriet Homeowner, or whether you run Paul Bunyan’s Tree Service.

Second, do not ignore warning signs that a tree has significant problems. Pretending that a concrete plug was not poured into a tree by a former owner, and that some simple shaping will keep it strong and healthy, is confusing a dangerous confusion of wishes for facts.

Third, both the homeowners and the tree service should insist on a detailed contract, one that spells out the obligations and expectations of both parties.

Finally, if litigation ensues, take a serious look at your expert’s analysis. Try to poke holes in the expert’s report. Be your own “tiger team.” When you read in the decision that the expert was unable to testify to a crucial element, it’s already too late.

Sandblom v. Timber Tree Service, Inc., 2009 R.I. Super. LEXIS 126, (Super. Ct. Rhode Island, Oct. 27, 2009). Steve and Terri Sandblom hired Timber Tree Services, Inc., to provide tree services to five trees located on their Arlington Street property. Steve told Timber Tree that he and his wife wanted one tree removed and the other four trimmed – two in the backyard and two in the front yard, one of which was a mature silver maple tree.

A concrete patch in a tree… never a good idea.

Even before work commenced, Timber Tree told Steve that total removal of the silver maple tree was an option, due to the fact that the tree appeared to be damaged, with a basketball-sized cement plug in the base of the tree. The concrete suggested rot, which was later confirmed by Timber Tree workers. The plug had been in the tree when the Sandbloms bought the property in 2004. Steve elected to have the tree “topped” instead, because Timber Tree’s owner told Steve that after “topping off,” the tree would be healthy and regain a healthy condition similar to a neighbor’s fully-grown silver maple.

Timber Tree gave the Sandbloms a written estimate of the charges for the work to be performed, a total charge of $1,400.00 without itemization. Work began in April 2005.

Late in the day, a Timber Tree worker asked Steve whether he wanted the silver maple tree cut down entirely. Steve examined the tree, and testified later that so much growth had been cut from the silver maple that it only could be described immediately after the work as two bare trunks, totally denuded of any vegetation.

The Sandbloms sued, claiming that as a result of Timber Tree’s negligent services, the silver maple tree in the front yard suffered permanent and irreversible damage, thereby reducing the value of their property as a whole. Pursuant to G.L. 1956 § 34-20-1, they sought twice the value of the tree and three times the value of the wood. Timber Tree counterclaimed for the outstanding balance due for services rendered.

Held: The Court, rejecting Steve’s testimony that the tree was healthy as not credible, found that the silver maple was not a healthy tree when it was topped. Steve’s expert was unable to quantify how much of the tree’s condition was caused by prior rot or prior improper pruning. The expert’s damage calculation thus was rejected.

Steve testified that before Timber Tree’s work, the silver maple was “overgrown” with vegetation and needed trimming, but was otherwise healthy. The Court found the testimony not credible in light of the observations of rot made by Timber Tree’s owner and workers. The placement of a cement plug some time before suggested that rot may have been present for a considerable period of time.

Despite Timber Tree’s suggestion that perhaps the tree was not worth further substantial investment, Steve chose to proceed with the request to “top off” the maple. Steve said he expected the silver maple would be “topped” to get tree growth away from electrical wires. Timber Tree’s owner described the work to be performed as the removal of “sucker growth.”

Instead, Timber Tree trimmed so much growth from the silver maple that was nothing but two bare trunks. But because there was no photographic evidence of the condition of the silver maple prior to the trimming, the Court could only conclude from the evidence that the silver maple was not a healthy tree when it was topped.

Steve’s expert, John Campanini, testified that Timber Tree’s work was contrary to industry standards in that its workers removed more than 20% of the live wood from the tree. He also testified that Timber Tree failed to adhere to industry standards by pruning or cutting known nodes of the tree, which he found by observing the “cuts” made to the tree.

As for Timber Tree’s other trimming, John Campanini said some of the work appeared improper in that Timber Tree failed to remove all of the dead wood on one of the trees. On a second tree in the back yard, Timber Tree did not complete the job of thinning out the crown of the tree, in that many branches on the lower canopy were not removed. This, John Campanini described, was “sub-par performance.” John Campanini supplied no testimony to quantify the damage caused by Timber Tree’s errors and omissions.

Mr. Campanini used a formula called the “trunk formula,” whereby the calculation of loss starts with the circumference of the trunk near the ground, and continues based on certain objective and subjective factors relative to the tree’s location and condition. According to Mr. Campanini, this mode of calculation is approved by the International Society of Arboriculture. The result of the calculation is to determine an “appraised” value of the tree before Timber Tree’s work, which he concluded to be $5,100.00.

Although it found his testimony credible, the Court declined to rely on Mr. Campanini’s analysis. It noted that, for example, the formula failed to account for the apparent rot of the tree, as evidenced by the concrete plug. Also, the photographic evidence of the current condition of the tree undercut any claim that the silver maple was “totally lost” as a result of Timber Tree’s work. On the contrary, the evidence of the tree’s current condition showed that the silver maple had returned to a tree lush with foliage; indeed, even Mr. Campanini testified that the Silver Maple is not dead and does not need to be replaced.

Mr. Campanini said that damage to the silver maple could be cured by four or five subsequent remedial prunings at $750.00 apiece, to select branches that may develop good supporting unions and help regain the form and shape of a natural silver maple. The tree was about 80 years old, making replacement almost impossible. Such a mature tree would not be available from a nursery for transplantation, leaving the only replacement alternative as a young sapling that would take many years to develop into the stature of the silver maple prior to Timber Tree’s work.

In order to establish a negligence claim against Timber Tree, the Sandbloms must prove by a preponderance of the credible evidence that Timber Tree was negligent, by showing that Timber Tree owed the Sandbloms a legally cognizable duty, a breach of that duty, proximate causation between the conduct and the resulting injury, and the actual loss or damage. Then, the Sandbloms had to prove that Timber Tree’s negligence caused loss or damage to their property and demonstrate the value of those damages as determined by the reasonable value of the loss or damage. Although mathematical exactitude is not required, the damages must be based on reasonable and probable estimates.

The Rhode Island Supreme Court has held that “the general rule is that where the damage to realty is temporary, the cost of repair measure is proper, and where the damage is permanent, the diminution in value measure is most appropriate.”

Looks good to me…

Although the Court found that Steve proved negligence by Mr. Campanini’s testimony, his evidence on the issues of whether the negligence caused damage and how much those damages were was “somewhat shaky.” The evidence showed that the silver maple was not healthy when it was pruned, meaning that the evidence did not show that Timber Tree’s negligence damaged the tree beyond where it was before the topping. What’s more, the evidence did not show that the silver maple was completely destroyed, such that replacement would be the proper measure of damages. Good thing, too, because an actual replacement cost would be very difficult to calculate, “due to the fact that a similar mature maple would not be available at a nursery for transplantation.”

Because the evidence showed that the tree had made a considerable recovery since it was pruned, the damage it suffered was temporary and the cost of repair would be the appropriate measure of the damages. The only credible testimony concerning the cost remedial measures was Mr. Campanini’s testimony that the silver maple could be restored with four to five remedial prunings, at a cost of $ 750.00 per pruning. The Court awarded the Sandbloms $ 3,750.00 in damages.

The Sandbloms asked for double damages under § 34-20-1. But that section only provides such damages where the cutting or destruction of a tree occurred “without leave of the owner thereof.” Here, Timber Tree performed its services with Steve’s permission. “While the services may not have been to Mr. Sandblom’s satisfaction, “ the Court said, “the Legislature did not intend double damages for negligent services that were performed at Plaintiffs’ request.”

– Tom Root

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Case of the Day – Friday, January 11, 2019

TRESPASS 101

There are a few basic peculiarities of trespass that I have written about repeatedly, but which do not seem to sink in. C’mon, people!

Recently, I was working on a case in which a utility company delivered a standard form easement to a homeowner. The owner found the document stuck in his door with a dollar bill attached. He read the easement, tore it in half, and thought nothing more of it until the utility crews – figuring he must have signed it – tore up his side yard.

The homeowner bided his time, suing many years later (but within the 21-year statute of limitations). The electric company was a Goliath, and brought in a big law firm from the big city to defend it. The lawyers were derisive in their answer, contending that the trespass complaint failed because – among other reasons – the utility workers believed in good faith they had an easement to be on the land, and, at any rate, the homeowner could not prove he had been damaged by the trespass.

I well recall the utility’s lawyers’ incredulity when I suggested that at common law, their good faith and five bucks could buy a cup of coffee at Starbucks. Speaking of five bucks, the very fact of their trespass was the only damage the homeowner had to show. Where there is trespass, there are always damages. “You can go look it up,” I suggested.

They did. And the utility settled.

Today’s case, nearly as old as I am, is one where one homeowner let her pet dinosaur wander on the property of another… No, not really, but sometimes I feel that old. Instead, the case is one where a property owner thought some cedar trees were hers, not her neighbors. She hired a tree service to top them, never a good idea. When the trespassing owner got sued, her defense was that she did not know the trees belonged to her neighbor, and anyway, the trespass did not cause any damage.

Those two concepts – intent is irrelevant and damages are presumed – are the bedrock of trepass.

Longenecker v. Zimmerman, 175 Kan. 719, 267 P.2d 543 (Supreme Court of Kansas, 1954). Alice Longenecker owned a piece of real estate. Kay Zimmerman, without her permission, directed the Arborfield Tree Surgery Company to enter Alice’s property and top off, injure and effectively destroy three cedar trees worth $150 each, which both provided shade and were ornamental. Alice argued she was entitled under the provisions of G.S.1949, 21-2435, to recover treble damages.

Alice and Kay owned adjoining residences and were neighbors for about five years. On September 8, 1950, Kay hired a tree surgery company to go onto Alice’s property to top three cedar trees. The trees were located some two or three feet north of Alice’s south boundary line. The trees before being topped were 20 to 25 feet high, and were as she wanted them on her property. About 10 feet were cut off the tops of the trees, and from such topping the trees would never grow any higher, and she didn’t want them to stop growing. Cedars are not pruned from the top, but are feathered and shaped and not cropped. Alice argued that the trees were, in effect, destroyed by improper pruning. She attached a sentimental value to them as they stood; they served a special purpose as both shade and ornamental trees.

Kay told a different story. She said the trees, prior to the time they were topped, seemed to be dying out at the top and they also contained bagworms; that two or three feet were taken out of the top of one tree and about a foot or so out of the other two; that the work she had done was beneficial to the trees and that they were not injured. The work consisted of cutting out dead branches and cleaning out bagworms. One of Kay’s expert witnesses testified that the cutting away of dead wood would not have injured the physical condition of the tree. However, he admitted that if the top is taken out, the trunk is no longer going to grow in height. Kay said she was mistaken as to the boundary line, and had believed the trees were on her property.

The trial court found for Kay, and Alice won nothing. She appealed.

Held: The trial court gave the wrong instruction on trespass, and its decision was reversed.

The determinative question on appeal was whether the trial court erred in refusing Alice’s requested instruction to the effect that because Kay had admitted the trespass on Alice’s property by topping the three cedar trees, she was liable to Alice in damages. But instead of Alice’s of requested instruction, the court told the jury that because Kay had “admitted that she had plaintiff’s trees topped and therefore she has admitted the trespass and is liable in damages for such sum, if any, as you find from a preponderance of the evidence plaintiff has sustained.

‘In arriving at the value of said trees you may, if you find from a preponderance of the evidence they have been damaged, injured or destroyed, and should take into consideration the cost of replacement and also the sentimental and utility value of the trees.”

The Court held that this instruction was just plain wrong. From every trespass, that is, the “direct invasion of the person or property of another, the law infers some damage, without proof of actual injury. In an action of trespass the plaintiff is always entitled to at least nominal damages, even though he was actually benefited by the act of the defendant.” Nominal damages are recoverable even though no substantial damages result and none are proved.”

The trial court was wrong to include a suggestion that Kay could have trespassed without causing any damage to Alice. A trespass always causes damage, even though that damage may be nominal. The trial court submitted the question to the jury whether Alice had suffered any damage by reason of the unlawful trespass, when in fact the jury should have been instructed that damages, in some amount, resulted as a matter of law.

It cannot be said that the erroneous instruction given by the trial court did not prejudice Alice.

– Tom Root

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