Case of the Day – Friday, January 17, 2020

SMALL SQUABBLES, BIG PRINCIPLES

We like to deal in broad pronouncements of property law here, but the sad fact is that a lot of litigation about property rights is pretty small minded. The parties today, Steve and Maggie, had a fairly common arrangement. Steve’s house was landlocked, but he owned an easement to cross Maggie’s place on a driveway.

The easement was 50 feet wide, but the drive itself was only 12 feet wide. We cannot tell who started the sniping. Maybe it was Steve, who piggishly demanded dominion over all 50 feet of the easement, whether he used it or not, banning Maggie from landscaping even where it did not interfere with the driveway. Maybe Maggie set out to harass Steve by installing fences, placing ornamental boulders and planting trees to crowd the driveway.

Clearly, however, things devolved to the point that both Steve and Maggie felt it was worth it to pay lawyers to slug it out in court. Not that we think that’s all bad: lawyers have to eat, too. But the law was pretty settled, and it seems that the lawyers should have dragged their respective clients by the ear into a conference room, where the facts of life (and litigation) could be explained.

Still, there’s a worthwhile principle here for the many homeowners who complain to us every year about various utilities coming through their yards, trimming or removing trees, tearing up bushes and laying waste to landscaping. The utilities invariably wave their easements at the homeowners and say, “read it and weep.” The homeowners angrily ask, “Can they do that?”

Then, we have to explain that the homeowner holds what is called a “servient estate,” which is as subordinate and groveling to the easement holder, the “dominant estate,” as the names imply. The utilities and their maraudering contractors can do what is reasonable to permit they to get the benefit of the easement for which they bargained.

As well, there’s a second worthwhile principle in today’s case. If you get into a kerfluffle as a property owner or an easement holder, try to work it out. The old legal aphorism is true: a bad settlement is better than a good lawsuit.

Campbell v. Sullivan, Case No. FSTCV166028793S (Superior Ct. of Connecticut, Dec. 11, 2017) 2017 Conn. Super. LEXIS 5104: Maggie Sullivan is the homeowner at 1 Lennon Lane in Wilton. Steve Campbell owns the abutting property at 2 Lennon Lane. Steve has an easement for a 50-foot wide strip across Maggie’s property to be used as “a right of way for all lawful purposes of ingress and egress, including public utilities.” The easement is the only way Steve has to get from the street to his property.

The fifty-foot-wide right of way described by this easement contains a paved driveway about 12-foot wide known as Lennon Lane.

Steve sued Maggie, claiming that over time, she had placed rocks and erected fencing within the 50-foot right of way, as well as “allowing” trees and other overgrowth to impede ingress and egress through the easement. Maggie argued that that any actions she has taken to encroach into the easement are minimal, reasonable, and do not impede Steve’s access to 2 Lennon Lane. For her part, Maggie complained that Steve had trimmed trees and other plants within the 50-foot right of way, which are actually located on her property, without her consent. Steve responds that he is entitled to the entire 50-foot right of way as granted by the easement, and anything Maggie places within the 50 feet violates his rights.

Held: Steve and Maggie couldn’t work things out for themselves, so the court did it for them, giving each a little and taking from each a little.

To figure out the nature of Steve’s rights, the court started with the deed itself, and then looked to the situation of the property and the surrounding circumstances, all in order to “ascertain the intention of the parties…” The language of the grant is given its ordinary meaning in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent.

The principle is that the “holder of an easement… is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude.” This means that the easement holder can use the easement in any way reasonably necessary to fulfill the intent of the parties. The court held that the “right of way is for ingress and egress. This is broad enough to include the ability to turn around, reverse, and enter and exit safely. It does not include the right to park on the right of way. On the other hand, merely because the defendant owns the fee in the right of way, she does not have the right to obstruct the plaintiffs right for all lawful purposes of ingress and egress.”

The court said it was Steve’s job to maintain the easement, but his maintenance had to be reasonable. “The holder of an easement,” the court said, “is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment. The law is settled that the obligation of the owner of the servient estate, as regards an easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it.

Under these circumstances, the court said, Steve has no right to compel Maggie to maintain it for his benefit. He had to do it, and do it “in a reasonable fashion.”

Steve spun a tale about expecting “prefabricated modules” that would be used as additions to his house. He said he would need at least 30 feet of the 50-foot easement for the trucks. It turned out, however, that Steve had not exactly ordered the prefabs yet, did not know when he would order them, and when he would pay for them. The court was unimpressed, saying, “As of the time of this decision, the plaintiffs plans to remodel his home are not definitive reasons as to why… he would need access to the entire fifty-foot right of way .

The court ordered some of the rocks, fencing and bushes removed. It prohibited Steve from parking in the easement, and limited tree trimming to one area where the branches interfered with ingress.

– Tom Root

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And Now The News …

San Francisco, California, KPIX-TV, January 16, 2020: Federal Judge Threatens to Force PG&E to Hire More Tree Trimmers

A federal judge on Thursday threatened to force Pacific Gas & Electric to hire more tree trimmers to reduce the chances of its electrical grid igniting fires in Northern California and adhere to a requirement imposed after the utility’s natural gas lines blew up a neighborhood a decade ago. U.S. District Judge William Alsup notified PG&E he expects more precautions to be taken, a day after the San Francisco company acknowledged in a court filing that as many as 22,000 trees in its sprawling service territory may still be creating fire hazards. Those dangers are one reason the nation’s largest utility has resorted to deliberately turning off the power in dry, windy and hot conditions — a strategy that at one point left an estimated 2 million people without power in October. PG&E has said the deliberate blackouts could be a recurring event for the next decade while it spends billions of dollars to upgrade its outdated electrical grid. Alsup said he thinks that reliance on blackouts stems in part from PG&E’s tree-trimming shortcomings. The company said it will respond to Alsup by his Feb. 12 deadline. In its disclosure Wednesday to the judge, PG&E asserted it’s unrealistic to expect it to be able to ensure all trees are maintained in a way that ensures all the branches, leaves and other vegetation remain a safe distance from its transmission lines…

Chicago, Illinois, WLS-TV, January 16, 2020: Chicago Water Dept. tests tree-saving technology in Andersonville

More than a dozen trees in Andersonville are saved, thanks to a new pilot program the city of Chicago’s Water Department is implementing. “These mature trees are one of the most valuable things that we have to keep us healthy,” said Lesley Ames, Andersonville tree committee member. Last year, the water department was scheduled to complete routine sewage maintenance and drain removal. To do that, they’d have to cut down trees around the neighborhood, some of them more than 100 years old. “It seemed to us to be an abnormal number of trees,” Tamara Schiller said. Schiller is also a member of the tree committee and has lived in the neighborhood for more than 30 years. “There were ten trees alone on my block, so we started looking into it and said, ‘Isn’t there something else that could be done?'” Schiller said. “The more people found out about it, the more people came out into the street and wanted to find out what was going on,” Ames added. People like Ames and Schiller talked to their neighbors, their alderman and the water department to find an alternative. After months of back and forth, they found one: a CIPP or cured-in-place-pipe…

Charleston, South Carolina, Post & Courier, January 16, 2020: Dominion Energy will cut down nearly 250 palmetto trees on Sullivan’s Island

Palmetto logs famously helped Fort Moultrie absorb a pounding from British cannonballs in 1776, and many palmettos there survived Hurricane Hugo in 1989. But the iconic trees are no match for the coming buzz of Dominion Energy’s chainsaws. The utility plans to cut down nearly 250 palmettos on the island where some residents are still smarting from the extensive tree-trimming Dominion conducted there last year. “They’ve already butchered things here and in Mount Pleasant and West Ashley and James Island,” said William Fuller, who has lived on the island since before Hugo. “Dominion, ‘schmominion’ — I don’t know what they are doing.” Utility tree-trimming is often controversial, but it’s particularly fraught when palmetto trees are involved. That’s because those trees can’t be trimmed shorter, so it means removing them entirely. “It’s very disturbing to a lot of residents,” said Sullivan’s Island Administrator Andy Benke. “I actually have three near my yard that are coming out. “They are just such wonderful trees to have, and I’m sad to see them go,” he said. “I don’t know that there’s anything the town can do…”

Middletown, New York, Times Herald, January 16, 2020: The Balmville Tree

The Balmville Tree, that grew in Balmville, was the oldest Eastern Cottonwood on record in the United States. Scientists in 1953 determined it started growing in 1699. There was a fable which told that the tree sprang to life when George Washington, who made his headquarters in Newburgh from 1783-84, planted his walking stick. But the tree began its life 33 years before Washington. The beloved tree grew at the intersection of three Indian trails. It grew quickly due to the plentiful supply of water, achieving a height of more than 85-feet and a circumference of 25-feet. In the latter half of the 20th-century, the roadways around the tree were redirected to avoid having it damaged. Concrete and stone were placed at its base which later caused the tree to weaken. In 1976 the NYSDEC declared the 348-square-foot site a “public historic park.” The DEC maintained the tree but the trunk soon turned hollow and the trunk was split after being hit by Hurricane Floyd causing the crown to be trimmed down. Preservation efforts were made to save the tree but in 2015 the tree was cut down due to safety concerns. A 15-foot tall stump remains and it is still a protected area…

Huffington Post, January 16, 2020: In Rare Good News, Australia Says Endangered ‘Dinosaur Trees’ Saved From Devastating Fires

Australian officials said Thursday that a stand of trees with ancestors that date back 200 million years was saved from a series of devastating bushfires, a glimmer of good news as the country begins recovering from the ongoing disaster. New South Wales Environment Minister Matt Kean said a team of firefighters was deployed to a remote part of the Blue Mountains, about 120 miles northwest of Sydney, as a massive bushfire approached. Fire officials used planes to water-bomb the area and lowered firefighters into a remote gorge to set up an irrigation system to wet the ground and save the trees, called Wollemi pines. “Wollemi National Park is the only place in the world where these trees are found in the wild and, with less than 200 left, we knew we needed to do everything we could to save them,” Kean said in a statement Thursday. “The pines, which prior to 1994 were thought to be extinct and whose location is kept secret to prevent contamination, benefited from an unprecedented environmental protection mission.” The area hosts the only known natural cluster of Wollemi pines, which are colloquially known as “dinosaur trees” because fossil records show they date back as far as 200 million years. The species was thought long extinct until they were discovered by a park ranger about 26 years ago…

Dayton, Ohio, Daily News, January 15, 2020: Free tree seedlings to help heal tornado-damaged areas

Five Rivers MetroParks is launching a reforestation to help replace thousands of trees ripped from their roots by Memorial Day tornadoes and heal the community. Damage to trees was immense and remains an inescapable loss, but replacing them will help heal the community, said Becky Benná, Five Rivers MetroParks’ executive director.“An untold number of trees, shrubs and other plants critical to our region’s wildlife and natural heritage were lost during the storms,” she said. “It’s important we replant in the areas where so many were lost to tornado damage.” The project, called Healing Nature, will provide communities and individuals with trees native to Ohio. A limited number of free seedlings will become available to the public in April…

Fall River, Massachusetts, Herald News, January 15, 2020: Tiverton has an unsolved mystery: Who cut down more than two dozen trees to improve the view?

The only thing clear in this mystery is there’s an unobstructed view of the water now that someone lopped off all but a few feet of more than two dozen trees on a waterfront lot on Main Road owned by the town. Who did it, and why, is under investigation by the police department, Capt. Michael Miguel said of the property across from 1644 Main Road, just south of St. Christopher’s Church and across from Jennifer Lane. Police Chief Patrick Jones said police have conducted “an exhaustive investigation,” and are asking that anyone with information contact them. Town Councilman John Edwards V suggested Monday night that the Town Council offer a reward for information, but that may be discussed at another meeting. “It’s not every day a bunch of trees get lopped off and nobody knows what happened,” said Council President Patricia Hilton. “They lopped all the trees off at the height of the chain-link fence. This happened on Main Road. Somebody saw something.” It happened Jan. 2, it is believed, because someone went to town hall Jan. 3 and told Town Clerk Nancy Mello about it…

Ahmedabad, India, The Times of India, January 16, 2020: Ahmedabad: Man beaten for objecting to tree felling

A 30-year-old man from Sarkhej on Tuesday filed a complaint with police alleging that his neighbour and two of his family members assaulted him as the complainant objected to them cutting trees in the housing society. In his FIR with the Sarkhej police, Faruq Mansuri, 30, a taxi driver and a resident of Bilal Park Society in Sarkhej said he had seen his neighbour Altaf Mansuri cutting trees in the society. “I told him not to cut the threes as they are needed, Altaf got angry at me and began abusing me. I responded and an argument ensued over the issue,” said Faruq in the complaint. To avoid a fight with Altaf, Faruq did argue more and left the place. Later, he went to drive his taxi. When Faruq returned to his home at around 7pm on Tuesday, Altaf, his wife and their son rushed to their home and began arguing about why he had stopped them from cutting the trees. As Faruq tried to tell them about the values of trees, Altaf and his family members began abusing him again. When Faruq’s wife intervened, Altaf’s wife hit her and as Faruq tried to rescue his wife, he was assaulted by Altaf and his son…

Phys.org, January 14, 2020: RNA provides clues to explain longevity of ginkgo trees

A team of researchers affiliated with several institutions in China and one in the U.S. has found that ginkgo biloba trees do not experience senescence. In their paper published in the Proceedings of the National Academy of Sciences, the group describes their RNA analysis of Ginkgo biloba cambium and what they learned from it. Prior research has shown that ginkgo biloba trees can live for a long as 1000 years. To learn more about their longevity, the team working in China collected tissue samples from nine ginkgoes aged approximately 600, 200 and 20 years old. Prior efforts at studying tree aging were focused on the leaves. In this new effort, the researchers were more interested in the vascular cambium—the thin layer of tissue that produces outer bark and inner wood. RNA analysis showed no sign of senescence. They did find that the older trees produced less auxin, a common plant hormone, and more abscisic acid, a hormone produced in response to stress. The older trees also had thinner annual rings. But there was little difference in efficiency of photosynthesis and seed germination rates in trees of different age, and the activity of the genes in all of the tree ages was similar. There were also no differences in disease resistance. The researchers were unable to find any sign of programmed death and were also unable to explain the lack of senescence…

Washington, D.C., WTOP Radio, January 14, 2020: Warm winter triggers early cherry tree bloom on National Mall, but spares showstoppers

The recent warm winter weather, including back-to-back 70-degree days last weekend, has given cherry trees on the National Mall the reason to flower — two months before the start of the annual cherry blossom festival. But, don’t worry; they’re not those cherry trees. Predicting peak bloom dates is a yearly tradition for the National Park Service, local hospitality providers, tourists and locals trying to time their visit to the Tidal Basin. But the annual bloom watch focuses on Yoshino cherry trees. The trees flowering now are Higan cherry trees. “They’re autumnal bloomers,” said Brian Hall, National Park Service spokesman for the National Mall and Memorial Parks. “You’re going to see lots of branches blooming, but not the full tree.” Most of the Higan cherry trees are on the grounds of the Washington Monument, Hall said…

Atlas Obscura, January 14, 2020: How Aboriginal Hunting and ‘Cool Burns’ Prevent Australian Wildfires

There is a scar across Australia’s Western Desert. For millennia—no one is sure how many, though evidence of Aboriginal people’s presence in Australia stretches back 50,000 years—the Martu people used fire to hunt in the scraggly bush. In a practice called cultural burning, they set low blazes patient enough for small animals such as bettongs and wallabies to flee their burrows before the fire reached them. Years of cultural burning cleared underbrush, creating a patchy habitat preferred by the small animals Martu people most liked to hunt, while simultaneously preventing massive lightning fires from consuming the land. For the Martu, these fires were so vital that they were a means of maintaining life itself. “They would say, ‘If we weren’t out here burning, things won’t exist,’” says Rebecca Bliege Bird, a Pennsylvania State anthropologist who has worked with the Martu for decades. But when, in the 1960s, the Australian government pushed Martu people into towns, in order to test missiles on their land, the life-giving burns stopped. Lightning fires—large, hot, unscrupulous—took their place. In the 20 years it took the Martu to regain access to their homeland, the entire ecosystem was knocked off balance…

Philip Poynter Construction Safety, January 14, 2020: Tree felling operations lacked defined comms

A UK company has been fined following an incident when a worker suffered serious injuries after being struck by a tree in February 2016. Fort William Sheriff Court heard that four employees were felling trees on land adjacent to the A82 north of Fort William, contracted by the Forestry Commission. Whilst dealing with an 8m tree the injured workman made preparatory cuts and checked with the rest of the team to ensure they were in a safe place. He thought his colleagues understood that he was about to fell the tree. After the initial cut was made he made his felling cut at the same time as a co-worker dragged a large branch from the brash pile into the path of the felling tree. The tree stuck him on the left side of his helmet and left shoulder. HSE investigators found that the normal exclusion zone (no one positioned within two tree lengths of a tree being felled) was not adhered to on this occasion. A clearly defined system of communication would have prevented the misunderstanding…

Anaheim, California, Orange County Register, January 13, 2020: What is killing the native oaks of Southern California?

The Goldspotted Oak Borer, or GSOB, is an invasive beetle that is killing native oaks in several areas of Southern California. Susceptible oaks include coast live oak, canyon live oak, and California black oak. In many cases, GSOB has damaged or killed mature oaks valued for their beauty, wildlife habitat, and shade. Areas with large numbers of native oaks are particularly at risk. Unfortunately, oaks that are injured over several years from multiple generations of the GSOB often die. Although the Goldspotted Oak Borer was first identified in San Diego County in 2004, it wasn’t until 2008 that oak deaths were linked directly to them. By 2010, they’d killed more than 20,000 oak trees growing in forests, parks, and urban areas in San Diego County. Later infestations occurred in Idlyllwild in 2012, Orange County in 2014, and Los Angeles County in 2015. The three most recent outbreaks have all occurred in San Bernardino County…

Chico, California, KHSL-TV, January 13, 2020: Hazardous tree removal deadline, what you need to know

The Paradise Town Council and the Butte County Board of Supervisors passed ordinances requiring the removal of hazard trees damaged by the Camp Fire from private property that may fall into public roadways. The deadline to sign up for hazardous tree removal in the Camp Fire burn zone is Friday, Jan. 17. Ginessa Stark from CAL OES along with Jenna Johnson, one of the ‘Zone Captains” in Paradise joined Action News Now at noon to share what you need to know. If you choose to go with the state program, you will sign the right of entry form (ROE). Then officials will come in and take all the trees that are hazardous to the public right away, with no out of pocket cost to the owners, Stark said. If you want to take the trees down yourself, you can hire a private contractor to do so. If you have already had the trees taken down, CAL OES said you still need to sign the inspection access form. That allows the officials to go, make sure that you’re complying with the ordinance, and get you signed off. Afterward, you can get your rebuild permits…

Colorado Springs, Colorado, KRDO-TV, Colorado Springs forestry crews finish bulk of 2019 damaged tree cleanup on schedule

With nearly 2,000 people asking for 3,000 damaged trees to be removed from their property after last year’s late spring snowstorm, it seemed an overwhelming job for a 7-member crew in Colorado Springs. But on Monday, crew supervisor Dennis Will announced that the crew successfully met its goal of responding to those service requests by the end of 2019 — after seven months of steady work. “We cleared it two weeks ago,” he said. “We just wish we had the manpower to respond sooner. There’s probably 500 requests from people who got tired of waiting for a response. And our response doesn’t count some of the 50,000 park trees that have damage.” The forestry crew responded to reports of damaged trees along sidewalks or under city responsibility that threatened private property owners. “What really helped us is we got three new employees and $1 million in new equipment approved before the storm,” Will said. “The storm response cost around $233,000, with several departments contributing to the effort…”

New York City, Brooklyn Paper, January 13, 2020: State judge orders city to study Fort Greene Park revamp environmental harms

The city’s controversial scheme to axe a small forest worth of trees in Fort Greene Park hit a snag after a state judge ordered the Parks Department to conduct an environmental review that could delay the project for months. State Supreme Court Judge Julio Rodriguez III sided with the environmental watchdogs at Friends of Fort Greene Park in ruling that the Parks Department needed to study the $10.5 million project’s potential environmental impacts, saying the plan to fell upwards of 83 trees constitutes a substantial change to the green space, according an attorney for the plaintiffs. “This decision should awaken the department to reality,” said legal advisor Michael Gruen in a statement. “Environmental regulation is not enacted to be evaded as if it were merely an annoyance. It is designed to ensure serious and honest evaluation of environmental risks from the inception of governmental consideration of any project…

Phys.org, January 13, 2020: Climate change unlikely to drive sugar maples north

Climate is an important factor in determining a plant species’ growing zone. Some studies suggest that by the turn of the next century, climate change will have caused some species to spread several dozen kilometres north of their current distribution areas. Such changes could have major consequences on how land-based ecosystems function. But a northern migration isn’t in the cards for sugar maples, according to Alexis Carteron, who recently published his doctoral research findings in the Journal of Ecology. His work is supervised by Professor Etienne Laliberté of Université de Montréal and co-supervised by Mark Vellend of Université de Sherbrooke. Carteron and his colleagues at Université de Montréal’s Department of Biological Sciences and the Institut de recherche en biologie végétale reached this conclusion after conducting experiments in greenhouses at the Jardin botanique de Montréal using soil samples harvested from Mont-Mégantic National Park…

Genesee, New York, The Daily News, Jan. 13, 2020: Local forests losing their stories

The Erie Canal towpath was once the interstate for itinerant workers — hoboes, if you will — who traveled from town to town in search of their next farming or handyman gig. While doing so, they frequently stopped over on my family’s farm, which butts up to the canal. It was an attractive spot to set up camp because of the fresh water they could drink from a brook that runs through our woods, the same brook from which they ignited gas for cooking (there is a good reason it’s called “Gas”port). While there, they often killed time by carving their names and other things in the bark of the beech trees that are common in our woods. The smooth gray bark, so easy to cut with a pocketknife, has always been quite inviting to amateur artisans, not to mention young lovers who wanted their names forever inscribed in Mother Nature for all the world to see. The hoboes, the lovers, and anyone else interested in making a statement left their calling cards on the beeches — old-fashioned graffiti that remains to this day. Those trees tell stories…

Indianapolis, Indiana, Star, January 12, 2020: Indiana’s yellowwood trees ‘unlike any other on the planet’

Three years ago, on behalf of The Nature Conservancy I supported the designation of a portion of Yellowwood State Forest as a High Conservation Value Forest (HCVF). My reason for doing so was clear: I wanted to save the yellowwood tree. Happily, the Indiana Department of Natural Resources has done just that. The new HCVF will ensure rare yellowwood trees remain part of the Indiana landscape. The 591-acre HCVF will be called the Yellowwood Conservation Area at Yellowwood State Forest. Beautiful and rare, yellowwood trees are a state-endangered species in Indiana. They occur naturally in Indiana only in Yellowwood State Forest and Brown County State Park, which is the northern end of their natural range. The tree’s name comes from the yellow coloration of its heartwood, which has been used to make furniture in the past. Because Indiana’s yellowwood trees are located so distantly from any others in the U.S., I worked with the Hardwood Tree Regeneration and Improvement Center at Purdue University to learn if they are genetically distinct. We solved this mystery by studying the genetics of yellowwood trees, both inside and outside Indiana. Our analysis showed the ancestors of these trees are ancient, and they have been isolated from all other yellowwoods in the country for thousands of years. In short, Indiana has a yellowwood tree unlike any other on the planet…

Wellesley, Massachusetts, The Swellesley Report, January 11, 2020: Down goes the Hunnewell school white oak tree

With its fate sealed at a Wellesley School Committee meeting earlier in the week, the estimated 200-plus-year-old white oak at Hunnewell Elementary School property was chopped down by the Department of Public Works on Saturday. The crew started the job at 7am and expected to be working past noon. When I arrived a DPW worker in a cherry picker was carving up limbs on the 30-foot-high-ish tree. “We’ve already taken care of the hard part,” said one employee, keeping me behind the cones and tape. A report commissioned by the Wellesley Natural Resources Commission recently deemed the oak a “high risk tree,” unsafe for its location. The tree’s future had already been in question as a result of plans to re-do the Hunnewell Elementary School itself, but now the tree’s part in that equation is no longer a factor…

Fresno, California, KFSN-TV, January 9, 2020: Donors across world raise millions to protect sequoia tree grove in Valley

Housing won’t be built on California’s largest unprotected sequoia grove. A conservation group in San Francisco has purchased Alder Creek Grove. The massive parcel is located above Camp Nelson within the Giant Sequoia National Monument. It will someday provide another scenic area for families to go hiking. The beauty of the towering sequoias and pine trees at Alder Creek Grove is enough to take your breath away. Equally breathtaking is the incredible amount of money ‘Save The Redwoods League’ was able to raise to buy the scenic 530 acres so it could protect the majestic trees. League president Sam Hodder says over 8,500 donors raised $15.6 million to buy the land from the Rouch family of Springville. “People love the redwood forest and when they have an opportunity to protect a place as spectacular as Alder Creek, they step up and this was truly amazing,” says Hodder…

World Economic Forum, January 10, 2020: Chocolate you can trace back to the tree – a new vision of fairer, greener trade

How many of you like the taste of fine dark chocolate? Yes, I know. The answer is quite obvious. (Who does not love chocolate?) But how many of you know the farmers behind your chocolate? This asymmetry of information between the first mile (producers) and last mile (consumers) leads us to a shocking reality: • According to the Food and Agricultural Organization (FAO), an estimated 500 million small farmers – men and women – produce most of the developing world’s food. Yet their families suffer from even more hunger, have higher rates of poverty and enjoy less access to basic social services than poor people in urban areas. • Despite being the ones who spend the most hours per day working, producers earn the least profit of all players in the value chain. • New generations of producers do not see a decent living option in agriculture. In the words of Francisco Numan Tene, a cocoa producer from Zamora-Chinchipe province in Ecuador who has been engaged in agriculture for more than 40 years: “Agriculture is a way to bequeath poverty to our children…

Rochester, Minnesota, Post-Bulletin, January 9, 2020: Calling the Lorax: City asks for tree preservation ordinance input

Rochester’s Committee on Urban Design and Environment is looking for public input to draft a city tree preservation ordinance. Trees in an urban environment provide multiple benefits — economically, environmentally, in public health and mental health. According to the U.S. Department of Agriculture’s Sustainable Urban Forest guide, cities in forested states would benefit from a 40% to 60% tree canopy. Currently, Rochester has a tree canopy coverage of about 27%. That might also be on the high side once the final toll of the emerald ash borer beetle is tallied. CUDE’s ordinance draft calls for a 40% minimum canopy coverage for new and existing developments but won’t affect individual homeowners. The ordinance isn’t just a requirement to plant more trees. In order to include trees in development plans, city planners and developers will need to consider their development plans and how much impervious pavement is laid, and consider long-term land-use plans. The CUDE survey cites a slightly outdated Society of American Forests guideline recommending a minimum 40% canopy coverage. The updated guidelines do suggest that 40% to 60% canopy is achievable in forested areas, but the report stresses that how it’s achieved is the most important factor, not just the size or percentage of canopy…

Kennebunk, Maine, Post, January 9, 2020: Tree trimmers to start work in Kennebunk Light & Power District

As January continues, residents within Kennebunk Light & Power District territory should see Asplundh Tree Services in their neighborhoods, trimming trees. That is the word from KLPD General Manager Todd Shea, who said last week last week that customers should expect to see tree trimmers at work along several streets and roadways. “KLPD performs maintenance trimming to increase the safety of our line workers and improve system reliability for our customers,” he said. Representatives of the tree service would be notifying residents in person about the work, he said; if no on is around, they’ ‘ll hang a tag on the door. Those with questions should call the number on the door tag. The areas to be trimmed include…

Manchester, New Hampshire, Union Leader, January 8, 2020: Candia couple fights back after town declares crabapple tree ‘public nuisance’

A crabapple tree declared a public nuisance is at the root of a court battle between the town and a couple refusing to trim the 10-foot tree’s branches. Jennifer Heiberg has filed a complaint in Rockingham County Superior Court asking a judge to overturn the selectmen’s recent decision. The town has threatened to chop down the tree if Heiberg and her husband, Dustin, don’t remove some of the small branches sticking out into the road in front of their home at 14 Jane Drive. Selectman Brien Brock sent a letter to Heiberg dated Dec. 26 informing her and her husband they have 30 days to trim the branches in the town’s right-of-way. If they’re not cut back within that time, the town will remove the tree, the letter said. Heiberg argues that the tree isn’t a problem and that town officials can’t force them to do anything because the town never got a deed for the road and therefore it’s private. Heiberg said there are other, larger trees in town that pose a much greater safety risk and they’ve never been declared a nuisance. The dispute over the fruit tree began about two years ago, said Heiberg, who insists that it’s all political…

Chicago, Illinois, WBBM-TV, January 8, 2020: Friends Of The Chicago River Says Tree Removal At Legion Park Will Benefit Ecosystem

We first showed you the images on Tuesday – hundreds of trees chopped down at a park alongside the Chicago River system. As CBS 2’s Jim Williams reported Wednesday, the leveled trees in Legion Park shocked neighbors who did not see it coming. But Friends of the Chicago River said this is just the first step in a project that will actually improve the neighborhood. Hundreds of trees were chopped down and carried away along the North Shore Channel of the Chicago River in Legion Park, leaving it looking like the aftermath of a tornado. “It’s mindless, thoughtless, indiscriminate, heartbreaking destruction,” neighbor Janette Dingee said Tuesday. Painful it may be to see the trees go. But it is also necessary, according to Margaret Frisbie, executive director the nonprofit advocate group Friends of the Chicago River. “Because it’s a step-by-step process, and to start, you actually have to take down the trees that are there.” So that the banks of the river at Legion Park can be shored up – stopping erosion, and creating a healthier ecosystem, Frisbie says…

Cincinnati, Ohio, Enquirer, January 8, 2020: $1,500 worth of trees missing from Warren County Park District found

Nine trees ready to be planted at the Landen-Deerfield Park have disappeared, according to park officials. The Warren County Park District Nature Programs posted the news on Facebook on Wednesday, noting that nine blue spruce and white pine trees had been staged at the back of the park on Christmas Eve to be planted after Christmas. When staff members showed up on Dec. 26, the trees were gone. “These were very heavy trees with large root balls, and would have required a truck and either a bobcat or several strong people to move them,” the release states. A police report has been filed. Larry Easterly, Warren County Park director, said the trees – worth $1,500 total – were purchased with taxpayer dollars and donations from the Friends of Warren County Park District, a non-profit charitable organization whose mission is to promote, support, improve and protect the parks within the Warren County Park District. It is not clear if the trees were stolen or taken by mistake as a part of the Christmas tree recycling program, Easterly said. The park is also a drop-off point for cut trees after the holidays…

Annapolis, Maryland, Capital Gazette, January 8, 2020: Historian wants to clone pecan trees in historic Bowie grove before development. Developer says nut so fast.

One of Bowie’s first city commissioners didn’t just plant the seeds of government in the Washington suburb. He was a pecan fanatic. Thomas P. Littlepage spent 15 years hunting across nine states for the best varieties of tree nuts in the early 20th century, then brought them back to his Bowie orchard, according to a pamphlet published in 1917 by his farm, Maryland Nut Nurseries. Today, a portion of that land has been proposed for an 80-house development. Caruso Homes plans retain 61 out of 85 specimen trees on site, according to plans submitted to Prince George’ County officials. Farmer Eliza Greenman, a member of the Northern Nut Growers Association who studies the history nuts and fruits, hopes to inspect the land before work begins, ideally in the fall when the walnuts, hazelnuts, pecans, oaks, hicans — a pecan hybrid — and sweet gum balls. Greenman testified about the horticultural importance of the land at a Bowie City Council meeting Monday evening. She wants to analyze the remaining orchard and take cuttings from the trees so she can graft them to seedlings elsewhere, preserving the plants…

 

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Case of the Day – Thursday, January 16, 2020

THE SINKHOLE WAS LINED WITH GOLD AFTER ALL

When we last left our intrepid Air Force Academy cadets, they had just been rescued in the nick of time from the runaway train that was the U.S. District Court for the District of Colorado. At the same time, the dastardly Jim Nelson saw the Tenth Circuit Court of Appeals snatch the cadets’ $7.7 million (it was probably the mortgage money) from his grubby mitts.

OK, that’s both hyperbolic and fictional. The 4,400 USAFA cadets had not been sued individually, but rather the U.S. government was the defendant. What’s more, Jim was not dastardly. His hands may have been grubby, but that was because he fell into a massive sinkhole on what may or may not have been a bike path on the expansive Academy property. The District Court found the Academy management had breached a duty to Jim, who it found was USAFA’s invitee (despite the bike path having signs warning against trespassing). But the Tenth Circuit Court of Appeals rode (or flew) to the Academy’s rescue, applying the Colorado Recreation User Act and holding that USAFA was immune from liability because it had opened up its bike path without charge for the public’s use, whether it intended to (or even knew it had) or not.

But the Tenth Circuit decision had a little “gotcha” right at the end. After finding the RUA applied, the appellate court remanded the case to the District Court to determine if an exception to the RUA’s liability limitations applied — whether the Air Force Academy’s actions constituted a “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm…” Such a failure is an exception to the RUA’s broad immunity.

Last spring, the case was again in front of the District Court, who seemed just a little too enamored of the bike rider and too dismissive of USAFA management for our tastes. After all, a sinkhole big enough to swallow Jim? We’ve seen the Academy grounds, even the unimproved parts, and they are pretty wide open, sparse of trees and underbrush. How did Jim, who admitted he rode the trail regularly, miss seeing the sinkhole well before he rode into it?

Alas, we’ll never know. What we do know is that the District Court concluded that the Academy folks knew people used the trail although they were not supposed to. A USAFA employee who maintained the 40-square mile grounds saw and photographed the sinkhole a few weeks before the accident, but because he himself did not know that people were using the path despite the signs, he saw no reason to fill the sinkhole.

But thanks to the tort doctrine of respondeat superior, which is a Latin way of saying the company is to blame when its employees are negligent in the course of their employment, the District Court strung together management’s knowledge that people ignored the signs and used the path with the employee’s knowledge of the sinkhole, and found that USAFA willfully failed to guard or warn against a known dangerous condition…”

Voilà! Just like that, the Air Force Academy was back on the hot seat, and Jim rode off on his bicycle with 160 lbs. in his rucksack, which is about what $7.3 million in 100-dollar bills weigh.

Nelson v. United States, 256 F. Supp. 3d 1136 (D.Colo. 2017): James Nelson was seriously injured in a bicycle accident on September 3, 2008, when he encountered a sinkhole/washout on a bike path on United States Air Force Academy land. He sued under the Federal Tort Claims Act for damages. The Tenth Circuit previously determined that the Academy was immune from liability within the limits of Colorado’s Recreational User Act.

USAFA knew, prior to Jim’s accident that the path existed on its property, and that members of the public used the path where Jim was injured. Upkeep of the property was the Academy’s responsibility. The Academy had a Trails Management Plan that provided guidance about the proper maintenance to be performed on official trails, but the asphalt path on which the biking accident occurred was not on the Academy’s Real Property Record, so maintenance of the path did not fall within the scope of a contract the USAFA had with a maintenance company.

The sinkhole Jim encountered was the result of off-site water flowing onto Academy property that overwhelmed the culvert running under the path, causing a washout. Dr. Brian Mihlbachler, an Academy contractor responsible for grounds maintenance, testified that the sinkhole was large and readily visible during the day. However, a witness who encountered the sinkhole while jogging the morning after Jim’s accident thought the sinkhole was water until he was significantly closer to it.

Dr. Mihlbachler said the condition of the path with the sinkhole would be a safety hazard for users of the path if it were an official Academy trail. Thus, if it were an official trail, he would have reported the condition of the path to maintenance to get it repaired. He was the only Academy employee actually aware of the sinkhole before the accident, and in fact had photographed the sinkhole two weeks before Jim was injured. However, he did not report the sinkhole or to anyone else before the accident, because the trail management plan did not reference any asphalt surface trails. There was no rule or regulation in the trail management plan or otherwise that would have required fixing a hole on an unofficial path such as the asphalt path. Dr. Mihlbachler also said the Academy’s trail management plan contained guidelines about what constitutes a safe trail for the users, and that “criteria would have applied in this situation [to the asphalt path] had I known that it was designed – . . . as a trail, yes.”

The Court held that Dr. Mihlbachler chose not to do anything about the sinkhole when he encountered it (other than to take its picture). His decision was based on his perception that it not the Academy’s responsibility because he did not think people were using the path for recreational purposes. He “didn’t feel the Air Force Academy considered it to be a trail of any sort” and that the hole was thus unlikely to cause anyone harm.

The Court found the Academy unreasonably failed to exercise reasonable care to protect against a danger – the sinkhole on the path caused by erosion – of which it actually knew. Under the respondeat superior doctrine, “an employer or principal is liable for acts that its employee or agent commits on behalf of the employer or principal within the scope of the employment or agency… based on the theory that the employee acts on behalf of the employer when the employee is acting within the scope of his authority.” The evidence shows that Dr. Mihlbachler knew of the significant erosion problems in the immediate area of the path and its condition prior to Jim’s accident.

The RUA places the risk of injury for recreational activity upon the recreational user rather than the landowner subject to certain specifically enumerated exceptions to its limitations on landowner liability. One of these exceptions to liability is a landowner’s “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.”

The RUA does not define the terms “willful” or “malicious,” but the court concluded the phrase had its plain and ordinary meaning of “voluntarily, purposefully and with a conscious disregard for the consequences of the act”. Willfulness does not require that a government employee be consciously aware that his acts or omissions create danger or risk to the safety of the public. It was enough that the Academy knew that the asphalt path existed on its property and knew that persons used the path for recreational purposes, including bicycling, by invitation or with permission.

What’s more, the Court said, the Academy knew that people were using the path for recreational purposes, yet chose not to communicate that to its agent Dr. Mihlbachler even though he played a safety role at the Academy in connection with his role as Trail Manager. Thus, the court concluded, Dr. Mihlbachler acted “voluntarily, intentionally, and with a conscious disregard for the consequences of the act” when he chose not to make the sinkhole a priority or to do anything to warn about it or guard against its danger.

Despite the immunity normally afforded by the RUA, the Air Force Academy was liable to Jim.

– Tom Root

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Case of the Day – Wednesday, January 15, 2020

SOMETIMES, DOING NOTHING IS AN OPTION

We’ve talked before about state recreational users acts, which are statutes in just about every state that encourage landowners to permit recreational activity on their undeveloped land. The notion goes that by shielding property owners from liability when Connie Klutz, out for an afternoon of bird-watching, blunders into a pool of quicksand, they will magnanimously open their lands for free to the litter, noise and hubbub of the general public.

That’s the theory.

But sometimes, an RUA can ride to the rescue of a landowner who never intended that people traipse across his or her land. Why would that be? Imagine you live in Colorado. And why not? It’s a nice place, Rocky Mountain highs, nowadays from marijuana as much as from taking in the scenic splendor. One day, some knucklehead ignores the “trespassers will” signs posted around your property, hikes through your fields, and falls in a gopher hole. It could happen, you know. His lawyer shouts “negligence.” And you respond, “I let him take the path that was just as fair, and having perhaps the better claim… Therefore, I am protected by the RUA.”

Your alternative to RUA protection is hardly as pretty. If you invited him onto your premises, and he was not a recreational user, you owed him “the highest duty of care.” If he was a mere licensee, a person “who enters or remains on the land of another for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s permission or consent”, you still are liable if there is an “unreasonable failure” on your part to exercise reasonable care with respect to dangers you created or failure to warn of dangers you did not create but which “are not ordinarily present on property of the type involved and of which the landowner actually knew.” Even if your clumsy hiker is simply a “trespasser,” a person who “enters or remains on the land of another without the landowner’s consent,” he may recover for damages you willfully or deliberately caused.

How much easier just to make anyone who gets hurt on your land a recreational user. Under Colorado’s RUA, “the owner of land who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes” will not be responsible for “any injury to person or property… caused by an act or omission” of the landowner.

The Colorado landowner under the gun in today’s case is the United States Air Force Academy. USAFA has a sprawling complex of academic buildings, airfields, athletic complexes, housing for support personnel, and a lot of undeveloped land, all nestled up against the Front Range. Within the 40 square miles or so of Academy land was a bike trail, ominously marked at the entrance with a sign prohibiting entrance. Another sign, put up by persons unknown but not removed by Air Force Academy folks, said “Bicycle Path – No Motorized Vehicles.”

Jim Nelson, a guy who regularly ignored the “Entry Illegal” signs, managed to ride into a “large sinkhole” – what, Jim, you didn’t see it? – and racked himself up rather badly. At trial, he stuck it to USAFA to the tune of millions of dollars. The Tenth Circuit, however, had other ideas. Whether it invited Jim or not (and the Academy was sure it had not), he was a recreational user, and the Academy seemed to be as free as a falcon.

Who said “doing nothing is not an option?” Certainly not the Tenth Circuit.

Nelson v. United States, 827 F.3d 927 (10th Cir. 2016). Jim Nelson was a regular user of a bicycle path located on property that is part of the United States Air Force Academy. While riding in the fall of 2008, he struck a large sinkhole and severely injured himself.

Two signs stood near the path’s entrance. The first sign was erected by the Academy and informed visitors that entry was illegal without permission. The second sign, located closer to the path’s entrance and easier for bikers to read, stated, “Bicycle Path, No Motorized Vehicles.” The Academy did not erect the “Bicycle Path” sign, nor did anyone there know who did or when. But the sign was displayed for at least as long as Mr. Nelson had been using the path.

A year before the accident, the Colorado Department of Transportation offered to remove the sign, which was near the right-of-way on Interstate 25 as the highway crosses Academy property. The Academy, however, never responded to this email and the sign remained in place until Mr. Nelson’s accident the following year. After the accident, the Academy closed the path.

Mr. Nelson sued the United States  for his injuries. The district court found the Academy knew the path was used for recreational purposes such as jogging and biking, although USAFA considered bike path users trespassers on Academy land. Nonetheless, the Academy never confronted recreational users or prevented them from using the path. The district court also found that the Academy did not intend for the path to be a recreational trail open to the public.

Based on these findings, the district court held the Academy could not take advantage of the limitations on liability under the Recreational Use Act because the Academy had not intended to open the path for public recreational use. And since the Academy knew bikers were using the path and was aware of the sinkhole, it breached its duty of care by failing to repair the sinkhole or warn users of the risk.

Held: USAFA is entitled to rely on the Recreational Use Act. The U.S. Court of Appeals for the Tenth Circuit held that the Academy was shielded from Jim Nelson’s tort claims because it knew the bike path was being used by the public and took no steps to block such usage. Thus, for purposes of the Act, the Academy “indirectly permitted” Jim’s use for recreational purposes. The Court of Appeals said the RUA extends protection to any person the landowner “directly or indirectly invites or permits” to use property for recreational purposes. Under Colorado law, “permission” is defined as “conduct that justified others in believing that the possessor of property is willing to have them enter if they want to do so.”

No one thought USAFA directly permitted use of the path – in fact, the Academy considered users of the bike path to be trespassers. But the Air Force Academy knew people used the path all the time, knew someone had placed an unauthorized sign at the start of the party, and never removed the sign or otherwise prevented use of the path. This conduct, the Court said, “can only be seen as indirectly permitting bikers such as Mr. Nelson to use the path for recreational purposes.

The Court said there was no “subjective intent requirement” required under the RUA. In other words, you don’t have to intend to offer your land for free recreational use. It’s enough that you don’t stop people.

Here, the Court said, the Academy’s purposeful actions implicitly allowed or acquiesced in Mr. Nelson’s use of the path. USAFA’s knowledge that the path was used by the general public, combined with its knowledge of the sign and its refusal to remove it, was enough to demonstrate permission under the Act. The Court ruled, “Landowners are entitled to protection by knowingly permitting recreational use of their property. Under a plain reading of the statute, the Academy “indirectly permitted” Mr. Nelson’s use of the path through its conduct.”

Sounds like a sweet deal for the Zoomies, right? Just wait until tomorrow…

– Tom Root

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Case of the Day – Tuesday, January 14, 2020

OUT IN THE COUNTRY

A great artifact of a bygone era – besides King Tut’s treasure, of course – is the now increasingly quaint notion that the degree of care a landowner must exercise to be sure his or her trees do not pose a hazard to passersby depends on whether the land is “urban and residential” or “rural and undeveloped.”

Back in the day, as my mother used to say, the law assumed that an urban landowner could more easily inspect his or her trees, and with that relative ease of inspection came a greater duty to people using the highway that passed his or her property, a duty to prevent an unreasonable risk of harm from defective or unsound trees on the premises. Trees of any kind, whether foreign or domestic, native or invasive, planted or naturally growing there since time immemorial…

Rural landowners, however, may have hundreds or thousands of trees lining the back roads and byways of the Palmetto State. For those folks, that urban duty to inspect does not apply if the trees – as are often the case – are trees of natural origin growing on rural, undeveloped land.

As we will see in today’s case, what at first blush seems unquestionably rural may really not be so rural. Out in the country… not a simple as it used to be.

Incidentally, many times cases like these settle as soon as the summary judgment motions are decided. Parties can see what facts are to be left for resolution at trial, and many times they don’t want to leave the case to chance (which is another word for “jury”). Here, after CSX lost its summary judgment motion, it settled with the victim’s widow for $800,000.00.

Gaines v. CSX Transportation, Inc., 2019 U.S. Dist. LEXIS 11829; 2019 WL 315980 (U.S. District Ct., S.C., Jan. 24, 2019). During a very windy February afternoon in 2016, Mike Gaines was driving his truck on Gilchrist Road in Darlington County. He encountered a broken tree limb blocking the road, so he parked his truck, walked up to the limb, and started to remove it. While Mike was bending down to pick up the limb, a pine tree fell on him and seriously injured him. The pine tree had been standing on an abandoned railbed right-of-way owned by CSX Transportation. The tree had not been planted there, but instead was naturally occurring and indigenous to the area. Mike Gaines died from his injuries about two hours later.

Mike’s widow Cindy sued CSX in a wrongful death and survival action in state court. She alleged the fallen tree was “damaged or diseased” and that CSX had a duty to maintain its property “to make certain trees on its property safe, and a duty of reasonable care to make certain trees on its property are safe for travelers of streets adjoining its land.”

CSX removed the action to federal court, and subsequently filed a motion for summary judgment.

Held: CSX was denied summary judgment, because questions of fact about the nature of the property – rural or urban – remained to be answered.

Summary judgment is a procedure used where there exist no questions of fact to be determined. Instead, the facts are clear and undisputed, and the only question is how the law should be applied to the facts to reach a judgment.

To prove a negligence claim in South Carolina, a plaintiff must show: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached its duty by a negligent act or omission; (3) the plaintiff suffered injury or damages; and (4) the breach was the actual and proximate cause of the plaintiff’s injury.

South Carolina follows the rule that a landowner in a residential or urban area has a duty to others outside the property to prevent an unreasonable risk of harm from defective or unsound trees on the premises. However, the duty does not extend “to an owner of trees of natural origin growing on rural, undeveloped land.” The sole issue raised in CSX’s motion for summary judgment was whether it owed a duty of care. CSX argued that it was entitled to summary judgment because “South Carolina law does not require an owner of rural land to inspect trees on its property so as to prevent a defective tree from falling onto a public highway causing injury.”

Cindy contended there was a real question of fact whether CSX’s property was residential or urban, or whether it was rural and undeveloped.

Whether the law recognized a particular duty is legal question normally decided by the court, not the jury. “In some circumstances, however,” the Court said here, “the question of whether a duty arises depends on the existence of particular facts.” Here, the question of whether CSX had a duty to prevent an unreasonable risk of harm from defective or unsound trees depends on whether its property was located on rural, undeveloped land.

CSX showed that only about six vehicles an hour passed by the property on Gilchrist Road. The area was “sparsely populated,” CSX said, consisting mostly of farmland and woods. No railroad tracks or trains have been there since the early 1970s. In fact, the only change in the past half century was that Darlington County paved Gilchrist Road a few years ago.

Cindy claimed the CSX property was residential or urban. She showed that multiple homes are located near CSX’s property, a large automobile auction storage lot is located nearby, cultivated farmland means the area was developed; and Gilchrist Road is actually a “frequently traveled roadway.” Plus, Cindy submitted correspondence that occurred in 2013 between her late husband and CSX about the paving of Gilchrist. Mike had written to CSX on behalf of his neighbors, asking its cooperation in acquiring the right-of-way. Mike had said, “Given that most of us have resided on this road for multiple decades, the culmination of this activity has been a long awaited goal. This project offers improvements that will greatly enhance accessibility to our homes, while simultaneously providing better drainage and safer travel.” The letter was signed by Mike and over a dozen other Gilchrist Road residents.

In fact, CSX wrote back, referencing “the impact [the road paving] will have on you and your neighbors.” (Oops. Who knew a no-account PR letter could come back to haunt the railroad like that?)

Finally, Cindy argued CSX’s property cannot be considered undeveloped land, because it consists of a raised railbed onto which various trees later grew, including the one that killed Mike.

“Based on the above evidence,” the Court ruled, “there is a genuine issue of material fact regarding whether Defendant’s property is ‘rural, undeveloped land’ or whether it is ‘in a residential or urban area’.” Whether CSX had a duty to Mike Gaines with respect to defective or unsound trees on its property “depends on facts — rural/undeveloped versus residential/urban — that must be decided by a jury.”

Rather than let a jury of local folks get their hands on the question of whether a big, rich, faceless railroad should write a check to help out the poor widow of a local guy who simply stopped to clear the road for the benefit of his neighbors and the traveling public, CSX wisely settled.

– Tom Root

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Case of the Day – Monday, January 13, 2020

DANGER TREES AND PIXIE DUST

pixie150916Recently, we took up the question of trees on tree lawns, an issue that arose because Jim Busek, a Norwalk, Ohio Reflector columnist, was up in arms over that city’s plans to cut down 62 boulevard trees that were interfering with the sidewalks.

Instead of removing the trees, Jim proposed that the offending roots be chopped out, and the trees then be encouraged not to grow any to replace them. While Jim was busy whispering to trees, we were wondering whether he might be liable if a dead ash tree standing on his tree lawn fell onto a passing motorist. Now, mind you, we don’t know whether Jim even has any trees on his tree lawn, but you know how it is when you hold yourself to the public as a famous columnist. You become a lightning rod. Sorry, Jim… you’re fair game.

In our discussion of Wertz v. Cooper, we delivered the bad news that Jim, as owner of the strip of grass between the public sidewalk and street, may well be liable. As an urban property owner, he has a duty to inspect and remove trees that may reasonably pose a danger to third parties passing on public streets. So Jim’s hanging out there a country mile (or maybe a city mile, because he is an urban landowner, and Wertz tells us they’re different).

But is he hanging out there alone? Although Jim owns the tree lawn, it lies within in the 60-foot wide right-of-way of the street. The Ohio Supreme Court has pointedly said that the “roadway, the space immediately above the roadway, the shoulder, the berm, and the right-of-way are all under the control of the political subdivision … [which] has a duty to keep the areas within its control free from nuisance, i.e., conditions that directly jeopardize the safety of traffic on the highway. Where the [subdivision] fails in its duty, it may be liable for injuries proximately caused by the nuisance.” Manufacturer’s Nat’l Bank of Detroit v. Erie County Road Comm (1992), 63 Ohio St.3d 318, 322-23.

So the City has Jim’s back (or is on the hook, depending on your viewpoint) in case the pixie dust dosen’t work on the tree roots. Of course, the City has to have actual or constructive notice of the defect, just like the landowner in yesterday’s case. However, the City has already noted that 62 trees should be removed, and – if the homeowners balk enough to convince the City otherwise – the City’s previous decision that the trees should go would cut against any denial by the powers-that-be that they were blissfully unaware.

All of which brings us to today’s case. This lawsuit relates to an unfortunate man who was killed when a dead tree fell onto his car one stormy November night. The tree was on private property out in the country, but it had been dead for so long that the landowner may have had liability. We can’t tell, because this case — in the Ohio Court of Claims — was solely against the Department of Transportation. The Court held that ODOT would be liable, notwithstanding the fact that the tree was on private land, if it had breached its duty to inspect the tree.

If "Lance" happens to ride a bike, he might be at risk from the decayed tree, too ...

If Jim happens to ride a bike, he might be at risk from the decayed tree, too …

ODOT had a “drive-by” inspection program, reminiscent of one we considered recently in Commonwealth of Kentucky v. Maiden. The victim’s heirs argued that if ODOT had gone around behind the tree (away from the road), they would have seen the decay. Well, yes, the Court said, but that’s beside the point. ODOT has over 40,000 miles of road to inspect, and to inspect every tree in the manner suggested by the plaintiff would be economically infeasible.

Still, the principle we take away from this decision is that just because the tree is on private land, the City of Norwalkl would not get off the hook. That doesn’t mean that Jim’s going to feel that much better in the defendant’s dock if the mayor has to stand next to him.

Our sad conclusion: Jim may not be the only one liable here. He knows the City has identified the trees as a hazard, and that alone places him on actual notice. If his 98-cent remedy of cutting some roots and hoping for the best doesn’t work, both his homeowners’ insurance and the City’s pocketbook could get a workout.

What a pain in the ash that would turn out to be!

Blausey v. Ohio Dept. of Transportation, Not Reported in N.E.2d, 2005 WL 894878 (Ohio Ct.Cl.), 2005 -Ohio- 1807. Dale Blausey was killed during a windstorm when the car he was driving was struck by a falling Norway spruce tree on a U.S. highway in Erie County, Ohio. The tree had been growing on a roadside right-of-way obtained by defendant on land that was owned by Joe Henry but occupied by a tenant. The primary proximate cause of the fall was the severe deterioration of the roots on the east side of the tree and the high wind that blew the tree onto the highway. The tree had been struck by lightning in 1973, and the damage from that strike led to interior rotting and an infestation of carpenter ants, the combination of which destroyed much of the root system. The deterioration had existed for as long as ten years, gradually weakening the tree to the extent that it became a hazard.

Before it fell, the east side of tree that faced the highway showed little, if any, evidence of decay. Dead limbs were not clearly visible from the highway. Limbs had been removed from the lower part of the tree, which was not uncommon as landowners sought to mow, decorate, or otherwise use the land. Additionally, the lower part of the tree was obscured by bushes and vegetation. The upper growth of both the healthy and the diseased spruce trees was green and quite similar, although on close inspection, the growth on the healthy spruce appeared to be slightly more dense. Cone growth was normal on both trees. Although the 1973 lightning strike had caused the tree to lose its “Christmas tree” shape at the top, the loss was not very noticeable. However, an inspection of the west side of the tree would have revealed evidence of deterioration and of a potential hazard. The State had not inspected the tree except from the highway, and that inspection did not reveal any defect.

Blausey’s executor sued the State for negligence in not identifying and removing the danger tree prior to the accident, and accused it of maintaining a nuisance.

Held: The State was not negligent. In order to prevail upon a claims of negligence, a plaintiff must prove by a preponderance of the evidence that defendant a duty, that it breached the duty, and that the breach proximately caused the injury. The State has a duty to maintain its highways in a reasonably safe condition for the motoring public, but it doesn’t have to become an insurer of the safety of state highways.

treedown140513To constitute a nuisance, the thing or act complained of must either cause injury to the property of another, obstruct the reasonable use or enjoyment of such property, or cause physical discomfort to such person. In a suit for nuisance, the action for damages is predicated upon carelessly or negligently allowing such condition to exist. But in order for liability to attach to a defendant for damages caused by hazards upon the roadway, a plaintiff must show the defendant had actual or constructive notice of the existence of such hazard. The distinction between actual and constructive notice is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever from competent evidence the trier of fact is entitled to hold as a conclusion of fact and not as a presumption of law that information was personally communicated to or received by a party, the notice is actual. Constructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. To establish that defendant had constructive notice of a nuisance or defect in the highway, the hazard “must have existed for such length of time as to impute knowledge or notice.

The court found that there was insufficient discernible evidence available to defendant’s inspectors to warrant further investigation of the damaged tree or to determine that it was hazardous prior to the accident. While a close inspection of tree would have revealed that tree was a hazard, the deteriorated condition of tree was not apparent through Department’s routine visual inspections from roadway, and with over 40,000 miles of road to inspect, the Department was not — as a matter of social and economic policy —expected to individually inspect the trees.

– Tom Root

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Case of the Day – Friday, January 10, 2020

SOMEONE’S GOTTA DO SOMETHING ABOUT ALL THESE ASH HOLES


busek150915We read a lot of newspapers. Some are truly excellent. Some are pretty good. A few are so-so.

Then there’s the Norwalk, Ohio, Reflector, which we read for reasons too complex to explore here. Suffice it to say, if you have a parakeet, the Reflector is all the newspaper you’ll ever need. 

A few years ago, Reflector columnist Jim Busek complained about the city’s plan to axe 62 trees that are accused of wreaking havoc with sidewalks. Jim bemoaned the fact the City had removed a number of ash trees 10 years ago (which he admitted was a “smart ash policy”). Jim was pleading for the 62 targeted trees, publicly and plaintively asking Norwalk Safety Director Josh Snyder whether there wasn’t an alternative to cutting down these old trees. Surely, Jim hypothesized, these at-risk trees are so mature that if the offending roots were cut, no new ones would dare grow, and the sidewalks would thus remain in place. Right?

Maybe if we cut the trees' roots, but ask it real nicely, it won't grow any new ones ...

Maybe if we cut the trees’ roots, but ask them real nicely not to grow any new ones, our problems will be solved …

Sure thing, Jim. While Norwalk arborists are busy looking for the pixie dust that Jim figures will prevent new root growth, let’s consider the strange legal limbo in which property owners find themselves when tussling with municipalities over trees located on tree lawns.

It turns out that Norwalk – known as the Maple City – didn’t rid itself of all of its ash trees. A few still stand on city streets, and ash borers haven’t overlooked them. So who’s responsible for those dead trees? Ironically, we’ve seen the issue arise before, as cities – operating under tight budgets – lean on homeowners to pay for the removal of tree lawn trees. So exactly whose problem is it?

An interesting question… actually, two questions, and we’ll pick on Jim in order to answer them. Let’s say for example, that the dead ash on Jim Busek’s tree lawn falls on a motorist. Is Jim’s ash in a sling? And might the Maple City be liable as well?

So someone’s gotta do something about the tree. But who – Jim or the Mayor?

The infestation on this ash is pretty obvious.

The infestation on this ash is pretty obvious.

Let’s consider Jim’s liability. There’s no doubt that the tree lawn is Jim’s property, despite the fact it is subject to the City’s highway dedication. There’s a lot an owner can’t do with a tree lawn because of the City’s highway rights, but it’s still his or her property. Generally, the owner can plant and take down trees. And the fact that an owner has the right to add or remove trees suggests that he or she has a duty to as well.

And what is that duty? In Wertz v. Cooper, one of Cooper’s trees fell onto Wertz’s fence during a storm. When Wertz sued her, she countered that she had no idea the tree was diseased, and that the tree’s falling over was an act of God. The Court agreed. It held that in order for a landowner to have a duty, the evidence must establish that he or she had actual or constructive notice of a patent danger that the tree would fall.

There is an exception. Where the tree overhangs the street in an urban area, an owner may be held liable on negligence principles under certain circumstances for injuries or damages resulting from the tree or a limb falling onto the highway. Generally, an urban owner has a duty of reasonable care relative to his or her trees, including inspection to make sure that they are safe.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

So Jim may have a problem, beyond the fact that he’ll find no tree-root pixie dust at the nearby Home Depot. The duty to inspect isn’t an issue here. If Jim owns that dead ash tree, he already has notice that the tree’s dead. The bare branches in mid summer, the sloughing bark, and the borer tracks looking like spaghetti done in bas relief, is more than enough constructive notice anyone ever had. Whether the City does something about the dead tree or not, Jim would do well to hire an arborist to inspect the tree. If the tree should go for safety’s sake, Jim shouldn’t wait for the City to do it.

Would the same apply if tree roots damaged the sidewalk, making pedestrian passage dangerous? Absent any municipal code relieving property owners of liability for condition of the sidewalks, it would hardly be a stretch for an unfortunate passerby suing under the law of nuisance. Need an illustration? Look no further than Fancher v. Fagella.

Our next question: Would the Maple City be liable to remove the tree, independent of Jim’s obligation as a landowner?

Wertz v. Cooper, Case No. 06CA3077 (Ct.App. Scioto Co., Dec. 13, 2006), 2006 WL 3759831. Following heavy rains, a tree that sat on Cooper’s property tore loose from its roots, and leaned into Wertz’s fence and into a Shriner Colorado Blue Spruce tree that sat upon Wertz’s property. Wertz sued Cooper, complaining that Cooper failed to timely remove her tree. Wertz sought damages, including the cost of removing the fallen tree, the expenses to replace the damaged Blue Spruce, and other incidental damages.

Cooper argued that she had no knowledge of a defective condition of the tree, that she could not have been negligent in failing to maintain the tree, and that she could not be liable for the damage when an “act of God” caused the tree to uproot. The trial court agreed that there was no evidence that the tree was deteriorating, and that Cooper was not liable for an Act of God.

Wertz appealed.

If the dead tree falls n a car, watch the scramble to avoid liability begin ...

If the dead ash tree falls on a car, watch the scramble to avoid liability begin …

Held: Judgment for Cooper was upheld. A negligence action in Ohio requires a plaintiff to establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered injury. In order for a plaintiff to establish the duty element in a negligence action arising from a fallen tree, the evidence must establish that the landowner had actual or constructive notice of a patent danger that the tree would fall.

There is an exception to the general rule, however, concerning the duty of a property owner relating to growing trees with limbs overhanging a public street or highway. An owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property. In addition, there appears to have developed a distinction throughout the United States that there is a lesser standard of care with reference to rural, farm, timber, or little used land as opposed to strictly urban property. Generally, an urban owner has a duty of reasonable care relative to the tree, including inspection to make sure that it is safe. The duty placed upon the urban landowner, who has only a few trees, is not a heavy burden. This is in contrast to the rural landowner who may have a forest full of trees, which would impose a duty of immense proportions, and constitute an onerous burden on the owner.

Despite the heightened standard to be applied to an urban tree, Wertz had no evidence in this record to establish that Cooper had either actual or constructive notice of a defective condition of the tree. While Wertz advanced her belief that the tree was dead or dying, her allegation was conclusory. She presented no evidence to support her claim. What’s more, even if Wertz were right that she believed that the tree was dead or dying hardly establishes that Cooper knew or should have known that the tree was dead or dying.

– Tom Root

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