Author: TLRoot

Case of the Day – Thursday, September 16, 2021

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WHO YOU GONNA CALL?

So who you gonna call?

    So who you gonna call?

It’s not easy to defeat a utility company holding an easement for transmission lines, despite the facts that the power outage that spawned the Energy Policy Act of 2005 and turbocharged the North American Electric Reliability Corporation happened 16 years ago. The great Blackout of August 2003, after all, started primarily when power lines sagged into trees in the Cleveland, Ohio, area.

Yeah, it’s tough to beat the power company and its chainsaw-wielding minions … but the Corrigans did it for awhile. They had granted an easement to a Cleveland electric utility for a transmission line. In the wake of the blackout, the utility told the Corrigans (and thousands of others) that it would vigorously pursue cleaning up vegetation in the easements. This mean, among other things, no trees within 25 feet of the lines.

The Corrigans had a big silver maple that was about 22.5 feet from the lines. They loved that tree, so they hired an arborist at considerable expense to trim it away from the lines and to inject the tree with a hormone to slow growth. Tough luck, the utility said, it’s coming down anyway.

So who do you call when the power company shows up with chainsaws and a gleam in its institutional eye? The Corrigans raced to the local common pleas court, and asked for an injunction. The trial judge agreed, and the Court of Appeals concurred. Both of those courts sided with the Corrigans that the utility could only cut trees that were “a possible threat to the transmission lines.”

It seemed important to the Court of Appeals that the community had not experienced any service interruptions since the Corrigans had pruned the tree, although that reasoning’s pretty thin. The tree has to only fall once, cascading one failed transmission lines into a continental disaster. But the Court seems to have been favorably impressed by the amount of money the Corrigans had spent getting the tree professionally trimmed.

utilitytrim140515The utility saw an issue here that was bigger than just the Corrigans and their lone silver maple tree. It framed the question as being one of who was really in charge here, the 88-odd common pleas courts spread throughout Ohio or the Public Utilities Commission of Ohio. The Ohio Supreme Court agreed that this was indeed the issue, and ruled that the inclusiveness of the state statute and regulations delegating power to the Public Utilities Commission of Ohio gave PUCO the sole authority to decide questions of vegetation management. (Ohioans spell out the acronym “P-U-C-O”: please don’t try to pronounce it as a though it were a word).

I have to admit that the appellate decision left me with the uneasy feeling that the Court of Appeals’ attempt to do some rump justice here may have made it much more difficult for a utility to exercise its easement rights. To be sure, a utility being sued in a case like this would have to be prepared with an expensive and eye-popping case that graphically depicts the dangers that a tree in the transmission path — even a well cared-for tree — can pose.

The Ohio Supreme Court’s holding provides electric utilities a much friendlier forum in which they must litigate issues of vegetation management, although that may not be a bad thing. Utilities have to walk a fine line, incurring ire if property owners think trees were pruned too aggressively, and facing universal fury (not to mention catastrophe) when service is interrupted by vegetation coming into contact with transmission and distribution lines.

Corrigan v. Illuminating Co., 122 Ohio St.3d 265 (Sup.Ct. Ohio 2009). The Corrigans granted a quitclaim deed to The Illuminating Company, the local electric utility, for a transmission line to run through their yard. The easement gave the Illuminating Company the right to “enter upon the right-of-way occupied by said transmission lines … with full authority to cut and remove any trees, shrubs, or other obstructions upon the above described property which may interfere or threaten to interfere with the construction, operation and maintenance of said transmission lines.” The Corrigans had a large silver maple tree located about 22.5 feet from the centerline of the transmission lines. At considerable expense, they had their own arborist trim the tree and inject slow-growth hormone to keep the tree from posing a risk to the transmission line. Nevertheless, the Illuminating Company decided to remove the tree, and the Corrigans sued for an injunction.

The trial court granted an injunction barring the Illuminating Company from removing the tree, and the Court of Appeals agreed. The electric utility, seeing the issue as one that transcended the issue of one tree, but rather affected the company’s ability to manage vegetation in its rights-of-way throughout the state.

Held: The Corrigans argued that the issue was purely a contract matter, but the Supreme Court disagreed. Noting that “[t]here is no question that the company has a valid easement and that the tree is within the easement” and the easement’s language was unambiguous that the utility had the right to remove trees that might interfere with its transmission lines, the Court said the issue was the correctness of “the company’s decision to remove the tree instead of pruning it.” That was “really an attack on the company’s vegetation-management plan [and] that type of complaint is a service-related issue[] which is within PUCO’s exclusive jurisdiction.”

The statute creating PUCO to administer and enforce these provisions provides that the commission hears complaints filed against public utilities alleging that “any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential.” This jurisdiction is “so complete, comprehensive and adequate as to warrant the conclusion that it is likewise exclusive.”

The Court used a two-part test to reach its determination. First, it asked whether the commission’s administrative expertise was required to resolve the issue in dispute, and, second, whether the act complained of constituted a practice normally authorized by the utility.

rules140515The Ohio Administrative Code chapter on electric service and safety standards requires that utility companies establish a right-of-way vegetation-control program to maintain safe and reliable service. The Code requires that each electric utility inspect its electric-transmission facilities (circuits and equipment) at least once every year, in accordance with written programs, and takes a number of factors into consideration such as arcing, sagging, and line voltage as well as regulatory requirements from OSHA, FAA, and the Army Corps of Engineers. In addition, electric utilities are required to comply with the American National Standard Institute’s National Electrical Safety Code. The utilities are required to submit their programs to the Commission, which will resolve any disputes as to the efficacy of the plan.

The Court concluded that the Ohio Administrative made it clear that PUCO’s administrative expertise is required to resolve the issue of whether removal of a tree is reasonable.

The second part of the test determined whether the act complained of constitutes a practice normally authorized by the utility. Again, the Court said, the Administrative Code made it clear that vegetation management is necessary to maintain safe and reliable electrical service. Thus, the Supreme Court ruled, the second part of the test was satisfied, and the Corrigan’s complaint fell within the exclusive jurisdiction of PUCO.

That meant that the Illuminating Company’s decision that the silver maple interfered or threatened to interfere with its transmission line was a service-related question, and one that the Corrigans could only dispute in front of PUCO. The Court of Appeals judgment was thrown out.

– Tom Root

TNLBGray140407

And Now The News …

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Durango, Colorado, Herald, September 15, 2021: City of Durango cuts down cottonwood; residents hold ‘funeral’ for tree’s demise

Residents of the Animas City neighborhood gathered Wednesday in north Durango to hold a “funeral”/protest over the removal of a large cottonwood tree that was cut down Wednesday morning by the city. “My tax dollars are going toward bringing this beautiful tree down right now, and that breaks my heart,” said Jules Harris, a resident of the Animas City neighborhood. The tree, near the corner of 32nd Street and East Third Avenue, was removed to make way for the Animas River Trail underpass project. Several residents advocated on behalf of keeping the tree. About 20 people showed up Wednesday morning, many wearing black and holding “R.I.P.” signs as it was cut down. Some protesters shed tears…

New York City, The Wall Street Journal, September 15, 2021: Christmas Tree Sellers Hit by Supply-Chain Disruptions

Supply-chain disruptions will make decking the halls more expensive than ever for consumers looking for artificial trees this Christmas.Some U.S. retailers are raising prices by 20% to 25% to keep pace with skyrocketing shipping costs and they are warning that certain trees could sell out early because deliveries from overseas producers have been hit by the congestion that has tied up distribution networks from ports in China to freight yards in Chicago. Balsam Hill, a Redwood City, Calif., company that sells medium- to high-end trees online and in stores, is raising prices by 20% on average, with list prices for some of its trees pushing close to and beyond the $1,000 level it charges for its premium trees. “We’ve never raised prices anywhere close to that in our history and will make way less money,” said Mac Harman, the firm’s chief executive. The company’s 7 ½-foot tall Brewer Spruce with clear LED lights is listed at $999 this year, up from $899 last Christmas. Its 4½-foot tall Grand Canyon Cedar tree with clear fairy lights will list at $499, up from $300 last season, as soon as it is in stock…

Seattle, Washington, KING-TV, September 15, 2021: Montlake residents breathe sigh of relief after hazardous tree removal

Two large poplar trees that once stood in Seattle’s West Montlake Park are gone after one fell naturally and the other was removed by the city. “There was sort of a relatively minor wind storm and this tree just fell in the water,” Caleb Wilkinson said. Residents who live in the neighborhood, adjacent to the Seattle Yacht Club, urged the city to consider removing the trees that sit at the edge of the water overlooking Portage Bay. One of the trees overturned and fell into the water in early August, according Wilkinson, who along with fellow neighbors, discovered the fallen tree the next morning after they assumed it fell. The fallen tree barely missed a park bench. “I call it a dead body in the water, it’s a huge poplar tree,” said Caleb’s father, Rob Wilkinson, who said he has lived in the neighborhood for at least 40 years. Wilkinson guesses each poplar weighs at least a dozen tons and was concerned if children were near the water…

Houston, Texas, KPRC-TV, September 16, 2021: How to clean up tree debris after a storm

Removing a tree can be a very stressful process. Without insurance, the average price per tree costs between $700 to $1200. There are a few good reasons why experts say it’s best to leave it to them. On Wednesday, KPRC 2 tagged along with a company called Nature’s Tree Removal of Houston as they began day one of a three-day job removing seven pine trees from a yard. The homeowner said he was fearful that future storms could bring the trees down onto his house. Some homeowners left with dead trees after Hurricane Nicholas may not have a choice, but arborist Adrian Arechiga said it’s important to have an expert come out to be sure the tree is actually dead and not just in need of proper care. “You could inject the ground with fertilizer. There’s a lot of things you could do to make the tree come back to life,” Arechiga said. For those still needing to rid your yards of thin twigs and branches, there are some important steps to take…


Essex, Connecticut, Patch, September 13, 2021, Tree Controversy Ensues In Essex

According to long-time Essex Tree Warden Augie Pampel, if a formal complaint is received involving the removal of a tree in town, he must call a public hearing on the issue. That is exactly what has happened regarding a large tree set to come down at 36 Main Street in downtown Essex. One resident sent an email to Pampel contesting the removal of this tree. Others have taken to The People of Essex Facebook page to express concerns for and against the tree’s removal, questioning if the tree is healthy or diseased and if it is dangerous or not? One post reads, “Looks like they have some nice new ones planned on either side of the tree. I doubt they aren’t cutting the tree down without having a good reason…”

Los Angeles, California, KCBS-TV, September 13, 2021: Large Tree Falls Onto Woman’s Car As She Is Driving In Valley Village Neighborhood

A woman is recovering Monday after a huge tree came crashing down as she was driving in Valley Village. The accident happened Sunday near West Huston Street at about 11:40 a.m. The woman was approaching Huston when the giant tree fell over and landed on her car. The woman was able to get herself out of her car, and witnesses say she seemed OK – but she was taken to a hospital as a precaution. The tree’s fall ripped its roots out of one side of the street and left it sprawled across the roadway, on top of the car, and its branches in the bed of of a parked pick-up truck that was unoccupied at the time. Neighbors were stunned by the tree’s collapse, but some were not…

Chicago, Illinois, Tribune, September 14, 2021: Dogwood, tupelo, ironwood: Meet the best native trees for Chicago-area yards, with biodiversity in mind

Removing a tree, whether because of storm damage, disease, pests or decay, is a loss — but it’s also an opportunity. “When you replace a tree, you have a chance to choose a species that will diversify your neighborhood,” said Julie Janoski, Plant Clinic manager at The Morton Arboretum in Lisle. In the past, communities and homeowners have planted too many of the same kinds of trees — especially elms, ashes and maples. “That made our elms and ashes sitting ducks for disease and pests,” she said. “Now we know that planting many different species can prevent one single problem from killing off so many of our trees.” Janoski recommends that before selecting a new tree, homeowners take a walk and note the species that are already growing along nearby streets and in neighbors’ yards. “You’ll probably notice a high concentration of some kinds of trees, such as honey locusts and maples,” she said. “For your own yard, mix it up by choosing a kind of tree you don’t see growing nearby…”

Lincoln, Nebraska, Journal Star, September 11, 2021: Sarah Browning: Fall is best time to plant new trees

Fall is the best time of year to plant new trees, from early September through late October. Fall’s cooler temperatures and increased rain allow trees to establish their root systems quickly, giving them a jump-start on spring growth. Tree root growth continues late in fall, until soil temperatures drop below 40 degrees. But growing healthy trees that will provide beauty, shade and wind protection for your property long-term, means getting them off to a good start by avoiding common problems at planting. More than ever before, tree experts know that half the battle in long-term tree success is addressing potential problems before the tree is in the ground. What problems, you ask? Isn’t the tree I bought in perfect condition to be planted? Maybe. But increasingly the horticulture industry recognizes that production methods we use to grow trees in containers or in the field can cause problems for trees down the road…

Denver, Colorado, KUSA-TV, September 7, 2021: Here’s how investigators found the tree that started the Black Mountain Fire

After determining that lightning ignited the Black Mountain Fire, investigators have shared photos of the tree where they think the fire began. Images shared Friday show a tree struck by lightning that investigators say caused the fire. The bark and wood had separated from the tree, and the tree was split at the bottom, common evidence of a lightning strike. With the Black Mountain Fire burning just a few miles away from the East Troublesome Fire burn scar, many have wondered why the cause of this new fire was found so much faster. The East Troublesome Fire, which ignited Oct. 14, 2020, was determined to be human-caused, but fire officials have not released any further information. Mike De Fries, spokesperson for the incident management team working the Black Mountain Fire, emphasized that he could not speak to the cause of the East Troublesome Fire. However, he explained that determining the cause of the Black Mountain Fire fire in less than a week was possible because of a number of specific circumstances…

Madison, Wisconsin, Capital Times, September 6, 2021: Must love trees: Arbor Systems thrives on teamwork and tree passion

When Jeff Olson met a guy in Hoyt Park and caught a ride with him to Texas in 1981, he was a 19-year-old Madison West High School graduate with a backpack in his lap and $150 in his pocket. When he returned 15 years later, he was a trained horticulturist and the founder of a successful Dallas tree care business that trimmed and removed trees for the likes of future president George W. Bush and business magnate Ross Perot. When he moved back to Wisconsin with his wife and kids, he’d sold the company. He planned to take a year off to consider his options; he liked working with trees, but the years he’d spent climbing had worn him out. After so long away, he was eager to spend a winter deer hunting. But on a hunting trip in Barneveld, on that first winter back home, he fell from a deer stand. The accident left him paralyzed from the chest down — and unsure what was next…

San Jose, California, Mercury News, September 7, 2021: Majestic sequoia trees can live for thousands of years. Climate change could wipe them out

Almost everything about a sequoia tree is giant: It can grow to more than 200 feet tall and live longer than 3,000 years. Yet the sequoia’s footprint is shrinking, as human-induced climate change threatens this ancient tree’s survival. Sequoias were once found across the Northern Hemisphere, but today, they only naturally grow across the western slopes of the southern Sierra Nevada mountain range in California. So when the Castle Fire broke out in August 2020, and merged with another fire to tear through more than 174,000 acres over four months, the loss was something even experts didn’t think possible — somewhere between 7,500 to 10,600 mature giant sequoias were destroyed, according to a report by the National Park Service, published in June. That’s 10-14% of the entire world’s population of mature sequoias — a big chunk of history up in flames. “They stood for a couple of thousand years before ancient Rome, before Christ,” Clay Jordan, superintendent of Sequoia & Kings Canyon National Parks, told CNN. “I mean, these trees were mature.” There are only around 48,000 acres of sequoia groves left in the world, and the trees are now facing threats from human-made climate change in several ways…

Chicago, Illinois, WBBM-TV, September 7, 2021: Logan Square Woman Fights To Save 100-Year-Old Catalpa Tree Set To Be Cut Down For Water Pipe Replacement, And Other Trees Like It

This story is about one tree, but a tree that represents a bigger problem. A Logan Square resident is fighting to save a catalpa tree on her street, even though the city says workers need to replace water pipes and thus, the tree has to go. As CBS 2 Political Investigator Dana Kozlov reported, things may now be on pause – at least for the time being. The tree is about 100 years old. Emma Poelsterl is on a mission to save it, and her alderman is now helping the fight too. “Some people have stopped and looked up for quite a while,” Poelsterl said. People gaze skyward at the catalpa’s canopy because of a note that Poelsterl taped to its trunk about a week ago. The note informed neighbors and passersby that the tree was slated to be chopped down by Chicago’s Bureau of Forestry. Poelsterl put up the note after getting a notice from the city saying the tree was “hindering progress” and “must be removed” because of upcoming work on the water pipes below. “I started to get passionate about not only this tree – which I love dearly and is very personal to me – but also thinking about all the mature trees of Chicago,” she said…

Omaha, Nebraska, World, September 5, 2021: Mulhall’s, Keep Omaha Beautiful work together to encourage residents to plant trees

With the fall planting season approaching, the Omaha community is looking to replace trees that fell in the July 10 storm. One local garden center is supporting the effort and encouraging the community to do the same. In the weeks after the storm, for every tree sold at Mulhall’s Garden + Home, the company donated $10 to Keep Omaha Beautiful in support of the Trees for Omaha initiative. With more than $4,100 toward the effort, that’s enough to support the supplies, labor and other costs to plant roughly 20 additional trees in public parks and right-of-ways across the community and maintain them during their critical first year of establishment. Keep Omaha Beautiful estimates that over their lifetime, the additional trees will sequester 185,715 pounds of CO2, prevent 333,835 gallons of storm-water runoff and remove 600 pounds of air pollutants…

Little Rock, Arkansas, Democrat Gazette, September 4, 2021: Large tree shedding leaves could benefit from extra water, but is not cause for concern

Q: Our very large post oak is dropping brown leaves. How much water is enough?
A: Large trees can use copious amounts of water. Some parts of our state have had little rainfall the past month. Starting to water now to make up for dry conditions will help but not stop early leaf shed. The fact that the tree is dropping leaves is a good thing. It just means it is shutting down its season a tad early. Post oaks are usually pretty tough. We are definitely seeing signs of drought stress in landscapes across Central Arkansas, especially in yards that have had no supplemental watering…

Miami, Florida, WSVN-TV, September 5, 2021: Tree planted in pothole to protest road conditions on Fort Myers street

Someone in Fort Myers took matters into their own hands when they planted a tree in a pothole to protest the roadway’s poor conditions. Area residents were surprised to find the outlandish sight in the middle of the road earlier this weekend. “They literally put a whole tree in the middle of the road,” said a resident. “I pulled up, and I’m like, ‘Is that really a tree in the middle of the road?’” said Fort Myers resident John Hulker. “I took two takes. I was like, ‘What? What? What is this?’” said local business owner Scott Shine. “Me and my wife started instantly laughing,” said area resident Nicholas Angus. But the tree is no laughing matter, and neither is the pothole where it’s growing. Cars driving down this road have to either veer left or right to get around the tree — just like they have to do if they see the pothole in time. “The tree is actually kind of making it harder to get around the next pothole that’s right next to it,” said Angus, “because I usually just drive over the pothole, but now that there’s a big tree, you can’t drive through a big tree…”

Columbus, Ohio, Dispatch, September 5, 2021: Plant Primer: Bur oak trees boast acorns that mature in autumn

The bur oak (Quercus macrocarpa) is a noble native tree. This oak has large (5- to 9-inch-long), dark-green leaves. The base fiddle-shaped leaves have deep, rounded sinuses. The acorns are most notable for the deep-fringed cups, with only a small portion of the nut showing. The acorns mature in one season, ripening in early- to mid-autumn. The common name is due to the acorns’ resemblance to the spiny bur (or husk) of the chestnut. The bark is a grayish-brown color, with deep ridges and vertical fissures. Bur oaks have an open canopy with a large trunk that supports horizontal limbs. This tree will often be wider than it is tall, making it a great tree for large spaces and less suitable for a small garden. The bur oak is tolerant of many soil conditions, even the occasional drought or flood…

Asheville, North Carolina, Citizen-Times, September 2, 2021: What is the fall foliage forecast for Western North Carolina’s mountains? Experts weigh in

Local experts say the leaves in Western North Carolina are on track to reach their peak yellows and oranges that draw tourists to Western North Carolina in mid-October. “The trees are in good shape, and the leaves look nice. It depends now what the weather does through September and early October,” said Howard Neufeld, professor of plant eco-physiology at Appalachian State University in Boone, who also runs the “Fall Color Guy” Facebook page. The National Weather Service predicts slightly above-average temperatures during the week of Sept. 5 with highs in the low 80s and lows in the high 50s, low 60s. Asheville’s average temperatures in September are about 79 degrees at the highest and 58 degrees at the lowest, according to a National Centers for Environmental Information weather analysis from 1991-2020. Climatologist Rebecca Ward with the State Climate Office, said temperatures should be to their average point by mid-September. But if warm weather persists through the month, not only would WNC’s fall colors be delayed, but the tones could also be less vibrant, Ward said…

Tampa, Florida, Tampa Bay Times, September 2, 2021: Huge tree growing in kitchen didn’t stump Gulfport buyers

“Keep Gulfport Weird” is practically a town motto, found on bumper stickers all over, so it’s fitting that a home listing there landed on the “Zillow Gone Wild” Facebook page. Look past the marble countertops and waterfront view, and there is a giant tree growing in the kitchen with its top sprouting through the roof. Now that tree has new owners, Greg and Linda Simek, who bought the 2,874 square-foot waterfront house for $899,000. Questions like “How did this happen?” and “What are you going to do with that thing in your kitchen?” can finally be answered. The family of Michelle Pillucere Clark, 53, a hair stylist in downtown St. Petersburg, lived in the home from 1963 until 1983. She was not happy with snotty comments online about a house her father thought of as a piece of art…

Denver, Colorado, Colorado Public Radio, September 2, 2021: The Montezuma Orchard Restoration Project Preserves History Of Apples For The Future

The Montezuma Orchard Restoration Project can be described as many things: an agricultural project, an economic development project, a history project — even an apple scavenger hunt. Jude and Addie Schuenemeyer founded MORP in 2014. It has several orchards in Montezuma County. The Schuenemeyers’ own orchard and nursery in McElmo Canyon grows more than 200 different apple varieties. One of their main goals is to preserve every kind of apple grown in Colorado. Sometimes that involves a treasure hunt — like the Schuenemeyers when he set out to find the Thunderbolt apple. Jude Schuenemeyer said he’d originally seen it in a real estate guide for the Montezuma Valley from the early 1900s. The guide said it grew well on the land and was beloved by the people who lived there. So he did some digging, talking to people who live in the area where it was grown. He eventually found the Thunderbolt in the remnant of an old orchard, but it still took a while before they were able to confirm it was the real deal. “We went and took cuttings and grafted all of them and then started growing them out here,” Schuenemeyer said, gesturing to his orchard where heritage apple trees are spaced far apart to give their root systems room to grow. “And over time we recognized one of those apples matched a Thunderbolt that we had gotten from a place north of Cortez…”

Knoxville, Tennessee, WBIR-TV, September 1, 2021: Historic white oak tree in South Knoxville toppled by storms

A family in South Knoxville is cleaning up after storms knocked over a massive and historic white oak tree dating back to the early roots of the United States of America. Leigh Ann Dickert said the tree fell after powerful storms from Ida’s remnants moved through Knoxville Monday night, and it nearly fell on top of her and her husband. “In the storms two days ago, we heard a little crack, and my husband stepped outside and saw the big shadow start to fall and started running and yelled to me to get away. It all happened so quickly that I couldn’t move,” she said. “It grabbed the power lines and fell… and he was able to move far enough away… it brushed the back of his leg and fell six feet from me.” Dickert said the white oak was one of the oldest trees in Tennessee, dating back to 1787 when it was planted in honor of the signing of the U.S. Constitution. “It is the second-oldest white oak in the state,” Dickert said. “This tree is very near and dear to us…”

Kitchener, Ontario, Daily Record, September 1, 2021: More care for our old trees, please!

Our trees and forests have had a punishing year: wildfires in the west, thawing Arctic permafrost that creates “drunken forests” of dead trees, and an exploding gypsy moth caterpillar population stripping trees bare. Land speculators and private owners chop down “inconvenient” trees that stand in the way of human construction. Vancouver Island’s Fairy Creek has become the latest threatened old growth forest facing clear-cutting despite very vocal and active blockades trying to protect them. Inspiring stories keep popping up about people around the world taking on mass tree-planting and restoration projects to rehabilitate disturbed land. Even though they bring back wildlife and lower the ambient temperature of the area, new forests do not provide equal eco-services as old growth forests. Because trees both emit and store carbon, NASA is mapping forest cover around the globe to try and understand the net carbon budget. A study published in Science Advances this year found “gross emissions and removals in the tropics were four times larger than temperate and boreal ecosystems combined,” indicating global differences…

Detroit, Michigan, Free Press, September 1, 2021: DTE Energy to spend another $70 million on tree trimming to prevent outages

DTE Energy — which is under fire from customers, consumer groups, municipal leaders, the state attorney general, governor, and utility regulators — announced Wednesday it is spending $70 million more to remove trees and trim branches to curb power outages. In addition, DTE President and CEO Jerry Norcia vowed the power company “will do what it takes to protect Michiganders from power outages caused by catastrophic storms and extreme weather patterns.” The announcement comes nearly two weeks after DTE said it “voluntarily issued” $100 credits as a one-time courtesy to business and residential customers who lost power for several days. This summer, customers and consumer groups have been demanding better service from the utility, and sharply criticized what it considered high rates and executive compensation, and low reliability…

Oakland, California, East Bay Times, August 31, 2021: Caldor Fire: Why Lake Tahoe’s forests face so much fire  danger

The Caldor Fire threatening communities and breathtakingly scenic landscapes around Lake Tahoe — a destination that Mark Twain once called “the fairest picture the whole earth affords” — is a dramatic, unfolding disaster. But the conditions that led to the evacuation of more than 50,000 people around the famed alpine lake’s south and western shores — where embers rain down on rustic communities and soot chokes the normally pristine mountain air — didn’t spring up this week, this month or this year. They are the culmination of more than 150 years of decisions that people made to unwittingly set the stage for today’s catastrophe, experts say. “We are in an emergency crisis throughout the Sierra,” said Susie Kocher, a forestry and natural resources adviser for the University of California Cooperative Extension in South Lake Tahoe. Kocher, her husband, dog and cat evacuated their home in nearby Meyers on Monday to stay with relatives near Sacramento. Before she moved to the Tahoe area 15 years ago, she lived in Greenville, a small town in Plumas County. Nearly all of Greenville burned to the ground last month when the Dixie Fire raged through the northern Sierra Nevada’s forests…

Forbes, September 1, 2021: One In Three Tree Species Face Extinction, Study Finds

A third of the world’s trees are at risk of extinction as climate change and extreme weather events takes their toll, according to a new study. The State of the World’s Trees report by the Botanic Gardens Conservation International (BGCI) warns that 17,500 tree species – around 30% of the 60,000 around the world – are currently at risk of extinction. It adds more than 440 tree species are right now on the brink of extinction, meaning they have fewer than 50 individuals remaining in the wild. These species are found all over the world, from the Mulanje cedar in Malawi, with only a few remaining individuals on Mulanje Mountain, to the Menai whitebeam found only in North Wales, which has only 30 trees remaining. The report comes after wildfires have recently destroyed forests in California, Greece and Canada. “This report is a wake-up call to everyone around the world that trees need help,” said BGCI secretary general, Paul Smith…

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Case of the Day – Wednesday, September 15, 2021

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YOU HAD ONE JOB

The municipal position of tree warden in this country is unique to a few New England states. In Massachusetts and Connecticut, for example, state law requires that each town appoint one. A tree warden is a person in charge of shade trees on public town lands. The word “warden” was a common title for natural resource officials in the late 1800s. Being a warden signified a unique legal responsibility: to guard public resources against destructive forces that might include persons, insects, or diseases.

A tree warden may be either or appointed. In either case, the responsibility is the same – to oversee the care, maintenance, or removal of all public shade trees. As both manager and advocate, the tree warden must protect the trees and, where necessary, protect the public from the trees.

Massachusetts describes the tree warden’s functions as being “broad and includ[ing] responsibility for all community trees – on streets and town commons as well as in parks, schoolyards, and town forests. The position of tree warden requires qualified training in arboriculture, the science of tree care. A tree warden should also have good communication skills for dealing with the public, municipal department heads, and local politicians.”

Connecticut says that “Tree wardens are appointed public officials responsible for trees alongside public roads and in public spaces, other than those on state property or under the jurisdiction of a park commission. Each municipality is required to have a tree warden. The tree warden’s responsibilities include approving the planting, pruning or removal of trees under his or her authority. Public safety is among the chief concerns of the tree warden.”

Fans of the many “you had one job” posts online (and even on ESPN, sports-themed, of course) can appreciate the “fail” in today’s case. A Connecticut town tree warden ignores his duty to check on a tree that a concerned resident reports on several occasions as dangerous and decayed. The woman even had her own arborist look at it, but the tree was on town property, so it was up to the town to care for it. And that meant it was up to the tree warden.

He ignored it for nearly a year. Sure enough, it fell… right across the road and onto a passing car. When the motorist and his wife sued the town and the tree warden, the defendants claimed immunity. It turns out there is plenty of immunity for a government official acting according to his or her discretion. But immunity for failing to drive out to check on a reported danger tree?

C’mon, man. You had one job…

Wisniewski v. Town of Darien, 135 Conn. App. 364, 42 A.3d 436 (Ct.App. Conn. 2012). Mieczyslaw (let’s call him “Bud”) and Jolanta Wisniewski were injured when a tree within the street right-of-way toppled onto his car in front of 35 Rings End Road, inside the Darien, Connecticut city limits. This should not have surprised the Town, which had been notified several times by property owner Kristen Doble that her arborist had determined that five trees located near the roadway “need attention.”

On one occasion, Kris told the Town that limbs had fallen from trees near the roadway. On another occasion, she asked that the Town send someone to examine a “hollow” tree located near her front gate, next to the roadway, that had lost a leader (which is “a primary or terminal shoot of a plant (as a main branch of an apple tree or the terminal shoot of a spruce tree… the upper portion of the primary axis of a tree especially when extending beyond the rest of the head and forming the apex…” leader.

At the time Kristen complained and later, when the tree fell on Bud and Jolanta’s car, Mike Cotta was the Town’s tree warden. Pursuant to General Statutes § 23-59, he was responsible for the care and maintenance of trees located along certain rights-of-way within Darian’s geographic limits. There were no other express town charter provisions, rules or ordinances directing Mike’s duties as tree warden.

Bud and Jolanta sued the Town and Mike Cotta, claiming negligence against Mike and seeking indemnification against the Town pursuant to General Statutes §§ 7-465 and 7-101a. In addition, the complaint contained claims for liability pursuant to General Statutes §§ 52-557n and 13a-149 against the town.

The Town and Mike argued that Bud and Jolanta’s lawsuit barred by the doctrine of governmental immunity. That motion failed. The Town and Mike moved for summary judgment, arguing, in part, that governmental immunity barred the Wisniewski’s claims. The court denied the motion for summary judgment, and the case proceeded to a jury trial.

The jury found for Bud and Jolanta, holding that he had established Mike’s and the Town’s negligence under § 52-557n. Although the defendants established that their duty to maintain the subject tree was public in nature, they failed to establish that their duty to inspect, maintain and remove the tree was discretionary. Jolanta Wisniewski got $200,000, and Bud Wisniewski was awarded $1.5 million.

Mike and the Town appealed.

Held: Mike and the Town of Darian were liable for negligence.

As a general rule, a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity. In this case, Gen. Stat. § 52-557n abandons the common-law principle of municipal sovereign immunity and lists circumstances in which a municipality may be liable for damages. One is a negligent act or omission of a municipal officer acting within the scope of official duties. Section § 52-557n(a)(2)(B) explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. Municipal officers are not immune from liability, however, for negligence arising out of ministerial acts. Ministerial acts are defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.

The language of Conn. Gen. Stat. § 23-59 provides that many, but not all, of the duties of a tree warden involve the exercise of discretion, and thus are immune.

The determination of whether official acts or omissions are ministerial or discretionary for liability purposes is normally a question of fact for the fact finder. Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive. Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive.

A municipal employee, and, by extension, the municipality, may be liable for the misperformance of ministerial acts, but are entitled to immunity in the performance of governmental acts, including acts that are discretionary in nature.

Although Darian maintains no written policies directing the conduct of its tree warden, the town’s assistant director of public works, Darren Oustafine, testified at trial that the general direction provided to Mike Cotta upon receipt of a complaint “is always the same, look at the tree, make a determination. Is it a safety concern? Is it a priority?” Moreover, Cotta himself testified that upon receipt of a complaint regarding a potentially hazardous tree, he has a nondiscretionary duty perform an inspection. “In light of the evidence adduced,” the Court said, “including Cotta’s own statements, which were couched in mandatory language, it was appropriate for the court to decline to direct or to set aside the verdicts on the basis that the defendants’ actions as a whole were discretionary as a matter of law.”

The evidence in the record was enough to let the jury reasonably find that some of Mike’s duties, including the duty to inspect upon receipt of a complaint concerning a potentially hazardous tree, were ministerial. This was especially so given that Mike testified that upon receipt of a complaint regarding a potentially hazardous tree, he had a nondiscretionary duty to perform an inspection. The evidence showed a total absence of any documentation in the town’s work order records concerning Mike having inspected the trees. Although Mike testified at trial that he had performed a quick visual inspection, he admitted that performing a quick visual inspection is “not the same thing as saying you inspected it at all…” In addition, in a pretrial deposition, Mike admitted that he had not inspected the trees for decay or, for that matter, “for any reason.”

Furthermore, although Mike testified at trial that he had gone to the property and pruned the hazard tree in 2004, Bud and Jolanta introduced a deposition transcript in which Mike testified that he had not returned to the property between March 14, 2003, and July 11, 2006. Thus, the Court said, “numerous issues were raised concerning Cotta’s credibility, and the jury was free to decide that Cotta was not credible and to resolve the claim in favor of the plaintiffs that he failed to respond to any of the complaints by going to the property to inspect the trees.” Bud and Jolanta’s expert “opined that the subject tree would have exhibited signs of decay in 2002 and 2003, when Doble lodged her with the town. Accordingly, the jury could infer that a reasonable tree warden, had he performed an inspection, would have determined that the subject tree was a hazard.”

– Tom Root

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Case of the Day – Tuesday, September 14, 2021

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FOLLOWING DIOGENES (AND OTHER ANCIENT LIGHTS)

I found myself reading a revealing scientific (well, a “social scientific”) paper recently about pseudo-profound bullshit.

No bullshit. I am not making this up. The study asked people to rate the profundity of randomly-generated sentences of touchy-feely crap (such as “wholeness quiets infinite phenomena”). The authors concluded, among other things, that “a bias toward accepting statements as true may be an important component of pseudo-profound bullshit receptivity.”

I was impressed, because up to the time I read the study, I firmly believed that wholeness really does quiet infinite phenomena. Guess not, huh?

Unsurprisingly, when I considered today’s case – which illuminates the old doctrine of “ancient lights” – I looked for the type of bogus profundity that Professor Pennycook and his colleagues were writing about. As you can see to the left, finding something that was suitably bullshit was not hard.

“Ancient lights” was decidedly not bullshit. The name refers to, of all things, windows that have been around for awhile, but eventually the name was loaned to an English doctrine of “presumptive title to light and air, received over land of another person, arising from the uninterrupted enjoyment of it for twenty years and upward, through the window of a dwelling house” (as described in Clawson v. Primrose). But America, being a land of opportunity and progress, was unwilling to tie the hands of property owners by implying easements of light and air in favor of countless neighbors.

Still, some found need of “ancient lights,” and – because the doctrine was unavailable to them – tried the “side door.” The “side door” did not work for Rick Singer and the parents who bribed their kids’ way into college. And it didn’t work too well for the plaintiffs in today’s case.

Mohr v. Midas Realty Corporation, 431 N.W.2d 380 (Supreme Court, Iowa, 1988). Erick Mohr owned an office building situated on a commercial “strip” along Highway 20 in Fort Dodge, Iowa, with parking in front for tenants and customers. In 1983, Mohr’s neighbors to the west, Midas Realty Corporation and the Stan and Lynn Building Partnership, built a muffler shop on the front of their property with parking in the rear.

The muffler shop complied with zoning restrictions and setback lines, but it blocked view of the Mohrs’ building to traffic approaching from the west.

Erick sued Midas for “unreasonable interference with Plaintiff’s lawful use and enjoyment of his private property.” He claimed damages and sought abatement of the alleged nuisance, that is, removal of the muffler shop.

Midas moved for summary judgment, arguing that Erick could not win under existing law. The trial court agreed, holding that Iowa nuisance law did not allow a suit for interference with view.

Erick appealed.

Held: Iowa law does not recognize a right to a view, and therefore, interference with a neighbor’s view does not a private nuisance make.

A private nuisance is generally defined at common law as “a substantial and unreasonable interference with the interest of a private person in the use and enjoyment of his land,” Not every interference with a person’s use and enjoyment of land is actionable, however. Here the trial court focused on a preliminary determination whether Midas’ construction of the building, whether reasonable or unreasonable, interfered with a legally protected interest belonging to Erick Mohr.

Although the petition alleges interference with light, air, and view, Erick admitted at oral argument that the heart of his claim was that the Midas Muffler shop blocked the motoring public’s view of Erick’s building, thereby diminishing its value as a commercial property. Thus, he argued, Midas had enhanced its property at Erick’s expense, giving rise to a private nuisance action, where the parties’ competing interests in the use and enjoyment of land are weighed according to a reasonableness standard.

Midas argued that while Erick tried to pigeonhole his claim into a nuisance action, it was really a claim under the old English common law doctrine of “ancient lights.” Under that doctrine, a landowner acquired a negative prescriptive easement for sunlight across an adjoining landowner’s property and could prevent the adjoining landowner from obstructing the light once the easement was established by the passage of time.

The only problem with the “ancient lights” doctrine, Midas argued, was that every state considering the doctrine, including Iowa, repudiated its premise as inconsistent with the needs of a developing country. In fact, Iowa’s legislature passed a law in 1873 prohibiting the implied acquisition by adjoining landowners of “any easement of light or air, so as to prevent the erection of any building on such land.” Iowa Code § 564.2.

Mohr vigorously argued that his claim of nuisance had nothing to do with any claim of prescriptive easement for light and air, but the Court was unpersuaded: “We recognize,” the Court ruled, “that while disavowing any cause of action for interference with light, air, and view unless granted by express contract, our prior cases have left unanswered the question whether such claim might be sustained under the doctrine of nuisance. Squarely confronted with the question, however, we are convinced that giving vitality to such a cause of action in nuisance would be the same thing as granting a prescriptive easement.”

In other words, recognizing Erick’s right to enforce a nuisance claim for intentional interference with light, air, or view as something other than enforcement of the doctrine of “ancient lights” would be a distinction without a difference. “For a variety of reasons,” the Court said, “we think such an expansion of the law of nuisance would be unwise, at least in regard to the interference with view claimed here.”

Extending the law of nuisance to encompass obstruction of view due to lawful construction of a neighboring building would unduly restrict a property owner’s right to the free use of his or her property, interfere with established zoning ordinances, and result in an endless flood of litigation. Every new construction project is bound to block someone’s view of something, opening every landowner up to a claim of nuisance. The practical implication of such a right would be the need of every servient owner to obtain a waiver of the view easement from the “dominant” landowner. This would reduce to development decisions being made by a committee of all owners with sightlines to the project.

The Court found “no compelling reason to recognize an enforceable right of view over private property. Accordingly, we hold there can be no cause of action grounded in nuisance for blocking that view.”

– Tom Root

TNLBGray140407

Case of the Day – Monday, September 13, 2021

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SPITE FENCE TAFFY PULL

Trust an angry plaintiff and a clever lawyer to stretch a useful concept like “spite fence” – which we have been talking about the last few days – like a salt water taffy pull.

We have established that a spite fence requires unreasonable height and a malicious motive. We have also figured out that a spite fence can be something other than a fence, such as the Maine widow woman’s “spite trees.”

It was probably inevitable that someone would go after a neighbor for planting plants that may someday be too tall. Add a complaint that the neighbor refused to knuckle under when the plaintiff tried to boss him and her around regarding their landscaping, and, voilà, you have malice.

Just as the cops in Minority Report arrested people who would someday commit a crime (surely a useful idea), this theory holds people liable because their plantings might someday be a natural spite fence.

Fortunately, the Mississippi courts that heard this one all made short work of it.

Blackwell v. Lucas, 271 So. 3d 638 (Ct. App. Mississippi, Nov. 20, 2018): The Lucases planted some plants and shrubs in the front yard of their Ocean Springs, Mississippi, home. The Blackwells believed that if allowed to grow, the plants and shrubs would at some indeterminate time in the future block their view of the ocean, the sunsets and the beautiful areas normally and typically available to property owners in the Oak Bluff Subdivision.

Thus, the Blackwells asked the Lucases to remove the plants and shrubs or to retard their growth so that their view of the ocean and surrounding area would not be impaired. The Lucases, being your average reasonable American homeowners, declined courteously.

Actually, it may not have been “courteously.” The Blackwells argued that the Lucases were being mean: “The shrubs and plants installed by Mr. & Mrs. Lucas have no beneficial use and were installed and maintained by them for the purpose of annoying the Blackwells and preventing them from enjoying their property.”

The Blackwells, also being your all-too-common American homeowners, sued the Lucases for planting shrubs that “will unreasonably block the view of the Blackwells.” The term “unreasonably,” in this case, apparently meant anything that might alter the status quo in any manner the Blackwells found objectionable: “The actions of Mr. & Mrs. Lucas,” the Blackwell’s complaint alleged, “amounts [sic] to and/or equates [sic] to an invasion of the Blackwells’ interest in the use and enjoyment of their land and the invasion is intentional and unreasonable or negligent.”

Strong words, indeed! But the trial court was unimpressed, and tossed the suit out on its ear. Not taking the hint, the Blackwells appealed.

Held: The trial court’s dismissal was upheld.

The Blackwells had no common law or statutory right to an unobstructed view across the Lucases’ property, nor did they have a right to dictate the type or placement of the Lucases’ plants and shrubs. The Blackwell complaint failed to state a cause of action for a nuisance, or allege any present injury or an imminent threat of irreparable harm for which there was no adequate remedy at law.

The Court of Appeals observed that a cause of action arises out of a pre-existing primary legal right with which the law invests a person The right to maintain an action depends upon the existence of a cause of action which involves a combination of a right on the part of the plaintiff and the violation of such right by the defendant. Thus, the existence of a legal right is an essential element of a cause of action, inasmuch as a plaintiff must recover on the strength of his own case instead of on the weakness of the defendant’s case. It is the plaintiff’s right, not the the defendant’s wrongdoing, that is the basis of recovery.

That right or duty must be a legal right or duty, and not a mere moral obligation which is enforceable neither in law or in equity.

Applying the general notion to this case, the Court of Appeals observed that property owners have a legal right to cut and remove any part of a plant or shrub that grows on or overhangs their property. They have a legal right to sue to abate a nuisance. But that’s Property owners have no legally cognizable right to a view across their neighbors’ property. Nor do they have a right to dictate the type or placement of the neighbors’ shrubs.

The shrubs were not a nuisance. The Lucases would be subject to liability for a private nuisance only if their conduct is a legal cause of an invasion of the Blackwells’ interest in the private use and enjoyment of land. Again, without a legal right to a view across the property, there simply is no such interest to be invaded.

But the Blackwells tried to bootstrap their claim into a “spite fence” argument. They argued that the plants and shrubs would someday obstruct their view, and this fact gave them a viable cause of action for a “spite fence” nuisance.

The Court of Appeals held that the Blackwells’ “spite fence” claim had no basis in Mississippi law. Because the one Mississippi case on “spite febces” was decided by an evenly divided Court, “there is still no precedent for such a claim under Mississippi law. Moreover, we decline to recognize a new cause of action for a “spite fence” in a case that does not even involve a fence,” but instead only “some unspecified ‘plants and shrubs’ that, “[i]f allowed to grow,” allegedly may obstruct the Blackwells’ view.

– Tom Root

TNLBGray140407

Case of the Day – Friday, September 10, 2021

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A TALE OF TWO TALES

It is often tempting to consider only one side of a story. It makes for humor, it fuels rage, often it titillates. Indeed, it is the very basis of social media fury.

I remember the story about Dan Quayle lamenting that “I regret I didn’t study Latin harder in school so I could converse with people in Latin America.” Great yarn, illustrating just how vapid and shallow the Vice President really was. The story became much less interesting when you heard the other side.

There was another side? Well, yes. During a speech in April 1989, Representative Claudine Schneider of Rhode Island told a gathering of Republicans that she had recently attended an event at the Belgian embassy, also attended by Vice-President Quayle. They spoke to each other, and the Veep complimented the Congresswoman on her command of French.

Then, Schneider told the group, the Vice-President said, “I was recently on a tour of Latin America, and the only regret I have was that I didn’t study Latin harder in school so I could converse with those people.” Ms. Schneider intended to make a joke, something she explained at the conclusion of her speech. Somehow, the media missed the disclaimer, and presented her joke as fact.

Reading today’s case reminded me of the dangers of uncritical acceptance of one version of reality. The majority describes a mean old woman who was willing to go to great lengths to mete out woe to her nice neighbors. The dissent, on the other hand, tells about a nice widow woman who had lived in harmony with her neighbors for 40 years, until a pair of boorish neighbors upset the neighborhood, stole her property, denuded the landscape and let their dogs take dumps all over Patty’s yard. To protect herself, the widow tries to restore nature, only to be sued by the Philistines next door.

What is at once puzzling and disheartening is that the judges are reaching their conclusions from the same pool of evidence.

Tranfield v. Arcuni-English, 2019 ME 135 (Supreme Ct. of Maine, Aug. 15, 2019): A nasty neighbor, an old battleaxe octogenarian named Patricia Arcuni-English, took an immediate disliking to her new neighbors, the Tranfields. The day the Tranfields move in, Richard knocked on Patty’s door, seeking to borrow a bit of firewood. She refused to open it. Richard took a few logs, intending to replace them later. Patty, watching from behind curtains, saw him take the wood.

[We can stop the recitation of facts right there, as far as I’m concerned. We have a term for people who take the property of others without permission, even when they later claim they intended to replace it later. We call them “thieves.” Apparently, things are different in Maine. At any rate, imagine the gall of that old woman, disliking her new neighbors because she saw them stealing her wood!]

Of course, the real factual recitation does not end there. Instead, it continues…

Later, Richard was removing a tree near a shed on his property and limbing dead branches on his property along the property boundary line. Patty approached him, furious that he would dare to cut his trees without discussing it with his neighbors first. She threatened to install a 10-foot fence to block the Tranfields’ view of the ocean. At the same time, she chewed Richard out for the Tranfields having removed a koi pond on their property and for letting their dogs do their business in her yard.

Later, while Patty was traveling, a local landscaper who works for both parties sent Patty a photo of the parties’ boundary line. The Tranfields had cleared much of the deadwood and debris on their property, opening up a view of their house to Patty. She was devastated by the Tranfields’ having cleaned up their property, and called the landscaper. She told him she needed trees and privacy, and they discussed how to do it.

A few months later, the landscaper planted 24 arborvitaes along the boundary line. The trees were 10-12 feet tall, with some shorter trees installed to create an additional row to fill in any gaps. The landscaper also installed seven 4-6’ tall pine trees near a structure on Patty’s property.

The Tranfields sued Patty, alleging that the plantings were nothing but a spite fence. They asked for damages and injunctive relief. The trial court found that Patty’s “dominant motive was to install a continuous green barrier between the two properties along the boundary line. The trees were installed without any advance notice to the Tranfields, along the portion of the boundary that would block their view and without considering other types of vegetation that could provide her privacy without blocking entirely the slot view that the Tranfields had or without totally closing in their back yard.”

The trial court thus concluded that the mean old lady had constructed a spite fence, albeit one made of trees. It ordered Patty to remove every other pine tree along the boundary line, remove the trees that were planted as an additional row to fill in gaps, and trim all of the arborvitae to a height no greater than 10 feet. Additionally, the court prohibited her from replacing any arborvitae that die off.

Patty appealed, and the case ended up before eight judges of the Maine Supreme Court.

Held: A seven-judge majority of the Court said Patty’s arborvitae had to go.

The Court cited 17 M.R.S. § 2801, which stated, “Any fence or other structure in the nature of a fence, unnecessarily exceeding 6 feet in height, maliciously kept and maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.” The Tranfields, as the plaintiffs, bore the burden of demonstrating each of these elements by a preponderance of the evidence. However, they did not have to prove that “malice, the purpose to annoy, was the sole motive for building the fence. The plaintiff need only prove that such was the dominant motive, meaning that without that malicious motive, the fence would not have been erected or maintained.”

The Maine Supreme Court held that the Tranfields met their burden. The finding of malice, the Court said, “is supported by the history of animosity between the parties,” the fact that Patty’s “claimed reason for building a fence was not credible,” the fact that Patty installed the fence without advance notice to the Tranfields, and “the size, extent, and anticipated growth of the trees.”

The Maine Supreme Court conceded that it did “not doubt that her privacy was part of her concern,” it determined that Arcuni-English’s motive was malicious and without that motive, she would not have installed the trees as she did, even to vindicate her privacy interest.”

Patty argued the court should not have assigned a malicious motive to her because she deferred to the landscaper on decisions about what to plant and where. The trial court disagreed, noting that its analysis of whether this was a spite fence was informed by the acrimonious encounters between the parties that had occurred before any decisions concerning what to plant were made. Finally, she argued that the court erred by finding that the height of the trees unnecessarily exceeded six feet because she presented the landscaper’s uncontradicted testimony that trees of this height were necessary to protect her privacy. Simply enough, the court refused to believe the landscaper, as it had the right to do.

At the start of the trial, the court had gone to the property to see the arborvitae in question. Thus, as the Maine Supreme Court put it, the trial court “was able to weigh the testimony it heard during the trial in light of the information it acquired during that view. As its judgment indicates, the court specifically considered the number and size of the plantings, as well as Patty’s malicious motive, in finding that the trees were “unnecessarily” taller than six feet.

Thus, the Supremes held, the trial court “did not err by determining that Patty’s installation of trees on the parties’ boundary line constituted a spite fence pursuant to § 2801 because her installation of more than thirty trees, which created a dense and continuous wall, was done with malice.”

But what if Patty wasn’t a nasty old woman? A dissenting judge took a decidedly different view of the evidence, finding that “from the time they moved onto their property, Richard Tranfield and Karla Doremus-Tranfield provoked, promoted, and continued an adverse relationship with their elderly neighbor, Patricia Arcuni-English… The trial court failed to sufficiently consider the role the Tranfields’ provocations played in Ms. Arcuni-English’s efforts to restore her privacy after the Tranfields had eliminated the privacy barrier between the two properties.” Further, “the trial court’s finding that Ms. Arcuni-English requested her landscaper to plant trees “to ensure her privacy” and did not tell him “to block their view,” is inconsistent with its finding that malice – a purpose to annoy-was the dominant motive in planting the trees at issue.”

The dissenting judge seemed to me to be right on point when he said Patty, “a woman in her eighties, lives alone in the Camden residence she has occupied for more than forty years.” The very day in January 2016 the Tranfields moved in, Patty returned home to find “Mr. Tranfield apparently stealing firewood from her home. The trial court found that the Tranfields “left a note on her door” indicating that they had taken the firewood. That finding has no support in the record evidence. In any event, a note, if there ever was one, would have done little to ameliorate the bad first impression already created. The Tranfields followed up the negative start to the neighborly relationship by releasing their dogs to urinate and defecate on Ms. Arcuni-English’s property. Then, without notifying Ms. Arcuni-English, they cut a couple of trees near her property.”

After Patty threatened to build a fence to block the Tranfields’ view of the ocean, while she was away from her residence, the Tranfields chopped down the barrier of greenery on their property that had provided privacy to Patty’s home for several decades. When Patty found out, she was “devastated.” So, as the dissent put it, “she called the landscaper and said, ‘I need trees’.”

The dissent complained that the trial court specifically found that Patty “never told [the landscaper] to block their view…” The landscaper “was her agent when he sent the photo to her of the trees cut down. She only said she needed trees and privacy and directed [the landscaper] to install trees but left to him decisions concerning what trees and where to place them to ensure her privacy.” Even the trial court found that it “does not doubt that her privacy was part of her concern.”

The dissent complained that the spite fence statute “does not appear to contemplate the situation, as occurred in this case, where the adversity in the relationship that the court found led to the planting of the trees was provoked, at least in part, by the hostile actions of the plaintiffs, and where the ‘fence or other structure’ only replaced a barrier that previously existed.

Additionally, the dissent wondered how the majority “could find malice the ‘dominant motive’ in planting the trees when it also found that ‘she never told [the landscaper] to block their view’ and ‘left to him decisions concerning what trees and where to plant them to ensure her privacy’.”

The question will remain rhetorical, because the wood-taking Tranfields convinced a majority of the judges that Patty was a mean old woman and they were well-meaning, innocent neighbors.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, September 9, 2021

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HAWAII SINGS HAWAII

Regular readers know that I write often about the Hawaii Rule, easily the second most cited rule in arborculture law. But for all of that, the great State of Hawaii has not expounded on the seminal holding in Whitesell v. Houlton, the decision that most famously rejected the second prong of the Massachusetts Rule by holding that when a landowner’s tree became a nuisance to his or her neighbor, the neighbor could compel the landowner to abate the nuisance – that’s legalese for remove the tree or at least the part of the tree that was bedeviling the adjoining property owner – at the landowner’s expense.

Whitesell, which adopted a rule from an old Virginia case, Smith v. Holt, held that a tree was a nuisance if it was “noxious” or if there was an imminent danger of it causing, “sensible harm” to property other than plant life other than by “casting shade or dropping leaves, flowers, or fruit.” “Sensible harm” is a standard not causing much confusion: tree roots heaving basement walls, danger trees about to fall on nearby cars and structures – it has always been reasonably obvious what “sensible harm” might be. But what might Whitesell’s reference to “noxious” trees be all about?

About 35 years after Whitesell, a Hawaii court has finally tackled the question, interpreting Whitesell and providing a rare glimpse at a court admitting that its own precedent – if not wrong – at least was a bit too frisky. Not that I am surprised, it turns out that Whitesell’s reference to noxious trees” was meaningless surplusage, language borrowed without much consideration from a since-discredited Virginia decision.

No one ever expected a litigant to latch on to the “noxious” half of Whitesell’s disjunctive definition in order to make his case. When the plaintiff in today’s case did just that, the appellate court was compelled to admit that Whitesell’s inclusion of ‘noxious’ was “superfluous.” Translation: Whitesell said ‘noxious’, but it did not mean it.

The appellate court in today’s case did the only thing it could: it decided to “modify [the] holding in Whitesell for when a plant can be considered a nuisance. Plants whose overhanging branches cast shade or drop leaves, flowers, or fruit, or whose roots interfere only with other plant life, are not nuisances. Overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, material harm to a person or to property other than plant life.”

Good idea, even if it’s 35 years late. Get rid of the ‘noxious’ language. If the tree is noxious, it probably already poses an imminent to people or property. And that is exactly what a non-noxious tree does when it has become a nuisance.

For heaven’s sake, simply define the tree by the imminent threat it represents, not with some squishy term like ‘noxious’.

Spittler v. Charbonneau, 145 Haw. 204, 449 P.3d 1202 (Ct. App. 2019). Scott Spittler sued his neighbor Paul and Janice Charbonneau, raising all sorts of trespass, nuisance and related claims. The claims relevant here is his claim that the Charbonneaus’ ironwood trees, planted in 1983 as windbreaks under a U.S. Dept. of Agriculture program, were dropping leaves and branches on his property, and had “an extensive root system, have created a poor growing environment, and continue to present danger to person, real property, and agricultural products of [Spittler].” For good measure, he also claimed that the trees were ‘noxious,’ based upon a “high risk” rating of “12” contained in the Hawaii Pacific Weed Risk Assessment website. He demanded that the Charbonneaus remove the trees at their expense.

The trial court held for the Charbonneaus, finding that “the intrusion by way of overhanging branches, leaves and roots into Scott’s property that results in damage to plant life is not a nuisance and not compensable..”

Scott appealed.

Held: The trees were neither noxious nor nuisances. What’s more, Whitesell’s reference to noxious trees being nuisances is surplusage that should be stricken from the decision.

The Court observed with some surprised that “in a state known for its lush foliage, there appears to be only one reported appellate decision, Whitesell v. Houlton, addressing when a plant that naturally encroaches upon a neighboring property can constitute a nuisance. Whitesell adopted a modified version of the Virginia rule set forth in Smith v. Holt, which was later overruled in part by Fancher v. Fagella. Borrowing from Smith v. Holt, Whitesell held that “non-noxious plants ordinarily are not nuisances… Overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

Thus, according to Whitesell, the Charbonneaus’ trees could be considered a nuisance if: (1) they were “noxious”; or (2) they caused, or there was an imminent danger of them causing, “sensible harm” to property other than plant life other than by “casting shade or dropping leaves, flowers, or fruit.”

“In Whitesell,” the Court said, “we did not define the word ‘noxious’ or formulate a test to determine when a plant could be considered ‘noxious.’ The difficulty inherent with characterizing a plant as ‘noxious’ is illustrated by this case. Scott argues that ironwood trees are “noxious” based upon a “high risk” rating of “12” contained in the Hawaii Pacific Weed Risk Assessment website. That website does not use the word “noxious” and states only that the “small-cone ironwood” is “[u]sed in [Hawai’i] for windbreaks at higher elevations. Wood used for fuel.” It does not indicate that the ironwood is “physically harmful or destructive to living beings,” which is the definition of “noxious” contained in the Merriam-Webster dictionary.” The Court noted that some Hawaii cases had characterized some other flora as being noxious, but ironwood trees weren’t on anyone’s list except for Scott’s.

The Court sheepishly admitted that “[o]ur use of the word “non-noxious” in Whitesell was superfluous. A noxious plant — i.e., one that is “physically harmful or destructive to living beings” — is one that actually causes, or that could pose an imminent danger of causing, material harm to persons or to property other than plant life; conversely, a plant that actually causes, or that poses an imminent danger of causing, material harm to persons or property other than plant life may be considered noxious. We note that certain plants, such as coconut palms, are capable of causing material injury to persons or to property other than plant life just by dropping fronds or nuts. We also note that tree roots can, under some circumstances, pose imminent trip hazards without damaging property other than plant life. We therefore modify our holding in Whitesell for when a plant can be considered a nuisance. Plants whose overhanging branches cast shade or drop leaves, flowers, or fruit, or whose roots interfere only with other plant life, are not nuisances. Overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, material harm to a person or to property other than plant life. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, harm to a person or to property other than plant life, the damaged or imminently endangered neighbor may require the tree’s owner to pay for the damage and to cut back the endangering branches or roots and, if that is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

The only dispute before the court alleged the ironwoods dropped “overhanging branches which merely cast shade or drop leaves, flowers, or fruit,” and “roots which interfere only with other plant life.” Under those facts, the Charbonneaus’ trees were not a nuisance…

– Tom Root

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