Case of the Day – Tuesday, November 13, 2018


Hawkins v. McGee - the case of the hairy hand

Hawkins v. McGee – the case of the hairy hand

There’s always a tension between the value that a lover of the land places on his or her trees and the price tag affixed to those same trees by the green-eyeshade crowd of financial experts testifying in some cold courtroom.

The general rule is that the measure of damages when trees are wrongfully cut should be the difference between the value of the property before the trees were removed and the value after the trees are taken down. Fans of the ol’ case of the hairy hand (Hawkins v. McGee) from law school remember the general diminution of value concept. Notwithstanding this staple of first-year contracts class, courts in many states have carved out exceptions to the rule for situations just like today’s case.

The problem usually arises when only a relatively few trees of limited commercial value are removed or destroyed. In today’s case, an Episcopal Church lost 22 small trees when a contractor dumped too much fill dirt – taken from a road construction project – around their bases. The Church proved in court that replacing the trees — a couple cherry trees and a score of red oaks — would cost just over $17,000. But the trial court threw the case out, because it believed that the replacement costs weren’t relevant. Rather, the trial court said, the Church was obligated to prove how much less its land was worth with the trees gone.

The "tree volcano" ... pile dirt around the base, and suffocate the sapling.

The “tree volcano” … pile dirt around the base, and suffocate the sapling. The Church lost 22 trees this way.

Holy birch bark! The problem was that the worth of the property hadn’t fallen much, it being close to a road and of limited use (there’s not that much of a market for church properties). But the Church didn’t want the diminution in property’s value for its collection plate: it wanted its trees back. The Minnesota Supreme Court had mercy on the Church, holding that where the trees served a function that was primarily aesthetic, replacement cost was a fair calculation.

Sometimes justice can’t be done by using the cold, analytical diminution-of-value approach. Occasionally, the wronged owner just plain likes the trees that had been taken, and who’s to say that because the loss may be measured psychologically rather than economically, the damaged party shouldn’t be compensated. We always thought that in such cases, the wrongdoer should be held to lose much of his or her moral standing to complain about how injured the injured party is. In this case, the Court said, that the owner’s enjoyment of the trees might not be quantifiable in a real-estate-value analysis just didn’t matter. (The second case we studied in law school, Peevyhouse v. Garland Coal & Mining Co., has always illustrated the mischief that can be done when a court ignores the aesthetic expectations of the wronged party).

The decision is necessary in the world of tree law, because otherwise, too many cases would founder on the rocks of damages: too many malefactors could cut down too many trees, and the likely penalties, even with treble damages available, would not deter the conduct.

Rector, Wardens & Vestry of St. Christopher’s Episcopal Church v. C.S. McCrossan, Inc., 306 Minn. 143, 235 N.W.2d 609 (Sup.Ct. Minn. 1975). When the Minnesota Department of Highways took about 8/10ths of an acre from St. Christopher’s to enlarge the intersection, the church lost its existing access and part of its parking area. The Rector hired C.S. McCrossan to construct a new parking space and access road.

irrelevant150123A grove of trees was located at the north end of the lot. In the process of grading, McCrossan dumped fill around the base of the trees, which the church argued caused the trees — two black cherry trees and twenty red oaks — to suffocate and die. The church’s expert testified that because of the variety, size, and condition of the trees, they had a total value of $17,267.

The church asserted that the grove of trees not only acted to screen the area from heavy traffic on two sides, but also gave the area a natural, pleasing, aesthetic, wooded atmosphere. The trial court directed a verdict for C.S. McCrossan on ground that church failed to prove damage based on diminution in value of real estate.

The church appealed.

Held: The decision was reversed. The Minnesota Supreme Court ruled that the proper measure of damages for negligence in suffocating the trees was the replacement cost of trees rather than merely the loss of value of the real estate, notwithstanding the inability of the church to prove that destruction of trees diminished the value of the property as a whole. The replacement cost of trees that have an aesthetic value to the owner as ornamental and shade trees or for purposes of screening sound and providing privacy may be considered in determining damage incurred from the destruction of the trees, to extent that the cost is reasonable and practical.

Although evidence may be presented in rebuttal that the effect on the value of land as a whole is minimal, it is for the jury to balance elements of damage in arriving at a just and reasonable award.

– Tom Root


And Now The News …

San Francisco, California, Chronicle, November 12, 2018: Why California burns — its forests have too many trees

The reason wildfires are burning California with unprecedented ferocity this year is because our public forests are so thick. It is our fault. We don’t manage our forests, we just let them grow. That is the simple truth. However, it is easier to deny the truth and blame a warming climate instead of admitting our guilt and taking action to prevent wildfires. Hot, dry weather doesn’t cause catastrophic wildfires. It only makes them worse. In order for any fire to burn, it must have fuel. To spread wildly, it must have abundant fuel. Efforts in the 20th century to prevent fire and preserve forests have been too successful — they have disrupted the ecological balance and allowed more and more trees to grow. Some California forests have more than 1,000 trees per acre when 40 to 60 trees per acre would be ideal. These overcrowded forests are filled with dead trees, piles of logs, and thickets of small trees. The perfect conditions for severe wildfires…

San Diego, California, KGTV, November 12, 2018: Dangerous trees scheduled to be cut down at Spreckels Park

Five trees at Coronado’s Spreckels Park may need to be cut down before they fall down. The trees, all of them Sugar Gum Eucalyptus, are either at “High” or “Moderate” risk of failure, according to an arborist’s report presented to the City Council last week. One tree, the one deemed the highest risk, is already scheduled for demolition. That will happen Tuesday, starting at 6 am. That tree is in the Northeast corner of the park. The other four will be monitored, including two trees with branches that hang over the children’s playground. The city hired West Coast Arborist to study all 95 trees in the park after a pine tree collapsed in September. City Code gives the Department of Public Services the authority to decide which trees should or should not be cut down. According to the rules, trees will be removed if they present, “a condition that is hazardous, are in declining or poor health and the condition cannot be corrected by pruning or any other means…”

Eau Claire, Wisconsin, Leader-Telegram, November 12, 2018: Ready for the Holidays: Christmastime preparations come early for Barron County tree farm

Thanksgiving turkeys are yet to be carved, but it’s already beginning to look a lot like Christmas at Snowshoe Valley Christmas Tree Farm north of Almena. Like a pair of Santa’s most industrious elves, Joe and Sue Clark already are weeks deep into preparations to welcome people in search of the perfect centerpiece for holiday gatherings. With some 11,000 trees on 10 acres from which to choose, they’re likely to find it at Snowshoe Valley. “The best part … is all your customers are coming here and they’re happy; you always have happy customers,” Joe said. “It’s a memory they won’t forget, and you see the generations coming back.” Joe said his parents bought this Barron County farm when he was 12 years old, operating it as a small dairy. When Joe took over, he modified the barn into a shop, keeping seven stanchions “just in case.” But it wasn’t long before notions of milking cows were relegated to the past. He started planting trees in 1987 and offered his first Christmas trees for sale in 2001. “When we bought the farm, the fields where trees are were all ag,” Joe said, adding that they rented the land out to a neighbor for corn, hay and other crops…

Albuquerque, New Mexico, KRQE-TV, November 12, 2018: Squatters refuse to leave New Mexico homeowner’s house

It’s like a nightmare for some New Mexico homeowners after squatters moved into their vacant home, and then refused to leave. “I felt the sense of hopelessness,” said Willis Johnston. A mess of a situation is finally behind these Carlsbad homeowners, but it took months of fighting. “Shock and utter disbelief. I could not believe that someone would stoop so low,” said his wife, Aimee Johnston. Complete strangers turned the Johnstons’ house into their home, acting like they owned it, even without a deed. “She said I own the property, I have a tax receipt. That’s their M-O,” said Willis Johnston. Willis Johnston lived in the house on Oak Street as a boy, and inherited it from his grandmother after she died in 2005. “One of the great possibilities is, is they’re watching the obituaries in the newspaper,” he said…

Roanoke, Virginia, WDBJ-TV, November 8, 2018: Bent Mountain tree sitters face charges in Roanoke County courtroom

“Stand with Red” became a rallying cry for opponents of the Mountain Valley Pipeline. On Thursday afternoon, Red and Minor Terry had a crowd of supporters when the two tree-sitters faced misdemeanor charges in Roanoke County General District Court. The mother and daughter climbed into their tree stands in early April, in an effort to prevent crews from cutting trees on their property. And they came down in early May, after a federal judge found them in contempt and threatened hefty fines. During the hearing Thursday, their attorney Tom Bondurant questioned officers about the police presence on the Terry property… Minor Terry said the women began their protest after a deadline for cutting in areas with endangered bats passed at the end of March. And she said they came down after a federal judge ruled against them…

Cincinnati, Ohio, Enquirer, November 8, 2018: When and why you should trim your trees and shrubs

Here is the most often asked question in mid to late fall: is it ok to prune my trees and shrubs now’? It’s as if many homeowners are frustrated barbers that, like their own hair, their plants need to be trimmed several times a year, while some may think just once.   All plants need some yearly pruning. Why do we need to prune our trees and shrubs? 1. We believe all trees and shrubs should look like bowling balls, nice and round. 2. You brought a cute little Sweet Bay Magnolia and now 7 years later, you can’t see the house.  3. Got a new chainsaw for my birthday and should use it often to please the gift giver, Me! 4. My trees are getting too tall There are other reasons you might have and there are a few good reasons that pruning and lopping shears should be used, but only when needed and not for an annual ritual. Pruning can be a very intimidating process for most homeowners.  Let’s take away some of the causes of that fear…

Minneapolis, Minnesota, WCCO-TV, November 8, 2018: Rogers Tree Trimmer Opens Up About Nearly Drowning

A tree trimmer who got pinned in a pond last spring shares his story for the first time. Willie Hamer almost drowned when his arm got stuck under his cherry picker in Rogers. Eight months later, he’s navigating a new life– but he’s not alone. Hamer doesn’t know exactly how a cherry picker in his backyard slipped down the hill, forcing him into the water. “I didn’t see it coming at me. My back was turned to the machine and it came down and hit me from the back,” he said. Suddenly Willie was trapped with just his nose and eyes above the icy water, with his arm pinned under 6,000 pounds of equipment. By the time police got there, the cold was already taking its toll. “Luckily, I had the jacket on at the time because if I had just a T-shirt, I would have froze to death. I was dying,” Hamer said. After several attempts to move the cherry picker, Rogers Police Chief Jeff Beahen ordered everyone out of the pond to lower the water level on Hamer. He got in with a cold water rescue suit and kept Hamer alert…

Greenfield, Massachusetts, Recorder, November 8, 2018: ‘Untouched’ not always best forestry plan

One hundred and ten years ago, a major forest fire swept through Wendell State Forest, resetting the forest ecosystem with new trees of a uniform age. One hundred and ten years later, this 88-acre parcel is cherished by many residents “as a living, wild and natural asset” with towering oaks that are approaching “old growth” status. Beyond the benefits of scenic beauty, wildlife habitat and recreation, the forest helps deter climate change by sequestering carbon in its trees. So when the Massachusetts Department of Conservation and Recreation announced, in 2016, its plan to start timber harvesting in Wendell State Forest, opposition by nonprofit groups like RESTORE: The North Woods, the Partnership for Policy Integrity, the Wendell Historical Commission and private citizens quickly coalesced. The protesters’ campaign included weekly vigils along Route 2 in Erving, a notice of intent by at least one protester to sue the DCR, and a petition with 1,148 signatures delivered to Gov. Charlie Baker asking the governor to spare this “stately, 80-acre old oak forest that is just beginning to reach an old-growth condition — something that is rare in Massachusetts. Located between the two ponds, this forest is one of the most visited and cherished areas in the state forest, and we want it to remain exactly as it is — untouched by human interference.” Last week, state officials delivered their response — “No” — along with the rationale behind it. According to DCR’s experts, “untouched by human interference” is not necessarily the best course for forest management nor the best response to climate change…

Greensboro, North Carolina, WGHP-TV, November 7, 2018: Burlington neighbors heartbroken that historic trees must be removed because of safety concerns

Some of Burlington’s most attractive homes are in the West Davis Street/Fountain Place Historic District. Jeff Parsons is Burlington’s cemetery and grounds superintendent. To him, what really stands out about the community are the trees. “When folks want to show off Burlington, you come down to Davis and Fountain Place,” Parsons said. Massive oak trees line West Davis Street. Some say the trees were planted over 70 years ago to honor local World War II veterans. The oaks and some maples were planted with the best intentions. But now, the tall trees are a growing problem. ​”Didn’t expect any damage,” Parsons said. “I just happened to find the tree one morning. It blew over and onto the property.” No one was hurt and no homes were damaged when the tree fell into a homeowner’s yard in early September. But a stretch of bright white cement shows were Burlington repair crews fixed the sidewalk after the root ball of the giant tree tore through the walkway. After the early September event, City of Burlington staff along with a certified arborist tested 26 huge trees that were in the city’s right of way. Eleven trees, mostly oaks, were declared unsafe, marked with a pink dot and scheduled for removal…

Sonoma, California, Napa Valley Register, November 7, 2018: Microbursts can blow down trees in the mountains

A couple of weeks ago I saw one patch of lodgepole pine trees on the side of the mountain that had all blown down. The trees were all pointing in the same direction. It was like a giant Paul Bunyon had chopped down a bunch of trees all at once with a huge ax. The downed trees made me wonder: What had caused only that one patch of timber to fall while all of the other trees around it were still standing? Sometimes trees are blown over by what’s known as a microburst. A microburst is a strong downward draft of wind. That wind can reach 60 mph as it speeds to earth. When the wind hits the ground it’s like water splashing out in all directions. When the wind splashes it may move even faster, creating straight winds that can blow at speeds up to 120 mph. Seems like either one of those speedy winds could take down a shallow-rooted lodgepole pine…

Galveston, Texas, Daily News, November 8, 2018: Golden rain trees handsome, but also troublesome

Recently, some strikingly-handsome trees have appeared around the island to much acclaim, known as golden rain tree or Chinese lantern tree (Koelreuteria paniculata). These trees are indeed impressive in the landscape with beautiful summer and fall color. There’s good news — and bad news — about this tree. First the good news. Golden rain tree is a small- to medium-sized landscape tree that’s native to eastern Asia. It was introduced to Europe and North America in the mid-18th century, and is a popular landscape tree worldwide. It usually has low branches with a rounded crown, reaching 30-feet tall and wide with an open and often multi-trunked growth habit. Early to mid-summer is when the show begins, with the appearance of long spikes of bright yellow flowers. When the flowers fall they shower the ground with their color, giving the tree its name. Blossoms are followed in late summer by 1- to 2-inch light green seed pods that look like Chinese lanterns that ripen orange to pink, and then to brown as they persist through fall and winter. These seed pods are the showoffs right now…

Lewiston, Idaho, Tribune, November 7, 2018: Consider tree season

With increasing urgency, arborists and urban foresters are studying trees in cities, public gardens, parks and the countryside to try to determine which trees are the most adaptable to changing climate conditions, including extreme weather events such as droughts and flooding. The Chicago Botanic Garden started its Trees for 2050 project specifically to help the garden decide how to replace about 400 trees recently lost to infestations of the emerald ash borer. Of 50 different kinds of trees at the botanic garden, the study found that 40 of the native and well-adapted exotic species remain good choices until 2050, says Phil Douglas, curator of woody plants at the garden. By 2080, as the climate continues to change, only 11 of the species in the initial study will continue to thrive in Chicago and the Upper Midwest, he says. The Garden’s research resulted in an interactive online database to help residents of Chicago — and throughout the Midwest — make the best choices for their home gardens. Gingko, pecan, zelkova and parrotia trees are among the most adaptable and viable trees for the long term in the Midwest, Douglas says, but these trees are just a starting point. Much more work needs to be done to identify the best trees for the Midwest’s changing climate, and for every area of the country. Shawn Kingzette, an arborist with the Davey Tree Expert Company and a regional manager for the company in the Chicago area, recommends diversity, above all, to help ensure a future with healthy trees. “It’s not enough to plant native trees that can resist bugs and blights,” he says. “Natives are susceptible, too…”


Case of the Day – Friday, November 9, 2018


Trespass … the concept has been around for a long time. The Israelites trespassed in the Promised Land. Just ask the residents of Jericho. The Romans trespassed throughout the known world. The Pilgrims trespassed on some prime real estate, as the descendants of the Wampanoag tribe will attest. Piglet, Winnie the Pooh’s sidekick, explained to the befuddled bear that his ancestor, “Trespassers William,” was remembered in the Hundred Acre Wood by a memorial sign emblazoned with “Trespasser Will.”

Most famously, Jesus advised us to forgive those who have trespassed against us. Alas, as today’s case illustrates, that advice – like much of His teachings – are honored in the breach.

Trespass is most readily defined as unauthorized personal intrusion on land in possession of another by a wrongdoer, or by his failure to leave such land, or by throwing or placing something on such land, or by causing the entry of some other person onto such land. Because the law of trespass pops up time and again in tree cases – where some canny lawyer tries to turn the intrusion of branches over or roots under the property of another person into a trespass – it’s a good idea to brush up on the doctrine every now and then.

sodarockwine150120So pour yourself a glass of Soda Rock cabernet sauvignon, vintage 2010, and consider a recent case involving boundary dispute between Napa Valley vineyard and adjacent winery operators. About 15 years ago, Ken and Diane Wilson bought a decrepit century-old winery building north of San Francisco. Over a decade, they restored it into a thriving winery, complete with tasting rooms and amusements for oenophiles.

The rear of the winery building backs up to a vineyard belonging to Belle Terre Ranch, with a pathway or “avenue” between. A line of oak trees runs behind the winery within about four feet of the building. Thanks to the ubiquity of satellites (look up and smile!), we are able to easily understand the layout, and thus the nature of the Wilsons’ problem with the neighbors.

sodacreek150121During the reconstruction, the Wilsons regularly used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment involved in the reconstruction. Belle Terre also used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain, because it was just trying to be neighborly. Belle Terre’s permission to use the avenue was not intended to be perpetual, but rather just “to repair the winery.”

When the Wilsons applied for permits to complete the winery renovation, Belle Terre raised concerns with the county about trespass by wine-tasting patrons. One of its concerns was that a “survey should be done before a permit is issued.”

Knowing they would need a survey to plan the reconstruction, in January 2003 the Wilsons commissioned a surveyor. His survey showed the Belle Terre-Soda Rock boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

Five years later, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, dust that was settling on the grapevines and damaging the grapes. Wilson replied that the property line was about nine feet out from the winery, saying he had had it surveyed. After this confrontation, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, a line that closely corresponded to the line of oak trees.

Belle Terre’s attorney wrote a letter to the Wilsons in August 2008, telling them to stop trespassing on Belle Terre’s property. When the Wilsons continued to use the avenue, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages.

The Wilsons claimed they owned the nine-foot strip of land, and denying they were claiming any interest in Belle Terre’s property. At trial, however, the Wilsons claimed in the alternative a prescriptive easement over the disputed strip of land.

The trial was a battle of the surveyors. When the dust settled (on the grape leaves, no doubt), the trial court found in favor of Belle Terre, and issued judgment quieting title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees in the amount of nearly $117,000 under Code of Civil Procedure § 1021.9.

sodacreek2-150121On appeal, the Wilsons argued vociferously against the propriety of the $1.00 in damages, for the very good reason that if there were no damages awarded, there could be no attorney’s fees awarded.

The California Court of Appeals upheld the judgment in favor of Belle Terre Ranch, ruling that the Wilsons were permanently enjoined from trespassing in Belle Terre’s vineyard. Likewise, the Court said, where there’s a trespass, there are always damages, even if they’re not proven. Property owners possess a “dignitary interest in the inviolability” of their property rights, the Court said. Thus, “every trespass is an invasion of a legal right of another and carries with it the right to nominal damages,” even if actual damages weren’t proven.

Such damages were not proven, in this case, probably because damages were an afterthought to Belle Terre – it started out the case just wanting a court to tell Wilsons to swill their wine somewhere besides on the “avenue.” We suspect that only when their lawyers’ bills started skyrocketing past $10,000 to $50,000 to north of $100,000, did the notion of getting someone else to pay the mouthpiece take hold.

About then, we surmise, one of Belle Terre’s lawyers found a provision in California law that held that in “any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.” The law was intended to give farmers and ranchers a meaningful remedy for damage caused by trespassers breaking through fences to take motor vehicles onto private property. The statute was designed “to enhance the ability of ranchers to sue trespassers for damages, particularly in those cases where the rancher must now either compromise a significant portion of a valid claim by suing in small claims court… or by spending a major share of the recovery to pay his or her attorney.” Sweet! Suddenly, money became a driver in the case, at least enough money to pay learned counsel.

Because Belle Terre did not focus on damages, the trial court just found nominal damages of a buck. That was enough, the judge said, to assess the $117,000 in legal fees against the Wilsons.

Not so, the Court of Appeals held. After a lengthy opinion that appeared to be thoroughly crushing the Wilsons’ grapes, the Court revered the legal fees holding, thus turning a Mad Dog 20/20 opinion into a Clos Des Papes Chateauneuf-du-Pape 2012. The Court concluded that Cal. CCP § 1021.9 permitted the award of attorney fees only where there had been real damages, not just nominal or assumed damages.

Here, the Court said, the parties were primarily litigating a boundary dispute upon which a trespass claim depended, not the classic trespass case that an aggrieved rancher on a budget might need Cal. CCP § 1021.9 in order to pursue. There was no evidence of actual damage to the Belle Terre vineyards, and thus, while the $1.00 nominal damages stood, the attorney fees did not.

The lesson here – never overlook the benefit of proving actual damages. No doubt Belle Terre started out disclaiming any interest in proving damages. Had it proved even a dollar’s worth of damage from dust on the vines, ruts in the avenue, or anything else, its legal fees would have been covered.

Belle Terre Ranch, Inc. v. Wilson, Case No. A137217 (Ct.App.Cal. 1st Appel. Div., Jan. 13, 2015): Ken and Diane Wilson bought a rundown century-old winery building near Healdsburg, California, in 2001. Over a 10-year period, they restored it and opened a winery and retail operation.

The winery building backs up to a vineyard belonging to Belle Terre Ranch, with an unpaved “avenue” between them. A line of oak trees stands behind the winery within about four feet of the building. During the reconstruction, the Wilsons used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment. At the same time, Belle Terre used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain about the Wilsons’ usage for construction, but the permission was not intended to be perpetual.

The Wilsons commissioned a survey in order to plan the reconstruction of the winery. The survey showed the boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

In about 2008, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, which was settling on the grapevines, damaging the crops. At this time, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, and it closely corresponded to the line of oak trees.

After Belle Terre’s demands that the Wilsons stop using the avenue went unheeded, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages. The trial court found for Belle Terre, rejecting the Wilsons’ survey as flawed. It quieted title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees of about $117,000.

Napa Valley - idyllic, except when litigation rears its ugly head.

Napa Valley – idyllic, except when litigation rears its ugly head.

The Court of Appeals upheld the judgment in favor of Belle Terre Ranch, enjoining the Wilsons from trespassing in Belle Terre’s vineyard. It held that Belle Terre met its burden of proving the Wilsons intentionally, recklessly or negligently entered Belle Terre’s property or caused another to do so. There was evidence the Wilsons continued to trespass on Belle Terre’s property even after Belle Terre’s lawyer sent them a letter demanding that they cease. Trucks engaged in the Wilson remodel were photographed trespassing on Belle Terre’s property even past the nine-foot disputed area, and a dumpster used for the Wilson construction was placed over the nine-foot line. Belle Terre testified that the Wilsons discharged what appeared to be “gray water” onto Belle Terre’s property and also destroyed a wildlife habitat. A construction worker from Soda Rock also was seen trespassing into Belle Terre’s vineyard. The Wilsons argued there was “no evidence” linking the work performed by “unidentified construction workers” with the Wilsons’ land or improvements, but the court called this argument “patently absurd.”

The Court held that every trespass upon real property the law presumed nominal damages where actual damages are not shown. “Because property owners possess a ‘dignitary interest in the inviolability’ of their property rights. The Court said that damages, even though nominal, are considered necessary to support a judgment in a trespass tort action since it is essentially an action for damages.

However, the nominal damages will not support an award of legal fees. Here, nominal damages were awarded without proof of actual injury to real or personal property. Based on the plain language of the statute, the Court concluded an award of attorney fees is not available on the facts before us.

Nominal damages have been described as “symbolic” and are often awarded “[w]here there is no loss or injury to be compensated but where the law still recognizes a technical invasion of a plaintiff’s rights or a breach of a defendant’s duty.” In this case, Belle Terre did not present any evidence of damages to personal or real property nor were compensatory damages claimed in the prayer for relief. The Court said that award of nominal damages in the trespass action was intended to redress intangible harm to the “dignitary interests” of the landowner personally, and not injury to the land or to his personal property. In this case, the parties were primarily litigating a boundary dispute upon which the trespass claim depended. Although the Wilsons’ acts of trespass onto Belle Terre’s land arguably supported an award of nominal damages, the Court said, there is no evidence of any actual damage to Belle Terre’s property that would trigger the provisions of section 1021.9.

In cases falling within the intent of the statute, there must be some tangible harm done to real or personal property as a result of the trespass.

– Tom Root


Case of the Day – Thursday, November 8, 2018


Robert E. Lee, a man torn between duty to country and to his home state, once saidDuty is the most sublime word in our language. Do your duty in all things. You cannot do more. You should never wish to do less.”

Judges must remind themselves of that often, as they are called upon to apply laws they believe are ill-conceived in cases where the outcome seems less than just to them. The Rhode Island Supreme Court faced that unpleasant task a decade ago, being required to send an injured citizen home empty-handed after an accident at a state facility. The Rhode Island statute in question, the State’s Recreational Use Statute, gives unusually broad immunity to governmental units, classifying the people who use parks and other facilities as little more than trespassers.

Agree or not with the Court’s discomfiture at treating a user of a state recreational facility as a trespasser, one must nevertheless admire the Court’s careful application of the law, coupled with its repeated solicitation of the legislature to correct what a majority of the state’s high court sees as short-sighted policy. Clearly, the judges didn’t like what the law compelled them to do… but they saw the only remedy for that as laying with the legislature.

Labedz v. State, 919 A.2d 415 (Sup.Ct. R.I. 2007). Antonina Labedz was walking along a concrete path at Scarborough Beach, a state-owned beach located in Narragansett, Rhode Island. She tripped on an uneven surface and fell to the ground, breaking her wrist. She sued, alleging the State was negligent in “permitting a dangerous uneven condition to exist on a portion of walkway and failing to warn invitees … of the dangerous condition on the premises.” The trial court found that the State was shielded from liability by virtue of the Recreational Use Statute. Labedz appealed.

How did Ms. Labedz miss that hole? Or was the City negligent? We'll never know, because sovereign immunity stopped this lawsuit in its tracks.

How did Ms. Labedz miss that hole? Or was the City negligent? We’ll never know, because sovereign immunity stopped this lawsuit in its tracks.

Held: The State was not liable. Labedz argued that the Supreme Court should reverse prior cases which gave the State broad exemption from liability. But the Court rejected her position, noting that it had been unequivocal in its view that the unambiguous language of the 1996 amendment to the Recreational Use Statute clearly reflects the General Assembly’s intent to extend to the state and municipalities the limitations on liability afforded by that statute, most recently in Lacey v. Reitsma. The Court took the opportunity again to note its “concern about the troubling result that we felt obliged to reach by virtue of our reading of the Recreational Use Statute, and we urged the General Assembly to revisit the provisions of that statute concerning state and municipal immunity.” The Court felt uncomfortable with a statute that classified users of state and municipal recreational sites “as though they were trespassers.”

judge151022Labedz also argued that the trial court was wrong to grant summary judgment where the State could have been found liable if its conduct had been willful or malicious. She had alleged as much in her complaint, but she advanced no evidence to support her claim. But Labedz argued that it was the jury’s duty to find whether the conduct had been willful or malicious, and the trial court shouldn’t have taken away that duty by granting summary judgment without a trial. The Court ruled that if the facts were not genuinely disputed, as in this case, the law is pretty settled that a trial court may proceed to determine the existence of any legal duty without assistance from the jury.

Here, Labedz couldn’t point to any evidence that suggested the State acted willfully or maliciously, as those terms are used in the Recreational Use Statute. Summary judgment for the State was appropriate, albeit not cheerfully granted.

– Tom Root


Case of the Day – Wednesday, November 7, 2018


From the annals of neighborly chutzpah comes this tale of unmitigated gall. (Is there ever mitigated gall? Perhaps a question for another time.)

Implied view easements get a deservedly tough rap in this country. You can grant such an easement to a neighbor, and the courts will enforce it. But that is hardly ever the case, except in planned communities, where restrictive covenants control from the color of your house to whether you can have kids that aren’t cute.

Usually, it is a case where the neighbors have an expectation that nothing will ever change once they buy their property. Trees won’t grow, new buildings won’t go up, a new Dollar Tree won’t be built across the street. When life goes on, they respond with a suit alleging that life is spoiling the view.

But today’s case takes the cake. Here, the neighbors were accused of spoiling the view the plaintiffs anticipated someday having if they ever got around to building a patio from which to have a view. In other words, you can’t have it because I might want it someday.

There’s a good reason (besides slamming down uppity neighbors) such implied easements are never found to exist. Imagine the confusion. A buyer could identify all of the written easements on the land, but he or she could never know what unwritten easements in favor of presumptuous neighbors might be lurking out there. And the lenders could not be sure, either. Pretty soon, getting financing would be much tougher, finding willing buyers would be much more complex, and before you know, progress grinds to a halt.

It may seem crass and commercial, but recall the real estate market of seven years ago. No one is served by a return to that.

Kruger v. Shramek, 5 Neb.App. 802 (Neb.App. 1997). Eric and Ann Kruger bought a lot in the Eagle Run West subdivision of Omaha in late 1991. Two years later, John and tammy Shramek bout the lot next door. The Krugers preferred to savor the thought of building a house, while the Shrameks – a pair of go-getters – got right on it.

Both lots abut the picturesque 18th hole of the Champions Golf Course. When the Shrameks started building, they reviewed their plans with the subdivision developer, who approved them. The Krugers were another story. They complained about a change of water flow caused by the Shramek’s regrading. They complained about the fence. Mostly, they complained that the Shramek’s landscaping would ruin the view of the 18th hole from their yet-to-be-constructed patio.

The Shrameks tried to accommodate their would-be neighbors. They moved their downspouts underground and ran them to the golf course. They changed removed a berm, transplanted trees closer to their house, and removed some of the fill dirt near the property line between their lot and the Krugers’ place. Nothing worked. The Krugers remained dissatisfied with the potential obstruction of the view from their hypothetical house caused by the Shrameks’ backyard improvements.

This being America, they sued for an injunction to stop the Shrameks’ from developing their property, seeking an order requiring the Shrameks to restore the rear of their property to its original grade, remove the present fence, and remove the trees. They claimed the Shrameks’ improvements were a private nuisance. The district court denied the Krugers any relief, holding that the change in grade on the Shrameks’ property actually improved the Krugers’ view of the golf course, and at any rate, the improvements made to the Shrameks’ property were not so substantial an invasion of the Krugers’ use of their property to justify the injunctive relief requested and that due to Horgan’s approval of the Shrameks’ construction.

The Krugers appealed.

Held: The Krugers got no injunction.

An injunction is an extraordinary remedy and ordinarily will not be granted except in a clear case where there is actual and substantial injury. Such a remedy should not be granted, the Court said, unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.

The Court said a private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of his or her land. Nebraska follows § 822 of the Restatement (Second) of Torts, which provides that “one is subject to liability for a private nuisance if, but only if, his or her conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land and the invasion is intentional and unreasonable. With respect to a nuisance in the context of an action in equity, the invasion of or interference with another’s private use and enjoyment of land must be substantial.”

The general rule is that a lawful building or structure cannot be complained of as a private nuisance merely because it obstructs the view of neighboring property. This rule flowed from the repudiation of the traditional English doctrine of ancient lights. Under that doctrine, a landowner acquired an easement for light 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 ancient lights doctrine as applied to claims involving views has been repudiated by every state considering it. One basis for the doctrine’s repudiation is that “it is not adapted to the conditions existing in this country and could not be applied to rapidly growing communities without working mischievous consequences to property owners.” The doctrine essentially created an unwritten negative prescriptive easement over a neighbor’s property, which would frustrate the purpose of the recording statutes, one objective of which is to ensure that all property rights are recorded and discoverable by a diligent title search.

The Court adopted the majority rule that a lawful building or structure, including landscaping improvements associated with any such building or structure, cannot be complained of as a private nuisance merely because it obstructs the view of neighboring property. “Based upon this proposition of law and our determination that the improvements made by the Shrameks were lawful,” the Court ruled, “we conclude that the district court did not err in denying the Krugers injunctive relief based on their private nuisance theory.”

– Tom Root


Case of the Day – Tuesday, November 6, 2018


I read recently that the British Army derisively referred to the SA80, its 1980s-era issue battle rifle, as “Civil Servant.” The joke (and how we love dry British humor) was that like Her Majesty’s government’s functionaries, the rifle didn’t work and could not be fired.

Not that such deprecation of government employees is peculiar to the UK. American Division of Motor Vehicles employees are legendary for their rudeness and sloth. And, as hard as it may be to believe, some people think that utility company work crews don’t have much more get-up-and-go than your average license plate pusher.

We refer to people like homeowner Greg Fenlon. When he noticed a hazard tree threatening his local power grid, he called the electric company. It’s crews, unfortunately, were uninterested in taking direction from Greg and, to make matters worse, did not perform their duties much to Greg’s liking. He wanted the hazard tree removed. They demurred.

After the crew headed off for coffee and doughnuts, Greg hired a crew that would take direction from him (because he was paying them). Greg’s crew removed the tree, and Greg sent the bill to Union Electric. Union sent it back.

Greg was as serious about litigation as he was tree removal. He sued Union Electric for the cost of his tree-cutting crew. And he got further than you might think.

Fenlon v. Union Electric Co., 266 S.W.3d 852 (Court of Appeals of Missouri, Eastern District, 2008). Greg Fenlon was not a guy to let a job go undone. When he noticed a dangerous tree interfering with Union Electric wires, he contacted the utility to report it. Union Electric sent a couple of men in a truck, who trimmed back a few branches but refused Greg’s demand that they cut down the hazardous tree (despite the fact it was inside the utility’s easement). So Greg did the job himself, hiring a contractor to cut down the tree. He then sued the utility for the cost of the removal.

The trial court dismissed Greg’s claim, and he appealed.

Held: Greg’s suit was reinstated.

The Court observed that suppliers of electricity must exercise the highest degree of care to maintain their wires in such condition as to prevent injury, citing the Missouri Supreme Court’s Gladden case. However, the Court said, “nothing in Gladden limits the exercise of the highest degree of care solely to the trimming of branches that are either touching or close to wires. Rather, the focus in Gladden is on the likelihood of injury and prevention thereof.”

The key issue here, the Court said, was whether the hazard tree created an unreasonable risk of injury, and that was a question of fact. If it did, then Greg’s self-help in the Union Electric easement should be paid by the utility.

The trial court was in error when it effectively determined a question of fact question on a motion to dismiss. Greg’s pleadings were adequate to state a cause of action, so the matter had to go back for trial.

– Tom Root