Case of the Day – Thursday, September 17, 2020

RIGHT THING, WRONG REASON

The right things usually get done for the wrong reasons. The Internet, which knows all (or soon will, according to the AI people), attributes the aphorism to James Carville, but I remember the same line being penned by Washington columnist Drew Pearson in a political potboiler of his, The President, which I read as a lad in the summer of 1971.

Sorry, James, When it comes to credit for this particular witticism, you didn’t build that.

Today’s case is a reminder to all the states that claim the Massachusetts Rule, the Hawaii Rule, the Virginia Rule and so on that there is nothing new under the sun. Well before those rules came into being, the Washington State Supreme Court grappled with the encroachment issue, and reluctantly decided an early version of the Hawaii Rule: where there is encroachment and that encroachment causes “sensible harm,” the adjoining landowner may either trim back the offending branches and roots, or sue to force the tree’s owner to do it.

Ironically, settling the law (the right thing to do) probably got done for the wrong reason (bad blood between neighbors). We have seen how the Massachusetts Rule began in Michigan. Now, it seems the Hawaii Rule may have started in Washington.  Sorry, Hawaii, you didn’t build that.

Truly, there’s nothing new under the sun.

Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (Supreme Ct. Wash. 1921). A.L. Ryland had owned his place for many years when new neighbors, the Gostinas moved in next door. A.L. had a Lombardy poplar tree growing about two feet from the Gostina property, and a fir tree in the rear of the property, also about two feet of the division fence. On top of that, A.L. maintained a creeping vine, growing in a rustic box on top of a large stump, a few feet from the division fence, and some raspberry bushes and a rosebush growing near the property line.

About a year after they moved in, the Gostinas had their lawyer write to A.L. to tell him the branches of his fir tree were overhanging the Gostina property and dropping needles, and that A.L.’s ivy was running under the fence and onto the Gostinas’ lawn. The lawyer demanded that A.L. cut off the branches of the fir tree at the point where they crossed the boundary line, remove the ivy from the Gostinas’ property, and to keep the tree and ivy from encroaching ever again.

A.L. was unimpressed, so the Gostinas brought a suit for abatement of a nuisance. (And we thought foolish litigation was a recent phenomenon!) A.L. argued that the lawsuit was merely for spite and vexation, and that the Gostinas knew the tree and ivy were there when the moved in. Only after a neighborly disagreement, A.L. claimed, did the Gostinas sue.

The trial court did not care about any such nonsense, holding that where branches of trees overlap adjoining property, the owner of the adjoining property has an absolute legal right to have the overhanging branches removed by a suit of this character.

The Gostinas appealed.

Held: A.L.’s tree and ivy were a nuisance, and the Gostinas’ claimed damages, although ridiculously minor, were enough to permit them to maintain a nuisance action against A.L. Ryland.

The Court agreed that under Washington law, trees and plants growing into the yard of another constituted a nuisance, “to the extent to which the branches overhang the adjoining land. To that extent they are technical nuisances, and the person over whose land they extend may cut them off, or have his action for damages, if any have been sustained therefrom, and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

From ancient times, the Court said, it has been a principle of law that the landowner has the exclusive right to the space above the surface of his or her property: “To whomsoever the soil belongs, he also owns to the sky and to the depths. The owner of a piece of land owns everything above it and below it to an indefinite extent.” On the same principle, the Court held, the branches of trees extending over adjoining land constitute a nuisance, at least in the sense that the owner of the land encroached upon may himself cut off the offending growth.

A property owner may not “maintain an action against another for the intrusion of roots or branches of a tree which is not poisonous or noxious in its nature. His remedy in such cases is to clip or lop off the branches or cut the roots at the line.” What it came down to, the Court held, was that “the powerful aid of a court of equity by injunction can be successfully invoked only in a strong and mischievous case of pressing necessity” and there must be “satisfactory proof of real substantial damage.”

Here, the Court said, what the Gostinas complained of was “so insignificant that respondents did not even claim them or prove any amount in damages–but simply proved that the leaves falling from the overhanging branches of the poplar tree caused them some additional work in caring for their lawn; and that the needles from the overhanging branches of the fir tree caused them some additional work in keeping their premises neat and clean, and fell upon their roof and caused some stoppage of gutters; and that sometimes, when the wind blew in the right directions, the needles blew into the house and annoyed the occupants. We cannot avoid holding, therefore, that these are actual, sensible damages, and not merely nominal, and, although insignificant, the insignificance of the injury goes to the extent of recovery, and not to the right of action.”

Since the Gostinas had the statutory right to bring an action for abatement of a nuisance, and had shown some “actual and sensible damages, although insignificant,” they are entitled to go forward with the suit. “The remainder of the trees will doubtless shed their leaves and needles upon the respondents’ premises,” the Court prophesied, “but this they must endure positively without remedy.”

The Court was not really that fooled: this was a spite suit, but that alone was not disqualifying. While the Gostinas’ action against A.L. “has some appearance of being merely a vexatious suit,” the Court said, A.L. did “admit that the tree boughs do overhang respondent’s lot to some extent. There is sufficient foundation in fact to sustain a case…”

– Tom Root

TNLBGray

And Now The News …

Portland, Oregon, Oregonian, September 16, 2020: ‘Hundreds of thousands of trees’ need to be removed along Oregon 22; nearly 300 miles of state highways closed indefinitely

Nearly 300 miles of roads remain closed across Oregon with no timetable for reopening and “hundreds of thousands” of trees need to be removed along Oregon 22 alone before highways are safe for travel. That’s according to the Oregon Department of Transportation, which released preliminary information Wednesday showing how significantly intrastate travel could be affected by the wildfires for months to come. Wildfires are still burning in several sections of the state, and fire officials have said that some of the blazes will continue burning until heavy rains come later this year. According to a new transportation map released this week, nearly a dozen highways are closed entirely, many for long stretches. The closures will impact travel across the Cascade Mountains in several key spots – with Oregon 138, Oregon 22, Oregon 126 and Oregon 242 all closed at critical spots with no timetable for reopening. Those roads are key arteries connecting Roseburg, Salem and the Eugene-Springfield areas to Central Oregon. U.S. 20 and U.S. 26 remain open, as does Oregon 58, which connects the Eugene area to U.S. 97. As of Wednesday afternoon, roughly 281 miles of highway are closed due to wildfire damage, or roughly the distance on Interstate 5 between Portland and Medford. “It’s fair to say this is a whole new level of damage,” Katherine Benenati, a transportation department spokesperson, said in an email. “These are some of the most hazardous conditions and some of the most widespread damage we’ve seen in years…”

Huntington, West Virginia, Herald-Dispatch, September 16, 2020: Cicadas will soon erupt again. Prepare your trees for the invasion.

If past is prologue, then one night next May, a funny-looking insect – plump, brown, hunched – will emerge from the ground, crawl up the nearest vertical perch and cast off its mantle. Within an hour or two, the periodical cicada will fill out to its adult form, with beady red eyes and glassy wings framed with orange ribs. Soon thereafter, hundreds, thousands, millions more cicadas will join the creature for one of the natural world’s most bizarre spectacles: a six-week bacchanalian feast of loud music, acrobatics and, yes, sex, stretching from Georgia to New York. Before this wonder fades for another 17 years, there will be a couple of lingering reminders that this wasn’t some surreal dream. The garden will be littered with the carcasses of three species of spent cicadas. More ominously, the ends of the branches of shrubs and trees will begin to droop and turn brown. The female cicada lays eggs in slits she has cut in thin branches. This ensures that the ensuing hatchling nymphs will drop and burrow into soil laced with tree roots, for they feed off the root sap. The egg-laying also means that branches from the point of injury to their tips will probably die back. On big old oaks or hickories, the resulting branch flagging is unsightly, but it’s a temporary eyesore that the tree will outgrow. But for young, small trees, the dieback can harm the tree’s future and desired shape by pruning twigs destined to become its main branches. In extreme cases, the wounds can allow disease to move into the tree and kill it. The female cicadas prefer branches that are roughly between one-quarter and one-half of an inch in diameter, and each individual makes several cuts. “For trees planted in the past four years, you may want to consider protecting,” said Stephanie Adams, plant health care leader at the Morton Arboretum in Lisle, Ill. Young redbuds, crab apples and cherry trees are among the types of trees that are at risk…

New York City, The New York Times, September 16, 2020: This Tree’s Leaves Look Soft and Inviting. Please Don’t Touch Them.

The lore that shrouds Australia’s giant stinging trees, of the genus Dendrocnide, is perhaps as dubious as it is vast. Tales abound of nightmarish encounters with the hypodermic-needle-like hairs of its leaves injecting a toxin that drives men to madness and has prompted horses to hurl themselves off cliffs. Some of these stories are centuries old and cannot be verified. But as Edward Gilding can attest, these legends contain at least one lick of truth: the absolute agony of being stabbed by the fine, downy hairs that adorn the leaves and stems of Dendrocnide. The trees, which can grow taller than 100 feet, are found throughout the rain forests of eastern Australia, where they are known to torment hikers. “It’s like having a nail shoved into your flesh,” said Dr. Gilding, a biologist at the University of Queensland and self-described sting connoisseur. The sting from the trees’ hairs also has immense staying power, doling out anguish in waves for hours or days. Some anecdotes have reported intermittent pain lasting months; a few especially bad stings have even landed people in the hospital…

Sacramento, California, KOVR-TV, September 16, 2020: Nevada City Group Sitting In Trees To Protect Them From Being Cut Down By PG&E

Some people in Nevada City are going to new heights to stop PG&E from cutting down trees. These protesters are not marching, but climbing to make sure one tree, in particular, does not get chopped down. Pitts and others are doing this for a particular reason.“What’s happening is we are having a lot of trees taken out unnecessarily, completely thoughtlessly. Like just making a huge mess; taking away our heritage,” Pitts said. That heritage is heritage trees. PG&E said some trees have to go because they’re too close to power lines and pose a fire risk. “Part of it is obviously to protect the number of the heritage trees that are here. We’re concerned about the trees that are not really presenting a threat in themselves,” Lorraine Nauman, a tree protester, said. “This particular tree was planted 160 years ago by one of the original tree foundation members in the county here,” Pitts said. Pitts told CBS13 that the tree they climbed to protect from being cut down is an Atlas cedar spruce. It’s not native to the Nevada City area. PG&E said 263 trees are marked to be cut down in Nevada City to provide shorter, smaller and smart Public Safety Power Shutoffs. But instead of cutting down, many want the utility to look down and put their power lines underground. “Undergrounding, in this case, is not a panacea to all of the problems,” Brandi Merlo, PG&E spokesperson, said. “It’s still subject to its own issues including weather impacts, dig in potential, lightning strikes…”

New York City, WCBS-TV, September 15, 2020: Homeowners In Roslyn In Tree Fight With PSEG Long Island Over High Voltage Wires

Homeowners in one North Shore community are in the midst of a tree fight with their utility over high voltage wires and tilting power poles.Families say PSEG Long Island is responsible for maintaining safe easements in their back yards. Down the street from Roslyn High School, Overlook Terrace has 34 homes with backyard PSEG Long Island easements containing power poles. They hold, among other wires, cables so strong they can electrocute. One of homeowner Cary Ratner’s 60 foot tall maples is in a precarious position. “I have a tree that’s a real peril,” Ratner said. “I tried to get a tree surgeon, three of them. They won’t go near. It’s too close to the high voltage. It’s 13,000 volts.” Next door, Jeffrey Kane’s 65 foot elm tree is also bending amid the high voltage wires, which is located on the right of way maintained, according to law, by PSEG Long Island. A stiff wind in hurricane season could topple branches. “That’s the problem. I am concerned that it will be dangerous,” Kane said…

Tallahassee, Florida, Democrat, September 15, 2020: It’s raining squirrels: They’re cute, clever and falling from trees

Imagine its terror when a gust of wind whips a baby out of its snug nest to free fall through the air and then slam into the ground. If it’s lucky, it lands on rain-softened earth, not asphalt. St. Francis Wildlife is caring for 175 of these babies now, with more arriving every day. This is peak baby squirrel season. Every afternoon storm blows baby squirrels from their treetop nests. Tree trimmers also unknowingly cut down their homes. Squirrels are a paradox. They can be destructive, annoying pests. But they are also intelligent, curious, agile, and yes, valuable. Because all the little nut and seed treasures they squirrel away are never dug up, squirrels provide us with free gardening services and invaluable timber resources. With a little effort and ingenuity, we can learn to live in harmony with these resourceful little neighbors that have managed to survive on this continent for 36 million years…

Chicago, Illinois, Sun Times, September 15, 2020: Chicago is a leader in planting trees for the environment, but ComEd crews ruin them

The Sun-Times editorial California’s wildfires and Chicago’s derecho reveal cascading damage of climate change is spot on! We should not feel helpless, though, because we can move Illinois in the right direction during the current clear climate change crisis. Chicago has been a leader in reducing carbon emissions by planting some 300,000 trees over the last two decades. With the destruction of 7,300 trees throughout the city and county, we need to step up. Change always begins at the local level. Our neighborhood group, the Edgewater Glen Association, has partnered with Open Lands and received 11 trees to replant after the unprecedented derecho storm. For years our group has focused on tree replanting for every tree removed because of aging or disease. However, as ComEd sends out chainsaw crews to cut back trees encroaching on power lines, we have witnessed a very anti-environmental approach. Untrained ComEd crews have butchered mature trees so badly that they reduce the trees’ lives to less than five years…

Moon Crew, September 15, 2020: The story of a tree falling in Houston

I have watched this video — counting conservatively — over 500 times in the last 24 hours. Listen to that “ohhhhhhhh.” Even before he hits the “goddammit,” this amateur tree surgeon is yelling to God from his doomed heels. That is a cry from the soul to this cursed earth: Why have you turned against me, giver of life? Why has that which brought shade and life now become a swift hammer of a cruel justice beyond my understanding? What is that man with the rope supposed to be doing here, exactly? The “goddammit” — full-throated, delivered from a place of total despair in a raspy yowl best described as something between Yosemite Sam and an irate South Park yokel — only seals a universal moment. It is when fate finds a check written with your stupidity, and also the moment when fate decides to cash that check with such force, it overdrafts you straight into hell. First, know this: The screaming man in the video is not dropping a tree onto his own house. That house belongs to Matt Bieniek’s family. I spoke with him yesterday over the phone, after he saw his own house being assaulted on the internet by poorly executed tree surgery…

U.S. News and World Report, September 14, 2020: Explainer: How This Year’s Destructive U.S. West Wildfire Season Came to Be

Dozens of conflagrations have raged across more than 5 million acres (1.6 million hectares) in Oregon, California and Washington state since August, laying waste to several small towns, destroying thousands of homes and killing at least 35 people. The region’s increasingly dry and overgrown forests have become large-scale tinderboxes over decades while wildfires have become more frequent, more intense and more deadly. Here’s why. U.S President Donald Trump blames poor forest management – mainly a failure to cull overgrown forests – for the increasing number and intensity of fires. The governors of California and Oregon – the states worst hit this season – say climate change is largely responsible. Scientists say both factors are at work. Starting in the early 1900s, wildfires were fought aggressively and suppressed, which led to a build-up of dead trees and brush in forested areas. That means more fuel for bigger, more intense and damaging wildfires. But changes in climate and weather patterns — warming temperatures, periods of drought and erratic rains – also are causes. “We don’t want to minimize the impact of climate because it’s significant already and because it’s growing in the future,” said Dan Cayan, a climate researcher at the Scripps Institution of Oceanography at the University of California San Diego. The region generally experienced a relatively dry winter, leaving forests particularly dessicated and vulnerable to extreme heat that materialized in August. Dry, gusty winds, known as Santa Ana in Southern California and Diablo in Northern California, contributed to the fires’ rapid spread…

Providence, Rhode Island, Journal, September 14, 2020: Microscopic worm poses big threat to R.I.’s beech trees

A disease that can be deadly to beech trees was found for the first time in Rhode Island this summer, threatening thousands of the trees known for their smooth, silver-gray bark. A homeowner in the Ashaway village of Hopkinton contacted the state Department of Environmental Management in June after noticing something was wrong with the beech trees on her property. A DEM forester and Heather Faubert, a University of Rhode Island plant scientist, visited the site in the southwest part of the state and confirmed that the trees were afflicted with beech leaf disease. Discovered in Ohio in 2012, the disease has spread to Pennsylvania, New York and Ontario. It was found in Connecticut last year and this summer in Massachusetts, too. After the initial discovery of the disease at the home in Ashaway, Faubert, who coordinates the URI Plant Protection Clinic, found it spread throughout a nearby beech forest in an area off Route 91. Thousands of trees there showed the telltale signs of the disease: unnatural stripes between the veins of their leaves. Many of the leaves withered, yellowed and died as a result of the damage and the trees were forced to expend vital energy during the hottest and driest part of the year to leaf out a second time. A tree can do that only so many years in a row before the stress can kill it. The disease can spread to American beech trees, the species native to the Eastern United States and southeastern Canada, as well as European beech trees, an imported variety found on the grounds of mansions in Newport and other places. It can also affect Oriental beech trees…

Colorado Springs, Colorado, Gazette, September 15, 2020: What you’re really doing when carving an aspen tree in Colorado

To carve an aspen tree — to take a blade to the trunk for the sake of your initials, for example — is to do harm. Harm to a being with a life expectancy much like our own: 100 years, if we’re lucky. To leave your mark, “it may sound cool,” says Dan West, an aspen expert with the Colorado State Forest Service. “But that tree might not survive because of what you’re doing.” A cut to the human arm is a possible portal for infection. Same for an aspen tree. Though the risk might be greater in aspen, considering “aspen are one of the most diseased and infected trees in North America,” West says. Otherwise, yes, a wound to our body is much like a wound to Colorado’s favorite tree of autumn. On our travels to behold the golden displays, we’ve all seen it. Gashed groves. White bark disrupted by black scars that look nothing like nature’s doing. There’s someone’s name. There’s someone’s message that doesn’t matter. There’s some date marking what might be some romantic occasion. There’s a heart housing the names Megan and Jon. Paul Rogers, director of the Western Aspen Alliance based at Utah State University, came by this one once. A harsh revision was made — an “X” over “Megan” and a message above: “MEGAN IS A SKANK.” “It didn’t work out over time, their relationship, apparently,” Rogers says. But the advocate scientist cares not for such drama. Nor do the trees care for our drama and whatever vain impulses lead us to scarring their skin. It’s a particularly thin skin. That’s what makes aspen particularly susceptible. “Because of the thin skin,” Rogers says…

Fastcompany, September 14, 2020: This tool is mapping every tree in California to help stop megafires

If you zoom in on a new map of California, you’ll start to see that the fields of green that represent the forest are actually made up of individual green points, and each point represents a real, individual tree. The tool, called the California Forest Observatory, uses AI and satellite images to create an ultradetailed view of the state’s forests—aiding work to prevent the type of catastrophic megafires that the state is experiencing now. Scientists at Salo Sciences, a startup that works on technology for natural climate solutions, began creating the tool after interviewing dozens of experts in California about the state’s challenges with wildfires: They need more detailed, up-to-date information about the forests so they can better predict how fast and in what direction fires will spread, and remove the most hazardous fuels. Even the rough satellite maps that exist now are often three years out of date, making it hard for agencies to plan their work. The new tool will be updated annually after the fire season ends, if not more often. Firefighters can use the tool to predict how current fires may spread as they’re burning. But just as critically, the state can also use the map to plan forest management to prevent future megafires. “What we really found was California more than anything has a vegetation and fuel load problem,” says David Marvin, cofounder and CEO of Salo Sciences. “This has occurred because, for the last century, we’ve been suppressing wildfire, and we’ve gotten really good at doing so. CalFire, the state fire agency, puts out something like 96% of fires, and we have thousands of them every year…”

Los Angeles, California, Times, September 13, 2020: 150 million dead trees could fuel unprecedented firestorms in the Sierra Nevada

Two years ago scientists warned that a massive tree die-off in the Sierra Nevada could set the stage for forest conflagrations akin to World War II fire bombings. The Creek fire, which forced the dramatic helicopter evacuations of more than 200 campers over Labor Day weekend in California, may be a hint of far worse to come in future years. It is burning in the Sierra National Forest, an epicenter of the bark beetle attacks that killed nearly 150 million drought-stressed trees during the last decade. The U.S. Forest Service estimates that dead stands in the Creek fire contain 2,000 tons of fuel per acre. As of Saturday, the fire had charred more than 196,000 acres, destroyed 365 structures and was threatening 14,000 more in the vicinity of Big Creek, Huntington Lake and Shaver Lake. Firefighters don’t expect to contain it until mid-October. For those who have studied the potential fire effects of the vast beetle kill, the Creek fire is a harbinger. “I don’t want to be alarmist. But I think the conditions are there,” said Scott Stephens, a UC Berkeley professor of fire science and lead author of a 2018 paper that raised the specter of future mass forest fires as intense as the Dresden, Germany, and Tokyo firebombings…

Inc. magazine, September 13, 2020: This Company Sends Foresters Into the Woods to Prevent Wildfires–and Save Lives

The devastating wildfires that swept through Northern California in recent years have left a new problem in their wake: dead trees that threaten people, roads, and gas and water lines. Enter American Tree Medics, which hit the 2020 Inc. 5000 with more than $2 million in 2019 revenue. The family-owned company uses a team of arborists and foresters to perform 15-minute diagnostic evaluations–factoring in each tree’s species, age, and other characteristics–and decide which ones need to be cut down. “Time is critical in these situations,” says co-founder and CEO Heidi Britt. The Modesto, California-based company earned $2.1 million last year from clients including the city of Santa Rosa and Butte County, site of the deadliest wildfire in California’s history, 2018’s Camp Fire. Employees use tape measures, magnifying glasses, hatchets, and other tools to give each tree a health score. Removing dead, dried-out trees can improve the overall health of the forest and hinder the spread of wildfires… The company creates teams of certified arborists, foresters, and loggers. All new employees shadow a professional for several months before they can perform assessments on their own…

Las Vegas, Nevada, Review-Journal, September 13, 2020: Seedlings from 9/11 Survivor Tree ‘doing very well’ in Las Vegas

Two ornamental pear seedlings have grown stronger in the past year, but they have not yet received permanent homes in Las Vegas. Last year, Las Vegas was selected as a recipient of the seedlings from the Survivor Tree Seedling Program as a symbol of hope after the mass shooting that occurred on Oct. 1, 2017. The Survivor Tree was recovered from ground zero with broken roots and branches after the 9/11 attacks in New York City. The tree was rehabilitated and replanted at the Sept. 11 memorial in 2010, according to the organization’s website. The program launched in 2013 with the harvested seedlings from the tree to share the message of solidarity. According to Las Vegas officials, the program sent a pair of seedlings in case one was damaged in transport. In the past year, the seedlings have grown, but they’re still too small to be planted. They are housed in the city’s tree nursery, where Steven Glimp, park maintenance manager for the city, cares for them. “The trees are doing very well and we look forward to their continued growth so that we can plant them next year,” Glimp said in a statement provided by a city spokesman. “The city of Las Vegas is honored to be a recipient of these trees.” City officials have not decided where the trees will be planted. Options include the Las Vegas Community Healing Garden or the Las Vegas Fire Department Station 5, which hosts a 9/11 remembrance ceremony each year and has a piece of World Trade Center steel on display…

Las Cruces, New Mexico, Sun, September 13, 2020: What to do when wind damages trees

Question: I lost about 1/3 of my crabapple tree and probably more than 1/2 of a mimosa tree in the wind storm on Tuesday. Is there anything I should do to try to help them?
Answer: Great question! The short answer is, “No, at least not urgently, and there’s no need for any type of wound sealant.” For now, in case it helps you rest easier, imagine what your trees would do if they were all alone in the forest and were damaged by wind gusts. They’d just sit there and be fine. That is, unless there are any immediate risks, like a car parked underneath or an area of high pedestrian activity nearby where a partially broken limb could fall and hurt someone. Aside from considering bodily harm and property damage, the next step mostly depends on the damage. How thick were the branches that were broken? How many branches, approximately, per tree? And are they within easy reach from the ground? Evidence from tree research has confirmed that clean-cut wounds (as opposed to scraggly jagged tears) seal better and faster. Trees’ natural responses to injury are partly influenced on the time of year and the growth stage. For example, responses may be faster in the active growing season than in the dormant season. In the coming weeks, you or a trained arborist can clean up the jagged branch breaking points to help the trees seal those wounded areas more easily. It is important that the wider base of each branch called the branch collar be left intact so that the cambial layer just inside the bark can grow over the wound to seal it…

Detroit, Michigan, WDIV-TV, September 10, 2020: Residents concerned over safety issue after fallen tree, debris litter Detroit street

A big mess on a Detroit street turned into a big safety concern. Washburn Street, on Detroit’s east side, was littered with debris and a large tree that came crashing down recently during wild weather. The damage wasn’t just an eyesore, but also a potential safety issue for residents. Neighbors wanted it cleaned up, so they called Help Me Hank to investigate. Hank Winchester found that the city had done some tree trimming on Washburn Street at about the same time DTE was doing some work in the area. Some who reached out weren’t exactly sure who created the mess, they just wanted it cleaned up. Winchester was alerted to the issue when someone Tweeted to him, Detroit mayor Mike Duggan and DTE Energy. Come to find out, DTE did not cause the mess. Detroit forestry crews were doing work here at about the same time as the DTE project. However, as it was being sorted out, DTE jumped into action and sent a crew to help. Winchester learned it was a city issue and Detroit city officials were quick to respond, sending a crew out to clean up the large mess and everything left behind. Washburn Street is now clear of the clutter and is no longer a safety concern for those living in the area…

Phys.org, September 10, 2020: Historical climate fluctuations in Central Europe overestimated due to tree ring analysis

“Was there a warm period in the Middle Ages that at least comes close to today’s? Answers to such fundamental questions are largely sought from tree ring data,” explains lead author Josef Ludescher of the Potsdam Institute for Climate Impact Research (PIK). “Our study now shows that previous climate analyses from tree ring data significantly overestimate the climate’s persistence. A warm year is indeed followed by another warm rather than a cool year, but not as long and strongly as tree rings would initially suggest. If the persistence tendency is correctly taken into account, the current warming of Europe appears even more exceptional than previously assumed.” To examine the quality of temperature series obtained from tree rings, Josef Ludescher and Hans Joachim Schellnhuber (PIK) as well as Armin Bunde (Justus-Liebig-University Giessen) and Ulf Büntgen (Cambridge University) focused on Central Europe. Main reason for this approach was the existing long observation series dating back to the middle of the 18th century to compare with the tree ring data. In addition, there are archives that accurately recorded the beginning of grape and grain harvests and even go back to the 14th century. These records, as well as the width of tree rings, allow temperature reconstructions. A warm summer is indicated by a wide tree ring and an early start of the harvest, a cold summer by a narrow tree ring and a late start of the harvest. The trees studied are those from altitudes where temperature has a strong influence on growth and where there is enough water for growth even in warm years…

Oakland, California, East Bay Times, September 10, 2020: Legendary West Coast apple tree dies short of its 200th birthday

An apple tree thought to be the oldest in the Pacific Northwest has died at 194 years of age. The Old Apple Tree in Vancouver, Washington, was planted in 1826 when fur traders of the Hudson’s Bay Company settled in the area. It was considered the matriarch of the region’s bustling apple industry and produced a green apple that was on the sour side but great for baking. “While we knew this day would come, we hoped it was still years away,” Charles Ray, urban forester for the City of Vancouver, told CNN. Around 2015, the team of experts caring for the tree noticed that the cambium layer — the growing part of the trunk — was starting to die back, Ray explained. That contributed to the creation of a spiral crack in the trunk, which hollowed out over the years. The tree finally died in June. “The tree itself has taken on its own persona. It’s a living organism, just like us, and it’s been faced with a lifetime of challenges,” Ray said. “It stood there for generations and witnessed the world change around it.” “When anybody speaks of the oldest apple tree in the Northwest, everybody knows it was that apple tree,” David Benscoter, a retired FBI agent who now runs The Lost Apple Project, told CNN. “I’m sure people never thought it could reach that age…”

Tallahassee, Florida, Democrat, September 10, 2020: How to manage drought stress in trees with mulch, water, soil care

Could your trees be dying of thirst? We’ve recently had some heavy rains so surely there is no issue for our favorite trees, right? While we commonly have dramatic heavy rain events, the effects do not always last long. A few days of no rain and our landscapes begin to dry out once again. The thirst that mature trees have is significant. A single live oak can consume hundreds of gallons of water in a single day. That is why we need to constantly consider the needs of our trees and our soil. According to NOAA, the Florida Panhandle has been in a significant long-term deficit for rainfall. NOAA measures drought conditions on a bi-weekly basis and for 80% of the last 32 months, we have been in a below normal or drought condition. This has a number of effects on mature trees that are easily undetected. One of the first things to happen when the soil dries is that roots start to die, starting with the small fine roots first. The dry soil becomes hardened and often filled with air gaps. Roots become dry, brittle, and die. This leads to decay and one of many root rot diseases. Next, the air fills the pores, cracks, and gaps in the soil. That air has to escape before moisture can occupy the pore space…

Sacramento, California, Bee, September 9, 2020: ‘Ground zero’ for dead trees. How California mega-drought turned Creek Fire into inferno

California’s mega-drought officially ended three years ago but may have turned the Creek Fire into a monster. By killing millions of trees in the Sierra National Forest, the historic drought that ended in 2017 left an incendiary supply of dry fuel that appears to have intensified the fire that’s ravaged more than 140,000 acres in the southern Sierra Nevada, wildfire scientists and forestry experts said Tuesday. “The energy produced off that is extraordinary,” said Scott Stephens, a wildfire scientist at UC Berkeley. “Large amounts of woody material burning simultaneously.” What’s more, the Creek Fire is shaping up as a frightening template for other wildfires that could ignite in heavily forested areas that suffered extensive tree loss. “This might provide this first glimpse into the future we’re in for,” said LeRoy Westerling, a climate and wildfire scientist at UC Merced. Brittany Covich of the Sierra Nevada Conservancy, a state agency that funds projects aimed at reducing wildfire risks in forests, said what’s happening in Fresno County could easily take place in the Tahoe National Forest and other areas with lots of dead trees.“That’s the fear we have across the Sierra Nevada,” Covich said…

Albuquerque, New Mexico, KOB-TV, September 9, 2020: Tree removal companies experience surge in business following storm

The storm Tuesday evening rolled in with business opportunities for tree removal companies. The owners of Eric’s Tree Care, Joel and Bonnie McMullan, said their team was out removing debris from people’s homes since the winds hit. “The phone has been going off since about four yesterday,” said Joel. His wife has been trying to keep up with the calls. “It’s been very hectic. We’ve had limbs fall on houses. Split trees, split in half. We have uprooted trees. The whole thing falls over,” she said. Bonnie said the extra business is a blessing. “It’s important for us to go out and help get these limbs out of people’s houses and everything. We want to make sure their houses are ok,” said Bonnie. However, she said it’s also sort of a curse. They have a crew of only six people. “We’re trying to get to as many as we can, but there’s only so many we can get to in a day,” she said. Other companies like Baca’s Trees are in the same boat. The business says they got more than 50 calls before noon for removals. Needless to say, they’re busy. But they ask people to still call the professionals. Bonnie said it can be dangerous if someone tries to handle a downed tree…

Fremont, Ohio, News-Messenger, September 9, 2020: Tree of Heaven is a devil to control from spreading

“There’s a tree that grows in Brooklyn. Some people call it the Tree of Heaven. No matter where its seed falls, it makes a tree which struggles to reach the sky. It grows in boarded up lots and out of neglected rubbish heaps. It grows up out of cellar gratings. It is the only tree that grows out of cement. It grows lushly … survives without sun, water, and seemingly earth. It would be considered beautiful except that there are too many of it.” — ”A Tree Grows in Brooklyn” Betty Smith’s best-selling 1943 novel traced the story of Francie Nolan from her impoverished early life in the tenement districts of Brooklyn in 1912 to her first year at the University of Michigan. The tree of heaven, Ailanthus altissima, was her metaphor for Francie’s iron determination to grow and prosper, even under the most adverse conditions. Smith could hardly have picked a more apt symbol of persistence and the resolve to succeed at all costs. It’s difficult not to admire the tree’s robust life force. On the other hand … For modern urban planners and all but the most forgiving of homeowners, Ailanthus is largely considered a true pain in the derriere. Interesting history, interesting ecology, but an absolute bear to control…

Futurism, September 9, 2020: Too Much CO2 Is Killing Trees, Scientists Say

As humanity continues to pump carbon dioxide into the atmosphere, scientists had long hoped that a portion of it would get gobbled up by plants — including the Earth’s vast forests — instead of contributing to climate change. They were right — to an extent. The prediction that increased atmospheric carbon dioxide would speed up forest growth held up. But new research suggests that these fast-growing trees also die significantly younger, according to Agence France-Presse, at which point they’d release carbon once again as they decompose. Unfortunately, the link between higher atmospheric carbon dioxide levels and accelerated lifespans was observed across a wide span of tree types and species, according to research published Tuesday in the journal Nature Communications. That suggests that other trees may not be able to pick up the slack. “Our findings, very much like the story of the tortoise and the hare, indicate that there are traits within the fastest growing trees that make them vulnerable, whereas slower growing trees have traits that allow them to persist,” study coauthor and State University of New York forestry expert Steve Voelker said in a press release. For the last few decades, AFP reports, society has reaped the benefits of forests’ ability to absorb atmospheric carbon. But those benefits may soon end, as a sort of environmental reckoning approaches — though, to be fair, University of Arizona researchers found in 2013 that decomposing forests release less carbon than previously predicted…

San Francisco, California, Chronicle, September 8, 2020: Bay Area farm loses 100,000 bay trees in fire — but it’s not the end for this spice company

From the look of it, one Vacaville family farm’s blackened soil and silvery white ghosts of some 100,000 trees might have looked like the end for their spice business. But the Attard family survived a similar fire almost 32 years ago. And this time, they knew something they didn’t know then: Their California laurel trees could start growing back within months. Paul Attard and his family, of Napa Mountain Spice Co., sell certified organic bay leaves to Spice Islands and other companies. They harvest them from the mostly wild California laurel trees that cover their property on a ridge straddling Solano and Napa counties. The land happens to be located right near one of the remote cameras used to monitor wildlife that caught some of the dramatic first moments of the LNU Lightning Complex the night of Aug. 18, which ultimately killed five people and has destroyed almost 1,500 structures. Due to the fire, Attard estimates the company will lose $1 million in sales…

London, UK, Daily Mail, September 9. 2020: Global warming: CO2 ‘reduces lifespan of trees’, study says

Trees with faster growth rates die younger across multiple countries and species, which reduces their overall carbon storage capacity, a new study claims. Researchers analysed tree-ring data of more than 200,000 records of 110 species across Europe, Asia and the Americas. They found faster tree growth, indicated by tree rings, is causing earlier mortality and the release of the carbon back into the atmosphere. Many scientists believe planting more trees will offset the amount of carbon dioxide (CO2) emissions generated from human activity. But shorter lifespans of trees will actually make them grow faster and have less time to absorb atmospheric CO2 than anticipated, the new study claims. The new study further calls into question predictions that greater tree growth means greater carbon storage in forests in the long term…

Anchorage, Alaska, Daily News, September 5, 2020: Why are spruce trees turning orange in the Alaska Range?

While wandering middle Alaska this summer, I noticed orange spruce trees along the entire length of the Denali Highway, from Paxson to Cantwell. In what looked like a dendrological case of frostbite, tips of every branch were afflicted with something. The real show happened when the wind blew: An entire valley glowed apricot. After the wind died, a Tang-like orange powder floated on rivers and puddles. It was as if someone had pepper-sprayed the Denali Highway. I suspected an insect outbreak — maybe the orange dust was millions of little eggs laid on spruce branches — but insect expert Derek Sikes of the University of Alaska Museum of the North said bugs were not to blame. It was a tree disease known as spruce needle rust, which infects only the current year’s needles of white, black and Sitka spruce trees. The orange powder is composed of millions of tiny spores, which the rust fungus uses to reproduce. Paul Hennon, an expert on forest diseases, wrote about spruce needle rust fungus in a 2001 bulletin for the Alaska branch of the USDA Forest Service…

Harrisburg, Pennsylvania, Patriot-News, September 8, 2020: Tree falls on man in York County, killing him: coroner

A man died Monday in Warrington Township when the tree he was cutting down fell on top of him, authorities said. The York County Coroner’s Office was called around 7:33 p.m. for a special rescue on the 800 block of Old Mountain Road. The man was pronounced dead an hour later, according to Coroner Pamela L. Gay. Gay said the man’s death was accidental and the result of “traumatic asphyxiation.” His identity will be released once family and next of kin are notified…

Bangor, Maine, Daily News, September 7, 2020: These funny looking, fuzzy orange galls won’t hurt your oak tree, or you

Orange galls, fuzzy galls or fuzzy orange galls, no matter what you call them if you have an oak tree in your yard or on your property you likely have them. The culprit is the Cynipid wasp, a tiny member of the Vespidae family that lays its eggs on oak tree leaves. “The gall is the plant or tree’s reaction to the insect’s egg,” said Jim Dill, pest management specialist with the University of Maine Cooperative Extension. “The leaf tissue grows around the wasp egg.” The gall then serves as a protective shell in which the wasp larvae can grow and feed, Dill said. In the case of the fuzzy orange galls, these growths look like tiny balls of fluff. Early in the summer, they are a light tan. As the season goes on they start to darken until in late August and September they are deep orange and brown. Around that time the gall, with the wasp larvae inside, falls off the leaf and the wasp will burrow into the ground until it pupates. It’s a lifecycle that can last one or two years, Dill said…

Sacramento, California, KCRA-TV, September 5, 2020: PG&E to cut down 200+ trees in Nevada County

People in Nevada City learned this week that Pacific Gas and Electric will begin cutting down more than 200 trees beginning next week. PG&E said it’s out of safety. Some residents, however, claim the utility is not handling the tree removal process correctly. Bob Nienaber, who lives along West Broad Street in Nevada City, recently noticed somebody spray painting the tree in his front yard and wondered what was going on. When he asked what crews were doing, he said he was told “PG&E was going to be removing a couple of trees in its path of sight to make sure the lines were safe.” When he got in his car and drove up the street, he said he “started seeing the markings everywhere.” Nienaber learned PG&E is scheduled to chop down 263 area trees beginning the day after Labor Day. City Planner Amy Wolfson confirmed the action. “About a hundred of those are on city property,” she said. “And then the remaining trees are all on private property.” Workers had marked which ones would be coming down with yellow spray paint. PG&E sent KCRA a statement, saying in part: “PG&E is required by law to assess and manage vegetation that poses a threat, including trimming overhanging limbs and branches above power lines…”

Las Vegas, Nevada, Sun, September 7, 2020: Climate change threatens Joshua Tree’s traditional home

Drive just outside of Las Vegas and they appear. Twisted, warped, their branches reaching out like alien hands, the Joshua tree is a symbol of the Mojave Desert. But the survival of the tree in its traditional range is at risk because of climate change, according to the National Park Service. With the desert getting hotter, drier and more susceptible to wildfires, some of the tree’s habitat could become inhospitable to the plant, scientists say. Joshua Tree National Park, about 200 miles from Las Vegas in California, could be virtually bare of the plant by 2070, according to a 2019 study by the University of California, Riverside. In the best-case scenarios, a sharp reduction of greenhouse gases could keep the trees at 18.6% of their historic range — from western Arizona to eastern California, the study found. The demise of the tree would “represent the collapse of the higher-elevation Mojave Desert ecosystem,” said Patrick Donnelly, the state director for the Center for Biological Diversity. The tree provides food and shelter for many desert animals, he said. The Joshua Tree Genome Project, a multistate scientific collaboration, has set out to sequence the tree’s genome to gain insight into how the tree might adapt to a changing climate…

Ars Technica, September 5, 2020: Could a tree help find a decaying corpse nearby?

Since 1980, the University of Tennessee’s Forensic Anthropology Center has plumbed the depths of the most macabre of sciences: the decomposition of human bodies. Known colloquially as the Body Farm, here scientists examine how donated cadavers decay, like how the microbiomes inside us go haywire after death. That microbial activity leads to bloat, and—eventually—a body will puncture. Out flows a rank fluid of nutrients, especially nitrogen, for plants on the Body Farm to subsume. That gave a group of University of Tennessee, Knoxville researchers an idea: what if that blast of nutrients actually changes the color and reflectance of a tree’s leaves? And, if so, what if law enforcement authorities could use a drone to scan a forest, looking for these changes to find deceased missing people? Today in the journal Trends in Plant Science, researchers are formally floating the idea—which, to be clear, is still theoretical. The researchers are just beginning to study how a plant’s phenotype—its physical characteristics—might change if a human body is composing nearby. “What we’re proposing is to use plants as indicators of human decomposition, to hopefully be able to use individual trees within the forest to help pinpoint where someone has died, to help in body recovery,” says UT Knoxville plant biologist Neal Stewart, coauthor on the new paper. As a large mammal like a human decomposes in a forest, its breakdown transforms the soil in a number of ways. The body’s “necrobiome”—all the bacteria that was already in it when it was alive—replicates like crazy in the absence of an immune system. This necrobiome mixes with the microbes in the dirt. “The soil microbiome will change and, of course, the plant roots will also sense some changes,” says Stewart. But, he adds, “we don’t really know what those changes are…”

 

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Case of the Day – Wednesday, September 16, 2020

BLINDED BY THE LIGHT

revveduplikeadeuce140721None of us really knew what the lyrics were to that great piece of mid ‘70s music by Manfred Mann’s Earth Band (written and first recorded by Bruce Springsteen). You know, Springsteen wrote the second line as “cut up like a deuce.” Not until Manfred Mann rewrote the line to be “revved up like a deuce,” did the mondegreen of the line famously become a reference to a feminine hygiene product.

But we digress. We’re really talking light and soybeans here. Recently, the vigilent treeandneighborlawblog editors read a book review for a new tome on light pollution called The End of Night.” It reminded us how soybeans like the dark, and about the plight of Farmer Smalley.

Farmer Smalley raises soybeans in Wyandot County, Ohio. When the Ohio Department of Transportation installed high mast lighting at the US 30/US 23 interchange, Mr. Smalley’s soybeans would not flower and flourish under the bright nighttime lights. This is apparently not an unknown effect. He sued the DOT in the Ohio Court of Claims, seeking damages in a self-written complaint.

soybeans140721The Clerk heard the matter administratively, and concluded that the lights were not a nuisance, apparently because of the benefit such lights had for the motoring public. However, the loss of two acres of beans did constitute a constitutional “taking of property” for which he should be compensated. The damages were pretty meager for 2007: $512 plus his $25 filing fee.

Still, the Clerk did not dismiss out of hand the notion that light pollution could constitute a nuisance in some circumstances, those where the social benefit of the light was insignificant next to the interference caused the neighbor.

A few months later, the full Court of Claims reversed the judgment. It held that the Ohio constitution did not permit compensation for consequential damages to property, only for the actual taking of property. Because of that. Farmer Smalley’s loss was not compensable.

Even so, both the Court and the Clerk apparently accepted the notion that the light pollution damaged Smalley’s property. It was just that the damage, however real, could not be compensated.

lightpoll140721Smalley v. Ohio Dept. of Transportation, 142 Ohio Misc.2d 27, 869 N.E.2d 777, 2007 -Ohio- 1932 (Ohio Ct.Cl., Mar. 15, 2007). Farmer Smalley has a soybean field next to a four-lane highway intersection. The Ohio Department of Transportation constructed high-mast lighting at the intersection in 2005, and since then, and Farmer Smalley’s soybeans failed to mature during the growing season. Smalley was forced to mow down two acres of failed crop, a failure he attributes to the lighting. He lost about 120 bushels of beans, which — at $6.00 a bushel — were worth $720.

Farmer Smalley sued the DOT in the Ohio Court of Claims. DOT admitted it had installed the mast lighting, which it said was intended to “safely illuminate the expressway.” DOT argued the installed lights “are the safest and most efficient lighting source given the traffic flow and lighting required at interchanges.” It admitted that light did “occasionally bleed onto adjacent property [and] there is little doubt that defendant’s light encroaches upon plaintiff’s property.” It argued, however, that it could not be held liable for any damage to plaintiff’s bean crop caused by its light encroachment. It also argued that Farmer Smalley’s cost to raising the beans was $256.47 an acre, reducing his net loss to $512.94.

Held: The Clerk of the Court held that the light pollution was not a nuisance. However, he found that the actual harm suffered by farmer was different in kind from harm suffered by general public, as required to establish a taking under “Takings Clause” of Ohio Constitution.

It appears that farmer Smalley filed his complaint himself, because DOT flailed about in its defense, as if it wasn’t sure where the farmer was going. It argued at length that its lighting was not a nuisance, because Smalley had offered no proof that DOT was negligent in erecting the lighting. It asked the Court to weigh the benefit that the high mast lighting gave to thousands of motorists against the harm the lights caused plaintiff in destroying two acres of his bean crop.

lights140721The Clerk sagely noted that DOT “… essentially proposed that plaintiff should have to bear a financial burden for his crop loss in a situation where he was legally using his land for a specific valuable purpose and the harm caused was attributable to the acts of DOT.”

He defined an absolute nuisance as a distinct civil wrong arising or resulting from the invasion of a legally protected interest, and consisting of an unreasonable interference with the use and enjoyment of the property of another. Such a nuisance was the doing of anything without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his or her legal rights, or the collecting and keeping on one’s premises of anything inherently dangerous or likely to do mischief, if it escapes, which, escaping, injures another in the enjoyment of his legal rights. A qualified nuisance, on the other hand, was distinguished from absolute nuisance as being dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm which, in due course, results in injury to another.

Considering the utility of the high mast lighting to the motoring public, the Clerk correctly concluded that the lighting was neither an absolute nor qualified nuisance. But that didn’t mean that Mr. Smalley was out of luck. Under the “Takings Clause,” any taking — whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises — entitles the owner to compensation. In order to establish a taking, a landowner must demonstrate a substantial or unreasonable interference with a property right, and such an interference may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises. Something more than loss of market value or loss of comfortable enjoyment of the property is needed, to constitute a taking under the “Takings Clause:” governmental activity must physically displace a person from space in which he was entitled to exercise dominion consistent with the rights of ownership. To constitute a taking actual harm suffered by the plaintiff must differ in kind rather than in degree from the general public.

Later, the full court reversed on different grounds, holding that the Ohio Constitution did not permit compensation for less than a full loss of land.

Nevertheless, the notion that light can constitute a nuisance and that a property owner suffering from light shining onto his or her land from another location, appears to be accepted.

– Thomas L. Root

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Case of the Day – Tuesday, September 15, 2020

YOU PAYS YOUR MONEY AND YOU TAKES YOUR CHANCE

We have seen two divergent views on boundary tree ownership, the Colorado view that it depends on the intent of the property owner, the Illinois view that it is a simple matter of where the tree is growing, and the Connecticut view that both owners can hack at the branches and roots of a boundary tree with abandon.

Today, a Georgia court adds to the mayhem. In its view, a boundary tree is not the common, undivided property of either owner. Instead, it is owned in “severalty,” a term only a lawyer could love that means. Owner A is exclusive owner of the parts of the tree on her property. Owner B is exclusive owner of the parts of the tree on his property. In addition (and this is a big addition), each owner is deemed to have granted an “easement of support” to the other, meaning the owner cannot do anything to his or her side of the tree that would kill the other side.

This sounds a lot like the Connecticut rule, except that the owners could mess a little with the trunk, as long as it does not make a mess of things on the other side. What is really interesting is that the case focuses on each owner’s obligation to not the tree become dangerous to the other. That’s an aspect of boundary tree ownership we haven’t contemplated before.

Just maybe Georgia has something here. We would be more amenable if it could be described without employing the term “severalty.”

But what does this suggest if you’re in one of states that is not Connecticut, Minnesota, Georgia, Illinois or Colorado? Well, in that case, you pays your money and you takes your chance.

Willis v. Maloof, 184 Ga.App. 349 (Ga.App. 1987). Mike Maloof was severely injured when a tree fell on him. Throughout the over thirty years he and defendant Bill Willis had lived as next-door neighbors, Mike had always assumed the tree belonged to Bill. It turned out that Mike was wrong: the tree actually grew on the boundary between their properties. Mike claimed the tree was diseased and that Bill should be liable in negligence for failure to remove or remedy the hazard created by the tree. The jury could not reach a verdict, and the trial court denied Bill a directed verdict.

Bill appealed.

Held: Adjoining landowners of a boundary tree do not own the tree as tenants in common, but instead, each owner holds an interest “in severalty” on the part of the tree which rests on his or her side of the line, with an easement of support from the other. Thus, the Court said, Bill is entitled to a directed verdict in his favor, and owes Mike nothing.

The Court admitted that the issue of ownership and control over a boundary tree was one that had never been decided Georgia. The Court analogized the issue to the rule applicable to party walls. By owning the part of the tree on his or her property, each of the landowners “has an interest in that tree, a property in it, equal in the first instance to, or perhaps rather identical with, the part which is upon his land; and in the next place embracing the right to demand that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole.”

Like the case with a party wall, the parties owning a boundary tree have a duty to maintain the tree and take reasonable steps to guard against any hazardous condition the tree may pose.

In this case, the Court said, Mike had presented no evidence that Bill had breached his duty to maintain the tree. The owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition. He or she has no duty to “constantly check all… trees for non-visible rot as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.” Bill worked around the base of the tree often as he cultivated a vegetable garden in his yard near the tree, year after year. He denied any knowledge that the tree was diseased and denied seeing any evidence which would lead him to suspect the tree was unhealthy.

Mike’s expert, who inspected the tree after it fell, testified that at least three visible conditions told him the tree was diseased and posed a hazard. The bark at the base of the tree curved under instead of outward, indicating to the expert that the tree was virtually devoid of roots. A cavity or hollow in the side of the tree and fungus growing on the bark indicated to the expert that the tree was decaying. The expert said that in his opinion the average person’s “attention would have been drawn” to these conditions.

The Court didn’t bite. “Even assuming defendant should have noticed these conditions, the appellate panel found, “no evidence was presented from which a jury could find that defendant should reasonably have known the tree was diseased. The expert witness presented testimony from which a jury could find that the tree was in fact diseased. However, the testimony of the expert witness did not establish that a layman should have reasonably known the tree was diseased.”

Even though each owner had exclusive right to the part of the tree on his side of the boundary, the distinction was not relevant in regard to the duty to maintain a single, indivisible tree. The disease in this tree was systemic and not confined to one side of some imaginary line. Therefore, the duty to maintain the tree could not be apportioned on some pro-rata basis depending upon that percentage of the girth of the tree which grew on either side of the property line.

Bill’s only duty was that of the reasonable man. The law did not charge him with an expert’s understanding about the inspection, care and maintenance of trees. Even Mike admitted he did not think the tree in question was dangerous or defective. Several other neighbors also testified the tree was bearing green leaves at the time it fell and did not appear to be diseased. Because Mike failed to present any evidence that Bill was or should have been aware that the tree was hazardous, Bill was entitled to a directed verdict should have been granted.

– Tom Root

TNLBGray

Case of the Day – Thursday, September 14, 2020

NIGHT OF THE ATTACK ROOSTERS

madrooster170227There is little doubt that we in this country enjoy pampering like nowhere else. Animals we once ate for sustenance (or because they tasted good) are now our pets: not only dogs and cats, but Vietnamese pot-bellied pigs, hedgehogs, and even emotional support ducks.

And when we jet off to LA for the Oscars, or Cannes for the movies, or even Munich for Oktoberfest, we need a pet sitter to watch our precious Fluffy. Someone like Josie Gilreath, Professional Pet Sitter.

Come to think of it, Josie – a proud member of the National Association of Professional Pet Sitters (motto: “The ONLY national non-profit organization for professional pet sitters”) – might not be available. She’s still convalescing after a particular harrowing pet sitting experience after an encounter with Bruce and Jodi Smith. While watching the Smith’s chickens, Josie was injured by the Smiths’ attack rooster, who was apparently doing what attack roosters do, which is attack. The kerfluffle left Josie with a serious infection having long-term consequences.

Josie sued, complaining that the Smiths were liable, but the trial court wasn’t buying it. Maybe it was Josie’s 9 years of experience as a professional pet sitter. Maybe it was the sign in the Smiths’ yard that said “CAUTION – AREA PATROLLED BY ATTACK ROOSTER SECURITY CO.” Maybe it was the fact Josie had worked for the Smiths before, and had been warned, “Rooster Will Attack!” Of course, it could have been that Jodi Smith had advised Josie to use a garbage can lid for defense against the rooster.

Whatever the reason, the court held Smiths had not withheld any information from Josie, and that by taking the pet-sitting job, Josie had assumed the risk that the rooster would assault her. Thus, she collected nothing.

sign170227Interesting story, one might think, if you own a rooster. True enough, but there’s a tree lesson here. Josie held herself out as a specialist in pet sitting. Like a homeowner who knows she has a danger tree and hires a tree service to remove it, the Smiths had no duty to give Josie any special warnings. Ordinarily, the Court said, “there is no duty to give warning to the members of a profession against generally known risks.”

Josie was a professional pet sitter with 9 years of experience, and admitted she had a responsibility to educate herself about the animals she takes care of, yet failed to do so for roosters. The Smiths cannot be blamed, the Court held, if Josie failed to inform herself of those risks.

Likewise, a tree service hired to remove a dangerous tree has no right to expect the homeowner to warn of dangers associated with the job.

Gilreath v. Smith, Case No. A16A1747 (Ct.App. Georgia, Feb. 17, 2017). While pet sitting for Bruce and Jodi Smith, Josephine Gilreath was attacked and injured by the Smiths’ rooster, which caused a serious infection with long-term consequences. Gilreath sued, but the trial court granted summary judgment in favor of the Smiths on the ground that Gilreath assumed the risk. Gilreath appealed.

Held: Josie Gilreath cannot collect, because she assumed the risk.

For 9 years, Josie was self-employed as a pet sitter doing business as Crabapple Critters. During that time, she took care of “horses, dogs, cats, all sorts of animals.” Josie belonged to the National Association of Professional Pet Sitters, an organization so august that it even has a website. Although she had worked briefly on two farms, taking care of horses, prior to working for the Smiths, Josie did not have any training or experience with chickens. As a pet sitter, Josie has a responsibility “to a point” to educate herself about the kind of animals she would be working with, but that prior to accepting the job with the Smiths, she had not done any research on how to care for roosters and had not heard anything about their temperament.

For several years before the incident, the Smiths had three dogs and some chickens, including at least one rooster named Sam. The chickens, including Sam, were kept in a coop that had two signs on it, one that said “WELCOME” and one that said “CAUTION AREA PATROLLED BY ATTACK ROOSTER SECURITY CO.” Sam had previously attacked Jodi Smith and her mother, but the Smiths never told that to Josie.

Josie provided pet sitting services to the Smiths twice before, including taking care of the chickens. Once, the Smiths hired Josie to watch the animals for four days, and instructed her on feeding the chickens. This included, among other things, opening the door to the coop to fill up the water dishes. Jodi Smith told Josie, “You do not have to fill them up if you feel uncomfortable with Sam the Rooster. I use a garbage can lid to separate myself from him.” Another time, Jodi gave Josie a note to “Just throw food into cages. Rooster will attack!”

The third time, the Smiths gave Josie no further instructions, but asked her to collect eggs from the chickens. When she tried to do so, the rooster attacked. It was ugly.

The Court held that Josie assumed the risk of injury, because she fully appreciation of the danger involved and without restriction of her freedom of choice either by the circumstances or by coercion, deliberately chose an obviously perilous course of conduct.

The Smiths were obligated to show that Josie had knowledge of the danger; understood and appreciated the risks associated with such danger; and voluntarily exposed herself to those risks. The Court said the knowledge does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

Here, the Court said, Josie had been warned of the relevant danger during her prior pet sitting, that the rooster would attack and that a garbage can lid was useful for controlling the rooster. Josie claims that if she had known that the rooster had actually attacked Jodi Smith and Jodi’s mother, she “probably” would not have taken the job. But the Court said that was a distinction without a difference: being warned that the rooster “will attack” is the same as having been warned that the rooster had attacked in the past.

Josie has no evidence the Smiths had superior knowledge of the risks associated with the danger. Although the Smiths knew that the rooster had attacked two people, there is no evidence that they knew that the rooster could cause wounds or infections of the sort that Josie suffered. Ordinarily, there is no duty to give warning to the members of a profession against generally known risks. And Josie, an experienced and professional pet sitter, admitted that she had a responsibility to educate herself about the animals she takes care of yet failed to do so for roosters. “The Smiths cannot be blamed,” the Court said, “if Gilreath failed to inform herself of those risks.”

Finally, the Court said, Gilreath admitted that she chose to take the job knowing that she had been told that the rooster would attack. She admitted that she could have turned down the job but chose not to. The Court found Gilreath had equal knowledge of the danger and risks and acquiesced in exposing herself to the risk without taking any precautions.

– Tom Root

TNLBGray

Case of the Day – Friday, September 11, 2020

TREE TRESPASS LOTTERY

There are a lot of moving parts to today’s case. First, we have the classic setup for treble damages. A neighbor is told repeatedly that his belief as to his property boundaries were wrong, but he pig-headedly ignores the news he does not want to hear. After the inevitable trespass results in the butchering of hundreds of trees, the unhappy victims – who don’t want justice as much as a pound of flesh – decide to pile on with multiple experts, each describing the loss a little differently. Finally, we have a plaintiff’s lawyer who screws up on a minor, rather technical rule of pleading, and costs his clients some money.

In any fair contest, the Linebargers should have gotten treble damages from their neighbor, George. How many times do you have to be put on notice that you are in risk of a timber trespass before you check your figures, just to be safe?

Still, the punishment ought to fit the crime. Like the Alaska case we considered a few months ago, compensation for loss is one thing. A lottery ticket that would score you two-thirds of the fair market value of your 30-acre spread for the loss of 4 acres of trees just seems wrong.

But no one should quibble with the Linebargers getting treble damages. Pig-headed George had it coming. But their lawyer somehow forgot to ask for treble damages in his complaint, or even at trial. A basic tenet of procedural due process is that a defendant should get notice of what the plaintiff wants to stick him or her with, and an opportunity to put on as good a defense as the defendant can muster and the law allows.

In today’s litigious world, the Linebargers would have gone after their lawyer’s malpractice policy the day after the appeals court ruled.

Linebarger v. Owenby, 79 Ark.App. 61, 83 S.W.3d 435 (Ark.App. 2002). George Owenby’s property lies south of a heavily wooded, 30-acre tract owned by Jerry and Margaret Linebarger. The Linebargers bought the northern 20 acres of their property in 1976, where they built a weekend cabin. They bought the southern 10 acres in 1993 to serve as a buffer between their cabin and neighboring lands.

In 1998, George sold the timber on his tract to Canal Wood Corporation. Canal began cutting in the fall of 1998 and, in the process, cut 329 trees from the southern 10 acres of the Linebargers’ land. Jerry complained that he had tried to tell George for years that a 1987 survey George used to establish his boundary was wrong, and that there was a more recent survey available.

As late as December 1997, when George told Jerry he was thinking of selling his timber, Jerry reminded George of the boundary problem and asked George to call him before proceeding. Heedless of this good advice, George made his deal with Canal, and, when Canal noticed some evidence of a boundary different than the one George had indicated, George provided Canal with the 1987 survey. In reliance on the wrong survey, Canal marked the acreage in such a manner that some of the Linebargers’ trees were cut.

Jerry and Marge finally got George’s attention by suing him and Canal, trespass and destruction of trees “that had been used for shade and beauty.” They asked for damages that would allow them to replace the lost trees, for attorney fees and costs, and for anything else to which they might be entitled. At trial, the Linebargers offered testimony of three experts on the amount of damages they had suffered. One, Bill Kelly, said the stumpage value of the cut trees was $1,081.60 and that it would cost $643.50 to prepare the site for re-planting. Another expert, real estate appraiser Wayne Coates, testified the market value of appellants’ property was $68,000 before the cutting and $62,000 afterward (which included $3,000 in clean-up costs). A third expert, Al Einert, placed a value on every tree that had been cut and determined the total value of the trees to be $44,702. Naturally, the Linebargers liked the Al’s number the best.

The trial judge found that Canal had failed to obtain a survey prior to cutting the trees and had trespassed on Linebarger land as the result of George’s intentional failure to disclose the true the correct survey. However, the judge found that the $44,702 damage figure testified to by Al was disproportionate in relation to the fair market value of the land. He awarded the Linebargers $5,000 for reduction in value of the land, based on Wayne Coates’s testimony, plus $1,081.60 stumpage value and $643.50 in clean-up costs, based on Bill Kelly’s testimony.

The Linebargers appealed.

Held: The replacement value of the trees was grossly disproportionate to the diminution of the land value, and would be a windfall for the Linebargers.

The Linebargers complained that the trial court should awarded them the $44,702 replacement value of the trees. Arkansas courts have recognized that when ornamental or shade trees are injured, the use made of the land should be considered and the owner compensated by damages representing the cost of replacing the trees. However, fact situations may arise in which recovery of the replacement cost of trees would yield a result grossly disproportionate to the fair market value of the land and thus would be an inappropriate measure of damages. The evidence in each case determines what measure of damages is to be used.

Here, the trial judge acknowledged the Linebargers had used their trees for screening and shade, and he gave due consideration to the replacement measure of damages. However, he found that most of the trees cut were behind and over the crest of a hill from Jerry and Marge’s cabin, which tended to reduce the harm they suffered. After all, you can’t derive shade from trees you can’t see. He also found that the replacement cost of the trees would be disproportionate in relation to the fair market value of the land.

The Court of Appeals agreed. “We cannot say that the trial judge abused his discretion in making the damage award,” the Court wrote. “Although he recognized that an award of replacement value might be possible, he declined to use that measure of damages because: 1) the cut trees were behind and over a crest from the cabin; and 2) the replacement value would be disproportionate to the land value. The location of the cut trees in relation to the cabin is a legitimate factor to consider. The trees provided only minimal shade, ornamental, or landscaping value to the appellants’ residence.”

It was obviously meaningful to the appellate court that if George paid the Linebargers the full replacement value of $44,702 for trees cut on 4.29 acres, Jerry and Marge would have received 67% of the value of the entire 30 acres as a whole (including the cabin). Such an award would exceed the stumpage value of the cut trees by over $43,000.

The Linebargers cited Ark. Code Ann. § 18-60-102 (a), which provides that if a person cuts down another’s tree, he may be liable for treble damages. Here, the Court replied, the trial judge found that the wrongful cutting in this case occurred through George’s intentional conduct. In cases of intentional wrongdoing involving the cutting of trees, the victim may recover treble damages. But despite his finding of intentional conduct, the judge declined to award treble damages in this case, based on the idea that a court of equity cannot award treble damages.

The judge was right, the appellate court said, but for the wrong reason. Jerry and Marge did not include a request for treble damages in their pleading, nor does the record reveal that they notified George and Canal at trial that they would be seeking exemplary (punitive) damages. A defendant is entitled to be given adequate notice of the remedy he or she will be confronting. An award of treble damages would have been inappropriate in the absence of the Linebargers pleading for them or the issue being tried with the express or implied consent of the parties.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, September 10, 2020

FISTS, NOSES AND TREES

punch50720Everyone’s heard the old canard that “the right to swing my fist ends where your nose begins.” Imagine your nose is a 65-foot tall maple tree, and my fist is a backhoe. Good luck with that – most imaginations aren’t quite that agile.

Here’s the problem we’ve been looking at the past several days. We all know about “self help,” the venerable old Massachusetts Rule that limits a landowner to trimming away encroaching branches and roots from a neighbor’s tree up to the property line. Michaelson v. Nutting – and virtually every encroachment case decided in the eight decades since that decision – has given a property owner the right to trim back a neighbor’s tree to the boundary without any limitation.

At the same time, we all know about boundary trees, those trees whose trunks enter the earth smack on the property line, so that tree is attached to the ground in both properties. Boundary trees are special, and the general rule is that neither property owner may trim the tree without the consent of the other.

But what happens when a neighbor’s tree is not on the boundary, but so encroaches on a landowner’s property – both above ground and below ground – that the practical effect of the landowner’s Massachusetts Rule self-help will be to kill the tree?  Well, like many things in life, that depends… In Washington State, the tree’s death is just so much collateral damage, and tough luck to the tree’s owner. In California and New York, on the other hand, it’s Mr. Rogers’ Neighborhood: the Massachusetts Rule yields to the imperative that the tree not be harmed.

Remember King Solomon? When two women appeared in front of him arguing over who was the mother of a baby, the King proposed to settle it by cutting the baby in half so that each woman would get 50 percent of the child. That threat was enough to smoke out the imposter. In today’s case, dividing the tree in half would have had the same effect as cutting up the infant (albeit it with less blood).

The Alvarezes own a nice place in Vermont, complete with a view of Lake Champlain. They have a 65-year old maple tree next to the property line of their neighbors, the Katzes. It was close, but the base of the tree was completely on Alvarez property, so this was no boundary tree the parties were dealing with.

The tree had been standing for almost seven decades. In fact, when the Alvarezes bought the property 20 years ago, the maple had already sent roots and branches across the boundary between the two parcels.

The Katzes, who also enjoy a view of Lake Champlain, have planned for a number of years to add on to their house, essentially doubling its size with a two-story addition. The only problem – or at least, the only problem we care about – was the maple tree. To add on, the Katzes would have to cut away about half of the maple tree’s branches and roots, in all likelihood killing the tree.

The Alvarezes and Katzes tried to resolve the problem amicably, but – just as happened with the women in front of King Solomon – there really wasn’t any middle ground. Either the Katzes would get their way, building onto their house and killing the tree, or the Alvarezes would have it their way. Like Dr. Seuss’s north-going and south-going Zax, neither neighbor would budge.

But then Katz somehow learned all about the Massachusetts Rule. It dawned on him that he could cut back the offending maple tree to the property line, both roots and branches. Sure, the tree might die, but the Massachusetts Rule said nothing about what happened to the tree after a neighbor used “self-cutting” trimming on it.

The Alvarezes ran to court, and obtaining an injunction against Katz. The trial court found that trimming the tree as Katz proposed doing would probably kill it. The injunction prohibited cutting away only about 25 percent of the tree, about half of what the Katzes needed for their ambitious plans.

The Katzes appealed, and the Vermont Supreme Court threw out the injunction. It held that the Massachusetts Rule was a blunt object, and had always been one. A landowner owns everything above and below ground level, and that owner can cut anything he or she wants to cut, without regard for the effect of the cutting. The Court said that was the law in Vermont and just about everywhere else.

The Supreme Court seemed a little uncomfortable with its decision, but it ruled in essence that the law is the law, and that’s the way Vermont had always done it.. It noted, in a hint that was as subtle as an anvil, that cases where Massachusetts-style self-help had been limited – such as in Booksa v. Patel – the theory that had been advanced was that of nuisance. In other words, the Alvarezes could have argued that Katz’s proposed trimming would so endanger the tree that it would interfere with their enjoyment of their property. Recall in Booksa, the court ordered the defendant to trim the encroaching tree reasonably. The Vermont Supreme Court telegraphed that it would probably have done the same, if the Alvarezes’ lawyer had only thought to make the argument. Oops.

Alvarez v. Katz, 124 A.3d 839, 199 Vt. 510 (Supreme Court of Vermont, 2015). The Katzes own property at in South Burlington in the Shelburne Bay area. The Alvarezes own the adjoining lot just to the north of the Katzes. The Alvarezes have a 65-ft. tall maple tree, the trunk of which is located entirely on their property. About half of the branches and roots from the tree cross the property boundary and encroach onto the Katz lot. Some roots extend under the Katzes’ existing deck.

For several years the Katzes have sought to expand their home by adding a two-story addition on the rear. The plans for the construction of the addition would require cutting the roots and branches that are encroaching onto their property. This could encompass up to half of the tree’s roots and branches.

The Alvarezes and the Katzes have been unable to amicably resolve the problem of the maple tree. In 2013, when the Katzes considered taking unilateral action to trim the tree’s roots and branches, the Alvarezes filed for an injunction. The superior court found it more likely than not that removal of 50% of the tree’s roots and branches would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting. The court employed what it called the “urban-tree rule,” under which trimming the roots or branches of an encroaching tree may be proscribed if the trimming will destroy the tree. The injunction barred the trimming of more than 25% of the roots and branches of the tree.

The Katzes appealed.

The Zaxes wouldn’t budge, either …

Held: The injunction was vacated. The Supreme Court reaffirmed “Vermont’s long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree.”

Vermont has long recognized ownership of property to include the ownership of that which is below the ground and that which is attached overhead. The right has been clear for almost 100 years, since Cobb v. Western Union Telegraph Co., (a 1916 decision which stated the Massachusetts Rule before there ever was a Massachusetts Rule). Cobb held that “it is a sound principle that where a tree stands wholly on the ground of one and so is his tree, any part of it which overhangs the land of an adjoining owner may be cut off by the latter at the division line.” The Supreme Court criticized the trial court for conjuring up an “urban-tree rule” that would be an exception to Cobb. The trial court had considered this case to be one of first impression in Vermont because of the anticipated adverse – and likely fatal – effect the root-and-branch cutting would have had on the encroaching tree. The Supreme Court held that any attempt to “distinguish” Cobb, that is, to find that the Cobb case was somehow different just because the Cobb tree was located in a rural setting, was wrong.

Further, the Supreme Court said, the “urban-tree rule” does not enjoy the support attributed to it by the trial court. Outside of two cases, the California decision in Booksa and one obscure New York decision, the Massachusetts Rule (which maybe we should have called the “Vermont Rule”) enjoys extremely widespread support. What’s more, the Court reasoned, the Vermont legislature has had 99 years to modify the Cobb holding by statute, and it has not bothered to do so. The Supreme Court concluded that the “right to cut encroaching trees where they enter the land of another, without regard to the impact on the encroaching tree by such cutting, is well-established under Vermont law.”

The Supreme Court noted that at common law, the right to cut encroaching boughs and roots historically counterbalanced a landowner’s right to grow shade trees on his land, regardless of the impact those trees may have in casting shade or encroaching upon the neighboring property. Common law provided no claim for damages caused by encroaching roots or branches. Instead, the remedy was one of self-help, allowing the cutting of roots and branches to the extent of encroachment.

Where other jurisdictions have departed from the common-law rule and allowed actions for damages as a result of encroaching roots or branches, they have generally relied upon nuisance principles. Even where such actions have been permitted, those jurisdictions continue to recognize the right to self-help. In this case, the Alverezes did not raise a nuisance claim, so “the issue of whether a nuisance claim might exist for the encroachment of roots and branches from the Alvarezes’ tree is not presently before the Court.”

The Supreme Court subtly suggested that the proper way for the Alvarozes to address the problem would be through the law of nuisance ...

The Supreme Court subtly suggested that the proper way for the Alvarezes to address the problem would be through the law of nuisance …

The Supreme Court defined the conundrum as follows: “[T]his case presents the competing interests of neighboring property owners. On the one hand, [the Katzes] have an interest in using their land, which they have purchased and upon which they pay taxes, as they see fit, within permissible regulations, free from limitations imposed by encroaching roots and branches from the neighbors’ tree, which they did not invite and for which they receive no benefit. The Alvarezes seek to restrict the use of the Katz property by preventing the removal of branches and roots on land that is not theirs and for which they have given nothing of benefit to [the Katzes] for suffering the encroachment. On the other hand, the Alvarezes wish to continue to enjoy their tree, which has been there for many years, without placing its viability in peril due to the construction that [the Katzes] wish to undertake.”

The Court observed that if the Alvarezes had the right to have their tree encroach onto the neighboring property, the obvious next question would be to what extent the encroached-upon property owner must suffer such an encroachment. The Supreme Court admitted that on some occasions the “exercise of self-help may result in the immediate or eventual loss of an encroaching tree, given the long-recognized rule in Vermont and its widespread support elsewhere, we decline to depart from the common-law rule in favor of the approach adopted by the superior court.”

– Tom Root

TNLBGray140407