Case of the Day – Thursday, December 6, 2018


Just when I think I have seen all of the chutzpah that it is humanly possible to muster, someone impresses me with an Olympian performance.

Take Henry and Angela D’Andrea, for example. When the roots of their maple tree, after 14 years of impressive growth, began to eat a lightweight concrete-block fence – made with Waylite Superock® blocks, something new to me but apparently a material of note a generation or two ago – Hank and Angie did not offer to fix their neighbor’s wall. They did not even keep their mouths shut, which you might expect the tree’s owners to do under the circumstances.

Not these brawlers. The D’Andreas sued their neighbors, the Gugliettas, demanding that they remove the cracked and decayed fence because… well, because the D’Andreas’ tree had caused the fence to be cracked and decayed. It was a sort-of “because I made the mess, you need to clean it up” argument.

Cosmic justice has a way of getting done. The neighbors did the only thing they could do (lawfully, that is), and counterclaimed against the D’Andreas. The trial court agreed that the fact that the Guglietta fence was unsightly was not enough to make it a nuisance. (Good thing, too… imagine the precedent that would set for all of the unsightly people in this world if their unsightliness made them a per se nuisance). The court did, however, award damages to the defendant Gugliettas for the damage that the D’Andrea maple roots had done to the fence.

The appellate court strained to justify the award, but justify it it did. The Superior Court held that while the Massachusetts Rule addressed both branches and roots in dictating that self-help was the only remedy available to an afflicted neighbor, it could not possibly mean it. Really, the Court ruled, roots were quite different from branches. For instance, roots grow differently than branches, vertically, horizontally, every which way. Plus, the roots are underground: you can see branches and can trim them when needed, the Court opined. But you never see a root until it has caused damage.

Does any of this make sense? That hardly matters… cosmic justice requires that sometimes logic and precedent yield to its demands.

D’Andrea v. Guglietta, 208 N.J. Super. 31, 504 A.2d 1196 (Superior Ct. N.J. 1986). Henry and Angela D’Andrea’s maple tree had been planted about three feet from the boundary about 14 years before. As healthy trees are wont to do, it grew, extending both branches above ground and roots below, until it cracked a Waylite block boundary fence owned by John and Pat Guglietta. The D’Andreas sued the Gugliettas on the grounds that the fence was cracked  and falling down – an unsightly mess – and a nuisance, asking that the trial court order that it be removed.

The Gugliettas counterclaimed, arguing that the fence was fine, but the D’Andreas’ maple tree was the true nuisance.

The trial court dismissed the D’Andreas’ action because their only proof was that the boundary fence was aesthetically displeasing to them. Mere homeliness, the Court ruled, is not enough to support a finding of a nuisance, As for the Gugliettas’ claim, however, the trial court held that the D’Andreas were liable for the unforeseen damage to their neighbors’ wall arising out of root growth from the maple tree.

The maple tree was planted around 1970, about the same time the Gugliettas installed a chain link boundary fence. Three years later, they removed the chain link fence, and replaced it with their Waylite block fence; the maple tree roots were nowhere near the wall when the Gugliettas dug down to put in foundation footings.

Eleven years later, things had changed. The Gugliettas noticed a crack in the wall. Or several cracks. They dug along the wall’s foundation and discovered “gigantic” maple roots up to 30 feet long coming through the wall. A masonry contractor estimated repair would cost about $ 3,000.

The D’Andreas never argued the obvious defense, that the Gugliettas could have avoided the injury to their masonry wall by self-help, that is, by digging down, severing and removing the maple tree roots on their side of the common boundary. The trial court awarded judgment for the Gugliettas on their counterclaim, and gave them damages but no specific relief (like an order that the D’Andreas do something about their tree.

The D’Andreas appealed.

Held: The maple tree was a nuisance, and had to go.

Under common law principles, the Gugliettas were entitled to cut off invading tree roots by exercising self-help, under the Massachusetts Rule. In fact, the trial court held that overhanging tree branches may constitute a nuisance for which an action for damages lies, and that a landowner may exercise the common law right of self-help to lop off overhanging branches to the property line but no further. “As a matter of logic,” the trial court ruled, “no distinction can be made between roots and branches.” It nevertheless awarded damages to the Gugliettas.

The Superior Court, needing to bolster the damage award it obviously agreed with, disagreed. The approach that roots and branches are the same “overlooks real distinctions between the two,” the Court held. “Unlike tree branches, tree roots are largely underground and evident only upon digging down; their extent and girth may be uncertain and unpredictable; they are not commonly pruned or otherwise tended; their severance may endanger the tree’s stability in high winds and rainstorms. A tree root system may extend vertically downward or may spread laterally close to the surface. The relatively uncomplicated law governing invasion of adjoining  property by tree branches may not be fairly applicable under all circumstances to tree roots.”

There is general agreement, the Superior Court said, that tree roots extending under a neighbor’s land are owned by the owner of the land on which the tree trunk stands; that the owner of a tree has no right to its sustenance from adjoining land; and that a neighbor may resort to self-help to remove invading tree roots. The Court acknowledged that the Massachusetts Rule is that damage caused by tree roots spreading from an adjoining property is damnum absque injuria and that the only redress is self-help.

Other reported decisions however, have recognized a cause of action for damages for injury caused by tree roots from a tree or trees planted by the owner of adjoining property or his predecessor. As well, they have barred recovery of damages for tree root injury by applying the defense of avoidable consequences, In fact, the Court observed, the Hasapopoulos court in Missouri viewed as decisive the evidence that the tree involved was “healthy and undecayed” and that plaintiff had failed to resort to self-help.

The Superior Court noted that the Restatement of Torts draws a distinction between nuisances resulting from artificial and natural conditions of land. The former are actionable, while the latter are not.

Here, the Superior Court ruled, the trial court was right to hold that injury to an adjoining property caused by the roots of a planted tree was actionable as a nuisance, irrespective of the absence of proof of prior notice of the nuisance to D’Andreas. Damages were recoverable, even in the absence of any proof that the damages were avoidable or that defendants had “come to the nuisance.”

When the Gugliettas dug down for foundation footings for their masonry wall in 1973, roots from the D’Andreas’ maple tree planted three years before were nowhere about. Nothing in the record, the Superior Court said, suggests that the maple tree’s roots heaved up or were in any way evident in the vicinity of the masonry wall between 1973 and 1984, when the wall cracked, or that the Gugliettas should have foreseen the direction and extent of the tree roots’ growth.

– Tom Root


Case of the Day – Wednesday, December 5, 2018


Yesterday, pro se plaintiff Caryn Rickel survived the arguments advanced by the slick lawyers representing her bamboo-lovin’ neighbors, the Komaromis. The trial court held that her complaint about the Komaromis’ invading bamboo was a claim on which she could get relief.

But subsequently, the trial court bought the Komaromis’ argument that because Caryn admitted that they planted the bamboo in 1997 and Caryn sustained damage in 2005, she had at most until 2008 to sue for trespass and nuisance.

The reason, of course, are the statutes setting limitations, that is, deadlines by which certain legal complaints have to be brought. The Komaromis’ lawyer probably shouted “a-ha!” when he found that Caryn had admitted she was damaged five years before she sued. Certainly, the trial court shouted it when it agreed with the Komaromis and dismissed Caryn’s lawsuit as untimely.

But for a novice, Caryn was pretty sharp. She took an appeal, arguing that every day the kudzu-like bamboo grew was a whole new affront to her property, and thus the trespass was continuing. The appeals court agreed, although not without a lot of confusing differentiation between continuing trespasses and continuing nuisances, on the one hand, and permanent trespasses and permanent nuisances on the other.

I’m not sure I see the distinction myself. It may be that the confusing definitions won’t help, leaving it like obscenity: we can’t describe it, but we know it when we see it.

For now, Caryn survives a second near-dismissal experience, and she stays alive to fight the bamboo fight.

Rickel v. Komaromi, 144 Conn. App. 775, 73 A.3d 851 (Ct.App. Conn. 2013). After plaintiff Caryn Rickel, won the right to go forward on her claim that the Komaromis’ bamboo had invaded her property, the Komaromis won summary judgment against her in the trial court. Caryn claimed nuisance and trespass. The trial court ruled that because the bamboo began its inexorable crawl across Caryn’s backyard in 2005, her suit filed in 2010 was well beyond the statute of limitations for such actions.

Caryn appealed, arguing that the repeated bamboo encroachment from the Komaromis’ property to her property constituted a continuing nuisance and a continuing trespass, and thus the statute of limitations did not start running.

The Komaromis lived next to Caryn Rickel. In July 1997, the Komaromis planted phyllostachys aureosulcata, a type of invasive running bamboo, along their corner property line, but they did not put up any barrier to contain it. The bamboo encroached upon Caryn’s property. In 2005, during the installation of a patio at the corner of Caryn’s property, a landscaper used a backhoe and dump truck in order to eradicate the bamboo, and then installed steel sheathing along this corner property line in order to protect the patio. Despite the steel sheathing, the bamboo had reentered the area by July 2010.

Caryn sued the Komaromis four months later, bring claims of nuisance, trespass and negligence. She alleged in her complaint that the bamboo “further and repeatedly encroached” on her property and continued to do so. The Komaromis raised a statute of limitations defense on all of the claims against them.

The trial court granted the Komaromis’ motion, concluding that the applicable statutes of limitations had provided Caryn with a maximum of three years from “the date of the act or omission complained of” to bring suit. Because there was no dispute that the Komaromis planted the bamboo in 1997 or that Caryn “discovered the actionable harm in 2005…” Because Caryn did not commence her action against until 2010, the court held that each count of the action was time barred as a matter of law.

On appeal, Caryn claimed that the trial court failed to address the factual question of whether a nuisance or trespass is continuing or permanent requires the  denial of a motion for summary judgment made solely on statute of limitations grounds. She claims that this is because, for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass creates a new cause of action, while a permanent nuisance or trespass involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run.

Held: The Komaromis’ bamboo was engaged in a continuing trespass, and thus Caryn’s lawsuit was timely.

Caryn’s complaint alleged that that the Komaromis’ bamboo repeatedly has encroached on her property, resulting in a continuing nuisance and a continuing trespass. For example, in her nuisance count, she alleged the Komaromis “have planted this nonnative invasive bamboo with no containment of any kind. They have continued to cultivate it and freely allow it to aggressively spread to… adjacent properties… This has been continual nuisance to my use and enjoyment of my land.”

Similarly, Caryn complained the Komaromis “have allowed this nonnative invasive bamboo to aggressively spread from their original planting which was directly on my property line to all three of the [neighboring] properties. The infestation is massive… and has continuously been aggressively invading my land.” Caryn’s continuing nuisance and trespass allegations, the Court said, therefore factor into the question of whether the court correctly concluded that the defendants met their summary judgment burden with respect to the plaintiff’s nuisance and trespass claims, as framed by her complaint.

The Court noted that recent cases treat trespass as involving acts that interfere with a plaintiff’s exclusive possession of real property and nuisance cases as involving acts interfering with a plaintiff’s use and enjoyment of real property. The essentials of an action for trespass are (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; (3) done intentionally; and (4) causing direct injury…” Because it is the right of the owner to exclusive possession that is protected by an action for trespass, usually the intrusion of the property must be physical. Thus, the Court said, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another’s land.”

The statute of limitations for trespass actions in Connecticut is General Statutes § 52-577, which provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” The only facts material to the trial court’s decision on a motion for summary judgment must be the date of the wrongful conduct alleged in the complaint and the date the action was filed.

A “private nuisance,” on the other hand, “is a nontrespassory invasion of another’s interest in the private use and enjoyment of land… The law of private nuisance springs from the general principle that it is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his  neighbor… In order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The interference may be either intentional… or the result of the defendant’s negligence.” A permanent nuisance is one which inflicts a permanent injury upon real estate, while a temporary nuisance is one where there is but temporary interference with the use and enjoyment of property. Whether a nuisance is temporary or permanent is ordinarily a question of fact.”

The statute of limitations for a nuisance claim based on alleged negligent conduct is General Statutes § 52-584. No action to recover damages for injury to real property, caused by negligence, or by reckless or wanton misconduct shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of…” An injury occurs when a party suffers some form of actionable harm.

Nuisance and negligence may share the same statute of limitations, depending on the factual basis for the nuisance claim, but otherwise they are completely distinct torts, different in their nature and in their consequences. A claim for nuisance is more than a claim of negligence, and negligent acts do not, in themselves, constitute a nuisance; rather, negligence is merely one type of conduct upon which liability for nuisance may be based. “Nuisance,” the Court said, “is a word often very loosely used; it has been not inaptly described as a catch-all of ill-defined rights. There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance… There is general agreement that it is incapable of any exact or comprehensive definition.”

In applying these principles to the plaintiff’s claims, the Court said, “summary judgment may be granted where the claim is barred by the statute of limitations… as long as there are no material facts concerning the statute of limitations in dispute.” But here, the date of the act or omission and the date when Caryn first sustained or discovered injury depend on whether the alleged nuisance and trespass are continuing or permanent. Caryn argued that this is because, for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass situation creates a new cause of action, whereas a permanent nuisance or trespass situation involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run.

The applicable statute of limitations runs differently for a continuing nuisance or trespass than it does for a permanent nuisance or trespass. For limitations purposes, the Court ruled, a permanent nuisance claim accrues when injury first occurs or is discovered while a temporary nuisance claim accrues anew upon each injury. Therefore, in the case of a continuing trespass, the statute of limitations does not begin to run from the date of the original wrong but rather gives rise to successive causes of action each time there is an interference with a person’s property. If there are multiple acts of trespass, then there are multiple causes of action, and the statute of limitations begins to run anew with each act.

On the other hand, the Court said, if a trespass is characterized as permanent, the statute of limitations begins to run from the time the trespass is created, and the trespass may not be challenged once the limitation period has run.” Whether a nuisance is deemed to be continuing or permanent in nature determines the manner in which the statute of limitations will be applied. If a nuisance is not able to be abated, it is permanent, and a plaintiff is allowed only one cause of action to recover damages for past and future harm. A nuisance is deemed not abatable, even if possible to abate, if it is one whose character is such that, from its nature and under the circumstances of its existence, it will probably continue indefinitely.

A nuisance is not considered permanent if it is one which can and should be abated. In this situation, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie, and the statute of limitation will begin to run at the time of each continuance of the harm.

Similarly with trespass, the typical trespass is complete when it is committed; the cause of action accrues, and the statute of limitations begins to run at that time. However, when the defendant erects a structure or places something on or underneath a plaintiff’s land, the invasion continues if the defendant fails to remove the harmful condition. In such a case, there is a continuing tort so long as the offending object remains and continues to cause the plaintiff harm. Each day a trespass of this type continues, a new cause of action arises.”

Here, Caryn alleged facts to support her claims that the Komaromis’ conduct in planting the bamboo and then failing to control its growth resulted in a continuing nuisance and a continuing trespass. In seeking summary judgment, however, the Komaromis referred only to three dates to establish the untimeliness of Caryn’s claims — the 1997 planting of the bamboo, the 2005 installation of the patio, and the 2010 commencement of the action – ignoring Caryn’s other allegations.

By conducting its summary judgment analysis only on the basis of the 1997, 2005 and 2010 dates, the trial court did not address the allegations of the defendants’ failure to control the underground spread of the bamboo rhizomes and the above ground spread of the bamboo on the plaintiff’s property. This continuing underground and above ground activity on the plaintiff’s property created a genuine issue of material fact about whether the statutes of limitations were a bar to all of Caryn’s claims encompassed in her trespass and nuisance counts.

Whether the alleged nuisance and trespass by the rhizomes and bamboo were continuing or permanent presents a genuine issue of material fact with respect to the plaintiff’s trespass and nuisance counts. The trial court erred in rendering summary judgment without addressing the plaintiff’s continuing nuisance and continuing trespass allegations, because, by doing so, the court overlooked genuine issues of material fact about whether the alleged nuisance and trespass were continuing or permanent, and thus whether the applicable statutes of limitations had run on the plaintiff’s nuisance and trespass claims.

– Tom Root


Case of the Day – Tuesday, December 4, 2018


I admit to being old enough to remember the Bamboo Curtain, the Cold War political demarcation between the Communist states of East Asia – particularly the People’s Republic of China – and the capitalist and non-Communist states of East, South and Southeast Asia.

As the passing of President George H.W. Bush – the man on whose watch many of those kinds of “curtains” fell – has reminded us, the Iron Curtain, Cactus Curtain, Bamboo Curtain and others of that ilk are now relics of unpleasant history.

But “bamboo curtains,” and literal ones at that, are still with us. Every so often, I am reminded of that when I come across a case involving a stand of bamboo, encroachment that usually started when some well-meaning homeowner (who maybe anticipates an attack of hungry pandas) plants a little stand of bamboo in his back yard.

The problem is that the owner has a “little stand of bamboo” only for a minute or so. The stuff is pernicious and fecund. Bamboo, which is a giant grass and not a tree, has fairly been called one of the world’s most invasive plants. Once established, it is next to impossible to control. The sprouts that shoot up from the ground each spring can grow 12 inches a day. The underground roots of common running “fishpole” bamboo, which can easily reach 15 feet tall, can travel as far as 20 feet or more from the original clump. The experts suggest you control it by digging a two-foot deep trench and lining it with aluminum. Or lead. Or titanium. Or concrete. But whatever you use, leave a portion of it sticking up above ground, because bamboo roots can jump barriers like Superman leaps buildings.

Bamboo: the Asian carp of grasses. As one homeowner site puts it: When you need a concrete bunker to contain a plant, you know you’re in trouble.

Bamboo is not a very good idea. Unless, of course, you’re like Mike and Roberta Komaromi, who simply did not give a rip that their bamboo stand was galloping across neighbor Caryn Rickel’s lot. Usually, we complain about people foolish enough to represent themselves, but here, we grudgingly admit that pro se litigant Caryn was holding her own.

The Komaromis were smug, arguing that they had no duty to corral the bamboo. Well, as is usually the case when hard facts collide with justice, courts find a way to recompense the victim. So it did here, ruling (and right on the Bay State’s south border, too) that the Massachusetts Rule cut no ice in Connecticut.

Rickel v. Komaromi, 2011 Conn. Super. LEXIS 5254 (Superior Ct. Conn., July 13, 2011): Caryn Rickel, bringing her case without a lawyer, complained that her neighbors Mike and Roberta Komaromi planted bamboo in their yard without any plan for containment. As a result, her back yard has been overrun by invasive bamboo.

Mike and Bobbi, who did hire a lawyer, filed a motion to strike the complaint as legally insufficient. That is to say, they claimed that if everything Caryn said in the complaint were true, she still was entitled to no relief.

Here Mike and Bobbi complained that Caryn has not alleged that they had any legal duty to her.

Held: Connecticut would follow the Hawaii Rule, and under that Rule, Caryn had adequately claimed her neighbors had a duty to her which they violated with the bamboo. “The essential elements of a cause of action in negligence are well established,” the Court said, “duty; breach of that duty; causation; and actual injury.” There can be no negligence without there first being a cognizable duty of care.

The test for the existence of a legal duty of care, the Court said, entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.

So how did Caryn do? First, she alleged the Komaromis planted bamboo without any plan for containment and watched while the non-native plant fully invaded Caryn’s back yard. She also alleged the Komaromis failed to take action to alleviate the situation even though the bamboo growth was readily visible. This, the Court ruled, sufficiently alleged that the damage to Caryn’s property was reasonably foreseeable to the Komaromis.

Second, the Court held, the Komaromis’ responsibility for their negligent conduct should extend to the Caryn on public policy grounds. The Court looked at (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions. Consideration of these four factors, the Court said, “supports the conclusion that the court should impose a duty on a property owner to refrain from planting bamboo without a containment plan in order to avoid harming an adjacent property.”

First, property owners are normally expected to refrain from engaging in conduct that would cause damage to an adjacent property. Although landowners may reasonably expect some level of discomfort from having adjacent property owners, it does not mean that property owners should reasonably expect bamboo belonging to an adjacent landowner to fully invade their property.

For the second factor, as a matter of public policy, it is desirable to promote property ownership, and the ability to live free of concern of encroaching vegetation from adjacent properties directly impacts this goal. Allowing a landowner to cultivate his or her land “should be fairly balanced against the rights of adjacent landowners, and imposing a duty on the cultivating landowner whose vegetation harmfully invades another’s property would be in accord with public policy.”

Turning to the third factor, it is true that imposing a duty like this one could encourage other property owners suffering from the same problem to bring similar actions. On the other hand, however, establishing such an affirmative duty may deter potential defendants from engaging in this type of activity.

Finally, the Court rejected the Massachusetts Rule. That rule provides that a defendant has no duty to prevent his trees from causing damage to his or her neighbor’s property and that “a landowner’s right to protect his property from the encroaching boughs and roots of a neighbor’s tree is limited to self-help, i.e., cutting off the branches and roots at the point they invade his property.” The Hawaii Rule, by contrast, grants the landowner a remedy for damages caused by the encroaching vegetation of an adjacent property owner.

The Court adopted the Hawaii Rule, it said, for two main reasons. First, the Rule serves as a gatekeeping mechanism in that it imposes a requirement of actual harm to the property, discouraging trivial suits while simultaneously providing a cause of action for deserving plaintiffs. The Massachusetts Rule, by comparison, “deprives deserving plaintiffs of any meaningful redress when their property is damaged.” Second, the Massachusetts Rule is not “realistic and fair… Because the owner of the tree’s trunk is the owner of the tree,” the Court opined, “we think he bears some responsibility for the rest of the tree. It has long been the rule in Hawaii that if the owner knows or should know that his tree constitutes a danger, he is liable if it causes personal injury or property damage on or off of his property… Such being the case, we think he is duty bound to take action to remove the danger before damage or further damage occurs.”

In addition, the Court said, Caryn had linked the breach of the Komaromis’ duty, the damages she suffered and the causation between the breach and the damages suffered. She alleged that the Komaromis planted the bamboo and that their subsequent inaction as to the bamboo growth “directly caused the harmful condition and continual damage” to her property. Accordingly, the Court said, Caryn has successfully set forth a cause of action in negligence.

So does Caryn win an injunction to get the bamboo eradicated? Stay tuned tomorrow…

– Tom Root


Case of the Day – Monday, December 3, 2018


treelawn150217No issue of property ownership may be more misunderstood than the question of who owns the tree lawn, sometimes called the boulevard lawn, that strip of land between your front sidewalk and the street.

The confusion was illustrated recently by our reader Joel, who wanted the city to remove a dead tree on his tree lawn. He had always just understood that the tree lawn wasn’t his, and that he couldn’t cut or trim the trees growing there. We straightened him out, but a lot of uncertainty remains.

In today’s case, homeowners Gene and Joan Foote knew the tree lawn was theirs, but their failure to appreciate the limits of their rights led to a suit against the city. It seems that the city was improving the street, and its plan included the removal of four trees from the Foote’s tree lawn. The homeowners demanded compensation, arguing that the city’s removal of the beautiful trees amounts to a “taking” of property under the 5th Amendment, a “taking” for which they must be paid. A trial court agreed with them.

The Minnesota Supreme Court reversed the decision. It explained that the Footes, like any owner, was entitled to use all of his or her property right to the centerline of the street. However, the property was owned subject to a public easement (that’s why a deed always says “subject to all legal highways, easements and other restrictions of record”). In other words, the owner’s use of the land had to yield to the public easement of the highway.

Here, the city was merely using more of its highway right-of-way by expanding the street. As long as it remained within the bounds of its easement — which usually extends beyond pavement for a distance — the city could remove trees and other of the owner’s property to the extent needed for the public’s enjoyment of the easement. The removal of the trees let the public enjoy the easement, and no money was due the property owner because of it.

Some road-widening projects can get quite close to buildings. Be sure to check on the width of the highway easement before you build.

Some road-widening projects can get quite close to buildings. Be sure to check on the width of the highway easement before you build.

How wide is the right-of-way? It depends on the state you live in and size of the street. If you have questions, you could check with your local government’s engineering department. Or your lawyer.

Lawyers love to answer questions. Usually for a fee.

Foote v. City of Crosby, 306 N.W.2d 883 (Sup.Ct. Minn. 1981). Gene and Joan Foote owned a home in the City of Crosby. The platted right-of-way of the street in front of the home, Cross Avenue, was 80 feet wide and extended to approximately 6 inches from the front steps of the house.

The center 32 feet of the right-of-way was paved. Next to the pavement is a 10-foot wide grassy boulevard, and then a 4-foot sidewalk. On the boulevard were four large healthy elm trees which had been maintained by the Footes. Although the trees had cracked and heaved the sidewalk, there had been no complaints that the trees impeded foot travel, nor had the trees interfered with motorized travel.

The city began an extensive municipal improvement project prompted by the need for storm sewers, including a new lateral line under Cross Avenue. To provide proper grade for drainage, Cross Avenue would be torn up entirely, a plan which called for removal of the four trees, because root cutting necessary to accommodate them to the change in grade and repositioning of the curb and sidewalk would likely kill them. The Footes sued for an injunction, arguing the city couldn’t cut the trees without paying them compensation. The district court granted the injunction, and the city appealed.

sign150217Held: The injunction was dissolved. The Court observed that the owner of property abutting a right-of-way for public travel had the right to use his one half of roadway in any manner compatible with use by public of its easement. Any encroachment on the public right-of-way must be clearly obstruction to public easement before municipality may remove it without an adjudication that it was in fact an obstruction.

The Footes were not entitled to compensation for removal of trees within public right-of-way, the Court ruled, although they had a property right in the trees, because the taking was pursuant to a project which was a proper exercise of police power and encompassed a public purpose, and removal of trees was necessary to implementation of the project. After all, the Court said, the removal of the boulevard trees within the platted right-of-way was necessary to the street improvement project, and if not removed, the trees would clearly obstruct the public’s easement of travel.

– Tom Root


Case of the Day – Friday, November 30, 2018


There is a wonderful doctrine in the law – and the law is a place where we do not really expect to find anything wonderful – that is known as the rule of de minimis.

Mentioning de minimis gives me an excuse for another shout-out to my sainted Latin teacher from days of yore, Emily Bernges (who instilled in me a love of, if not fluency in, that grand Mother of Languages). But more to the point, the de minimis rule is a necessity: if it didn’t exist, we would have to invent it. Simply put, the rule of de minimis holds that some wrongs we suffer are so slight to be unworthy of recompense.

De minimis is the shortened form of “de minimis non curat lex,” which Emily would have told us means that “the law does not concern itself with trifles.” Queen Christina of Sweden, who occupied the throne in the mid 17th century – and who may have studied under Emily, too, for all we know – favored the more colorful adage, “aquila non captat muscas,” that is, “the eagle does not catch flies.”

We sometimes think too many plaintiffs want to sue over trifles. The plaintiffs in today’s case, the Bandys, sure did. The neighbors’ trees dropped sap and leaves on their property, and their roots clogged a sewer line. The Bandys did not find that dandy, and so they sued.

The court was aghast. A tree dropping leaves and sap! Who had ever heard of such a thing?

Besides everyone, that is. Trees drip sap and drop leaves and grow roots all the time. It’s just what trees do. Once the law starts making tree owners pay for that, there will be no end to the litigation.

The neighbor’s leaves fell in your yard? Here’s a rake. Deal with it.

Bandy v. Bosie (1985), 132 Ill. App. 3d 832, 477 N.E.2d 840. Edith and Chuck Bandy sued their neighbors, Jim and Becky Bosie, complaining that the Bosies’ maple and elm trees dropped sap and leaves on the Bandy’s property, and roots from the trees had damaged the Bosies’ sewer line, causing water to back up in their basement.

The Bosies moved for dismissal, arguing that the Bandys had no cause of action. The court agreed, and dismissed the complaint.

The Bandys appealed.

Held: The Bandy complaint failed to allege a nuisance. The court found the Bosies were entitled to grow trees on any or all of their land and their natural growth reasonably resulted in extension of roots and branches into adjoining property.

The Bandys argued first that the Bosies should be made to cut down the trees, because there was no adequate remedy at law, and the trees were a nuisance. Bosies rejoined that the trees did not constitute a nuisance and that, in any event, the Bandys were not entitled to equitable relief.

Illinois courts have previously held in Merriam v. McConnell (1961), 31 Ill. App. 2d 241, 175 N.E.2d 293, that equity could not be used to control or abate natural forces as if they were a nuisance. Illinois follows the Massachusetts Rule, and holds that an owner is entitled to grow trees on any or all of the land, and their natural growth reasonably will result in extension of roots and branches into adjoining property. The effects of nature such as the growth of tree roots cannot be held within boundaries, the risk of damage from roots on other lots is inherent in suburban living, and to allow such lawsuits as this one would create litigation over matters that should be worked out between the lot owners.

But in another Illinois decision, In Mahurin v. Lockhart (1979), 71 Ill. App. 3d 691, 390 N.E.2d 523, the plaintiff sued an adjoining lot owner for damages resulting from a dead limb falling from the defendant’s tree onto plaintiff’s property, injuring the plaintiff. The defendant contended she had no liability for damages occurring off of her land resulting from the existence of natural conditions on her land. The appellate court rejected that view, holding that defendant’s theory arose in an era when most land was heavily wooded and sparsely settled, and when the burden of inspecting those larger properties for natural defects would have been unreasonable. In a more modern urban setting, the court considered, the burden of inspecting for unsound trees which might injure persons off of the owners’ property to be reasonable.

Here, the complaint is silent as to when and how the trees gained life. That is one reason, the Court said, why the complaint failed to allege a nuisance.

In addition, the Court said, even if counts I and II had stated that defendant had planted the trees, the counts would still have failed to state a cause of action for injunctive relief. The Court said, “We do not consider trees that drop leaves on neighboring lands or trees that send out roots that migrate to neighboring lands and obstruct drainage to necessarily constitute a nuisance. We recognize that some decisions in other States are to the contrary. We agree with the Merriam court that, under the circumstances here, to permit the falling of leaves or the migration of the roots to give rise to injunctive relief would unduly promote litigation over relatively minor matters. Usually, the damage from the offending leaves would be minimal, and the accurate locating of the source of the offending roots would be difficult and expensive.”

– Tom Root


Case of the Day – Thursday, November 29, 2018


lemonsup160302Lemon and Curington were neighbors. Things were neighborly when Curington planted a pair of poplar trees — fairly fast growing and tall things — near the property line.

Over the years, things became less so, as several legally significant events occurred. First, the trees got big. As they did, the trunks ended up crossing the boundary line so that the trees were growing on both Curington’s and Lemon’s land. Second, the root systems expanded and began putting the squeeze on Lemon’s foundation. Third, Lemon discovered that if he used self-help, trimming back the roots and topping off the trees, he would make them unstable, turning the poplars into topplers. So Lemon — who was completely soured on the trees by this point — sued Curington, asking that the trees be declared nuisances and that Curington be made to remove them.

Life had given Curington a Lemon, but he tried to make lemonade. He argued that the Massachusetts Rule gave Lemon no aid, and that he was limited to self-help. However, the court relied on the Idaho nuisance statute (noting in passing that the Massachusetts Rule didn’t really apply to a tree growing in both properties at once, a fascinating observation we wish it had explained a bit better), ruling that the trees were nuisances for having damaged Lemon’s foundation. It also seemed important to the Court that Lemon couldn’t trim the tree and roots himself without making the poplar a “danger” tree that was likely to fall.

founda160302This case is a gallimaufry of issues — the interplay of nuisance statutes with common law and the interplay of boundary trees with encroachment — as well a rather poorly-thought out dismissal of the Massachusetts Rule for reasons that were unnecessary. After all, the Massachusetts Rule was specific in its limitation to non-nuisance encroachment, twigs and leaves and that sort of thing. The Lemon decision, remarkably similar to the Hawaii Rule (but decided 14 years before the Hawaii Rule was adopted), is also quite similar in its fact pattern to Fancher v. Fagella, a 2007 Virginia Supreme Court decision. In fact, a real argument can be made that this Idaho case was entirely unnecessary in its treatment of the venerable Massachusetts Rule.  Michalson v. Nutting, in our view, is a “big tent” with enough room for all of the poplars, sweet gums and banyan trees that followed.

Lemon v. Curington, 78 Idaho 522, 306 P.2d 1091 (1957). Lemon and Curington owned adjoining land with a common boundary, on which two poplar trees had been planted over 50 years ago. The trees had grown to approximately four to five feet in diameter at the base, and the trunks and branches extended across the boundary line. The roots were surface feeders and, in one case, extended from the boundary line to and against the foundation of Lemon’s house, cracking the house’s foundation. pushing the wall of plaintiffs’ house inward.

lemondown160302If Lemon topped the trees and cut the roots extending onto his land, the trees are likely to fall over. Lemon sued, alleging the trees to be a nuisance, and asked authority to remove the offending trees.

The trial court authorized the destruction of the tree damaging the foundation, but held the other tree was healthy and mature, and thus not a nuisance. Curington appealed, arguing that the Massachusetts Rule limited Lemon’s remedies to self-help, that is, to lemon’s trimming the tree and roots himself.

Held: The tree is a nuisance, and the Court may order Curington to remove it. The Supreme Court held that the Massachusetts Rule was not dispositive where a nuisance had been shown to exist.

roots160302The Court said “[w]e think the condition here shown to exist constitutes a nuisance under the provisions of Idaho Code § 52-101.”  That statute defined a nuisance to be “[a]nything which is injurious to health … or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” Here, not only had the tree made a mess of Lemon’s foundation, but the evidence showed that if Lemon cut the roots and topped the tree, the whole thing was likely to fall over. The Court said that statute authorized an action by any person “whose property is injuriously affected or whose personal enjoyment is lessened by the maintaining of a nuisance to have it abated.”

Without explaining its reasoning very far, the Court also said that the fact the tree was a boundary tree, on the properties of both parties, made the Massachusetts Rule inapplicable. So while Lemon reserved the right of self-help, the courts were also available to him to abate the nuisance tree.

– Tom Root


Case of the Day – Wednesday, November 28, 2018


Oldsters with droopy pants - not pleasant to contemplate.

Oldsters with droopy pants – not pleasant to contemplate.

A county park had a contract with Green View — a nonprofit company that had the laudable goal of putting our shiftless senior citizens to work cleaning up parks — to maintain the grounds. This is a good thing. Otherwise, retirees with their pants drooping to show their underwear and their “tatts” and funny flat-brimmed baseball caps worn sideways on their heads, just hang around and ride their little electric carts up and down streets and… you know what trouble they can be.

Green View’s people were busy staying out of trouble when a tree branch broke off a tree and struck a park patron during a summer storm. Being aware that a branch certainly would never break off in the middle of a storm unless someone was negligent, the injured woman sued the county and, for good measure, went after the old people, too. She argued that the elderly working for Green Tree had a duty to inspect the park for branches that might fall off in storms, and they had been too preoccupied with talking about their regularity to carry out their obligations.

In depositions, the Green View people admitted that they had looked for dead trees, but they explained that the county employees were responsible for removal of hazards like that. At least one deponent might have even denounced the plaintiff as a “young whippersnapper.”

whip150213The young whippersnapper was, to use a legal term, whippersnapped. The court ruled that neither Green View’s contract with the county nor the job descriptions for its workers included any duty to inspect the trees or warn of their dangers. The county employees — who were immune from suit (just in case you are wondering why the old folks at Green View were being picked on to begin with) — all agreed that it was the county’s duty to inspect trees and warn of dangers.

The injured plaintiff couldn’t find any duty that Green View or its senior-citizen workers owed her. Without the duty, there could be no negligence.

Senior citizens humor aside, it is this kind of litigation — and the legal fees Green View undoubtedly had to shoulder to defend an action for which there was no factual basis — that drives beneficial programs like this one (intended to provide meaningful work and activity for seniors) out of business. While an injury like the one the plaintiff suffered was lamentable, the reason branches fall in summer storms is fairly well understood.

Sometimes stuff happens, and suing anyone who happened to be nearby seldom makes it better.

stuff150213Rolfhus v. County of Wright, 2001 Minn. App. LEXIS 319, 2001 WL 290525 (Minn.App. 2001). Dawn Rolfhus was seriously injured at a Wright County park in 1997 after a tree branch broke and struck her head during a summer storm. She and her husband sued the county and respondent Green View, Inc., a non-profit organization that provides senior citizens with maintenance and custodial work at state and county parks. Green View had a contract with the county to maintain the park at which Rolfhus was injured.

The county park manager testified that the Green View employees, without discussion, undertook to remove the tree that had fallen on Ms. Rolfhus. Harold Johnson, a Green View employee, admitted to looking for dead trees in the park, but stated that it “isn’t our job to chop down trees or anything like that.” Another employee, Frank Duncan, conceded that he never saw any county employees in the park inspect trees, but that he “knew they did it.” The county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. The district court granted summary judgment to the county based on immunity, and to Green View based on a determination that Green View had no duty to inspect trees or warn park patrons of dangerous trees. Rolfhus appealed the grant of summary judgment to Green View.

brokenbranch150213Held: The grant of summary judgment was upheld. The elements of a negligence claim include a duty, a breach of that duty, proximate cause, and injury in fact. Even where no duty otherwise exists, a person who voluntarily assumes a duty may be liable for failing to exercise reasonable care in performing the duty. One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.

The Court ruled that neither the language of the contract between the county and Green View nor the pertinent job descriptions created a duty for Green View employees to inspect trees or warn of their dangers. Furthermore, the county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. There was no issue of fact remaining, and judgment was appropriately entered for Green View.

– Tom Root