Case of the Day – Wednesday, July 2, 2025

Posted on July 2, 2025 by TLRoot tagged.

WHOSE TREES ARE THEY?

I was writing about your tree lawn recently, that strip of grass between the sidewalk and street. With the big parade tomorrow, you might be anticipating (or fearing) dozens of strangers in their lawn chairs squatting on your strip of domain.

But is it your domain? No 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 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 owners, were entitled to use all of their 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 to 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.

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

Lawyers love to answer questions. Usually for a fee.

Foote v. City of Crosby, 306 N.W.2d 883 (Supreme Court of 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 a proper grade for drainage, Cross Avenue would be torn up entirely, a plan which called for the removal of the four trees, because any root cutting necessary to accommodate 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.

Held: 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 half of the roadway in any manner compatible with the use by the public of its easement. Any encroachment on the public right-of-way must be clearly an obstruction to the public easement before the municipality may remove it without an adjudication that it was in fact an obstruction.

The Footes were not entitled to compensation for the removal of trees within the public right-of-way, the Court ruled. Although the Footes 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 because removal of trees was necessary to the implementation of the project, the Footes could not recover anything for their removal. After all, the Court said, the removal of the boulevard trees within the platted right-of-way was necessary for 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 – Tuesday, July 1, 2025

Posted on July 1, 2025 by TLRoot tagged.

I CHANGED MY MIND… I GUESS

Doug Van Dyke had big plans for getting folks back to nature. He wanted to build a nature trail along a ravine that split his property and that of his waffling neighbor, Eunice North. People could enjoy the birds, the babbling brook, the scent of pine… that kind of thing.

If you ever wonder whether it’s a good idea to get agreements in writing, Doug’s $70,000 mistake will settle that question for you. Because Doug’s nature path would meander a bit onto Eunice’s side of the ravine, he told her about his plans for the trail. Eunice, who admitted that she really had no idea what Doug was talking about, said she just “shrugged my shoulders” and replied that “I guess it would be okay.”

To Doug, that was like the green flag at Indy. But little did he know that Eunice promptly began to fret about her confused acquiescence. She had trouble sleeping for her worry, and finally asked a friend about the plan. Her friend told Eunice the trail idea was a mistake. Armed with this advice, Eunice said, she reneged. She claimed she told Doug that she didn’t want him around.

“No probalo,” Doug – who had no intention at all of honoring Eunice’s change-of-heart – allegedly responded. Regardless of his actual intentions, Doug promised Eunice that he “would go to a different plan.”

That different plan seems to have involved having his contractor run the bulldozers at full throttle instead of half throttle. By the time the diesel fumes cleared, 20 of Eunice’s trees had been ground under Caterpillar treads and the trail encroached on her land.

Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded Eunice $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. It mattered little that Doug and the contractor both told a different story, the bulldozer operator testifying that Eunice had agreed to Doug’s plan. The jury believed Eunice.

Juries do that, often buying one side of the story and not the other, many times against common sense. We don’t know that that happened here, but it sure did not help Doug that he had not bothered to have the property boundaries surveyed before the ‘dozers started dozing.

Much of Doug’s case in the appeals court focused on damages. The jury agreed that Doug’s dozing had made Eunice’s side of the ravine unstable. Eunice’s expert testified that there were three ways to repair the damage, but none of the trees would restore the ravine to its pristine state. Doug argued that said because the land could not be repaired to the way it was before the bulldozers rolled through, then the diminution of the fair market value of the ravine was all that mattered.

Not so, the court said. The law does not require that the evidence show that the damage can be repaired so as to make the property as good as new. While it is a general rule of Iowa law that the cost to repair property is the fair and reasonable cost of repair not to exceed the value of the property immediately prior to the loss or damage, all Eunice was required to do was to establish a fair and reasonable cost to fix things up in order to arrest further deterioration and make the place as good as it can be made. In this case, Eunice showed that she had three means of stabilizing the steep bank after Doug’s earth-moving frolic and only one of those made any sense. She established the cost of that repair, and the value of the property before the damage.

Because the damages did not exceed her expert’s $129,000 repair price tag, it was clear the jury fulfilled its function in weighing the evidence.

Next time, Doug, get the landowner’s OK in writing. Call a surveyor. Stake the property boundaries. Surely that’s cheaper than $71,000.

North v. Van Dyke, Case No. 16-0165 908 N.W.2d 880 (Ct.App. Iowa, 2017). Douglas Van Dyke hired Heck’s Dozer, Inc., to build a trail along a ravine between his property and adjacent land owned by Eunice North. Twenty of North’s trees were removed during the trail’s construction, and a portion of the completed trail encroached upon North’s property. Doug said Eunice gave him permission. Eunice said she initially sort of equivocated, but later told Doug in no uncertain terms that he was to stay off her land.

Doug said he would do so, but he never had the land surveyed or staked, and his guess as to the location of the property line was by guess and by gosh. Doug’s contractor said he met with Eunice, and she approved the plans. Eunice said she had never met the contractor.

Eunice testified that after she told Doug to steer clear of her property, she heard a “‘loud commotion.’ Standing on her deck, she saw ‘two pieces of heavy equipment’ below and ‘trees… flying.’ She decided not to go into the ravine to check on the commotion because she was ‘afraid’ she would get ‘hit with something,’ and she had physical difficulties getting ‘down there.’ Suspicious of an encroachment on her land, she commissioned a survey. The surveyor confirmed her fears.”

Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded her damages of $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. Doug appealed.

Held: Eunice amply proved that Doug should pay treble damages under Iowa Code § 658.4 (2013). The statute requires the damage to trees be committed willfully or without reasonable excuse.” The term “willfully” has been characterized as an intentional and deliberate act without regard to the rights of others. Here, the Court of Appeals said, a reasonable juror could have believed that Eunice said “no” the jurors could have found Van Dyke “acted… without reasonable excuse.”

The jury additionally could have found that Doug’s failure to commission a survey before building the trail denied him any reasonable excuse for the trespass. The testimony established that Doug relied on an “old fence,” “old posts,” a “shed,” and a “roofline” to gauge the boundary.

The measure of damages is the cost of repair, as long as that cost does not exceed the value of the property prior to the damage. Doug complained that because Eunice’s expert testified only that the continued deterioration of the property could be stopped by stabilizing the steep bank, she was not able to show that the property could be repaired to its original state.

The Court of Appeals held that nothing requires that the repair estimate be enough to restore the land to its state before the damage. As long as Eunice provided evidence of the fair market value of the land before and after the damage, and a repair cost that is less than the value of the place before the damage – which she did – she met her obligation. Here, the damages awarded by the jury were higher than Doug’s estimate of $2,500.00 to fix it, but well below Eunice’s estimate of $127,000. Plus, the jury’s $50,000 award for trespass and lateral support was well below Eunice’s evidence that the land was worth $250,000.

The damage to the trees was assessed separately, with the value of the lost timber found to be $6,700, trebled to $20,100.

– Tom Root

Case of the Day – Monday, June 30, 2025

Posted on June 30, 2025 by TLRoot tagged.

LET’S BE CAREFUL OUT THERE

Summer has officially begun, and it all feels so… so comfortable, like a pair of old shoes. Begun? June is gone already.

Yesterday, my bride and I wandered through Vermilion, Ohio, for some ice cream at Dairy Dock. Tourists were everywhere, the cottages sitting along the Lake Erie shoreline full, boats in and out of the marinas. Hot fun in the summertime, as Sly puts it.

And just for a moment, I felt like that old twinge, a fear really, that summer days are already running through my fingers like the sands of an hourglass. But to all those folks who complained in May about the cold, wet weather… I hope you’re happy now. It’s hot and muggy and bright… perfect for stopping by the old swimming hole, a place where my friends and I had a lot of fun (back when we didn’t worry about how we looked in a swimsuit, if we bothered to wear one at all).

The old swimming hole. Where we had a lot of fun. And, sadly, a place where tragic things can happen.

We must make an extra effort to be caerfull careful. Especially with July 4th upon us, this might be a good time to consider due care, that is, our duty of care to others.

In a negligence action, a plaintiff generally has to show that (1) the defendant had a duty of care in relation to the plaintiff, (2) the defendant failed to conform its conduct to the requisite standard of care, and (3) an injury to the plaintiff was proximately caused by the failure.

That’s what “fisheye” is all about: Do you really want to be eating food that’s staring back at you?

The duty of care is a moving target, depending to a large extent on the relationship of a defendant to the plaintiff. If someone delivering your double-anchovy pizza and atomic wings falls into an open hole in your front yard, the law treats your liability a whole lot differently than if, say, a thief sneaking around at night trying to steal your garden troll statue falls into the same hole. (But even if the law doesn’t wonder, we’re puzzled that you’d order a double-anchovy pizza).

In today’s case, a young man was paralyzed for life when he dove into the lake at his parents’ house. He had made the same dive countless times before, but the defendant in the case — the non-profit corporation that owned the lake — had recently installed a dredge pipe underwater near the shore. The pipe apparently was just below the surface of the lake.

The lake’s owner argued that the young man was merely a licensee, not an invitee. The difference was crucial because a licensee pretty much takes the property in the condition he or she finds it. The trial court agreed that the plaintiff was much more than that, and after a jury trial, the young man was awarded $1 million (when that was still a lot of money).

The appellate court looked at the corporate purpose of the non-profit lake owner, as well as the terms under which it acquired the lake from the public utility that had owned it previously. Both required that the lake be maintained for public purposes, despite being ringed with private homes, and that evidence convinced the Court of Appeals that the young man wasn’t just someone who was using the lake with the permission of the defendant non-profit corporation. Instead, he was an invitee, someone to whom an invitation had been extended to enter or remain on land for a purpose for which the land was being held open to the public. As such, the landowner had a much higher duty of care to the young swimmer, a duty it violated by not being more careful in installing and marking the dredge pipe.

Not all shallow water is so well labeled.

Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475 (Ct.App.Ind., 2007). Twenty-six-year-old Justin Stichnoth was visiting his parents at their house located on Lake Shafer. During a conversation that day, Justin’s father, Kerry, told Justin about a dredge pipe that Shafer & Freeman had installed in the channel near their dock. Kerry explained that recently he had gotten his boat “hung up” on the dredge pipe. Shortly thereafter, Justin took a running dive off of his parents’ dock into the channel, something he had done often over the years. Justin struck his head on the dredge pipe, which was located on the channel floor about 17 feet from the dock. Justin was left a paraplegic. He sued Shafer & Freeman, alleging that the firm’s negligence caused his injuries because it didn’t warn that there was a pipe underwater, it didn’t mark the pipe so that it would be visible to users of the lake, and it didn’t use reasonable care in dredging the lake.

Shafer & Freeman denied the allegations of negligence. Later, it filed a motion for summary judgment on the issue of whether Justin was a licensee of Shafer & Freeman. The trial court denied it, and a jury found it liable to Justin, awarding $1 million to the injured plaintiff. Shafer & Freeman appealed.

Be careful when diving into unfamiliar water.

Held: Justin was an invitee. Indiana law holds that a person entering the land of another comes upon the land either as an invitee, licensee, or trespasser. The person’s status on the land defines the nature of the duty owed by the landowner to the visitor. Licensees have a license to use the land and are privileged to enter or remain on the land by virtue of the permission of the owner or occupier, but they take the premises as they find them. Invitees, on the other hand, are owed a much higher duty of care. The decisive factor with regard to whether a landowner has extended an “invitation” or “permission” is the interpretation that a reasonable man would put upon the owner’s words and actions, given all of the surrounding circumstances. Here, the Court found, the lake was held open to the public, even though it was surrounded by private property, and thus Justin — who dove off a dock and struck his head on a dredge pipe located on the channel floor — was an invitee rather than a licensee for purposes of personal injury action. The Court held that the articles of incorporation of Shafer & Freeman, the non-profit corporation that owned the lake, provided that the corporation would protect and enhance the water quality of the lake in order to facilitate public recreational use and ensure continued public access.

What’s more, the Court said, the agreement by which Shafer & Freeman acquired the title from the electrical utility, provided that Shafer & Freeman would hold the lake for public, charitable, recreational, conservation, and environmental purposes. It is not enough, to hold land open to the public, that the public at large is permitted to enter at will upon the land for their own purposes. As in other instances of invitation, the Court said, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use and that the public will not merely be tolerated, but is expected and desired to come. When a landowner lets local boys play basketball on his vacant lot they are licensees only. If he installs playground equipment and posts a sign saying that the lot is open and free to all children, there is then a public invitation, and those who enter in response to it are invitees.

– Tom Root

Case of the Day – Friday, June 27, 2025

Posted on June 27, 2025 by TLRoot tagged.

HOW MUCH IS ENOUGH?

A eucalyptus tree, similar to the one that offended Ms. Cannon.

There was a time, back when people of grit populated the land, that a landowner only had one choice when his neighbor’s trees encroached – to cut ‘em back. The Massachusetts Rule was the coin of the realm: if you didn’t like your neighbor’s tree overhanging your eaves, or its roots wrapping around your sewer line, you only had one option. The courts didn’t want to hear about it. Self-reliance was what it was all about.

Then along came the Hawaii Rule, which suggested that a naturally growing tree could be or could become a nuisance, and that an aggrieved landowner could sue for an order requiring its removal. One rule does not necessarily negate the other. So when does one oil up the chainsaw, and when does one fire up the word processor?

The Massachusetts Rule is, generally speaking, a blunt instrument. It’s one thing to cut away branches that pose a threat (or even an inconvenience) to your property. But what if cutting a limb back to the property line leaves a 15-foot leafless stub extending from the branch to the boundary. That’s not necessarily according to ANSI Standard A-300, but on the other hand, you don’t have the right to trim it properly unless your neighbor consents to you coming onto his or her land to do so.

Or, more dangerously, what if you cut back roots to the extent that the tree loses too much subsurface support, and falls on your neighbor’s new Bugatti Chiron? Are you liable? After all, you did no more than what the Massachusetts Rule permitted you to do.

The Hawaii Rule, on the other hand, is Doug Lewellyn’s dream. What an All-American solution – let’s sue! When is harm sensible? When your foundation walls collapse? When a dead branch falls on your Bugatti? When leaves clog the filter on your swimming pool? How much harm is enough?

Joan Cannon lived next to Lamar Dunn. Joan was unhappy with the roots from the Dunns’ eucalyptus tree, which were encroaching underground onto her land, as roots are wont to do. After all, a tree will quite often send roots out 35 feet or more from the base of the trunk, and the root system has little regard for some lines drawn on a recorder’s map.

We’re not sure why Joan was so exercised. Maybe she was naturally crotchety. Perhaps she was unusually territorial. Maybe her neighbor had a nice Bugatti, while Joan drove a Yugo. What we can be sure of is that the eucalyptus roots weren’t really causing any harm.

Sometimes encroaching roots can be an inconvenience.

That didn’t stop Joan from suing the Dunns. The trial court denied an award of any damages and refused to order Lamar the appellee to remove the offending roots and tree. Joan appealed.

The Court of Appeals considered the classic Restatement of the Law trespass approach, which held simply that if a neighbor owns something that trespasses, he or she has to remove it if there is a duty to remove it, regardless of whether it causes harm or not. That’s the rub, the court said. When does such a duty arise?

The court found guidance in the Restatement on nuisance and held that a duty to remove offending branches or roots arose when some actual and sensible or substantial damage has been sustained. Joan’s general objection to the unseen eucalyptus roots did not equate to harm. Thus, the roots could remain.

Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (Ariz.App. Div. 2 1985). This case involves the liability of Lamar Dunn, an adjoining landowner, for roots from a eucalyptus tree that invaded the subsurface of land belonging to his neighbor, Joan Cannon. The trial court found that the roots had caused no actual damage, and denied an award ordering the Dunns to remove the offending roots and tree.

Joan appealed.

Held: Dunn did not have to remove the roots. The Court of Appeals rejected Cannon’s argument that it should apply the Restatement (Second) of Torts § 158 (1965), which stated that “one is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other if he intentionally… fails to remove from the land a thing which he is under a duty to remove.”

The Court said that it was “obvious that one must first determine whether there is a duty to remove the object and that in this case § 158(c) really begs the question.” More to the point, the Court observed, was the Restatement (Second) of Torts § 840 (on nuisances), which held that a possessor of land is not liable to his adjoining landowner for a nuisance resulting solely from a natural condition of the land.

Ms. Cannon could not prove any damages flowing from the alleged encroachment … unlike this guy.

The Court paid lip service to the Massachusetts Rule, noting that Arizona law permitted a “landowner who sustains an injury by the branches or roots of a tree or plant on adjoining land intruding into his domain, regardless of their non-poisonous character may, without notice, cut off the offending branches or roots at the property line.” At the injured landowner’s expense, of course.

But when some actual and sensible or substantial damage has been sustained, the Court said, the injured landowner may maintain a nuisance action for abatement of the nuisance, and compel the removal of the branches or roots at the tree owner’s expense. However, where no injury has been sustained, no lawsuit be brought for either an injunction or damages.

– Tom Root

Case of the Day – Thursday, June 26, 2025

Posted on June 26, 2025 by TLRoot tagged.

THE COURT CHANNELS SHAKESPEARE

We're not Pucking around ... a landowner's duty to the neighbors may be higher than you think ...

We’re not Pucking around … a landowner’s duty to the neighbors may be greater than you think …

Midsummer’s Night fell last weekend, making me feel a little Puckish. So I thought we’d examine two neighbors, neither of whom reacted thoughtfully to a dangerous tree. “Oh, what fools these mortals be!” Midsummer Night’s Dream, Act III, Scene 2.

Traditionally, the Massachusetts Rule – which could be summarized as “I don’t owe you nuthin’ – held that a landowner had no liability to his neighbor for harm done by overhanging branches and encroaching root systems. If the neighbor didn’t like the mess, he or she could trim away the offending branches or roots up to the property line. The courts simply didn’t want to hear about it.

However, courts had traditionally held an urban landowner to a higher standard of care when the people being protected were passing motorists on a public highway. In those cases, an urban landowner was obligated to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

In today’s case, Lois Lockhart had a decaying tree on her property. Neighbor Carl Mahurin complained about it, primarily because one of the branches was overhanging his property. But Lois did nothing. Neither did Carl – unless belly-aching counts as putting forth an effort.

Finally, the branch broke off and hit Carl, who was standing beneath it. You knew that had to happen, or else why would we be telling you this story? Being injured – and a little piqued that Lois had ignored his entreaties for so long – Carl sued. (You knew that would happen, too.)

Lois tried to get the case thrown out of trial court. She pointed out that Carl had nuthin’ coming from her. The traditional rule – read “Massachusetts Rule” here – dictated that she had no duty to protect Carl from the natural condition of her tree.

But as the great bard once wrote, “I do perceive here a divided duty.” Othello, Act I, Scene 3. And so did the trial court. It was troubled that Lockhart’s duty to strangers passing by in their Hudsons and Desotos was greater than to her neighbor. That seems divided, and irrationally so.

Lois said, “Heaven is my judge, not I for love and duty, But seeming so, for my peculiar end.” Othello, Act I, Scene 1. The trial court said that might be so, but it nevertheless sent the case to the Court of Appeals for the appellate court’s opinion as to her duty.

William Shakespeare - he foresaw the problems with the traditional liability rule hundreds of years ago.

William Shakespeare foresaw the problems with the traditional liability rule urged by Ms. Lockhart hundreds of years ago. “Wondrous strange!” indeed.

The appellate panel said, “O day and night, but this is wondrous strange!” Hamlet, Act 1, Scene 5. It could see no reason for the disparate treatment, either. Certainly, just as Lockhart owed a duty to Mordred and Mildred Motorist, she must owe the same duty to her neighbor, Carl. However, the Court of Appeals did allow that Mr. Mahurin could have entered Ms. Lockhart’s place and cut the tree down itself. So he might be contributorily negligent. Likewise, could he have been a knucklehead for standing under a tree he had complained was dangerous?

To Lockhart, the Court said, “There are more things in heaven and earth, Lois, than are dreamt of in your philosophy.” Hamlet, Act 1, Scene 5. Such as… a single duty owed by a landowner to both travelers passing on the road and her next-door neighbor. It sent the case back to trial.

Mahurin v. Lockhart, 71 Ill.App.3d 691, 390 N.E.2d 523 (Ill.App. 5 Dist. 1979). Plaintiff Carl Mahurin brought this action to recover damages for personal injuries he suffered when a dead branch extending over his property fell from a tree belonging to defendant Lois Lockhart, an adjoining landowner, and struck him. In his complaint, Mahurin alleged that Lockhart failed to prune the tree or take other necessary precautions after he warned her of the condition of the tree and the dangers it posed.

Lockhart moved to dismiss the complaint, arguing that a landowner is not liable for physical harm to others outside of her land caused by a natural condition. The trial court denied the motion to dismiss, certified that the question of law raised in Lockhart’s motion presented substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.

Held: The Court held that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.

The narrow issue before the court was to determine the extent, if any, of the duty that a landowner in a residential area owes to persons outside of his premises to remedy some defective or unsound condition of a tree upon his land when the tree and its condition were of a purely natural origin. Mahurin urged the Court to adopt the traditional rule set forth in section 363 of the Restatement (Second) of Torts. This section provided that neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land. However, if the landowner was in an urban area, he was subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The traditional rule applied even though the landowner is aware of the dangerous natural condition and the expense necessary to remedy the condition is slight.

The Court noted that the traditional rule of non-liability developed at a time when land was mostly unsettled and uncultivated. The landowner – unable to keep a daily account of and remedy all of the dangerous conditions arising out of purely natural causes – was therefore shielded from liability out of necessity.

But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it? Duh, Carl …

The Court disagreed that the duty an urban landowner owed to a neighbor should be less than that owed to people passing in cars and trucks. It thus ruled that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.”

Therefore, Lockhart’s duty to Mahurin should “be defined using the ordinary rules of negligence. It is, therefore, appropriate for the trier of fact to consider… such factors as the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented” in resolving the issue of liability.

The Court noted Lockhart’s argument that Mahurin was contributorily negligent because he stood under a tree that he, by his own admission, knew was dying and dangerous. The Court noted that the Restatement provided that a landowner is privileged to enter upon a neighbor’s land to abate a condition thereon which constitutes a private nuisance. “While this privilege alone does not establish the contributory negligence of plaintiff, it could be considered by the jury in resolving this issue.”

The Court remanded the case for trial, using the standards it had adopted.

Tom Root

Case of the Day – Wednesday, June 25, 2025

Posted on June 25, 2025 by TLRoot tagged.

TRUST US … WE KNOW WHAT WE’RE DOING

Anyone who hasn’t been living in a cave the past decade knows that sunny California has been just a little too sunny. The state and local governments have begged, pleaded, and cajoled homeowners to save water. Some rather severe measures have been implemented.

Maybe so, but you’re not the only people around with a law degree. Some folks at the gas company have them, too.

This is not a particularly new story, but the drought persists. That’s why we recall the story that broke a few years ago that the California rich – like the rich everywhere – aren’t exactly like you and me. At least, not like me.

Sure there’s a severe shortage. And sure people should cut back. But not rich people. “We pay significant property taxes based on where we live,” one uber-wealthy property owner once complained to the Washington Post. “And, no, we’re not all equal when it comes to water.”

Ah, yes, we know what entitlement must feel like. It’s sort of like how the Andrewses, high-powered and sophisticated lawyers both, must have felt when they bought their house. You see, Mr. and Mrs. Andrews weren’t your typical blundering homebuyers. He was a tax attorney – one of the high priests of the legal profession – and she was an appellate specialist. So when they settled on a beautiful homestead in the Ohio countryside next to a hillside covered with pine trees, they figured that they understood all those ‘thences’, distances and bearings to PK nailsets, and ‘principal places of beginning’, you know, the stuff other lesser lawyers put in deeds. So how could they have missed the easement that the prior owner had granted to the gas company for two pretty big gas transmission lines buried on the place?

We’re sure they must have read it. But these legal beagles apparently never dreamed the easement meant what it said.

About four years after they moved in, the gas company came along and said the pine trees on the hill were encroaching on the easement and had to go. Being frugal as well as sharp, the Andrewses sued in a local court, acting as their own attorneys. They argued the gas company was stuck with the trees because it had let them grow there in the first place, and anyway, it hardly needed to clear-cut a swath 80 feet wide (25 feet on either side of the two pipelines and 30 feet in the middle).

Ol’ Abe Lincoln was right: the Andrews had a pair of fools for clients.

As it turned out, Columbia Gas had a few lawyers, too, and these guys knew easements like Mr. Andrews knew taxes. Maybe even better. The gas company removed the case to federal court, where, after a trial, the Andrewses had their heads handed to them. The Court of Appeals affirmed the defeat.

The court held that Columbia Gas hadn’t acquiesced to the trees, because they weren’t there when the pipeline was built (but were planted by a later homeowner). The fact that the gas company hadn’t cut a swath of trees from the easement in 55 years didn’t matter, nor did it matter that the gas company was cutting such a wide right-of-way on neighboring easements. The court gave credence to the Columbia Gas and state utilities commission witnesses, who carried the day by carefully explaining all of the safety, economic, and reason for the gas company to want the trees removed.

The Court ruled that absent evidence to the contrary, a judge should presume that the parties contemplated that normal development would result in some changes in the use of the easement, even if it is unlikely that the parties anticipated specific developmental changes. New technology permitting aerial inspection, new federal regulations on pipeline safety and security, and new techniques of internal pipeline inspection were all such “developmental changes,” arguing for the gas company to take a heightened interest in keeping its easement clear.

Andrews v. Columbia Gas Transmission Corporation, 544 F.3d 618 (6th Cir., 2008). In 1947, Ruby W. Davies owned the piece of land in Licking County, Ohio, where the Andrews family now lives. She granted The Ohio Fuel Gas Company an easement to build and maintain a pipeline and to “lay, maintain, operate, repair, replace and remove other lines of pipe at any points on said premises upon the payment of like consideration” and the right of “ingress and egress to and from the same” over and across the property. Ohio Fuel agreed to “pay any damages which may arise to crops and fences from the laying, maintaining, operating and final removal of said pipeline.” The agreement did not specify the width of the easement.

Pursuant to the agreement, Ohio Fuel installed two large high-pressure underground natural gas transmission pipelines through the property. The first, Line K-170, is 16 inches wide and was installed in 1947. The second, Line K-205, is 24 inches wide and was installed in 1957. The two pipelines run parallel to each other about 30 feet apart. Columbia Gas succeeded to Ohio Fuel’s interest in the right of way and still operates and maintains the pipelines. The property changed hands several times over the past 50 years. In the late 1960s, the owner built a house on it and planted pine trees on the hillside behind the house for aesthetics and erosion control. The owner was unaware that he had planted the trees within 25 feet of Line K-170.

In March 2000, the Andrewses bought the property with notice of the 1947 right-of-way agreement. By then, the pine trees had matured. The Andrewses’ decision to purchase the property was motivated in large part by the rural setting and the hillside landscaping.

Columbia Gas made no efforts to clear a right of way around the pipelines until 2004, when a work crew told the Andrewses that the location of the pipeline required them to remove the stand of pine trees. Columbia Gas claimed the right to remove the trees and to maintain a right of way totaling approximately 80 feet, 25 feet on each side of the two pipelines and the 30 feet between the two pipelines. The Andrewses sued Columbia Gas, seeking an injunction and asking for damages if the trees were cut. After trial, the court entered judgment in favor of Columbia Gas, relying on the testimony of Timothy Seibert, a long-time Columbia Gas employee responsible for overseeing the inspection and maintenance of the pipelines running through Andrewses’ property, and Paul Hollinger, an investigator for the Public Utilities Commission of Ohio, the state agency responsible for overseeing natural gas transmission lines. Based on their testimony, the Court concluded that a 50-foot right of way for each pipeline was “necessary and convenient and consistent with the language of the 1947 Davies easement.” The court declined to apply the doctrines of laches, estoppel, or waiver, noting that those doctrines do not apply to expressly granted easements under Ohio law. Finally, the Andrewses were not entitled to compensation for the removal of the trees because the right-of-way agreement only provided recovery for damage to crops and fences. The Andrewses appealed.

Held: Columbia Gas was entitled to the 80’ wide right-of-way, and the Andrewses were not entitled to damages for the lost trees. Under Ohio law, an easement is an interest in the land of another, created by prescription or express or implied grant, that entitles the owner of the easement to limited use of the land in which the interest exists. The owner of the land subject to an easement has the right to use the land in any manner not inconsistent with the easement but has no right to interfere with or obstruct the reasonable and proper use of the easement. The owner of an easement has the right to remove objects within it that unreasonably interfere with or obstruct its reasonable and proper use.

Where the terms of an expressly granted easement are ambiguous, the Court held that a judge must determine its scope from the language of the grant, the circumstances surrounding the transaction, and what is reasonably necessary and convenient to serve the purposes for which the easement was granted. Absent contrary evidence, a judge should presume that the parties contemplated that normal development would result in some changes in the use of the easement, even if it is unlikely that the parties anticipated specific developmental changes. Acquiescence for a long period of time in a certain construction of a grant of an easement estops the assertion of a different construction.

The Andrewses argued that Columbia Gas never cleared any area within its claimed right of way, and never objected when the prior owner planted the pine trees in the late 1960s. But lack of action prior to this time did not stop the gas company from asserting its rights now. If Columbia Gas had consistently cleared only 10 feet on each side of its pipelines, the Court said, the Andrewses’ argument would have more force. But the fact that the company did nothing is not fatal to its claim. Besides, the Court said, Columbia Gas did not acquiesce to the trees. No trees were growing there in 1947, making it reasonable for the trial court to conclude that the conduct of Columbia Gas after the trees were planted did not evidence the original intent of the parties.

The Andrewses also argued that Columbia Gas acquiesced by allowing trees near its pipelines on other properties. But the original intent of the parties is the primary inquiry and only the conduct of the parties regarding the particular property at issue is relevant. The fact that the gas company may or may not have enforced its easement to its fullest width elsewhere has absolutely no bearing at all on whether it may enforce its easement to its fullest width on the Andrews property.

Capt. Picard may well have landed at the plaintiff’s table in this case …

Relying on testimony by expert witnesses, the lower court ultimately concluded that a 50-foot easement was reasonably necessary and convenient for the inspection, operation, and maintenance of each of the pipelines. The factual findings upon which he based that conclusion were not clearly erroneous. Although each easement case is factually unique, almost every court that has construed an easement with similar language as the one at issue here has concluded that a 25-foot right of way on both sides of the pipeline was reasonably necessary and convenient. And it is beside the point to argue that federal regulations do not require natural gas companies to clear rights of way around their pipelines. Assuming that to be true, the regulations do not prohibit gas companies from clearing rights of way. Although federal law may be helpful in construing certain ambiguous easements, the rights granted in an easement ultimately flow from a private agreement. The difficulties Columbia Gas might face in conducting pipeline inspections was a primary ground for the lower court’s conclusion that a 50-foot right of way was reasonably necessary and convenient for each of the pipelines on the Andrews property.

Columbia Gas offered evidence that the trees hindered the company’s ability to conduct both aerial and close-interval pipeline inspections. According to an expert witness, the presence of trees within the right-of-way interfered with aerial inspections. Additionally, trees within 25 feet of the center of a pipeline could hinder the company’s ability to conduct close-interval surveys and to excavate the pipeline in the event of an anomalous inspection or an emergency, such as a leak or rupture.

The Andrewses argued that Columbia Gas had safely maintained its pipelines for decades without removing the trees and that if an emergency ever arises, it can remove the trees quickly enough at that time. The trial court recognized this as well, but also reasoned that there were some circumstances in which the additional time to remove the trees could impose a substantial hardship on customers who would be without natural gas service during the excavation, and the delay to remove the trees could unnecessarily jeopardize public safety. There was ample support in the record for the conclusion that a cleared right of way was reasonably necessary to ensure a safe, timely, and efficient excavation. The trial court also considered evidence that a 50-foot right-of-way is standard in the gas pipeline industry.

Finally, the Andrewses challenged the trial court’s determination that they are not entitled to damages for the removal of the trees. Because the trees were inconsistent with the easement rights of Columbia Gas, the company was authorized to remove them.

Thomas L. Root

Case of the Day – Tuesday, June 24, 2025

Posted on June 24, 2025 by TLRoot tagged.

WE’RE FROM THE GOVERNMENT, HERE TO HELP OURSELVES

Marlborough should have heeded Marlboro’s advice – “better makin’s” … as in “we’d better be makins sure we own the land befores we go diggin’ it up.”

Some time years ago, Marlborough (the City, not the cigarette) abandoned a seldom-used city street, even noting in the land record the misspelled sentiment that it “hearby abandon[ed] and discontinu[ed] any and all rights …” in the street.

Well, time passed. While much improved in the world, the competence of decision-by-committee did not.

When the Marlborough powers that be decided that a new water main had to be installed, they concluded they should go right down the right-of-way they had abandoned. “What, we abandoned it? Well,” the city fathers and mothers chuckled, “we’ll just take it back!”

And they did, too, going right up the center of the abandoned street, tearing up the place and downing a number of trees (which is how we ended up writing about this, to begin with). America’s a relatively civilized place (albeit one with a lot of lawyers), so the landowners sued.

Obtaining a judgment that the City had trespassed was easy: after all, the land records themselves revealed the City had no rights in the street. But figuring the damages was tricky, especially because the landowners wanted treble damages. In Massachusetts, a trespasser to trees is liable for treble damages unless he or she had “good cause to believe” that he or she had a right to cut down the trees. The City argued it had relied on one of its attorney-employees, who opined that the street remained a public thoroughfare despite the unambiguous and misspelled language of the recordation and Massachusetts law. The City said it took “extensive steps” to determine its rights. Sure, and COVID-19 came from Australia, the 2020 election was rigged, and Ukraine invaded Russia.

The Court said “nonsense” to Marlborough (and probably would have said the same to that other stuff). It seemed the plans for the water main construction themselves carried the notation “Ownership to be determined,” and the trial judge warned the City at the temporary restraining order stage that its rights were pretty shaky. But the City dug and cut on. Sow the wind, reap the whirlwind.

An interesting damages note to the case: the City offered “expert” testimony from a real estate professional as to the loss of value of the property because of the trespass, calling this a “common sense” approach to valuation. The Court rejected the expert and the approach because the loss calculation necessarily must include the value of the trees that had been cut down. Besides, the Court said, a real estate expert — no matter how good in his or her area of expertise — knew diddly-squat about trees.

The damage approach approved by the Court – the “cost of cure” method – took into account the cost of replacing the trees that had been cut, as well as the removal of the larger stumps.

Smith v. City of Marlborough, 67 Mass.App.Ct. 1104, 852 N.E.2d 137, (Mass.Ct.App., 2006). Abutting landowners brought an action against the City of Marlborough, alleging that the city had trespassed, destroyed trees, and removed soil and gravel during the installation of a water main through their properties along an allegedly abandoned lane. The Superior Court entered judgment for landowners and awarded treble damages, and the City appealed.

Held: The award of treble damages was upheld. The Court agreed that the City of Marlborough had abandoned the street, and it thus committed trespass when it destroyed trees while installing a water main along the abandoned street. A recorded order stated that the city “hereby abandons and discontinues any and all rights that it now has or ever had” in the lane. The Court held that the City did not have a good reason to believe that it owned land which it had previously abandoned, and thus the landowners abutting the street — who received the property following abandonment — were entitled to treble damages due to the city’s removal of trees while installing the water main.

Marlborough tried to make Sandy Posey’s 1967 country-pop song into the city anthem …

The evidence showed that the survey “was performed without the benefit of the determination of the status” of the lane and that the landowners raised questions about the ownership of the land with city personnel immediately after receiving notice of blasting near the lane, but the city continued its work nonetheless.

No one disputed the amount of damages determined under the “cost of cure” method on appeal. The damages included the cost of replacing trees, as well as the removal of stumps of larger trees that had been cut. Marlborough complained that it was deprived of an opportunity to present its own “common sense and expert approach” when its expert, a real estate appraiser, was not allowed to testify because he was not an arborist and did not determine the value of the trees.

Marlborough offered no specific allegations of errors in procedure or in the jury instructions and merely concluded that “according to common sense,” the loss of trees could not be worth more than the damages awarded for the land taking. The Court rejected this argument, too.

– Tom Root