Case of the Day – Wednesday, June 11, 2025

Posted on June 11, 2025 by TLRoot tagged.

IT’S YOUR PLACE – TAKE CARE OF IT

It’s fun these days to deride the Massachusetts Rule as a relic of a bygone era, when manly men hewed the logs for their cabins, wielded their own axes for firewood, and posted their own selfies as drove their oxen teams in the fields… back in that rustic pre-war era (before the first Persian Gulf war) when the web was something you walked into down in the basement and “text” was not a verb.

The Massachusetts Rule, of course, embodies the libertarian view that each landowner is both entitled to and limited by the doctrine of “self-help.” The Rule has two prongs. The first is universally accepted: a landowner has a right to cut encroaching branches, vines, and roots back to the property line, provided he or she does not enter the adjoining landowner’s property to chop down a tree or cut back growth without the neighbor’s consent.

The second prong of the Massachusetts Rule is less widely acknowledged. Rather, it has fallen out of favor to a great extent over the past 30 years.

But when Jon Melnick ran into problems, the second prong was still the law of the land. Back in the late 1970s, Jon bought a decrepit Baltimore warehouse next to the railroad tracks, which he then repaired for commercial use. After he fixed the place up, he discovered that a fair amount of the reason the property had become run down to begin with was that the Baltimore & Ohio Railroad (which after several mergers, consolidations and rebrandings, had become a component of CSX Transportation, a subsidiary of CSX Corporation) did little to maintain the trees alongside its railroad right of way. As a result, branches were overhanging the warehouse, dropping twigs and leaves and vines and other plant life onto the roof.

Jon was whining to the railroad all the livelong day, but no one paid any heed to his lament. So he sued, alleging trespass, negligence, and nuisance.

The modern-day B&O: as much a hometown hero to Baltimore as the Ravens and Orioles.

Don’t bet against the home team. The Baltimore & Ohio prevailed in Baltimore. The Maryland court followed the Massachusetts Rule to the letter. In a paean to an era of rugged individualism lost since in the past, the Court held that the privileges of real estate ownership are accompanied by certain obligations. One of those is “proper maintenance.” Indeed, the Court lectured that “to grant a landowner a cause of action every time tree branches, leaves, vines, shrubs, etc., encroach upon or fall on his property from his neighbor’s property, might well spawn innumerable and vexatious lawsuits. We have gotten along very well in Maryland, for over 350 years, without authorizing legal actions of this type by neighbor against neighbor.”

Well, of course. We’ve always done it that way. For that matter, we got along just fine for 275 years without paved roads. Candles served us well in the evening, and those newfangled electric lights everyone uses now just encourage people to remain awake past their bedtimes.

The justification that ‘we’ve always done it that way’ is usually a poor reason to resist change. While it got CSX off the hook and picked Jon’s pocket to have his roof and gutters constantly cleaned, the Massachusetts Rule’s proscription on legal redress for encroachment was already on the exit ramp when this case was decided in 1988. The Hawaii Rule – which holds that when there is imminent danger of overhanging branches causing “sensible” harm to property other than plant life, the tree owner is liable for the cost of trimming the branches as well as for the damage caused – has gained traction in a number of states over the past 20 years. Tennessee, New Mexico, North Dakota, Arizona, and New York follow it. Several other states follow the rule with variations: in Oregon, the owner of the offending tree must somehow be at fault or the tree must be “ultrahazardous.” In Missouri, the Hawaii Rule is followed if the offending tree is diseased or damaged, but the Massachusetts Rule is followed if it’s healthy.

Until 2007, Virginia had an unworkable rule that in order for a neighbor to be liable for damage caused by his or her tree, it had to be “noxious,” that is, one generally seen to be a pest. It abandoned that approach in favor of holding that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. But encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to adjoining property, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.

The Melnick court found it “undesirable to categorize living trees, plants, roots, or vines as a ‘nuisance’ to be abated, citing an Ohio case holding that “[t]o grow a tree is a natural act of the soil. It is not itself a dangerous instrumentality.” Were the issue to arise in Maryland courts now, 30 years later, we suspect the outcome would be much different.

Melnick v. CSX Corporation, 312 Md. 511, 540 A.2d 1133 (Ct.App.Md. 1988). Johnathan Melnick purchased a warehouse in Baltimore that shared a common boundary with a railroad right-of-way owned by the Baltimore & Ohio Railroad Company. He replaced the roof, which had been in poor condition.

Since the roof replacement, Melnick constantly experienced clogged drains, standing water, roof deterioration, and some water damage to stored merchandise. These problems result from leaves and limbs falling on his property from the railroad’s trees. Melnick tried to remedy the situation by cleaning the gutters on several occasions and cutting back the growth, but the problem continued. When his complaints to the railroad were ignored, he sued on theories of trespass, negligence, and nuisance.

The trial court granted judgment to the railroad, holding that Melnick was limited to a self-help remedy. Melnick appealed.

Held: Under the circumstances, Melnick had no cause of action against the railroad. The appellate court reasoned that the remedy of “self-help” was generally the most efficient way in which to prevent injury from occurring to property due to encroaching vegetation.

The Court followed the Massachusetts Rule, set out in Michalson v. Nutting. “We believe that it is undesirable to categorize living trees, plants, roots, or vines as a “nuisance” to be abated. Consequently, we decline to impose liability upon an adjoining landowner for the ‘natural processes and cycles’ of trees, plants, roots, and vines… ‘Indeed, such natural growth and shedding processes of trees are inherent… and to most people constitute a pleasurable reflection of seasonal changes’.”

The Court held that a landowner must assume responsibility for the care and preservation of his or her own property. “Along with the benefits derived from property ownership come certain obligations. Proper maintenance of one’s own property is one of these obligations.”

– Tom Root

Case of the Day – Tuesday, June 10, 2025

Posted on June 10, 2025 by TLRoot tagged.

SELF-HELP MEETS CATCH-22

Those of us old enough to remember the ‘60s – and if you were around then, you probably were in such a state that you don’t remember them – recall Joseph Heller’s book, Catch-22. The short rocket is this: the “Catch 22” is simply this – if one is crazy, one can be relieved from flying combat missions. But one has to apply for the discharge, and applying demonstrates that one is not crazy. As a result, one will not be discharged.

The Catch-22 typifies “bureaucratic operation and reasoning,” which brings us to today’s conundrum. An alert reader in Toad Lick, Arkansas, wrote to complain that a branch from his neighbor’s oak tree hangs over his property to a great extent, dropping leaves and acorns. He says it’s so big and long that it’s a hazard, and he fears that it will fall on his children. What, he wonders, can he do?

Oh, yawn, you say. Being a faithful reader of this blog, you immediately recognize that the solution to this is the Massachusetts Rule, which permits a homeowner to use “self-help,” trimming the branches back to his property line. Ah, but there’s a twist to this particular problem. If our afflicted homeowner trims to the property line, he will leave a six-foot or so stub of a branch because he cannot go onto the neighbor’s property to trim the branch all the way to the trunk. The city, he tells us, requires that the branch be trimmed all the way to the trunk, or it will fine him.

At this point, the notion of a lousy $25 fine leaves you still unimpressed, and you’re about to click off this blog for one of those Internet sites that no one admits to checking out, but we all do, anyway. Not so fast. It gets better. Our homeowner complains that the City’s fine for improper trimming is $400 per inch of diameter of the tree, and the diameter of the offending oak (at 4 feet above the ground) is something like 36 inches. That’s right, he’s looking at shelling out $15,000 in fines (plus tree trimming costs), all to cut down a single hazardous branch.

Or so our afflicted correspondent says. Frankly, we were perplexed by his report. If things were as our complainant said they were, one could not effectively exercise self-help without one’s neighbor’s cooperation. That seemed to eviscerate the Massachusetts Rule, taking the “self” right out of “self-help.” It’s the classic Catch 22 – you cannot exercise self-help without your neighbor’s cooperation, which, if you can get it, pretty much makes it anything but self-help.

Years of law practice have made us acutely aware of a sad fact of life: clients get it wrong. They get it wrong all the time. You could be cynical and say that clients lie, but we would never suspect that. Indeed, you don’t have to go that far. Whether they’re simply confused, perceive it incorrectly, or flat out fib, the result’s the same.

Here, the Toad Lick City Code tells a somewhat different story. The ordinance requires that any trimming in the city has to be done according to ANSI Standard A300, which sets out best practices for tree maintenance. If a trimmer adheres to the standard, what happens to the tree is not his or her fault. If the trimmer does not trim to the ANSI standard, and the tree later suffers “substantial destruction” – that is, it is killed or becomes a hazard tree – the trimmer is liable. So our homeowner’s trimming won’t lead to a fine unless the tree is “substantially destroyed.” And that will take a few years to determine.

Talking to the Toad Lick City Forester’s office, we found out a few other facts as well, details our correspondent homeowner overlooked telling us. It appears that our afflicted complainant may not be all that concerned with the fate of his children playing under the branch. Instead, he wants to build a swimming pool, and the branch is directly over the new installation. What’s worse, the branch spoils his view.

Whew! We haven’t had a problem like this since our last law school final exam. Where to start? First, our unhappy pool-building homeowner should hire an arborist. If the arborist agrees that the branch is a hazard, our man is on much more solid ground. The neighbor should be placed on notice of the hazard determination, and the neighbor’s insurance company should be told, too. We bet the insurance company will convince the recalcitrant neighbor to let our homeowner trim to A300 standards without a whimper of protest.

But what if the branch isn’t a hazard (as we’ve heard)? Our homeowner might still have an arborist trim it to the property line according to accepted industry standards (if such a thing is possible). If it is not, our homeowner may have to risk lopping the branch off at the property line, and hoping that the tree doesn’t die. If it does, the City is going to assert that it was the homeowner’s improper trimming that caused the hazard (or death).

We suspect our homeowner won’t find an arborist who will cut the branch other than at the trunk (which cannot be done without the neighbor’s OK). If the homeowner is going to go ahead with the pool, he may just have to cut the branch at the property boundary and hope for the best. If the tree withers and dies within a few years of the surgery, well, then, he has a problem.

That should not be surprising. Even without the city ordinance, the suggestion has often been made that Massachusetts self-help requires first that the overhanging branches be doing more than just causing shade or dropping leaves. In Herring v. Lisbon Partners, the court suggested that Massachusetts self-help was only available when the overhanging branches or intruding roots were doing more than your average tree: that is, they were a danger or a nuisance, breaking up pavement or damaging roofs. It is possible that courts may rule that self-help isn’t available merely to improve the view (although such a ruling hasn’t been made anywhere yet).

Thus, it could be that our homeowner really isn’t entitled to do much of anything if he cannot get an arborist to certify that the branch is doing more mischief than your average branch. Endangering kids is one thing: spoiling a view is something else. If the branch is a hazard, the homeowner might have a defense to trimming it to the property line, even if the tree dies – the defense of necessity.

Our complaining homeowner told us that he doesn’t want to end up in a lawsuit or defending himself from a $15,000 fine. That’s perfectly understandable. In that case, his best course is obvious, if the branch is a hazard (as he says it is). If his arborist will give him an opinion that the branch is a hazard, the homeowner should make sure the neighbor and the neighbor’s insurance carrier are both aware of that. Certified mail, return receipt requested, would be prudent. We suspect our homeowner will be happily surprised at how quickly the insurance carrier persuades his neighbor to cooperate.

Lawrence Peter postulated the idea years ago as a corollary to the Peter Principle: pull is always stronger than push. If our homeowner gets the neighbor’s insurance company on board, he’ll have a lot of pull.

Fine aside, could our homeowner be liable for causing substantial damage to his neighbor’s tree by not trimming according to A300 standards? Remember, our complainant wants to avoid litigation, trimming away the offending branch in a way that leaves him legally bulletproof. Even without the city’s statutes requiring trimming in compliance with A300, yesterday’s Booksa case from California should serve as a cautionary tale.

We have previously determined that California generally recognizes the Massachusetts Rule, which permits a neighbor to use “self-help,” trimming the branches back to the property line. Of course, California also seems to permit use of the private nuisance laws — something that seems like the Hawaii Rule or Virginia Rule — to let a homeowner like our correspondent force someone like his neighbor to remove the branch himself if it is a nuisance.

You recall that Mr. Patel was unhappy that the roots from Mr. Booska’s pine tree had heaved some of Mr. Patel’s sidewalk. He excavated along the edge of his yard down to three feet, severing the roots of the pine tree that had encroached under his sidewalk. The root cutting so weakened the tree that it started dying and was in danger of falling. Mr. Booska had to take the tree down, and he promptly sued.

The lower courts said that Patel had an absolute right to cut the roots on his property, citing the holding in Bonde v. Bishop. Not so, said the appeals court. Instead, Mr. Patel had an obligation to cut the roots in a reasonable manner that would achieve his aims — to stop sidewalk heaving — without undue harm to the tree. The Court held that “no person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.”

Unfortunately, this isn’t the final answer. The Booska court was swayed by testimony that Mr. Patel could have protected his sidewalks with a much less aggressive method. We don’t yet know what the result would be if the only means of protecting Mr. Patel’s sidewalk would have required cutting that would necessarily be fatal, but our correspondent could provide us with the answer if he lands in court over cutting the branch to the property line, but not in accordance with A300.

In the situation our writer presented to us, his explanation for wanting the branch removed clashed with what the city understood the real motivation might be. In discussions with his arborist, our neighbor will need to consider whether the branch could be deemed a nuisance, a finding that Bonde suggests can be easily made in California. Even if it is not a nuisance, our correspondent maybe can start hacking away on his side of the property line, but the hacking should be done according to A300. Assuming that it cannot be (because the neighbor won’t permit trimming to the trunk), the trimming has to be done in a way that weighs our correspondent’s legitimate aims — whatever they are — against the health and safety of the tree. And preserves the tree, thus avoiding the $15,000 fine.

Oh, the complexity! And to make it worse, next week we’ll look at a Kafkaesque result where a neighbor’s right to cut back a tree can’t be exercised without the approval of the property owner, resulting in an old-fashioned California SLAPP-down.

Not to sound like the Bar Association, but we suggest that all of these legal gyrations well illustrate why spending a few bucks at your local counselor-at-law might be prudent, not just in California, but wherever you live.

Booska v. Patel, 24 Cal.App.4th 1786, 30 Cal.Rptr.2d 241 (Ct.App. Div.1, 1994). Read the Booska decision again, or review our synopsis of it in yesterday’s Case of the Day. And if you’re caught up on all of your Kardashian reading, you might want to consider Herring v. Lisbon Partners once again, too.

– Tom Root

Case of the Day – Monday, June 9, 2025

Posted on June 9, 2025 by TLRoot tagged.

LIMITS OF SELF-HELP

School’s out for summer. Yeah, it’s been over half a century since I was a secondary school student but somehow the anticipation of summer vacation whispers to me still, just as it did when the last school bell sounded at the end of a class year. Channel Alice Cooper and Mungo Jerry.

But there’s still time for one more lesson. I trust you recall that last Friday, we tackled a question sent to us by our California correspondent, Rock Maple of Thousand Oaks. His neighbor has demanded that he trim back his 50-year-old pine tree, the branches of which hang over the neighbor’s place, and he wondered whether the neighbor might be able to start the chopping himself, even without Rock’s permission.

We determined that California generally recognizes the Massachusetts Rule, which permits a neighbor to use “self-help,” trimming the branches back to the property line. Of course, California also seems to permit the use of private nuisance laws — something that seems like the Hawaii Rule or Virginia Rule — to let a neighbor force someone like Rock to remove the tree himself if it is a nuisance.

But the Rockster was focused on whether his neighbor could fire up his chainsaw simply because he wanted to do so. While Friday’s case said perhaps he can, today’s case should be a cautionary tale to him – especially because it’s a California case.

Mr. Patel was unhappy that the roots from Mr. Booska’s pine tree had heaved some of Mr. Patel’s sidewalk. He excavated along the edge of his yard down to three feet, severing the roots of the pine tree that had encroached under his sidewalk. The root cutting so weakened the tree that it started dying and was in danger of falling. Mr. Booska had to take the tree down, and he promptly sued.

The lower courts said that Patel had an absolute right to cut the roots on his property, citing the holding in Friday’s case of Bonde v. Bishop. Not so, said the appeals court. Instead, Mr. Patel had an obligation to cut the roots in a reasonable manner that would achieve his aims — to stop sidewalk heaving — without undue harm to the tree. The Court held that “no person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.”

In the situation Rock presented to us, he didn’t report why his neighbor wanted the pine tree trimmed back. In discussions with his local lawyer, Rock will have to consider whether the tree could be found to be a nuisance (as in Friday’s case), a finding that Bonde suggests can be easily made in California. Even if it is not a nuisance, Rock’s neighbor can probably start hacking away on his side of the property line, but the hacking has to be done in a way that weighs the neighbor’s legitimate aims — whatever they are — against the health and safety of the tree.

Oh, the complexity! And to make it worse, tomorrow we’ll look at a Kafkaesque result where a neighbor’s right to cut back a tree can’t be exercised without the approval of the property owner, resulting in an old-fashioned California SLAPP-down.

Booska v. Patel, 24 Cal.App.4th 1786, 30 Cal.Rptr.2d 241 (Ct.App. Div.1, 1994). Attorney Booska, representing himself in this action, sued his neighbor, Mr. Patel. The roots of a 40-year-old Monterey pine tree owned by Mr. Booska extended into Mr. Patel’s yard. Mr. Patel hired a contractor to excavate along the length of his yard and sever the roots of the tree down to a level of about 3 feet. Mr. Booska complained that Mr. Patel’s actions were negligently performed, and the tree became unsafe, a nuisance, unable to support life, and had to be cut down at Mr. Booska’s expense. The complaint alleged causes of action for negligence, destruction of timber, and nuisance. The trial court granted summary judgment for Mr. Patel, holding that under Bonde v. Bishop, Mr. Patel had an absolute right to sever the roots without regard to the effect on Mr. Booska. Mr. Booska appealed.

Held: The Court of Appeals reversed. It held that adjoining landowners do not have an absolute privilege to sever encroaching tree roots without regard to the reasonableness of their action or consequences to neighbors. Instead, neighbors act reasonably, and failure to do so could be the basis for recovery of damages. The Court distinguished the rulings in Bonde v. Bishop and Grandona v. Lovdal, noting that neither of those cases discussed the limits on what an adjoining property owner could do.

The Patels and Booskas apparently hadn't gotten this word ...

The Patels and Booskas apparently hadn’t gotten the memo on this…

The Court observed that “[i]n the instant case, Patel has not addressed the issue of negligence in his summary judgment motion but contends that he has an unlimited right to do anything he desires on his property regardless of the consequences to others. No authority so holds. ‘No person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.’”

The appeals court was apparently disturbed that these neighbors hadn’t found the time or inclination to be neighborly about the dispute. It cites language from Bonde v. Bishop: “‘Apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do’.”

The Court then pointedly said, “It seems, in the instant case, that neither party has considered what would be the neighborly thing to do to resolve this problem. While we express no opinion on the appropriate outcome of this case, we find that there are disputed factual issues to be resolved.”

The Court reversed the decision and sent the case back to the trial court to resolve the issue of negligence.

– Tom Root

Case of the Day – Friday, June 6, 2025

Posted on June 6, 2025 by TLRoot tagged.

A SINGLE PINE AMONG A THOUSAND OAKS

A lone pine ... but not in Lone Pine, California.

A lone pine … but not in Thousand Oaks

Alert reader Rock Maple wrote us recently with a very good question. His inquiry is deceptively simple. He has a lone pine in Thousand Oaks, California. Rock asks: “I have a 50-year-old pine tree, and it is now overhanging on the neighbor’s property. He wants it trimmed back. I have refused. Can he legally trim my tree back?”

“Well, sure he can!” the rest of you readers say. After all, you’re fairly expert at the Massachusetts Rule. Normally, we would agree. But this is California we’re talking about, so nothing’s simple.

We’ll answer Rock’s question over the next three days, looking at how common-law notions of self-help enshrined in Michalson v. Nutting, the granddaddy of encroachment cases that gave us the Massachusetts Rule, are applied in California.

In today’s case, Bonde v. Bishop, Mr. Bishop had a big old white oak tree he loved as much as our reader is attached to his pine. But the oak was overhanging his neighbor’s place, and his neighbor wanted it trimmed back. Sound familiar? But Mr. Bishop’s oak had some problems. It shed branches quicker than Elon Musk loses friends. It had already taken out Mr. Bonde’s fence, his garage, and (very nearly) his head. Cleaning up after the tree was a daily chore, and the old tree was so dangerous that the Bondes wouldn’t leave their baby on the patio (probably a good idea, tree or no tree, but that’s a parenting decision).

The Bondes asked Mr. Bishop for permission to trim the tree, but he told them to touch not a single bough, or he’d sue. So they sued Mr. Bishop first, this being California (or just this being America), asking the Court to declare the tree a nuisance and force him to remove it.

The Court agreed. California does indeed follow the Massachusetts Rule, which meant that the Bondes had the right to trim the tree’s branches overhanging their property. But here, the problem went beyond that. Mr. Bishop’s white oak was a nuisance under California law, the Court held, because of the pervasive damage it caused. The Court, perhaps reacting to the extent of the mess as well as Mr. Bishop’s intransigence, ruled that a tree owner is liable for damage — even insignificant damage — is caused to his neighbor.

So, as we knew all along, our reader’s neighbor would have the right to trim the tree back to the property line. In fact, if the 50-year-old pine is a persistent branch-shedder, it might be a nuisance, and our reader’s refusal to let the neighbor trim it could leave him in Mr. Bishop’s position: having to remove the offending branches himself.

But — and this is California, so there’s always an “on the other hand” — as we will see tomorrow, there are limits on what the neighbor can do, even on his own property.

The Bondes could no longer park their kid on the back patio, out of fear that a falling branch would bean him. The infant was not amused ...

The Bondes could no longer park their kid on the back patio, out of fear that a falling branch would bean him. The bambino was not happy …

Bonde v. Bishop, 112 Cal.App.2d 1, 245 P.2d 617 (Ct.App. Div. 1, 1952). Some of the branches of Bishop’s white oak tree were overhanging Bonde’s property by 25 feet, about 40 feet off the ground. Early one September morning, a large limb broke loose from the tree, smashed through Bonde’s garage, and destroyed a section of fence. Bishop said it was not his responsibility, and Bonde’s insurance paid for the repair. The tree continually dropped smaller branches on Bonde’s roof, driveway and patio. One small branch almost hit Bondes while he was standing in the middle of his driveway. During the rainy season, it became a two-hour job every Sunday to clear tree debris from the gutters and the drain spouts. The Bondes were afraid of the overhanging limbs and stopped leaving their baby out in the patio.

The debris required the Bondes to sweep the patio and driveway daily and rake the lawn before mowing. They put screens on the gutters so they would not have to clean out the troughs. When Mrs. Bonde told Mr. Bishop that the Bondes desired the tree cut back to their line, he not only refused but warned her that if they had it cut back and damaged the tree in any way, he would sue them. Nevertheless, after the limb fell Bishop had the foliage thinned out. Finally, Bonde sued Bishop, asking the trial court to declare that Bishop’s tree was a nuisance.

The court agreed and ordered Bishop to abate the nuisance and awarded damages.

Bishop appealed.

Mr. Bishop’s white oak dropped branches with regularity.

Held: The Court agreed the tree was a nuisance and ordered Bishop to abate the nuisance. The Court explained the rule in California generally is that to the extent that limbs or roots of a tree extend upon adjoining landowner’s property, the adjoining owner may remove them, but only to the property boundary line. Nevertheless, the remedy isn’t exclusive. An owner of a tree, the branches of which overhang adjoining property, is liable for damages caused by overhanging branches. The Court said that even insignificant damage is enough for the statute — might this include falling leaves in the fall, one wonders — because the significance of the damages goes to the amount the plaintiff can recover, not to whether the plaintiff has a case on which to sue to begin with.

But, the Court said, absent the tree being a nuisance, no landowner has a cause of action from the mere fact that branches overhang his premises. Instead, the adjoining landowner’s right to cut off the overhanging branches is a sufficient remedy, indeed, the only remedy. In order to obtain a court owner that the tree’s owner do something, an adjoining landowner must show that the tree is a nuisance under the nuisance statutes.

The Court observed sadly that “apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do.”

– Tom Root

Case of the Day – Thursday, June 5, 2025

Posted on June 5, 2025 by TLRoot tagged.

SIGNS? WE DON’T NEED NO STINKIN’ SIGNS

The Andersons were livin’ large in the (very) flatlands of far north Minnesota … at least until the swampland next to theirs got sold to the State.

The Minnesota DNR built the Halma Swampland Wildlife Management Area for tourists from down south. You know, just a place to watch birds, hunt deer and bear, and be drilled by mosquitoes the size of floatplanes.

If that wasn’t bad enough, the State then put up signs to stop visitors, including the neighboring Andersons, from racing their ATVs, cars, and pickups up and down the wildlife trails. A year later, the State fenced off the boundaries, right across one of the trails.

Sadly, the Andersons’ raison d’être – a Minnesota term meaning “it’s what we live for” – for living next to the swamp was to race their ATVs, cars, and pickups up and down the wildlife trails. So they hired one of them fancy-pants city slickers with an armful of lawbooks. He told the Anderson clan that they had a prescriptive easement, that is, a right to run their pickups and cars up and down the WMA trails, because they had done it for so long.

The State unsurprisingly took a dim view of the Andersons’ activities, arguing that the recreational use statutes — not to mention Minnesota’s policy of encouraging private recreational use of land (but probably not pickup trucks being driven up and down trails) — meant that no one could acquire a prescriptive easement on recreational lands.

There are only 78 people in Halma – so if you don’t drive your pickup through the swamp muck, there’s not a lot to do.

The Court had to balance competing interests here. Although one might expect that the judiciary would bend over backward in favor of a state-run recreational area, it played the case right down the middle. The Andersons won their prescriptive easements, but the court held the easements were not transferable, and they would expire on the deaths of the particular Andersons named in the suit.

Anderson v. State, 2007 Minn. App. Unpub. LEXIS 911, 2007 WL 2472359 (Minn. App. Sept. 4, 2007). Since the 1930s, the Andersons had owned a piece of land next to property now owned by the State of Minnesota. The state bought its parcel from a private owner in 1989 and created the Halma Swamp Wildlife Management Area. The WMA is managed by the Department of Natural Resources.

The DNR put up signs prohibiting motorized vehicles on the property and installed fences across a trail where it entered the WMA. Because the Andersons had used the trails on what was now state land for more than 60 years, often driving cars, pick-up trucks, and all-terrain vehicles on them, they sued the state, claiming a prescriptive easement. The trial court found the Andersons had a prescriptive easement by motor vehicle over five trail segments in a section of the WMA. The court held that the right is not assignable and will terminate with the lives of the named Andersons. The state appealed.

Held: The Andersons had a right to the prescriptive easement. The Court described an easement as an interest in land in the possession of another which entitles the easement owner to a limited use or use of the land in which the interest exists. Whether a prescriptive easement exists is determined in a manner similar to title by adverse possession.

A prescriptive easement may be found if the person claiming the easement has acted in a manner “hostile and under a claim of right, actual, open, continuous, and exclusive.” Adverse possession may be maintained by “tacking,” when the current adverse possessor obtained the property through transfer or descent from a prior adverse possessor. The state argued that the trial court erred by granting an easement to the Andersons when Minnesota law encouraged landowners to permit public recreation on their land and purported to protect landowners from claims arising from such recreational use. The trial court was not unsympathetic to the argument, but because the recreational-use statute was passed in 1994, it applied only to causes of action arising on or after that time.

The Court of Appeals agreed, noting that while Minnesota encouraged public use of lands and waters for beneficial recreational purposes since 1961, only in 1994 was the law changed to prohibit the creation of adverse easements on private recreational lands. The Andersons had used the property and trails beginning in the 1930s, and use continued uninterrupted until 2002, when the DNR installed signs, and 2003, when the DNR erected a fence across a trail. The evidence showed that the Andersons’ adverse use of the trails extended for 15 or more years before the state’s ownership of the land.

The state argued, however, that the trial court erred by concluding that the Andersons had established a prescriptive easement because, since recreational use is encouraged by Minnesota law, the element of hostility could not be shown. What’s more, the state contended, the district court erred by determining that respondents’ adverse use of the WMA was visible.

The Court held there was ample evidence that the Andersons developed and used the trails, and it has long been recognized in Minnesota that a person who purchases land with the knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement. There is no dispute that there were existing trails when the state bought the land in 1989. That fact was sufficient to sustain the trial court’s findings.

A dissenting judge said the Andersons’ use of the land was permitted by statute and state policy, and was neither inconsistent with the rights of the property owners nor hostile. Because the Andersons’ use was not hostile, he reasoned, they had not obtained a prescriptive easement. As we all know, the dissenting opinion is the losing jurist’s lament (if not whine), and – while sometimes interesting and often scathing – doesn’t really count.

– Tom Root

Case of the Day – Wednesday, June 4, 2025

Posted on June 4, 2025 by TLRoot tagged.

ONE BIG HAPPY FAMILY

We dimly recall those halcyon days of first-year law school, when our minds were exposed to all of the many ways people could own the land. There were divided interests, undivided interests, partitions, fee tails, tortious fees, tenancies in common… We also recall there was a bar across the street from the law school, and often we would flee the property law classroom for the comfort of a tall, cold one.

That was not always such a good idea. Had we retreated instead to the library, we might have appreciated some of the nuances of real estate ownership better than we did. Had logger Richard Lessard’s attorney appreciated those finer points, his client might have been saved becoming one of the actors in today’s case.

Duane Henry owned 40 acres in Winneshiek County, Iowa. He also co-owned another 120 acres with his four adult kids, with Dad owning 60% and the four children each having an undivided 10% interest. The arrangement may have been some lawyer’s idea of estate planning, or even a protection against the state forcing a sale if senior citizen Richard needed Medicaid for long-term nursing home care.

Whether the ownership would have shielded the land from a Medicaid claim is beyond our ken, and when the questions have come up in our parents’ affairs, we willingly hired lawyers who do nothing but elder law. We do know, however, that whatever its merit as an estate planning tool, this kind of ownership – a cotenancy – plays havoc with getting anything done with the land.

When Dad Duane needed money for a nursing home, he signed a deal with logger Richard Lessard to cut enough timber to pay the bill. Richard knew about the cotenancy, but he thought that Duane could sign the contract.

Richard started to work, but within a day was thrown off the property by one of Duane’s kids. The kids apparently didn’t much like the deal Dad had made from his nursing home bed. They later took bids on timbering the land, and all of the owners – the kids and Dad – signed a deal with another company.

Richard’s problem was this: in a cotenancy, all of owners may have interests, but none of them is automatically an agent for the others. A contract for timber has to be ratified by all of the owners, even that third cousin once removed who lives in Jerkwater, West Dakota, that no one has seen for a decade.

If you’re cutting timber, buying an easement, or making some other deal to materially affect the value of the property, be sure that you know who the owners are and that you have signatures from everyone who needs to sign. Your lawyer can advise you, and the bill will be a lot lower than the costs of being wrong.

Lessard v. Henry, 804 N.W.2d 315 (Ct.App., Iowa, 2011). Duane Henry co-owned 120 acres with his four adult children. Duane owned an undivided 60% of the acreage, and each child owned an undivided 10% interest.

Duane hired Richard Lessard, a logger, to cut timber on Duane’s own 40 acres and on the 120 acres he owned with his children. Richard Lessard knew that the 120 acres were owned in the 60-10-10-10-10 cotenancy. The contract Duane and Richard signed specified that Lessard Logging would cut down mature trees on Richard’s 40 acres and the 120-acre cotenancy. Duane would receive 60% of the profits, and Lessard 40%. The agreement also provided that Duane’s children would each receive 5% of Duane’s share. Duane was in a nursing home at the time they entered into the agreement and wanted the money to help pay nursing home bills.

One or two days after the contract was signed, Richard moved a skidder to the property. Duane’s son, David, told him to remove the skidder, which he promptly did. Soon after that, Richard learned that Duane and his children were taking bids for logging on their property. Eventually, another person entered into a contract with Duane and his children to cut 345 trees on the property.

Richard sued, but he lost in the trial court because Duane’s children, as cotenants of the property, had not authorized or ratified the contract. The court found the children “had given their father no authority to enter into any kind of a logging agreement with the Plaintiff as to the parcels of land in which they have an ownership interest.”

Richard appealed.

Held: Richard’s contract was no good. The appeals court said that the existence of a cotenancy does not imply an agency relationship between the cotenants. One cotenant owner cannot ordinarily bind cotenants by contracts with third persons or transfer or dispose of the interest of another cotenant in such a manner as to be binding, unless authorized to do so or unless his act is thereafter ratified by other cotenants.

Richard had no evidence that Duane was authorized by his kids to enter into the timber contract, and there was no proof they had ever ratified the contract after the fact. “Where there has not been authorization or ratification,” the Court of Appeals said, “any dealing on the part of one cotenant in relation to the common property is a nullity insofar as their interests are concerned.”

Richard also argued for the first time in the court of appeals that logging contracts do not require cotenants’ assent. He maintained that Duane could agree to sell 60% of the timber – his share of it – without the kids’ OK. The Court noted that this had once been the law, but the courts now hold that a cotenant may not sever timber from the land without the consent of the other cotenants. But since Richard had not raised the argument in the trial court, the Court of Appeals refused to reach the issue.

– Tom Root

Case of the Day – Tuesday, June 3, 2025

Posted on June 3, 2025 by TLRoot tagged.

TRIGGER ALERT – SLEEP-INDUCING LEGAL TOPIC AHEAD

The whole issue of “conflict of laws” is about as dry as toast, at least until someone’s injury will go uncompensated because the wrongdoer is immune from liability.

In today’s case, Mr. Cain — a Mississippian — worked for a Mississippi tree-trimming company. The company signed on with a Louisiana public utility to trim trees along a right-of-way in Louisiana. Mr. Cain was hurt when his bucket truck came into contact with an electric line, and he collected on workers’ comp from the Mississippi company. But he sued the electric utility for his injuries, too.

We have no basis for saying that the utility was or was not negligent, and thereby whether it was or was not liable for his injuries. What we do know is that the utility company and Cain’s employer had entered into an agreement that made Cain a “statutory employee” of the utility while he was working on the job, although he really remained an employee of the tree-trimming service.

Whether someone is a “statutory employee” – like beauty – is in the eye of the beholder. Someone who is a statutory employee for IRS purposes may or may not be a statutory employee under state law. Under Louisiana law, the utility was immune from Cain’s suit, because as a statutory employee, his remedies were limited to what he could collect from workers’ comp. But under Mississippi law, companies couldn’t use the “statutory employee” dodge to avoid liability. The trial court said that Louisiana law applied because the accident happened there. Pretty logical, huh? The U.S. Court of Appeals for the Fifth Circuit in New Orleans didn’t think so.

The Court said that while normally that would be the case, Louisiana state law provided an exception, that it would not apply where there was a conflict with another state’s law, and the other state’s policies would be seriously harmed by applying Louisiana law. Mississippi had a strong policy in favor of protecting the subcontractor’s worker — and that policy carried the day. The lesson here for companies working across state lines — or hiring out-of-state companies to work in their home states — is to check carefully beforehand to be sure that protective measures like “statutory employees” really will work. What goes on in Vegas stays in Vegas … but what goes on at home sometimes doesn’t really travel well.

Does this make conflict of laws clear to you? We thought so …

Cain v. Altec Industries, Inc., 236 Fed.Appx. 965 (5th Cir., 2007). Francis Cain, a Mississippi resident, worked for Carson Line Service, Inc., a Mississippi corporation. Carson signed a contract with Washington – St. Tammany Electrical Co-operative (“WST”), a Louisiana corporation, under which Carson agreed to clear rights-of-way for WST’s power lines.

Working on this project, Cain was trimming trees along a power line in St. Tammany Parish, Louisiana, when his aerial truck boom came into contact with an energized WST power line. Cain was badly hurt.

Cain got workers’ compensation benefits under Mississippi’s workers’ compensation law through Carson’s insurance carrier, but that wasn’t enough. He and his wife decided to raise cain with WST, too, so they sued.

WST filed a third-party claim against Carson for defense and indemnity. WST filed a motion for summary judgment claiming tort immunity based on the “statutory employer doctrine” in Louisiana’s workers’ compensation law. That law lets contractors agree that a subcontractor’s employees are “statutory employees,” which makes the contractor immune from liability to them. Cain argued that their case was an “exceptional case,” pursuant to La. Civil Code Article 3547. Mississippi law — under which no “statutory employee” exception existed for the companies to hide behind – should govern the claim, he argued. The trial court granted WST’s motion, concluding that Louisiana law applied.

The Cains appealed.

Held: Mississippi law, not Louisiana law, governed. The Court of Appeals first determined that the laws of Louisiana and Mississippi conflicted. It then found that under Louisiana law, a written contract between a principal and contractor recognizing the principal as the statutory employer of the contractor’s employees was valid and enforceable, making WST immune from civil tort liability. Mississippi law, on the other hand, didn’t recognize and wouldn’t enforce contracts giving tort immunity to a principal sued by a contractor’s employees unless the principal has the legal obligation under the Mississippi Workers’ Compensation Act to secure compensation for that contractor’s employees.

Why all this legal hair-splitting? An injured worker thought workers' comp was;'t enough ... and was looking for a deep pocket.

Why all this legal hair-splitting? An injured worker thought workers’ comp wasn’t quite enough… and was looking for a deep pocket.

WST had no obligation under the Act. Thus, there was a substantive difference between Louisiana and Mississippi law, requiring a choice-of-laws determination. The Court said that the issue of whether WST was immune from tort liability was an issue of loss distribution and financial protection governed by La. Civ. Code article 3544. Under its mechanical rule, Louisiana law would apply because, at the time of the injury, Cain, who lived in Mississippi, and WST, a Louisiana corporation, were domiciled in different states, and both the injury and the conduct that caused it occurred in one of those states, that is, in Louisiana. Thus, the Court said, WST would be entitled to the statutory employer tort immunity afforded it under Louisiana law.

However (and this was the big “however”), article 3547 also holds that where “from the totality of the circumstances of an exceptional case, it is clearly evident under the principles of Article 3542, that the policies of another state would be more seriously impaired if its law were not applied to the particular issue …” the law of the other state will apply. The Court ruled, after comparing the policies and interests of both Louisiana and Mississippi, that it was clear the policies of Mississippi would be more seriously impaired if Louisiana law were applied to this dispute than would Louisiana’s if Mississippi law were applied.

Consequently, the Court said, it would apply Mississippi law to this dispute. Thus, WST was not immune from suit.

– Thomas L. Root