Case of the Day – Friday, April 28, 2023


rhodeisland210430The lilac bush over at the neighborhood church has started to bloom. It’s quite tranquil. Rather unlike the situation that attended the blooming lilac bush along the fence separating two tiny plots in the tiny State of Rhode Island and the Providence Plantations.

The case that arose over the lilacs was as big as the residential lots were small, encompassing the Massachusetts Rule, the doctrine of acquiescence, the excitement of dueling experts, a paper blizzard of multiple police reports, and – before it was over – legal fees sufficient to  bloat the bank accounts of several lawyers.  Truly an epic American legal drama.

 Walt Whitman was lamenting the death of Abraham Lincoln in writing

                  When lilacs last in the dooryard bloom’d,
                      And the great star early droop’d in the western sky in the night, 
                  I mourn’d, and yet shall mourn with ever-returning spring…

He could have been mourning the loss of neighborly civility over what even the judge called a “tempest in a teapot.”

Rosa v. Oliveira, 115 R.I. 277, 342 A.2d 601 (1975). The Rosas moved into their little house on a 43’ x 71’ lot in October 1970, next to the little house on the next-door 43’ x 71’ lot belonging to the Oliveiras. The adjoining lots were separated by a picket and wire fence installed by the prior owners of the Rosa lot some 70 years before. A line of 15’ tall lilac trees planted many years before ran along the Oliveira side of the fence.

Shortly after moving in, the Rosas got permission from the Oliveiras to cut the lilac branches which were growing over the fence and resting on the roof of the Rosa house. On Armistice Day, November 11, 1970, Mrs. Rosa cut down those parts of the trees that were on the roof. When Mr. Oliveira returned home, he was upset by what he saw. According to him, the lilacs “had been cut bad [sic] beyond the boundary line.” He said that when he asked Mr. Rosa about the pruning, Rosa replied, ‘Oh, that. It bothered us… You don’t know what you own.”

As the judge wryly put it, “While November 11, 1970, commemorated the cessation of World War I, it marked the beginning of hostilities which were to take place in the subsequent months on the ‘no man’s land’ that ran between the Oliveiras’ and Rosas’ residences.”

neighbor210430Sometime after the lilac trimming, Mr. Rosa told Mr. Oliveira he wanted to replace the old fence with a new one that would afford greater protection to children, Oliveira replied, “You can’t put the fence because this fence is mine and you can’t touch it.” Later, Mr. Oliveira replaced the wooden section of the fence with another wooden fence. It came down. In November 1971, the Rosas hired a fence builder who came out to the property, cut some lilacs, poured some concrete and set up some steel poles. Mr. Oliveira ripped out the poles. The Bristol police made several visits to both properties. Each side hired surveyors to lay out and determine the location of the dividing line between the two parcels of real estate.

Finally, in January 1972, the Rosas sued to quiet title to the fence – which they said belonged to them. Oliveira said the fence was his, and the Rosas had trespassed, and – for good measure – had damaged the lilac trees on his side of the line.

At trial three experts testified as to the proper boundary line, but none could agree precisely where it fell. It appeared that at most, the fence wandered onto the Oliveira property about 1½ feet.

The Rosas brought in someone from the family that has sold them the property, and her testimony established that the fence had been there for years, her family had put it in and used all of the property up to the fence, and that neither the Oliveiras nor the people who had owned it before had ever complained. Oliveira as much as admitted that by arguing that the case had “started over the cutting of the lilacs.”

Mrs. Rosa testified that she had not cut down the lilac bushes that grew on the Oliveira’s side of the line.

The trial court found that the fence marked the property line by acquiescence, and that Mrs. Rosa had properly exercised her rights to trim the lilac on her side of the fence line.

The Oliveiras appealed.

Held: The trial court ruling was affirmed.

The principle is well settled, the Court of Appeals said, that acquiescence in a boundary line assumed or established for a period of time equal to the statute of limitations will prevent the losing landowner to try to move the line back to where it actually belongs. The acquiescence is “conclusive evidence of an agreement to establish such a line and the parties will be precluded from claiming that the line so  acquiesced in is not the true boundary.”

Here, the appellate court ruled, any difference between the experts as to the location of the division line “is completely immaterial in the light of the trial justice’s finding as to the fence line, since he found that “the fence, which was built long before Mrs. Rosa took her saw to the lilacs, served as the dividing line between the two properties.”

lilacs180919As for Mr. Oliveira’s counterclaim, based on his allegation that the Rosas had damaged his lilac trees, Mrs. Rosa testified that she cut only those branches that protruded over or through the wire fence. “In taking such action,” the Court of Appeals said, “she was exercising her common-law right as a landowner to cut off the limbs which were overhanging or encroaching on her property from trees located on the adjoining property… Even though there is evidence that the fence builder hired by the Rosas had cut some of the lilac trees, Mrs. Rosa testified that the fence was being built on their property one foot away from the original fence line. Having brought the counterclaim, Mr. Oliveira incurred the burden of persuading the trial justice that the Rosas or their agents had damaged that portion of the trees that were on his side of the line. This he failed to do.”

– Tom Root


Case of the Day – Thursday, April 27, 2023


Facts150501Courts of appeal sit mostly to determine how the law should apply to facts. Usually, when a trial court decides a legal question, a court of appeal will give a fresh look to the issue, called “de novo” review. You Latin scholars will recall that this literally means “of new.” Think “fresh look.”

Not so with facts. Whether the trial court got the facts right is something that seldom worries an appellate court. Usually, the appellate court won’t alter a grail court’s factual finding unless it’s clearly wrong. This is known generally as the “clearly erroneous” standard.

The different states and Federal government apply slightly different standards of review to different types of cases, and generalizing may be useful for our purposes, but not for real life. Still, as a rule, appellate courts treat trial courts’ findings of fact with great deference. Today’s case is one of those decisions that make you wonder why they should.

The Tinnes had owned a lakefront resort for years and used a private road, Corewood Lane, for their guests to have access to the beachfront property. When they retired, the couple sold all of the place except for a small piece on the north side, where they built a retirement home.

The Brands tore up the asphalt a bit…

Their golden-age digs had a driveway that attached to Corewood Lane. The new resort owners, the Brands, promptly began obstructing Corewood Lane, even tearing out big chunks of the asphalt. Finally being roused from their retired reverie by the Brands’ unfriendly conduct — which even included the Brands trimming trees on the Tinnes’ property — the retired couple sued for a judgment that Corewood Lane had become a public road by implied dedication. They asked for an injunction against future obstruction, and treble damages for the cut tree limbs.

The trial court obliged on a record that was pretty thin. It ordered that Corewood was public, told the Branches to repave it, pay $10,000 to the Tinnes for having obstructed it, and $250 (which it trebled to $750) for having trimming the Tinnes’ trees without permission.

The Court of Appeals reversed it all.

It turned out that Mrs. Tinnes had herself testified that she and her husband had never intended Corewood to be a public street.  The landowner’s intent is the most crucial element in an implied dedication of a private road as a public one. What’s more, no one bothered to introduce any evidence of the amount of damage that had been caused by the trespass and pruning of the Tinnes’ trees, and at any rate, Missouri’s treble damage statute related to cutting down trees, not just pruning them. To be sure, damages are presumed when a trespass is proven, but the damages that are awarded are nominal – think “symbolic and puny” – unless actual harm is shown.

And how much was nominal in this case? The Court of Appeals cut the damage award to one dollar.  About enough for one-fifth of a Starbucks Double Chocolaty Chip Crème Frappuccino® Blended Crème.

One is left to wonder what evidence the trial court was weighing when it throttled the Brands to begin with. It would appear that the trial judge decided the case with his heart, not his head.

Tinnes v. Brand, 248 S.W.3d 113 (Mo.App. S.D. 2008). Corewood Lane runs through property once owned by the Tinnes but now owned by the Brands. When they owned the land, Mr. and Mrs. Tinnes ran a lakefront resort on the property. Corewood Lane was the access road through their property to the resort site and lakefront. When the Tinneses sold the resort in 1996, they retained four acres on the property’s north side, where they built a home and a driveway leading to Corewood Lane.

As soon as they bought the resort, the Brands started obstructing Corewood Lane with tree limbs, boats, and open ditches. They also removed asphalt pieces (which they claimed were broken) from the paved road, after which parts of the road eroded and washed away. They even trimmed some tree limbs on the Tinnes property.

The Tinneses sued for a declaratory judgment that Corewood Lane was “a road easement for Plaintiffs, and the public,” or alternatively that plaintiffs had the right to use it as an easement appurtenant to their residential property. They also sought an injunction requiring the Brands to repair the road, and not damage or obstruct it in the future, plus actual and punitive damages. The trial court found that the entire length of Corewood Lane was dedicated to the public for use as a roadway; ordered the Brands to repair and repave the road at their own expense; enjoined them from interfering with the use of the road by plaintiffs or the public; awarded $100 actual damages against the Brands for obstructing and damaging the road; and awarded trespass damages of $250, “trebled according to law” to $750, for the Brands’ cutting of trees and limbs on the Tinnes’ property.

The Brands appealed.

The Tinnes didn't need a formal street dedication ... but if they had actually intended to dedicate the street, it would have helped ...

The Tinnes didn’t need a formal street dedication … but if they had actually intended to dedicate the street, it would have helped …

Held: The decision was reversed because the evidence didn’t support a finding that Corewood Lane had been dedicated to public use.

To show implied or common-law dedication of a roadway, a plaintiff must prove (1) the landowner’s unequivocal intent to dedicate the land to public use; (2) public acceptance; and (3) public use. Intent must be unequivocally manifested, expressly or by plain implication. Here, plaintiff Deanna Tinnes herself denied on the stand that they had ever intended to dedicate the lane to public use. The Court held that the record did not “convincingly demonstrate” that any landowner meant to create public rights in Corewood Lane adverse to the owner’s own rights.

As for the $250.00 trespass award, “trebled according to law” to $750.00, the Court of Appeals held that the Brands had only cut tree limbs, not any whole trees, and neither party presented evidence as to damages. However, the Brands admitted the trespass, and the Tinnes were entitled to nominal damages, even if they proved no actual damage. Because the trial court awarded $100.00 for the Corewood Lane access damages, the Court of Appeals said that the $250.00 damages for the trespass could hardly be called nominal.

The Court ordered damages for the tree trimming to be reduced to $1.00.

– Tom Root


Case of the Day – Wednesday, April 26, 2023


Normally, one would think that when an electric utility was busy building new transmission lines, it was just as subject to liability for empty-headed negligence as the next guy. That would be true for your garden-variety profiteering, money-grubbing commercial enterprise. But not necessarily when your Uncle has his fingers in the pie… at least until this past Monday.

Back in the dusty days of the Great Depression, some Americans began to think it was a good idea for the “public” – that is to say, the government – to own electric utilities. A lot of people thought private electric companies charged too much for power, did not employ fair operating practices, and were subject to abuse by the utility holding companies that owned them. What crazy ideas!

After all, the government is benevolent. And efficient. And responsive to citizens. Look no further than your local DMV. Isn’t it sad everything can’t be so well run? During his presidential campaign, Franklin Roosevelt claimed the federal government would never part with control of its power resources. At least where the Tennessee Valley Authority is concerned, he has been as good as his word.

The TVA is a utility that is neither fish nor fowl, acting in all respects like a privately-held company engaged in electricity generation and distribution. At the same time, it acts like a government agency, wielding powers reserved to the government.

Is that a good thing? Don’t ask Gary Thacker. He and fishing buddy Tony “Ski Daddy” Szozda were trollin’ and a’rollin’ in an Alabama fishing tournament on the Tennessee River one weekend, just while TVA crews were raising a submerged power line that they had accidentally let drop into the river. If you ever saw the scene in “The Great Escape” where Steve McQueen commandeers a motorcycle with a rope across the road, you know where things were headed for Gary and Tony. As they passed through the unmarked work area at full throttle, the TVA crews lifted the conductor out of the water. The boat hit the cable. Tony died.

Logically, Gary sued the TVA for negligence. After all, its crews had dropped the cable, and they had no boats patrolling the channel to warn boaters of their recovery activities, despite knowing that boats traversed the area at high speed and that the usual Tuesday fishing tourney – with a lot of fast-moving boats – was underway.

After filing the lawsuit, Gary got smacked again. It turns out that sometimes the TVA is a private utility company. Sometimes it’s the government. Being the government has a substantial impact on liability, because no one may sue the federal government for tortious conduct (like negligence) unless the plaintiff has permission.

Permission is granted by the Federal Tort Claims Act, which grants permission to sue for many types of negligence. The FTCA, however, does not permit suit where the negligent act complained of is a “discretionary function” of government. The trial court concluded that “clotheslining” fishermen with an understaffed and poorly-thought-out power line recovery operation was a government function, and the court thus lacked jurisdiction to hear the lawsuit. The 11th Circuit Court of Appeals agreed.

But two years ago, the Supreme Court of the United States reversed. TVA could be a fish. Or a fowl. But it could not change according to what was convenient. If it was out in the marketplace acting like a private entity, it will be treated like one.

The Court of Appeals had applied an unusually attenuated syllogism here: the TVA has the power of eminent domain to condemn real estate for the installation of power lines. Because that is a government function, if when and where and how to build power lines is a discretionary function, any institutional stupidity that attends the building of power lines is likewise a discretionary function.

The Supreme Court would have nothing to do it. When TVA (or other government actors that compete in the marketplace with private companies)  it is subject to suit when its employees do something bone-headed, and victims are hurt or killed.

There is little question that SCOTUS (the acronym for The Supreme Court Of The United States, used by people in the know) brought some sanity to the FTCA. When we reported on the Court of Appeals decision, we complained, “Where does this string finally snap? Would driving a truck to be used in the building of a power line a discretionary function, so that a drunken TVA employee running down a busload of Brownies be shielded from liability? After all, relieving the tipsy trucker would require using another employee, an allocation-of-resources decision? More to our topic, would the clearing of trees well beyond a right-of-way – because maintaining power lines that TVA built on land it had condemned be part of the “discretionary function” chain – likewise block a suit when the tree fell on the same busload of Brownies? There seems to be no logical way to cabin the 11th Circuit’s reasoning in this decision.”

Maybe the Justices read this blog. It’s doubtful, but the wisdom of the Court’s decision is not.

Thacker v. Tennessee Valley Authority, — U.S. —, 139 S. Ct. 1435, 203 L. Ed. 2d 668 (2019). Gary Thacker sued TVA for negligence involving a tragic 2013 accident on the Tennessee River. While Gary and his friend Anthony Szozda were participating in a local fishing tournament, TVA was raising a downed power line that was partially submerged when a pulling cable had failed earlier that day. At the moment that TVA employees began lifting the conductor out of the water, the fishing partners’ boat passed through. The conductor struck Szozda, killing him, and Thacker. Injuring him seriously.

The district court concluded that TVA’s activities raising the cable were part of its discretionary function as a government agency, and dismissed the complaint for lack of subject-matter jurisdiction. Gary appealed, and the 11th Circuit agreed. Last week, the Supreme Court reversed the two lower courts.

Held: TVA is not immune from suit for negligence arising from the accident.

Under the doctrine of sovereign immunity, no one can sue the United States without the government’s permission. In the Federal Tort Claims Act, the government granted a limited waiver of its immunity, allowing people to sue the government for torts committed by its employees and agents. The FTCA contains an exception from liability when a government employee performs “a discretionary function or duty.”

By contrast, the TVA is governed by its own statutory waiver of sovereign immunity, 16 U.S.C. § 831c, which grants the TVA the power to “sue and be sued in its own corporate name,” with any judgment paid from TVA assets rather than the federal treasury.  The Supreme Court has previously held that when Congress “launched a governmental agency into the commercial world and endowed it with authority to “sue or be sued,’” the clause should be “liberally construed.”

The government successfully convinced the 11thCircuit Court of Appeals that something like the FTCA’s discretionary-function exception should be judicially inferred to prevent “judicial second-guessing” of TVA policy decisions. Citing a prior Supreme Court decision, Federal Housing Administration v. Burr, the government contended that courts should recognize implied limits on “sue-and-be-sued” clause authority when “necessary to avoid grave interference” with governmental functions. Thus, the government argued to the Supreme Court, that the TVA’s discretionary decisions should be protected from court review.

But the Supreme Court “balk[ed] at using Burr to provide a gov­ernmental entity excluded from the FTCA with a replica of that statute’s discretionary function exception.” The Court explained that because “[t]he law … places the TVA in the same position as a private corporation supplying electricity,” “a suit challenging a commercial act will not ‘grave[ly]’—or, indeed, at all—interfere with the ‘governmental functions Burr cared about protecting.’”

However, as the court noted, “the TVA is something of a hybrid, combining traditionally govern­mental functions with typically commercial ones.” The TVA engages in governmental activities such as exercising eminent domain to take private property for TVA use and running its own band of law enforcement agents. The Court said that if TVA’s activities are “commercial—the kind of thing any power company might do – the TVA cannot invoke sovereign immunity.” But even if the conduct is governmental, it must be clearly shown” that granting TVA immunity from private lawsuit is needed to prevent a “grave interference” with a governmental function.

Because the district court bypassed the “grave interference test,” the court sent the case back for reconsideration in light of this analytical framework.

The Court rejected the government’s claim that constitutional separation-of-powers principles prevent courts from reviewing a government entity’s discretionary choices. The Justices rejected the separation-of-powers argument as applied to the commercial activity engaged like the construction undertaken by the TVA in this case. Beyond that, the Court ruled that Congress by statute waiver may strip a government entity of immunity. “The right gov­ernmental actor (Congress) is making a decision within its bailiwick (to waive immunity) that authorizes an appro­priate body (a court) to render a legal judgment.”

The ruling should blunt government defenses of policy immunity for entities that “operate[] in the marketplace as private companies do” and thus should be “as liable as they are for choices and judgments.”

– Tom Root


Case of the Day – Tuesday, April 25, 2023


watergat160524Today’s case is all about someone named Nixon, government break-ins, abuses of power, and that sort of thing. You’re thinking Watergate, 1972?  That’s so 20th Century. There weren’t even any Russians involved…

The Nixon we’re talking about is Diane Nixon, and the government is that of Montgomery County, Maryland. It seems that Nixon — who was the victim here, not the NCA — had a rather unkempt lawn. The Housing Code people inspected and sent her a certified letter telling her to clean it up or the County government would (at her expense). Ms. Nixon received the letter and made some half-hearted attempt to straighten the place up. But after the ten days provided for in the County’s letter elapsed, the housing inspector and a gang of workers broke through a gate, cut the grass, removed the trees, and hauled off the junk.

Ms. Nixon, apparently more adept at scape-goating than landscaping, sued the County, claiming that it and its employees had grievously violated her due process rights by giving inadequate notice of what it intended to do, by trespassing and destroying perfectly good trees, and — while they were at it — hauling off a picnic table.

The federal district court dismissed the case, finding that the County had complied with due process by giving adequate notice of what it intended to do and when, and the Court of Appeals agreed. At its heart, due process requires notice and an opportunity to be heard. Ms. Nixon got adequate notice and she was afforded a right to a hearing, which she didn’t ever exercise. As for the picnic table, the trees, and a wheelbarrow that the workers allegedly spirited off, the State had a procedure for Ms. Nixon to employ in making claims for such damages. After all, due process is nothing more than “the process that is due.”

President Nixon reminds us with his gesture that due process has two (count 'em, two) components - notice and an opportunity to be heard.

President Nixon reminds us with his gesture that due process has two (count ’em, two) components – notice and an opportunity to be heard.

Nixon v. Montgomery County, 251 Fed.Appx. 141 (4th Cir., 2007).   The Montgomery County Department of Housing and Community Affairs received a complaint about Diane Nixon’s place in Silver Spring, a housing code inspector determined that it was in violation of the County Code. He sent Nixon a notice by certified mail, return receipt requested, stating that her property was in violation of the Housing Code, which prohibits “weeds and generalized growth to exceed 12 inches in height limit in a subdivision.”

The notice complied with the Code: it offered Nixon a 10-day waiting period, the opportunity to appeal the notice, and the telephone numbers for the Board of Appeals and for the inspector. But the notice warned that after the waiting period, the County would enter the property for the purpose of bringing it into compliance with the Housing Code. After receiving the letter, Nixon failed to appeal, but she said he hired some youths to help clean up the place. Nonetheless, after the 10-day period expired, the inspector and a work crew arrived at Nixon’s property, entered it through a chain-link gate that they removed from its hinges, and proceeded to clean up the place. The inspector said the property was still in violation of the Code when he arrived on November 7, and that, in cleaning the property, he cut back and removed dead vegetation, vines, overgrown bamboo, logs of wood, and dead, dying, or leaning trees. He also removed a picnic table and wheelbarrow, maintaining that these items were unusable and constituted trash.

Nixon claimed that she had sufficiently cleared the yard of overgrowth to be within the Housing Code and that the inspector actually destroyed healthy trees, ornamental shrubs, and plants with an estimated value of $17,362. She sued the inspector and the County alleging violations of her constitutional rights to due process and freedom from unreasonable search and seizures under both the federal and state constitutions, as well as state tort claims for trespass and conversion. The federal district court granted summary judgment to all defendants on all claims.

mower160524Held:  The Court of Appeals upheld the dismissal of her claim. The Due Process Clause guarantees that “[n]o person shall … be deprived of life, liberty, or property, without due process of the law.” The general rule developed under the Due Process Clause is that individuals must receive notice and an opportunity to be heard before the government deprives them of property.

Nixon claimed the County’s notice was deficient. But the Court said the notice had to be judged according to three standards: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; and (3) the probable value, if any, of additional or substitute procedural safeguards. Finally, the County had to weigh Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Applying these factors, the Court concluded that the County provided constitutionally adequate process to Nixon concerning the removal of the items covered by the Code.

The removal of the solid waste items, covered by Chapter 48 of the Code, appeared closely related to the cleanup of the Chapter 58 items. Although the notice lacked specificity, the Court said, it clearly presented the County’s general concerns, indicated the County’s proposed solution, and provided Nixon with a means to appeal if she so chose.

Nixon also claimed the County exceeded its legitimate authority under any section of the Housing Code by destroying healthy trees and a functional picnic table and wheelbarrow. But the Court said that Nixon didn’t have a viable due process claim because Maryland provided a post-deprivation process that offered Nixon sufficient redress for her alleged property loss.

– Tom Root


Case of the Day – Monday, April 24, 2023


We make countless assumptions every day, based on our experience and education and sometimes prior hard luck. Where we live, whenever you see a deer cross the road in front of you, you slow way down, because experience has taught you that there’s probably a second, and even a third, tailing along. When we grab some fast food, we assume that the acne-challenged teens cooking it in the back are practicing good hygiene, because we know that the County Health Inspector is on the case, and we know that the restaurant knows that, too. When vicious killers are sent to Death Row, we know that the manifold guarantees and procedures in our criminal justice system assure that the mutts are guilty beyond any reasonable doubt. And we fly with confidence that our government inspectors have worked tirelessly to ensure that the complex systems that carry us six miles above the earth at eight-tenths the speed of sound are free of flaws.

Right, Boeing?

The law indulges us our reasonable assumptions, because those assumptions are the grease that makes society work. If we see a person collapsed by the side of the road and call an ambulance, the law will protect us from a claim by the injured party that we should pay for the emergency squad because they never asked us to call. If we see a toddler wandering in the Walmart parking lot, our reasonable assumption that the child is lost protects us from liability for taking her hand and leading her to the store manager.

Even in this era of unusual domestic arrangements, the law permits us our reasonable assumptions. When Phil and Marlee Snowdon decided they wanted to clear some trees and brush along their property line adjoining the neighbors, Hal and Carol Dickinson, they did what good neighbors do: they asked for the Dickinsons’ consent. Phil and Hal walked the boundary line, Phil described what he and Marlee wanted to do, and Hal consented.

What Phil and Marlee did not know was that Carol had owned the property since before she married Hal, which was about 15 years before. She paid all the bills on the place and made all the decisions. Hal was just a kept husband.

Believing they had permission, Phil and Marlee hired Charter Oaks Tree & Landscaping Co., Inc., to perform the work. Charter Oaks was a few days into the tree and shrub removal when Carol returned from an out-of-town trip and blew a gasket. It did not matter that Hal had given permission, Carol fumed, because she had not.

Carol sued the Snowdons and Charter Oaks for trespass and wrongful cutting of trees. The Snowdons admitted she had not given them permission, but argued that her husband, acting as her agent, had done so. Carol said that didn’t matter, because he lacked the authority to do so, and no sense that he was acting as her duly-authorized agent could be inferred from her conduct, because she had never said a thing that would make Phil and Marlee think he could speak for her.

Poor Hal, the kept man. He could not have felt very good about how his wife legally emasculated him. And neither, apparently, did the court. Not because he’s a guy, but rather because you ought to be able to rely on the promises of one marriage partner to bind both.

Sure, marriage alone isn’t enough to presume an agency relationship exists, but assuming that hubby and wifey speak for each other is some of that societal grease we mentioned. Clearly, the court – while mouthing the legal platitude about no presumption of agency arising from the marriage – was going to find a way to make Hal his wife’s agent. The alternative would be to throw sand in the neighborhood gears, requiring the folks next door, the banker, the grocer, and auto mechanic all to question one marital partner expressing the demands and desires of the couple. How could anything ever get done?

This court wasn’t going to be a party to that. Hal was found to have apparent authority to let Phil and Marlee cut the boundary trees.

Dickinson v. Charter Oaks Tree & Landscaping Co., Inc., Case No. 02AP-981 (Court of Appeals, Franklin County, Ohio, April 24, 2003) 2003-Ohio-2055, 2003 Ohio App. LEXIS 1940. In October 1997, Marlee Snowdon and her husband Richard moved next door to Carol Dickinson and her husband, Hal. Carol Dickinson had lived in her house for 30 years. After Hal and Carol married some 15 years before, he began living there, too. Notwithstanding that, Carol owned and managed the property. Significantly, she admitted the Snowdons had no idea who owned the property.

One spring, the Snowdons decided to clean out substantial vegetation overgrowth along the side of their property abutting the Dickinson property. After Marlee and Richard decided to do the work, Richard told her he had received permission from Hal Dickinson after the two men walked the joint property line together and Richard Snowdon pointed out to Hal Dickinson what the Snowdons wanted to do. Marlee Snowdon hired Charter Oaks to do the work.

Marlee Snowdon told Charter Oaks that the Dickinsons had given their consent to removing vegetation along the border between the properties. Charter Oaks’ normal practice was to rely on the representations of the contracting party about the consent of adjoining landowners. Charter Oaks began removing the vegetation between the Dickinson and Snowdon property.

Hal watched Charter Oaks run chippers and perform its work the first day. But on the second day, Carol returned from an out-of-town trip and became upset about the work.

Carol sued the Snowdons and Charter Oaks for trespass and wrongful cutting.

Held: Hal acted with apparent authority, and the Snowdons and Charter Oak were within their rights to rely on his consent. The evidence showed that not only did Hal work frequently in the Dickinson yard, both alone and with Carol, but he trimmed and removed vegetation from the Dickinson property, including the area along the joint property line with the Snowdons. Hal dealt with contractors, including a tree service Carol hired that performed work on the Dickinson property. No evidence suggested the Snowdons were told Hal had limited or no authority to make decisions regarding landscaping matters on the Dickinson property. That evidence let a reasonable person infer that Carol knowingly permitted Hal to act as though he had authority over landscaping matters on the Dickinson property.

What’s more, the evidence showed that Richard Snowdon believed in good faith that Hal had apparent authority to give permission to the Snowdons and Charter Oaks to enter onto the Dickinson property to remove vegetation in the area of the joint property line.

A defendant is not liable for trespass or destruction of vegetation if he is privileged, by receiving the consent of the owner or her agent, to enter onto the property of another to remove vegetation. “Because competent evidence was presented at trial to support a reasonable conclusion that Hal Dickinson was Carol Dickinson’s agent and had apparent authority to give consent to defendants to enter onto the Dickinson property and to remove vegetation,” the Court said, Carol’s claims against the Snowdons and Charter Oak failed.

– Tom Root


Case of the Day – Friday, April 21, 2023


It is almost an anachronism. A Tennessee movie theatre recently aired the movie “Hellboy,” but so as not to offend, it has listed the flick on its marquee as “Heckboy.”

“Hellboy,” of course, is a 2019 American supernatural superhero film based on the Dark Horse Comics character of the same name. I know this because I looked it up on Wikipedia, not having any independent knowledge of who this mutt character might be. Heckboy looks like a Hell’s Angel who fell asleep under the summer sun having forgotten his sunblock. But then, the movie industry hardly has me in mind when it looks to get into consumers’ pocketbooks. Lucky for them.

Suffice it to say that my heart warmed that in this raucous day and age, some people still think that “Hellboy” is an offensive term.

I bring all of this up because of the Heckerts (not a Bowdlerization of “Hellert”), who are the plaintiffs in today’s case. While lacking a sunburn and probably a set of the Hell’s Angels colors, the Heckerts nonetheless were bikers. At least they were until they ran into a tree branch that had fallen over a rural Ohio road. In true, merciless Hell’s Angels fashion, they sued the County and poor old Mary Weinman, who owned the woods in which the limb-shedding tree stood.

But Mary was ready to rumble, and by the time she was done, the Heckerts had had a heck of a time. Mary had no duty to inspect, and because the Heckerts could not show that Mary knew anything about a hazard tree on her land, she owed them nothing.

Truly a heck of a heck of a thing.

Heckert v. Patrick, 473 N.E.2d 1204 (1984). The Heckerts were riding their motorcycle on a country highway in rural Stark County, Ohio, an area of mainly farmland and forest areas. Without warning, a large limb fell in front of their motorcycle. They collided with it, injuring them badly and damaging the motorcycle. They sued Mary Weinman, who owned the land on which the tree stood.

Mary inherited the property from a relative. She lived in an adjoining county, and hardly ever visited the land. She had no idea of any decay or disease in any tree on the property.

A county inspector testified that during the years prior to the accident, he had patrolled the road at least twice a week, and that the tree appeared to be healthy. He said his opinion was that there was no danger of the tree limb falling onto the road. Photographs in the record confirmed this.

The trial court granted summary judgment to Mary and the County (which had also been named as a defendant in the suit).

The Heckerts appealed, and eventually, the case ended up in the Ohio Supreme Court.

Held: Mary and the County were not liable.

The Court held that in Ohio, generally, an urban owner has a duty to inspect his or her trees to ensure they are safe. By contrast, a rural landowner has no duty to inspect every tree on his or her property, but if the rural owner has knowledge — actual or constructive — of a defective condition of a tree that may result in injury to someone using a highway next to the property, the owner must exercise reasonable care to prevent harm from the falling tree or branches.

The Court recognized that suburban sprawl was causing increasing difficulty in differentiating between rural and urban land, but noted the distinction may have more to do with the location of the highway, its size, and type, as well as the number of people utilizing it, than any other factors.

– Tom Root


Case of the Day – Thursday, April 22, 2021


Your neighbor cannot force you to mow his lawn (unless you’re some kind of masochistic marshmallow). So can the city force you to mow its lawn?

Of course not, you snort. “This is ‘Murica. I have rights! I built my own AR-15! They can’t make me do nuthin’!”

“Not so fast,” as Lee Corso might say. Despite the fact that this is ‘Murica, and in ‘Murica the government seemingly cannot conscript you to do its bidding, it turns out that you can be forced to mow the city’s grass in some limited circumstances.

The other day, I talked about the constitutional police power. Today, we see a darker side of it.

Goodenow v. City Council of Maquoketa, 574 N.W.2d 18 (Sup.Ct. Iowa, 1998). The City of Maquoketa, Iowa, enacted an ordinance requiring landowners whose properties were next to a city street to mow grass and trim weeds growing in the City-owned right-of-way, or pay the City to do it. J.E. Goodenow saw it as an unconstitutional a taking of property for private use in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and in violation of article I, section 18 of the Iowa Constitution.

This being ‘Murica, he sued.

Held: A municipality may exercise its police power by adopting ordinances to promote public welfare, to provide for safety and comfort of its inhabitants, and to declare and prevent nuisances. Such ordinances would include the mowing ordinance at issue in this case.

The Supreme Court of Iowa held that in order to be constitutional, an ordinance must have a definite rational relationship to the ends sought to be served by the ordinance.

The Court observed that in Northern Pacific Railway Co. v. Adams County, 138 P. 307 (Wash. 1914), the Washington supreme court upheld a state statute requiring abutting landowners to cut weeds growing along public highways at the landowner’s expense. That decision compared the statute with statutes requiring abutting landowners to remove snow and ice from city-owned sidewalks on their property, reasoning that the policies supporting the snow removal statutes likewise justified requiring abutting landowners to cut weeds along state highways.

Also, the Court noted, in Commonwealth v. Watson, 223 Ky. 427, 3 S.W.2d 1077 (Ky. 1928), a Kentucky court of appeals upheld a statute requiring abutting landowners to cut or clear away weeds and bushes growing along public highways. As in the Washington case, the Kentucky court concluded that it was reasonable to require abutting landowners to clear away weeds along public highways for the same reason that cities had authority to require landowners to remove snow from city-owned sidewalks abutting their property.

Thus, the Court held, that Maquoketa’s ordinance requiring abutting landowners to mow grass and weeds growing on city-owned property for the benefit of the public at the expense or labor of the landowners promoted and protected public health, safety and welfare of persons who traveled upon city streets. What’s more, the ordinance was reasonably related to achieving those goals.

The ordinance was a valid exercises of police power and did not constitute an unconstitutional taking of property without compensation.

– Tom Root