Case of the Day – Tuesday, March 20, 2018


We had some great trees in our backyard when I was a kid. My parents let each of the four of us children “claim” one of the trees as our own, although I must now confess that the utility of doing so is no longer obvious to me. My sister staked out the sugar maple on the north side of the house, my brothers had a box elder and a red maple, respectively, and I got a magnolia that stood outside the kitchen window.

It’s not like we children had any responsibilities for our trees, either trimming them or raking up their leaves or even pulling suckers off their trunks. We had ownership but no responsibility, which is a great segue into today’s classic case from New Jersey.

I bring up our “claimed” trees because of the young rascal Rick, an ornery kid who lived next door. One warm rainy day in the spring, when intelligent people were inside to avoid getting wet (and you can see what that implies), young Rick was outside playing in the downpour. He somehow decided that conditions were perfect for climbing my magnolia. However, when his foot slipped on a wet branch, gravity ensued. Rick was treated to what would have been a jarring but harmless fall, except for his chin making rather sharp contact with the branch on the way down.

We were blissfully unaware of the life-and-death drama occurring beyond our kitchen window until the next day, when Rick – with chin stitched and bandaged – told my siblings and me what had happened. He matter-of-factly announced that because of the accident, “My Dad’s gonna sue your Dad!”

I recall being shocked that an injury so directly resulting from Rick’s own knuckleheadedness could somehow strip us of all possessions and leave us living in a cardboard refrigerator carton in the back lot of Brown & Miller’s Hardware. Of course, Rick’s appreciation for the finer points of tort law matched his understanding of gravity, and no suit ever resulted. But I found the idea alarming that merely owning a tree, and letting it be a tree, could make us liable for injury to others.

But notion is not so ridiculous that people aren’t still trying to sell it to trial courts. Today’s case resulted from a perfectly healthy tree falling from one property onto a garage on another property. The aggrieved property owner argued that the tree was a nuisance because it fell – for whatever reason – and because it was a nuisance, the tree’s owner was liable. When I read the case, I felt that alarm young Rick engendered in me all over again. Fortunately, the appellate court was not so cowed by the premise that it could not make short work of such a foolish claim.

So what is the standard to be applied to determine liability of a landowner for a tree which falls from his property onto his neighbor’s property for no apparent reason?

Burke v. Briggs, 571 A2d 296 (N.J. Super.Ct. 1990). Robert Briggs and the Burkes owned adjoining properties. One June evening, a large white oak tree growing on Bob’s property suddenly fell over onto the Burkes’ property, crushing their garage. The tree appeared to be perfectly healthy, and no one could assign a reason for its falling.

That hardly stopped the Burkes, who sued Bob for negligence but later added a count citing the elements of a nuisance. The Burkes argued Bob was “strictly liable” for the damages caused by the fallen tree because it amounted to a nuisance. Bob countered that liability should be determined on the basis of traditional negligence principles of tort liability. The trial judge agreed with the Burkes that reasoned the fallen tree constituted a “nuisance” because Bob had failed to use his property in a manner that did “not damage or unreasonably interfere with the use of an adjacent land owner’s property.” The judge said that a private nuisance “imposes a strict liability” on the responsible party, and summarily found for the Burkes without the need for a trial.

Bob appealed.

Held: A nuisance can only be created by unreasonable use of land, meaning that the trial court must look at the circumstances of the case to decide whether Bob was unreasonable in permitting the tree to grow as it did. Thus, the lower court was wrong to decide the matter without a trial.

The appellate court noted the distinction that had arisen in tree law over the years between conditions of land artificially created as opposed to those which come into existence naturally. Historically, if Bob’s tree had been growing there on its own, he would not have been liable for any damage it caused, but if he had planted it or nurtured it, he would be accountable. The appellate panel concluded that the natural-artificial distinction makes little sense in modern life.

The appellate court admitted that “there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance’,” but it nonetheless held that the law was clear enough that a private nuisance must based on the defendant’s interference with another’s use and enjoyment of his or her own land. The superior court fell back on the Restatement, Torts 2d for the general rule that

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

The appellate court held that liability without fault should not be imposed “whether that activity be classified as a nuisance or a trespass, absent intentional or hazardous activity requiring a higher standard of care or, as a result of some compelling policy reason.”

In other words, the appellate court said, regardless of whether the falling tree was a nuisance, trespass or negligence, “the issue here should logically depend on whether the offending landowner somehow has made a negligent or unreasonable use of his land when compared with the rights of the party injured on the adjoining lands.”

So, the court concluded, the focus in the case should be on whether Bob was negligent in some way. To figure this out, the trial court should have considered the nature of the incident, the danger presented by the presence of the tree, whether by making inspections, Bob could or should have known of the tree’s condition, and what steps Bob could have taken to prevent it from falling onto the Burke’s garage.

Tom Root


Case of the Day – Monday, March 19, 2018


love151014The other day, we had a faithful reader ask us whether he could use the Massachusetts Rule to trim a neighbor’s pesky oak tree back to the property line. Of course, we said, with some important caveats.

The question got us thinking last night about the Massachusetts Rule, as we sat groaning from too much madness this March. It’s good sport these days to criticize the Massachusetts Rule — that landowners are limited to trimming tree roots and branches back to the property as the exclusive remedy for encroachment by a neighbor’s tree — as being a relic of a time gone by, when everyone lived in a rural or semi-rural area and times were simpler. The more modern Hawaii Rule — that permits a landowner to sue for damages and injunctive relief when the encroachment causes “sensible harm” — makes more sense in urban environments and in our modern-day (and, dare we say, litigious) society.

The Virginia Supreme Court said as much in Fancher v. Fagella. And North Dakota weighed in with Herring v. Lisbon Partners Credit Fund. When it comes to the old Massachusetts Rule, it’s pretty much “you hold him down, and we’ll kick him.”

Call us apostates, but we’re skeptical that’s the Massachusetts Rule’s demise is such a good thing. So today, we sing a love song to the Massachusetts Rule. And a reprise of Kentucky’s leading encroachment case provides the perfect illustration. Schwalbach’s neighbor, Forest Lawn Memorial Park, had trees that were dropping leaves and twigs that were as dead as the cemetery’s patrons. When Schwalbach sued, the Court held that the only remedy when branches behave like normal trees – specifically, by dropping twigs and leaves – is Massachusetts-style self-help.

Tennessee criticized the approach 17 years later as old fashioned in Lane v. W.J. Curry Sons, but the plain fact is that the Hawaii Rule would have had precisely the same outcome: under that rule, branches dropping a normal load of twigs and leaves were not causing actual, sensible harm. No court would have intervened to order any outcome other than the one found in the Schwalbach case.

apostate151014The case is a perfect example of how the facts of the case — be they extreme (such as in Virginia’s Fancher case or North Dakota’s Herring case) or slight annoyance (such as in today’s case) — drive the decisions. It’s not just that hard cases make bad law, as we pointed out yesterday: the law is always driven by the facts of the case. A careful comparison of the decisions establishing the Massachusetts Rule to the decisions favoring the Hawaii Rule suggests that the rules may not be very far apart at all.

Schwalbach v. Forest Lawn Memorial Park, 687 S.W.2d 551 (Ct.App.Ky. 1985). The Schwalbachs owned an apartment building located next to the Forest Lawn Cemetery. They bought the property in 1969. By 1972, they were whining that overhanging limbs from some of Forest Lawn’s trees dropped twigs and leaves and other detritus. What a shocking indignity.

Forest Lawn trimmed some of the branches, but the problem persisted. The Schwalbachs were more into brickbats than chainsaws. They never trimmed any of the overhanging branches themselves, but were content to let their mouthpiece do their work for the in court.

Forest Lawn will handle the dead people ... but the Schwalbachs are responsible for the dead leaves.

Forest Lawn will handle the dead people … but the Schwalbachs are responsible for the dead leaves.

The Schwalbachs replaced their flat roof with a pitched one, at the cost of $14,300, a result of damage done by an accumulation of leaves and twigs. The trial court found that the damages resulted from normal deadfall of leaves and snall debris from the trees. It applied the Massachusetts Rule set forth in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931), concluding that the Schwalbachs should have removed the offending limbs back to the boundary line.

The Schwalbachs appealed.

Held: Kentucky follows the Massachusetts Rule. The Court rejected the Schwalbachs’ argument that Kentucky should follow the rule that every owner should be held responsible for private nuisances on real estate, essentially an ordinary negligence rule. The Court observed that “[i]mposing liability upon a landowner for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees.”

The Court did suggest that were the tree in question dead and likely to fall and cause serious injury, “[a] claim for damages or removal of such a tree might be based on the theory of negligence for damages or nuisance for removal.”

This decision was criticized by the Tennessee Supreme Court in Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn., 2002) as among those antiquated cases that didn’t permit any remedy for encroaching branches and roots beyond self-help.

– Tom Root


Case of the Day – Friday, March 16, 2018


It’s easy to dismiss the belly-aching of people who claim that their view of the ocean, the mountains, the lake, whatever, has been ruined by someone else’s construction, or even – as we have seen all too often – by trees that grow too tall. But it’s a different matter when your own 0x is the one being gored.

Thanks to the nosy people at Google Earth, we can clearly see the problem that resulted in today’s case from 435 miles out in space. The parties to the kerfuffle – the Ceynars and the Barths – are clearly more than one  missed paycheck away from a cardboard box. And for a lot of people, it’s hard to muster up a lot of sympathy for someone who claims a diminished view of the prairie reduced their home value by an amount that would buy more than half the average U.S. home.

Still, it’s easy enough to understand – if not to empathize – with the consternation you must feel when you spend a big chunk of money in expectation that you’re going to enjoy watching the sun set on the prairie while you sip Mai Tais, or whatever the 1% in North Dakota like to sip.

Clearly, the Ceynars were sufficiently exercised about this that they spent lavishly on lawyers, all the way through the North Dakota Supreme Court. It did not do them much good, because it turns out that a property owner’s right to perpetually enjoy the view that existed on his and her property on move-in day is simply too contingent, too mushy, too prone to generate litigation rather than progress, for any court  to infer its existence – at least absent a well-written easement signed by everyone involved that establishes the right.

Ceynar v. Barth, 904 N.W.2d 469 (N.D. 2017). The Ceynars and the Barths are neighbors at The Ridge at Hawktree, a Bismarck subdivision (that appears not to be Section 8 housing) near a golf course. Both families are members of the homeowners’ association. Before the Ceynars purchased their home, Mr. Barth won approval from the Association to build a “pool house” on his property, connected to his house with a breezeway. After the Ceynars occupied their place, the Barths commenced construction, whereupon the Ceynars complained to the Association. They claimed the pool house would block their view to the north and west toward the Hawktree Golf Club.

After the Association did nothing, the Ceynars sued the Barths and the Association, alleging breach of contract and nuisance. They claimed the pool house violated restrictive covenants and unreasonably interfered with the enjoyment of their property and diminished its value. Mr. Barth and the Association moved for summary judgment dismissing the action. The district court granted the motion, concluding the pool house did not violate any of the Association’s restrictive covenants. As well, the trial judge said, under N.D.C.C. § 42-01-01 “a nuisance consists in unlawfully doing an act or omitting to perform a duty,” and the Barths’ construction of the pool house was completely lawful.

The Ceynars appealed.

Held: It’s party time at the Barths’ pool house.

The Ceynars argued that the “pool house” violated the restrictive covenants governing the Hawktree development, because Section 4 of those rules – entitled Nuisances: Construction Activities, stated that “no other nuisance shall be permitted to exist or operate upon any Lot or other property so as to be offensive or detrimental to any other Lot in the vicinity thereof or to its occupants.” The Supreme Court, however, found that the restrictive covenant clearly related in context to construction activities “rather than the finished product.” At any rate, the Court said, the homeowners association has the authority in its sole discretion to determine whether a nuisance exists for purposes of the covenant. The Association approved the Barths’ construction plans and found no nuisance exists.

But, the Ceynars complained, there was an implied covenant that prohibited the pool house because it “destroys the open prairie look and overall theme of the community in the subdivision.” The Ceynars relied on a text message sent by, and deposition testimony of, the Association’s secretary indicating fences, outbuildings, and trees were not allowed in order to preserve an “open prairie look” in the subdivision, and on the Association president’s deposition testimony that the covenants require an “overall theme of the community.”

The Court made short work of that claim, holding that implied covenants are not favored by the courts and that, at any rate, the Ceynars could point to no evidence that these vague statements had anything to do with the plans of the developer or that the Barths were aware of a policy favoring the “open prairie look.” North Dakota precedent clearly holds that covenants will be given effect only “when clearly established,” and this implied covenant was as solid as Jello.

The meat of the Ceynars’ claim was that the district court erred in dismissing their statutory private nuisance claim against the Barths. Section 42-01-01, N.D.C.C., defines a nuisance as “unlawfully doing an act or omitting to perform a duty, which act or omission… annoys, injures, or endangers the comfort, repose, health, or safety of others; or in any way renders other persons insecure in life or in the use of property.” The Ceynars complained that before the pool house, “we enjoyed the open prairie look and feel. Not only have we also lost views of the Burnt Creek Valley and the golf course because of the pool house, the size and scope of the pool house and breezeway towers over our property, depriving us of anything that could be considered an open prairie look.” In fact, they presented an appraisal of their property indicating the obstructed view lowered its value by $140,000. They also presented photographs taken before and after construction of the pool house demonstrating their obstructed view.

The district court dismissed the statutory nuisance claim, reasoning that construction of the Barths’ pool house was lawful, so there could be no statutory nuisance. The Supreme Court agreed with the Ceynars that this holding was wrong, but any sense of victory they experienced was short-lived.

The Ceynars argued the district court failed to engage in the required balancing test, “a balancing of the utility of defendant’s conduct against the harm to the plaintiff, plaintiff’s attempts to accommodate defendant’s use before bringing the nuisance action, and plaintiff’s lack of diligence in seeking relief.” The Supreme Court acknowledged that while “scenic views may enhance the value of a tract of land… [and] such a benefit, while intangible may enhance market value, with buyers willing to pay extra for the view,” that did not translate to a legally protectable interest. “Traditional American property law fails to protect access to light over neighboring land,” the Court held, at least “in the absence of an express easement or covenant, advantageous views are unprotected.” Because a landowner has no right to an unobstructed view, the size and shape of a neighboring structure cannot be a nuisance even if it effects material reduction in market value.

This rule is necessary, the Court observed, because

extending the law of nuisance to encompass obstruction of view caused by lawful construction of a neighboring building would unduly restrict a landowner’s right to the free use of property, interfere with established zoning ordinances, and result in a flood of litigation. Because every new construction project is bound to block someone’s view of something, every landowner would be open to a claim of nuisance. If the first property owner on the block were given an enforceable right to unobstructed view over adjoining property, that person would fix the setback line for future neighbors, no matter what zoning ordinances provide. The practical implication of such a right would be the need of every ‘servient’ owner to obtain a waiver of the easement of view created in the “dominant” landowner. Such obstacles to land ownership and development, for the sake of a clear view, hardly commend themselves.”

Inasmuch as the Ceynars had no cognizable right to an unobstructed view from their property, the Barths’ construction of the pool house as a matter of law did not unreasonably interfere with the Ceynars’ use and enjoyment of their property.

– Tom Root


Case of the Day – Thursday, March 15, 2018


Recently, we had a kerfluffle in our home county over pipeline company employees giving notice to people that they would be coming onto private land to survey for a new underground pipeline. The nature lovers on the left united with the libertarians and assorted wingnuts on the right to argue that the state could not let these pipeline renegades trespass on our sacred private homesteads in order to plan an environmentally cataclysmic pipeline. Think “pipeline construction equals K-T extinction event,” and you get the idea.

You may remember that famed anti-government rancher Cliven Bundy had a similar problem – government functionaries trespassing on his land just because he was letting his cattle trespass on government land. His approach was much more direct, employing caliber 5.56 and ending up with two criminal trials in two different federal courtrooms (and two “not guilty” verdicts, we hasten to add). Clive’s approach was every bit as effective as that of our home county protesters… which is to say “not very.”

Our ad hoc coalition of pipeline opponents lost, of course. They, like many landowners, were unhappily surprised to learn that state laws – written by state legislators, after all – permit state employees, agents, and even employees and agents of public utilities to come onto private land at any time to conduct surveys for public works projects.

That’s what happens when you get in the way of progress. You get both disappointment and a pipeline through your side yard. But sometimes, some landowners can bite back.

Ron and Maggie bit back, maybe not hard, perhaps just nipped back a little, when the Ohio Dept. of Transportation sent some local yokels onto their land to remove three trees believed to be in a highway right-of-way. But no one checked the r-o-w to be certain, and half of the three trees – yes, your math is right, 1.5 of the 3 trees – were not ODOT’s to cut. What’s more, the county boys seemed to have run bulldozer races through Ron’s and Maggie’s protected wetlands, laying waste to a fragile ecosystem, harming the habitat of the woolly salamander (or something like that), and pissing off the landowners.

Ron and Maggie demanded justice in the Ohio Court of Claims. By the time the Court was done whittling down their claims, they got their measure of justice – but it was a small measure, indeed.

Kerns v. Ohio Dept. of Transportation, 2017-Ohio-7154 (Ct. of Claims, July 25, 2017): Ronald Kerns and Margaret Ruth Leslie owned 18 acres of mostly wooded property, including federally protected wetland with vernal pools that provide a habitat for salamanders. When the State of Ohio had to replace a bridge on a road in front of the property, the State notified the owners that its representatives would be coming onto the land to survey, that they would use due care in doing so, but if there was any damage to the land, the State would pay for it. Like most states, Ohio had laws that authorized state employees to come onto private property for such purposes.

The day after Christmas 2014, crews from the Portage County Engineer’s Office came onto the property and laid waste, cutting down trees inside and outside of the state right-of-way, running heavy equipment across the property, dumping wood chips in the vernal pools (resulting in ecological damage to the wetlands on the property); and leaving large drag marks where larger trees were removed. Ron and Maggie asserted that trees and vegetation on their property were damaged or removed without either their permission or the permits required by the EPA.

The engineer testified he asked Portage County to remove a hickory tree that was larger than 18″ wide, a swamp white oak that was over 50” wide, and a dead tree trunk. He thought the three trees that he had marked to be removed were all within the right-of-way. When he learned that more than those three trees had been removed, he sent an assistant to check on the damage. The assistant found that heavy equipment had been on the property, that the wetland was disturbed, that wood chips had been cast into the vernal pools, that many more trees had been cut down, and that vegetation had been disturbed.

Jason Knowles, a certified arborist, used the Trunk Formula Method to calculate a core value for each type of tree. According to Knowles, Ohio has its own guide for what the value of a tree should be. Knowles examined the tree stumps to determine the species and size of the trees that were removed. Knowles determined that a total of 18 trees were removed, in an area that was 60 feet long by 60 feet wide. Although Knowles observed damage to the vernal pools from the wood chips, and damage to the soil due to the heavy machinery tracks, he did not determine a value for either soil compaction or vegetation that was removed. Knowles testified that the value of the trees that were removed totaled $18,200.

ODOT’s expert, Charles Flagg – a real estate appraiser – testified the damage to the plaintiffs’ property had no impact on its market value, in that the property was densely wooded, and the loss of trees was not substantial and had no effect on the market value of the property.

Held: The Court first concluded that the Portage County Engineer did not trespass on the property. A trespass occurs when a person, without authority or privilege to do so, physically invades or unlawfully enters the private premises of another. Because state law granted ODOT the privilege to cut, trim, or remove any grass, shrubs, trees, or weeds growing or being within the limits of a state highway, and enter private land to conduct a survey for plans and specifications for proposed projects, the agency and its representatives had a privilege to enter plaintiffs’ property and, therefore, did not commit a trespass.

Although ODOT could not be liable for cutting down vegetation within the right-of-way, the Court ruled, plaintiffs could prevail if they were to prove that ODOT removed trees outside of the right-of-way. Here, ODOT directed Portage County to remove three trees in what it assumed was the right-of-way. But the bitternut hickory was not within the right-of-way, and the swamp white oak straddled the right-of-way boundary. ODOT thus trespassed when its agents removed those trees. Accordingly, the magistrate recommends judgment in favor of plaintiffs on their claim of trespass with regard to the swamp white oak and the large bitternut hickory tree.

While Ron and Marge could not prove that ODOT was liable for treble damages under O.R.C. § 901.51 – because they could not prove ODOT was reckless – ODOT nevertheless was responsible for the removal of one and a half trees on plaintiffs’ property outside of the right-of-way (one of the trees straddled the right-of-way boundary line, although it is not clear how ODOT could have removed only its half). Still, the Court said, the removal of those trees “was not so extreme as to amount to a substantial deprivation of all of the rights of ownership of plaintiffs’ property” and thus did not rise to an unconstitutional “taking” of property in violation of the 5th and 14th Amendments.

What’s more, because ODOT only told the County to remove three trees, it ws not responsible for the additional trees, including two green ash trees, two, 12” wide bitternut hickory trees, and twelve saplings, that the County Engineer destroyed.

When a party trespasses and cuts trees that are part of a woodland mix and not unique, the ordinary measure of the harm is the difference in the fair market value before and after the cutting. However, the Court said, “there is an exception… in which restoration costs may be recovered in excess of diminution in fair market value when real estate is held for non-commercial use, when there are reasons personal to the owner for seeking restoration, and when the diminution in fair market value does not adequately compensate the owner for the harm done.” The Court held that “destruction of trees that form part of an ecological system of personal value to the owner justifies restoration cost as a measure of damages. In addition, in an action based on temporary injury to noncommercial real estate, a plaintiff need not prove diminution in the market value of the property in order to recover the reasonable costs of restoration, but either party may offer evidence of diminution of the market value of the property as a factor bearing on the reasonableness of the cost of restoration.” Diminution in value is a factor to be considered in determining whether restoration costs are reasonable, but it is not itself an element of damages that must be considered. Finally, in cases involving trespass that results in the removal of trees or other vegetation, “a landowner is entitled to recover reasonable restoration costs, plus the reasonable value of the lost use of the property between the time of the injury and the restoration.”

Plaintiffs’ expert arborist testified that the swamp white oak had an appraised value of $8,498.00, and that the large hickory tree had an appraised value of $4,345.00. The Court found that he Trunk Formula Method is an acceptable way of determining damages in the case.

The appraised value of the trees may not necessarily be the same as restoration cost, the Court said. While there was no change in the market value of plaintiffs’ property as a result of the tree cutting, certainly, the Court said, the three trees “had some value, especially the swamp white oak, in that it was located in a federally protected wetland on plaintiffs’ property, and plaintiffs testified credibly that the trees form part of an ecological system of personal value to them.” The Court found the plaintiffs were entitled to $12,843.00 in reasonable restoration costs and reasonable value of the lost use of the property between the time of injury and the restoration.

– Tom Root


Case of the Day – Wednesday, March 14, 2018


dasani151013Regular devourers of news know that the vaguely-scandalous acronym SCOTUS is really an intimate body part at all, but rather the Supreme Court of the United States. Likewise, the President is regularly referred to as POTUS, and the First Lady FLOTUS and so on. But you have to be a real policy wonk to ring on a Jeopardy! clue reading “This definition, known as WOTUS, is one of the hottest environmental issues of the day.”

The proper answer is “What are the Waters of the United States?” The definition of what streams, rivers, rivulets and trickles are considered the “waters of the United States,” and thus to be regulated by the Environmental Protection Agency, has been debated since the Obama administration redefined just about everything short of a Dasani bottle to be WOTUS, and thus reachable by EPA clean water regs. The Sixth Circuit United States Court of Appeals has already enjoined the U.S. Environmental Protection Agency from enforcing new “clean water rules.” The Court held, among other things, that the likelihood that the rules were unconstitutional is pretty substantial, because the rules  are “facially suspect” (which is the judicial equivalent of holding one’s nose).

Last month, with a new sheriff in town since Trump took office, the EPA and Army Corps of Engineers announced that the new WOTUS rule would not become effective until February 6, 2020, to give everyone time to “study them” (code for “figuring out how to kill the new reg once and for all).

Nevertheless, the Court of Appeals decision got us musing about “waters of the United States,” and the expression’s older cousin, “navigable waters.” That brought to mind Orr v. Mortvedt.

In Orr, our latest installment of neighbors behaving badly, we find a gaggle of adjacent homeowners living around a flooded quarry in Iowa. The owner of the quarry sold off the land in pieces to several buyers; apparently, he may have oversold it a bit.

The Mortvedts made a deal in which they bought land and some real estate under the lake all the way to the west shore. That’s what the sales agreement said. Problem is, the deed delivered to the Mortvedts at closing didn’t exactly agree, and no one read the fine print.

Later, they got into it with the neighbors, who actually did own some of the land the Mortvedts thought they had bought. The neighbors were frosted because the Mortvedts were boating and fishing on parts of the lake over their land. Eventually, this being the land of the free and all, everyone sued everyone else.

quarry151013The case went all the way to the Supreme Court of Iowa, which held that the Mortvedts couldn’t get their deed reformed to match the sales agreement, because the law didn’t let that happen where an innocent third party was involved. The Orrs — who were the neighbors who would be affected by such a reformed deed — weren’t a party to the original deal. If the Mortvedts got their deed changed to reflect that they owned more property, the Orrs’ deed would necessarily have to be changed to show that they owned less. They weren’t a party to the original deal between the Mortvedts and the sellers, and therefore, it would be unfair to take their land to satisfy the Mortvedts.

As for the widespread boating on the lake, the Supreme Court of Iowa was forced to make a decision of first impression in the state, and adopt the common law rule that for non-navigable water (such as this lake), an owner was restricted to boating and fishing only on the part of the lake which lay over bottom that party owned. This was pretty much an unsatisfactory result — the case discusses at length all of the good reasons for adopting the Scottish rule to the contrary — but as the old legal aphorism goes, “hard cases make bad law.”

Orr v. Mortvedt, 735 N.W.2d 610 (Supreme Court of Iowa 2007). The Twedt family owned a rock quarry and land surrounding it in Hamilton County. There came a time when the mining of the quarry was discontinued, and the excavated area ¬– consisting of about thirty acres – became a lake. The Twedt family sold the land in a series of transactions over a period of years. Each of the transactions resulted in the conveyance of a portion of the lake bed and land surrounding it. Jeffrey and Susan Mortvedt purchased a tract west and north of the lake, including the northern tip of the lake bed, in 1996. Two years later, Stephen and Shirlee Orr bought a parcel situated primarily on the east side of the lake and including that part of the lake bed located between the parts previously purchased by another party, the Sevdes, and the Mortvedts. The Orrs soon conveyed a piece of the property they had acquired, including a part of the lake bed, to Ronald Cameron.

hardcase151013The Mortvedts argued their property extended to the water’s edge on the west side of the lake., but the Orrs claimed a survey filed at the time of the Mortvedts’ purchase establishes that the Orrs own a narrow strip of land on the west side of the lake. The boundary dispute escalated when the Orrs cut down trees and planted other vegetation on the disputed narrow strip of land, as well as from the parties’ inability to agree about their respective rights to use the lake. The Sevdes and the Orrs objected when the Mortvedts used parts of the lake beyond the boundaries of the lake bed owned by the Mortvedts for fishing and boating. The Orrs, the Sevdes, and Cameron sued, seeking a resolution of the boundary dispute and other relief, and the Mortvedts counterclaimed, asking that the plaintiffs be required to restore the lake water level to that which prevailed when the Mortvedts purchased their property in 1996, and that the plaintiffs be held not to have a right to install or maintain a fence in the lake. The Mortvedts also sought reformation of their deed to conform it to the understanding of the parties to the 1996 conveyance that their east property line extends to the lake water’s west edge.

The trial court held the parties were entitled to the exclusive possession, use and enjoyment of the water covering the real estate described in their respective deeds. It also held that each of the parties owned any minerals located on the real estate described in its respective deed, that the Mortvedts were prohibited, absent express written permission, from entering upon or using the water overlaying the properties owned by the Sevdes, the Orrs, and Cameron — who were legally entitled to construct a fence, berm or other structure to mark the boundaries of their properties — and the Sevdes, the Orrs, and Cameron were entitled to drain the water covering, mine minerals from, and restore wetlands upon their properties. The court denied the Mortvedts’ counterclaim. The Mortvedts appealed.

This guy is charged with assaulting a child and her mother. Truly a defense attorney's nightmare ... and a living example of a

This guy is charged with assaulting a child and her mother. Truly a defense attorney’s nightmare … and a living example of a “hard case” that may lead a jury to make bad law.

Held: The Mortvedts were not entitled to obtain reformation of the deed, because the remedy of reformation was unavailable under the circumstances of the case.

The Iowa Supreme Court ruled that it only would order reformation of a deed against a party to the deed, a person in privity with such a party, or a person with notice of the relevant facts. Reformation will not be ordered to the prejudice of innocent third persons.

The Orrs were innocent third parties as to the transaction between the Twedt estate and the Mortvedts, and had no knowledge that the Mortvedt transaction was anything other than was recorded in the deed. The Court found that a reasonably prudent person would interpret the survey filed with deed, prepared by a professional surveyor, as an illustration of the boundary legally described in the Mortvedts’ deed and as confirmation that the Mortvedts had not acquired from their grantor the narrow strip of land on the west side of the lake that is the subject of this dispute. Nothing stated or illustrated in the Mortvedts’ recorded deed and survey would cause a prudent subsequent purchaser to further inquire into the deeding parties’ intentions and to consequently discover any discrepancy between those intentions and the legal description in the deed. The holding, of course, meant that Mortvedts had no claim for damages for the Orr’s removal of trees from the narrow strip of land on the west side of the lake.

The Court also held that while the public generally has a right of access to navigable watercourses, the term “navigable watercourses” refers to watercourses “susceptible of use for purposes of commerce” or “possess [ing] a capacity for valuable floatage in the transportation to market of the products of the country through which it runs.”

The Court said that the landlocked body of water in this case had never served as a highway of commerce, and the non-navigable status of the lake dictated that the bed of the lake is owned by the state or by private parties. The non-navigable lake in this case was privately owned by the parties because each of their deeds includes part of the lake bed. And in an issue never decided in Iowa before, the Supreme Court held that the common law rule adopted by most states — that on non-navigable waters, users are limited to the areas of the watercourse which lay on lands they owned, rather than having a right to use the whole watercourse if they owned land underlying any of it.

Ironically, there is little doubt that under the EPA’s rules, the 30-acre quarry sitting in the middle of the Great Plains is among the “waters of the United States.”

– Tom Root


Case of the Day – Tuesday, March 13, 2018


different151009The late Steve Jobs — whose equipment we use in running — exhorted us all to “think different,” by which he meant “buy Apple products.” Now, of course, Steve’s life has been turned into a best-seller and a major motion picture… and like its competitors, Samsung, Google and Microsoft, Apple’s brand has been a bit tarnished as of late. 

Notwithstanding Steve’s Einsteinian advice, our late mother – a retired English teacher – used to lecture us that Apple really meant “think differently.” No matter.

Today, we’re taking a fresh look at the Virginia Supreme Court’s decision in Fancher v. Fagella, the seminal 21st century case on tree encroachment. In so doing, we re-read the old Smith v. Holt decision that is credited with first adopting the old Virginia Rule 76 years ago. And we’re thinking different about it.

Initially, we confess, we joined with the Virginia Supreme Court and commentators in ridiculing Smith v. Holt’s focus on whether a tree was “noxious” or not. We liked the newer Fancher approach, which the Washington Post, after all, hailed as breaking new ground. But now, after revisiting Smith v. Holt and considering the 19th century cases on which it was based, we’re wondering why Virginia ever thought the Fancher decision was necessary at all. Thinking different … can an Apple Watch be in our future?

Over the years, the law on what a neighbor may do with encroaching trees branched into three or four divisions. The flinty self-reliant New Englanders have followed with the Massachusetts Rule, a holding that landowners may resort to self-help to stop encroaching trees and roots by trimming them back to the property line, but the courts are not available to hear encroachment disputes if self-help is not adequate. At the other end of the United States (and 50 years later), Hawaii adopted what is unimaginatively known as the Hawaii Rule, a holding that while Massachusetts Rule-style self-help was always available to a landowner, so were the courts: landowners could sue to collect damages and to force a neighbor to trim or remove a tree when that tree was causing actual harm or was an imminent danger to his or her property.

We’re thinking different about Fancher … so where’s our free $1000 iPhone X?

The disrespected Virginia case on the issue, Smith v. Holt, was in fact forward-looking and logical: in essence, Smith v. Holt adopted the Hawaii Rule years ahead of the Ahola State, and did so with law which — had the Virginia courts not acted so precipitously in Fancher v. Fagella — would still be the law in the Old Dominion.

Smith v. Holt was the 1939 decision — handed down only eight years after the Massachusetts Rule was adopted in the Bay State — that the Virginia Supreme Court repudiated in its 2007 Fancher decision. In Smith v. Holt, the Virginia Supreme Court reviewed a dispute in which a neighbor’s private hedge had grown over the years to the point that it was growing on the complaining neighbor’s lawn and shading a large portion of it. The Court held that the Massachusetts Rule should apply unless the hedge in question was (1) causing actual harm or was an imminent danger to the neighbor; and (2) was “noxious.” Because Mrs. Smith had not shown that actual harm was being caused, the Supreme Court declined to order Mr. Holt to remove the hedge. The Smith v. Holt holding was seen at the time as a variation on the Massachusetts Rule — although we doubt that it was any real departure from the implied limits of that rule — and became known as the Virginia Rule.

In Fancher v. Fagella, the Supreme Court abandoned the Virginia Rule it adopted in Smith v. Holt. We think this abandonment was unnecessary, premised on a misunderstanding of its own holding 68 years earlier. The adoption of the Hawaii Rule is happening increasingly throughout the United States, and probably is as inevitable as urban growth. However, the Virginia Supreme Court’s overturning of Smith v. Holt was an over-reaction predicated on its own misunderstanding of what is meant by a “noxious” tree. Even in the Massachusetts Rule decision eight years before, the court had cited a 19th century New York decision that held “[i]t would be intolerable to give an action in the case of an innoxious tree whenever its growing branches extend so far as to pass beyond the boundary line and overhang a neighbor’s soil.” The Massachusetts Rule was never intended to extend noxious trees. And what the Smith v. Holt court meant by “noxious” was clear in the context of that case. The court relied on an 1884 Mississippi case in which a mulberry tree was held to be “noxious” because its roots had penetrated and contaminated a neighbor’s well. There was nothing inherently poisonous about the tree: it was just growing in such a way as to cause real harm to the neighbor, beyond mere shade and encroachment. In fact, in the only Virginia case ever to rely on Smith v. Holt -— the case we’re reviewing today — a trial court found in 1990 that “under the circumstances of this case, the “mock” or “osage” orange trees are noxious.”

Osage oranges ... the very definition of

Osage oranges … the very definition of “nuisance.”

So it’s clear that whether a tree is “noxious” has nothing to do with the inherent characteristics of the tree or hedge, but has everything to do with where the tree or hedge at issue is located and what it is doing to the neighbor. And that is the classic definition of a nuisance given by the U.S. Supreme Court in a 1926 case: “merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” A noxious tree is a perfectly good tree, but one in the wrong place causing actual, substantial harm, or threatening the same.

But the Fancher Virginia Supreme Court ran off on a tangent, talking about kudzu and poison ivy when it is clear that the courts that first enunciated the “noxious” standard meant nothing more than a tree that was causing or threatening real harm. Ironically, under the Hawaii Rule adopted in Fancher, the plaintiff would have done no better than she did in Smith v. Holt. The hedge she complained about in 1939 wasn’t causing her any harm other than shade and encroachment on her property. That’s not actionable under the Hawaii Rule. If it had been destroying her foundation or choking her sewer, the Smith v. Holt court would have declared it “noxious” and thus a nuisance.

Likewise, Smith v. Holt was all Mr. and Ms. Fancher needed to carry the day. In fact, their arborist understood: he testified that the sweetgum “tree was ‘noxious’ because of its location …” (emphasis added). The arborist and the Fanchers both understood Smith v. Holt. Why the trial court could not, and why the Virginia Supreme Court found it necessary to overrule a perfectly serviceable decision — something courts are traditionally loathe to do — we don’t know. But contrary to the hand wringing and the editorializing, no new day has dawned on Virginia encroachment law. Under Smith v. Holt, a tree causing actual or imminent sensible harm to a complaining neighbor was a “pig in a parlor.” Under Fancher v. Fagella, it still is.

nuisance151009Arrington v. Jenkins, Chancery 89-173, 1990 WL 751069 (Cir.Ct.Va. Feb. 20, 1990) (unreported). This decision, which relied on Smith v. Holt, a landmark Virginia case which was overruled in September 2007 by Fancher v. Fagella, appears to have concerned a suit by one urban neighbor against another because her Osage orange tree had limbs which were overhanging his yard. The Osage orange, of course, drops round fruit of about 5 inches in diameter, which are green and lumpy and inedible to humans. The fruit are known as hedge apples.

Arrington sued for an injunction, asking the Court to order Jenkins to trim the branches that were overhanging the Arrington yard, apparently because of the 5” inedible “hedge apples” the tree dropped on his lawn every fall.

Held: The trial court held that “under the circumstances of this case, the ‘mock’ or ‘osage’ orange trees are ‘noxious’” within the meaning of Smith v. Holt. Because of that fact, the trial court said, the responsibility for the trimming of the trees to avoid the fruit from falling upon Arringtons’ property must rest with Jenkins. The court issued an injunction that restrained Jenkins from allowing the limbs of the Osage orange trees to grow over and above the Arringtons’ land.

– Tom Root


Case of the Day – Monday, March 12, 2018


risk151008More unneighborly neighbors …

Ms. Smith owned 134 landlocked acres, and she gained access to them only through using a township road that was no longer maintained and appeared by all accounts to be abandoned. But the road led through the Thompsons’ place, and — for reasons not revealed in the case — they didn’t much like Ms. Smith crossing their land on the abandoned township road.

They sued to keep her off the road, claiming trespass. Ms. Smith responded that it was still an official township road. “We’ll see about that,” the Thompsons must have grunted in reply. They were grunting because they were busy pounding metal posts into the old road so she couldn’t use it. For legal cover, the Thompsons petitioned the Township to vacate the road.

Here’s where it gets murky. The Township apparently refused to vacate the road, and Ms. Smith asked for summary judgment, pointing out that the court couldn’t issue an injunction to keep her off a public road. The court agreed, but the Court of Appeals did not. It found that the general public had no absolute right to use an unmaintained township road, and that the trial court could enjoin Ms. Smith from doing so if it were so inclined. Also, it said that there were way too many moving parts to this case for summary judgment to be appropriate.

closed151008Frankly, the notion that the general public has no right to transit a public highway that isn’t being maintained is an alarming one, for a number of reasons. Chief among them is the difficulty anyone would have telling when a road ceases to be poorly maintained, and falls into non-maintenance. This decision strikes us as a lousy one.

Thompson v. Smith, 172 Ohio App.3d 98, 873 N.E.2d 323 (Ct.App. Columbiana Co., 2006). This case arose out of a property dispute that began when Marlene Smith attempted to use an old township road named Ashton Road in Madison Township near the Columbiana County Airport. The road hadn’t been maintained by Madison Township for many years and was mostly overgrown with trees. Ashton Road cuts through property owned by both Donald and Rebecca Thompson, as well as land owned by Ms. Smith, a 134-acre tract abutting and just north of the 53 acres owned by the Thompsons. Ashton Road begins somewhere west of the Smith property, then cuts generally southwest through both properties, and eventually connects to other township and county roads to the south and east of the Thompsons.

It appeared from the record that Ms. Smith’s 134 acres were landlocked, and Ashton Road might be her only access to other improved and maintained roads, but it was unclear. The Smith property was cut off from access to the north many years ago when State Route 11 was built. A portion of Ashton Road served as a private driveway to the houses around the southwest corner of the Thompson property, and it is partly maintained by the Thompsons. The Thompsons do not maintain any portion of Ashton Road beyond their own driveway and private home.

Some time point prior to the filing of the complaint, Ms. Smith or her agents entered what they assumed was Ashton Road and removed a locked gate that was crossing the right of way. The gate had actually been installed by Ms. Smith some years before, but it had not been locked until the Thompsons began doing so. The Thompsons then filed a complaint against Ms. Smith alleging trespass, preliminary injunction, permanent injunction, and quiet title. Ms. Smith filed an answer and counterclaim.

roadblock151008Sometime after the complaint was filed, the Thompsons installed seven metal posts across what they consider to be an abandoned part of Ashton Road, and they petitioned the Township to officially vacate Ashton Road. Ms. Smith then filed a motion for summary judgment. The motion argued that a member of the general public could not be found to trespass on a public road and that the court of common pleas had no jurisdiction to quiet title to a township road. The motion asked the court to dismiss the trespass claim and the quiet-title claim.

The trial court held that Ashton Road was a public road, that none of the parties had acquired any private ownership interest in the public road known as Ashton Road and that none of the parties can be found to have trespassed on Ashton Road. The court dismissed the Thompsons’ requests for injunction, finding that no person has the authority to erect obstacles on a public road. The court also held that it had no authority to quiet title to Ashton Road.

The Thompsons appealed.

Held: The Court of Appeals reversed, finding that genuine issues of material fact precluded summary judgment, and that the trial court had the power, if it so elected, to grant an injunction against a private person using a public road.

The Thompsons demanded that Ashton Road be the road not taken ... but the whole idea frosted Ms. Smith.

The Thompsons demanded that Ashton Road be the road not taken … but the whole idea “frosted” Ms. Smith.

The Court found that genuine issues of material fact concerning landowners’ and neighbor’s property rights and their actions and intentions with respect to road, which township had not vacated but which had become overgrown with weeds and bushes, precluded summary judgment for neighbor on landowners’ claim for injunctive relief to prevent neighbor from using the road.

The Court held that the general public has no absolute right to use or change a township road that is not being maintained by the township, whether or not the road has been formally vacated by the township. Also, §5553.042(B) of the Ohio Revised Code holds that a township shall lose all rights in and to any public road, highway, street, or alley which has been abandoned and not used for a period of 21 years, after formal proceedings for vacation have been taken. “Upon petition for vacation of such a public road, highway, street, or alley filed with the board of county commissioners by any abutting landowner, if the board finds that the public road, highway, street, or alley has been abandoned and not used for a period of twenty-one years as alleged in the petition, the board, by resolution, may order the road, highway, street, or alley vacated, and the road, highway, street, or alley shall pass, in fee, to the abutting landowners, as provided by law…”

The Court of Appeals held that the trial court erred when it concluded that there were no circumstances in which an injunction could be granted to prevent a private citizen from using a public road. But one of the primary purposes of injunctive relief in Ohio is to protect property rights. The trial court in this case is free to utilize the remedy of injunctive relief to protect the rights of the parties, even though the primary dispute involves access to and use of a public road.

The Court concluded there remained unresolved factual disputes concerning the property rights of the parties and their actions and intentions with respect to Ashton Road. Therefore, summary judgment was not appropriate.

– Tom Root