Case of the Day – Tuesday, August 29, 2017

NEITHER FISH NOR FOWL

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.

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.

After all, the government is benevolent. And efficient. And responsive to citizens. Look no further than your local DMV. 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 accidently 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. At the 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.

Last week, the 11th Circuit Court of Appeals agreed.

Thanks, FDR! If the utility had been First Energy, Exelon, Con Ed or any number of other private utilities, the checkbooks would have been out. But because the government was here to help, the widow Szozda and invalid Thacker take nothing.

Beyond this undeniable tragedy is an equally unhappy thought. The Court of Appeals 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.

Not all discretionary functions are immune from a negligence suit, but the 11th Circuit’s analysis of this case suggests that the exceptions are as rare as king salmon in the Tennessee River. The court held that decisions on giving the boating public notice of potential danger are intended to be immune from a tort claim because they involve public policy decisions like allocation of resources.

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.

Thacker v. Tennessee Valley Authority, Case No. 16-15105 (U.S. Court of Appeals for the 11th Circuit, August 22, 2017). 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.

Held: The TVA acts both as a private corporation and as a government agency. Here, it was a government agency, fulfilling a discretionary function in building power lines. Therefore, the FTCA did not permit suit, and the courts lacked subject-matter jurisdiction to hear the case.

The Court started with the obvious: the United States enjoys sovereign immunity from suit unless it unequivocally waives the immunity by statute. Courts construe the waiver set out in the FTCA strictly in favor of the government. While TVA is not entirely immune from suit, it cannot be sued when engaged in “governmental functions that are discretionary in nature.”

Previously, the courts have held TVA’s commercial, power-generating activities are discretionary functions. Here, because TVA has the power of eminent domain (a government power), it may condemn private property for transmission lines. Therefore, the 11th Circuit reasoned, TVA acts as an agency of the United States when it constructs power transmission lines on the land it condemned. Because the construction of power lines is a governmental activity, TVA cannot be sued for actions arising out of that activity if those actions fall within the discretionary-function exception.

Gary argued that TVA negligently “failed to exercise reasonable care in the assembly and installation of power lines across the Tennessee River” is encompassed within TVA’s construction of power-transmission lines. His claim that the TVA “failed to exercise reasonable care in warning boaters on the Tennessee River of the hazards the TVA created” was, the Court said, “a matter of choice for the acting employee.” An action is not a matter of choice — and therefore not discretionary — “when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Under those circumstances, an employee is required to follow the directive, meaning that the employee’s actions are not discretionary and do not fall within the discretionary-function exception.

Gary could point to no particular statute or TVA rule that failure to alert boaters transgressed. What’s more, the Court said, TVA’s failure to warn boaters was the “kind of judgment designed to be shielded by the discretionary-function exception.” The Court said TVA’s failure to provide warning to boaters “plainly involved public-policy considerations. The challenged actions and decisions in this case could require TVA to consider, among other things, its allocation of resources (such as personnel and time), public safety, cost concerns, benefits, and environmental impact.”

– Tom Root

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Case of the Day – Monday, August 28, 2017

SLAPP-HAPPY

California and free speech… How times have changed! Time was, 50 years ago or so, Cal Berkeley gave birth to the Free Speech Movement. Now, the Golden State’s Grande Dame of politics, Nancy Pelosi, is mangling metaphors in attempts to justify silencing the odious.  And only in the California Republic could a tree-trimming case end up as a free speech issue.

bureaucracy140923Last week, we explored the question raised by our faithful reader Rock Maple of Thousand Oaks, California, who wondered whether his neighbor could trim the branches from Rock’s pine that were overhanging the neighbor’s place. We concluded that self-help was available to the neighbor, within limits. Today, we look at what happens when good old-fashioned common law self help runs into bureaucracy.

The Dilbecks wanted to add a second story to their house, but their neighbors’ oak tree had extended its branches so close to the Dilbecks’ place that they had to be trimmed back in order to make room. No problem, right? We all know that self-help is available to the Dilbecks anywhere in California. Sure, but it turns out the Los Angeles isn’t just anywhere. In LA, oak trees are “protected,” and before trimming the oak, the Dilbecks had to get a permit from the County. And the County wouldn’t issue a permit unless the tree’s owner signed on to it.

So much for self-help. The Dilbecks sued, asking that the County be ordered to issue the permit and that their neighbors be found liable in trespass for the tree (the theory being that the neighbors let the branches intrude over the Dilbecks’ lawn). And here’s where it got even more complicated. California has a statute addressing litigation known as “strategic lawsuits against public participation,” the so-called anti-SLAPP statute. This mouthful with the catchy name is intended to stop oppressive lawsuits intended to keep people from exercising their rights to free speech. There’s a whole cottage industry in the Golden State surrounding SLAPP actions. And as with a lot of other good ideas (such as RICO), the anti-SLAPP statute is another tool in the canny lawyer’s arsenal, something else with which to bludgeon a plaintiff.

Here, the neighbors complained that the Dilbecks were trying to force them to petition the County to let the tree get trimmed, and the suit should be thrown out as violating the anti-SLAPP statute. The trial court refused dismiss the action. The Court of Appeals agreed, holding that the Dilbecks weren’t demanding that the neighbors do anything. They were asking the County to do something, and they were suing the neighbors for trespass because of the tree. California law would let them collect money damages if the encroaching tree was a nuisance (Bonde v. Bishop held as much). So whether the Dilbecks win on the merits or not, the action was not a SLAPP suit, and it wouldn’t be dismissed.

Oaktree140923Whew! Makes you long for the simple, ol’ Massachusetts Rule… no permits, no lawsuits, just an aggrieved landowner with a chainsaw.

Dilbeck v. Van Schaick, 2007 WL 2773986 (Cal.App. 2 Dist., Sept. 25, 2007). The Dilbecks owned a place in Altadena, next door to the Van Schaicks. The Dilbecks planned to remodel their home by adding a second story. However, the branches of an oak tree located on the Van Schaicks’ property have grown over the Dilbecks’ home, rendering the Dilbecks’ plans unworkable unless the tree was pruned.

Oak trees are protected by California state law. The County of Los Angeles had adopted regulations to preserve and protect oak trees, requiring a permit to cut down mature oak trees or to prune their larger branches. The Dilbecks applied to the County for a permit, but the County had not approved it because it took the position that only the owner of the tree may obtain a pruning permit, and the Van Schaicks had not acquiesced. So the Dilbecks brought suit against the Van Schaicks and the County for declaratory relief and trespass. They alleged the oak tree growing on the Van Schaicks’ property had encroached onto the their land and interfered with their ability to add a second story to their home. The suit said the County refused to grant the permit because the Dilbecks were not the owners of the tree. The trespass cause of action alleged the oak tree branches were encroaching on the Dilbercks’ land, and asked for an order permitting the Dilbecks or an independent contractor to prune the tree.

The Van Schaicks filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, asserting that the complaint was based on their refusal to support the Dilbecks’ oak tree permit application and therefore attacked their right to free speech. They further argued that the trespass claim lacked merit because the law forbade the Van Schaicks to prune or cut the offending oak tree branches.

The Dilbecks contended that their action did not fit within the definition of a SLAPP suit and that, in any event, their complaint had merit. They denied that the complaint sought to compel the Van Schaicks to support or sign the oak tree permit. The trial court denied the Van Schaicks’ motion to strike, finding that they had not demonstrated that they were being sued for engaging in protected activity. Instead, the trial court held, they were just being sued for trespass. The Van Schaicks appealed the court’s denial of their motion to strike.

Freespeech140923Held: The Dilbecks’ complaint did not arise from acts undertaken in furtherance of the Van Schaicks’ rights of free speech or petition, and the Van Schaicks’ attempt to get it dismissed was rejected. The California Legislature enacted the anti-SLAPP statute in response to its perception that there has been an increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition for the redress of grievances. The anti-SLAPP statute provides a procedure for the court to dismiss at an early stage non-meritorious litigation meant to chill the exercise of free speech rights. The statute requires the trial court to engage in a two-step process when determining whether a motion to strike should be granted, first, whether the defendant has made a threshold prima facie showing that the acts of which it complains were ones taken in furtherance of its constitutional rights of petition or free speech in connection with a public issue, and two, whether there is a probability that the plaintiff will prevail on the claim.

The issue here, the Court said, was whether the complaint arose from conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. The Van Schaicks contended the suit sought to compel them to petition the County for discretionary relief from the oak tree statutes. The Court disagreed, holding that their characterization of the complaint was wrong. In fact, the Court said, the suit merely sought to compel the County to review the merits of the permit application submitted by the Dilbecks, and requested an order permitting the Dilbecks or their arborist to prune the tree. The complaint did not seek to compel the Van Schaicks to become personally involved in the permit application process in any way, and thus did not violate the anti-SLAPP statute.

The Van Schaicks contended that the complaint would indirectly force them to speak because a judgment in favor of the Dilbecks on the trespass action would necessarily require the Van Schaicks to petition the County of Los Angeles for discretionary relief from the Oak Tree statute. The Court rejected that argumnt, finding that the Van Schaicks’ position was based on the incorrect assumption that the only remedy available for trespass was injunctive relief. However, California law held a party over whose land overhanging branches extend may either cut them off or maintain an action for damages and abatement, as long as he or she can prove the branches constitute a nuisance.

The prospect that the Van Schaicks could eventually be faced with an order to abate the nuisance and could do so only by seeking a permit from the County did not transform the Dilbecks’ lawsuit into a SLAPP action. The Court ruled that the thrust of the Dilbecks’ complaint was the injury caused to their property by the encroaching tree, not the Van Schaicks’ decision to refrain from involvement in the permitting process. The permit, although obtainable only by petitioning a governmental entity, principally concerned and affected the remodeling of a private home by private individuals.

– Tom Root
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Case of the Day – Friday, August 25, 2017

IT’S YOUR PLACE – TAKE CARE OF IT

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

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

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

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

Jon complained to the railroad all the live-long day, but no one paid any heed to his lament. So he sued, alleging trespass, negligence, and nuisance.

The modern-day B&O: as close to a hometown hero as Baltimore has.

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

TNLBGray

Case of the Day – Thursday, August 24, 2017

SELF-HELP MEETS CATCH-22

catch22141217 Those of us old enough to remember the ‘60s – and if you were around then, you probably were in such a state that you don’t remember them – recall Joseph Heller’s book, Catch-22. The short rocket is this: the “Catch 22” is simply this – if one is crazy, one can be relieved from flying combat missions. But one has to apply for the discharge, and applying demonstrates that one is not crazy. As a result, one will not be discharged.

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

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

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

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

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

standards141217Here, the Toad Lick City Code tells a somewhat different story. The ordinance requires that any trimming in the city has to be done according to ANSI Standard A300, which sets out best practices for tree maintenance. If a trimmer adheres to the standard, what happens to the tree is not his or her fault. If the trimmer does not trim to the ANSI standard, and the tree later suffers “substantial destruction” – that is, it is killed or becomes a hazard tree – the trimmer is liable. So our homeowner’s trimming won’t lead to a fine unless the tree is “substantially destroyed.” And that will take a few years to determine.

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

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

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

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

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

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

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

peter141217Lawrence Peter postulated the idea years ago as a corollary to the Peter Principle: pull is always stronger than push. If our homeowner gets the neighbor’s insurance company on board, he’ll have a lot of pull.

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

We have previously determined that California generally recognizes the Massachusetts Rule, which permits a neighbor to use “self-help,” trimming the branches back to the property line. Of course, California seems also to permit use of the private nuisance laws — something that seems like the Hawaii Rule or Virginia Rule — to let a homeowner like our correspondent force someone like his neighbor to remove the branch himself if it is a nuisance.
Chainsawb&w140225

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

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

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

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

complexity150604Oh, the complexity! And to make it worse, next Tuesday we’ll look at a Kafkaesque result where a neighbor’s right to cut back a tree can’t be exercised without approval of the property owner, resulting in an old-fashioned California SLAPP-down.

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

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

– Tom Root

TNLBGray

Case of the Day – Wednesday, August 23, 2017

LIMITS OF SELF-HELP

School starts tomorrow here. Yeah, it’s been almost half a century since we were secondary school students, but somehow the pain of seeing the summer vacation  whimper to an end still aches. Channel Mungo Jerry one final time.

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

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

cutdown140922But the Rockster was focused on whether his neighbor could fire up his chainsaw. While yesterday’s case said perhaps he can, today’s case should be a caution to him – especially because it’s a California case.

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

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

Unfortunately, this isn’t the final answer. The Booska court was swayed by testimony that Mr. Patel could have protected his sidewalks with a much less aggressive method. We don’t yet know what the result would be if the only means of protecting Mr. Patel’s sidewalk would have required root cutting that would necessarily be fatal.

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

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

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

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

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

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

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

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

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

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

– Tom Root
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Case of the Day – Tuesday, August 22, 2017

A SINGLE PINE AMONG A THOUSAND OAKS

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

A lone pine … but not in Thousand Oaks

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

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

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

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

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

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

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

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

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

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

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

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

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

Bishop appealed.

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

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

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

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

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

– Tom Root

TNLBGray140407

Case of the Day – Monday, August 21, 2017

SIGNS? WE DON’T NEED NO STINKIN’ SIGNS

truck141121The Andersons were livin’ large in the (very) flatlands of far north Minnesota … at least until the swampland next to theirs got sold to the State.

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

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

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

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

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

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

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

Anderson v. State, Not Reported in N.W.2d, 2007 WL 2472359 (Minn.App. Sept. 4, 2007). Since the 1930s, the Andersons had owned a piece of land next to property now owned by State of Minnesota. The state bought its parcel from a private owner in 1989, and created the Halma Swamp Wildlife Management Area. The WMA is managed by the Department of Natural Resources.

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

solomonic141121Held: The Andersons had a right to the prescriptive easement. The Court described an easement as an interest in land in the possession of another which entitles the easement owner to a limited use or use of the land in which the interest exists. Whether a prescriptive easement exists is determined in a manner similar to title by adverse possession.

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

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

goodtimes141121The state argued, however, that the trial court erred by concluding that the Andersons had established a prescriptive easement because, since recreational use is encouraged by Minnesota law, the element of hostility could not be shown. What’s more, the state contended, the district court erred by determining that respondents’ adverse use of the WMA was visible.

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

A dissenting judge said the Andersons’ use of the land was permitted by statute and state policy, and was neither inconsistent with the rights of the property owners and was not hostile. Because the Andersons’ use was not hostile, he argued, he reasoned, they have not obtained a prescriptive easement. As we all know, the dissenting opinion is the losing jurist’s lament (if not whine), and – while sometimes interesting and often scathing – doesn’t really count.

– Tom Root

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