Case of the Day – Thursday, May 31, 2018

TOO CUTE BY HALF

Years ago, we often crossed swords with a crusty old lawyer who favored flannel shirts and corduroys, as well as awful-smelling stogies that fogged up a deposition room like a sunny day in Beijing. When we would explore the state of any pending litigation with him, he always complained that our client needed to “get the money flowing,” by which he meant start the settlement talks.

A lot of personal injury lawyers live and die by that mantra, sometimes litigating a dog of a case because they are confident that before they have to face a summary judgment motion or, God forbid, an actual trial, the defendants will open the checkbook and pay their clients to go away.

That’s what happened in today’s case. To be sure, the deaths of two young men when a tree fell on their car was a tragedy. But somewhere along the way, the families of the decedents lost their way, and decided – when an expert told them frankly that they had no case – that they could fake it, shucking and jiving until the defendant’s insurance company paid up.

Sadly for the plaintiffs in today’s case, the defendant – a nonagenarian – passed away before trial, leaving a tough-minded executor who wasn’t going play footsie with some oily out-of-town lawyers. Also passing away before trial was the defendant’s insurance carrier: the company went bankrupt, so the liability coverage that might have otherwise paid a settlement went away, too. The plaintiffs, perhaps because the estate had money, perhaps because – like fighters in a 15th-round clinch – they were too exhausted to do anything else, played fast and loose with the discovery rules, not answering interrogatories, delaying trial in hopes of a settlement, even hiding the first expert’s report.  But, as sometimes (but not often enough) happens from time to time, the truth was found out.

The result was a vindication for a blameless old lady (who, although dead, nevertheless faced post-mortem indignity at the plaintiffs’ hands) and a well-deserved spanking for some lawyers who were about too cute by half.

Wade v. Howard, 232 Ga.App. 55 (Ga.App. 1998). Chris Wade and Ed Barnsley were driving along Briarcliff Road in unincorporated DeKalb County immediately after a thunderstorm. As they passed Grace Nesbitt’s 8-acre tract of property, they were killed when their car was struck by a large tree that fell across the road. At the time, Grace was 90 years old and very ill, and had not lived on her property for three years before the accident. The families of the deceased young men sued Grace for wrongful death.

During the 1980s, Grace had had trees removed from her property from time to time. In October 1987, she hired a man to remove two trees that were dying because they had been struck by lightning. At the same time, she asked a friend who was caring for her and seeing to her affairs to inspect her property for any other dead or diseased trees, He did so and found no other trees that needed cutting. This caretaker also testified that he looked at the trees along the roadway “many times” on later occasions as he walked Grace’s property at her request.

As for the tree that fell, he saw nothing about the tree that appeared unusual. The base of the tree was over 20 feet from the roadway, behind a fence and across a gully in a heavily overgrown area. Before it fell, the tree’s base was covered with heavy overgrowth and vines. The tree grew towards the sun over the roadway like other trees along the road. The caretaker observed the fallen tree while it was being cut up and saw no dead limbs on it; it was “just healthy on the outside, and this is what baffled everybody, you know.” He said that nothing visible on the tree indicated it was dangerous.

No one ever notified Grace or the caretaker of any problem with the particular tree.

The plaintiff families initially hired an expert who inspected the stump of the fallen tree within six months of the accident. He said the tree was severely decayed and hollow at the base, but that “this internal defect would not have been readily apparent [to] an untrained casual observer.” While the tree leaned over the road, predisposing it to fall in that direction, the expert explained it leaned and had more branches on one side because it was an “edge tree” seeking sunlight over the roadway, doing what all edge trees do. He stated that all edge trees behave like this. The plaintiffs didn’t much like his opinion, and fired him along with the lawyer who had hired him. Three years later, they hired a second expert, who filed an opinion based on looking at pictures of the accident scene. He never authenticated the photos in his report, however, and the trial court therefore rejected his opinion. Plaintiffs also obtained an affidavit of a neighbor who testified she believed the tree was dangerous because it leaned over Briarcliff Road. She admitted she had never told Grace or the caretaker of her opinion.

Grace died before trial, and her estate was substituted as a defendant. The trial court granted summary judgment in favor of Grace’s estate. The plaintiffs appealed.

Held: Grace was not liable for the fallen tree. The Court said that Georgia law governing a landowner’s responsibility for trees is well established. The prevailing rule distinguishes between rural landowners and urban landowners (who iare held to a standard of reasonable care in inspecting trees to ensure safety). Rural landowners are liable only where one of their trees has “patent visible decay and not the normal usual latent micro-non-visible accumulative decay.” In other words, rural landowners have no duty to consistently and constantly check all trees for non-visible rot, as the manifestation of decay “must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.” Just as the owner of a tree has no duty to check it constantly for non-visible rot, a city has no duty to check limbs overhanging a public road for non-visible rot. The Court held that while Grace’s land was unimproved, she did not live on it, and she was old and infirm, it nonetheless would assume for the sake of the case that it was urban land, because it was located in the Atlanta metropolitan area. Even under the urban landowner standard, however, the Court ruled that the plaintiff families had not shown that there was any question of fact that Grace had breached her duty to inspect. The Court said the Plaintiffs

failed to demonstrate patent visible decay in the tree before its fall. Their own expert witness testified that the decay would have been invisible to a layperson on inspection of the tree. Moreover, plaintiffs have not demonstrated that the decay would have been visible, apparent, or patent before the fall of the tree because of its inaccessible location and the heavy undergrowth and vines surrounding the tree’s base.

The Court of Appeals was not very happy with Plaintiffs. It noted they had fired their expert and first lawyer when they received an opinion that did not match their belief that they should make some money in this case. They “shopped” the case through a number of law firms before they found an attorney from out of town, who then proceeded to hide the first expert’s report from the defense until it was accidentally revealed. The plaintiffs did not respond to discovery requests, filed an expert’s opinion without authenticating photos, and sued everyone – Grace, the County, county employees, and even automobile insurers – in a “shotgun” approach that forced a number of blameless defendants to spend money defending themselves. Plaintiffs filed the day before the statute of limitations expired, and used every procedural trick in the book to delay the day of reckoning.

“Throughout the lengthy course of this action,” the Court complained, “plaintiffs have avoided stating a legal basis for their claims or the supporting facts until faced with an imminent ruling against them. While plaintiffs as laypersons may not have been informed of the controlling law or the substantial delay that occurred as a result of their counsel’s conduct, it is clear that counsel was well aware from the inception of this litigation that these claims have no merit.” The Court thus socked the plaintiffs’ lawyer with a $1,000 fine.

– Tom Root

TNLBGray

Case of the Day – Wednesday, May 30, 2018

CATCH A FALLIING TREE

Regular readers of our news feature (which follows the Case of the Day every day), knows that trees fall on people all the time. Adults get hurt, children get hurt, sometimes they get killed.

Each one is a tragedy, but the tragedies often go unnoticed. The news media, however, cannot fail to observe what happened when one or two of their own are involved. A television anchor and a photojournalist for a broadcast news station in South Carolina died Monday after a tree fell and crushed their sport utility vehicle while they were out covering the severe weather generated by Subtropical Storm Alberto. The anchor, Mike McCormick, and the photojournalist, Aaron Smeltzer, worked for WYFF News in Greenville, S.C., and were about 30 miles north of there in North Carolina when the tree struck their SUV as they drove along Highway 176.

The story was big, even being reported on network news and in The New York Times. We were a little miffed – when a 17-year old girl on a hike dies when a tree falls on her, the Times doesn’t pick up the story. When a 5-year boy died playing on a hammock when the tree it was anchored to fall on him, NPR didn’t breathlessly lead with it in the next day’s “All Things Considered.” Even when something as bizarre as a tree falling on a wedding party occurs, killing the mother of the bride, you don’t hear David Muir mention it on the ABC evening news. But lose a TV anchor, and World War II doesn’t get as much ink or air time.

We don’t depreciate the loss of the two TV news people, but we do wish when ordinary folks are struck down by falling trees, the 4th Estate was as diligent in reporting it.

But here’s how the news ties into today’s case. What about that tree that crushed the reporters’ SUV? No doubt it was in the highway right-of-way (which is generally much wider than the paved road and shoulder). On the side street we live on, the R-O-W extends 30 feet from the centerline of the road, which brings to the edge of our tomato patch. As with an easement, we cannot do anything inside the right-of-way inconsistent with the city’s rights, but are we at all responsible for the trees standing there.

That was the question that woman who ran into a downed tree asked the Oregon Supreme Court. Back in the day, the landowner had no duty to people on the highway. But then along came the gasoline-powered car, and then another one, and another one, and pretty soon, society had changed. Had the duty owed the motorist by the property owner changed as well?

Taylor v. Olsen, 282 Ore. 343; 578 P.2d 779 (S.Ct. Ore, 1978). Bonnie Bell Taylor was driving on a Clackamas County road one dark and windy January evening when she ran into a tree which shortly before had splintered and fallen across the road. She sued Clackamas County, the owner of the right-of-way on which the tree was located, and Marion Olsen, the adjoining landowner who in possession of the right-of-way. The County was dismissed early on, but the case Bonnie had against Marion went to trial.

Bonnie argued Marion should have recognized the danger that the tree might fall onto the road. Marion maintained he had no duty of reasonable care with respect to Bonnie Bell where the fallen tree was concerned. The trial court directed a verdict for Mr. Olsen. Bonnie appealed.

Held: Marion had not violated any duty to Bonnie Bell.

Generally, the Oregon Supreme Court said, a possessor’s duty of reasonable care toward the traveling public will arise from actual knowledge of the dangerous condition of the tree. The more difficult question is whether the possessor will be held liable if he or she should have known of the danger, and specifically, under what conditions he or she has a duty to inspect his trees to discover a latent danger.

In assessing conditions under which the laws of other states have denied such a duty, the Oregon justices observed, those courts have based their conclusion on the impracticality or economic cost of obligatory inspection in relation to the probability of harm from falling trees or limbs. Half a century ago, the Supreme Court of Minnesota rejected such an affirmative duty in these terms:

Many of our public highways pass through timbered country, and upon the prairies owners have been encouraged to plant trees. It will add a very heavy burden on the servient fee owner if he must exercise the supervision and care for the dominant easement in this respect. If such a duty is laid upon him he becomes liable, in case of a failure, to respond in damages that may sweep away the value of his whole farm by some unfortunate accident like the present. Severe wind storms are not rare in this state, and a jury influenced by sympathy for the injured party are [sic] so prone to find the accident the result of negligence upon the slightest pretext.

In the 1930s, the view began to shift due to increasing automotive traffic and urbanization, with courts beginning to find liability when the latent decay of the falling tree was known or by the exercise of ordinary care could have been known by the landowner, where the tree stood in urban or suburban areas. However, nothing was said about trees along a rural road, and as late as the 1965 Restatement of Torts 2d, the duty to “exercise reasonable care” was assigned to the possessor in an “urban area” but rendered “no opinion” to “rural” areas.

The Court held that the question of a landowner’s or possessor’s attention to the condition of his roadside trees under a general standard of “reasonable care to prevent an unreasonable risk of harm” should be decided as a question of fact upon the circumstances of the individual case. The extent of his or her responsibility either to inspect the trees or only to act on actual knowledge of potential danger cannot be defined simply by categorizing land as “urban” or “rural.” “Surely,” the Court said, “it is not a matter of zoning or of city boundaries but of actual conditions. No doubt a factfinder will expect more attentiveness of the owner of an ornamental tree on a busy than of the United States Forest Service… but the great variety of intermediate patterns of land use, road use, traffic density, and preservation of natural stands of trees in urban and suburban settings prevents a simple ‘urban-rural’ classification.”

Even in a rural setting, the Court observed, it can make a difference whether the defendant or others for whom he is responsible are engaged in activities that involve the trees at the location in question or that alter the natural conditions at this location. When the owners of large tracts of rural land simply hold the land as landowners without engaging in such activities, the “practical difficulty of continuously examining each tree in the untold number of acres of forests” or in “sprawling tracts of woodland adjacent to or through which a road has been built can be so potentially onerous as to make property ownership an untenable burden. This would be particularly true for an absentee landowner.”

In this case, the road in question was a two-lane blacktop highway serving a number of communities in Clackamas County used by an average of 790 vehicles a day. A fallen tree thus might encounter a vehicle within an average of about two minutes, depending on the time of day. Marion purchased the land adjoining the road in 1973 for logging purposes, and during the five or six weeks before the accident he had logged about half the timber on his land. This included the trees next to the tree that eventually fell onto the road. Under these circumstances, the Court said, it would for the jury to decide whether Marion had taken reasonable care to inform himself of the condition of this tree, provided the plaintiff first provided evidence that an inspection would have disclosed its hazardous condition. Here, the evidence showed the tree broke and fell onto the road, and that the center of the tree at the point of the break was decayed. However, the decay did not extend through the bark. Only by chopping or boring into the trunk of the tree, the Court said, would there have been a substantial chance of discovering the decay.

Marion did not observe signs of rot, although he did not drill or chop into the tree. He did notice that the tree swayed in the wind. There was no evidence to suggest that chopping or drilling into the trunk would have been a normal or expected way to examine a standing tree in the absence of external indications that it might not be structurally sound.

The imposition of a duty to chop into a tree seeking hidden rot, the Court said, in the setting of this case requires more than the general observation that the tree sways in the wind. It requires some evidence either that the defendant should have been on notice of possible decay in this tree, or that cutting through the bark to the trunk is a common and ordinary method of examining trees generally. In the absence of such evidence, it was not error to direct a verdict for Marion.

– Thomas L. Root

TNLBGray

Case of the Day – Tuesday, May 29, 2018

SIC WHAT?

This is a logo for some financial planner, but it would work well for an arborist.  Just so it’s not “Sic utere tuo ut alienum non lædas.”

Today, we consider the final issues raised by our Iowa reader, who wrote complaining that her neighbor planned to bulldoze a driveway along a steep grade right next to his land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away his land.

We identified four questions in our reader’s inquiry. We have addressed the questions about her neighbor’s damage to trees that might be exactly on the boundary line, as well as those located on her land but with roots crossing the boundary line. Today we address the final question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well. Could our reader get an injunction to stop the harm before it starts? It’s a cliffhanger.

No fear, lovers of legal drama, because Iowa (as well as most states) has accepted in one form or another the doctrine of sic utere tuo ut alienum non lædas, meaning “so use your own property as not to injure that of your neighbor.” The doctrine has been held to have limits that fall well short of your basic trespass to real estate — in today’s case, a landowner tried unsuccessfully to stop the property owner above him from sending additional drainage down a creek, eroding his banks. But the Court acknowledged that sic utere tuo ut alienum non lædas did exist, and was illustrated in the generally-accepted right of lateral support.

Bad things can happen when lateral support is lost.

Bad things can happen when lateral support is lost.

And that right may be what rides to the rescue of our Iowa reader. The right to lateral and subjacent support means that a property owner has the obligation not to remove soil or change grades in such a way as to take away lateral support to the soils of her neighbor. The Court said it isn’t a silver bullet — it applies only to activities along the property boundaries – but that may be enough for our reader.

Bulldozing an already steep grade, and removing root systems — which in all likelihood play a substantial role in stabilizing the slope — may well violate the other landowner’s duty to provide lateral and subjacent support.

So what to do? As we saw several days ago, the Iowa courts have taken a rational view of how much harm is irreparable — and showing irreparable harm is essential to winning an injunction — making get a court order stopping the bulldozing before it starts is entirely possible. Our reader’s local attorney probably will want to engage an expert who can examine the situation and provide a detailed, technical affidavit predicting the extent and permanence of the harm which could result from bulldozing the already significant slope.

Our reader mentioned that she was also checking the various administrative agencies to be sure that the permit process was being followed. Often, a lot of potential harm can be headed off by arguing the case before agencies that — with stricter and more detailed requirements — can hobble ill-conceived projects before they take flight.

A word of caution: we’re throwing out ideas left and right, but we’re not anyone’s lawyers here. There is no substitute for local boots on the ground, an attorney from the area versed in land use law. We trust that our reader, perhaps armed with some good ideas, will refer the matter to her local lawyer.

Pohlman v Chicago, Milwaukee & St. Paul Railroad Co., 131 Iowa 89, 107 N.W. 1025, 6 L.R.A.N.S. 146 (Sup.Ct. Iowa 1906). The railroad had a track grade and bridge located near and above Pohlman’s property. Water traditionally drained off the Pohlman place through Poole Hollow, which went through a corner of the property. But the railroad decided to improve the flow of water around its grade by running a ditch of its own into Poole Hollow. The result was that more water flowed through the Hollow during rainstorms, and the flow was at a much more rapid rate. The fast-moving flow eroded Pohlman’s land, and he sued. In his action, he argued that the railroad company had damaged his real estate and violated the old doctrine of sic utere tuo ut alienum non lædas – which translates as “so use your own property as not to injure that of your neighbor.” The trial court granted a demurrer to the railroad, throwing the case for not stating a claim on which relief can be granted.

Pohlman appealed.

Held:  The case was properly dismissed. Superficially, the Court acknowledged, the decision was clear. Lower property was obligated accept the flow of water discharged by the higher property, meaning that the increased flow through Poole Hollow was not a condition for which a court would grant relief. But, the Court halfway complained, “if this were all, it would seem that the case must be at an end. But counsel for appellant go farther and invoke the maxim sic utere tuo ut alienum non lædas — “so use your own property as not to injure that of your neighbor,” and insist that the case, in view of the peculiar circumstances, is brought within the operation thereof.”

The principle is that no property has greater right than the other, and that each owner is obligated to use his or her property in such a way as not to injure the property of his or her neighbor. The Court acknowledge that there existed a right of lateral and subjacent support, and the theory being advanced by Pohlman was that “to all intents and purposes the situation presents a case of the removal by an adjoining proprietor of the lateral support to the soil of his neighbor.”

bulldoze151113The Court acknowledged that the right was a natural one, and was predicated upon necessity. “As the term itself implies, it has relation to the support which in a state of nature the soil of one owner receives at the boundary line from the soil of his neighbor.” But, warned the Court, the doctrine could not be extended to embrace cases of trespass generally. “It goes no further than to inveigh against an interference within the zone of the natural support afforded by the soil conditions at the boundary line.” This case had nothing to do with boundary line support. Instead, the essence of the complaint was that by the accelerated flow of the surface water more soil had been carried away from the general surface of Pohlman’s land than otherwise would have occurred.

The point of the case is that a right of lateral and subjacent support exists, and — as of 1906 — that was about as far as sic utere tuo ut alienum non lædas extended.

TNLBGray

Case of the Day – Friday, May 25, 2018

GETTING BULLDOZED

bulldoze161229Yesterday, we tackled the first of several inter-related questions raised by an Iowa reader. She wrote that a neighbor planned to bulldoze a driveway along a steep grade right next to her land. She feared that the bulldozing would destroy root systems of hertrees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away her land.

We identified four questions in our reader’s inquiry. We tacked the first question yesterday, about trees that might be exactly on the boundary line, and we concluded that Iowa law would not let her neighbor take steps that would destroy them (such as wiping out the root systems) without our reader’s OK.

But that answer begs the question of what will happen to trees which are growing entirely on our questioner’s land but extend their branches or root systems onto the neighbor’s place. (The third question — what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well — and the final question about whether our reader could get an injunction to stop the harm before it starts, will be addressed tomorrow.)

The short answer to today’s question is found in the century-old case of Harndon v. Stultz. That decision adopted what years later would be called the “Massachusetts Rule,” specifically that a landowner has no right to judicial help in stopping an encroaching tree from his or her neighbors, but he or she may trim its branches and roots back to the property line. Under the rule of Harndon, it would appear that the neighbor could bulldoze out the root systems which have grown onto his land without liability.

But we’re not entirely satisfied that this would be the answer. Remember first that the plaintiff in Harndon complained that the trees in question were damaging her land, the roots tying up the ground and the trees shading what otherwise would be cropland. The court didn’t have a lot of sympathy for her, but it did recognize that she was suffering because the tree was just doing what trees are doing.

The United States been moving inexorably toward the Hawaii Rule, which provides a landowner judicial relief where the trees are nuisances, and not merely being trees. Witness the Virginia decision of Fancher v. Fagella, in which the tree was causing substantial damage to the plaintiff’s home. The obverse of this coin is illustrated in the question posed here: what happens when the neighbor is suffering absolute no damage whatsoever from the trees in question? As our reader explained it, the neighbor merely wants to bulldoze a road on a steep slope along a very narrow piece of property. During the bulldozing, it’s likely that root systems will be severed and trees badly damaged or killed.

Our suggestion that there may be more to it than a century-old case suggests isn’t that far off. A California decision, Booksa v. Patel, already has held that a neighbor must act reasonably in exercising his or her self-help rights, and “reasonable” is expressed in terms of taking steps which are no greater than those needed to ameliorate the harm. And Professors Prosser and Keeton, in their seminal work The Law of Torts (5th ed. 1984) §57, say that a landowner has a privilege to make use of the land for his own benefit, and according to his own desires, which is an integral part of our whole system of private property; but it has been said many times that this privilege is qualified by a due regard for the interests of others who may be affected by it. The possessor’s right is therefore bounded by principles of reasonableness, so as to cause no unreasonable risks of harm to others in the vicinity.”

Remember, no one said our neighbor's roots are invasive.

Remember, no one said our neighbor’s roots are invasive.

In the case our reader has raised, it may well be that the time is ripe not to reverse Harndon v. Stultz, but rather to add to the body of law it represents by finding that a neighbor’s right of self-help is circumscribed by reasonableness. Under that standard, where a neighbor kills a tree by removing a root system, where the tree admittedly has caused no sensible harm to him, might be unreasonable.

It’s certainly something our reader’s Iowa attorney might want to consider.

Next Monday, we’re off for Memorial Day, but on Tuesday: What if the bulldozing causes landslides on our reader’s property?

Harndon v. Stultz, 124 Iowa 440, 100 N.W. 329 (S.Ct. Iowa, 1904). Harndon and her husband owned and farmed an 80-acre tract of land. Stultz had 160 acres just to the south of the Harndon farm. Many years before, the Harndons planted a willow hedge along the entire south line of the farm, and later, Stultz extended the hedge eastward. The Harndons claimed that Stultz had agreed with them to maintain the west half of the hedgeline and the Harnsons would maintain the east half. Some years later, the Harndons dug up the east half of the hedge, replacing it with a fence. Mrs. Harndon then demanded that Stultz do the same. Stultz refused, and she sued for an order finding the hedge to be a nuisance and requiring Stultz to cut it down. She argued that the willow had spread through the soil, and so much shade was cast by willows that it rendered a portion of the Harndons’ land unusable. As alternative, the Harndons asked that, if Stultz had no duty to remove the hedge, they be allowed to do so at their expense. The trial court dismissed the petition, and the Harndons appealed.

Tomorrow - Could our reader's neighbor cause a landslide?

Tuesday – Could our reader’s neighbor cause a landslide?

Held: The Court adopted what was essentially the Massachusetts rule years ahead of its time. Nothing in the law, the Court said, made it a defendant’s duty to cut down a hedge or tree simply because over a passage of time, the owner’s neighbor found the roots and the shade of the growing trees injured the productiveness of his land. The raising of trees, the Court held, is a legitimate use to which an owner may put his land. If the limbs of such trees overhang the land of a neighbor, he may cut them off at the line, and, if the roots penetrate the neighbor’s soil, he may dig them out, but that is the extent to which he may carry his objection.

The Court said that an adjoining property owner may cut off the overhanging branches of trees at the property line, and dig out the roots penetrating the soil on his land. However, that property owner is not entitled to compel the owner of the tree to cut it down, regardless of whether the care and maintenance was provided by the owner or by the adjoining property owner. On the other hand, the Court said, trees standing on the boundary line between lands of adjoining owners are the common property of both parties, which neither may destroy without the consent of the other. The Court upheld the trial court, but modified the decree to let the Harndons remove the hedge at their cost, based on Stultz’s statement at argument that she didn’t object to its removal.

– Tom Root

TNLBGray

Case of the Day – Thursday, May 24, 2018

ALL EYES ARE ON IOWA

A loyal reader from the home of the greatest state fair in the land — and we need more of those, not just from Des Moines — wrote to ask some incisive questions about a rather boorish neighbor. Her questions had to do with the neighbor’s plans to bulldoze a driveway along a steep grade right next to our interrogator’s land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away his land.

We found four questions, not just one, in our reader’s letter. The first question: what about trees right on the boundary line? The second question: what about trees on our reader’s land, but with roots extending into the neighbor’s land? The third question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well? And last, if our reader has rights here, can she get an injunction to stop the harm before it starts, or is her only option to collect money damages later?

All good questions. Today we’ll answer the question about those boundary trees. Boundary trees are trees growing on the legal boundary between properties. In Iowa, the case governing boundary trees is Musch v. Burkhart. Musch valued the cottonwood trees growing along the boundary of his land and the adjacent property belonging to Burkhart; his neighbor, however, thought the cottonwoods were a pain in the neck. Musch had cut some of them down — after all, there was about 500 yards of the tree line — leading Burkhart to conclude that he, too, could cut some down, in fact, cut down as many as he wanted.

The court’s analysis was interesting, in that whatever agreement the prior owners of the two parcels — who had apparently agreed to some arrangement on ownership, care and use of the tree line — may have made had been lost to history. The court said that absent some evidence to the contrary, it would assume that trees growing on a boundary line were owned by the two owners as tenants in common because they grew on both properties and “drew sustenance” from both properties. It almost suggests that trees which are provably drawing sustenance from root systems spread pretty much equally from two properties must be owned by both owners as tenants in common.

The importance is that ownership of the tree by both property owners as tenants in common establishes what essentially is a 50-50 partnership with each partner given a veto. As tenants in common, both must agree before anything happens to the tree.

The other holding of significance in this case is that the court found that damage to trees is, for all legal purposes, irreparable harm. Nothing is irreparable in a geologic time sense. Trees that are destroyed can be replaced, and the seedlings becoming just as majestic in 50 or 100 years. The Musch decision takes a much shorter view, however, suggesting that if it will require a half century to heal, it’s irreparable harm.

That’s significant, because a showing of irreparable harm is necessary to obtain injunctions to stop tree cutting. Musch, like the rest of us, would rather keep the tree than get a few bucks later, after a century tree is gone. Maybe not gone forever, but to us humans, gone for a century might as well be.

So our reader has a couple answers here. If the trees are boundary trees, an Iowa plaintiff has the right to get an injunction to save them.

Tomorrow: what if the trees aren’t on the boundary?

A lot of drama going on in Iowa, it seems… Stay tuned.

Musch v. Burkhart, 12 L.R.A. 484, 83 Iowa 301, 48 N.W. 1025, 32 Am.St.Rep. 305 (S.Ct. Iowa, 1891). Musch lived next to Burkhart in rural Black Hawk county. His house, barn, and other buildings are on the northwest corner of his property. Burkhart’s south boundary line is the north boundary line of Musch’s place.

About 20 years before, Jeffers — who owned the land before Musch — planted a line of cottonwood trees for about 500 yards along the north boundary of his land. The trees had grown to a height of from 30 to 60 feet, and their trunks had diameters of from 1 to 2 feet. The average space between them is about three feet. Musch attached barbed wires to the north side of the trees, making a wire fence. Musch used the fence to contain his cattle and relied on the trees as protection from storm and winter winds to his buildings and stock.

Burkhart threatened to cut the trees down. He claimed he and Musch had an agreement to maintain a common fence, but that the trees had thrown out roots extending for many feet into his land; that by reason of such roots, and the shade of the trees, a strip of his land 50-65 feet wide, immediately north of the trees, was unproductive. Burkhart argued the trees were of no value to Musch and that he had a right to remove them. What’s more, Burkhart argued that Musch had cut down some of the trees originally planted there, and he should have a right to do the same.

The trial court found that the trees had value to Musch, but that their roots had damaged Burkhart. Clearly, they stood on the common boundary line. The trees were planted before Burkhart bought his land. The trial court wasn’t able to discern the nature of the agreement between the prior owners of the two tracts of land, but it nevertheless found for Musch, and enjoined Burkhart from cutting down the trees.

Burkhart appealed.

boundary151111Held: Musch was entitled to have the trees protected. The Court found that because the trees stood on and drew sustenance from both tracts of land, in the absence of a showing to the contrary, they were considered to be owned by the parties as tenants in common.

When one tenant in common destroys the subject of the tenancy, he is liable to the co-tenant for the damages he thereby sustains. A court, by injunction, may restrain one tenant in common from doing a serious injury to the common estate. While an injunction will not be allowed to restrain a trespass where damages are an adequate remedy, where the injury will be irreparable, an injunction is appropriate.

The Iowa Supreme Court held that the destruction of trees and shrubbery growing upon premises occupied by Musch would be, “in a legal sense,” an irreparable injury to him. The trees served to shelter and protect Musch’s buildings, and thus Burkhart could be enjoined from cutting them down despite the fact that their presence caused damage to his land.

– Tom Root

TNLBGray

Case of the Day – Wednesday, May 23, 2018

SHORT AND SWEET

There have been more than a few recurring themes in our posts over the past decade plus. Some of the most-repeated are (1) hire a lawyer when you should have one, such as anytime you feel the need to sue someone; (2) courts follow prior decisions – called stare decisis – so as to bring certainty to the law; and (3) the Massachusetts Rule has traditionally been the law of the land, and while that has been changing, it is still the “go to” rule in most places.

Alas, Virginia Scott is not one of our regular readers. Had she been back in 2010, she would have consulted a lawyer about the mess that trees belonging to her neighbor, Julie, were making in her yard. She would have told the lawyer that she wanted damages for the dropped leaves and twigs, and she wanted to be compensated for what she paid tree trimmers to cut the offending branches and roots back to her property line.

The lawyer would have said, “Nothing doing,” or words to that effect, which would have saved Virginia the cost and aggravation of trying a do-it-yourself lawsuit against Julie. As well as having her hat handed to her by the trial court and the court of appeals.

“But,” Virginia wailed, “the law is stupid. It should be changed.” Notably, that argument has worked some places – Virginia, Hawaii, North Dakota – but Virginia had no idea how to press for modification of the rule, and the Court was unimpressed.

At least the Court of Appeals kept is short and sweet. As we will be…

Scott v. McCarty, 41 So.3d 989 (Fla.App. 4 Dist. 2010). Virginia Scott owned property next to Julie McCarty’s place. Dr. Julie had some pretty lush trees – this being Florida, plants like to grow there – and eventually some of the branches were overhanging Virginia’s place, and the roots were intruding underground.

Virginia sued the Doc for the damages Julie’s trees caused her property, as well as for what it cost her to trim the branches back to the property line and dig up the intruding roots. Having apparently spent so much on damage repair and tree trimming, Virginia decided to save money on a lawyer. She represented herself.

The trial court dismissed her complaint forthwith, citing the Florida common law rule that “a possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner’s own expense, any encroaching tree roots or branches and other vegetation which has grown onto his property.”

This rule not seeming right to Virginia, she appealed.

Held: Virginia’s case was properly dismissed. The Court of Appeals said that the reason for Florida’s common law rule “was that it was wiser to leave the individual to protect himself than to subject the other to the annoyance of actions at law which would likely be innumerable.”

On appeal, Virginia acknowledged that the common-law rule, first adopted in the 1987 Florida appellate case Gallo v. Heller, was the prevailing law, but she asked the Court to “take a different course.” The Court refused to do so, saying that “the Gallo view is the predominant view in the country… [and] departing from the precedent would invite further litigation between neighbors on this issue, which as a public policy matter should be avoided.”

– Thomas L. Root

TNLBGray140407

Case of the Day – Tuesday, May 22, 2018

MOVING THE CHEESE

There’s a great old adage in the law that goes something like “When your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on the law and the facts, pound on the table.” Today’s case is one in which an inventive lawyer tried just that, albeit without much result.

We’ve worked a lot with the old Restatement rule, now on its way out, that a landowner is not liable for physical harm caused to others outside of the land by a natural condition of the land. That rule, when it was a rule, came with a proviso. If the person possessing the land was in an urban area, he or she was liable for physical harm resulting from failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

In today’s case, a tree in the lush tropical paradise fell onto a road and crushed a ’77 Mercedes – a pretty nice ride – leaving the plaintiff’s lawyer with a problem. The evidence showed the collapsed tree was rotten, all right, but that none of the decay was visible from the exterior. So arguing that the tree’s owner should have inspected the tree was a loser, because even if he had done so, the owner would not have seen the decay and recognized the danger.

The plaintiff’s lawyer recognized that to win this one, he’d have to move the cheese on the defendant. So he quickly rolled out a second argument: Even if the common law (and more specifically here, the Restatement on Torts) did not imposes liability without fault (that is strict liability), the court should impose it here simply as a matter of public policy. “Public policy” is a fancy way of saying something should or should not be done because, well, because it is just common sense. So, the argument went, it did not matter if tree owner Al followed the rules as they existed now, because the rules needed to be changed retroactively, all the way back to the day the tree fell.

It’s sound public policy, the plaintiff’s lawyer argued, that is, good common sense.

“Common sense?” the Court asked incredulously. If urban owners are strictly liable for any tree that falls, it responded, then their reaction to the rule will simply be to cut down all of their trees. And where would be then? Sorry about the Mercedes, the Court said, but we’d be even sorrier about the trees.

Marrero v. Gerard, Civil No. 249/1989 (Terr.Ct. V.I., Dec. 12, 1989) 24 V.I. 275. Vic Marrero was driving his Mercedes along the East End Road in Estate St. Peters, Virgin Islands. Suddenly a tree stood on property owned by Al Gerard fell on Vic’s car. Vic claimed the car was damaged (not hard to believe) as was his psyche (harder to believe).

Norm Nielsen, who was Al’s neighbor and worked with Vic, was first on the scene. The base of the tree was inside Al’s fence, but the rest was on the road. Norm said the tree was “dry” where it broke off, “kind of rotten but green on top.” The evidence, which included photos taken by the traumatized Vic failed to establish that a visual inspection of the tree would have disclosed that it was rotten at its base and in danger of toppling.

Held: The Court held that the facts did not show Al as negligent, because he appeared to have no reason to know that the tree was unstable and would fall.

Vic, however, argued that even if Al was not negligent, he should be held strictly liable for any damage the caused. Vic cited the Restatement of Torts (Second), which provided at section 363 that:

(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

Vic relied on subsection 2, arguing that Al – owning trees in an urban setting – had a duty to Vic to inspect the trees. The Court ruled that whether the property on which the tree was located was urban or rural might be debatable, but ultimately was irrelevant. Even if the urban standard applied, the Court said, and even if Al had adhered to the standard, “the weakened condition of the tree was not apparent upon a visual inspection, so that it matters [not whether the area was urban or rural. Perhaps a core sampling of the tree would have disclosed the problem, but such an effort, particularly when weighed against the likely risk, is far too onerous a burden to place upon a landowner.”

The Court held that the Restatement did not impose strict liability, that is, liability without fault, in circumstances like these. All Sec. 362(2) does it to apply a more specific standard of care to an urban landowner, but still within a negligence realm.

Unfazed, Vic argued that the Court should apply its own strict liability standard to this case, as a matter of public policy. The Court demurred, saying that in its view sound public policy was reflected the Restatement’s standard. The Court said that a landowner should have the duty to inspect for, discover and remedy patently hazardous natural conditions on his or her property which may cause harm to others outside the land. But where the decay is internal, and therefore not discoverable upon reasonable inspection, to “impose a rule of strict liability would be to declare, in effect, that any tree which is large enough to fall over the boundary of one’s land will subject its owner to liability in the event that a hidden weakness causes it to topple and cause damages off the land.” That would just lead prudent landowners to cut down their trees, the Court concluded, “thereby accelerating the already lamentable deforestation of the territory.”

The Court agreed that the community should be protected from reasonably foreseeable dangers, but the community – both local and worldwide – “also has a compelling interest in the protection and preservation of the environment. The same concern and sensitivity which we are just beginning to bring to the massive problem of the destruction of the Amazon rain forest, for example, should also apply to the relatively minute and particular circumstances of this case. No reasonable gain would be derived from adopting a rule of strict liability here, particularly when weighed against the potential ecological and aesthetic implications of such a decision.”

– Tom Root

TNLBGray140407