Case of the Day – Friday, September 28, 2018

SNAP, CRACKLE AND POP

An arborist defendant's nightmare - the troop of Brownies your client's tree toppled onto.

An arborist defendant’s nightmare – the troop of Brownies your client’s tree toppled onto.

Arboriculture professionals pride themselves at being expert at what they do, which is – generally put – to manage trees. Management may include trimming, preservation, or in many cases, removal of trees. Often, how the tree is to be treated depends on the arborist’s expert opinion of the condition of the tree, and the threat (if any) that the tree poses to persons or property.

A lot can depend on the arborist’s opinion. If an examination of a tree misses a defect or disease, and the tree ends up falling on a troop of Brownies who happen by on the public sidewalk at just the wrong time, the unlucky arborist will end up with a lot of ‘splainin to do.

The U.S. Court of Appeals for the Seventh Circuit handed down a decision in fall 2014 that involved not a single tree. Nevertheless, the decision should serve as a caution to arborists, landscapers and tree trimmers – not to mention those who hire them.

It seems that small-time grain handler ConAgra Foods, Inc. (January 15th market cap – $16.9 billion) had a problem with a wheat pellet storage bin. Grain can be tricky stuff, generating a lot of dust as well as carbon monoxide. Both of these like to explode with little provocation. The technical people call it “deflagration,” more of a low-level snap and crackle than a high-level detonation “pop” – but to the man or woman on the street, it’s an fairly destructive bang.

ConAgra knew just what to do when one of its grain bins in Chester, Illinois, started heating up spontaneously. It called in an expert in “hot bins,” a sort of a Red Adair of wheat silos. The company, West Side Salvage, went to work on the unstable grain bin, but only after a delay occasioned by contracting procedures and West Side’s other business commitments.

The delay proved the project’s undoing. West Side tried to salvage some of the wheat pellets in the bin, but removal of the grain let more oxygen into the bin, and the instability increased. West Side’s supervisor called firefighters to stand by, but while he awaited their arrival, he sent several workers for one of West Side’s subcontractors into the bin through a tunnel to retrieve tools. While they were doing so, the grain dust exploded, seriously injuring them.

Everyone knows that an owner is not responsible for the negligence of an independent contractor. Everyone also knows that the owner may be liable if it does not provide the independent contractor with a safe place to work. The district court agreed that ConAgra had done just that, and that West Side was negligent in sending the employees into the dangerously unstable grain bin. It smacked ConAgra and West Side jointly with $18 million in damages for negligence.

ConAgra appealed, arguing that it was not liable for any damages to the subcontractor employees, because West Side knew what it was getting into. Besides, its contract with West Side provided that west Side would indemnify ConAgra from any West Side negligence. West Side, anxious to have a company with ConAgra’s deep pockets around to share the $18 million, retorted that ConAgra failed to reveal material information to it about the unstable grain bin. Furthermore, West Side’s indemnification of ConAgra may have been written into the contract, but West Side had never signed the document.

Your customer hired you because you're an expert at what you do. You have to act like one.

Your customer hired you because you’re an expert at what you do. You have to act like one. If something goes wrong, you’ll surely be judged like one.

The Seventh Circuit was baffled. The injured workers complained that ConAgra had provided them with a dangerous workplace? Of course it did, the Court said. The whole point of hiring a “hot bin” expert was that the bin was dangerous. The Court held that where an owner hires an independent contractor to remedy a dangerous situation, the owner would not be held liable if the feared disaster came to pass. Such a policy would only discourage people with serious or dangerous problems to hire experts to get them fixed.

The Court has just as little patience with West Side’s complaint that ConAgra had failed to disclose information to it about the grain bin’s condition. West Side didn’t exactly say that ConAgra had provided false information. In fact, it admitted that ConAgra adequately answered all of the questions it had put to its client. The problem, West Side argued, was that ConAgra had other information about the dangerous grain bin – specifically, temperature readings from earlier in the month – that it failed to volunteer.

The 7th Circuit expressed incredulity at the claim. West Side was a self-professed expert in “hot bins.” ConAgra was not. An owner like ConAgra was entitled to assume that when an expert like West Side is hired, the expert will ask for all the information it deems important. In this case, ConAgra did not end up sharing liability with West Side simply because it didn’t answer questions that were never asked.

The Court seemed almost perplexed by West Side’s argument that it had never gotten around signing the contract with ConAgra, so it wasn’t bound by the provision that it indemnify ConAgra from damages resulting from its negligence. That hardly mattered, the Court said. West Side began the work, whether it signed the contract or not. That was enough to signify that it had accepted the contract terms.

So what’s the takeaway for arboriculture professionals? First, be sure the contract is completely negotiated and signed the way you want it. If you leave it for later but begin work now, a court may conclude you had accepted terms you thought were still being negotiated. Second, you’re an expert at what you do. Be certain to gather all of the information you need for the job. When the tree falls on that Brownie troop, you can’t hide behind the owner’s failure to give you information about the condition of the tree that you never asked for.

Jentz v. ConAgra Foods, Inc., 767 F.3d 688 (7th Cir. 2014). A grain bin in Chester, Illinois, exploded in April 2010, injuring three workers. The month before, ConAgra Foods – the owner of the bin, which was part of a flour mill – discovered a burning smell coming from the storage vessel, which contained wheat pellets. ConAgra hired West Side, which claimed expertise in handling “hot bins.” When work began, West Side hired A&J Bin Cleaning to do some of the tasks. Two of the injured workers, John Jentz and Robert Schmidt, were employees of A&J. The third, Justin Becker, was employed by West Side itself.

ConAgra wanted to salvage as much of the grain as possible, but as pellets were removed from the top more oxygen reached wheat composting at the bin’s bottom. West Side decided to remove some grain via side tunnels. On April 27 West Side detected smoke coming from the bin. Its crew sprayed water on the pellets and used an air lance to try to discover the smoke’s source; the effort failed. Mel Flitsch, West Side’s foreman, told ConAgra to call the fire department. Waiting for firefighters to arrive, Flitsch sent Jentz and Becker into a tunnel, instructing them to remove tools that might impair firefighters’ access. While they were there, the explosion occurred. They were severely injured but survived. Schmidt, who was in an elevator nearby, also was injured, but less seriously.

A Federal district court jury awarded $180 million in damages against ConAgra Foods and West Side Salvage. ConAgra contended that liability rested on West Side, which it had hired to address problems in the bin. For its part, West Side did not contest liability to the workers but contended that it does not have to reimburse ConAgra for the cost of repairing the facility. The injured workers contend that both ConAgra and West Side must pay the full verdict.

The dust may just deflagrate and not really detonate - but it's mighty impressive nonetheless.

The dust may just deflagrate and not really detonate – but the distinction probably makes no difference if you’re the one caught in the fireball..

Held: The Court of Appeals held that ConAgra was not liable. Normally, the appellate panel said, employees of an independent contractor cannot obtain damages from the owner of the premises at which the contractor was working. The injured workers contended that ConAgra nevertheless was liable for failing to provide West Side with a safe place to work. ConAgra responded that of course the grain bin was unsafe — that’s why West Side had been hired to begin with. ConAgra relied on the principle that someone who engages an independent contractor to redress an unsafe condition is not liable when the feared event occurs.

The Court agreed, pointing out that Illinois law held that “in a case involving negligent rendition of a service [by an independent contractor] … a factfinder does not consider any plaintiff’s conduct that created the condition the service was employed to remedy.” Here, ConAgra may have delayed in hiring West Side (it rejected other companies for lack of liability insurance), and it may not have provided all of the information about the bin it had, but that does not matter. The evidence showed that West Side was hired to deal with a hot bin, and all liability therefore is on its account. Having hired a self‑proclaimed expert in hot bins, ConAgra was entitled to assume that West Side would ask for whatever information it needed. The Court said that “[p]eople who hire lawyers rely on them to ask for information material to the situation, and no court would hold a client liable to his lawyer for failing to reveal spontaneously something that the lawyer never asked about; similarly people who hire specialists in controlling the risks of grain storage are entitled to rely on them to know what matters and ask for the material information.”

Finally, ConAgra signed and tendered to West Side a contract containing a promise by West Side to indemnify ConAgra for any damage caused by West Side’s negligence. The jury concluded that West Side is liable under this promise, but West Side argued that it did not return a signed copy of the contract to ConAgra. It agreed to undertake the job, and set to work, but did not sign on the dotted line. The district judge thought this irrelevant, because performance usually is as good as a signature as a way to accept a proposed written contract. The Court of Appeals agreed. Knowing the proposed terms, West Side began the work. That was as good as a signature on the dotted line.

– Tom Root

TNLBGray

Case of the Day – Friday, September 28, 2018

TREE HUGS CAR, THEN COURT HUGS TREE

What does the Amazon rainforest have to do with a ’77 Mercedes Benz?

When Vic’s beautiful 1977 Benz was crushed by Al’s tree (while Vic was driving his convertible down the road), Vic knew for a fact that someone had to pay for the damage, and it wasn’t going to be him. Al should have known that the tree was going to fall down, Vic fumed in his lawsuit. That argument lasted until the neighbor, who had extricated Vic from the recently-downsized roadster, provided pictures showing the tree had decayed from the inside, and a reasonable inspection would not have caught the danger.

Never mind, Vic argued, Al should be responsible for what his trees might do regardless of whether he was negligent or not. The concept, strict liability – sometimes called liability without fault – has some utility. If you keep a couple of pet tigers in the backyard and a great white shark in the fishpond, the courts aren’t going to waste a lot wondering if you were negligent when the jungle cats maul the neighbor boy or the great white eats the president of the garden club when she leans over the water to admire the lilies. You do something that inherently dangerous – keeping wild animals is not just a great example, but is the genesis of the notion of strict liability – was you’re going to be liable for whatever happens.

But for keeping trees? We suspect the judge was an environmentalist on the weekend, because he mused that if landowners were strictly liable for their trees falling onto the highway, then the landowners would start cutting down trees willy-nilly, and the beautiful Virgin Islands would be denuded posthaste. The Court opined that “the community, both local and global, 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.”

So trees would fall like dominos, and the earth would fry like an egg. So take that, Mercedes 450 SL. You may be fine, but the Amazon is finer.

Marrero v. Gerard, 24 V.I. 275 (Territorial Ct. Virgin Islands, 1989). Victor Marrero was driving his 1977 Mercedes Benz along the East End Road in Estate St. Peters when a tree fell on his car. Before its collapse, the tree stood on Plot 5 St. Peters, owned by Alphonso Gerard.

Norman Nielsen, one of Al’s neighbors and a co-worker with Vic, quickly arrived at the scene. The base of the tree was inside Al’s fence, but the remainder was on the road. Norm described the tree as “dry” where it broke off, “kind of rotten but green on top.” The evidence, which includes Vic’s pictures of the tree (though none showing the top of the tree where there was foliage) failed to show that an external visual inspection of the tree before the fall would have disclosed that it was rotten at its base and in danger of toppling.

Held: The court ruled, therefore, that Vic had not showed Al was negligent, because there was no evidence Al had reason to know that the tree was unstable or would fall. But Vic argued he didn’t have to show negligence, because Al should be strictly liable for the tree, that is, liable whether he was negligent or not. Vic based his argument on Restatement of Torts (Second) § 363(2), which holds that “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.” The explanation accompanying § 363 provides that “it requires no more than reasonable care on the part of the possessor of the land to prevent an unreasonable risk of harm to those in the highway, arising from the condition of the trees. In an urban area, where traffic is relatively frequent, land is less heavily wooded, and acreage is small, reasonable care for the protection of travelers on the highway may require the possessor to inspect all trees which may be in such dangerous condition as to endanger travelers. It will at least require him to take reasonable steps to prevent harm when he is in fact aware of the dangerous condition of the tree.”

The Court was unsure whether Al’s land was urban or rural, but it said that was irrelevant. Even if it had been urban, the Court said, 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.”

Under the circumstances of this case, the Restatement simply does not impose strict liability, that is, liability without fault. While Restatement § 363(2) may apply a more specific standard of care to an urban landowner, the Court said, that standard is still “within a negligence realm.” Vic suggested the Court should “fashion a rule of strict liability” and thereby to pronounce a previously unexpressed public policy. The Court declined, holding that “Restatement § 363 is entirely consistent with sound public policy. “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,” the Court said. “But in this instance, the rotted condition of the tree was internal, not external, 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. Such a ruling, if widely disseminated, most likely would encourage prudent landowners to cut down large numbers of trees, thereby accelerating the already lamentable deforestation of the territory.”

No reasonable gain would be derived from adopting a rule of strict liability here, the Court held, particularly when weighed against the potential ecological and aesthetic implications of such a decision. It therefore dismissed Vic’s lawsuit.

– Tom Root

TNLBGray

Case of the Day – Thursday, September 27, 2018

CHUTZPAH, CONNECTICUT STYLE

So you like your wild mountain property, with its clean, sparkling streams and majestic trees? You like to think that it will always look as pristine and undeveloped as it does right now. So when you finally sell it, you place some restrictions on the deed, so that there won’t be any double-wide trailers, pre-fab A-frame chalets or tar paper shanties erected smack in the middle of heaven-on-earth.

Seems reasonable, doesn’t it? But eventually the people you sold the land to sell it to someone else, and the someone else has a really good lawyer. “This is Connecticut!” the solicitor tells his client. “We can beat this restriction!”

And lo and behold, that’s just what he does. It seems in Connecticut, the terms on which you were originally willing to sell your land don’t much matter. In today’s case, the heirs of the original nature-lovin’ owner suffered a lot of angst when they finally sold off most of the lake property. But the buyer won them over, even agreeing to a development restriction on part of the land, in order to preserve its natural character. A few years later, that buyer sold the land to the Williams, who had been convinced by their lawyer that the restriction wasn’t enforceable. The new owners promptly sued for a declaratory judgment that the restriction was void.

The Connecticut court agreed that it was. It fell outside of the three traditional categories of restrictions that ran with the land. Even so, the Court said, it could be enforced under equitable principles. But it wouldn’t do that, the Court said, because it would be so unfair to the buyers of the land. After all, the Court said, it wasn’t clear who the beneficiary of the restriction was or who could enforce it. Therefore, the Court held it would be unfair to the buyers because — and we’re not making this up — they “bought the property because they thought the restriction was unenforceable. If the restriction is found enforceable, the property could only be developed for recreational purposes and would be far less valuable. Devaluing property without a clear beneficiary is not reasonable.”

The decision certainly turns common sense on its head. Where a seller is unwilling to sell unless a restriction is placed on the land, it’s hard to argue that the continuing restriction harms marketability. It’s more marketable than if the seller doesn’t sell at all. And for that matter, should it be the law’s business to promote marketability over a seller’s free will?

It seems safe to imagine that as conservation — and especially forest preservation because of “climate change” concerns — is of increased public policy importance, the notion of “marketability” and the free right to develop may become less of a holy grail. As it probably should.

Williams v. Almquist, 2007 WL 3380299 (Conn. Super., Oct. 30, 2007). Robert Bonynge bought a 150-acre tract of land at Lake Waramaug in 1898, which he later conveyed away in several parcels. Although some of the original tract was sold in the 1930s, and some of the heirs owned certain parcels outright, a 105-acre tract was eventually sold to Lee and Cynthia Vance by the Bonynge heirs in 2001. The negotiations for that sale were a difficult and emotional process, with the primary concern of the heirs to conserve the natural condition of the property. The Vances agreed to give some of the land and a conservation easement to the Weantinoge Heritage Land Trust. Also, they agreed a restriction on 8.9 acres of the property: “There shall be no construction or placing of any residential or commercial buildings upon this property provided that non-residential structures of less than 400 square feet may be constructed for recreational or other non-residential purposes and further provided that the property may be used for passive activities such as the installation of septic and water installations, the construction of tennis courts, swimming pools and the construction of facilities for other recreational uses.”

David and Kelly Williams bought part of the 8.9-acre tract in 2005 from the Vances, still still subject to the restriction agreed upon in February 2002. Shortly thereafter, the Williams entered into an agreement with the Vances in which the Vances waived their right to enforce the restriction. The Williams then sued for declaratory judgment against the Bonynge heirs, asking the court to declare the restriction in their deed void and unenforceable.

Held: The restriction on the Williams’ land is unenforceable. The Court noted that restrictive covenants generally fall into one of three categories: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee presumptively or actually for his benefit and protection of his adjoining land which he retains. Here, the restrictive covenant did not fall under the first category because it originally arose from the sale of the Bonynge heirs’ land to the Vances, not from an exchange of covenants between adjoining landowners. Likewise, the second category did not apply. Rather, that category applies under a general developmental scheme, where the owner of property divides it into building lots to be sold by deeds containing substantially uniform restrictions, any grantee may enforce the restrictions against any other grantee. But in this case, the Court ruled, the evidence suggested that a common plan or scheme did not exist.

conservThe restrictive covenant did not fall under the third category either. Where the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor’s successor in title can enforce, or release, the covenant depends on whether the covenant was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant expressed therein, read in light of the circumstances attending the transaction and the object of the grant. The question of intent is determined pursuant to the broader principle that a right to enforce a restriction of this kind will not be inferred to be personal when it can fairly be construed to be appurtenant to the land, and that it will generally be construed to have been intended for the benefit of the land, since in most cases it could obviously have no other purpose, the benefit to the grantor being usually a benefit to him as owner of the land, and that, if the adjoining land retained by the grantor is benefitted by the restriction, it will be presumed that it was so intended. Here, three of the Bonynge heirs retained property near the 105-acre tract, but did not own property directly adjoining or overlooking the restricted tract. As such, the Court said, there was no presumption that the restriction was meant to benefit their land. The deed didn’t say as much: in fact, the deed didn’t indicate that the restriction was meant to benefit anyone at all. With no mention of beneficiaries in the deed and no testimony regarding the intent of the retaining landowners, the Court held, the restriction could not fall under the third category.

The trial court said it could properly consider equitable principles in rendering its judgment, consistent with Connecticut’s position favoring liberal construction of the declaratory judgment statute in order to effectuate its sound social purpose.

Although courts before have approved restrictive covenants where they benefited a discernable third party, the Court here found that the restriction was not reasonable because it had no clear beneficiary and limited the marketability of the property. The possible beneficiaries were the Bonynge heirs, only those heirs who retained property in the Lake Waramaug area, the other residents in the Lake Waramaug area, the Vances, or simply nature itself. Without a discernable beneficiary, the Court ruled, it was difficult to determine who could enforce the restriction and for how long.

The restriction also unreasonably limited the marketability of the property. Although restrictions are often disfavored by the law and limited in their implication, restrictive covenants arose in equity as a means to protect the value of property. Here, no identifiable property was being protected by the restriction. The plaintiffs bought the property because they thought the restriction was unenforceable. If the restriction is found enforceable, the property could only be developed for recreational purposes and would be far less valuable. Devaluing property without a clear beneficiary, the Court said, was not reasonable.

– Tom Root

TNLBGray

Case of the Day – Wednesday, September 26, 2018

A MARMOT IS A VARMINT

Cute ... but varmints

Cute … but varmints

It seems that the furry little critters called marmots dig holes and generally make pests of themselves. At least, that what Pam Tessman would tell you.

She spent July 4th one year at a Wyoming RV park with her son, where at one point in the day she walked through a field and saw a marmot hole, the very one she later tripped on in the dark.

Of course, the fact she knew the hole was there and that the marmot probably wasn’t in the employ of the park owner, didn’t matter to the limping and litigious Pam — she sued park owner Mary Berry anyway. The alliteratively named Ms. Berry might tell you that Pam was something of a varmint herself. Nevertheless, the jury awarded Pam a cool quarter million dollars at trial (reduced by 25% because the jury figured that she should have remembered the hole in the grassy field from earlier that day).

But the Supreme Court of Wyoming had other ideas. Before there can be liability, the Court said, there has to be a duty. And in Wyoming, a landowner isn’t responsible to protect guests from dangers that were known and obvious. Little furry burrowing animals tend to leave holes that are completely natural, the Court said, as well as open and obvious. There was no reason to hold the RV park owner liable for Pam’s clumsy misfortune, or to sting Mary Berry to line Pam’s pocket.

trip150112Berry v. Tessman, 170 P.3d 1243, 2007 WY 175 (Sup. Ct. Wyo., 2007). Pam Tessman was staying at Mary Berry’s RV park. At check-in, Pam asked Mary Berry where she could take her son fishing. Mary Berry pointed Pam to a river just off the property, and Pam followed the directions. She and her son cut behind a bathhouse across several fields, over a broken-down fence and over a set of railroad tracks, to the fishing hole.

Pam saw a lot of adults and kids using the “grassy area” behind the bathhouse to get to and from the river. In fact, on the way back, Pam saw several boys playing by a marmot hole in the field behind the bathhouse. That evening, Pam was watching fireworks when she saw her son was up by the railroad tracks with some children who appeared to be setting off fireworks. Concerned for his safety, Pam left the lit pool area and went out into the grassy area behind the bathhouse to call him back. She stepped in the marmot hole she had seen earlier that day, twisting her ankle.

Pam sued to recover for her injuries. The trial court found in Pam’s favor and awarded her $259,000, which it reduced by 25% for her own negligence.

Pam appealed.

Held: The Wyoming Supreme Court reversed the trial court, and Pam got nothing.

The elements of a negligence action are a duty owed the plaintiff by defendant to conform to a specified standard of care, a breach of the duty by defendant, and that the breach of the duty of care proximately caused injury to the plaintiff. A landowner in Wyoming owes a general duty to act reasonably in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Landowners have no duty to protect from known and obvious dangers, even those resulting from natural causes.

However, a plaintiff may show that an otherwise naturally occurring condition does not fall within this rule by showing that the defendant created or aggravated the hazard, that the defendant knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Even a naturally occurring, known and obvious hazard that the landowner has not aggravated could result in liability if the landowner were to create an expectation of heightened safety for people on the premises. The Court saw no reason the known and obvious danger rule should not apply to the ubiquitous hazard posed by the holes of burrowing animals.

slip_and_fall150112However, Pam Tessman hadn’t shown that her circumstances warranted a finding that the marmot hole she stepped in was anything other than a naturally occurring, known and obvious danger, from which Mary Berry had no duty to protect her. She made no showing that Mary Berry owed her any other duty that would support a finding of negligence here. The marmot hole was not a hazard she had created. The marmots weren’t domestic animals or pets but wild animals present in the surrounding area, as well as on the property itself.

Simply enough, the record evidence didn’t suggest that Mary aggravated the danger posed by the marmot hole. To the contrary, the trial court found that Mary tried to minimize the danger from such holes on her property by filling them regularly and by having the animals trapped whenever they became a nuisance. A landowner does not have a duty to protect a guest on her property from a naturally occurring, known and obvious hazard she has not aggravated if she has not, through her own undertaking, created an expectation in her guests that they will be protected from such a hazard.

Mary didn’t create or aggravate the marmot hole that caused Pam Tessman’s injuries, nor did Mary undertake any act that could have caused Pam to rely reasonably on a heightened expectation of safety or special protection from marmot holes on her property. Thus, Pam gets nothing.

– Tom Root

TNLBGray

Case of the Day – Tuesday, September 25, 2018

“WHOSE WOODS THESE ARE…

I do not know,” wrote Robert Frost in Stopping in the Woods on a Snowy Evening. That appears to have been precisely the problem for neighboring rural landowners in Kentucky, one the titleholder to pasture and the other owning a large glade of trees.

The neighbors, Marv and Gene, had a common boundary on the edge of the forest, populated by some pretty nice hardwood specimens. When Gene decided he wanted to cut down and sell some of the timber, he asked Marv for permission to come onto his land to cut down the first of some eight trees he wanted to sell. Marv thought the trees all straddled the boundary, and so belonged to the both of them. He let Gene cut them down and haul them away, naturally believing that Gene would come back around to hand Marv a share of the cash.

Marv may have been the kind of guy who went through junior high school with a “kick me” sign taped to his back. It turned out, of course, that while there may be a Santa Claus, it wasn’t Gene. Gene came back from selling the trees, asking for permission to come onto Marv’s to cut down some more trees, all without offering Marv a farthing. Still, Gene cut down four more trees before Marv gave him the heave-ho.

Unwilling to be fooled again, and unwilling to let Gene get away with selling commonly-owned trees as his own, Marv sued. And here’s where he let his fury get ahead of his common sense (which was his lawyer’s job, by the way, to talk his client off the ledge when prudence dictated he get his facts straight first).

It turned out that the first four trees Gene cut down were in fact completely on Gene’s property, but the second four were not. After the dust settled and Marv had a definitive survey done, Gene had to pay Marv $7,168.15. That was not a lot of money in 2008, at least for all of the litigation that ensued. The legal bills alone were probably bigger than that.

Gene’s attorney, however, might have been worth it. He was pretty crafty, throwing plenty of legal roadblocks in the way of the courts. The appellate panel, sad to say for Gene, swept them all away, and – rather piqued at Gene’s attempts to limit his liability after selling trees that only half belonged to him – said treble damages were only Gene’s due for selling the neighbor’s trees, especially when he had just been told not to cut them.

Smith v. Unger, Case No. 2007-CA-000318-MR (Ct.App. Kentucky, June 6, 2008). Marv Unger and Gene Smith owned adjacent properties in Lincoln County, Kentucky. Unger bought his place in 1997, and Smith purchased his in 2003. Marv’s property was primarily pastureland, while Gene owned some prime woodland.

Gene removed eight trees from the area of the common boundary line, in which Marv asserted part ownership. Gene said he believed the trees were on his land when he cut them down. Marv sued Gene for trespass, and demanded treble damages for wrongful cutting under KRS 364.130.

A lot of the dispute arose from the presence of a fence running along the boundary between the properties. Gene and Marv agreed the fence in question has been there as long as Marv had owned his land, but they disagree as to how many years prior to that time the fence had been there. Everyone agreed neither Marv’s nor Gene’s deed referenced the fence. Gene admitted he did not have the boundary line surveyed before cutting, but he said Marv told him the fence was the boundary. Marv says he never told Gene any such thing, and that he always determined the boundary line by some stakes that had been there at least since Gene bought his place.

Just before Marv purchased his property in 1997, the former owner had a survey of what became the Unger property performed. The surveyor placed stakes in the ground to mark the boundaries, and those stakes his property extended beyond the fence.

Gene never questioned the location of the boundary from the time he bought his land in 2003. However, Marv said that about a month after Gene bought his woods, the two men discussed the trees located near the fence line between the properties. Marv said he understood the true boundary line between the properties to run according to the stakes, and not according to the fence. Gene disagreed, believing the fence to be the boundary line between the properties.

Marv testified he told Gene before the trees were cut they were “line trees” and, as such, he deserved a portion of any money made from their sale. Marv admitted that after the conversation, he allowed Gene and his assistant onto his property for the purpose of removing the first four of the eight trees. After the first four trees were removed, Marv waited for Gene to share the wealth, When Gene offered nothing, but instead tried to come back onto the property to cut more trees, Marv told him to leave, and Gene did, but not before cutting four more trees.

Marv then had the property resurveyed. The survey showed that the prior survey was somewhat off, and that Gene in fact owned four of the eight of the trees that had been cut.

A master logger valued the four trees that were not Gene’s “on the stump” and “at the market,” which was twice the stumpage value. The trial court entered a judgment for Marv for $4,614.90 plus, consisting of $1,538.40 in compensatory damages (representing the stump value of the trees) trebled (as set forth in KRS 364.130(1) and (2)), costs in the amount of $1,399.25, and attorneys’ fees in the amount of $1,154.00, for a total of $7,168.15.

Gene appealed.

Held: Judgment in favor of Marv was upheld.

Gene argued that KRS 372.070(1) declared Marv’s deed void to the extent that it purported to convey land within Gene’s boundary, including the timber upon it. That statute provided that any conveyance of any land of which any other person has adverse possession at the time of the sale or conveyance, is void. Here, the Court said, Gene never disputed Marv’s proof of the boundary and never sought to quiet title. It was too late for Gene to argue that he had all along been claiming to hold the land up to the fence by adverse possession.

Under Kentucky law, land held by adverse possession only ripens into title when it has been held by 15 years openly, hostilely and notoriously to a well-defined boundary, giving others who may claim an interest notice of the adverse claim. The adverse holder’s intent at the time the possession begins is key: where one through ignorance, inadvertence, or mistake as to true location of his boundary line enters into neighboring land up to a certain line in belief that it is the true line, the occupancy is deemed amicable, mistaken perhaps, but not hostile.

In this case, Gene did not intend to possess land beyond his true boundary. He never formally disputed or questioned the boundaries as they existed, and at no time did he approach Marv to request the survey stakes be moved to establish what Gene believed to be the correct boundary between the two properties. The Court said it was clear Gene did not intend to establish actual adverse possession.

Gene also complained about the award of treble damages. The Court disagreed.

KRS 364.130 governs damages for cutting timber from another person’s land. The statute provides that a person is liable for treble damages for cutting timber from another person’s land only if the person cutting the timber did not have at least color of title to the land. So, in order for Marv to receive treble damages, the evidence must show that Gene did not have color of title to the disputed property from which the timber was cut. Color of title is “that which gives the semblance or appearance of title, but which is not title….” It is color of title in appearance only and not title in fact.

Any deed or instrument that purports to convey land and shows the extent of the grantee’s claim may afford color of title. Thus, even a deed or instrument of conveyance that is defective or invalid is sufficient to afford color of title. But in this case, Gene conceded that his deed makes no mention of the fence as the appropriate boundary line, and the survey stakes marking Marv’s boundary were in place at the time Gene purchased the land.

Ultimately, the question, the Court said, was whether the jury determined that the trees themselves were on the boundary, as opposed to whether or not the trees were entirely on one property or the other. If the jury decided that the trees were boundary line trees and that notice had been given to both parties that they were boundary line trees, then the taking of the trees by either party would be against the basic title held by either property owner and constitute the unlawful taking of timber from “the land of another”.

Here, the jury found that at least four of the trees at issue were boundary line trees taken by Gene without color of title. This the case, it is clear that the statute entitles Marv to treble damages. We therefore affirm the ruling of the trial court on this issue.

The Court said the jury’s function was to determine whether or not Gene damaged Marv’s land, and, if so, what amount of money would compensate Marv up to the amount of the stump value. After that determination was made, the duty fell to the trial court to enter a judgment for triple the amount assessed by the jury.

The jury did not award Marv the entire value of the trees. The value of the trees was twice the stump value. The jury award of “stump value” actually amounted to only half the value of the standing trees. However, the Court reasoned, the jury awarded a sum of money to Marv, and implicit in that award was the finding that Gene was a tortfeasor while Marv was in the right. Gene removed the trees and, thereby, the physical evidence of the location of the trunk, the limbs, the shade the tree produced and any other benefit the tree would have had to the landowners that were provable by the physical presence of each individual tree. Certainly, there is no dispute that where each of these trees once stood, only stumps remain.

Gene, the Court said, was trying to benefit from the value of the trees both as landowner and as tortfeasor, but could not have it both ways. Based on the testimony of the logger, it is custom that one who cuts and removes trees is paid at the rate of one-half the value of the trees, which is equal to the stump value. Gene was seeking to acquire half the values of the trees on the basis of his tortious conduct, namely, cutting and removing the trees without permission. Further, as a landowner, Gene attempts to assert that he is entitled to a proportional share of the stump value. As a matter of policy, a tortfeasor should not be allowed to benefit from his wrong to the detriment of the injured party.

– Tom Root

TNLBGray

Case of the Day – Monday, September 24, 2018

IT DOES NOT MAKE SENSE

Every good trial lawyer knows how to employ the Chewbacca Defense.

Every good trial lawyer knows how to employ the Chewbacca Defense.

Sometimes you wonder when you read a decision, “What were they thinking? That does not make sense.”

Today’s case is something like that. The facts are straightforward enough. Smith sold a gas station-restaurant-bar to Mendonsa, but carefully secured Mendonsa’s promise that he wouldn’t let the trees on the plot get so high that they shaded Smith’s adjacent orchard. Wouldn’t you know it, Mendonsa at some point decided he liked tall trees, or he didn’t like trimming tree, or he couldn’t find his clippers, or something. He let the trees grow, and they shaded four of Smith’s something-berry trees (we have no idea what he was raising in the orchard, but this being California, they probably weren’t plantain trees).

Anyway, Smith sued, and Mendonsa, for some foolish reason, fought the action. The trial court found for Smith in due course, and then worked some rump math, figuring the past damages were about $140.00 a year (this was 1952, when a dollar was worth a bit more than now), and multiplied over three years, the damages were $420.00 (or $3,907.17 in 2018 dollars). The Court also enjoined Mendonsa from maintaining trees over 15 feet or branches which were hanging over on Smith’s land.

On appeal, Mendonsa complained that the damage calculations were too imprecise, and that the injunction was unduly burdensome on him. The Court of Appeals disagreed, finding the calculations pretty good for an uncertain case, and anyway complaining that “[t]he wrong was that of the appellants and they are not in a favored position to urge the technical rules governing awards of damages.”

This case may be the legal equivalent of this - what were they thinking?

This case may be the legal equivalent of this – what were they thinking?

Huh? In the words of South Park’s parody of Johnnie Cochran in the legendary Chewbacca defense: “that does not make sense.” If the wrongdoer isn’t entitled to argue that the court has to follow the “technical rules” of assessing damages, then who is? It’s a cinch the plaintiff isn’t going to do anything to restrain the court in calculating damages. This is probably one of those “hard cases make bad law” kind of decisions … but even so, it’s difficult to feel much sorrow for Mr. Mendonsa, who should have been enjoined and been made to pay damages.

A deal’s a deal, after all.

Smith v. Mendonsa, 108 Cal.App.2d 540, 238 P.2d 1039 (Ct.App. Cal. 1952). Smith entered into an agreement with Mendonsa concerning the use of a gas station, restaurant and bar he had sold to him. Mendonsa agreed that he would permit no trees to remain on the site which exceeded a height of 15 feet;, and that if any tree got taller than that height, Smith would have the right to remove the same. The purpose of the agreement was to prevent the shading of Smith’s orchard next door. land and to prevent trees on the appellants’ property from overhanging it. Mendonsa let the trees get too tall, and Smith sued to enforce the deal. The trial court agreed with Smith, and awarded him money damages for past violation as well as an injunction prohibiting Mendonsa from maintaining any tree in excess of 15 feet in height or from permitting branches of any tree to overhang the orchard. Mendonsa appealed, complaining that the damages awarded weren’t supported by the record and that the injunction was too harsh.

Mendonsa let the trees get a little too tall …

Held: The damages and injunction were upheld. The Court observed that the record showed that the shading of the orchard trees near  Smith’s property line was detrimental to the growth of the trees themselves and would, during some seasons, decrease the yield of fruit on the affected trees. Four trees were affected, the evidence showed, and while the proof of damage was not exact, it nonetheless gave some fairly definite basis for computation.

With respect to growing crops, the measure of damages is the market value of the probable yield without detriment, minus the cost of producing and marketing, and minus the return actually received. The damages awarded amounted to about $140.00 per year, and the period of the damage was three years. Additionally, there was damage in that the trees themselves were retarded in growth by the shade.

The Court concluded that the record furnished adequate support for the award made. Anyway, the Court said, Mendonsa was in the wrong, and thus he was not in any position to demand application of the technical rules governing awards of damages. Where a party has suffered damage, the Court held, a liberal rule should be applied in allowing a court or jury to determine the amount, and that, given proof of damage, uncertainty as to the exact amount is no reason for denying recovery.

As for the injunction, the Court held, in cases involving promises as to use of property, injunctive relief — depending upon inadequacy of damages — may be granted. A deal is a deal, the Court seemed to say, and where Mendonsa made the promise to keep the trees trimmed back and then violated it, the award of a perpetual injunction from maintaining any tree in excess of the agreed-upon height and from permitting branches to overhang was not an abuse of the trial court’s discretion.

It is, after all, the duty of the court to encourage the keeping of agreements properly made and to give adequate remedy for breach thereof when it occurs, particularly where breach is deliberate and wrong is willful.

– Tom Root

TNLBGray

Case of the Day – Thursday, September 20, 2018

A GAME OF INCHES

Baseball, they say, is a game of inches. So are boundary trees, called “line trees” in the State of Pennsylvania (which, by the way, also calls itself a “Commonwealth” instead of a “State”).

Life imitates art, I guess. Last weekend, I hauled away our 25-year old shed. I am  replacing it with a newer, larger shed – complete with electricity, windows, and (if I have anything to do with it) a beer refrigerator. Behind the shed on or near our property line stands a line of arborvitae trees. They were tiny little shrubs when our next-door neighbor (two owners ago) planted them. Now, they’re monsters.

I need to trim back a few of the arborvitae before the concrete pad for the new shed gets poured. Having read some of what I have written about boundary trees over the past few weeks, I figured I had better be sure I was dealing with some good old-fashioned Massachusetts Rule trimming of branches overhanging my property, and not with some oversize arborvitae that had grown across the property line to become boundary trees.

I found the iron pin on one end of the property line and the post on the other, and ran a line through the trees. Sure enough, two of them have grown across the property line. Lucky for me, the ones I need to trim are still solidly anchored completely on my neighbor’s land. Those I can trim back, exercising both my Massachusetts Rule rights and my ratcheting loppers.

It seems strange that a matter of inches differentiates the trees I can trim with abandon and the trees that I cannot touch without my neighbor’s permission. (I have a great neighbor, by the way, so it is probably not a problem).  Nevertheless, the perverseness of the interplay between boundary trees and encroaching trees that stand completely on land other than one’s own is puzzling and irritating to me in an academic and legalistic way.

My situation is similar to the one in today’s case, which pits a car wash against a restaurant over a row of pine trees that may or may not be on the boundary. Because of the vagaries of how the pine trees at the root of the lawsuit grew along the property line, no one really won: the restauranteur wanted the trees gone, and the car wash owner wanted the trees to remain.

In the end, some of the trees stayed, some did not. And it was all a game of inches…

Wolfinger v. Moates, 7 Pa. D. & C.4th 220 (Pa.Com.Pl. 1990). A line of pine trees separated the Wolfinger Car Wash property from the Moats Restaurant property. Bill Moats received complaints from his patrons about the pine trees, that encroached on his parking lot, scratched diners’ cars and dropped pine cones everywhere (even damaging his lawnmower).

Bill decided to cut down the trees. He told his neighbor, “Suds” Wolfinger, what he planned. Suds was shocked. He liked the trees, because they served as a barrier between his business and the restaurant. Plus, his customers liked parking under them, using the shade while they wiped down their cars. He asked Bill not to cut them down.

Bill did anyway, taking down four of the 13 trees on his first day wielding a chainsaw. Suds raced to his lawyer, and together they raced to the courthouse for a temporary injunction. After Bill was forced to stop, Suds tried to make the injunction permanent.

The court found that the two tracts of real estate shared a common boundary line, and 13 trees stood on or near the line. A survey showed that the first five trees, including the four Bill had cut down, were all on his property. Lucky Bill. The next three, however, straddled the boundary. The  Court referred to them as “line trees.” Tree No. 9 was on Bill’s land, but some bark on the flare touched the boundary line. The last four trees were all on Bill’s land.

Held: Bill was not allowed to cut the three trees that straddled the boundary.

Pennsylvania law made it unlawful “for any owner or owners of any undivided interest in timber land within this Commonwealth to cut or to remove, or to cause to be cut or removed, from the said land, any timber trees, without first obtaining the written consent of all co-tenants in said premises.”

The Court held that the statute dictated its holding that the owners of adjacent tracts of real estate own all trees growing on their common boundary line as tenants in common. Tenants in common are prohibited from unilaterally cutting down or removing such commonly owned line trees.

Applying the general rules of law governing tenancy in common, the Court held, “we conclude neither adjoining real estate owner may remove a tree growing on a common boundary line. Consequently, in the case at bar, notwithstanding the fact that only inches of the trunks of trees 6, 7 and 8 are on the boundary line between the properties of the plaintiffs and defendants, those trees are jointly owned by plaintiffs and defendants. Therefore, defendants may not remove them.”

Suds was not satisfied. He argued that Tree No. 9 was commonly owned as well, because the bark of the tree’s trunk touched the boundary line. Citing the Illinois case Ridge v. Blaha, the Court held that the critical question was “whether any portion of the trunk of the elm tree grows on plaintiff’s property… The law… is determined by the exact location of the trunk of the tree at the point it emerges from the ground.” The fact that the bark of Tree No. 9 touched the line, the Court said, was insufficient to create a tenancy in common.

Trees 1 through 5 and 9 through 13, therefore, were Bill’s sole property. He could cut them down as he wished. But the injunction would become permanent on Trees No. 6 through 8, leaving them to provide both shade and pine cones.

– Tom Root

TNLBGray140407