Case of the Day – Friday, July 19, 2019

WATERWORLD

shortage160803In a little shot of neighbor law today, we’re going to talk about Waterworld.

No, Kevin Costner, it’s not that kind of Waterworld. Instead of a $200 million turkey, this waterworld’s a place where water is precious because there’s not that much of it, a semi-arid climate in Nebraska, a state once considered to be part of the Great American Desert but is now an agricultural powerhouse. Water’s scarce here, and water rights have been litigated ever since settlers put down their six-guns and hired the first local frontier lawyer.

In this case, a greedy downstreamer in the Lower Platte River basin had used an unnamed tributary to build his pond — his own fine little fishing pond — and he wanted his upstream neighbor to be prohibited from doing the same until his pond was full to his satisfaction. The trial court agreed with him, but the Nebraska Supreme Court found that Koch’s claim to a superior appropriative right to the water was as fictional as most of the cowboy-and-Indian stories of the old West.

As a riparian owner, Koch’s rights to the water turned out to be no better than that of his upstream neighbor.

waterfight160803It’s just a case about a little water, you say. What do you know? Water has been declared to be the oil of the 21st century, and it probably is. Having the right amount of water of the right degree of purity at the right place at the right time is right important. Those who have it – think of those of us in the Great Lakes watershed, for example – guard it jealously. Having some sense of how water law is applied, the world of riparian rights, is a pretty good idea.

Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (Sup.Ct. Neb. 2007). The Aupperles built a small dam to create a farm pond along the banks of an unnamed tributary of Weeping Water Creek. Loren Koch, a downstream user of tributary’s waters, sued. He complained that in 1989, he dammed the waters of the tributary and built a 3-acre pond on his property next to his house. Koch alleged the Aupperle dam would prevent his pond from filling and deprive him of stream water for livestock watering.

Koch said he bought his property in 1981 and that, aside from two brief times in the past two years, he had observed a constant flow of water in the tributary. His dam, built in 1989, impounded approximately 40 to 50 acre-feet of water. In 1990, he stocked the pond with largemouth bass, bluegill, and catfish, and, by the time of trial, the pond had become “one of the best little fishing ponds around.”

This is what the mighty Colorado used to look like when it met the Sea of Cortez, a victim of too many riparian rights holders taking too much water, A recent agreement between the U.S. and Mexico has improved matters, but not a lot.

This is what the mighty Colorado used to look like when it met the Sea of Cortez, a victim of too many riparian rights holders taking too much water, A recent agreement between the U.S. and Mexico has improved matters, but not a lot.

Although Koch said he used his pond to water his livestock, he had no livestock from 1997 until shortly before trial. He said he intended to have a small number of cattle on his property again and that he had recently obtained seven head of cattle; he anticipated having a maximum of 45 head.

Koch admitted that he had other water sources for cattle on his property, but he testified that he preferred to use the running water from the tributary. He also used the pond for recreational boating. Koch was concerned that if the drought continued and the Aupperles were allowed to build their pond, no water would pass through to his pond and it would dry up and kill his fish. He asked the court require a “six-inch draw down” in the Aupperle dam so that water could be passed through the Aupperle structure until Koch’s pond was full.

Koch conceded he had no appropriative right to use the water in the tributary. He said he wanted all the water in the tributary until his pond was full. At that time, the court could authorize upstream impoundment by the Aupperles.

Koch admitted that he had other sources of water that he could use for his livestock, including several other ponds, a well, rural water spigots, and stock tanks. Paul Zillig, the assistant manager of the Lower Platte Natural Resources District, testified that based on data compiled by the Natural Resources Conservation Service, the entity that designed the Aupperle farm pond, there was sufficient water in the tributary to support both ponds.

The trial court found that while both parties intended to use the water for the same purpose, Koch “has priority of appropriation due to the fact that his dam was constructed back in 1989 and has existed since that time.” On this basis, the court concluded that “Koch’s use of the water from the stream is superior to [the] Aupperles.” The district court permanently enjoined the Aupperles from constructing their farm pond “until such time as the dam structure contains a draw-down or similar device which will allow for the passage of water through the dam structure.” The Aupperles appealed.

Held: The injunction was reversed. The basic concept of riparian rights is that an owner of land abutting a water body has the right to have the water continue to flow across or stand on the land, subject to the equal rights of each owner to make proper use of the water. Riparian rights extend only to the use of the water, not to its ownership. One of the most significant maxims of riparianism is that, unlike the rule of the prior appropriation system, there is no priority among riparian proprietors utilizing the supply. All riparian proprietors have an equal and correlative right to use the waters of an abutting stream.

dam160803Of equal importance with this maxim is that use of the water does not create the riparian right and disuse neither destroys nor qualifies the right. While a riparian right will not permit any one man to monopolize all the water of a running stream when there are other riparian owners who need and may use it also, neither does it grant to any riparian owner an absolute right to insist that every drop of the water flow past his land exactly as it would in a state of nature.

Applying these principles, the Court concluded as a matter of law that Koch could not have acquired any “senior” riparian right by constructing his dam in 1989. Any riparian right he may have to use water in the tributary would be equal and correlative to the rights of other riparian proprietors. The rights of one riparian landowner versus another is determined by examining the reasonableness of each landowner’s respective use of the water.

The record in this case did not establish that either Koch or the Aupperles held riparian rights. The Court found the parties were simply owners of adjoining tracts of land through which the tributary flows, with Koch’s land situated downstream of that of the Aupperles. Koch, as the party seeking injunctive relief, had the burden to show that the proposed Aupperle dam would infringe on his rights. Because he could not demonstrate the existence of a common-law riparian right, the Court held, he clearly was not entitled to injunctive relief.

Accordingly, the Court said, it did not need to analyze the reasonableness of the use by each party of the water flowing in the tributary. If it had, it said, it noted that both parties intended to use water in the tributary “primarily for aesthetic and recreational purposes with grade stabilization, erosion control, and domestic use (watering cattle) being secondary in nature.”

– Tom Root

TNLBGray140407

Case of the Day – Thursday, July 18, 2019

I CAN SEE FOR MILES AND MILES…

It may be a great car wash ... but we can't see the road.

It may be a great car wash … but we can’t see the road.

Every morning, we look to the left and right as we pull onto the main street, only to stare into an ill-placed car wash sign. The First Armored Division could be rolling into town, and we couldn’t see it the M1A1s coming before they flattened our Yugo.

So every morning we wonder whether the sightline obstruction might not make someone liable to our next of kin when the inevitable happens. As it did one rainy night in Georgia.

A car had a chance encounter with a dump truck at a Georgia intersection. The pickup driver perished. Investigators suspected that untrimmed shrubs on vacant property at one corner of the crossroads, as well as a “curvature” in the road, made the intersection dangerous. The intersection had experienced several other accidents due to visibility.

Truck-carIn the aftermath of the tragic auto accident, the victim’s survivors sued the Georgia Department of Transportation, claiming it had a duty to keep trees and shrubs from a vacant lot trimmed back to protect the sight lines at the intersection in question. The trial court disagreed.

On appeal, the Court agreed that as a matter of law, DOT had no duty to maintain the intersection. But it did have a duty to inspect. It seemed that an issue of fact existed as to whether the vegetation had encroached on the highway right-of-way. But the Court discounted the plaintiff’s expert opinion that encroachment had occurred, because DOT contended it didn’t know where the right-of-way began, so who knew?

The result seems to turn summary judgment on its head, letting DOT off the hook without a trial when a real fact issue ­– the location of the highway right of way – remained. We were left as confused about liability afterwards as we were beforehand. And we still can’t see down the street.

Welch v. Georgia Dept. of Transp., 642 S.E.2d 913 (Ct.App. Ga., 2007). Addie D. Welch was killed when her vehicle hit a dump truck at an intersection. A policeman said the overgrown bushes on the northwest corner of the intersection contributed to the accident. A sheriff’s department investigator said overgrown shrubs on the vacant property and a “curvature” in the road combined to make the intersection dangerous. Several other accidents due to visibility had occurred previously at the intersection.

Welch’s expert witness said that a driver’s line of sight was obstructed by overgrown shrubs and trees on the northwest corner of the intersection. The expert said that the overgrowth extended two feet into the Georgia DOT right-of-way, and that DOT was responsible for maintaining the line of sight. The expert also said American Association of State Highway and Transportation Officials’ (AASHTO) guidelines for that intersection require a line of sight of 430 feet. Because of the overgrown vegetation, Welch’s line of sight was between 143 and 277 feet.

line_of_sight2After the accident, DOT employees cut the overgrowth. Claiming that trees and shrubs on the property adjacent to the intersection were negligently maintained and obstructed her line of sight, Welch’s estate and surviving children and grandchildren sued the Georgia DOT. DOT moved for summary judgment, arguing that state law precluded plaintiffs’ claim, or in the alternative, that plaintiffs presented no evidence that Welch’s line of sight was obstructed. The trial court granted DOT’s motion, and Welch appealed.

Held: DOT was not liable. The Court ruled that DOT was immune under OCGA § 32-2-2. That statute gives DOT has the general responsibility to design, manage and improve the state highway system. But, where state highways are within city limits, the DOT is required to provide only substantial maintenance and operation, such as reconstruction and resurfacing, reconstruction of bridges, erection and maintenance of official department signs, painting of striping and pavement delineators and other major maintenance activities.

Although the road Welch was on was a state highway, the intersection lay within the corporate limits of Quitman. Accordingly, DOT was required only to provide substantial maintenance activities and operations. Those activities, the Court said, did not include the maintenance of shrubbery and vegetation. Thus, the statute did not impose a duty on DOT to maintain the shrubbery. But Welch also argued that another statute, OCGA §50-21-24(8), made DOT liable for failing to inspect its right-of-way. In order to prevail on this claim, the Court said, Welch had to show that the vegetation extended into DOT’s right-of-way. DOT argues that the overgrowth was on private property.

Although Welch’s expert believed the vegetation encroached on the DOT right-of-way, the Court agreed with DOT’s view that the extent of the right-of-way couldn’t be ascertained without using courthouse records and surveyors. Because Welch’s expert had not relied on DOT testimony to opine that vegetation extended into the right-of-way, and the Court found that the evidence was uncertain as to the location of the right-of-way, Welch’s expert’s opinion that vegetation extended into the right-of-way was disregarded, and plaintiff was found not to have established DOT’s liability.

-Tom Root
TNLBGray140407

Case of the Day – Wednesday, July 17, 2019

SKIN OF HER TEETH

skin150629I’ve seen several mutual acquiescence cases recently, for no apparent reason. “Mutual acquiescence” is the term for a mistake agreed to by the affected parties: a driveway wanders over a property line, a fence gets built a few feet over from where it should be, the parties agree that a couple trees mark the boundary line when they really don’t, but it’s more convenient then looking for buried iron rods or PK nail. Over the years, memories fade… and what usually began as a mistake or a matter of convenience — such as when two parties build a fence that’s not right on the proper boundary line, but decide to let it go — becomes the de facto boundary line.

In today’s case, Ms. Shoemake (she seems to be missing an “r”, doesn’t she?) established that a broken-down fence had become her property’s boundary by mutual acquiescence, but only by the skin of her teeth. The evidence that one of the former neighbors had agreed to the fence as the boundary was remembered only by Ms. Shoemake. The former neighbor remembered the conversation, but not the crucial concession.

The Court of Appeals wasn’t all that sure, but under the relaxed standard of review appellate courts give the fact-finding by trial courts, decided by a 2-1 margin that Mrs. Shoemake had shown then fence line to be a boundary by acquiescence. But a plaintiff shouldn’t try too many times to win on such a tissue-thin showing.

There’s always the chance that someone else might remember it differently. And then, the trial devolves into a “swearing contest.”

gvtwork150629Boyster v. Shoemake, 272 S.W.3d 139, 101 Ark.App. 148 (Ark.App. 2008). Teresa Shoemake owned land next to James Boyster. A boundary-line dispute arose in summer 2005 when several of Teresa’s hunting dogs went missing on her property. When she went to the disputed area on her four-wheeler to find the dogs, Ms. Shoemake saw that an old fence that had stood there for about 65 yesars had been cut, rocks had been picked up, and trees had been cut down.

Mrs. Boyster told Teresa that the Boysters had surveyed the property and discovered that the fence line was not on the boundary. Shoemake described the fence as an old, rusty strucgture that had grown into the trees. She said the fence had been on the property her entire life. Her grandmother acquired the property in 1942.

Ms. Shoemake recalled visiting the property often, and she said that in the 1960s, the property on the other side of the fence was used as pasture land. She never saw anyone other than her family use the property south of the fence. Her family’s side of the fence contained trees, which had not been used for anything other than Christmas trees and recreation.

This would have been good advice for Ms.Shoemake and her neighbor ...

This would have been good advice for Ms.Shoemake and her neighbor …

Ms. Shoemake said that Bryan Tatum, the Boysters’ immediate predecessor in interest, acknowledged the fence line as the boundary line in a conversation with her, and asked if he could dig across her property and install a water line. Others testified that they had always believed the fence line was the boundary. The trial court found that Ms. Shoemake established a boundary line by acquiescence and quieted title to the disputed tract in her name. Boyster appealed.

Held: Ms. Shoemake had proven that the fence line was a boundary by mutual acquiescence. The Court said that mere existence of a fence or some other line, without evidence of mutual recognition, cannot sustain a finding of boundary by acquiescence. However, silent acquiescence is sufficient, as the boundary line is usually inferred from the parties’ conduct over so many years. A boundary by acquiescence may be established without the necessity of a prior dispute or adverse use up to the line. For a party to prove that a boundary line has been established by acquiescence, that party must show that both parties at least tacitly accepted the non-surveyed line as the true boundary line. The mere subjective belief that a fence is the boundary line is insufficient to establish a boundary between two properties.

Not the kind of "self-serving" the court had in mind ...

Not the kind of “self-serving” the court had in mind …

Here, Boyster complained that Shoemake failed to present any evidence that Boyster or any of his predecessors in interest considered the fence line to be the boundary. But the Court observed that Shoemake said that Tatum acknowledged the fence as the boundary line. While this was rather “self-serving” testimony, it was within the province of the trial court to find whether Teresa’s evidence was credible. Besides, other testimony from Shoemake and her witnesses established that no one north of the fence used the property south of the fence and that property north of the fence was pasture, while property south of the fence was woods. The Court concluded that Ms. Shoemake had presented sufficient evidence – just barely enough –to establish that Boyster and his predecessors in interest recognized the fence line as the boundary between the two properties.

Tom Root

TNLBGray140407

Case of the Day – Tuesday, July 16, 2019

A LEG TO STAND ON

Did that plaintiff ever have gall ... or gull ... or cojones or something...

      Did that plaintiff ever have gall … or gull … or cojones or something!  What he didn’t have was any proof.

The plaintiff in today’s case had his foot broken when a branch from his neighbor’s tree fell. So how was he different from this rather odd-looking seagull sitting on a seawall to our left?

Easy – the gull has a leg to stand on.

Our hapless litigant – Rick Meyers by name – lived next to a man named Delaney, who owned a catalpa tree. The catalpa is a pretty good-looking deciduous tree that drops bean pods and leaves in the fall, but little else. It’s a solid Anglo-American tree, flowering in the spring and with large leaves and deep shade in the summer. In fact, it’s the sole food source for the catalpa sphinx moth, a creature favored by southern anglers as bait. Birds love it, caterpillars love it, fishermen love it … and so do most people.

That list would exclude our hobbling protagonist, Rick Meyers. The Delaneys’ catalpa tree provided shade to Mr. Meyers’ driveway with its overhanging branches. But one day, Rick had run barefooted outside to put up the car windows (we suspect a thunderstorm was about to hit, which would have been accompanied by gusty winds, but the record didn’t say as much). While he was doing so, a branch broke free from the tree and fell on his foot.

A catalpa -beloved by fisherman and fowl - but not by Rick Meyers.

A catalpa -beloved by fisherman and fowl – but not by Rick Meyers.

Rick didn’t have a shred of proof that anyone – including the Delaneys – had reason to know that the branch was going to break. But lack of evidence would not inconvenience our Rick. He sued anyway, claiming that as owners of a tree in a residential area, the Delaneys had a duty to know the branch was going to fall, and never mind how they were supposed to have figured that out. You see, Rick’s foot hurt, and someone had to pay.

The trial court took a more sanguine view. It believed that if the Delaneys couldn’t clearly see that the tree was dangerous, they couldn’t be found to be negligent because they had not sleuthed it out. The Iowa Supreme Court agreed. The risk has to be seeable before it can be found to be foreseeable.

A landowner has no affirmative duty to inspect trees where no defect is "readily observable."

A landowner has no affirmative duty to inspect trees where no defect is “readily observable.”

Meyers v. Delaney, 529 N.W.2d 288 (Iowa Sup.Ct. 1995). Meyers and Delaney owned adjoining properties. Standing between their homes, but on the Delaney homestead, was a large catalpa tree. The tree limbs hung over the Meyers driveway. The Meyers family parked cars under the branch each day, and the Meyers kids played around it when outside.

One evening in mid-July, 1990, Rick Meyers ran barefoot out to his car to roll up the windows. He heard a large crack, and then a large catalpa limb fell from the tree, striking and severely injuring his foot. He sued the Delaneys for negligence, claiming they failed to maintain the tree properly, failed to warn him of the dangerous condition of the tree, and failed to protect him from a danger that in the exercise of reasonable care the Delaneys knew or should have known existed.

The trial court found that the Delaneys neither knew nor should they have reasonably known the tree was dangerous, so they were not negligent. Rick Meyers appealed.

Held: The Iowa Supreme Court agreed that the Delaneys were not liable.

The Meyers v. Delaney rule - it's not foreseeable unless its seeable.

The Meyers v. Delaney rule – a tree’s defects are not foreseeable unless they’re seeable.

The Court noted that the general rule is that one who maintains trees owes a duty to avoid injuring persons on adjoining premises by permitting a tree to become so defective and decayed it will fall on them. However, the Court held, there is no duty to consistently and constantly check all trees for non-visible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. If the decay or infirmity is readily observable, the tree owner may be liable for injuries caused by a defective condition of the tree if he or she had actual or constructive notice of the trees defective condition.

In this case, the catalpa tree had had a dead limb removed by a friend of the Delaneys the summer before. The friend, who had some experience working in trees, testified he observed nothing in the tree to cause him concern about his safety. Furthermore, while Meyer’s expert tree trimmer testified that the tree was dangerous, he conceded on the stand that there was nothing that Delaneys could have observed about the tree before the accident that would have alerted them to be concerned over its safety.

Thus, there was no negligence.

Tom Root
TNLBGray140407

Case of the Day – Monday, July 15, 2019

THE BOUNDARY TREES OF WALTER PRIDDY


mitty140808You know how free association goes. It’s summer, hot and humid, and we face a string 90-degree days in our future, so we’ve been groovin’ (a 60s term, kiddies) on an old Lovin’ Spoonful hit, “Summer in the City.

Although operating without a lot of the mental stimulants that were so freely available during the Summer of Love, we nonetheless started pondering the line “Back of my neck gettin’ dirty and gritty.” “Gritty” rhymes with “pretty,” which rhymes with “Priddy.” And there you have it. Thinking a lot about tree law (as we do), we recalled Walter Priddy.

“Oh, yeah,” you say, “that guy James Thurber wrote about. The secret life and all … The Ben Stiller movie …” No, not ‘Mitty.’ We’re talking ‘Walter Priddy.’ No “secret life” that we know of, but something just as fascinating – a line of boundary trees, an unhappy neighbor, a homeowner’s association, counterclaims. Our meat and potatoes, you know.

It ought to be rather obvious — a court can only decide issues that have been placed before it, and can only order remedies which address the causes of action that it has found to have merit. Courts sometimes lose their way, though, as did the California trial court in today’s case. The Boussiacoses (pronounced “them”) complained that the Priddys’ line of shade trees along their common boundary were a nuisance, messed up the Boussiacoses’ deck, and violated the homeowner’s associations’ rules. The Priddys argued that the trees did no such things, and anyway, the Boussiacoses’ deck had been built without homeowner’s association permission, constituted a nuisance itself, and violated the rules.

The trial court decided that neither side was right. Now your average observer would conclude that the decision meant that the Boussiacoses kept their deck and the Priddys kept their trees. But the trial court decided that the Boussiacoses must have reached an oral “understanding” (and we don’t know how an “understanding” surrounded by quotation marks differs one that isn’t in quotes) with the owners before the Priddys that the trees would be kept trimmed. Now, mind you, the Boussiacoses hadn’t argued that there was such an “understanding,” or that if there was it should be treated like some kind of enforceable agreement. But the trial judge – quite proud of his “solution” – decided that the phantom “understanding” should bind the Priddys anyway. He crafted a decision that let the Boussiacoses keep their deck provided the Priddys got to keep their trees, but the trees had to be hacked off at the height of some wrought-iron fence that was apparently part of the landscape.

Solomonic, you say? Not really. Remember that King Solomon never really intended to cut the baby in half. Plus, that decision at least directly addressed the issue the two warring women had placed before the King and no more – that questions being exactly whose baby the subject infant was. Here, the trial court found that there was nothing wrong with the trees and nothing wrong with the deck, but he ordered the trees trimmed anyway. It’s kind of like being charged with bank robbery, being found not guilty by the jury, but being sentenced to 5-10 years in the pen anyway because the judge thinks you probably cheated on your taxes.

In this dramatic re-enactment, King Solomon faces a tough decision.

In this dramatic and plastic re-enactment, King Solomon faces a tough decision – how to divide the bambino.

The Court of Appeals thought as little of the trial court’s decision as we do. It made short work of the trial court’s order. Because no one had raised the issue of whether there had been an understanding (or “understanding”) about the trees between the plaintiffs and the prior owners of defendants’ place, the trial court couldn’t find there had been one and enter an order accordingly.

Boussiacos v. Priddy, 2007 Cal. App. Unpub. LEXIS 9979, 2007 WL 4306835 (Cal.App., Dec. 11, 2007). The Boussiacoses sued their next-door neighbors, the Priddys, for statutory nuisance and violation of their mutual homeowners association’s covenants and rules. They alleged the Priddys maintained trees which blocked the Boussiacoses’ view along the parties’ shared property line. The Priddys counter-sued, alleging nuisance and violation of the covenants and rules , because the Boussiacoses had apparently built their deck without the homeowners association’s approval.

Following a bench trial, the trial court found that neither party had proved any of the claims raised in the pleadings. However, the trial court entered judgment anyway, requiring the Priddys to maintain the trees at specified heights in accordance with an “understanding” allegedly entered into by the Boussiacoses and the previous owners of the Priddys’ property. He also ruled that the Boussiacoses could keep their deck. The Priddys appealed, arguing that the trial court couldn’t enter a judgment where it hadn’t found the Boussiacoses’ underlying claims to have any merit.

No pruning for the Priddys

No pruning for the Priddys

Held: The trial court’s “judgment” was thrown out. The Boussiacoses had asserted only two claims against the Priddys, statutory nuisance and violation of the homeowners’ association’s covenants and rules. Because the trial court concluded on the record that the Boussiacoses failed to prove either claim, the Court of Appeals said, the judge was without any legal authority to make findings regarding an “understanding” between the Boussiacoses and the previous owners of the Priddys’ property. Such an “understanding” wasn’t alleged in the pleadings. The judge could not conclude that this understanding was enforceable against the Priddys, and could not enter a judgment which imposed tree-trimming maintenance obligations on the Priddys.

The Court of Appeals held that a trial court’s award of relief must be based on a pleaded cause of action. Trial courts are more arbiters than gods. Here, the trial court transcended the limits of its authority. Because the record did not show that the enforcement of any agreement between the Boussiacoses and the previous owners of the Priddys’ property was before the court, the trial court erred by awarding the Boussiacoses relief on that basis.

Groovy appellate decision, we must say.

– Tom Root

TNLBGray140407

Case of the Day – Friday, July 12, 2019

SUDOKU, ANYONE?

sudoku150624The story’s not new, but it’s new to us … four jurors playing sudoku during a drug conspiracy trial in Sydney, Australia, caused a mistrial to be declared after three months and 100 witnesses. We feel for them – a lot of what goes on in the courtroom is deadly dull, and occasionally, rather foolish as well.

This is one of those cases that makes our point. The Wisemans had an access easement along the boundary of their property and their neighbor, Mr. Greenfield. They sold some land to a developer, and part of the deal was that the developer would install a driveway. The developer hired a company to do it. After the job was done — and the driveway was indeed properly within the access easement — Mr. Greenfield said that some branches had been cut from a pine tree of his that stood along the drive.

This being America, he sued his new neighbors.

Mr. Greenfield had no witness that his neighbor — or anyone else, for that matter — had cut off the branches. He had no evidence that the tree’s value had been lessened (except for his own claim that his property was worth $25,000 less, pretty steep for a couple of pine boughs). But the lack of evidence didn’t bother him that much.

It did bother the Court, however. First, the Court noted, the fact that the branches were missing didn’t mean the Wisemans had cut them. Second, the subcontractor for the developer wasn’t the Wiseman’s agent, even if he had cut the branches (and Greenfield had no evidence he had done so). Third, there was no unbiased evidence as to the extent of damage, and the Court wasn’t going to sit still to hear Mr. Greenfield speculate as to how much he ought to get in damages.

Most important for us students of the Massachusetts and Hawaii rules, the Court said even if the Wisemans had trimmed the branches back to the limits of the easement, they had the right to do so, and any damages Greenfield could recover for were only for any extra branch that might have been taken beyond the property line.

This action was truly a waste of everyone’s time… Ready for a hand of Old Maid?

Sometimes, trimming trees next to driveways is a darn good idea ...

Sometimes, trimming trees next to driveways is a darn good idea …

Greenfield v. Wiseman, 2008 Conn. Super. LEXIS 198, 2008 WL 344606 (Conn.Super., Jan. 17, 2008). David Greenfield owned property next to that belonging to Carter and Eileen Wiseman. The Wisemans had access to a portion of their land only by means of a 20-foot wide corridor running across the Greenfield land. When the Wisemans sold some of their land to a development company, part of the deal was that the developer would build a gravel driveway along the access corridor. The company hired a subcontractor to do so.

Shortly after the driveway was built, Greenfield sued, claiming breach of covenants and trespass. He abandoned all claims except the trespass claim, arguing that the development company and the Wisemans trespassed while the driveway was being built, by cutting some limbs off a large pine tree on the corner of his land. No one witnessed the actual cutting of the trees, nor was any testimony presented from those who actually cut the limbs. The uncontradicted testimony was that neither of Wisemans personally cut any of the branches, or witnessed the actions of those responsible. Nevertheless, Greenfield claimed damages under a Connecticut treble damage statute.

Held: Greenfield’s case was thrown out. The Court observed that the essential elements which must be proven to sustain an action for trespass were ownership or possession of an interest in land by the plaintiff, an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest, done intentionally, and causing direct injury. Here, the Court said, the evidence failed to show any intentional intrusion or invasion of Greenfield’s possessory interest by either of the Wisemans. The treble damage statute does not provide a new or independent cause of action. Instead, it merely provides a measure of damages applicable in situations in which compensatory damages, in the absence of the statute, would be recoverable.

This was just a stupid case to bring in the first place ...

This was just a stupid case to bring in the first place … That’s why Greenfield lost. Because he was a knucklehead, and his lawyer wasn’t any better …

But Greenfield said that the Wisemans were liable because the subcontractor was their agent. In order to demonstrate the existence of an agency relationship between the defendants and the unknown individual or individuals who cut the limbs from the plaintiff’s pine tree, the Court held, the evidence must establish a manifest action by the principal that the agent will act for him, an acceptance by the agent of the undertaking, and an understanding between the parties that the principal will be in control of the undertaking. Here, neither of the Wisemans controlled the means by which the driveway would be installed, and both were unaware of the name of the person or entity engaged by the development company to perform the actual installation work. There was no agency relationship.

Finally, Greenfield produced no evidence concerning the value of the cut branches, and all of the photographs revealed a healthy pine tree which did not have to be cut down as a result of the branches being removed. Besides, the Court said, the Wisemans or anyone acting as their agent would be fully justified in cutting any portion of the branches which extended beyond the stake onto their property.

– Tom Root
TNLBGray140407

Case of the Day – Thursday, July 11, 2019

AND DON’T FORGET THE LITTLE WOMAN …

I got a call yesterday from a friend – I’ll call him Arnie Acme – who wanted me to look at a contract he was signing for office space. As a favor, Arnie said. “You know,” Arnie said, “just a quick read-through. After all, I know it’s OK.”

Enamored with the gravitas of a corporate structure, Arnie has probably a dozen or more corporations or limited liability companies, all organized (if I may use that word) in a maze of affiliates, subsidiaries, parents and joint ventures that would confuse a lab rat.  He forms them online, leaving the tedious work of writing bylaws, naming officers and drafting minutes of corporate meetings until “later.” You can guess when “later” finally arrives… the day after he discovers he really needs them.

The contract he emailed me was between Office Megapark Corporation and “Acme.” I asked him which “Acme” he had in mind as the contracting party, given that he had “Acme Enterprises, Inc.,” “Acme Management, LLC,” “Acme Services Corporation,” “Acme Systems Limited Liability Company,” and a gaggle of other variations of entities. He said he was not sure, and he would just put “Acme” in as the leasing party, so he could decide later which company he wanted to be the leaseholder. He planned to have his newly-hired office manager sign the lease, because her name had not yet appeared in any business records, and he could write her name and purported office into whatever corporate or LLC minutes he might need later. 

Arnie’s devil-may-care attitude toward contract and business association law reminded me of a sad fact. Small business owners sometimes (in Arnie’s case, always) skimp on the legal niceties. After all, they reason, paying out $500 to some lawyer for a bunch of forms and a vinyl corporate book doesn’t really “grow the business,” as the buzz phrase puts it. And who wants to squander money on a lawyer? Not Arnie. He just wanted a free and “quick read-through.”

Oops!

Oops! Sometimes, misteaks happen.

That’s pretty false economy. In today’s case, a mom-and-pop timber harvesting business was hired to take down trees on one owner’s land, and — predictably enough — the chain saws wandered onto Mr. Follender’s land, to the tune of 439 commercial-quality trees cut down and removed without permission. Follender lost trees worth $54,500. After trebling and some discounts, he ended up with a $120,000 judgment against Bert Maxim, the defendant.

Unfortunately, the timber harvester had involved his wife in the business, and she did enough of the paperwork in the business that she had signed the contract for the timber operation that had gone awry. Oh, if they had only incorporated, formed an LLC, something! And if only Mrs. Maxim hadn’t signed that agreement! But hubby was out cutting down trees and they were in a hurry …

The Court ruled that her involvement in the unincorporated business was enough to make her liable for the $120,000 judgment as well.

Sure, LegalZippy.com or LawformsRUs can sell you some boilerplate-laden forms over the Internet that’ll purportedly set you right up. But how a small business can best be structured to protect its principals from liability is a matter that varies from state to state. The legal niceties of the business organization — not just in the formation of the company but in day-to-day management — is best addressed by your local attorney or a specialist to whom he or she might refer you.

corporate_structureBut get the advice now. Usually, by the time you realize you should have spent the money on the legalities of business formation and protection, it’s too late.

Follender v. Maxim, 845 N.Y.S.2d 484, 44 A.D.3d 1227, 2007 WL 3101953 (N.Y.A.D., Oct. 25, 2007). Follender sued Berton Maxim and his wife for “wrongful and/or cutting down/taking of timber” from the purchased property. The Maxims, doing business as Prime Hardwood, had entered into a contract with Follender’s adjacent landowners, Valentine Riedman and Christl Riedman, to log their property. In the process, they inadvertently trespassed on Follender’s property and removed trees. Follender alleged negligence and conversion, with a request for treble damages, against the Riedmans and Maxim. They named his wife as a defendant, too, calling her “Jane Doe Maxim.”

Follender dropped the Riedmans from the suit, but the Maxims failed to answer or defend. After learning that Maxim’s wife’s name was Eileen Tine, Follender filed an amended verified complaint against them both individually and doing business as Prime Hardwood.

hook140806Again, they failed to answer or appear. After Follender got a default judgment against them, the court ordered an inquest. When the Maxims again failed to appear, Follender offered extensive proof which included, among other things, the contract between the Riedmans and Tine (signing on behalf of Prime Hardwood), an affidavit from Valentine Riedman which explained that when Maxim came to log his property, he was given a survey map which showed the Riedmans’ boundary line. Valentine Riedman was unaware that Maxim would remove timber outside of those boundaries. Michael Greason, a professional forester, testified that 439 commercial species trees were cut from Follender’s property, 386 of which had a value of $54,506.68. The Court trebled the damages, and assessed damages of $120,000 against Maxim but never mentioned his wife, Tine. Follender appealed, contending that the failure to include Tine in the order awarding damages was a mistake.

Held: The judgment was modified, and the order of the trial court awarding treble damages of $120,000 against logger Maxim for negligence and conversion was rewritten to include the logger’s wife in the award of damages. She had signed the contract between Maxim’s business and the landowner’s adjoining property owners, in connection with which the logger had trespassed onto Follender’s property and from which he unlawfully removed trees.

Generally, appellate courts may correct any mistake, defect, or irregularity in a judgment, provided that the correction does not affect a substantial right of a party.

– Tom Root
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