Author: TLRoot

Case of the Day – Wednesday, May 22, 2024

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ALL EYES ARE ON IOWA

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

We love the Iowa State Fair, but we’re still getting over the passing two years ago of Virginia Barksdale, Iowa’s Countess of Cookies, the matriarch of the famous Barksdale State Fair Cookie. But to the question of the day, or really four questions, not just one, posed in our reader’s letter. The first question: what about trees right on the boundary line? The second question: what about trees on our reader’s land, but with roots extending into the neighbor’s land? The third question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well? And last, if our reader has some rights here, can she get an injunction to stop the harm before it starts, or is her only option to collect money damages later?

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

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

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

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

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

So, to answer our reader’s first question, if the trees are boundary trees, an Iowa plaintiff has the right to get an injunction to save them.

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

It seems there is a lot of drama going on in Iowa, beyond whether the mass-produced Barksdale State Fair Cookies measure up to Virginia’s original.

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

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

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

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

Burkhart appealed.

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

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

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

– Tom Root

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Case of the Day – Tuesday, May 21, 2024

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SHORT AND SWEET

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

Alas, Virginia Scott is not one of our regular readers. Had she been back in 2010 (and yes, we were around then, when people were still surfing the Web with their Packard Bell 286s sporting 56K modems), she would have consulted a lawyer about the mess that trees belonging to her neighbor, Julie, were making in her yard. She would have told the lawyer that she wanted damages for the dropped leaves and twigs, and she wanted to be compensated for what she paid tree trimmers to cut the offending branches and roots back to her property line.

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

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

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

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

Virginia sued the Doc for the damages Julie’s trees caused her property and for the cost of trimming the branches back to the property line and digging up the intruding roots. Apparently, having spent so much on damage repair and tree trimming, Virginia decided to save money on a lawyer and represented herself.

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

This rule not seeming right to Virginia, she appealed.

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

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

– Thomas L. Root

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Case of the Day – Monday, May 20, 2024

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MOVING THE CHEESE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

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