Case of the Day – Thursday, June 22, 2017


More today from the annals of good neighboring. Out in Washington State, where some mighty big trees grow, the Herrings shared a boundary tree with their next-door neighbors, Jose and Blanca Pelayo.

What do we know about boundary trees, trees that grow with part of the base in each of two or more properties? First and most important, states generally hold that the trees are owned by all of the property owners as a tenancy in common. For the purpose of tree ownership, “tenancy in common” is a fancy way of saying that no one owner may do anything to the tree without the permission of all of the owners.

In 2011, the Herrings trimmed some of the branches from the boundary tree, branches that were overhanging their property. They did not ask permission of the Pelayos before they did so.

That, of course, was so wrong. But rather than suing the Herrings – the Pelayos may have considered their response restrained on this point – Jose and Blanca decided to go tit for tat. They called their own arborist to look at the tree. He told them the tree seemed unbalanced and dangerous with the branches on the Herring side removed. He suggested a few options, including cutting all of the remaining branches off. Amazingly, the Pelayos thought that sounded like a good idea.

Just as had the Herrings, the Pelayos did not discuss their plans with the neighbors. After the arborist left what was essentially a very dead telephone pole standing on the boundary line, the Herrings (with no sense of irony) sued the Pelayos for trespass to trees, asking for treble damages under state law for wrongful cutting. The trial court found the Pelayos liable, awarding $10,475 to the Herrings.

On appeal, the Pelayos argued that they could not have possibly trespassed in cutting the tree, because they had never stepped off their own property when the butchered the tree, and anyway, under the Massachusetts Rule, they had every right to trim branches that were overhanging the property. They also argued they could not be liable for treble damages, because the trial court had not made a finding that the cutting was willful.

The appeals court made short work of the Pelayos’ arguments. Yes, the court said, you can trespass on timber without necessarily trespassing on the underlying land (we guess that’s virtual trespassing). No, the Massachusetts Rule does not let you cut overhanging branches from a boundary tree in which you have an ownership interest. And no, the trial court does not have to make a willfulness finding unless you have argued that the cutting was casual and involuntary. No one contended the cutting had not been willful.

There is a certain irony that the Herrings had done exactly what the Pelayos had done, except for merely mauling the tree rather than killing it. But the Pelayos apparently figured they could get even simply by replicating the Herrings’ bad conduct. The law does not work that way.

Yeah, something like this… only worse.

Herring v. Pelayo, Case No. 48786-1-II (Ct. App. Washington, May 2, 2017). The Herrings and Pelayos are neighbors who share a common property line. In early December 2011, the Herrings hired a tree trimmer to remove some branches from a tree located on the common property line. The Herrings did not discuss their plan to remove branches from the tree with the Pelayos. The Pelayos thought the trimming done by the Herrings unbalanced the tree, constituting a danger to their home. So four weeks later, the Pelayos’ own tree trimmer removed all of the remaining branches, without first discussing their plan with the Herrings. The tree obligingly died.

The Herrings sued the Pelayos, claiming timber trespass in violation of RCW 64.12.030 or RCW 4.24.630. At trial, Jose Pelayo admitted he knew the tree was on the common property line, he told his tree trimmer to remove all of the remaining branches from the tree, he did not discuss his plan with the Herrings, the tree was alive prior to the removal of the remaining branches, and he figured that removing the remaining branches would kill the tree.

The trial court found the Pelayos liable for timber trespass under RCW 64.12.030, and awarded treble damages.

The Pelayos appealed.

Held: The Pelayos committed timber trespass. Although the Pelayos argued the trial court never specifically found their conduct to be willful, the court noted that Jose’s testimony “was tantamount to a concession that his conduct in removing the branches was willful, and there was no other evidence presented at trial from which the trial court could infer that this conduct was casual or involuntary. Therefore, no specific finding as to willfulness was required to conclude that the Pelayos were liable under RCW 64.12.030.”

The Pelayos also argued they couldn’t be liable for trespass “because they were lawfully authorized to remove branches from the boundary tree that were overhanging their property.” The Court agreed a landowner has the authority to “engage in self-help and trim the branches and roots of a neighbor’s tree that encroach onto his or her property.” A landowner does not, however, have the right to cut down an encroaching tree.

The Court held that the right of self-help, derived from the Massachusetts Rule, does not apply where the landowner using self-help owns an interest in the tree, because the portions of the tree overhanging his or her property cannot be said to be “encroaching.” You simply cannot encroach upon yourself.

What’s more, the Court said, as tenants in common, the Pelayos and Herrings were each entitled to use, maintain, and possess the boundary tree, but not in a manner that “interfered with the coequal rights of the other cotenants.” Unlike a landowner engaging in self-help to trim branches overhanging his or her property from a tree situated entirely on the property of another, a cotenant to a boundary tree has a duty not to destroy the common property and thereby interfere with the rights of the other cotenants.

The Court said, “We discern no meaningful distinction between cutting down a tree and trimming a tree in a manner intended to kill the tree.”

The Pelayos argued that because they cut the tree branches while standing on their property, they had probable cause to believe that they owned the land where such conduct took place. Their argument was based on the mistaken belief that the trebling provisions of RCW 64.12.030 don’t apply when the defendant’s conduct resulting in the destruction of a tree occurs while the defendant is on his or her own property. The Court held that even if the conduct resulting in the tree’s death occurred solely on the Pelayos’ own property, the trial court would not be required to conclude that mitigating circumstances applied to reduce the damages award. Instead, when determining whether mitigating circumstances applied, the relevant inquiry for the trial court was whether the Pelayos proved that their trespass on the common property tree was casual or involuntary.

At trial, the Pelayos did not claim, let alone prove, that the trespass upon the tree was casual or involuntary. Thus, they were liable for treble damages.

– Tom Root


And Now The News …


Nashville, Tennessee, WKRN-TV, June 21, 2017: Tree cut down in Metro-Nashville park; Some blame developer

A tree was cut down in a Metro park, and fingers are being pointed at a local developer. News 2 received the tip Monday that a large, sugar maple tree had been chopped down in Cleveland Park. The rumor was that a developer had cut down the tree so he could have unobstructed views of the Nashville skyline from a house he was building. We reached out to the Metro Parks department, which said it first became aware of the incident on Monday. However, Metro’s horticulturalist Randall Lantz received an email warning them that a tree might be cut down days before the incident took place…

San Francisco, California, June 21, 2017: Illegally cut down a San Francisco tree and you may end up in jail

Cut down a tree without permission and go to jail. Sounds a little dramatic, but that’s the warning in San Francisco. San Francisco resident Gene Kelly is one of dozens of Noe Valley neighbors who were shocked to see the building owners at 610 Clipper Street illegally chop down an old Cypress tree in front of his apartment complex. The owners may be on the hook for $8,000, the assessed value of the Cypress tree they cut down. The city is saying pay the bill or spend time behind bars. Kelly said, “It was a very prestigious and majestic tree…”

Hartford, Connecticut, WTIC-TV, June 21, 2017: Oak trees depleted by gypsy moth caterpillars, who are moving on to maple trees and witch hazel

Connecticut’s Department of Energy and Environmental Protection said gypsy moth caterpillars continue to hit oaks hard in parts of eastern and central Connecticut. As their larvae deplete the oaks, they are moving on to feed on other tree species, such as maples and witch hazel, according to DEEP. DEEP said the maimaiga fungus has been reported in several towns, with initial reports of some beginning levels of die-off of the gypsy moths. The major die-off expected from the fungus has not yet been observed, but it is anticipated shortly. The cool weather earlier in the spring appears to have slowed the growth rate of the caterpillars and so delayed their moving in large numbers from the crowns of the trees down into the soil, where they will encounter the fungal spores…

San Francisco, California, Chronicle, June 21, 2017: Trees retard, don’t spread, wildfire

In September 2013, the U.S. Forest Service published an opinion that said logging eucalyptus trees would increase the risk of fire in the East Bay hills. Last year, the Federal Emergency Management Agency rescinded its $5.7 million funding to UC Berkeley and the city of Oakland for logging eucalyptus, Monterey pine and Acacia trees in our hills after a pro-eucalyptus group sued. Yet the proponents of cutting down non-native trees like blue gum eucalyptus who claim they present an extreme fire hazard continue to try to implement logging projects in the Bay Area by joining local taxpayer-funded, vegetation management groups. What they advocate will make our East Bay hills more fire prone, waste taxpayers dollars to implement fire mitigation plans that would turn our hills into the same grass-and-brush terrain that was swept over the last few years by wildland fires, such as the Rocky, Valley and Butte fires. All trees, no matter their species, reduce the risk of fire because their leaves collect moisture from the air and drip on the ground beneath. They provide shade that slow the sun’s heat from drying this moisture. They act as windbreaks, which slow down wind-whipped fire…

Gulfport, Mississippi, Sun-Herald, June 21, 2017: Saturated ground makes trees vulnerable to being uprooted

If you have a container garden planted in soil, the roots are going to suffer from lack of drainage. But so will large trees in yards, when the ground gets too saturated for their roots to hold on. With the constant bombardment of rain over days, trees and some gardens will have difficulty draining enough before the next wave of rain comes in. Large trees can suffer root compromise and topple if the ground around them is so wet the roots can’t keep it stable. “Whenever the ground gets saturated like this, it’s like sitting in a bowl of water. The roots don’t have anything to hold onto,” said Ben Kahlmus, with Fulgham’s Tree Preservation and Consultants. “The trees become top-heavy and the slightest wind can push them over.” Kahlmus and Kevin Hall, Pascagoula’s landscape and beautification expert, talked with the Sun Herald about what the Coast is facing over the next few days…

San Francisco, California, KNTV, June 20, 2017: Tree branches under risk of falling amid sweltering temperatures across Bay Area

Scorching temperatures across the Bay Area are not only sparking fires and power outages, but also affecting trees. It doesn’t take a big branch to fall and hurt someone or damage your property, and hot weather brings more limbs down than winter storms. A certified arborist told NBC Bay Area that when it’s really hot, the trees pull in as much water as they can and then can’t release it quickly enough through their leaves. The branches get heavy and that’s when they snap. The phenomenon is called evapotranspiration. Michael Young of Urban Tree Managements says that homeowners can take down branches that they can reach from the ground, but anything over 20 feet up should be left to an expert…

Wilkes-Barre, Pennsylvania, Citizens Voice, June 20, 2017: Logger dies after being struck by tree

An 84-year-old Pennsylvania logger has been killed after part of a 30-inch diameter tree he was cutting fell onto him. The Luzerne County coroner says William Burger died of trauma injuries about 2 p.m. Monday. Sugarloaf Township Fire Chief Duane Hildebrand says Burger was an experienced logger who was working with his son when the tree split and part of it fell on him. The Citizens Voice reported that emergency workers had to hike to Burger and his son were after driving as far as they could on a mud-clogged logging road thanks to Monday’s storms

Orange County, New York, Chronicle, June 20, 2017: New York keeps up fight against fungus that kills oak trees

New York officials say they are taking aggressive steps to fight the spread of a devastating fungus that kills oak trees. Oak wilt has been found on trees in different parts of the state since it was first spotted in 2008 in the Albany area. The state Department of Environmental Conservation says it is dedicating four additional staffers to monitor oak wilt this summer. The agency will conduct aerial surveys in July and September over the lower Hudson Valley and the Southern Tier. There is no known treatment for oak wilt fungus other than to remove the infected trees…

Montgomery, Pennsylvania, News, June 20, 2017: Trees — a surprising answer to surging stormwater

A few months back, I was interviewing Kay Sykora, Roxborough resident and former executive director of the Manayunk Development Corp. and founder of the MDC’s Destination Schuylkill River project. We were talking about Roxborough Green, an effort in which she has been actively engaged, a community-led project to plant trees and gardens in Roxborough neighborhoods, especially in the front yards of neighbors needing advice and volunteer labor. And she noted something interesting, that Roxborough residents had long been hesitant to plant trees — their leaves fall in the autumn and their flowers drop in the spring, causing us to have to rake and bag them, and branches can fall and hit things. So Roxborough is, surprisingly, not quite as green as Manayunk below us or Chestnut Hill above us. But I’ve been meditating on another long-standing Roxborough issue, the scourge of stormwater pouring down our streets, especially in neighborhoods like Upper Roxborough where there are precious few storm drains — water flows down the edges of these streets like streams, sometimes, especially during the increasingly frequent summer thunderstorms, like whitewater. As the drama of the proposed development of the 7519 Ridge Ave. site plays out — too much density on too small a plot of land (sound familiar?) — stormwater is one of the concerns highlighted by neighbors and residents opposed to this site’s over-development. Are you, like so many in Roxborough, concerned about stormwater? If you are, here is one easy solution: Plant trees. Seriously…

New York City, The Bronx Times, June 20, 2017: Tree planting left homeowner in the pits

Residents of a Spencer Estate home are looking for compensation from the city after an attempt to plant a sidewalk tree led to thousands of dollars in home damages. The owner at 1630 Research Avenue said they knew not to dig beneath the sidewalk in front of the multi-family home, due to the fact that the underground sewer line ran close to the surface. So when a NYC Parks-hired contractor began breaking up the concrete to install a tree bed, Abiezer Moto, who lives in the second floor apartment, said he filed a 311 complaint, but said it fell on deaf ears. “The [contractor] wrote a letter back, saying the city had researched [the location] thoroughly, and it was a good place for a tree,” he said. Before a sidewalk tree is planted several city agencies and utility companies survey the site for the location of underground lines. On Thursday, May 25, just a few days after the work had been completed, the ground floor tenant started getting a sewage backup into their apartment from the toilet…

Dallas, Texas, News, June 19, 2017: Former McKinney council member takes city hall tree fight to court

A former McKinney City Council member is now in a fight against the very City Hall he used to represent, and it’s all over trees. McKinney Entertainment LLC, which is managed by former council member Don Day, is suing the city’s board of adjustment over a $44,800 fine the company was issued for cutting down 18 trees on property it owns at College Street and El Dorado Parkway. The trees were cut down as part of a trash and underbrush removal project at the site, but their removal apparently violated McKinney’s tree preservation ordinance. “No quality trees were removed and the ordinance was followed,” Day said Monday. “MELLC followed the ordinances exactly as it is published on the city website…”

Honolulu, Hawaii, Star-Advertiser, June 18, 2017: Team works to map disease killing thousands of ohia trees

A field crew is working to track the rapid ohia death fungal disease that has killed thousands of trees in Hawaii. The Hawaii Tribune-Herald reports the team visited the Hilo Forest Reserve Wednesday as a high priority portion of their mapping efforts. They say mapping is the first step toward understanding and eliminating rapid ohia death. The report says the disease has stretched over about 75,000 acres of endemic ohia trees. According to researchers, the disease has killed more than 200,000 ohia trees in the past two years. Once infected, the fungus spread through the trees’ vascular systems and cuts off access to nutrients and water. Researchers say symptoms can take months to manifest, and can kill trees in a matter of weeks once they do…

Austin, Texas, KXAN-TV, June 19, 2017: Hutto residents upset about Oncor’s tree removal

The big trees behind her backyard is the reason Jolene James moved to the new Carmel Creek Subdivision in Hutto a few months ago. The two trees behind James’ backyard were there Monday morning and when she came home for her lunch break, they were gone. “It’s extremely frustrating and it sickens me,” said James. James says Oncor started removing trees last week. The utility company is clearing a path to get all the greenery away from one of their highest-powered transmission lines. “In order to make sure this line stays safe and the people around it stay safe, is to make sure everything underneath this line which is actually within the Oncor easement, is clear,” said Kris Spears, Oncor spokesman. “We need to make sure that in the event of severe weather, there’s no potential of trees or any type of vegetation interfering with this line…”

Denver, Colorado, KMGH-TV, June 19, 2017: Arborist electrocuted in Littleton tree, power shut off to recover body

Firefighters and Xcel workers are working together to help recover the body of an arborist who died after being electrocuted in a Littleton tree. Littleton Fire Rescue officials said they responded to reports of an electrocution at 6897 South Prince Circle just after 10 a.m. Monday morning. They announced at 11 a.m. an arborist who was working in a tree died from contact with an electrical current. Rescuers said they put out a call for help to find a bucket truck, and soon after, other arborists came to help. “It looked like he had all the safety gear on, he had a helmet and was tied to the tree appropriately,” Jackie Erwin, the Littleton Fire Rescue emergency manager, said…

Fox News, June 16, 2017: Grand theft avocado: 3 arrested in $300K California theft

That’s a lot of Guacamole dip. Three California men are behind bars on grand theft avocado charges. They are accused of selling $300,000 worth of avocados without authorization from a ripening facility where they worked, according to the Ventura County Sheriff’s Department. Joseph Valenzuela, 38, Carlos Chavez, 28, and Rahim Leblanc, 30, are being held on $250,000 bail each. They were arrested Wednesday. The sheriff’s guac cops began investigating the men in May after getting a tip that they were conducting unauthorized cash sales of avocados from a Mission Produce plant in the city of Oxnard. “Everybody loves avocados,” Ventura County Sgt. John Franchi told the LA Times, adding, “We take these kinds of thefts seriously.” Officials began investigating the suspects in May, when the company’s president, Steve Barnard, was tipped off to potential thefts via customers and surveillance footage, the Times reported…

Laguna Beach, California, Indy, June 19, 2017: City to cut historic pepper tree

At its Tuesday meeting, the Laguna Beach City Council voted to cut the 135-year old tree to a “tall stump” to prevent it from falling and to plant an additional pepper tree at a cost of $40,000 on the grounds to fill the space. “I tell you this breaks my heart, and I am sure everybody in this room feels the same way,” said consulting landscape architect Bob Borthwick. In an emotional discussion over the tree’s fate, the council listened to evidence from city staff detailing the tree’s instability. Public works officials told the council that sonic tomography testing, or testing done to measure solid mass with sound waves, shows the tree is now 90% hollow. Arborists brought in to asses the tree’s health recommended it be removed to prevent it from spontaneously toppling and injuring someone…

Los Angeles, California, Times, June 18, 2017: The case of the leaning pine tree: A natural history mystery unfolds on the Central Coast

Like a lot of trees on the Cal Poly campus here, the Cook pine was tall and beautiful but not especially remarkable. At least not at first glance. But as Matt Ritter and I got a little closer, it became obvious that there was something odd about this tree. It was bent. It actually bowed slightly toward the south. Not only that, but Ritter, a Cal Poly biology professor, has recently discovered that all Cook pines, which are native to New Caledonia, a blip in the South Pacific, lean toward the equator no matter where they grow. “This has never before been seen in plants,” said Ritter, 42, a botanist who specializes in trees. But once he started looking at Cook pines, he saw them leaning everywhere, he said. “And I thought, you know, that’s weird. No trees lean to the south. It doesn’t make sense…”

Sault St. Marie, Ontario, Soo Today, June 18, 2017: Firefighters rescue 12-year-old girl by prying apart a tree

A 12-year-old girl was rescued Saturday after her leg became wedged in a tree and local firefighters used the jaws of life to get her out. On Saturday afternoon Erica Groot was playing with her sister Alicia and some neighbourhood friends in the backyard of Greenwood Public School said she and her mother Piper Lee Frech. The kids call the game ‘Grounder’— one person is ‘it’ and with their eyes closed and arms out they try to tag another player and guess their name. In the game people can hide off the ground on objects like playground equipment but if the person who’s ‘it’ says ‘grounder’ they become ‘it’. Groot said she was hiding up a tree to get away from her sister, who was getting close, and as she descended to evade her she slipped and, under the force of her falling body, the lower part of her leg got stuck at the base of the tree where two sections of trunk met in a V-shape…

Lafayette, Louisiana, KLFY-TV, June 15, 2017: LUS suspends tree trimming following customer complaints; town hall scheduled

Hurricane season is upon us and that means Lafayette Utilities System is out pruning branches of trees that may cause problems to power lines during severe weather. But residents in the Oaklawn subdivision aren’t too happy about their trees being trimmed “There has been pruning in the past, but never has it been so radical as of this year”, says Herman Mhire, Oaklawn Subdivision. Mhire has lived in Oaklawn Subdivision for more than 25 years. One of his concerns with the tree pruning is the trees not being symmetrical and being blown over during storms. “Sometimes up to 50% of the tree is removed. Usually, it’s on the street side. Where does that leave all the weight? It’s on the side of the tree facing the house…”

Dallas, Texas, News, June 15, 2017: As Gov. Abbott seeks to chop down Dallas’ ‘socialistic’ tree laws, a fear that ‘nature will be gone’

Just two weeks ago the southwest corner of Marvin D. Love Freeway and Ledbetter Drive, a few minutes’ drive south of downtown, was a long, bucolic stretch of lush green — trees that, from the road, looked like a forest that stretched into forever but actually backed up to a row of homes along tranquil Dove Creek Way.  Today, it’s nothing but an expanse of shattered stumps, the result of illegal clear-cutting… Though the item wasn’t on their agenda, City Council nevertheless spent about half an hour fretting over the damage done without a permit and a plan to replace them — and the destruction looming over the horizon if Gov. Greg Abbott gets his way in the coming special session and state lawmakers vote to outlaw more than 50 Texas cities’ laws protecting trees on private property…

Sarnia, Michigan, Journal, June 15, 2017: City seeks feedback on bylaw to regulate privately owned trees

Sarnia is preparing to bring in a tree bylaw, and residents have several ways to weigh in. Input for the controversial proposal is being gathered by city staff through public consultations, focus groups and the municipal planning website. Though Lambton County has a bylaw that covers trees in bushlots of one hectare or larger, nothing currently exists to protect individual trees or smaller lots within the city. Some residents are eager for City Hall to bring in rules to save trees from being destroyed on private property and to help expand the urban tree canopy. Others say telling homeowners what they can do with their own trees is an infringement on private property rights…

Denver, Colorado, Post, June 15, 2017: That big tree in your yard? Should it stay or should it go?

Planted in a new back yard or a revamped landscape, staked and wrapped against the elements, young trees embody optimism: some day, this twig will be big enough to cast shade. Then, just like children, they grow. You wake up to discover your baby is a 6-foot-tall high-school sophomore and your scrawny tree tops your roofline. Just like children, the bigger trees are, the more expensive their problems become. Removing a mature shade tree is a full-day job with a price tag in the thousands and permanent consequences. “It changes your landscape forever,” said Keith Timm, an arborist and landscape consultant with Swingle Lawn, Tree and Landscape Care…

Tallahassee, Florida, Democrat, June 15, 2017: Is my tree safe? Check for danger signs

In Florida, the first day of June is greeted with trepidation, as it is the first day of hurricane season. As this date approaches, seasoned veterans of hurricanes past re-stock their emergency storm supplies and worry about the trees around their houses. While Tallahassee residents appreciate the city’s abundant canopy coverage, they remember the wreckage caused by tree debris during Hurricane Hermine. Tree damage is inevitable with any major storm event, but preventative tree care can minimize this. The first step in prevention is to identify and correct an issue before it can cause a failure. These are some of the items to look for in the trees around your house…

Lafayette, Louisiana, Advertiser, June 14, 2017: Tree trimming suspended after residents complain

Residents in some Lafayette neighborhoods are so upset over the way their trees are being trimmed by a utility system contractor that a special town hall meeting is set to discuss the situation. A tree trimming service contracted by Lafayette Utilities System, has been —aggressively, some say — cutting tree branches and limbs away from electrical lines. Residents, especially those with very old, large oak trees, took to social media over the past week upset over the way their trees were cut. “The trimming that I’m seeing this year is more drastic, certainly in Oaklawn,” resident Herman Mhire told The Daily Advertiser. In some cases, he said, as much as half the leaves and foliage of live oak trees is being removed…

Cincinnati, Ohio, Enquirer, June 14, 2017: Tips on selecting a tree specialist

An arborist is an individual trained in tree care. An arborist may provide services like tree removal, pruning, fertilization, pest management, and risk assessment. In order to be a certified arborist, an individual must achieve a level of knowledge about tree care through experience and by passing a comprehensive examination developed by the nation’s leading experts on tree care. In order to retain certification, an arborist must continue one’s education in tree care and thus, are more likely to be up to date on best management practices and techniques. A certified arborist may be a member of a professional association like the International Society of Arboriculture (ISA), the American Society of Consulting Arborists (ASCA), and the Tree Care Industry Association (TCIA). An arborist should only perform industry-accepted practices. Improper practices like tree topping, excessive removal of live wood, and the use of climbing spikes on trees which are not being removed violate industry standards. When selecting an arborist ask and verify proof of insurance and request and check references of clients who were provided similar services by the arborist…

Phoenix, Arizona, KTVK-TV, June 14, 2017: Vandals chop down trees, leave path of destruction at community’s park

A trail of destruction was left behind at a community park in west Phoenix after someone decided to play lumberjack and chop down several trees. It happened near 103rd Avenue and Lower Buckeye Road in the Country Place master planned community sometime between Sunday night and Monday morning. “Four of the trees in this area, they were mature Ash trees were actually chopped down,” said Mary Ehlers, block watch co-leader. That’s not all. Ehlers says irrigation lines were dug up and they found broken glass beer bottles mixed in with the sand in the playground area. “I mean it’s just pure destruction and just spitefulness. It’s hard for me to comprehend,” Ehlers said…

United Green Alliance, June 14, 2017: How to spike trees

(Editor’s Note: We do not condone this type of conduct, but you ought to know what information is out there for the use of people who appoint themselves Guardians of the Galaxy, because they know more than you or I do)

Firstly, I must begin this article with a disclaimer to ensure that I do not find myself on a NSA watchlist. I do not condone the use of tree spiking unless it is absolutely necessary in defending the integrity of a forest. These techniques must be used very sparingly, or else one is bound to face legal troubles, or even jail time. Depending on where you are located, getting caught spiking trees can land you up to three years in the pen. This means that I would normally discourage this technique. However, when one is desperate, one must do everything within one’s power to protect the Earth. This may or may not involve the deliberate insertion of spikes into prospective trees to deter loggers from cutting that area. Secondly, I must say that there is one reason that we environmental activists spike trees, and one reason only. That reason is to deter foresters from logging old-growth trees. The reason that foresters would want to stray away from spiked trees would be because it is very dangerous and possibly damaging to both sawmills and chainsaws to attempt to cut into a tree that has a six inch metal spike hidden inside of it. This being said, a wise company would be unwilling to begin logging on a forest that they are very aware is spiked, Therefore, it is for the benefit of the trees that we spike them. It is for the protection of the natural world from the industrial empire that we, as environmentalists must learn this useful skill…

Ecology Letters, June 14, 2017: From competition to facilitation: how tree species respond to neighbourhood diversity

Studies on tree communities have demonstrated that species diversity can enhance forest productivity, but the driving mechanisms at the local neighbourhood level remain poorly understood. Here, we use data from a large-scale biodiversity experiment with 24 subtropical tree species to show that neighbourhood tree species richness generally promotes individual tree productivity. We found that the underlying mechanisms depend on a focal tree’s functional traits: For species with a conservative resource-use strategy diversity effects were brought about by facilitation, and for species with acquisitive traits by competitive reduction. Moreover, positive diversity effects were strongest under low competition intensity (quantified as the total basal area of neighbours) for acquisitive species, and under high competition intensity for conservative species. Our findings demonstrate that net biodiversity effects in tree communities can vary over small spatial scales, emphasising the need to consider variation in local neighbourhood interactions to better understand effects at the community level…


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Case of the Day – Wednesday, June 21, 2017


Even Fred Rogers could have problems like this.

Follow along, because there will be a quiz: The Does live next to the Roes for years and years. The Does move, and the Smiths move in. The Roes move and the Joneses move in. The Smiths sell to the Johnsons, and the Joneses sell to the Browns.

And all this time, there was a nice old hedgerow between the two houses, and the neighbors jointly and lovingly maintained it. A couple of stately elms stood on the Roes’ side of the hedge, and they raked under them, had them trimmed, and mulched around their bases.

After 30 or 40 years passed, the Johnsons sold to Alice Avarice. The first thing she did was have the property surveyed. Lo and behold, the hedgerow was not the boundary between the properties. Instead, the line was 10 yards to the other side, meaning that the two elm trees had never belong to the Roes and their successors, but always to the Does and their successors.

Something just doesn’t seem, well, seem very fair about the whole thing. “The law’s the law,” Alice cackled as she erected the chain-link fence along the new property line.

Of course it is, which is the whole point of this blog. But exactly what does the law say about Alice’s claim?

Welcome, Alice, to the doctrine of “acquiescence.” The Does acquiesced to the Roes caring for everything on the other side of the hedgerow, and the Roes acquiesced to doing so. The subsequent owners did as well, for 50-plus years, until Alice came along and riled everyone up. Under the doctrine of acquiescence, the boundary line became what the parties had always considered it to be.

Where’s Fred Rogers when you need him?

Guthrie v. Jones, 780 N.W.2d 248 (Court of Appeals, Iowa, 2010). The Guthries’ property abutted land owned by Jones. A line of shrubs and trees ran along one side of the adjacent properties, and the Guthries had always believed that the tree line marked the property boundary.

It didn’t. Instead, a 2007 survey by neighbor Jones showed the property line to be 10 feet to the west of the line of shrubs and trees.

The Guthries had gotten used to thinking they had 10 feet more room in the side yard that they really did, so they brought suit, arguing that under Chapter 650 of the Iowa Code, the shrub and tree line – not the surveyed line – should establish the actual boundary. The Guthries argued that the Joneses had agreed to the property line being marked by the trees, an argument known as “acquiescence.”

The trial court found that the boundary line between the two properties was established by the survey, because the Guthries did not prove the Joneses’ acquiescence.

Held: The appellate court affirmed the trial court. Iowa law governing boundaries by acquiescence holds that “a boundary line may be established by a showing that the two adjoining landowners or their predecessors in title have recognized and acquiesced in a boundary line for a period of ten years.” The owners’ recognition may be evidenced by conduct or by claims asserted by the parties, but it must be by both parties. The acquiescence by both parties is a condition precedent for proving the existence of a boundary by acquiescence.

The party seeking to establish a boundary line that deviates from the surveyed boundary line must prove acquiescence by clear evidence. This is a higher standard that the usual civil standard of proof, which is “preponderance of the evidence” (which means, essentially, by a majority of the evidence).

In this case, the appellate court agreed with the trial court that Jones did not consent to the shrub and tree boundary line for the required 10-year period. The Guthries purchased their lot in 1979. At that time, the seller placed metal pins in the ground to mark the boundary line. Subsequently, the Guthries used the pins as a guide for mowing. Jones did not object to use of the land “close to, if not over the surveyed boundary line.” However, the court reasoned that this failure to object constituted nothing more than a neighborly gesture, and fell far short of showing Mr. Jones’ consent to a new boundary line.

At trial, Mr. Jones asserted that he maintained the area in question since 1989, and did not recognize the shrub and tree line as the true boundary. The Guthries didn’t have sufficient evidence to disprove this. Thus, the Guthries failed to prove their claim for acquiescence.

– Tom Root


Case of the Day – June 20, 2017


Tomorrow’s the longest day of the year. Well, not really, given that the day remains pegged at 24 hours all year long. In fact, the longest day of the year (by about 21 seconds) is right around April 1.

Enough of this brief history of time. We all know what the longest day of the year means. Where we live, it amounts to 15 hours 18 minutes of daylight tomorrow – for one day only – before the sun begins its long march south to winter darkness.

But for tomorrow, at least, the daylight will linger, and we’ll be barbequing in our back yards, swimming at the pool, or playing golf well into the evening. Meanwhile, the kids… well, the kids will be everywhere.

Kids being everywhere is the point of today’s case. They are not great respecters of property lines, they tend toward recklessness, and they’re doggone fast. It’s a prescription for disaster. What duties do property owners owe the little ankle-biters?

The Cotes were nice neighbors. They let little Chuckie Herrington cut across their yard, because there was no sidewalk. They did not extend their invitation to the kid to ride his bike in their driveway, but he was a kid, and we know how kids are. He did anyway. Racing down the drive into the street, the reckless rugrat ran into the side of the Cotes’ car, being driven by Jennifer Cotes at the time.

Ouch. The boy was hurt, and his parents sued the Cotes for not trimming their shrubs so that Chuckie could see where he was going.

Herrington v. Cote, 2007 WL 926622 (Court of Appeals, Texas, Mar. 29, 2007). Charles Herrington, a minor child, was riding his bicycle on the Cotes’ property. As he rode out of the driveway and into the street, he hit the side of a car driven by Jennifer Morgan and was badly injured. His mother sued the Cotes, claiming that shrubs planted along their driveway from the garage to the edge of the street created a dangerous condition that obstructed her son’s ability to see oncoming traffic. The Cotes asked the trial court for summary judgment, claiming they did not owe a duty to Charles, did not breach any duty, or proximately cause the youth’s injuries. The trial court granted summary judgment in favor of the Cotes.

Held: The summary judgment was upheld. Herrington argued that her son Charles should have been considered a licensee on the Cotes’ property, and thus that the Cotes had a duty to warn of, or to make safe, the dangerous condition that they were aware that they had created by planting shrubs along their driveway. But the Court of Appeals held that in a premises liability case, the duty owed is determined by the status of the complaining party at the time and place of the injury.

A licensee is a person who is privileged to enter or to remain on land only by virtue of the possessor’s consent, thus entering with permission of the landowner, but doing so for his own convenience or on business for someone other than the owner. The duty owed a licensee is not to injure him willfully, wantonly, or through gross negligence and, in cases in which the owner or occupier has actual knowledge of a dangerous condition unknown to the licensee, to warn of or to make safe the dangerous condition. The issue, the Court said, was whether Herrington presented summary judgment proof sufficient to raise a fact issue as to whether the Cotes knew of a dangerous condition that Charles did not know of, but failed to warn him of it or to make the condition safe. A dangerous condition is one that creates a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

Here, Herrington was obligated to provide some evidence showing that it was reasonably foreseeable that the Cotes’ driveway would be used by a child riding a bicycle, so that the shrubs on the side of their driveway would become a dangerous condition. Herrington showed the Cotes had given Charles permission to walk across their yard because of the absence of sidewalks, but the Court ruled that this evidence did not suggest that the Cotes should have reasonably foreseen that Charles would ride his bicycle in their driveway.

Herrington argued that the Cotes should have known that planting the shrubs created an unreasonable risk of danger because an owner or occupant of premises abutting a highway has a duty to exercise reasonable care not to jeopardize or to endanger the safety of persons using the highway as a means of passage or travel, but the Court observed that Charles was not a traveler on the highway and the Cotes did not know or have reason to know that the shrubs created a dangerous condition for a child riding a bicycle on their driveway.

Thus, Herrington had failed to show that the Cotes owed a duty to her son, and no premises liability could attach.

– Tom Root



Case of the Day – Monday, June 19, 2017


bikecrash141015Young Michael Rivera and his buddies were riding around, when one of them decided to cut off the sidewalk onto what could charitably be called a “beaten path” through some woods in the large Glen Oaks Village residential cooperative. Young Rivera was said to be an experienced rider, but this young BMX’er was no match for the big hole in the trail. He fell and was hurt. Then, of course, he sued.

That’s when the extreme lawyering commenced. The co-op argued that it was protected by the New York recreational user statute, because bicycling was one of the activities specifically mentioned in the law, and the trial was suitable as a bike trail. Not so, young Rivera’s mouthpiece claimed. The trail was just a path in the middle of a large residential community not designed for cycling.

The trial court, perhaps sympathetic to the young man’s crash found New York’s recreational user statute didn’t apply. But in an impressive piece of circular reasoning, the Appellate Division said that the trail was suitable for bicycling chiefly because Rivera and his buds were biking on it and other people had, too.

This reminds us somewhat of our mothers asking us whether we’d jump off a cliff just because our friends did, too. Anyway, shaky reasoning or not, the Appellate Division did justice to the intent of the recreational use statute: to protect landowners from liability when they make unimproved land available for the use of, as the Court put it, “recreationists.” The dictionary says it’s a good word, and the outcome in this case is probably a good result.

cliff141015Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.3d 817, 839 N.Y.S.2d 183, 2007 N.Y. Slip Op. 05718 (N.Y.A.D., 2007). Rivera and two of his friends went bicycling on a dirt trail located in a two-acre wooded area, which was part of a large residential cooperative community. The trail was 500 feet long and 10 feet wide, and “bumpy.” After traveling about 30 to 40 feet on the trail, Rivera came upon a 2 x 3’ hole in the ground. Rivera was unable to avoid the hole, and his front wheel went into the hole, causing him to be thrown over the bicycle’s handlebars and into the hole. He only saw the hole “maybe a second” before he fell into it. As a result of his fall, Rivera was injured. His family sued the owner of Glen Oaks Village Owners, Inc., the residential cooperative community, to recover damages. The trial court denied Glen Oaks’ motion for summary judgment, made on the basis that the New York recreational use statute applied and that the youth had assumed the risk of injury. Glen Oaks appealed.

Held: The case was reversed. The appellate court found that New York’s General Obligations Law §9-103, commonly known as the recreational use statute, applied to this case. The Court said that the sole purpose of the statute was to induce property owners – who might otherwise be reluctant to do so for fear of liability – to permit persons to come on their property to pursue specified activities. In return for opening up their lands for public use, property owners are provided immunity from liability. The statute applies whenever a user engaged in one of activities identified in statute, and he or she is recreating on land suitable for that activity. The requirement that property be physically conducive to a particular recreational activity — for purposes of determining whether a landowner is protected by the statute against claims of ordinary negligence — is satisfied when the property is the type which is not only physically conducive to a particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation.

bikecrashb141015The Court ruled that this so-called suitability test was a question of statutory interpretation and, therefore, a question of law for the court. The Court said that a substantial indicator that the property is physically conducive to a particular recreational activity is whether recreationists have used the property for that activity in the past. Such past use by participants in the sport manifests the fact that the property is physically conducive to it. Here, the recreational use statute applied to Rivera’s bicycle riding on dirt trail in large residential cooperative community because bicycling was an activity included in statute, and the trail was physically conducive to bicycling. Rivera’s use of the dirt trail — as well as the use by his friends — and the physical characteristics of the trial, established that it was physically conducive for bicycling.

The Court rejected Rivera’s claim that the fact that the trail was in the middle of a large private residential cooperative community rendered it unsuitable for bicycling. It held instead that the recreational use statute should be applied liberally to public and private land, to rural or urban property, whether developed or undeveloped.

– Tom Root

Case of the Day – Friday, June 16, 2017


Our first brush with the law of trespass came at the age of 5 or so, when we learned from a Bear of Little Brain that a sign in the Hundred-Acre Wood that said, “Trespassers Will-“ was really shorthand for “Trespassers William,” who had once lived there. Of course, as we now know, “Trespassers William” is an indie rock band. Growing up is no fun.

Since the time we were compelled to grow up, we have seen countless “no trespassing” signs on fencerows, on gates, freestanding by driveways and tacked to front doors. The signs always sort of troubled us. As everyone knows, a trespass is an unauthorized entry upon land of another even if no damage is done or injury is slight. To us, a sign prohibiting trespassing implied that absent the sign, trespassing was fine.

If I cut across my neighbor’s yard to get to the new Dunkin’ Donuts before all the crullers are gone, I have trespassed whether there’s a sign or not, or whether I buy him some crullers or not. If he posts a sign along my increasingly well-worn path, does it gain him anything?

The law, as always, provides us with an answer: maybe.

Jimmy Bob Christensen, sadly enough, came up on the wrong side of that “maybe.” Being a man who liked his privacy, Jimmy Bob posted “No Trespassing” signs at the far end of the 40-foot gravel driveway leading to his rather dilapidated mobile home. He liked being alone, for reasons that will become clear.

One day, a couple of local police officers knocked on the door of Jimmy Bob’s neighbor, asking why she had bought out the local Kroger of pseudoephedrine. She said it was for Jimmy Bob, who was busy cooking it into methamphetamine. The police headed down Jimmy Bob’s driveway, past the “No Trespassing” signs, and knocked on his door.

Apparently, manufacturing meth is an odiferous business, and the smell was distinctive. Although Jimmy Bob told them to vamoose and despite lacking a search warrant, the cops entered the mobile home and they found meth and guns.

Generally, a driveway, a front sidewalk, even a door knocker or front doorbell, is enough to give any person with a legitimate reason your implied consent to walk up to the door and seek admission. If it’s someone you don’t want – an encyclopedia salesman or religious proselytizer, perhaps – you can withdraw the implied consent by telling them to leave.

Sometimes, posting a sufficient warning is enough to withdraw your implied consent ahead of time. That’s the purpose of a “No Trespassing” sign. And that was surely what Jimmy Bob intended.

If the police had heeded the sign, they never would have smelled the cooking meth. Jimmy Bob’s lawyer argued that they had trespassed, and that therefore the search was illegal (and nothing they found could be used as evidence).

The issue got to the Tennessee Supreme Court, which held that in this case, “no” really did not mean “no.”

State v. Christensen, Case No. W2014-00931-SC-R11-CD (Supreme Court of Tennessee, April 7, 2017): In August 2013, two law enforcement officers drove down James Christensen’s unobstructed driveway, past a “No Trespassing” sign, parked near his residence, and walked up to the front porch. After Christensen opened his door, the officers smelled the odor of methamphetamine being manufactured. They asked Christensen for consent to enter his residence, but he refused and closed the door. They forced the door, and inside the residence found an active methamphetamine lab and several guns.

Prior to trial, the Defendant filed a motion to suppress evidence, claiming that the evidence had been seized as the result of an unlawful search because he had posted “No Trespassing” signs near his driveway. He asserted that the officers’ entry onto his property without a warrant violated the Constitution. After a hearing, the trial court denied the motion.

Held: A “No Trespassing” sign, in and of itself, is not enough to withdraw the implied invitation to anyone with a legitimate purpose to walk up to the front door and knock. The Court said “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds. This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. . . “

Of course, the Court said, a homeowner may take actions to revoke or otherwise limit that invitation or license. The implicit license enjoyed by police and citizens alike to approach the front doors of homes may be limited or rescinded by clear demonstrations by the homeowners that are “unambiguous and obvious to the casual visitor.”

Unfortunately for Mr. Christensen, a “No Trespassing” sign is not such an “unambiguous and obvious” revocation. The Court said, “in light of the strong social presumption that a visitor to a residential neighborhood can enter the front porch curtilage to knock, we doubt a reasonable, lawful visitor would believe that ‘No Trespassing’ eliminated that presumption in every instance. Every reasonable person knows – even without seeing a “No Trespassing” sign – that one cannot trespass on private property. But that knowledge coexists with knowledge of the equally well-established principle that one may generally enter the curtilage to knock. A reasonable observer could also understand a “No Trespassing” sign as restating the “no-trespassing” principle without thinking it had any bearing on the implicit license to enter the curtilage for social reasons. In a residential context, the intention of the homeowner who posts signs, without more, seems inadequate to revoke the license.”

Of course, the right kind of sign could do the trick, the Court said. “For example, a “No Trespassing” sign posted on a fence encircling a property imparts a different message than the same sign standing alone. And a closed or locked gate, especially in the residential context, imparts more information to the reasonable observer… But nothing aside from their numerosity makes the “No Trespassing” signs in this case particularly distinctive. And numerosity alone does not eliminate the ambiguity noted above. No special facts – like a fence or other physical obstacle-clarified to the reasonable visitor that these signs revoked the license.”

The Court said, “the plain meaning of ‘No Trespassing’ is that it prohibits what people ordinarily think of as trespassing, and does not alter the character of an entry that one would not otherwise think to be a trespass, such as the implied license to approach the homeowner’s door to knock and talk.”

– Tom Root


Case of the Day – Thursday, June 15, 2017


bearontom141013We saw a notice at church yesterday reminding the kids that it was time to start signing up for summer camp, now only a scant month away. We remember camp fondly – dirt, mosquitoes, busy days leaving us hungry enough to eat a bear. If we could find a bear.

Of course, finding a bear might have been a tall order in the wilds of eastern Ohio several decades ago. There are a lot more roaming the woods these days. But even if we had found an ursus americanus, locating our prey would have only been half the task. It is a profound truth of life that sometimes you eat the bear, and sometimes the bear eats you. You might ask poor Tim Hilston (although your question will have to wait until the next life) …

Mr. Hilston understood the bipolar nature of life, or maybe just the literal truth of the expression. Back about the turn of the century (this century), Mr. Hilston was field-dressing an elk carcass when he became a carcass himself at the hands — the paws, maybe — of a couple of grizzly bears.

Kind of a gory way to go … but the story doesn’t end there. After all, this is America. Nothing happens anymore, even in the wild, without someone being blamed for it, and this was no exception. The late Mr. Hilston’s estate promptly sued the State of Montana for letting the bears kill poor Mr. Hilston. The State defended under the Montana Recreational Use Act, saying that wild and hungry bears were a “condition of the land” for which it was not responsible. Mr. Hilston’s survivors argued that the State’s allegedly lousy bear management was a problem having nothing to do with the land.

Popular media attribute the "sometimes you eat the bear ..." line to the 1998 movie, "The Big Lebowski ..."

Popular media attribute the “sometimes you eat the bear …” line to the 1998 movie, “The Big Lebowski …”

The Court said ferae naturae — judges love to use Latin words, these meaning “wild animals” — were as much a condition of the land as a tree or a rock or a stump. Mr. Hilston’s tragic demise was not the State’s fault.

Estate of Hilston ex rel. Hilston v. State, 337 Mont. 302, 160 P.3d 507 (S.Ct. Mont., 2007). Mr. Hilston was hunting elk in the Blackfoot-Clearwater Wildlife Management Area “BCW”). Mr. Hilston shot an elk, and while he was field dressing the carcass, he was attacked and killed by grizzly bears. State and federal wildlife investigators captured the two grizzly bears responsible for the attack, a 12-year-old female and one cub, and killed them.

The BCW is located in the Blackfoot Valley about 45 miles east of Missoula on state and private land, and is open to public access free of charge. Mr. Hilston’s estate sued the State of Montana for negligent grizzly management. The State filed a motion for summary judgment, and the trial court held it was entitled to judgment as a matter of law under the Recreational Use Immunity Act. Hilston appealed.

... but "Preacher Roe," who pitched for 16 years in the major leagues until 1954, said it first.

… but “Preacher Roe,” who pitched for 16 years in the major leagues in the 40s and 50s, said it first.

Held: Grizzly bears are a “condition of the property” under the Recreational Use Immunity Act (§70-16-302, MCA). Hilston contended that the Act applied only to defects in property, and that that grizzly bear management in the BCW is not a “condition of the property” for which the Act grants immunity. The Court disagreed.

The Act provides that a landowner otherwise qualified under the terms of the Recreational Use Immunity Act owes no duty of care to a user “with respect to the condition of the property, except that the landowner is liable to the person for any injury to person or property for an act or omission that constitutes willful or wanton misconduct …” In this case, there was no dispute that the late Mr. Hilston was using state-owned land for recreational purposes, that his use of the property was gratuitous, and the alleged mismanagement by the State was not willful or wanton. The only question was whether the statute provides immunity for an attack by an indigenous wild animal on the property, and, derivatively, whether wild animals are a “condition of the property” for which a landowner owes no duty of care.

The rule of law is a landowner cannot be held liable for the acts of indigenous wild animals occurring on his or her property unless the landowner has actually reduced the wild animals to possession or control, or introduced a non-indigenous animal into the area. Grizzly bears are wild animals existing upon the property, and, as such, are a “condition of the property” for purposes of Montana’s Recreational Use Immunity Act.

Thus, the State of Montana owed no duty to protect Mr. Hilston from the grizzly bear attack that led to his unfortunate death, and the District Court correctly granted summary judgment for the State.

– Tom Root