Case of the Day – Monday, November 30, 2020


treelawn150217No issue of property ownership may be more misunderstood than the question of who owns the tree lawn, sometimes called the boulevard lawn, that strip of land between your front sidewalk and the street.

The confusion was illustrated recently by our reader Joel, who wanted the city to remove a dead tree on his tree lawn. He had always just understood that the tree lawn wasn’t his, and that he couldn’t cut or trim the trees growing there. We straightened him out, but a lot of uncertainty remains.

In today’s case, homeowners Gene and Joan Foote knew the tree lawn was theirs, but their failure to appreciate the limits of their rights led to a suit against the city. It seems that the city was improving the street, and its plan included the removal of four trees from the Foote’s tree lawn. The homeowners demanded compensation, arguing that the city’s removal of the beautiful trees amounts to a “taking” of property under the 5th Amendment, a “taking” for which they must be paid. A trial court agreed with them.

The Minnesota Supreme Court reversed the decision. It explained that the Footes, like any owner, was entitled to use all of his or her property right to the centerline of the street. However, the property was owned subject to a public easement (that’s why a deed always says “subject to all legal highways, easements and other restrictions of record”). In other words, the owner’s use of the land had to yield to the public easement of the highway.

Here, the city was merely using more of its highway right-of-way by expanding the street. As long as it remained within the bounds of its easement — which usually extends beyond pavement for a distance — the city could remove trees and other of the owner’s property to the extent needed for the public’s enjoyment of the easement. The removal of the trees let the public enjoy the easement, and no money was due the property owner because of it.

Some road-widening projects can get quite close to buildings. Be sure to check on the width of the highway easement before you build.

Some road-widening projects can get quite close to buildings. Be sure to check on the width of the highway easement before you build.

How wide is the right-of-way? It depends on the state you live in and size of the street. If you have questions, you could check with your local government’s engineering department. Or your lawyer.

Lawyers love to answer questions. Usually for a fee.

Foote v. City of Crosby, 306 N.W.2d 883 (Sup.Ct. Minn. 1981). Gene and Joan Foote owned a home in the City of Crosby. The platted right-of-way of the street in front of the home, Cross Avenue, was 80 feet wide and extended to approximately 6 inches from the front steps of the house.

The center 32 feet of the right-of-way was paved. Next to the pavement is a 10-foot wide grassy boulevard, and then a 4-foot sidewalk. On the boulevard were four large healthy elm trees which had been maintained by the Footes. Although the trees had cracked and heaved the sidewalk, there had been no complaints that the trees impeded foot travel, nor had the trees interfered with motorized travel.

The city began an extensive municipal improvement project prompted by the need for storm sewers, including a new lateral line under Cross Avenue. To provide proper grade for drainage, Cross Avenue would be torn up entirely, a plan which called for removal of the four trees, because root cutting necessary to accommodate them to the change in grade and repositioning of the curb and sidewalk would likely kill them. The Footes sued for an injunction, arguing the city couldn’t cut the trees without paying them compensation. The district court granted the injunction, and the city appealed.

sign150217Held: The injunction was dissolved. The Court observed that the owner of property abutting a right-of-way for public travel had the right to use his one half of roadway in any manner compatible with use by public of its easement. Any encroachment on the public right-of-way must be clearly obstruction to public easement before municipality may remove it without an adjudication that it was in fact an obstruction.

The Footes were not entitled to compensation for removal of trees within public right-of-way, the Court ruled, although they had a property right in the trees, because the taking was pursuant to a project which was a proper exercise of police power and encompassed a public purpose, and removal of trees was necessary to implementation of the project. After all, the Court said, the removal of the boulevard trees within the platted right-of-way was necessary to the street improvement project, and if not removed, the trees would clearly obstruct the public’s easement of travel.

– Tom Root


And Now The News …

New York City, Post, November 28, 2020: NYC Christmas tree supplier claims Home Depot, Whole Foods selling counterfeit firs

The fir is flying in federal court! Evergreen East, a Wisconsin-based Christmas tree cooperative that bills itself as “New York’s finest Christmas tree sellers,” alleges Home Depot, Whole Foods and their supplier conspired last year to scam Big Apple tree buyers by labeling cheaper Canadian Balsam firs as pricey Fraser firs — the Cadillac of conifers, according to court papers. Frasers are famous for the two-tone color of their needles, dark green on top with a silver underside. The Manhattan federal court complaint alleges that during the 2019 Christmas season, the retailers “sold potentially hundreds of thousands of Balsam Fir trees which they intentionally mislabeled and falsely advertised as Fraser Fir trees.” The Frasers are sold on Manhattan sidewalks by Evergreen’s mom-and-pop shop clients for upwards of $179 for a 6-footer and $699 for a 12-footer. The fugazi firs being sold by the big retailers — which came from North Carolina-based supplier Bottomley Evergreen — start at just $80 for a 6-footer, said Evergreen East president Kevin Hammer, 64. He said the fictitious firs crippled the competition — and cheated unsuspecting tree shoppers. “I’ve been doing this for 47 years. We are not a pimple on Bottomley’s ass,” the Bensonhurst-bred Hammer raged to The Post. “We are a cooperative that has been selling trees retail exclusively in New York City since 1974…”

Little Rock, Arkansas, Democrat Gazette, November 29, 2020: Faulkner County woman named Outstanding Tree Farmer

Pamela Patton Jolly is the 2020 Outstanding Tree Farmer of Arkansas.
Jolly was recognized by the Arkansas Tree Farm Program, which is administered by the Arkansas Forestry Association, at the AFA annual meeting held virtually on Oct. 1. “The Outstanding Tree Farmer of the Year award was created to recognize private landowners who have done an exceptional job of forest management and actively promoting sustainable forestry,” said Jennifer Johnson, Arkansas Tree Farm Program administrator. “As the Arkansas program administrator, I not only get to work with such remarkable landowners but also get to know them and call them friends,” Johnson said. “Pam is an exemplary steward of her land. She is also a caring individual who helps others learn the benefits of sustainable forestry — she talks the talk and walks the walk when it comes to tree farms. “Pam is not the first woman to win this award, although it is rare,” Johnson added. Jolly’s 223-acre farm — the Patton Tree Farm — is 8 miles west of Danville in Yell County. Jolly said the acreage, which is described by the AFA as a forest, includes 139 acres of hardwoods, “mostly oak and hickory, and 40 acres of loblolly pine.” “I named the farm after my parents, the late James and Helen Patton of Wooster,” Jolly said. “My dad operated a 460-acre farm on Cadron Creek, and I always enjoyed going to the farm with him as I was growing up…”

Biotonomy, November 27, 2020: When Trees and Buildings Become Functionally Indistinguishable

The idea of having waste is just not natural. There is nothing one can point out in nature and say that is of no purpose. The concept of throwing something away, only exist in our minds. In reality – everything transforms, but nothing goes away. In the natural world, there is no waste, everything is a nutrient that is recycled and reused infinitely. Every tree on this planet is designed to reuse its leaves over and over again. When leaves fall on the ground, a community of organisms helps transform them into energy so that trees can absorb it back through their roots. This process also helps develop healthy soil that is conducive to other life. Nature does not rely on centralized waste management. Every ecosystem is designed to process their own “waste” locally. In the forest, the leaves are spread out equally on the ground by the wind and not piled up around one big tree. Waste becomes a big problem when it is piled up. It is time we fundamentally change our perspective regarding waste management. With decentralized & nature-based sewage solutions we can transform waste into energy for both our ecosystems and ourselves…

Bloomberg, November 24, 2020: Bill Gross’s Neighbor Says Pleas for Peace Fell on Deaf Ears

Billionaire Bill Gross gave his California oceanfront neighbor a choice: Drop the complaints about the glass sculpture in the “Bond King’s” yard or face the music. Tech entrepreneur Mark Towfiq told a judge in Santa Ana Monday that the threat filled him with dread, but he refused to cave in to what he called Gross’s extortion attempt. Gross, co-founder of Pacific Investment Management Co., and Towfiq began feuding after the billionaire installed a large net over the 22-foot-long piece of art by Dale Chihuly, which had been damaged. Towfiq filed a complaint with the City of Laguna Beach, and Gross responded by blasting music at all hours of the day. The two sued each other for harassment. In a case about lifestyles of the rich and famous in Orange County, Towfiq says the million-dollar piece of art might have been broken by a falling palm frond when Gross hosted a private Kenny Loggins concert in his cliffside backyard. Gross says the sculpture may have been damaged by a rock and the net was put up to protect it from the elements and vandals. Days after he filed the formal complaint, Towfiq testified he and his wife returned home about 11:30 p.m. on July 31 to rap music blaring from Gross’s home, followed by the theme songs from “Gilligan’s Island,” “Green Acres,” and “MASH.” Towfiq said he texted Gross’s girlfriend, asking for the music to be turned down, and got a response, apparently from Gross — “peace on all fronts or well just have nightly concerts big boy…”

Albany, New York, Times Union, November 26, 2020: Christmas tree farms open earlier, but with fewer bells and whistles

Black Friday is typically the famous grand-opening day for Christmas tree farms, but this year, in anticipation of families that are both eager for an outdoor outing and are hoping to avoid crowds, some opened early. The ones that didn’t, wish they had. “We’ve never seen this much interest this early,” said Garth Ellms, owner of Ellms Family Farm in Ballston Spa, about opening a week before Thanksgiving. “We probably could have sold a hundred-plus Christmas trees if we were open.” Don’t count on shopping at the gift shop, eating sweets, and sipping hot drinks when out getting a Christmas tree this year. Many farms, though not all, are closing indoor areas and selling less food in efforts to follow state COVID-19 safety guidelines. State Agriculture Commissioner Richard Ball encouraged New Yorkers to buy from one of the 750 local tree farms in upstate New York. The state ranks sixth in the U.S. for the number of acres dedicated to growing Christmas trees, according to the department. “It is more important this year than ever that New Yorkers support local farmers and businesses when doing their holiday shopping, whether they’re looking for a Christmas tree or a delicious addition to their holiday meal,” Ball said at an event at Goderie’s Tree Farm in Johnstown on Monday…

Eureka Alert, November 26, 2020: In temperate trees, climate-driven increase in carbon capture causes autumn leaves to fall sooner

For decades, scientists have expected that the shedding of leaves from temperate trees will get later and later under ongoing climate change. And early observations supported that idea, as warming caused leaves to stay on the trees later over recent decades, driving increased growing season length that could help to slow the rate of climate change. However, a large-scale study of European trees now suggests that this trend is beginning to change, and in fact, tree leaves may start to fall earlier as the productivity of those trees increases. The results build on growing evidence that plant growth is limited by the ability of tree tissues to use and store carbon. While changes in the growing-season lengths of temperate trees greatly affect global carbon balance, future growing-season trajectories remain highly uncertain because the environmental drivers of autumn leaf senescence are poorly understood. Autumn leaf-shedding at the end of the growing season in temperate regions is an adaptation to stressors, such as freezing temperatures. A common related assumption is that alleviating some of these stressors – as a warmer climate could – would allow leaves to persist longer to fix more atmospheric carbon by photosynthesis. However, the role of photosynthesis in governing the timing of leaf senescence has not been widely tested in trees. To do this, Deborah Zani and colleagues used long-term observations from dominant Central European tree species from 1948 to 2015, and experiments designed to modify carbon uptake by trees, to evaluate related impacts on senescence. Collectively, their data show that increased growing-season productivity in spring and summer due to elevated carbon dioxide, temperature, or light levels can lead to earlier – not later – leaf senescence. This is likely because roots and wood cease to use or store leaf-captured carbon at a point, making leaves costly to keep…

Richmond, Virginia, Times Dispatch, November 27, 2020: After a busy year, Richmond-area Christmas tree sellers brace themselves for a busy season

Christmas came to Strange’s around the same time it normally does, but customers were eager to see the holidays sooner. “We were getting phone calls in July, beginning of July, ‘When are you gonna have your trees up?'” said Heidi Oistad, the sales floor manager for Strange’s Florists, Greenhouse and Garden Centers in Short Pump. “The artificial ones. It was like, it’s July. It’s only July.” Ahead of Thanksgiving, the store was a holiday explosion with displays of artificial trees and a sea of pink, red and cream poinsettias that sprawl out as far as the eye can see in the greenhouse. Outside, Christmas trees in uniform rows reach toward string lights. The season’s all about a search for normalcy in a year that’s been turned upside down by the COVID-19 pandemic. Everyone’s happy to see decorations out, Oistad said. Assistant operations manager Jeremy Cochran called them a “happy distraction” for customers, with the holidays giving them something to plan for. Sneed’s Nursery in South Richmond started getting calls about Christmas offerings in November, which operations manager Jenny Rash said was early for them too. Everyone’s ready to start decorating a bit earlier, she said. “Just as a garden center, our sales are up so significantly over last year, because everyone’s stuck at home and wants to enjoy their space and I think that decorating for Christmas is just another way to bring joy into your life,” Rash said…

USA Today, November 24, 2020: ‘It’s working!’ Deer, bears and other critters like Utah’s first wildlife bridge — and the state has video to prove it.

The first wildlife bridge in Utah is working as intended. The Utah Division of Wildlife Resources has proof. A video shared by the department on Nov. 19 shows various animals — including deer, bears and bobcats — using the Parleys Canyon Wildlife Overpass, which spans Interstate 80 southeast of Salt Lake City. “It’s working!” the department captioned the video. The $5 million project “has been successful at helping wildlife safely migrate over busy Interstate 80 and helping motorists be much safer as well,” the DWR wrote. The nearly 350-foot-long bridge, which opened in December 2018, is the first of its kind in the state, according to the Utah Department of Transportation. The bridge’s construction came after 46 deer, 14 moose, and four elk were killed on that stretch of highway in 2016 and 2017 alone. UDOT spokesman John Gleason told the Salt Lake Tribune in 2019 that although the organization prefers to analyze data over 3-5 years, early results of the wildlife crossing were “encouraging…”


Case of the Day – Friday, November 27, 2020


There is a wonderful doctrine in the law – and the law is a place where we do not really expect to find anything wonderful – that is known as the rule of de minimis.

Mentioning de minimis gives me an excuse for another shout-out to my sainted Latin teacher from days of yore, Emily Bernges (who instilled in me a love of, if not fluency in, that grand Mother of Languages). But more to the point, the de minimis rule is a necessity: if it didn’t exist, we would have to invent it. Simply put, the rule of de minimis holds that some wrongs we suffer are so slight to be unworthy of recompense.

De minimis is the shortened form of “de minimis non curat lex,” which Emily would have told us means that “the law does not concern itself with trifles.” Queen Christina of Sweden, who occupied the throne in the mid 17th century – and who may have studied under Emily, too, for all we know – favored the more colorful adage, “aquila non captat muscas,” that is, “the eagle does not catch flies.”

We sometimes think too many plaintiffs want to sue over trifles. The plaintiffs in today’s case, the Bandys, sure did. The neighbors’ trees dropped sap and leaves on their property, and their roots clogged a sewer line. The Bandys did not find that dandy, and so they sued.

The court was aghast. A tree dropping leaves and sap! Who had ever heard of such a thing?

Besides everyone, that is. Trees drip sap and drop leaves and grow roots all the time. It’s just what trees do. Once the law starts making tree owners pay for that, there will be no end to the litigation.

The neighbor’s leaves fell in your yard? Here’s a rake. Deal with it.

Bandy v. Bosie (1985), 132 Ill. App. 3d 832, 477 N.E.2d 840. Edith and Chuck Bandy sued their neighbors, Jim and Becky Bosie, complaining that the Bosies’ maple and elm trees dropped sap and leaves on the Bandy’s property, and roots from the trees had damaged the Bosies’ sewer line, causing water to back up in their basement.

The Bosies moved for dismissal, arguing that the Bandys had no cause of action. The court agreed, and dismissed the complaint.

The Bandys appealed.

Held: The Bandy complaint failed to allege a nuisance. The court found the Bosies were entitled to grow trees on any or all of their land and their natural growth reasonably resulted in extension of roots and branches into adjoining property.

The Bandys argued first that the Bosies should be made to cut down the trees, because there was no adequate remedy at law, and the trees were a nuisance. Bosies rejoined that the trees did not constitute a nuisance and that, in any event, the Bandys were not entitled to equitable relief.

Illinois courts have previously held in Merriam v. McConnell (1961), 31 Ill. App. 2d 241, 175 N.E.2d 293, that equity could not be used to control or abate natural forces as if they were a nuisance. Illinois follows the Massachusetts Rule, and holds that an owner is entitled to grow trees on any or all of the land, and their natural growth reasonably will result in extension of roots and branches into adjoining property. The effects of nature such as the growth of tree roots cannot be held within boundaries, the risk of damage from roots on other lots is inherent in suburban living, and to allow such lawsuits as this one would create litigation over matters that should be worked out between the lot owners.

But in another Illinois decision,  Mahurin v. Lockhart (1979), 71 Ill. App. 3d 691, 390 N.E.2d 523, the plaintiff sued an adjoining lot owner for damages resulting from a dead limb falling from the defendant’s tree onto plaintiff’s property, injuring the plaintiff. The defendant contended she had no liability for damages occurring off of her land resulting from the existence of natural conditions on her land. The appellate court rejected that view, holding that defendant’s theory arose in an era when most land was heavily wooded and sparsely settled, and when the burden of inspecting those larger properties for natural defects would have been unreasonable. In a more modern urban setting, the court considered, the burden of inspecting for unsound trees which might injure persons off of the owners’ property to be reasonable.

Here, the complaint is silent as to when and how the trees gained life. That is one reason, the Court said, why the complaint failed to allege a nuisance.

In addition, the Court said, even if counts I and II had stated that defendant had planted the trees, the counts would still have failed to state a cause of action for injunctive relief. The Court said, “We do not consider trees that drop leaves on neighboring lands or trees that send out roots that migrate to neighboring lands and obstruct drainage to necessarily constitute a nuisance. We recognize that some decisions in other States are to the contrary. We agree with the Merriam court that, under the circumstances here, to permit the falling of leaves or the migration of the roots to give rise to injunctive relief would unduly promote litigation over relatively minor matters. Usually, the damage from the offending leaves would be minimal, and the accurate locating of the source of the offending roots would be difficult and expensive.”

– Tom Root


Case of the Day – Wednesday, November 25, 2020


lemonsup160302Lemon and Curington were neighbors. Things were neighborly when Curington planted a pair of poplar trees — fairly fast growing and tall things — near the property line.

Over the years, things became less so, as several legally significant events occurred. First, the trees got big. As they did, the trunks ended up crossing the boundary line so that the trees were growing on both Curington’s and Lemon’s land. Second, the root systems expanded and began putting the squeeze on Lemon’s foundation. Third, Lemon discovered that if he used self-help, trimming back the roots and topping off the trees, he would make them unstable, turning the poplars into topplers. So Lemon — who was completely soured on the trees by this point — sued Curington, asking that the trees be declared nuisances and that Curington be made to remove them.

Life had given Curington a Lemon, but he tried to make lemonade. He argued that the Massachusetts Rule gave Lemon no aid, and that he was limited to self-help. However, the court relied on the Idaho nuisance statute (noting in passing that the Massachusetts Rule didn’t really apply to a tree growing in both properties at once, a fascinating observation we wish it had explained a bit better), ruling that the trees were nuisances for having damaged Lemon’s foundation. It also seemed important to the Court that Lemon couldn’t trim the tree and roots himself without making the poplar a “danger” tree that was likely to fall.

founda160302This case is a gallimaufry of issues — the interplay of nuisance statutes with common law and the interplay of boundary trees with encroachment — as well a rather poorly-thought out dismissal of the Massachusetts Rule for reasons that were unnecessary. After all, the Massachusetts Rule was specific in its limitation to non-nuisance encroachment, twigs and leaves and that sort of thing. The Lemon decision, remarkably similar to the Hawaii Rule (but decided 14 years before the Hawaii Rule was adopted), is also quite similar in its fact pattern to Fancher v. Fagella, a 2007 Virginia Supreme Court decision. In fact, a real argument can be made that this Idaho case was entirely unnecessary in its treatment of the venerable Massachusetts Rule.  Michalson v. Nutting, in our view, is a “big tent” with enough room for all of the poplars, sweet gums and banyan trees that followed.

Lemon v. Curington, 78 Idaho 522, 306 P.2d 1091 (1957). Lemon and Curington owned adjoining land with a common boundary, on which two poplar trees had been planted over 50 years ago. The trees had grown to approximately four to five feet in diameter at the base, and the trunks and branches extended across the boundary line. The roots were surface feeders and, in one case, extended from the boundary line to and against the foundation of Lemon’s house, cracking the house’s foundation. pushing the wall of plaintiffs’ house inward.

lemondown160302If Lemon topped the trees and cut the roots extending onto his land, the trees are likely to fall over. Lemon sued, alleging the trees to be a nuisance, and asked authority to remove the offending trees.

The trial court authorized the destruction of the tree damaging the foundation, but held the other tree was healthy and mature, and thus not a nuisance. Curington appealed, arguing that the Massachusetts Rule limited Lemon’s remedies to self-help, that is, to lemon’s trimming the tree and roots himself.

Held: The tree is a nuisance, and the Court may order Curington to remove it. The Supreme Court held that the Massachusetts Rule was not dispositive where a nuisance had been shown to exist.

roots160302The Court said “[w]e think the condition here shown to exist constitutes a nuisance under the provisions of Idaho Code § 52-101.”  That statute defined a nuisance to be “[a]nything which is injurious to health … or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” Here, not only had the tree made a mess of Lemon’s foundation, but the evidence showed that if Lemon cut the roots and topped the tree, the whole thing was likely to fall over. The Court said that statute authorized an action by any person “whose property is injuriously affected or whose personal enjoyment is lessened by the maintaining of a nuisance to have it abated.”

Without explaining its reasoning very far, the Court also said that the fact the tree was a boundary tree, on the properties of both parties, made the Massachusetts Rule inapplicable. So while Lemon reserved the right of self-help, the courts were also available to him to abate the nuisance tree.

– Tom Root


Case of the Day – Tuesday, November 24, 2020


Oldsters with droopy pants - not pleasant to contemplate.

Oldsters with droopy pants – not pleasant to contemplate.

A county park had a contract with Green View — a nonprofit company that had the laudable goal of putting our shiftless senior citizens to work cleaning up parks — to maintain the grounds. This is a good thing. Otherwise, retirees with their pants drooping to show their underwear and their “tatts” and funny flat-brimmed baseball caps worn sideways on their heads, just hang around and ride their little electric carts up and down streets and… you know what trouble they can be.

Green View’s people were busy staying out of trouble when a tree branch broke off a tree and struck a park patron during a summer storm. Being aware that a branch certainly would never break off in the middle of a storm unless someone was negligent, the injured woman sued the county and, for good measure, went after the old people, too. She argued that the elderly working for Green Tree had a duty to inspect the park for branches that might fall off in storms, and they had been too preoccupied with talking about their regularity to carry out their obligations.

In depositions, the Green View people admitted that they had looked for dead trees, but they explained that the county employees were responsible for removal of hazards like that. At least one deponent might have even denounced the plaintiff as a “young whippersnapper.”

The young whippersnapper was, to use an obscure legal term, whippersnapped. The court ruled that neither Green View’s contract with the county nor the job descriptions for its workers included any duty to inspect the trees or warn of their dangers. The county employees — who were immune from suit (just in case you are wondering why the old folks at Green View were being picked on to begin with) — all agreed that it was the county’s duty to inspect trees and warn of dangers.

The injured plaintiff couldn’t find any duty that Green View or its senior-citizen workers owed her. Without the duty, there could be no negligence.

Senior citizens humor aside, it is this kind of litigation — and the legal fees Green View undoubtedly had to shoulder to defend an action for which there was no factual basis — that drives beneficial programs like this one (intended to provide meaningful work and activity for seniors) out of business. While an injury like the one the plaintiff suffered was lamentable, the reason branches fall in summer storms is fairly well understood.

Sometimes stuff happens, and suing anyone who happened to be nearby seldom makes it better.

stuff150213Rolfhus v. County of Wright, 2001 Minn. App. LEXIS 319, 2001 WL 290525 (Minn.App. 2001). Dawn Rolfhus was seriously injured at a Wright County park in 1997 after a tree branch broke and struck her head during a summer storm. She and her husband sued the county and respondent Green View, Inc., a non-profit organization that provides senior citizens with maintenance and custodial work at state and county parks. Green View had a contract with the county to maintain the park at which Rolfhus was injured.

The county park manager testified that the Green View employees, without discussion, undertook to remove the tree that had fallen on Ms. Rolfhus. Harold Johnson, a Green View employee, admitted to looking for dead trees in the park, but stated that it “isn’t our job to chop down trees or anything like that.” Another employee, Frank Duncan, conceded that he never saw any county employees in the park inspect trees, but that he “knew they did it.” The county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. The district court granted summary judgment to the county based on immunity, and to Green View based on a determination that Green View had no duty to inspect trees or warn park patrons of dangerous trees. Rolfhus appealed the grant of summary judgment to Green View.

brokenbranch150213Held: The grant of summary judgment was upheld. The elements of a negligence claim include a duty, a breach of that duty, proximate cause, and injury in fact. Even where no duty otherwise exists, a person who voluntarily assumes a duty may be liable for failing to exercise reasonable care in performing the duty. One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.

The Court ruled that neither the language of the contract between the county and Green View nor the pertinent job descriptions created a duty for Green View employees to inspect trees or warn of their dangers. Furthermore, the county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. There was no issue of fact remaining, and judgment was appropriately entered for Green View.

– Tom Root


Case of the Day – Monday, November 23, 2020


Kee Nee Moo Sha, Inc., had a tract of wooded land on a lake, next to a Bible camp owned by the Baptist Church. What could be wrong with that? No loud music, no dancing all hours of the night, no boozing or riotous living… right?

The minister in charge of the Bible camp knew where the boundaries between the Baptists’ and the company’s lands lay. But he had a problem. How could he build more cabins for the pittance that had appeared in his collection plate? The Lord turned seven small loaves and a few fishes into a feast for 4,000 people. But the preacher, a lesser mortal, couldn’t stretch what little he had into more lodging.

And verily, he began to covet his neighbor’s trees.

The minister had a logger cut down about a hundred of Kee Nee Moo Sha’s pine trees. Surely this was manna from heaven — free timber! Except it wasn’t free, as the Baptists soon found out.

Kee Nee Moo Sha reacted much like a modern, more restrained version of the angry vineyard owner.  It sued. The Baptists failed to heed the Lord’s admonition to make peace with the plaintiff before you get to court.

Too bad, too. The court found that the minister’s trespass was willful, and in fact, it appeared to be rather irked with the fact that – once on the witness stand – the man of the cloth wasn’t very familiar with the 9th Commandment, you know, the one about bearing false witness and all.

Kee Nee Moo Sha wanted the Baptists to pay for the enhanced value of the timber — that is, the value of the timber after being milled — and the court agreed that measure of damages is acceptable where the trespass is willful. But the court can’t guess at what that value might be, and where Kee Nee Moo Sha failed to introduce any evidence on the enhanced value, it missed its opportunity.

The Baptists introduced evidence of the stumpage value of the timber, that is, the value at the point it had been cut down, but before it was hauled and milled. Stumpage value is always lower, because the owner of the timber has to deliver it to the sawmill and pay for the milling before having a product to sell. Because the stumpage value was the best evidence of value in the record, the Baptists were charged for the lower figure.

The trial court assessed punitive damages against the church camp instead of the treble damages for wrongful cutting which statute permits. The Court of Appeals noted that this was entirely permissible, because sometimes trebling the damages just isn’t good enough to deter such conduct. Where the trespass is wanton but the damage only amounts to $100, $300 might just not get an errant preacher’s attention nearly so effectively as a whopping punitive award. The Court said that either trebling or punitive damages may be applied, at the trial court’s discretion.

covet150212And thus, the Baptists rendered unto Kee Nee Moo Sha …

Kee Nee Moo Sha, Inc., v. Baptist Missions of Minnesota-Plymouth Point Bible Camp, 1990 Minn. App. LEXIS 1305, 1990 WL 212222 (Minn.App. 1990). Kee Nee Moo Sha, Inc., is a family-owned corporation organized for the purpose of holding more than 100 acres of forested land near Hackensack, Minnesota, with a resort on the southern end of the property. The resort belongs to the Baptist Church.

In late 1976, in connection with the transfer of the Baptist’s church property to another church unit, a surveyor was hired to survey and mark the boundary between the Baptists’ land and the Kee Nee Moo Sha property. Shortly after the survey was completed, and while the brush was all cleared and orange flags marked the line, the surveyor walked the boundary line with one of the church’s pastors, pointing out in detail the location of the boundary.

About four years later, the pastor wanted to build more camp buildings as cheaply as possible. Looking for some do-it-yourself financing, he arranged for a local logger to cut about 100 pine trees in and near the main camp buildings. While most of the timber was cut on church property, 26 pines were cut on Kee Nee Moo Sha land. In addition, the pastor had the logger clear cut nearly 100 birch and aspen from the same area of the Kee Nee Moo Sha property, along with 1,600 cubic yards of sand which was used in a drain field near the Baptist building project. Kee Nee Moo Sha was unamused.

A lawsuit inevitably followed. The trial court granted Kee Nee Moo Sha damages for trespass and an injunction against further trespass by the Baptists. Unhappy with the paltry damages awarded, Kee Nee Moo Sha appealed, seeking higher measure of compensation, a more extensive permanent injunction, and costs, disbursements and attorney fees.

Held: The appellate court upheld the trial court decision.

The Court observed that there were several possible measures of damages which could be used when trespass to property involves the taking of timber. One of the oldest is the “enhanced value” of the timber after being sawed and transported to the place of sale or transfer, to be used when the trespass is willful. The presumption in trespass cases where timber is cut is that the trespass is willful, and the burden of proof falls to the trespasser to show otherwise.

Here, the trial court found it couldn’t use the “enhanced value” measure, because no evidence was introduced to permit the Court to determine the value of the processed lumber. Consequently, the trial court used the stumpage value presented by the Baptists to set compensatory damages, and awarded punitive damages in addition to arrive at a fair number. The trial court, passing up treble damages that were authorized but not required by statute, awarded punitive damages instead. The trial court found that “even an award of treble damages for that taking would not adequately punish [the Baptists] or compensate [Kee Nee Moo Sha] for the willful trespass which has occurred.”

The Court agreed that the trial judge’s approach was justifiable under Rector v. C.S. McCrossan, Inc., and the treble damage statute. It observed that Rector, while referring to various measures of damages, does not refer directly to punitive damages. Punitive damages may be awarded, however, when “the acts of the defendant show a willful indifference to the rights or safety of others.” The trial court found that the Baptists’ behavior was willful, and the evidence supported it.

ba150212Minnesota law provides that any award of punitive damages will be “measured by those factors which justly bear upon the purpose of punitive damages, including… the profitability of the misconduct to the defendant… the attitude and conduct of the defendant upon discovery of the misconduct… and the total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct, including compensatory and punitive damage awards.” In this case, the Court didn’t think much of the Baptists’ attitude. First, the defendant cut the timber and removed the sand in order to line its own pocket, that is, to obtain cheap building materials for the camp. Second, the pastor continued to deny any willful misconduct throughout the trial, a denial that flew in the face of proof to the contrary and his own admission that he had been shown a clearly marked boundary prior to these takings. The appellate court dryly called the jury’s awarding compensatory and punitive damages a “just” result.

Kee Nee Moo Sha argued for use of the “replacement value” measure of damages also authorized by Rector, but the Court noted that in instances where the cost of replacement is unreasonable or excessive in relation to the damage to the land itself, the trial court may, in its discretion, allow the jury to consider more than one measure of damages in order to permit flexibility and achieve a just and reasonable result.

– Tom Root