Case of the Day – Thursday, September 29, 2022


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

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

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

But for keeping trees? We suspect the judge was an environmentalist on the weekend, because he mused that if landowners were strictly liable for their trees falling onto the highway, then the landowners would start cutting down trees willy-nilly, and the beautiful Virgin Islands would be denuded posthaste. The Court opined that “the community, both local and global, also has a compelling interest in the protection and preservation of the environment. The same concern and sensitivity that we are just beginning to bring to the massive problem of the destruction of the Amazon rainforest, for example, should also apply to the relatively minute and particular circumstances of this case. No reasonable gain would be derived from adopting a rule of strict liability here, particularly when weighed against the potential ecological and aesthetic implications of such a decision.”

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

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

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

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

The Court was unsure whether Al’s land was urban or rural, but it said that was irrelevant. Even if it had been urban, the Court said, the weakened condition of the tree was not apparent upon a visual inspection, “so that it matters not whether the area was urban or rural. Perhaps a core sampling of the tree would have disclosed the problem, but such an effort, particularly when weighed against the likely risk, is far too onerous a burden to place upon a landowner.”

Under the circumstances of this case, the Restatement simply does not impose strict liability, that is, liability without fault. While Restatement § 363(2) may apply a more specific standard of care to an urban landowner, the Court said, that standard is still “within a negligence realm.” Vic suggested the Court should “fashion a rule of strict liability” and thereby to pronounce a previously unexpressed public policy. The Court declined, holding that “Restatement § 363 is entirely consistent with sound public policy. “A landowner should have the duty to inspect for, discover and remedy patently hazardous natural conditions on his or her property which may cause harm to others outside the land,” the Court said. “But in this instance, the rotted condition of the tree was internal, not external, and therefore not discoverable upon reasonable inspection. To impose a rule of strict liability would be to declare, in effect, that any tree which is large enough to fall over the boundary of one’s land will subject its owner to liability in the event that a hidden weakness causes it to topple and cause damages off the land. Such a ruling, if widely disseminated, most likely would encourage prudent landowners to cut down large numbers of trees, thereby accelerating the already lamentable deforestation of the territory.”

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

– Tom Root


Case of the Day – Wednesday, September 28, 2022


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

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

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

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

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

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

Williams v. Almquist2007 Conn. Super. LEXIS 2841, 2007 WL 3380299 (Conn. Super., Oct. 30, 2007). Robert Bonynge bought a 150-acre tract of land at Lake Waramaug in 1898, which he later conveyed away in several parcels. Although some of the original tract was sold in the 1930s, and some of the heirs owned certain parcels outright, a 105-acre tract was eventually sold to Lee and Cynthia Vance by the Bonynge heirs in 2001. The negotiations for that sale were a difficult and emotional process, with the primary concern of the heirs to conserve the natural condition of the property. The Vances agreed to give some of the land and a conservation easement to the Weantinoge Heritage Land Trust. Also, they agreed a restriction on 8.9 acres of the property: “There shall be no construction or placing of any residential or commercial buildings upon this property provided that non-residential structures of less than 400 square feet may be constructed for recreational or other non-residential purposes and further provided that the property may be used for passive activities such as the installation of septic and water installations, the construction of tennis courts, swimming pools and the construction of facilities for other recreational uses.”

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

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

conservThe restrictive covenant did not fall under the third category either. Where the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor’s successor in title can enforce, or release, the covenant depends on whether the covenant was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant expressed therein, read in light of the circumstances attending the transaction and the object of the grant. The question of intent is determined pursuant to the broader principle that a right to enforce a restriction of this kind will not be inferred to be personal when it can fairly be construed to be appurtenant to the land. In that case, it will generally be construed to have been intended for the benefit of the land, since in most cases it could obviously have no other purpose. The benefit to the grantor is usually a benefit to him or her as an owner of the land, so if the adjoining land retained by the grantor is benefitted by the restriction, it will be presumed that it was so intended.

Here, three of the Bonynge heirs retained property near the 105-acre tract, but did not own property directly adjoining or overlooking the restricted tract. As such, the Court said, there was no presumption that the restriction was meant to benefit their land. The deed didn’t say as much: in fact, the deed didn’t indicate that the restriction was meant to benefit anyone at all. With no mention of beneficiaries in the deed and no testimony regarding the intent of the retaining landowners, the Court held, the restriction could not fall under the third category.

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

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

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

– Tom Root


Case of the Day – Tuesday, September 27, 2022


Cute ... but varmints

Cute … but varmints

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

She and her son spent July 4th one year at a Wyoming RV park. At one point that day, Pam walked through a field and saw a marmot hole. A few hours later, after dark, she tripped over the same hole she had seen earlier.

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

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

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

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

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

Pam appealed.

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

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

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

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

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

Mary didn’t create or aggravate the marmot hole that caused Pam Tessman’s injuries, nor did Mary act in any way that could have caused Pam to rely reasonably on a heightened expectation that she would be safe from marmot holes on Mary’s property. Thus, Pam collected nothing.

– Tom Root


And Now The News …

Newsweek, September 26, 2022: Giant Hickory Horned Devils Are Emerging From Trees in Southeastern States

The hickory horned devil is one of the largest caterpillars in the U.S., and they are starting to descend from trees en masse as they prepare to pupate. Images of an “impressive” hickory horned devil were shared by the Alabama Wildlife and Freshwater Fisheries Division after a member of the public found one in Jefferson County. The caterpillars are the larvae of the regal moth, Citheronia regalis, one of the country’s largest flying insects, with a wingspan of up to six inches, according to the Missouri Department of Conservation. The caterpillars can grow up to 5.5 inches long, and their appearance is truly bizarre. They are blue-green in color, with big orange spikes on their heads and black patches at the front of their heads. The species is found largely in deciduous forests in the southeastern United States where they feed on a variety of tree species including walnut, persimmon and, of course, hickory…

Greensboro, North Carolina, September 26, 2022: Experts urge people to cut trees back ahead of storm

Duke Energy said the leading cause of power outages in our state is due to fallen limbs or trees onto power lines. Experts said in order to prevent situations like this people should take action now. Limbs are being removed ahead of storms rolling through this weekend “Most of the time when a storm comes through what it’s going to do is it’s going to attack the weaker trees and the weaker limbs,” co-owner Dalton Dillon said. Every single day, Dillon Tree Service is out in the triad. Cutting down trees and limbs in order to prevent outages, damage and even injury. “We do quite a bit of storm work. Honestly, a lot of our work comes from people who may have seen a tree fall in their neighborhood or on their normal route to and from work and what it does is it worries them,” Dillon said. He said it is important to take precautions now, ahead of the winter months as well as Hurricane Ian making its way to the United States. “Due to its track it could bring that weather up through the Carolinas and we’ve seen this before…we’ve seen storms that don’t hit us directly that still cause a lot of damage, a lot of wind, and a lot of rain,” Jeff Brooks with Duke Energy said…

East Lansing, Michigan, Michigan State University. September 26, 2022: Leaf scorch or oak wilt: What’s plaguing my tree?

In recent weeks, Michigan State University Extension has received a number of questions from homeowners about trees with browning or scorching of leaves. For owners of oak trees, there is the added fear that the tree may have oak wilt, a disease that can quickly spread to decimate entire stands of mature oaks. In many cases, the problem was not oak wilt but leaf scorch, which involves the discoloration and death of leaf tissue beginning at the outer edge, and sometimes progressing inward toward the main veins of the leaf. Frequently, leaf scorch results from environmental factors. Factors can include drought stress, over-fertilization or lack of certain essential nutrients, like potassium or magnesium. Many areas in Michigan experienced mild to moderate drought this summer, which coupled with high temperatures creates the perfect environment for leaf scorch. Much of the water taken up by a tree exits through the leaves in a process called transpiration, which is important for cooling leaves on hot days. When transpiration cannot sufficiently cool a leaf, the leaf tissue may be directly damaged by high temperatures. This damage may be uniform throughout the tree canopy or localized to sections of the tree. Leaves exposed to direct sunlight near the top of the tree may show browning because the radiant heat of the sun can cause the temperature at the leaf surface to be many degrees higher than that of the surrounding air. Leaves near roads or other surfaces that reflect or absorb and radiate heat may also be affected…

Burlington, Vermont, WCAX-TV, September 26, 2022: How drought and inflation could affect your Christmas tree this holiday season

It’s the first day of fall which means the holiday season is quickly approaching. The pumpkins are already out at farm stands across the region. But when it comes to Christmas trees, dry conditions this summer have put a damper on things. The steady rain is a welcome sight to farmers across the region whose crops have suffered because of a lack of water, and that includes tree farmers. Three inches of rain in the last 36 hours is more than the Mt. Anthony Tree Farms in North Pownal saw all summer. Because of that, the young trees planted on the 16-acre plot did not fare as well as usual. Farm owner Jim Horst is also the executive director of the New Hampshire-Vermont Christmas Tree Association. “We have no rain this summer, and the trees that were planted in the spring were after some rain and they didn’t get it, so they struggled. I’ve lost probably 20 to 25% which doesn’t make me feel good,” Horst said. Vermont and New Hampshire make up only a fraction of the trees grown across the country. North Carolina and the Northwest are the major players in the industry. However, nationally, supply is also down. It takes about eight years for a tree to be ready for market and eight years ago, prices dropped, so farmers planted fewer trees. “There is going to be a tight supply of trees this year. I think people will be able to get a tree, I don’t think it is going to be a disaster but it is going to be a tight market,” Horst said…

London, UK, Guardian, September 23, 2022: ‘It’s a miracle’: Gran Abuelo in Chile could be world’s oldest living tree

In a secluded valley in southern Chile, a lone alerce tree stands above the canopy of an ancient forest. Green shoots sprout from the crevices in its thick, dark trunks, huddled like the pipes of a great cathedral organ, and water streams down its lichen-streaked bark on to the forest floor from bulbous knots in the wood. “It was like a waterfall of green, a great presence before me,” remembers the climate scientist Jonathan Barichivich, 41, of the first time he encountered the Gran Abuelo, or “great-grandfather”, tree as a child. Barichivich grew up in Alerce Costero national park, 500 miles (800km) south of the capital, Santiago. It is home to hundreds of alerces, Fitzroya cupressoides, slow-growing conifers native to the cold, wet valleys of the southern Andes…

San Francisco, California, Chronicle, September 25, 2022: Wine Country is reeling from ‘mass attacks’ on trees. Here’s what is going on

The loathed bark beetle has munched its way into the Wine Country hills. The beetle, which recently caused a massive die-off of conifers in the Sierra Nevada, is doing the same thing in Napa County and nearby areas — stirring grave concerns about fire risk and ecological turmoil. So worried is Napa County about its dying trees that officials recently declared an emergency. Lake County made a similar proclamation in May, and other counties — such as Mendocino and Sonoma — may also want to consider emergency declarations, according to Michael Jones, a forestry adviser with UC Cooperative Extension. “Fire and insects do not observe boundaries,” Jones said. Many trees have been killed by drought and wildfire. But those that escaped are significantly weakened — making them vulnerable to the bark beetle, which preys on conifers like ponderosa pines and Douglas firs. The problem is so significant that even some oak trees are being affected in Napa County, Jones said. “That’s how you know things are kind of really bad, when you see oaks succumb to drought stress,” he said…

Saranac Lake, New York, Adirondack Almanack, September 25, 2022: Tree Slime – Who You Gonna Call?

Cast members of the new Ghostbusters film aren’t the only ones getting slimed – trees sometimes get slathered in slime flux as well. Many kinds of trees are subject to sludge assaults, with elms, apples, oaks, maples, and walnuts being among the more vulnerable species. Tree-goo, unlike the Psychomagnotheric Slime in Ghostbusters, is basically harmless. In fact, it can be beneficial. Also known as bacterial wetwood, slime flux is pretty much what it sounds like: wet nastiness that oozes from a bark crack, V-shaped trunk union, or pruning wound like an eternal fountain of fetid foam. It is also perennial; once a tree has it, there’s no way to cure it. Sort of like herpes for trees, I guess. At its mid-season peak, slime flux can seem dire, and is often a source of concern for the homeowner. Although dramatic, slime flux is not even a disease, precisely. It can involve one or more of about a half-dozen different types of native soil bacteria, including Clostridium and Klebsiella. If these names ring a bell, it’s because a few species in those genera cause human illnesses like botulism, tetanus, pneumonia, and meningitis. Don’t worry – bacterial wetwood can’t make you sick any more than gardening or simply touching the ground can. For bacterial wetwood to get started, three conditions must be met. The key requirement is a stressed-out tree, which is most always a result of root damage…

Jamestown, North Dakota, Sun, September 24, 2022: Properly trimming trees prevents long branches, hazards

Properly trimming trees when they are smaller will help prevent a costly bill for major work in the future, according to Mike Lacher, owner of Artie’s #1 Tree Service. If trees don’t get properly trimmed while they are smaller, it will lead to longer and larger branches known as leaders that run horizontally off the tree, Lacher said. The leaders are prone to breaking from high winds, he said. “All the weight is way out there and it’s not up in a V,” he said, referring to a large leader branch that he was trimming recently. He said tree branches will grow toward the sunlight. He said if the lower limbs don’t get trimmed off the tree, they will grow wide because the branches above them are shading them out. “So they need to go to the light so they keep going horizontally and downward because they are shaded out from above,” he said. “The horizontal low branches are always going to grow down.” He said a tree can be trained when it is younger and maturing to grow upward instead of outward by taking the lower branches off the tree. If the lower branches are taken off, it will help the tree grow taller because the roots will force the nutrients into other branches, prominent vertical growth…

San Francisco, California, SFGate, September 22, 2022: Why so many trees are dying in Lake Tahoe

There’s a spot on Highway 89, driving southbound down the West Shore, where the road opens up to a gorgeous view of the lake and a forested ridgeline. That’s where I noticed it first — the sheer number of burnt orange trees punctuating the forest green landscape. At first, I didn’t think much of the dead and dying trees. Such is the way of the forest. But as the summer progressed, the orange-hued needles seemed to spread from tree to tree. My eyes were not deceiving me. White fir and red fir trees are dying at a fast clip in the Lake Tahoe Basin, the U.S. Forest Service confirmed. Rita Mustatia, forest silviculturist for the Lake Tahoe Basin Management Unit, said the trend is reaching “higher levels than we’ve seen in the past,” and it’s most noticeable on the forested slopes at higher elevations near Fallen Leaf Lake and around North Lake Tahoe…

London, UK, Guardian September 21, 2022: Forbidden fruit trees: Canadian national park urges locals to remove bear-attracting bushes

The waning days of summer and a bounty of ripe fruit have pitted hungry black bears against park rangers in a fight over a Canadian mountain town’s fruit trees. Residents living in the Jasper national park townsite have been warned that fruit trees on their properties are luring in black bears and need to be removed as soon as possible. “The continuous presence of bears in the Jasper townsite, often in residential yards just metres from people, is an unacceptable safety risk for visitors and residents,” Parks Canada said in a recent statement. “Bears living in constant proximity to people and residences have an increased likelihood of gaining access to human food or garbage, and of accidental aggressive physical encounters…”

New York City, The Wall Street Journal, September 21, 2022: Inconsistent Fall Foliage Leaves Travelers Guessing on Finding

Booking a trip to New England to catch the vibrant reds and golds of peak fall foliage could be tough this season. This year, drought conditions across much of the country, followed by recent rains in the Northeast, have complicated timing for trips, scientists and veteran leaf peepers say. Invasive species drawn to trees made vulnerable by drought are also damaging leaves in some areas. In Maine, some trees are turning earlier than usual, while prior drought conditions in New York are pointing to a shorter foliage season, according to state departments of conservation. Leaf peeping is big business in the U.S., especially in the Northeast. About one-fifth of Maine’s visitation and 25% of annual trips to New Hampshire’s White Mountains occur in the fall, according to tourism officials in those destinations. The maples, birches and other trees in the region create a color show or reds, oranges and golds not seen in other parts of the country. Because of demand, many travelers book months in advance for travel that often takes them to small towns with limited lodging. The unpredictability is something businesses in these destinations have navigated for years, leading them to plan a slew of harvest festivals and other events in town to make sure visitors are entertained. In Vermont’s Mad River Valley, the Hyde Away Inn & Restaurant has seen the season extend compared with prior years, owner and general manager Ana Dan says…

Fast Company, September 23, 2022: This tree owns itself—and is fighting for its own survival

On a few square feet of land on the campus of the Community College of Allegheny County in Pittsburgh, a black gum tree has been planted that could change the world. In a complicated arrangement, the tree is a legally autonomous entity that owns the land on which it’s planted. As it establishes its roots, care for the tree will be provided by the Carnegie Museum of Art. The tree is an attempt to rewrite the rules of conservation, on behalf of the entirety of the nonhuman natural world. The tree and its unconventional legal framework are a project of Terra0, an artist group based in Germany that is exploring the use of novel technologies and legal frameworks to protect ecosystems through established human laws on personhood. Commissioned and planted as part of the 58th Carnegie International art exhibition, opening September 24, the tree will attempt to become a legal precedent, showing how nonhuman species can gain the autonomy and protection of personhood…, September 21, 2022: Trees can’t outrun climate change. Should humans give them a lift?

One tree at a time, David Saville has made it his life’s work to bring back West Virginia’s red spruce forests—and maybe help preserve the species hundreds of miles farther north while he’s at it. Last year, Saville spent weeks hiking up peaks like Panther Knob, Dolly Sods and Top of Allegheny to collect hundreds of pounds of the tree’s pinky-sized cones. At home in Morgantown, he kiln-dried and tumbled them to extract their seeds. Now they are tiny trees. Next spring the seedlings, bearing genetics from the southern end of the tree’s range, will go into the ground in Vermont and New Hampshire. The hope is when they start making their own cones in 30 years, they’ll be able to survive in a warmer northern climate. “We’re anticipating Mother Nature would migrate the red spruce northward,” Saville said. “We’re just accelerating that.” He’s one of hundreds of foresters, arborists, scientists and researchers working to give species like the red spruce a lift north to outrun a climate that’s changing faster than they can keep up with. Although still somewhat controversial, as the extent and speed of temperature rise becomes clear, such “assisted migration” is increasingly being contemplated. “The goal,” said Tony D’Amato, a professor of forestry at the University of Vermont, who’s overseeing the experiment, “is to help them deal with these really unnatural conditions that don’t have an analog in the past…”

Best Life, September 21, 2022: If You See This on the Trees in Your Yard, Scrape It Off and Kill It Immediately

Trees are not just aesthetically pleasing—they also clean our air, help prevent flooding, and provide us with much-needed shade on a late-summer day. With that in mind, if the trees in your yard are being threatened, odds are that you’ll want to be proactive about protecting them. One thing in particular could be putting your trees in danger, and if you notice it, you’ll need to take immediate action. Read on to find out what you must be vigilant about identifying. Invasive species are those that are non-native to the U.S. and likely to cause harm to the economy, environment, or human health, according to the U.S. Department of Agriculture (USDA) National Invasive Species Information Center. These can be plants, animals, or other microbes, most often introduced by human actions. Invasive species can have serious implications for biodiversity, and even cause native species to go extinct. Recently, experts have issued warnings about the detrimental effects of invasive plants such as the Bradford pear tree and garlic mustard, as well those that you can inadvertently buy at Home Depot or your local garden center. Now, there’s an invasive insect devastating trees across the country, and experts are calling on you to help stop the spread. The invasive spotted lanternfly has been top of mind lately, as officials in several states have asked residents to kill the bug on sight. But the spongy moth is another dangerous insect that shouldn’t be overlooked, according to the USDA Animal and Plant Health Inspection Service (APHIS) and the Entomological Society of America (ESA)…

Boston, Massachusetts, WFXT-TV, September 21, 2022: Redwood trees will be planted in neighborhoods across Boston. Here’s why

Mayor Michelle Wu on Wednesday unveiled a plan to plant redwood trees in neighborhoods across Boston in an effort to fight climate change. While speaking at the Arnold Arboretum of Harvard University, Wu announced that the botanical research institution had gifted 10 dawn redwood trees to help the city bolster its tree canopy in a push to enhance livability and public health. “Trees are our best green technology to fight climate change and build healthy, beautiful communities, especially as heat and storms intensify,” Wu said. Wu also launched a new Forestry Division within the Boston Parks and Recreation Department that will be tasked with maintaining existing and planting new trees. “Dedicating staff and resources to our new Forestry Division will empower the City of Boston to strengthen our tree canopy citywide so every community benefits from these treasured resources,” Wu added. Redwoods are the tallest trees on Earth and can live for thousands of years. The tallest living redwood on record is said to be about 365 feet. City officials stressed that tree canopy is a critical part of Boston’s infrastructure, noting a thriving urban forest reduces heat levels while removing pollutants from the air. It also supports water quality and reduces the impact of flooding by intercepting large quantities of water during and after rain storms…

New York magazine, September 21, 2022: The City Quietly Stopped Pruning a Lot of Its Trees

It’s Climate Week in New York City and the mayor is talking about trees. “I’m proud that we have ramped up tree plantings significantly this past year,” Adams said of the 13,000 trees planted this fiscal year. There are more trees to come, but there’s just one detail he left out: The Parks Department hasn’t actually been able to prune any of the city’s trees in Brooklyn and Queens for the past year. Let’s hope the new ones don’t grow too fast. If you have perhaps been wondering about that precariously dangling branch on your block, it’s because, as the Brooklyn Paper reported this week, the Parks Department had to suspend its contract with Dragonetti Brothers Landscaping over the small matter that they are currently being sued for massive insurance fraud. The city’s in-house tree-maintenance teams are apparently only dispatched for emergency situations. (Like maybe, for example, when a tree hasn’t been pruned for a year and its mighty branches are about to crush a passerby.) A simple fix might be hiring new contractors to snip our trees, perhaps ones who are not accused of misclassifying their workers in order to cheat them out of $1 million in insurance premiums. Problem is, the Parks Department told the Brooklyn Paper that the $12 million contract was already awarded to the Dragonetti Brothers and cannot be terminated and rebid to someone else. (“This matter is currently under review,” a Parks Department spokesperson told the Paper.) The workers have suffered and now so must the trees. Meanwhile, a quick search of 311 tree-service requests reveals unsettling entries like “overgrown tree” that is “hitting building” or “damaged tree” that is “leaning.” If you have a perilously overgrown tree on your block, feel free to tip us off…

San Diego, California, Union-Tribune, September 20, 2022: Fallen branch renews tree fight between neighbors in Del Mar

Trees and ocean views can be lovely things, but when they clash there can be trouble. Tree disputes in Del Mar can mean a trip to the City Council with a consultant, an arborist, photos, maps and lots of paperwork. The conifers in question are five Torrey Pines owned by Harvey and Sheryl White who live, appropriately, on Ocean View Avenue. Their house, worth $5 million according to Zillow, was built in 2001 and with a plan to preserve the trees growing on their lot at the time. The Torrey pine is a rare and endangered species of tree that grows only in coastal San Diego County and on Santa Rosa Island off the coast of Santa Barbara. It has long gray-green needles in clusters of five and can grow more than 50 feet tall. To the dismay of some of their neighbors, the hillside trees have continued to grow, obstructing their views of the Pacific Ocean and the Torrey Pines State Natural Reserve. Discussions with the tree owners were not fruitful, and the owners declined an offer of mediation. Then two families living behind the Whites filed complaints under the city’s trees, scenic views and sunlight ordinance. The city’s Planning Commission upheld the neighbors’ complaints, and on Dec. 7, 2021, it appointed a subcommittee to work on a plan to restore the view by carefully trimming the trees’ branches. The owners retained the services of a planning consultant and the certified arborist Mark Wisniewski to work out a solution acceptable to all parties. Together they developed a five-year plan of periodic pruning to gradually reduce the size of the largest tree by 40 percent and the others by 20 percent. After that, the trees would be cut back every two years in perpetuity. The Planning Commission signed off on the agreement Aug. 9. However, three days later, a big branch fell off the largest tree. That unexpectedly accelerated the pruning schedule and, apparently, altered the deal…

New York City, Brooklyn Paper, September 20, 2022: Tree pruning in Brooklyn and Queens axed since last year due to alleged insurance scam

A tree grows too much in Brooklyn! Municipal tree pruning has been suspended for the past year in Brooklyn and Queens because the city dropped its contractor following its principals’ indictment in a massive insurance scam, a Parks Department spokesperson confirmed to Brooklyn Paper. The nugget was tucked deep in the Mayor’s Management Report, a 500-page compendium of city agency performance over the past year, released on Friday afternoon. The report notes on page 144, in the Parks Department section, that while funding for tree pruning had been restored in Fiscal Year 2022 following COVID-era cuts, the program still was axed owing to “unforeseen legal issues with pruning contractors,” which the city intends to resolve this Fiscal Year…

Colorado Springs, Colorado, Gazette, September 20, 2022: What you’re really doing when carving an aspen tree in Colorado

To carve an aspen tree — to take a blade to the trunk for the sake of your initials, for example — is to do harm. Harm to a being with a life expectancy much like our own: 100 years, if we’re lucky. To leave your mark, “it may sound cool,” says Dan West, an aspen expert with the Colorado State Forest Service. “But that tree might not survive because of what you’re doing.” A cut to the human arm is a possible portal for infection. Same for an aspen tree. Though the risk might be greater in aspen, considering “aspen are one of the most diseased and infected trees in North America,” West says. On our travels to behold the golden displays, we’ve all seen it. Gashed groves. White bark disrupted by black scars that look nothing like nature’s doing. There’s someone’s name. There’s someone’s message that doesn’t matter. There’s some date marking what might be some romantic occasion. There’s a heart housing the names Megan and Jon. Paul Rogers, director of the Western Aspen Alliance based at Utah State University, came by this one once. A harsh revision was made — an “X” over “Megan” and a message above: “MEGAN IS A SKANK.” “It didn’t work out over time, their relationship, apparently,” Rogers says. But the advocate scientist cares not for such drama. Nor do the trees care for our drama and whatever vain impulses lead us to scarring their skin…

San Francisco, California, Examiner, September 20, 2022: Tracing trees: San Francisco’s most popular species

In a city bustling with parks, and known for its proximity to nature, the street canopy is notoriously lacking. In 2014, San Francisco had one of the smallest urban forests compared to other major U.S. cities. The City opted to expand this network of foliage, aiming to go from an estimated 105,000 to 155,000 in 2034, according to the San Francisco Planning Department. SF now has over 124,000 trees, managed by San Francisco Public Works. These are the most common, according to data available through DataSF: (1) Sycamore, London plane. The London plane tree, also known as the Platanus × hispanica, is a deciduous tree that populates much of the northeastern zone of San Francisco. The tree is a hybrid of two like plants, dating back to the 17th century. They can be found in cities such as Buenos Aires, London, and New York; (2) Brisbane Box. As the name suggests, this San Francisco sighting is native to Australia. The official name is the Lophostemon confertus. This magnificent evergreen covers the eastern end of The City. It can grow beyond 130 feet and has a dense, dark green canopy…

New Scientist, September 19, 2022: Global warming could kill many of the tree species that cool cities

Cities around the world may need to start planting different types of trees and shrubs that can tolerate warmer and drier conditions. By 2050, about three-quarters of the species currently grown in urban environments will be at risk as a result of climate change, a study has found. “By ‘at risk’, we mean these species might be experiencing stressful climatic conditions,” says Manuel Esperon-Rodriguez at Western Sydney University in Australia. “Those trees are likely to die.” City trees have many benefits, from making cities look beautiful and providing a refuge for wildlife to keeping places up to 12°C cooler than they would otherwise be in summer. Losing tree cover would lead to cities becoming even hotter as the planet heats up. To assess the threat, Esperon-Rodriguez and his colleagues used a database called the Global Urban Tree Inventory to work out the conditions required by 3100 tree and shrub species currently grown in 164 cities worldwide. The researchers then looked at how these conditions would be affected by climate change under a medium-emissions scenario called RCP6.0. By 2050, 76 per cent of these species will be at risk from rising average temperatures and 70 per cent from decreasing rainfall, the team concludes…

St. Louis, Missouri, KTVI-TV, September 19, 2022: One-of-a-kind tree is making a comeback in Pineville

One of the most unique trees in America, in terms of its historic significance, is showing signs of “branching out” after Pineville city officials initially said it was vandalized. Pineville, Missouri, recognized as a “Tree City,” received the special “Tulip Poplar” in 2017 by the Arbor Day Foundation. It was then planted by the Missouri 4-H in the Pineville bike park along Big Sugar Creek Road. In July of this year, the tree was heavily damaged by what Pineville city officials thought was vandalism. While the Pineville Marshal’s Office worked to find out what or who damaged the priceless living piece of history, a leaf from the Tulip Poplar was sent to a nearby arbor nursery in an attempt to save as much of the tree as possible. The bottom portion of the tree was carefully reshaped and is now sprouting new leaves and branches…

Bergen, New Jersey, Record, September 19, 2022: There’s a new tree disease spreading across NJ, and officials are asking for help

Threats to New Jersey’s trees have long been a problem — from the chestnut blight of last century to more recent invasions such as a beetle wiping out thousands of ash trees and spotted lanternflies feasting on fruit trees. Now state officials are warning the public about a new malady: beech leaf disease. The New Jersey Forest Service began asking the public on Monday to report any signs of the disease, which begins with dark bands between leaf veins that may only be visible at first when a leaf is held up to light. Leaves may become brown and leathery as the disease progresses, culminating with defoliation and the death of the tree in two to seven years. First discovered 10 years ago in Ohio, the disease has spread across several states in the Midwest and Northeast. It was found in Bergen and Essex counties two years ago and has since been observed in 10 more New Jersey counties. The disease could infect New Jersey’s 12 million beech trees, which are found across the state in backyards, along main streets and in forests. “To lose beech trees from the landscape and ecosystem will have significant environmental impacts, which is why we are asking for the public’s help,” said John Cecil, assistant commissioner of state parks, forests and historic sites…

Little Rock, Arkansas, Democrat-Gazette, September 19, 2022: Arkansas efforts to restore vanishing Ozark chinquapin trees take root and grow

Al Knox has spent years here as a volunteer and trail supervisor. It was as a volunteer, in 2002, that he found the Ozark chinquapin. The chinquapin is a tree in the chestnut family, a species mostly wiped out in America by an invasive blight from Asia. Lots more about that soon. Back to Al Knox. He was cutting weeds with a string trimmer in one area — a small area, given the park’s 12,054 acres — when he came across a bush. Not a tree. A bush. Knox recognized the bush as an Ozark chinquapin, because he remembered eating the nuts from a tree as a boy. Knox is 87, found the chinquapin when he was 67, and ate those nuts a long time ago. “I almost ran my face into the burrs,” he said of the Hobbs discovery. “I recognized it as a chinquapin, which I had not seen in 50 years since I was a kid.” That bush and its burrs (fuzzy bundles in which the nut grows) became part of the effort to restore the Ozark chinquapin to its native habitat. Now, according to Steve Chyrchel, a park interpreter who Knox said knows more about the tree than anyone in Arkansas, the habitat is mostly Arkansas, with pockets in several surrounding states…

Portland, Oregon, Oregonian, September 17, 2022: Oregon Supreme Court won’t hear case that tried to collect $1 billion from the state for failing to cut more trees

The Oregon Supreme Court on Friday declined to reconsider a lawsuit that claimed the state shortchanged rural counties and local districts out of more than $1 billion for failing to harvest more trees from state forests and share the profits. Friday’s denial marks a big win for the state Department of Forestry, environmental groups and outdoor recreationalists. It also ends a six-year-long legal saga that started in 2016 with Linn County filing the lawsuit for itself and similarly situated counties. In 2019, a Linn County jury decided the state must pay $1.1 billion to 13 counties and 151 local taxing districts for lost profits from timber that wasn’t harvested over close to two decades on land that once belonged to the counties. The state appealed the verdict and in April 2022 the Oregon Court of Appeals overturned the 10-figure jury award. The counties asked the Oregon Supreme Court to rule on the case. But Friday, the high court said it would not. Now that the state has prevailed, it won’t have to pay the $1.1 billion plus hundreds of millions in interest that has racked up. The lawsuit’s conclusion also reinforces the state’s authority to manage state forests for purposes other than maximizing timber revenues. The department had maintained those other purposes could include protecting wildlife, maintaining clean water and promoting recreation…

San Francisco, California, SFGate, September 17, 2022: Delaware American chestnut tree deemed ‘precious resource’

After the species was devastated by an Asian blight in the early 20th century, a single American chestnut tree in Centreville has been deemed a “precious resource” by the Delaware Nature Society. Jim White, a senior fellow at the Delaware Nature Society, said the tree discovered at Coverdale Farm Preserve is the largest and oldest he’s seen in his 50-year career. “For people who are interested in trees, that’s kind of a holy grail-type thing, to see a big American chestnut,” he said. “I’ve never seen anything that size anywhere, and very few people have.” The tree is estimated to be about 50 years old and 70 feet tall, with a circumference of at least 35 inches, White said. “That size is what’s uncommon,” said Sara Fitzsimmons, chief conservation officer at the American Chestnut Foundation. “Eighty percent of the remaining trees are an inch in diameter or less.” Chestnuts roasting on an open fire,” as Nat King Cole once sang, was once a common winter scene in Delaware and throughout the eastern United States. Humans, mammals, birds and insects alike dined on the hearty brown nuts, which were plentiful prior to the 20th century, according to the foundation. There used to be about 4 billion American chestnut trees in eastern U.S. forests, until chestnut blight (Cryphonectria parasitica) arrived in New York via infected plants and spread rapidly, nearly wiping out the majestic trees. The giant chestnut trees that used to dominate forests are all but gone; however, the fungus doesn’t affect the roots of the trees. The centuries-old root systems sprout new trees over and over, just for them to die young due to the blight. The species is considered “functionally extinct…”

Longview, Washington, The Daily News, September 18, 2022: Longview has 1,500 fewer trees than usual. City staff is working to fix that.

Longview officials are revving up tree planting as the city’s oldest and tallest growths approach 100 years old and some have to be removed. Among the city’s 14,000 designated spots for trees, 1,500 are empty. Without as many trees, neighborhoods get warmer, and drivers tend to speed more often, said Longview Parks Director Jennifer Wills. Trees take on decades of disease or weather events — from surprise snow in April to stifling summer heat waves — that can make them more vulnerable. The city’s team of arborists work to plant two trees for each one they have to remove. But lately, Wills said, they have been removing trees faster than they have been replacing them. “As they get older, there is a point when a tree simply can’t stay standing,” Wills said. The department is working to revamp tree planting, especially after tree service delays during the pandemic when crews were working with 300-plus requests. This year, with the added staff, they are fielding about 60 requests…

Baltimore, Maryland, Sun, September 17, 2022: Harford Circuit Court grants temporary restraining order to halt Abingdon Woods tree clearing

A Harford County Circuit Court judge on Friday granted Chesapeake Bay Foundation’s request for a temporary restraining order to halt the deforestation of Abingdon Woods. As a result, the developers of the Abingdon Business Park project – Harford Investors LLP and BTC III I-95 Logistics Center LLC— will temporarily not be able to clear trees from the 300-acre site. “We’re pleased with the decision,” Josh Kurtz, Chesapeake Bay Foundation’s Maryland executive director, said in a statement. “This restraining order will ensure that should CBF receive an injunction and win this case on the merits, that there will still be trees to protect.… “Forested land is a public resource that is protected by state law. Ensuring that the law was followed before more trees are cleared should be the minimum requirement before this project can proceed.” Chesapeake Bay Foundation’s request for a temporary restraining order to stop the tree clearing was granted after the Maryland Court of Appeals ruled last month that the nonprofit was allowed to appeal the forest conservation plan for the development of Abingdon Business Park. The appeals court said a citizen can contest a construction project’s approved forest conservation plan regardless of whether overall project plans have been approved. The ruling allows the Chesapeake Bay Foundation to have a court hearing to determine whether Harford County and the developers are abiding by the state Forest Conservation Act with the project’s forest conservation plan…

Case of the Day – Monday, September 26, 2022


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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gene appealed.

Held: Judgment in favor of Marv was upheld.

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

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

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

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

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

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

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

Here, the jury found that at least four of the trees at issue were boundary line trees taken by Gene without color of title. This being the case, it is clear that the statute entitled Marv to treble damages.

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

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

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

– Tom Root


Case of the Day – Friday, September 23, 2022


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

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

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

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

Anyway, Smith sued, and Mendonsa, for some foolish reason, fought the action. The trial court found for Smith in due course and then worked some rump math, figuring the past damages were about $140.00 a year (this was 1952, when a dollar was worth a bit more than now), and multiplied over three years, the damages were $420.00 (or $4,418.80 in 2022 dollars). The Court also enjoined Mendonsa from maintaining trees over 15 feet or branches which were hanging over Smith’s land.

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

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

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

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

A deal’s a deal, after all.

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

Mendonsa let the trees get a little too tall …

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

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

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

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

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

– Tom Root


Case of the Day – Thursday, September 22, 2022


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

Life imitates art, I guess. Last weekend, I hauled away our 25-year old shed. I am replacing it with a newer, larger shed – complete with electricity, windows, and (if I have anything to do with it) a beer refrigerator. Replacing it will come with a set of problems, specifically a line of arborvitae trees, standing behind the shed along the property line.

The arborvitae were tiny little shrubs when our next-door neighbor (two owners ago) planted them in the late 1990s. Now, they’re monsters.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Tom Root