Case of the Day – Wednesday, September 8, 2021


Louisiana alone among the fifty states has a diverse (some might say muddled) legal history. Due to its heritage of French ownership for 81 years, then Spanish ownership for 38 years, and finally French for a few more (until Thomas Jefferson bought the place), Louisiana law between private parties, principally contracts and torts, is based on French and Spanish codes and ultimately Roman law, with only a few common law influences.

Rather than relying on stare decisis and law by accretion – that is – judicial decisions on real conflicts following prior cases and in some cases expanding on the principles that controlled the resolution of the conflicts, Louisiana has a comprehensive civil code, sort of like a binding version of Restatement of Torts and Restatement of Contracts.

Not everything is different, however. Louisiana’s laws, like the other states, from time to time sets up legal presumptions. All a presumption does it tilts the scales one way or the other, depending on the public convenience or good. And presumptions are doggone useful: For instance, a child born of a husband and wife living together is presumed to be the natural child of the husband. A person who has disappeared and not been heard from for seven years is presumed to be dead. And the one we all know from TV, an accused person in a criminal proceeding is presumed innocent until proven guilty.

Presumptions can be useful in tree law as well. If a tree is growing on the boundary between your property and your neighbor’s, it can be pesky and difficult proving who planted it, when it was planted, and what arrangements the people then owning the properties may have made regarding the sapling. Some states solve this simply: if it straddles the boundary, it is commonly owned by both landowners, and no one can mess with it without the other owners’ consent. Others make it more difficult: whether the tree is commonly owned depends on whether the neighbors claiming part ownership can jump through hoops to prove they (or their predecessors-in-interest) helped plant or nurture the tree, or treated it as the boundary line.

Louisiana splits the difference: it presumes that if the tree is on the boundary, it is commonly owned. However, either neighbor may rebut that presumption by offering evidence that the tree is not commonly owned.

In today’s case, the plaintiffs – Mark and Catina Jack – were unable to prove that the tree was not commonly owned. They could not show who planted it, when it was planted, or what arrangements had been made. The court declared the presumption to control the case, saying that as to evidence to the contrary, “You don’t know, Jack.”

Jack v. Successions of Albert, 2019 La.App. LEXIS 1512 (La.App. 1 Cir. Sept. 4, 2019):  The Jacks and the Alberts are neighbors. A large oak tree stands on the boundary between their properties. The Jacks complained that the roots of the tree were heaving the concrete in their driveway. The Jacks alleged that the Alberts owned the tree, and demanded that they pay to remove the tree and fix the driveway.

Louisiana Civil Code article 688 gives a landowner the right to demand that the branches or roots of a neighbor’s trees that extend over or into the landowner’s property be trimmed at the neighbor’s expense, provided that the roots or branches interfere with the enjoyment of the landowner’s property. The Jacks sought to recover the costs and expenses to repair the driveway, as well as damages for inconvenience and mental anguish.

At trial, the Jacks offered evidence of the extent of the damage to the driveway. The Alberts, on the other hand, offered the testimony of a surveyor who testified that the tree is located on the boundary between the Jacks’ and the Alberts’ properties. The Alberts argued that under Civil Code article 687, trees on the boundary are commonly owned unless there is proof to the contrary. Article 687 gives an adjoining landowner the right to demand the removal of a tree on the boundary that interferes with the enjoyment of his or her estate, but that owner must bear the expense of the tree’s removal. Based on these articles, the Alberts argued that the oak, located on the boundary of the two properties, is presumed to be the common property of the parties. Because the Jacks offered no evidence to rebut the presumption of common ownership, the Alberts contended, the Jacks must pay to remove the tree and fix their own driveway.

The trial court found for the Jacks, expressing its belief that the tree started growing on the Alberts’ property. The court found that the absence of evidence as to how the tree got there was irrelevant. Instead, it found that the Jacks’ photographs showed that most of the tree was on the Alberts’ property. The trial judge said he would be “hard-pressed” to find the tree was a boundary tree commonly owned by the Jacks and the Alberts.

Concluding that the oak was originally the Alberts’ tree, the court awarded $8,500.00 damages to the Jacks.

The Alberts appealed.

Held: The trial court was reversed, because the Civil Code’s presumption that the boundary tree was commonly owned carried the day.

The record showed the tree was already on the boundary when the Jacks bought their property in 2003. The Alberts called Charles St. Romain, a civil engineer, whose testimony was less than stellar. He testified that the tree was “smack dab” on that line, but admitted on cross-examination that it was not really “smack dab” in the middle, and when it was a small tree, it probably was not a boundary tree at all.

But shaky testimony is better than no testimony at all. Under Louisiana law, trees belong to the owner of the soil on which they stand, regardless of their proximity to the property line. A landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor. An adjoining owner has the right to demand the removal of boundary trees, bushes, or plants that interfere with the enjoyment of his estate, but he or she must bear the expense of the removal.

Under Louisiana Civil Code article 687, trees, bushes, and plants on the boundary are presumed to be common unless there be proof to the contrary. Here, the Court of Appeals said, everyone agreed the oak tree is located on the boundary between the Jack and Albert properties. And everyone agreed that the oak tree’s roots have encroached under the Jacks’ driveway, causing damage and thus interfering with their enjoyment of their property. If Civil Code article 688 applied, the Alberts had to pay for the Jacks’ driveway and tree removal. If Civil Code article 687 applied, the Jacks would have to bear their own costs and damages.

The appeals court held that the correct interpretation of the Civil Code 688 assigned the Jacks the the burden to prove that the offending tree was located on a neighbor’s property. However, Civil Code article 687 establishes a presumption that a tree located on the boundary between two properties is commonly owned. The section permits the presumption of commonness to be overcome by proof to the contrary, but that placed on the Jacks the burden convince the trial court that his or her proposed conclusion is more correct than the presumed one. The presumption does not have any probative value in and of itself, but it does provide the factfinder with a conclusion in the absence of proof to the contrary.

If there is no proof to the contrary and the presumption of commonness stands, an adjoining landowner may have a common tree removed from the property, but must do so at his or her own expense. The location of the oak tree on the boundary between the Albert and the Jack properties triggered Civil Code article 687′s presumption that the tree is a common one. “The Jacks,” the Court said, “who are claiming that the tree on the boundary is not common but is in fact owned by the Alberts, bore the burden of offering proof sufficient to overcome the presumption that the tree is commonly owned.”

The trial judge was wrong. The absence of evidence as to how the tree got there was very relevant. There is no evidence, the appeals court ruled, as to who planted the oak or when it was planted. While a photograph shows that years ago, a young tree may have been solely on the Alberts’ property, “the photograph is not conclusive since there is no expert testimony presented by the Jacks as to the exact location of the property line in said photograph. The only established fact is that the tree in question is located on the property line. Therefore, it is presumed to be common under Civil Code article 687.

The Jacks had an opportunity at trial to present proof that the tree is not a common one, but they failed to do so. Because the tree is presumed to be common, and the presumption of commonness was not rebutted by the Jacks, the Jacks and the Alberts are deemed to be co-owners of the tree.

– Tom Root


Case of the Day – Tuesday, September 7, 2021


Last Friday (before the final long weekend of summer), we looked at the problem with spite fences. Spite fences, we noted, are usually defined by statute. But not always.

In some places, a spite fence was defined the same way that Justice Potter Stewart defined pornography of when quipped in Jacobellis v. Ohio: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …”

In today’s case, the record seemed pretty clear that what the court was dealing with was a spite fence. There was animosity, an overly tall fence, and apparently no good reason why a rational homeowner would have built it.

Yup. A spite fence. The trial court knew it when it saw it, even without a statute defining it. The judge held it to be a spite fence.

But what to do about it? The only law on Montana’s books was from back in the day when men were men and women were afflicted. No, not 1991, but 1899. And that ruling held that a landowner could pretty much do whatever the tarnation he (and they were mostly “he” back then) wanted to do. The trial court had to rule that the spite-fencer could get away with it, but urged the appeals court to rule the other way.

And rule the other way it did. With all of that clap-trap about whether the Supreme Court will eviscerate the doctrine of stare decisis in order to reverse Roe v. Wadethis case demonstrates the obverse of the stare decisis debate: sometimes, a slavish adherence to the ways things have always been done is not all that it’s cracked up to be. Imagine if the Supremes had decided that Plessy v. Ferguson‘s “separate but equal” doctrine should control the outcome of Brown v. Board of Education of Topeka

Haugen v. Kottas, 307 Mont. 301, 37 P.3d 672 (Supreme Ct. Mont, 2001). When his parents died, Bill became sole owner of the property. In 1999, he removed the chain link fence. Don was upset over the fence’s removal, and wanted to build a replacement wall and have Bill pay for it. Bill refused, but ordered a survey. The survey found that the chain-link fence had always been on Bill’s land. The survey also determined that Bill’s flagpole and several of his lawn sprinklers were located on Don’s property. What’s fair is fair: Bill removed those.

Don was not mollified. The next summer, he dredged his pond and moved it a few feet to the east. He then built a wooden fence about 200 feet long and 7 and a half feet tall. The back side of the wooden fence faces Bill’s property and obstructs his view to the east of Upper Spring Creek.

Now it was Bill who was unhappy. He sued, asking the court to issue an injunction ordering Don to tear down that wall, alleging that it was a spite fence. The trial court agreed that Don’s monstrosity was clearly a spite fence, but concluded that there was no remedy under Montana law for a spite fence, basing its decision on a prior Montana holding in the 1899 Bordeaux v. Greene decision that a person having a legal right to property can enforce the enjoyment of it without anyone being able to question his motive. The trial judge did not much like having to reach that conclusion, and asked “the appellate court to revisit Bordeaux in light of the significant changes in property law made during the past 100 years.”

Bill appealed.

Held: Bordeaux was yesterday’s news, and was overruled. Don’s spite fence had to go.

Bill argued that this Court should overrule Bordeaux based on the many changes that have occurred in property law since 1899, citing an Idaho holding that a property owner cannot erect a structure for the sole purpose of injuring his neighbor. The Supreme Court of Montana agreed, holding that Bordeaux no longer expressed the modern approach to property rights. Under that modern approach, the Idaho Supreme Court case held in the 1973 case of Sundowner, Inc. v. King, “one may not erect a structure for the sole purpose of annoying his neighbor. Many courts hold that a spite fence which serves no useful purpose may give rise to an action for both injunctive relief and damages… No man has a legal right to make a malicious use of his property, not for any benefit or advantage to himself, but for the avowed purpose of damaging his neighbor.”

The Court agreed with the Idaho Supreme Court’s analysis in Sundowner. The Court ruled, “We hold that no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor. We further hold that such an action will give rise to an action for both injunctive relief and damages.”

Don argued that Bill chose the wrong remedy by not stating a claim for nuisance. The Court rejected that claim. “Nuisance,” the Court said, “includes all wrongs which have interfered with the rights of a citizen in the enjoyment of property… A spite fence is defined as one which is of no beneficial use or pleasure to the owner but was erected and is maintained for the purpose of annoying a neighbor… Many courts characterize a spite fence as a nuisance. Although Bill could have filed a nuisance claim, he was not required to.”

– Tom Root


Case of the Day – Friday, September 3, 2021


Over the next few days (with time off for Labor Day), we’re going to talk about “spite fences,” structures one neighbor erects because he or she does not like the other neighbor. Often creative, always ugly, spite fences are traditionally not prohibited by common law (the court-made rules of conduct that have evolved over the centuries), For that reason, just about all states have statutes that address the problem.

The law in the 49 common-law states (sorry, Louisiana, not you) disfavors statutes that are contrary to common law. Anyone who has ever watched a state legislature in action may understand the origin of this common-sense presumption. Flowing from the presumption is the general rule that when a statute is contrary to common law, it must be interpreted strictly and literally.

In today’s case, one neighbor accuses another of anti-Semitism, general nastiness, and such animus that the neighbors have teamed up with the homeowners’ association to run the plaintiff neighbor out of town. No one knows whether the plaintiff neighbor’s allegations are correct: in fact if six decades has taught me anything, it has taught me to look very skeptically on such broad-brush allegations. Usually, the more outrageous the alleged conduct, the less credible the allegation.

At this point in the lawsuit, the Court assumes that the plaintiffs’ allegations are entirely correct and provable. It asks, in deciding the defendants’ motions to dismiss, whether the complaints, if true, state a claim that would justify granting the plaintiffs the relief they seek.

Here, most of the plaintiffs’ complaints didn’t hold water. We’re going to focus on only one of those beefs, the count on spite fences.

Small v. Anchorage Homeowners Ass’n, LLC, Case No. 1:18-cv-01605 (S.D.Ind. March 21, 2019), 2019 U.S. Dist. LEXIS 47842; 2019 WL 1317636. Art and Lynette Small bought a condo in a development overseen by the Anchorage Homeowners Association. They bought the condo through a limited liability company they had set up, Executives LLC. Their neighbors were Trudy and Brad Johnson.

The Smalls’ overarching complaint was that Trudy and Brad embarked on a campaign to force the Smalls out because the Johnsons thought (1) the Smalls were Jewish; and (2) the Smalls were renters, not owners. It must be a doozy of a complaint, alleging as it does all manner of slights, humiliations and vigilantism, all intended to run the Smalls out of the development. But the count we’re focusing on today is the allegation that the Johnsons erected a “spite fence.”

The Smalls sued the Johnsons and the Homeowners Association in federal court, alleging violation of a number of federal claims. In such a case, under what is known as “pendant jurisdiction,” a federal court may also hear state claims arising from the same facts. One such state claim brought by the Smalls was that in May 2016, Trudy accused Art “of begin a racist, of engaging in Fair Housing Act violations, and repeatedly called him an extremely offensive anti-Semitic slur” – specifically, “Jew Face” – in front of his friends and potential clients. A few days later, the Smalls alleged, the Johnsons installed a “large wooden wall” which obstructs the Smalls’ view and interferes with their enjoyment of their property. The Smalls claimed the Homeowners Association approved the wall despite the fact that it did not comply with Association and Hamilton County restrictions.

The Johnsons and Homeowners Association both moved to dismiss the count.

Held: The claim that the Johnsons’ built a “spite fence” was dismissed.

Under Indiana Code 32-26-10-1 – the state’s “spite fence” provision – a “structure in the nature of a fence unnecessarily exceeding six (6) feet in height, maliciously: (1) erected; or (2) maintained; for the purpose of annoying the owners or occupants of adjoining property, is considered a nuisance.” An owner or occupant who is injured in their comfort or enjoyment of their property that adjoins such nuisance may bring an action for: “(1) damages in compensation for the nuisance; (2) the abatement of the nuisance; and (3) all other remedies for the prevention of a nuisance.” Indiana Code 32-26-10-2.

Common law recognizes no such right, and thus, the statute, which is “in derogation of the common law… [must] be strictly construed.” If the fence in question does not meet the strict requirements of the statute, the Court held, it is merely subject to the common law of nuisance, under which a fence is only a nuisance if it encroaches on the adjoining landowner’s property.

The necessary elements of a claim under the spite fence statute are that: 1) the fence must exceed six feet, 2) the excessive height must be unnecessary, and 3) the fence must have been maliciously erected to annoy adjoining property owners or occupants. No matter how malicious or excessive a fence is, the Court said, it does not violate the statute if it is six feet or less in height. On the other hand, a maliciously erected fence that is more than six feet tall is not cured by a local permit because the state law trumps municipal ordinances and regulations.

Here, the Court ruled, the Smalls’ complaint is facially deficient because it fails to allege the wall exceeds six feet. In fact, the complaint does not include any height allegation, only that the wall comes to roughly 13 feet from the Smalls’ front porch.

“Thus,” the Court held, “the allegations fail to meet the statutory height requirement or the encroachment requirement of common law nuisance. For this reason, [the Smalls’] claim is dismissed.”

– Tom Root


Case of the Day – Thursday, September 2, 2021


We all remember Mrs. Palsgraf, the unfortunate matron injured at the Long Island railroad station.  Mrs. Palsgraf was waiting for a train, standing some distance from platform. On the platform, an over-zealous passenger tried to jump aboard a moving train. He lost his balance, but was kept from falling by two platform guards, one of whom grabbed his arm while the other pushed him from behind.

The passenger was carrying an unlabeled box under his arm. The box fell to the tracks, some fireworks inside the unmarked box detonated, and the loud noise somehow (no one ever really explained how) caused a set of scales standing by the station to fall on Mrs. Palsgraf.

Quick, who gets sued? Why, Long Island Railroad, of course. Not because of some obscure legal theory, but rather for the best reason of all: the LIRR had a lot of money. The guards and the passenger did not.

Every law student knows what happened. Mrs. P won $6,000 at trial, which was upheld on appeal. But then the case reached the New York Court of Appeals (the highest court in the Empire State) Renowned jurist Benjamin Cardozo wrote a 4–3 opinion that remains a staple of tort law, taught to law students nearly a century later. Cardozo ruled that the LIRR guards were not negligent because, in helping the man board, they had no duty of care to Mrs. Palsgraf because injury to her was not a foreseeable harm that could flow from aiding a man with a package. Thus was the conception that tort liability can only occur when a defendant breaches a duty of care the defendant owes to a plaintiff, was born.

Palsgraf’s an amusing case, but then it’s all fun and game until someone gets hurt.  And someone sure did, in a case handed down last week by the U.S. Court of Appeals for the Ninth Circuit.

In what the Court called the events a “Rube Goldbergesque system of fortuitous linkages,” the life of a young woman was snuffed out in San Francisco by the denounment of a string of events that started with a Bureau of Land Management ranger being reassigned from the Mexican border to Montana.

Steinle v. United States, Case No. No. 20-15419,  — F.4th — (9th Cir., August 24, 2021) 2021 U.S. App. LEXIS 25326, 2021 WL 373070.  John Woychowski worked as a ranger for the Bureau of Land Management, part of the United States Department of the Interior, assigned to El Centro, California. While traveling to Montana by private car, John and his family stopped to enjoy a warm San Francisco night in June 2015. John parked on the street along the Embarcadero, a waterfront tourist mecca, and the family walked to a restaurant.

When they returned, they discovered that in San Francisco, “BMW” means “break my window.” The tailgate window was broken and some property was gone.

Unfortunately, the property included a nondescript backpack that contained John’s government-issued service weapon, a holstered Sig Sauer P239. The pistol did not have the BLM-isued trigger lock on it.

Four days later, a homeless undocumented immigrant named Juan Lopez-Sancherz found the handgun about a half mile from the break-in, wrapped in rags and sitting on a bench. He picked it up and fired it. The bullet ricocheted off the ground, striking and killing Kathryn Steinle. 

The political universe had a field day, Juan was an illegal, having been deported five times and with seven prior felony convictions. Not a nice guy. The gun control people went nuts, the anti-immigrant people really went nuts, and Juan was painted as criminal excrement for whom the death penalty was too merciful a fate. When the dust settled and common sense prevailed, a jury acquitted Juan in 2019 of murder, manslaughter, and assault, and his conviction for being a felon in possession of a firearm was overturned soo after. Juan’s crime, it turned out, was gross stupidity, something that is not yet a felony.

No one knows who stole the pistol, how many people possessed it in the four days between June 27 and July 1, who took the pistol out of the holster and wrapped it in a shirt or rag (or why they did so), or how the pistol came to be left near the bench where Juan found it. But Kate’s family had to sue someone (and I won’t judge them for that, as they struggled with a horrific and unexpected loss), so they sued everyone. They sued Juan, they sued San Francisco (for being a sanctuary city that had let Juan wander free), and – of course – sued the federal government under the Federal Tort Claims Act.

The Steinles alleged that John was negligent in failing to secure his firearm properly and in leaving it, loaded, in an unattended vehicle in an urban location where the firearm could be easily stolen. The federal district court entered summary judgment in favor of the United States, ruling that John owed no duty to Kate under California law and that his actions were not a proximate cause of her death.

Kate’s family appealed.

Held, the government was not liable because John was not negligent.

Under the FTCA, the United States may be held liable for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government… under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

So far, so good. But in California, to prove negligence a plaintiff in a negligence suit must demonstrate a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.

Legal causation has two components, cause in fact and proximate cause. Because the factual causes of an event may be traced far into the past, the Court ruled, the law imposes additional limitations on liability. Those additional limitations relate not only to the degree of connection between the conduct and the injury, but also to public policy. The doctrine can bar liability even when the defendant’s conduct is a factual cause of harm, depending on the manner in which the injury occurred or the extent to which the ultimate harm is attenuated from the breach of duty alleged.

Here, the connection between John’s storage of the pistol in his vehicle and Kate’s death “is so remote that, as a matter of law, his acts were not the proximate or legal cause of the fatal incident,” the Court held. “Several events—many of which remain unknown—intervened after John left the loaded pistol in his vehicle: (1) someone broke into the locked vehicle; (2) someone stole a seemingly innocuous backpack; (3) someone found a pistol in that backpack; (4) someone removed the pistol from its holster, then wrapped it in a cloth and abandoned or lost it a half-mile away; (5) Lopez-Sanchez picked up the firearm, four days later, and fired it, apparently aimlessly; and (6) the bullet ricocheted off the ground and struck Kate.”

There were no winners in this one. Kate is dead, her parents grieve, and Juan served five years before being acquitted and deported yet again.

No winners. Except for the United States government, which did not have to pay. And BLM Ranger John Woychowski. He got promoted.

– Tom Root

Case of the Day – Wednesday, September 1, 2021


Sure, you can get your land contract out of a box, and save a few bucks. Just ask Mr. Jackson how that's likely to work out for you ...

Sure, you can get your land contract out of a box, and save a few bucks. Just ask Mr. Jackson how that’s likely to work out for you …

Sometimes, reality bites. Not just the movie, but real life. Ask Andrew Cuomo. Or Harvey Weinstein. Or Paul Manafort and Michael Cohen. Or even Mike Richards. It especially bites when the very steps a prudent man takes to protect himself become the evidence on which a court relies to put him in the jeopardy he sought to avoid.

So it was with Mr. Jackson (who, we hasten to add, had no past anything like Messrs. Cuomo, Weinstein, Manafort, Cohen and Richards are alleged to have). Instead, Mr. J simply sold some land by land installment contract (also known as contract for deed or installment sale agreement) to Mr. Smith. Pay attention, because land contracts have become much more popular in the last decade. A land installment contract lets a property owner safely sell land with seller financing. The buyer puts down a small (sometimes no) down payment, with an agreement to make monthly payments for a period of time until the purchase price has been paid. At that time, the seller (sometimes called the “vendor”) transfers the land to the buyer (called the “vendee”).

Once in a blue moon (we just had one), a land installment contract is necessary for the completion of a real estate deal between two parties of equal bargaining power and sophistication. We recall handling one like that once in our legal career. But only once. Land installment contracts are almost always not very good deals – not just because the terms are oppressive or one-sided (although they often are) – but because the contracts represent transactions that are only financing of last resort. The vendees are often scarcely able to handle the payments, let alone able to manage the rigors of home ownership. In our experience, many if not most land installment contracts fail, resulting in evictions or foreclosure (depending on the state laws).

Perhaps because of the likelihood that the property will fall into disrepair or the vendee will default, many vendors want land contract documents that provide them with as much control over their properties as possible. This is understandable. What is less understandable is that sometimes, the more control a vendor reserves to himself or herself, the less safe he or she becomes.

In today’s case, the vendor understandably required the vendee to buy insurance on the place that named the vendor as a named insured. That made sense. After all, the vendee only had paid about 17% of the purchase price, meaning he didn’t have a very big stake in the place. But the vendor wanted to be sure the vendee did what he was supposed to, so the vendor drove by the place on a nearly daily basis, and he bought insurance for the place himself. The vendee reimbursed him, but the arrangement was at odds with what the contract required. Partly because the vendee knew how closely the vendor was watching the place, he checked with the vendor about alterations and modifications before he undertook them.

When a 10-year old boy riding a bike was struck and killed, the boy’s mother blamed obstruction in sight lines caused by untrimmed trees on the property. After a suitable period of mourning, she sued. She went after not only vendee Smith but after Mr. Jackson, too. He was the guy who really controlled the property, she claimed. The trial court disagreed and dismissed Jackson from the suit.

The Court of Appeals reversed. The facts that the vendee had paid so little and Mr. Jackson had cared so much about the condition of the property — and especially because he had gotten his own insurance even though the agreement dictated that Smith would do so — suggested to the Court that there was a real question of fact as to whether Mr. Jackson had control of the premises. He just might be to blame, the Court suggested, for the tree that had never been trimmed and which had allegedly obscured the young boy’s view of oncoming traffic. The Court returned the case to the trial court for a jury’s consideration.

Poor Mr. Jackson. Normally, vendors aren’t liable for the conditions of premises they have conveyed pursuant to land installment contracts. But vendors want the best of both worlds, to have control over their property until they’re paid, while not being liable for anything that goes wrong. Mr. Jackson was like that. He probably thought he was being very prudent in approving changes, in making sure insurance was in place, and in driving by like a stalker in Hollywood Hills. Instead, his caution only made the Court suspect that he had retained a lot more control than the typical vendor.

There’s a lesson here. If you sell pursuant to land contract, get a good lawyer to write as strong a contract as is prudent. Then, enforce the contract. Stick to the deal. If you want to deviate from its terms, sign a written amendment. Don’t start “rewriting” the deal by your conduct.

There's no making light of the sad fact that a 10-year old boy died, the tragedy that set this lawsuit in motion.

There’s no making light of the sad fact that a 10-year old boy died, the tragedy that set this lawsuit in motion.

Scheible v. Jackson, 881 N.E.2d 1052 (Ct.App. Ind. 2008). Jackson sold a parcel to Smith under a land installment contract. Smith lived on the premises. In early 2005, Jackson received a certified notice from the City of Columbus about saplings growing on the property that had to be removed. Jackson gave the notice to Smith, who took care of the problem.

However, a mature tree on the property hung over the sidewalk, the tree lawn and a part of 7th Street’s westbound lane. Branches of the tree drooped quite low, touching or almost touching the grass. One summer day, Mrs. Scheible’s ten-year-old son, Travis, was riding his bicycle on the sidewalk along the north side of 7th Street. Just west of the tree, Travis started to cross the street. The leaves and branches of the tree obstructed his view. A motorist struck Travis’ bicycle, killing the boy.

Travis’ mother sued Jackson and Smith. She alleged Jackson and Smith both exercised control of the property and that they owed a duty to the traveling public to maintain the property in a reasonably safe condition. Jackson moved for summary judgment, arguing that he owed no duty of care to Travis. The trial court agreed. Mrs. Scheible appealed.

Held: The Court reversed. Noting that young Travis was not on the property when he was struck, the Court conceded that as an initial matter, it appeared that a vendor is not liable for physical harm caused to others outside of the land by a natural condition of the land. However, the law was clear 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 Court focused much more on control that it did on mere possession. The evidence — taken in a light most favoring Mrs. Scheible (which it must be when summary judgment is being considered) suggested that Jackson retained substantial control. Smith, who lived on the land and was buying it under land contract, had paid only a small portion — about 17% — of the total price. He testified he consulted with Jackson on major alterations, and discussed removal of the tree that allegedly obstructed Travis’ view before the tree was cut down, after the accident. The Court said it wasn’t clear whether Smith just advised Jackson or actually had to obtain his approval for alterations. To be sure, Jackson maintained a substantial interest in the property as well as a financial stake: he testified he drove by the property often.

Standards for sightlines at intersections are well established. As a general rule, landowners do well to be aware of them.

Standards for sightlines at intersections are well established. As a general rule, landowners do well to be aware of them.

The Court held that where a person retains control of property, regardless of the contents of the land installment contract, liability may still attach. The Court said that “[o]ne who assumes the control and management of property cannot escape liability for injuries by showing a want of title in himself.” The fact of a land-sale contract, the Court said, is not itself dispositive as to the vendor’s non-liability.

What’s more, the fact that Jackson and Smith deviated from the precise terms of the contract bothered the Court. The contract terms provided Smith would carry insurance on the property, with the Jacksons and Smith being named as insureds. However, Jackson kept his existing insurance policies on the property in place. He paid the premiums and Smith reimbursed him. The Court held that this meant that Jackson’s use of the property was insured, but Smith — the person Jackson asserted to have been the only one with control of the property — had no coverage at all. The Court found it ironic that Jackson sought to avoid responsibility for the condition of the property, yet maintained two insurance policies on which he was the sole insured. Along with other elements of the case, the Court held, Jackson’s insuring himself to the exclusion of his vendee, Smith, supported the reasonable inference that Jackson controlled the property.

Summary judgment was reversed and the case was sent to trial.

– Tom Root


Case of the Day – Tuesday, August 31, 2021


In the Noxious Tree Hall of Infamy, you’ll find Osage Oranges that make a mess, Callary Pears that smell like an outhouse, the execrable and ill-named Tree of Heaven. But Number One may be running bamboo. It’s so bad, it’s in the Hall of Infamy and it’s not even a tree, strictly speaking.

Yet there are online tributes to the beauty of running bamboo, right along side Youtube videos on how to kill the stuff. Lest you wonder how to come down on this debate, be aware that laws banning the growing or even maintenance of existing stands of running bamboo are everywhere. That should give you a hint.

I’ve written about it before, and I don’t doubt that I will again. But today’s decision caught my eye, and – while long – it is a classic, both for the ingenuity of the defendants in suggesting that their bamboo invasion of the neighbors gave them a prescriptive easement to keep invading (because everyone knew the bamboo would invade), and for the court’s strenuous efforts to pound the defendants on every cause of action.

I mean, really, the defendants trespassed on the plaintiffs’ property because roots from bamboo they planted in the 1990s encroached on their neighbors in 2017? That’s fairly contrary to the rule that growth from natural things that invades the neighbors – even if a nuisance – is not a trespass.

Sultan v. King, 2021 N.Y. Misc. LEXIS 4575, 2021 NY Slip Op 21227 (County Ct. Suffolk Co., August 19, 2021). The Sultans and the Kings owned vacation homes on Shelter Island, New York. About 30 years ago, the Kings planted a grove of running bamboo on their property to serve as privacy screening between their place and the Sultans’.

When they planted the bamboo, it was still legal to do so. Although New York outlawed plant running bamboo in 2015, existing stands of bamboo were grandfathered in, so the Kings were able to keep and maintain their stand of the noxious stuff.

The Court noted that “[t]here is no dispute that running bamboo is an invasive species of plant that can be expected to spread in all directions. The invasive nature of running bamboo has spurred legislative action in many jurisdictions. As noted, in New York State it is unlawful to plant running bamboo due to its noxious nature. Many local jurisdictions on Long Island have adopted laws that either prohibit the maintenance of running bamboo or which impose regulations on properties where running bamboo is located so as to prevent the spread to neighboring properties… The regulations vary from outright prohibition of growing or maintaining running bamboo, requiring the removal of existing bamboo, to prohibiting the spread to neighboring properties or within a certain distance of property lines. Some also require remediation of encroachments of running bamboo onto neighboring properties.

But Shelter Island was not such a town.

The Kings kept a landscaper busy keeping their bamboo under control in their yard, but they did nothing to keep it out of other yards, including that of the Sultans. Mrs. Sultan testified that she and her husband have consistently employed a gardener who regularly mows the lawn and maintains the landscaping on their property, and paid him extra to clean bamboo leaves and debris that had fallen onto their property from overhanging bamboo.

By 2017, the running bamboo – an invasive species that tends to spread in all directions – was spreading into the Sultans’ yard.  The Sultans testified that they first became aware of the spread of the running bamboo onto their property in the spring of 2017. The Kings said the Sultans complained in 2017 about the spread, which was relevant to the Kings’ statute of limitations defense that the Sultans did not sue within the time permitted by law.

Even if that were not so, the Kings argued, everyone knows running bamboo runs, which means that the Kings acquired a prescriptive easement over the Sultans’ property to let their bamboo grow and grow and grow… Finally, they argued, the Sultans could control the bamboo by mowing down the young shoots, so it could not possibly be a nuisance.

Held, the Sultans could proceed with their suit, and recover damages for nuisance and trespass.

Initially, the court held, it was immaterial when the Sultans first learned about the spread of bamboo onto their property from defendants’ property, because the trespass was continuing. Every day was a new affront, and renewed any claim the Sultans had.

As for the negligence cause of action, it accrues at the time when the damages become apparent. The Sultans testified that the first time they became aware of the encroachment of bamboo growth spreading onto their property was in the spring of 2017. Since the underground spread of the bamboo system, according to the experts for both sides, preceded the sprouting of bamboo above the soil line, the encroachment of the bamboo must have occurred at an earlier time. However, the court found the Sultans’ testimony that they first became aware of the bamboo encroachment onto their property in 2017 to be credible, and started the statute of limitations running then.

The court made quick work of the Kings’ claim to a prescriptive easement. To establish a prescriptive easement, a party must prove by clear and convincing evidence that the use of another’s real property was open, notorious and continuous for a period of at least ten years. Here, the court ruled, “defendants have utterly failed to prove any of the elements of a prescriptive easement, much less by clear and convincing evidence. There is no evidence that any of the parties were aware of the encroachment of the defendants’ bamboo onto plaintiffs’ property, with particular reference to the side of the house abutting defendants’ property and the front yard, prior to 2017. Further, encroachment of bamboo roots underground not visible hardly amounts to a ‘use’ of real property or ‘open and notorious’.”

Even though the bamboo was legal, the Kings were still liable for private nuisance if their conduct was “a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities.  The invasion is intentional when the party at fault acts for the purpose of causing it, or knows that it is resulting or is substantially certain to result from his conduct.”

Here, the evidence showed that the Kings’ bamboo spread onto the Sultans’ property was a “substantial, intentional, unreasonable interference with plaintiffs’ right to use and enjoy their property and that it was caused by the failure of defendants to act to prevent the migration of the bamboo from their property onto plaintiffs’ property.” Although the Kings argued that running bamboo can be contained by regularly mowing and clipping of sprouts before they grow into stalks, that only controls the bamboo, but does not eradicate it. The Sultans’ expert admitted that the bamboo growth and roots that had spread underneath their deck would have to be excavated to stop the spread and growth of the bamboo. The Kings’ expert witness admitted he had used barriers dug into the ground to contain his own bamboo field decades ago. The court held that only effective means to eradicate and contain the bamboo is to excavate and remove the existing bamboo growth and to install a barrier.

The Court also observed that the Kings’ argument “that mowing and clipping is an effective means to prevent the spread of bamboo is belied by the determination in 2015 to make it unlawful to plant running bamboo in the State of New York. Also, the many local jurisdictions that have gone further to regular existing bamboo fields to require setbacks from neighbor’s property and to require the removal of bamboo that had spread to other properties is further evidence that the containment method offered by defendants is not in fact an effective means to stop the spread of running bamboo and to eradicate the underground root systems.”

The court concluded that the running bamboo was a private nuisance.

The elements of trespass are an intentional entry onto land of another without justification or permission.  The court said the Kings intentionally planted the bamboo on their property. “While not necessarily ‘immediate’,” the court said, “there is no question that the intrusion upon plaintiffs’ property was inevitable given the fact that defendants did nothing to prevent the spread of the bamboo. The nature of running bamboo is to spread in all directions unless action is taken to contain it, as testified by the experts for both sides. Accordingly, the court finds that the bamboo encroachment onto plaintiffs’ property constitutes a trespass, plaintiffs having proven the elements of trespass by a preponderance of the evidence.”

Finally, the court found that there was no question that the Kings failed to exercise reasonable care in the maintenance of their property by not taking action to prevent the spread of the bamboo, and thus were negligent.

The court held that the Kings owed the Sultans $57,149.38.

– Tom Root