Case of the Day – Friday, September 6, 2019


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 – Thursday, September 5, 2019


Yesterday, 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 last fall about whether Brett Kavanaugh would eviscerate the doctrine of stare decisisin order to reverse Roe v. Wade, this 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 – Wednesday, September 4, 2019


Over the next few days, 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 – Tuesday, September 3, 2019


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 Jeffrey Epstein. Or Harvey Weinstein. Or Paul Manafort and Michael Cohen. 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. Epstein, Weinstein, Manafort and Cohen 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 (next one due in September 2021), 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 – Friday, August 30, 2019


The bridge was down ... something like this ...

The bridge was down … something like this …

Things are different in Louisiana. It’s the only state in America not to have a legal system based on English common law. Counties are parishes, county commissioners are “police juries,” and when a party loses in court, it may file a devolutive appeal.

But Louisiana has a lot of trees and thus generates a substantial amount of neighbor and tree law. Today’s case is a little different, a case of a large farm seeking to get a county (parish) road – long closed due to a bridge being down – declared abandoned, so that ownership could revert to the farm. The evidence was all over the map, including minutes of the parish government showing an intent — albeit a desultxory one — to get the bridge fixed and the road reopened, recall of the people who lived around and near the road as to when it was closed, and even a tree expert, who dated a tree growing up through the roadbed of the abandoned stretch of highway.

The trial court weighed all of the conflicting evidence, and concluded that the weight of it supported a finding that the parish had abandoned the road more than 10 years before, meaning that ownership reverted to Richland. The appellate court didn’t necessarily agree, but appellate courts review lower court decisions deferentially. Here, the standard was whether the trial judge’s findings were reasonable, based on the record, and the court of appeals said they were.

Louisiana law is different ...

Louisiana law is different … (Dramatic re-enactment of actual Bayou State courtroom proceeding).

Richland Plantation, Inc. v. East Feliciana Parish, 973 So.2d 179 (La.App. 1 Cir. 2007). The Parish of East Feliciana maintained a public road running north from Richland Creek to Louisiana Highway 422 through property owned by Richland Plantation, Inc. In 2005, Richland sued, maintaining that the Parish had abandoned the road. Richland alleged that public use and maintenance had been terminated for more than ten years, and therefore the road was abandoned and full ownership of the property reverted to it.

The Parish claimed the road was temporarily closed in December 1996 because the bridge across Richland Creek was unsafe. In September 2001, the Parish filed a petition for expropriation of some of Richland’s land for the bridge, and a judgment was rendered in its favor in March 2005, but was later reversed. The Parish said the expropriation suit established that it did not have any intention of abandoning the road.

Trial witnesses had varying recollections of when the road was closed. Photographs of the gravel road south of the bridge where it was still open and maintained were compared with photographs of the closed area of the road, which was overgrown with plants and seriously eroded. The bridge railings were twisted and bent, and the wooden planks were rotted and broken. A forester testified for Richland that one of the trees in the roadbed had been growing there for eleven years; a cross-section of the trunk showing its growth rings was submitted into evidence. In addition to witnesses’ testimony, the record included some bridge inspection reports, as well as the minutes from Parish meetings, showing when and why the road had been closed and when the expropriation process to rebuild the bridge was approved. The trial court agreed with Richland, and the Parish filed a devolutive appeal.

Held: The road was declared to have reverted to Richland. The Court said that under Lousiana law, the public may own the land on which the road is built or merely have the right to use it. The courts have held that maintenance of a road by a Parish for three continuous years gives rise to a “tacit dedication” of the road to public use by its owner. Abandonment of a public road must be evidenced by (1) a formal act of revocation in accordance with Louisiana statute, (2) relocation of the public road by the governing body, or (3) clear and well-established proof of intent by the governing body to abandon. Nonuse of a strip of land as a public road or street for a period in excess of ten years may also result in termination of the public use.

The road abandoned, maybe? Bayou law would bring a tear of joy to Robert Frost's eye ...

The road abandoned, maybe? Bayou law would bring a tear of joy to Robert Frost’s eye …

Because the Parish didn’t execute any formal act of revocation and its meeting minutes showed its intent was to rebuild the bridge and re-open the road, the Court concluded there was no proof of any intent to abandon this roadway. Thus, the only means by which the Parish’s servitude of public use of the roadway could be terminated was by factual non-use for more than ten years. Within that period, even occasional use or use by only one person constituted public use.

Reviewing the record to determine whether a reasonable factual basis for the trial court’s findings, the Court held that while there were obviously some conflicting stories about exactly when and how the northern portion of Ellis Road was closed, there was reasonable factual basis in the record for the trial court’s finding that the road had not been used for over ten years and was, therefore, abandoned by the Parish.

Richland’s licensed forester testified concerning the age of a tree that was located in the roadbed of the old road, and determined from dendrochronology how long the tree had been there. He determined that the tree growing in the roadbed was 11 years old when it was cut in June 2006, thus dating the abandonment of the road at over 10 years.

– Tom Root


Case of the Day – Thursday, August 29, 2019


Life (and law practice) sometimes imitates art. It may be a stretch to label the long-in-the-tooth CBS series, Survivor, as art, but any number of great artists, authors and composers were unappreciated during their day, just as the Survivor writers have complained that they are unappreciated. Maybe some day, Survivor – which in the most recent season was on the edge of extinction – will be studied by college students as a paradigm of our day. Scary, isn’t it? Arthur C. Clarke once predicted just such a thing

But our point – just like contestants are voted off the island in Survivor – weak cases are many times voted off the docket, so to speak, by summary judgment. Summary judgment is a mechanism for a judge to decide cases where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Stack said it was a big hole…

In today’s case, Stack was trimming Hernandez’s trees at Hernandez’s invitation. While working on a lawn with spotty and bumpy grass, Stack tripped on a small depression and broke his leg. He sued, of course – who wouldn’t? His suit alleged that Hernandez should have been aware of the depression and should have warned him of it. He didn’t have any proof that Hernandez was aware of the depression, and the Court very nearly granted summary judgment for Hernandez. But it concluded that a reasonable juror conceivably could — after hearing witnesses and cross-examination — conclude that Hernandez should have known about the depression, and should have either warned Stack or filled it in himself.

So after the summary judgment challenge, Stack remained a “survivor” — leaving it to a jury to vote his case off the island later.

Stack v. Hernandez, Conn. Super. LEXIS 1487, 2007 WL 1893617 (Conn.Super.Ct., June 12, 2007). Stack was trimming trees at the defendant’s property at the invitation and permission of the defendant. While doing so, he stepped in a depression in the front lawn and broke his leg.

... but Stack recalled it was somewhat small. This is known in the law as "a genuine issue of material fact."

… but Hernandez recalled it was somewhat small. This is known in the law as “a genuine issue of material fact.”

The depression was about 4 inches wide and 3 or 4 inches deep. Stack’s right toe went into the depression and stopped. The lawn was bumpy and had yellow patches in it. Stack did not see the depression before he stepped into it. Hernandez had no actual knowledge of the depression. He performed normal maintenance on the lawn himself but had never noticed the hole.

Stack sued Hernandez for negligence, alleging that Hernandez failed to remedy the depression in the lawn or to warn him of it, even though he knew or should have known of its presence. Hernandez filed for summary judgment on the grounds that there was no genuine issue of material fact on the issue of notice.

Held: Summary judgment was denied. The Court observed that summary judgment is not well adapted to negligence cases, where, as here, the ultimate issue in contention involved a mixed question of fact and law.

The Court said Mr. Stack's case barely stacked up ... but enough to get the matter to trial.

The Court said Mr. Stack’s case barely stacked up … but enough to get the matter to trial.

The conclusion that a defendant was negligent is necessarily one of fact. A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.

The existence of actual or constructive notice is a question of fact. Although Hernandez argued there was no evidence from which a judge or jury could conclude that he had actual or constructive notice of the depression or that it was a danger of which Stack was entitled to be warned, the Court found Stack’s allegation strong enough to survive a summary judgment motion.

The Court characterized Stack’s claim as weak, but conceded that a reasonable person could conclude that the depression in the lawn was a “danger” which Hernandez should have discovered and remedied with a reasonable inspection. The Court observed that a party has the same right to submit a weak case as he has to submit a strong one, and gave him his day in court to submit it.

– Tom Root