Case of the Day – Monday, November 28, 2022

WHEN LIFE GIVES YOU LEMONS …

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

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

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

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

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

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

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

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

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

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

– Tom Root

TNLBGray

Case of the Day – Friday, November 25, 2022

LINES OF AUTHORITY

Oldsters with droopy pants - not pleasant to contemplate.

Oldsters with droopy pants – not pleasant to contemplate.

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, November 23, 2022

THOU SHALT NOT COVET THY NEIGHBOR’S TREES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Held: The appellate court upheld the trial court decision.

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

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

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

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

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

– Tom Root

TNLBGray

Case of the Day – Tuesday, November 22, 2022

EVERY RULE HAS AN EXCEPTION

It’s a great old saw, but as logicians like to point out, “every rule has an exception” is a logical fallacy. As if anyone could possibly know every rule, so that he or she could be sure that every rule had an exception (sort of like the people who claim no two snowflakes are alike: how could they possibly know that?).

But beyond that, if every rule has an exception, then the rule that every rule has an exception itself has no exception, in which case every rule does not have an exception. It’s enough to make your head throb.

But all we care about here are rules in tree law. If there is any rule that seems immutable, it is the rule that a boundary tree belongs to the owners of both properties on which it is growing. No owner can do anything to trim or kill the tree without the permission of the other owner. Boundary Tree Law 101 right?

Well, yes, but for the exception. In today’s case, one property owner ignores the warnings of the other, and excavates for a basement, only to sever the roots of the big, beautiful boundary oak tree. The court agreed with the aggrieved plaintiffs all the way, except at the end, where the Supreme Court said, “Sure, that’s the rule… but there’s an exception.”

The exception is that if an owner harms or kills the tree while using his property in a reasonable way, the other owner is without recourse.

Does that tiny little exception look big enough to drive a truck through?

Amazingly enough, this decision remains good law in Oklahoma.

Higdon v. Henderson, 304 P.2d 1001 (Supreme Ct. Okla, 1956). The Higdons filed their petition seeking damages for the destruction of a shade tree they said was located on the lot line between their property and that of John Henderson. They said it had been a large towering oak tree which was a valuable shade tree for both lots. They claimed John had been building his house when, over their objections, he excavated a basement, cutting the tree’s roots and killing it.

John argued the Higdons could not recover, because their complaint did not say to whom the tree belonged, and at any rate, they did not state a claim on which they could collect. The trial court agreed, and the case ended up in the Oklahoma Supreme Court.

Held: Identifying the tree as a boundary tree was good enough, but the Higdons could not collect for Henderson’s killing of the tree.

The Court acknowledged the general proposition that “trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.” The Higdons’ complaint referred to the tree as a boundary tree, and that was quite adequate to identify common ownership of it by John and the Higdons. The Court acknowledged the general proposition that “trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.” The complaint referred to the tree as a boundary tree, and that was quite adequate to identify common ownership of it by John and the Higdons.

The Supreme Court also agreed with the Higdons that because the tree was standing on the boundary line, it was the common property of both owners, so neither had the right to damage or destroy the tree without the consent or permission of the other. But, the Court said, that rule is “qualified by the right of an abutting owner to use his property in a reasonable way and conversely, not in an unreasonable way.”

Here, the Higdons complained that John was building a house. This is not an unreasonable use of the property, the Court ruled. Therefore, the resulting incidental injury to the tree did not give the Higdons a right to recover damages.

– Tom Root

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Case of the Day – Monday, November 21, 2022

LIAR, LIAR, PANTS ON FIRE

liar150204Remember prescriptive easements? Those are easements and other rights over property that can be taken because they are exercised adversely to the owner for a number of years (the number varies from state to state).

For example, the electric company strings wires across the corner of your homestead. You didn’t give anyone permission to do that. The wires hang there for 21 years, providing a perch for the pigeons and a trellis for the kudzu. You don’t like them, but you don’t do anything about them. Then you sell the place to Sherman Shyster, an angry lawyer with a laptop and printer. He immediately sues the power company for trespass. But because the wires have been hanging there for a sufficient number of years, the court that the electric company has gained the air rights over that corner of the property by a “prescriptive easement.”

The exercise of adverse rights – the wires hanging there – must be done openly, notoriously and continuously. Anything less, and there’s no easement. In today’s case from California, Gabriele wanted a nice driveway on a sloping hill, but he couldn’t fit it onto his fairly vertical land. So he made a deal with his neighbor, Mrs. Hoehne. She gave him a non-exclusive easement to build a drive on a described bit of land, and in return, he agreed to build a nice road for her to use to come down to and across a retention pond and dam she had.

Before the drive was built, Mrs. Hoehne sold her land to Ms. Cobb. Ms. Cobb didn’t much want Gabrielle’s driveway cutting across her place, but she was stuck with her predecessor’s easement. Still, she asked Gabriele about his intentions before construction began, and he showed her a sketch of the proposed drive.

oops150204Oops. The driveway didn’t get built according to plan, instead wandering onto Mrs. Cobb’s non-easement property. When Ms. Cobb finally had her own engineer study the layout of the driveway eight years later, he found the encroachment. California’s time period for a prescriptive easement is only five years, but Ms. Cobb claimed that Gabriele lied to her with the misleading driveway sketch. Therefore, she argued, his possession during the five-year period was neither open nor notorious.

Ah, the Court said, there’s a real difference between predicting today how the project will turn out, and describing tomorrow how it did really turn out. A prediction that doesn’t come true is not the same as a subsequent lie swearing that something that didn’t happen really did.

Gabriele thought the driveway would lie completely within the easement. No lie. The driveway turned out not to lie completely within the easement. While the error was lamentable, it was not a lie. That is, predicting a future lie isn’t a lie. Got that?

The court ruled that the driveway could stay where it was, having acquired the right by prescriptive easement.

Cobb v. Gabriele, 2007 Cal. App. Unpub. LEXIS 3448, 2007 WL 1247308 (Cal.App. 6 Dist., Apr. 30, 2007). In 1989, the Gabrieles bought a parcel of unimproved land along Salinas Road. Their engineer prepared plans for a driveway directly onto their land from Salinas Road, but the county wouldn’t permit it because the land was too steep. The Gabrieles discussed an easement with their neighbor, Phyllis Hoehne, who ultimately executed a non-exclusive easement for ingress, egress and public utilities over a piece of her land. The easement provided that the Gabrieles would build a driveway, drainage facilities, and erosion improvements on the easement land, and would allow Hoehne to use the driveway portion to access a retention dam located on her property. The Gabrieles also agreed to build an access road across the dam.

Gabriele's driveway was this long ... but not this nice.

Gabriele’s driveway was this long … but not this nice.

Hoehne then sold her land to Cobb, who didn’t much like the easement. Gabrielle built the driveway without notice to Cobb two years later, and when she demanded to know what he was doing, showed her a sketch that depicted the proposed driveway completely within the easement boundaries.

Somehow, the driveway wasn’t built according to the plan, but instead went outside the easement and encroached on between 100 and 120 feet on Cobb’s property. The Gabrieles have used the driveway continuously since its construction, having paved it in 1997. But the Gabrieles didn’t build what they had promised Hoehne. When Cobb asked about the access road, the Gabrieles explained that the road was just going to be a roughed-in dirt road the width of a bulldozer blade, to be used only for a fire exit. Gabriele said Cobb had changed her mind and didn’t want the roughed-in road. But in March 2000, Cobb’s attorney wrote to the Gabrieles about the easement. He asserted that some of the improvements that were supposed to have been constructed in connection with the driveway had not been completed and that the driveway had been construed in a location outside of that designated by the easement. However, Cobb testified that at that time she did not have “absolute knowledge” that the driveway was outside the easement. She said her attorney had made that accusation to cover all possibilities should there be litigation.

In 2003, Cobb received a survey showing the encroachment. Cobb sued that year to quiet title and prayed for declaratory and injunctive relief. She wanted an order that the driveway must be moved. She asserted causes of action for trespass, nuisance, breach of contract, negligence, waste, failure to maintain, unreasonable use, fraud, diversion and diminution of water, and damages to trees, and she sought compensatory and punitive damages.

The trial court granted the Gabrieles’ motion for summary adjudication on the claims for trespass, nuisance, negligence, waste, fraud, diversion/diminution, and damage to trees and the request for punitive damages, finding them barred by the three-year statute of limitations, but found in Cobb’s favor on her claim for failure to maintain. The trial court also found that the Gabrieles had a prescriptive easement over the property where the driveway went outside of the written easement.

Cobb appealed.

Held: The judgment was affirmed. The Court of Appeals found that Gabrieles had shown the elements necessary to establish a prescriptive easement and that the use of the property has been open, notorious, continuous and adverse for an uninterrupted period of five years.

The Court said that the requirement that the use be hostile and adverse and under a claim of right means that the property owner has not expressly consented to or permitted, allowed, or authorized the use of his or her land, and the user does not recognize or acknowledge the owner’s rights, not necessarily that one must know that the use constitutes an encroachment or trespass. In short, where one openly and continuously — even mistakenly — uses another’s property for the 5-year period without the owner’s interference, it is presumed that the use was adverse, hostile, and by claim of right.

human150204Here, the record showed that the driveway encroached on Cobb’s property. Cobb knew about the recorded easement and had constructive knowledge of its boundaries. As well, she knew exactly where the driveway was constructed and saw the Gabrieles continuously use it for more than the prescriptive period. Finally, there was no evidence that Cobb expressly permitted the Gabrieles to use any area outside the easement, nor was there evidence that the Gabrieles intended to stop using the entire driveway or remove part of it if they had known that part of it was outside the easement.

Cobb claimed the Gabrieles failed to establish the open-and-notorious element because Gabriele concealed the fact that the driveway encroached on her property. She noted that Gabriele assured her that the driveway would be inside the easement and gave her a diagram to that effect. Given the concealment, Cobb argued, she did not have knowledge or constructive notice that the driveway constituted an encroachment.

The Court, however, said that before the driveway was actually constructed, Gabriele gave Cobb a sketch showing that it would be within the easement. Thus, it only represented his understanding of where the driveway would be located, not where it had been located. There was no evidence that when Gabriele gave Cobb the sketch, he knew the driveway would be constructed outside the easement, nor is there evidence that after it was built, the Gabrieles knew it encroached on Cobb’s property. And at trial, Cobb conceded that the Gabrieles did not know about the encroachment until her engineer conducted his survey in 2003.

Mrs. Cobb simply couldn’t have it both ways.

– Tom Root

TNLBGray140407

Case of the Day – Friday, November 18, 2022

WOODMAN, SPARE THAT TREE!

woodman150203“… touch not a single bough …”, Mrs. Chinn, the plaintiff, cried in this California case on wrongful tree cutting.

The plaintiff, Mrs. Chinn, agreed with her neighbor, Ms. Hess, to build a common fence. The worker hired to construct it found he had to trim the branches of one of Mrs. Chinn’s plum trees to make the fence fit. And that’s where the problems arose.

Mrs. Chinn’s tenants, the Schmidts, told the worker to go ahead and cut down the tree. Of course, they denied this, but the trial court found the testimony of the worker and four neighbors who watched the timber harvest unfold. Mrs. Chinn sued Forrest and Hess for trespass and for treble damages for wrongful tree cutting under California statute.

The issue was whether Forrest and Hess reasonably believed the Schmidts had the authority to speak for Mrs. Chinn. The trial court found that the authority Mrs. Chinn had given them, coupled with her own ignoring of the goings-on in the fence and tree project, gave the defendants a reasonable basis to believe that the Schmidts could give Forrest the right to cut down the tree.

Thus, there was no trespass. And, of course, no trees left standing, either.

A common fence

     A common fence

Chinn v. Hess, 2007 Cal. App. Unpub. LEXIS 3942, 2007 WL 1430192 (Cal.App. 1 Dist., May 16, 2007). Chinn and Hess owned adjoining properties. Chinn rented her place to the Schmidts. Chinn and Hess had agreed to build a new fence, which they had hired Forrest to complete. While he was building it, he cut down a plum tree on Chinn’s land that obstructed the planned fence.

Chinn sued Hess and Forrest for trespass and wrongful tree cutting under California Code of Civil Procedure § 733. Forrest claimed he had begun merely by trimming the tree, but the Schmidts came outside and agreed the tree should come down. The Schmidts denied this, but the weight of the evidence caused the trial court to believe Mr. Forrest.

The trial court found for Hess and Forrest. Chinn appealed.

Held: The plum tree remained cut down (of course, it would have at any rate), but Mrs. Chinn was not entitled to treble damages under California Code of Civil Procedure 733. The trial court had found that Mrs. Chinn hadn’t proved that Forrest had proceeded without consent, but Mrs. Chinn complained that it wasn’t her obligation to prove lack of consent, it was Forrest’s and Hess’s duty to prove they had consent.

The plum tree was very severely pruned.

The plum tree was very severely pruned.

The Court of Appeals held that lack of consent is an element of the tort of trespass, meaning that it was one of the issues Mrs. Chinn had to prove in order to establish a trespass. Still, whether she carried her burden of proof wasn’t important here, the Court said, because the trial court had concluded that Forrest and Hess had proven that the defendants reasonably believed the Schmidts were Mrs. Chinn’s agents. Mrs. Chinn had given the Schmidts authority to speak to Ms. Hess about the tree and the fence. Once the Schmidts were empowered to speak for Plaintiff, Plaintiff chose not to communicate with Defendant Marilyn Hess, and when the issue of the plum tree arose, Mrs. Chinn did not respond to messages and did not drive two miles to see the fence. Rather, Mrs. Chinn relied solely on the Schmidts to represent her regarding the fence and tree issue, just as she relied upon them to take care of the garden on the property they were renting.

The combination of her intentional conduct and her want of ordinary care, Mrs. Chinn caused Forrest and Hess to believe reasonably that the Schmidts had the authority to consent to the removal of the tree. Ostensible authority in an agent is established by showing that the principal, intentionally or by want of ordinary care has caused or allowed a third person to believe the agent possesses such authority. Such authority must be established through the acts or declarations of the principal and not the acts or declarations of the agent. Where the principal, like Mrs. Chinn, knows that the agent holds himself out as clothed with a certain authority, and remains silent, such conduct on the part of the principal may give rise to liability.

– Tom Root

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