Case of the Day – Friday, February 21, 2025
PARTITION
What happens when landowners can’t get along? Not like husbands and wives – that kind of “not getting along” will always be with us. Rather, what happens when heirs end up owning property together, with each having a fractional piece and no one being able to agree with anyone else about anything?
When that happens – as it did in today’s case – the law provides that land may be partitioned, that is, divided among the owners according to statute. Where reasonable division isn’t feasible, the land is sold and the proceeds are divided.
There’s another legal concept important for today’s case, and that’s what’s commonly known as the Statute of Frauds. The Statute of Frauds was intended to prevent frauds by requiring that certain types of agreements be in writing. Traditionally, the statute of frauds requires a signed agreement for
• contracts in consideration of marriage (including prenuptial agreements);
• contracts that by their terms cannot be performed within one year;
• contracts relating to an interest in land (including contracts of sale, mortgages and easements);
• contracts by the executor of a will to pay an estate debt with his or her own money;
• contracts for the sale of goods totaling $500 or more; or
• contracts in which one party becomes a surety for another party’s debt or other obligation.
The contracts covered by the Statute of Frauds can be remembered by using the mnemonic device “MY LEGS”: Marriage, contracts for more than one Year, Land, Executor (or Estate), Goods ($500 or more), Surety.
In today’s case, one landowner – called a co-tenant because the owners owned the land as a tenancy in common (an expression having nothing to do with rental) – wanted to cut down trees on two of the parcels. When the other co-tenants complained, the first (we’ll call him Greedy Gus) said he was taking the two lots on which the trees were located anyway, and letting the other owners have the more expensive, better parcel. The other owners (think of them as Sloppy and Hasty) agreed with his oral proposal and even made a $16,000 equalization payment as part of the understanding. But when they finally got around to signing an agreement, Greedy Gus wanted to change the deal. Now he sought a whopping big equalization payment, one Sloppy and Hasty wouldn’t pay.
No deal was signed, and Gus then sued for partition under the statute (which would have valued the entire property and given him a much larger stake than what the others said he had agreed to). Sloppy and Hasty counter-claimed, but the trial court granted summary judgment for Gus. S & H appealed, and the Court of Appeals sided with them.
The appellate panel held that there were enough facts in play to require the matter to go to a jury, but the Arizona Supreme Court had the last word. Both the appeals court and the Supreme Court warned Sloppy and Hasty, the two co-tenants who were arguing for the existence of an agreement, that the alleged voluntary partition agreement was subject to the Statute of Frauds, and the amount of paper evidencing an agreement was pretty sparse. Partial performance of a contract will exempt it from the Statute of Frauds: if I sell you a lot, and accept your payment but refuse to give you a deed, the partial performance — your payment — excuses non-compliance with the Statute. Here, the Court of Appeals was pretty clearly unimpressed with the suggestion that the tree cutting was enough performance to excuse the lack of paper. It offered Sloppy and Hasty their day in court, but the day didn’t look too promising.
The day turned out to be anything but promising. The Arizona Supreme Court held that in order to constitute partial performance, the act had to unequivocally prove the existence of the unwritten contract. In other words, “part performance must consist of acts that ‘cannot, in the ordinary course of human conduct, be accounted for in any other manner than as having been done in pursuance of a contract’. The Supreme Court said that “in addition to providing an equitable basis for ordering specific performance, acts of part performance serve an important evidentiary function – they excuse the writing required by the statute because they provide convincing proof that the contract exists. So that this exception does not swallow the rule, the acts of part performance take an alleged contract outside the statute only if they cannot be explained in the absence of the contract.”
Here, the Supreme Court ruled, the acts that Sloppy and Hasty called evidence of part performance were really acts that were as consistent with their one-third co-tenancy interest as they were of anything else. With no partial performance, the unwritten contract went unenforced, too.
Owens v. M.E. Schepp Ltd. Partnership, 182 P.3d 664 (Supreme Court of Arizona, 2008). The parties owned undivided interests as tenants in common in contiguous residential lots. Hal Owens had a two-thirds interest and Schepp Partnership had a one-third interest. Two of the three lots were vacant, and a residence and guest house were on the third. The guest house was rented to third parties, but one of the Schepp partners lived in the residence.
Perhaps one of the first cases of partitioning …
Hal sued for partition of the lots and an accounting for rents and profits. Schepp Partnership answered and counterclaimed for specific performance of an alleged voluntary partition agreement or, alternatively, damages for a purported reduction in the value of two of the lots caused by Hal’s removal of mature trees. Schepp Partnership argued that statutory partition was not available to Hal because he had entered into the voluntary partition agreement.
While meeting with the Schepps over a City notice to clean up the lots, Hal had said he wanted to remove a row of mature, 65-foot tamarack trees along the northern edge of the lots. Thomas Schepp objected, saying the neighbors would be upset. Hal responded that he would decide what to do because he was taking two lots and leaving the most developed one to Schepp Partnership. He also told the partners that because Schepp Partnership would be getting the more valuable lot, it might cost the partners some money.
The parties agreed to divide the lots in this manner but did not reach an agreement on any equalization payment. The Schepp brothers understood, however, that Hal might make a future claim for such payment. Soon after the meeting, Hal removed the trees. He told one of the Schepps that because he had paid a great deal of money for the two lots, the choice to remove the trees was his alone. Hal and Thomas Schepp then agreed a second time that Hal would take two lesser-value lots and Schepp Partnership would take the developed one. Based on this agreement to split the lots, the Schepps allowed Hal to remove the mature trees. Schepp Partnership later paid Hal $16,600, one-third of the total removal cost, as compensation to Hal in light of Schepp Partnership’s receipt of the more valuable lot.
A few months later, the Schepp Partnership sent a partition agreement to Hal for execution, but he returned it unsigned objecting to the lack of an equalization payment provision. Hal proposed that Schepp Partnership pay him $233,333 and grant him an access easement as equalization. The parties negotiated but never reached an agreement regarding additional compensation. The trial court granted partial summary judgment for Hal, ordering statutory partition and appointment of commissioners and dismissing the counterclaim for specific performance, holding that there was never an agreement as to how the property was to be divided between the parties. The Schepps appealed.
The Court of Appeals reversed the trial court, but the Schepps couldn’t find much solace in that fact. Partition is a means of dividing real property among certain types of owners. Property may be partitioned by agreement, or — if agreement cannot be reached — according to the requirements of state law. Voluntary agreements to partition real property are preferred to and controlling over involuntary partition proceedings.
A contract is formed when there is a bargain – consisting of promises exchanged – and consideration. To be enforceable, a contract must be reasonably certain and definite. Agreements leaving material terms for future resolution can be enforceable nonetheless if the parties sufficiently manifested mutual assent to be bound by those agreements. Where terms are missing, extrinsic evidence can be used to establish the meaning of the parties’ contract and supply omitted terms.
Here, the Court of Appeals said, a genuine issue of fact existed as to whether the co-tenants mutually agreed to be bound by an oral partition agreement. That issue of fact precluded summary judgment. But any alleged agreement between the co-tenants to partition the lots constituted an agreement for sale of their respective interest in the other’s remaining real property for purposes of the statute of frauds. And in order to satisfy the statute of frauds, the agreement must be in writing.
Subsequently, the Arizona Supreme Court disagreed, reinstating the original trial court decision. It held that no trial was necessary because neither the Partnership’s withdrawal of its objection to the tree removal nor its payment of one-third of the landscaping contractor’s bill was “unequivocally referable” to the alleged contract. Put differently, neither act is of such character as not to be reasonably explicable on other grounds. While it is true that partial performance of an oral contract is enough to take the agreement outside of the Statute of Frauds, the Partnership did nothing that proved the deal through partial performance. Thus, the contract should have been – but was not – put in writing.
– Tom Root
Case of the Day – Friday, February 14, 2025
SO WHY ISN’T IT THE CALIFORNIA RULE?
The Massachusetts Rule is a topic I tend to flog ad nauseam. This is chiefly because it arises in so many states and in so many forms.
There are two components to the Massachusetts Rule. The first is easy and universally acclaimed. A landowner owns the portion of branches and roots of a neighbor’s tree that encroach on the landowner’s property and may trim those to his or her heart’s content.
The second is more controversial, and has been limited or abridged by a number of jurisdictions, that a landowner’s right to stop an encroaching tree from harming his or her property is limited to self-help – you can trim limbs and cut roots to the boundary line, but you cannot sue to force the tree’s owner to do it for you.
There are more exceptions than you can shake a fallen limb at. The Hawaii Rule holds that you can sue to have the tree’s owner “abate a nuisance,” that is, do whatever it takes to stop the tree from causing you “sensible harm.” Variations have been adopted in Virginia, North Dakota, New Mexico and Tennessee, to name a few places. In fact, some argue that the Massachusetts Rule is a frontier relic, and these days, urbanization and complexity make it prudent for tree’s owner to be responsible for nuisances it causes.
Curiously, however, everyone still refers to the original flinty self-help standard as the Massachusetts Rule. But it arose in sunny California well before Mr. Michalson sued Mr. Nutting.
I saw a column the other day written by a California lawyer. He was explaining how California fixed liability for fallen trees. He cited a California Supreme Court case called Grandona v. Lovdal, which he described as a 1952 decision that applied the Massachusetts Rule in California (although he did not call the rule that).
I was puzzled.I thought I knew the leading California cases for the last half of last century. I had never heard of Grandona or Lovdal. I looked it up and had a tough time finding it. It turned out it had been decided 63 years earlier, in 1889.
And it is a fascinating case, one in which the parties squabble over how much benefit or damage the trees caused, exhaustively referree’d by the trial court. The California Supreme Court simply cut the Gordian knot: it does not matter, the Court said, because the plaintiff has the power to stop encroachment at the property line, and with a saw instead of a lawsuit. While the Court did not say that a nuisance action would never lie (and California has leaned more toward Hawaii and away from Massachusetts in the ensuing 130 years), it seemed to pretty firmly foreclose any successful nuisance action as long as the landowner could be said to own anything straying over or under the damaged property.
So why don’t we call it the California Rule?
Grandona v. Lovdal, 21 P. 366, 78 Cal. 611 (Supreme Ct. Cal. 1889). Andrea Grandona owned about 15 acres of farmland next to that of Ole Olson Lovdal. Ole Olson (probably not the children’s chant) had a line of cottonwoods, planted about eight feet apart, running for 500 feet or so just on his side of the boundary, planted about 25 years before by a prior owner.
Andrea complained that the branches of the tree were overhanging part of her land, and the roots were encroaching about 30 feet into her property, making plowing impossible. She sued to abate a nuisance and for damages, wanting Ole Olson to pay her for the damage the trees caused, and to cut them down.
The trial court would have none of it. It found that the trees had not destroyed any portion of Andrea’s crops, and they had not prevented Andrea from plowing or cultivating the land. In fact, the trees had anchored the fence against floods, and Ole Olsen had kept the trees trimmed, using the limbs he removed for fuel and construction, but he had done nothing more to affect their growth other than to trim.
Andrea appealed, and the case ended up in the Supreme Court.
Held: The trees were no nuisance, and Ole Ole Olson is in free.
The Court was not impressed with Andrea’s complaint that the trees prevented full and fair use of the land, because he could not plant fruit trees on the shaded portion. The Court noted with a bit of exasperation that “we are unable to see how it can be said that land is injuriously affected, or that its owner’s personal enjoyment is lessened because he cannot use it for a purpose which he has never attempted or wished to use it for.”
The heart of the Court’s decision, however, was that Andrea could hardly be inconvenienced by overhanging branches or encroaching roots because that which encroached on his property belonged to him. “The trees and the overhanging branches,” the Court said “insofar as they were on or over his land, belonged to the plaintiff, and he could have cut them off or trimmed them at his pleasure. This being so, we do not see how the fact that the trees had grown so that a small part of them was on plaintiff’s land could give him any cause of action.”
Andrea argued that Ole Olson “maintained the trees for the purpose of supplying himself with fuel and hop-poles, and thereby using plaintiff’s land for his own profit and advantage.” But how can this be so, the Court wondered. “The fuel and hop-poles growing over plaintiff’s land were his and could have been claimed by him as against the defendant. And the fact that the balance of the limbs and branches were useful to defendant in no way harmed the plaintiff or gave him cause for complaint.”
The trial court’s dismissal of Andrea’s complaint was upheld.
– Tom Root
Case of the Day – Thursday, February 13, 2025
A PRÉCIS ON ENCROACHMENT
North Dakota – you used to be able to see the gas flares from outer space. Now, the place is hot once again.
It’s been a roller coaster for North Dakota over the past decade. Early on, North Dakota was a pretty happenin’ place. It was the No. 2 oil producer in the country, unemployment there was at a measly 2.6%, 18,000 more people moved there in 2013 than left… and the state had so much underground methane that it was flaring $100 million in natural gas a month that it couldn’t use.
Suddenly, you couldn’t give away houses there, equipment firms were saddled with bulldozers they couldn’t use, and boom towns were going bust.
But what goes around comes back again. By 2018, Nodak was back on top, pumping as much oil as all of Venezuela (although that’s a pretty low bar). The pandemic drove a green stake through the heart of oil, but in 2020, business heated up again. As of the end of 2024, Nodak was “mature” but still pumping 1.2 million barrels a day, a third more than Maduro’s workers’ paradise.
But I’m not here to talk fracking. The natural resources we care about around here are underground only to the extent of their root systems – root systems that, along with branches, can occasionally encroach on the neighbors. And that can be a real pain in the neck.
Over a decade ago, our guest justices from the North Dakota Supreme Court took time from deciding mineral rights, liability for train derailments, mobile home park regulation and the like to consider the law of tree encroachment. They did a bang-up job of summarizing the history, policy bases and goals of the various rules, before thoughtfully consigning the Massachusetts Rule’s proscription against lawsuits to what we here at treeandneighborlawblog call the “wood chipper of history.”
Back to the pain-in-the-neck tree. Dr. Richard Herring knows something about pains in the neck. They’re his livelihood, as long as they’re found in his patients. But this chiropractor had to deal with another pain in the neck, too. The property next door, on which sat an apartment building, had a large tree with branches that were overhanging Dr. Herring’s bone-crunching office. He fought back with self-help, trimming branches, cleaning up the debris that clogged his gutters, and raking up the mess the tree made every fall. But he couldn’t keep ahead. Finally, the branches damaged his building, and the debris created an ice dam on his roof that flooded the place.
The absentee owners and hired managers at the apartment house next refused his entreaties to care for the tree. So he sued, claiming that they had a duty to manage the tree in such a way that it didn’t mess up his place. The trial court threw the suit out, telling the good doctor that he could trim the parts of the tree that were overhanging his place, but that was his only remedy.
“Wait,” you say, “that’s the Massachusetts Rule.” Right you are. But, as the North Dakota Supreme Court decided, there are other rules out there as well, including some that it thinks are a whole lot better than the doddering relic from Michalson v. Nutting. It reversed the trial court, holding that a tree owner does indeed have a duty to care for his or her trees so as to avoid damage to others.
In its thoughtful opinion, the Court wrote perhaps as fine a roundup on tree encroachment rules as has yet been written.
Herring v. Lisbon Partners Credit Fund, Ltd., 2012 N.D. 226, 823 N.W.2d 493 (Supreme Ct. N.D., 2012). Dr. Herring owned a commercial building in Lisbon housing his chiropractic practice. The apartment building next door is owned by Lisbon Partners and managed by Five Star. Branches from a large tree located on Lisbon Partners’ property overhang Herring’s property and brush against his building. For many years, Dr. Herring trimmed back the branches and cleaned out the leaves, twigs, and debris that would fall from the branches and clog his downspouts and gutters. He claimed that the encroaching branches caused water and ice dams to build up on his roof, and eventually caused water damage to the roof, walls, and fascia of his building. Herring contends that, after he had the damages repaired, he requested compensation from Lisbon Partners and Five Star, but they denied responsibility for the damages.
Encroaching tree roots and branches can sometimes be unsightly
Dr. Herring sued Lisbon Partners and Five Star for the cost of repairing his building, claiming the companies had committed civil trespass and negligence, and maintained a nuisance by breaching their duty to maintain and trim the tree so that it did not cause damage to his property. The district court granted Lisbon Partners and Five Star’s motion for summary judgment, dismissing Herring’s claims. The court held Lisbon Partners and Five Star had no duty to trim or maintain the tree, and Herring’s remedy was limited to self-help. He could trim the branches back to the property line at his own expense, but that was it.
Held: The trial court’s dismissal was reversed, and Dr. Herring was given his day in court.
The North Dakota Supreme Court began its analysis by observing that the Massachusetts Rule was the original common law on tree law in the United States, holding that a landowner has no liability to neighboring landowners for damages caused by encroachment of branches or roots from his trees, and the neighboring landowner’s sole remedy is self-help: the injured neighbor may cut the intruding branches or roots back to the property line at his or her own expense. The basis for the Massachusetts Rule is that it is “wiser to leave the individual to protect himself, if harm results to him from the exercise of another’s right to use his own property in a reasonable way, than to subject that other to the annoyance and burden of lawsuits, which would likely be both countless and, in many instances, purely vexatious.
The Hawaii Rule, on the other hand, rejected the Massachusetts approach as overly simplistic. Instead, it held that the owner of a tree may be liable when encroaching branches or roots cause harm, or create imminent danger of causing harm, beyond merely casting shade or dropping leaves, flowers, or fruit. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.
The Restatement Rule, based upon the Restatement (Second) of Torts §§ 839-840 (1979), distinguishes between natural and artificial conditions on the land. Under the Restatement Rule, if the tree was planted or artificially maintained it may be considered a nuisance and its owner may be liable for resulting damages, but there is no liability for a naturally growing tree that encroaches upon neighboring property.
The Virginia Rule, adopted in 1939, makes a distinction between noxious and non-noxious trees. Under the old Virginia rule, a tree encroaching upon neighboring property will be considered a nuisance, and an action for damages can be brought if it is a “noxious” tree and has inflicted a “sensible injury.”
The district court concluded that under N.D.C.C. § 47-01-12, Herring had a “right” to do as he wished with the overhanging branches and underlying roots of the tree, and therefore this portion of the tree was “just as much the responsibility of the adjacent landowner as it is the owner of the trunk.” In effect, the district court concluded that because Herring had the “right” to the branches above his property, he, therefore, had the responsibility to maintain them as well.
The state Supreme Court complained that the district court had essentially nullified N.D.C.C. § 47-01-17. That statute expressly provides that when the trunk of the tree is wholly upon the land of one owner, the tree “belong[s] exclusively to that owner.” The district court’s holding that Herring, in effect, owned the branches above his property was thus contrary to statute. Statutes must be construed as a whole and harmonized to give meaning to related statutes and are to be interpreted in context to give meaning and effect to every word, phrase, and sentence. The interpretation adopted by the district court did not give meaning and effect to that portion of N.D.C.C. § 47-01-17 which provides that the owner of the tree’s trunk “exclusively” owns the entire tree.
Our thanks to the Supreme Court of North Dakota for its comprehensive opinion …
Contrary to the district court’s conclusion that the Massachusetts Rule was more consistent with North Dakota statutory law, the Supreme Court held that the Hawaii Rule more fully gives effect to both statutory provisions. The Hawaii Rule is expressly based upon the concept, embodied in N.D.C.C. § 47-01-17, that the owner of the trunk of a tree that is encroaching on neighboring property owns the entire tree, including the intruding branches and roots. And because the owner of the tree’s trunk is the owner of the tree, the Supreme Court thought he or she should bear some responsibility for the rest of the tree. The Court said, “We think he is duty bound to take action to remove the danger before damage or further damage occurs.”
The Supreme Court also observed that “the Hawaii Rule is the most well-reasoned, fair, and practical of the four generally recognized rules. We first note that the Restatement and Virginia rules have each been adopted in very few jurisdictions, and have been widely criticized as being based upon arbitrary distinctions which are unworkable, vague, and difficult to apply … In fact, the Supreme Court of Virginia has … abandoned the [old] Virginia rule in favor of the Hawaii Rule [in] Fancher…”
The Court said the Massachusetts Rule fostered a “‘law of the jungle’ mentality” among landowners.
The Court also complained that the Massachusetts Rule has been widely criticized as being “unsuited to modern urban and suburban life.” The Massachusetts Rule fosters a “law of the jungle” mentality, the Court said, because self-help effectively replaces the law of orderly judicial process as the only way to adjust the rights and responsibilities of disputing neighbors. The Court observed that while self-help may be sufficient “when a few branches have crossed the property line and can be easily pruned by the neighboring landowner himself, it is a woefully inadequate remedy when overhanging branches break windows, damage siding, or knock holes in a roof, or when invading roots clog sewer systems, damage retaining walls, or crumble a home’s foundation.”
Accordingly, the North Dakota Supreme Court held that “encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.” The rule does not prevent a landowner, at his or her own expense, from cutting away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.
– Tom Root
Case of the Day – Wednesday, February 12, 2025
YOU, SIR, ARE NO GENTLEMAN
It is fairly common to find people in some kind of kerfuffle over an alleged breach of contract, where one complains that despite what the document might say, the parties had really orally agreed to something else altogether.
That’s why canny lawyers make sure that every contract has an integration clause in it. An integration clause is no relic of the civil rights era. Instead, it provides that the parties have no deals but the deal written down in the contract; in other words, everything has been integrated into the document, and if it ain’t written, well… then it just ain’t so.
Beyond the careful draftsmanship lies the common-law “parol evidence rule.” The word here means “oral” or “solely evidenced by speech.” Today’s case provides a perfect example of it. When the power company got a written easement to trim trees on the Larew estate, that easement provided the power people could keep the lines free of tree hazards. But as the easement was being signed, Mr. Larew asked, “How about my 300-year-old white oak?”
“Oh, that?” the slick power company real estate man said. “We’ll never touch it. You have my word on it.”
Right. It may have taken the power company 20 years, but the tree did get hacked up. When old man Larew’s kids sued – he was long gone by then – the power company said, “What gentlemen’s agreement?”
The utility’s lawyers, having gone to law school, said, “Parol evidence rule! You can’t introduce evidence of an inconsistent oral deal to undercut a clear written easement.”
They were right about that, but dead wrong that the easement meant that they could do as they liked to the trees. The trimming crew boss talked to the property owners but then unlimbered the saws and, as for what was needed, said, “I’ll be the judge of that!”
The West Virginia Supreme Court said, “Not so fast, my friend!” ‘Reasonableness’ and due regard for the rights of the Larews had a lot to do with it, too.
Larew v. Monongahela Power Co., 199 W. Va. 690 (Supreme Ct. W.Va., 1997). In 1975, Glen Larew (a predecessor-in-interest to Susan and Keith Larew) granted a written easement to Monongahela Power Company giving Monongahela the right to trim, cut or remove trees in order to maintain electric service. According to the Larews, there was also a “gentlemen’s agreement” in 1975 that a 300-year-old white oak tree on the Larew property would never be touched.
However, one day in 1994, Asplundh Tree Expert Company, Monongahela’s tree trimming contractor, told the Larews that tree trimming would commence shortly pursuant to the easement. The Larews discussed the extent of the trimming with Asplundh but to no avail. Two months later, the trimmers arrive with chainsaws blazing. They trimmed three trees on the Larews’property, including severely cutting up the 300-year-old white oak.
The Larews sued for wrongful cutting, arguing that the extent of trimming was unreasonable. Monongahela filed for summary judgment, alleging that “reasonableness” is not an issue because the determination of the extent of tree trimming needed rests solely with the easement holder. The trial court agreed with Monongahela and dismissed the LaLarews’omplaint.
The Larews appealed.
Held: The power company’s easement gave it the right to trim trees to the extent that the trees endangered the safety or interfered with the use of the power lines, but such trimming has to be done in a reasonable manner with due regard to the rights of all parties. The trimming must not inflict unnecessary damage to the land or unreasonably increase the burden on the servient tenement (the property owner’sights).
The Larews raised two arguments on the appeal. First, they claimed, the trimming violated the 1975 “gentlemen’sgreement” not to trim the white oak. Second, they argued that the trimming performed was unreasonable.
The Supreme Court made short work of the “gentlemen’s agreement.” The parol evidence rule, which generally prohibits the introduction of any extrinsic evidence to vary or contradict the terms of written contracts, is quite clear: prior or contemporaneous statements that contradict the clear, unambiguous language of a written contract are inadmissible. Parol evidence may only be admitted to explain uncertain, incomplete or ambiguous terms.
Here, the terms of the written easement were clear, and evidence of an oral “side deal” that contradicted those written terms was inadmissible.
The fee interest in land over which a power company has been granted an easement remains with the party making the grant. The grantor-owner of the land retains the right to make any reasonable use of the land subject to the easement so long as that use is not inconsistent with the rights of the grantee.
In exercising the rights granted under an easement, a power company must follow the rule of reasonableness. In other words, the power company may not inflict unnecessary damage on the land and may not unreasonably increase the burden placed upon the servient tenement.
Under a general right-of-way easement, a power company has the right to enter upon the land to maintain and repair its equipment to the extent necessary to ensure the safe and effective operation of that equipment. In exercising that right of entry, however, the power company may not inflict unnecessary damage on the land or unreasonably increase the burden placed upon the servient tenement. This right of entry includes the right to enter upon the land to cut or trim trees or limbs that might be a danger to the power lines.
A power company’s right as an easement holder is limited to the removal of growth that endangers the safety or interferes with the use of the power company’s lines on the right-of-way, and any removal must be done in a reasonable manner with due regard to the rights of all the parties. The power company’s rights are not unlimited. The power company must not inflict unnecessary damage to the land nor may its exercise of its rights unreasonably increase the burden placed on the servient tenement.
The Larews also maintained that there was a genuine issue of material fact concerning the reasonableness of Monongahela’s trimming. The trial court held that “the easement permits Mon Power to exercise its own opinion in determining how much to trim to prevent the trees from interfering with the power lines” and that the rule of reasonableness stated in Kell v. Appalachian Power did not apply.
In Kell, the Court observed that the “fee interest in land over which a power company has been granted an easement remains in the party making the grant. The grantor-owner of the land retains the right to make any reasonable use of the land subject to the easement so long as that use is not inconsistent with the rights of the grantee.” Thus, the Court said, in exercising the rights granted under an easement, a power company must follow the rule of reasonableness. It “may not inflict unnecessary damage on the land” and “may not unreasonably increase the burden placed upon the servient tenement.” The Kell court held that the right given by the utility easement was “to cut and remove trees, overhanging branches or obstructions that endanger the safety, or interfere with the use, of the power company’s lines on the right-of-way granted by the indenture.
Given the principles upon which Kell is predicated, the Court said, “We find that the [trial] court erred in holding that as a matter of law, the appellees were not subject to the reasonableness rule of Kell.” Monongahela’s right is limited to the removal of that which endangers the safety, or interferes with the use of the power company’s lines on the right-of-way, and any removal must be done “in a reasonable manner, with due regard to the rights of all the parties.”
Because there is a genuine question of material fact concerning whether the power company unreasonably increased the burden on the Larews’ property when it exercised its rights under the easement, and whether Monongahela limited the trimming to that necessary to assure the safety and continued use of the power company’s lines, summary judgment should not have been granted.
– Tom Root
Case of the Day – Tuesday, February 11, 2025
DAMNED IF YOU DO…
Yesterday, we read about Mamie Segraves, who successfully sued an electric utility because its workers determined that trees within its easement posed a risk to the distribution lines and that one should be removed and the other topped.
Segraves taught us that in Missouri, a utility company’s judgment that a tree needs to be removed does not mean much if the homeowner wants it preserved. Today, from the Damned If You Do, Damned If You Don’t Department comes another Missouri decision, in which a utility is held liable because the landowner wanted a tree in the easement area removed, but the utility did not see the need.
When Greg Fenlon noticed a hazard tree he believed threatened his local power grid, he called the electric company. Its crews, unfortunately, were uninterested in taking direction from Greg and, to make matters worse, they did not perform their duties much to Greg’s liking. He wanted the hazard tree removed. They demurred.
After the crew headed off for coffee and doughnuts, Greg hired a crew that would take direction from him (because he was paying them). Greg’s crew removed the tree, and Greg sent the bill to Union Electric. Union sent it back.
Greg was as serious about litigation as he was about tree removal. He sued Union Electric for the cost of his tree-cutting crew. And he got further than you might think.
Fenlon v. Union Electric Co., 266 S.W.3d 852 (Court of Appeals of Missouri, Eastern District, 2008). Greg Fenlon was not a guy to let a job go undone. When he noticed a dangerous tree interfering with Union Electric wires, he contacted the utility to report it. Union Electric sent a couple of men in a truck, who trimmed back a few branches but refused Greg’s demand that they cut down the hazardous tree (despite the fact it was inside the utility’s easement). So Greg did the job himself, hiring a contractor to cut down the tree. He then sued the utility for the cost of the removal.
The trial court dismissed Greg’s claim, and he appealed.
Held: Greg’s suit was reinstated.
The Court observed that suppliers of electricity must exercise the highest degree of care to maintain their wires in such condition as to prevent injury, citing the Missouri Supreme Court’s Gladden case. However, the Court said, “Nothing in Gladden limits the exercise of the highest degree of care solely to the trimming of branches that are either touching or close to wires. Rather, the focus in Gladden is on the likelihood of injury and prevention thereof.”
The key issue here, the Court said, was whether the hazard tree created an unreasonable risk of injury, and that was a question of fact. If it did, then Greg’s self-help in the Union Electric easement should be paid by the utility.
The trial court was in error when it effectively determined a question of fact question on a motion to dismiss. Greg’s pleadings were adequate to state a cause of action, so the matter had to go back to trial.
– Tom Root
Case of the Day – Monday, February 10, 2025
HERE WE CUT DOWN THE MULBERRY BUSH…
When Mamie’s lights went out, she called the electric company to fix them. The linemen tracked down the problem and fixed it while Mamie was off at Wal-Mart. But while they were there and Mamie wasn’t, the electric workers saw an excellent opportunity to saw… and to get rid of some trees in the utility’s easement across Mamie’s yard that they thought were in the way of the distribution line to Mamie’s house.
Mamie returned, shopping bags in hand, to find her mulberry tree had been cut down and cherry tree topped. Naturally, she sued. After all, her trees had not caused the power outage. Nevertheless, the electric company said the tree could have caused the power loss, but for the grace of God, and it relied on its easement to support its right to remove the one tree and permanently stunt the other out of concern that someday they might pose a hazard.
I would have bet a new chainsaw that the electric company was going to win this one, and I can only conclude that it may have been “homered” by the local judge. After all, Mamie was a neighbor, and the big, bad electric co-op was just some faceless out-of-towner. I know of no other way (than possibly an inability to read precedent and engage in reasoned thought) to justify a holding that while the utility had an easement, as well as the duty to maintain the reliability of its lines, it nonetheless could not merely be liable for overzealous trimming but even be socked with treble damages.
Treble damages are only appropriate in Missouri if the malefactor lacks probable cause to believe it owned the land the tree stood on. That test should have been modified to comport with the facts. Consolidated had an easement for the electric lines to cross Mamie’s property, and whether its decision to trim or remove the trees near its lines was correct or not, the decision should have been accorded deference.
Tomorrow, we’ll look at a subsequent Missouri electric company case, where we will see the utility get clobbered despite its desperate reliance on today’s holding.
Segraves v. Consolidated Elec. Coop., 891 S.W.2d 168 (Ct.App. Missouri, 1995). Mamie Segraves sued Consolidated Electric Co-op – her electricity provider – after one of its linemen cut down her mulberry tree and “topped off” her cherry tree.
One summer day, Mamie awoke to find that her electricity was off. She left to go shopping at 9 a.m., and when she returned two hours later, the lights were back on. However, the mulberry and cherry trees in her front yard had been cut down and one branch of her elm tree had been cut off.
Mamie testified these trees had never interfered with her electrical service before. In the past, Consolidated had asked to trim the trees around her electric lines, and she had always agreed, but it had not done so in the past six years. Mamie estimated the value of the mulberry tree was $2,000.00, and the value of the cherry tree was $500.00.
Mitch Hurt, a senior lineman with Consolidated, testified he was called to handle an electrical outage. He tracked the outage to a problem with one of the lines near Mamie’s home, but he could not pinpoint the problem. He had to drive down the road and look at the individual lines to try to find the problem. When he passed the line leading up to her house, he could not see the transformer pole. He stopped and went to inspect her service. He noticed her mulberry tree was very close to the transformer, and so he cut it down “to get it away from the transformer pole.” He also cut off the entire top of a nearby cherry tree because its branches had all grown towards the line. He felt these branches presented a safety hazard because children could easily climb them and reach the power lines. Mitch admitted it may not have been necessary to cut down either of these trees to reinstate electrical service.
Bob Pogue, Jr., Mitch’s boss, testified he told Mitch to trim as much of the trees as he thought was necessary. Bob Jahn, Consolidated’s general manager, testified Mamie knew about the location of the electric lines when she bought the place.
The trial court found in Mamie’s favor and assessed treble damages. Consolidated appealed.
Held: The Co-op had no right to cut the trees, and treble damages were proper.
The trial court did not find Consolidated to be a trespasser because it had the right to enter onto Mamie’s premises to maintain the electric lines. The right to remove limbs that have fallen onto the lines, however, “does not extend to cutting down trees or ‘topping’ trees that are not presently interfering with electrical service without prior consultation with the property owner.” While the mulberry and the cherry trees probably needed to be trimmed, the trial court said, there was no evidence that the mulberry “needed to be cut to a stump and that the cherry needed to be cut back to its major trunks, eliminating all of the fruit-bearing branches.”
Section 537.340 of the Revised Statutes of Missouri allowing for treble damages for the destruction of trees, does not require that a party wrongfully enter upon the property. In fact, the Court of Appeals said, Mamie can recover for wrongfully cutting down trees if she can establish either that Consolidated wrongfully entered her land and cut down the trees, or Consolidated entered her land with consent but exceeded the scope of the consent by cutting down the trees without permission.
While it is true, as Consolidated argued, that a license may be converted into an easement by estoppel if the license holder can establish it spends a great deal of time and money to secure enjoyment of its use, the scope of such an easement nevertheless will be determined by the meaning and intent that the parties give to it. The Court found no history between the parties of cutting down trees, and nothing from which such a right to cut down trees can be implied. Thus, even if Consolidated did acquire an easement by estoppel, it exceeded the scope of the easement by cutting down Mamie’s mulberry and cherry trees.
The utility also argued it was required by law to trim or remove the trees to ensure safety. Under the National Electrical Safety Code, Consolidated argued, it was required to trim or remove trees that may interfere with ungrounded supply conductors should be trimmed or removed, and where that was not practical, the conductor should be separated from the tree with proper materials to avoid damage by abrasion and grounding of the circuit through the tree. Consolidated maintained it had the authority to remove Mamie’s trees according to the Code because there was substantial evidence showing limbs of both trees had been burned by electricity, the mulberry tree was blocking the transformer pole, and the children living nearby could have easily climbed either tree and reached the live electric wires.
The Court rejected that, holding that Consolidated failed to show that the Code applied here because it failed to present evidence that the electrical wires leading to Mamie’s home were “ungrounded supply conductors.” Further, even if the Code applied, it gives electric companies two options, to trim or to remove the trees. The trial court found it was unnecessary to remove the trees in this case.
Not to be deterred, Consolidated also argued it was obligated to remove the trees because it had a non-delegable duty to maintain a safe clearance around its electrical lines. “Although Consolidated was required to exercise the highest degree of care in maintaining its electrical wires,” the Court said, “it was not required to remove the trees surrounding them, and it exceeded its authority by doing so.”
Section 537.340 of Missouri Revised Statutes holds that if any person shall cut down, injure, or destroy or carry away any tree placed or growing for use, shade, or ornament, or any timber, rails, or wood standing, being or growing on the land of any other person, the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed, or carried away, with costs.
The Court noted that a person can only fell trees wrongfully in one of two ways: he can enter the land wrongfully and fell the trees, or he can enter with the landowner’s consent and then exceed the scope of that consent by felling trees without permission. While the statute limits damages recoverable to single damages in certain cases, such as where it appears the defendant has probable cause to believe that the land on which the trespass is alleged to be committed, or that the thing so taken, carried away, injured, or destroyed, is his own. It was up to Consolidated to prove it had such probable cause.
The determination of whether the defendant proved probable cause existed rests with the trial judge. Here, the Court said, “the trial judge did not abuse his discretion in finding Consolidated did not have probable cause” to believe it had the right to cut down Mamie’s trees.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 