Case of the Day – Friday, October 11, 2024

Posted on October 11, 2024 by TLRoot tagged.

SHE SURE GOT HER BELL RUNG

A young girl and her friend sneaked onto church property to play. While they were doing whatever young kids do when they’re where they shouldn’t be, the girl pushed on a bell. The bell fell, injuring her foot. When kids trespass and do stupid things, how do the parents respond? Why, they sue the landowner, of course.

In this case, it was a local Catholic Church getting sued – unusually enough – for something that had nothing to do with sex abuse. Despite the Diocese’s obvious relief at being sued on behalf of a child plaintiff who wasn’t complaining about a priest, the Church nonetheless argued that it enjoyed immunity under Wisconsin’s recreational use law.

In a strange analysis, the Court of Appeals disagreed. Reba was hurt when she pushed on the bell, and the Court held that her pushing the bell wasn’t related to the game she and her friend had been playing. This, the Court said, was mischief. Plus, the Court said, the Church wasn’t really a recreational property, and the Church didn’t invite people to use it as such. In fact, it took steps to keep kids from playing there. So because Reba was engaging in mischief as a trespasser and because the Church was arguably acting responsibly in trying to prevent this kind of conduct from occurring, it owed Reba a greater duty than had it left the place wide open. This is probably a correct application of the recreational use statute, but it seems not to make a lot of sense as a matter of public policy.

"Trespasser William" the kid was not ...

Remember Winnie the Pooh? “Trespasser William” young Reba was not …

Fortunately, under Wisconsin law, the Church only would have owed a duty to a trespasser to refrain from willful, wanton, or reckless conduct, about the same result the Church would have gotten from application of the recreational use statute. Unfortunately, a jury found the Church had engaged in such conduct and awarded the plaintiff money damages.

You might think that you have no duty to a trespasser wandering onto your property. Guess again.

Fargo ex rel. MacArthur v. United Nat. Ins. Co., 739 N.W.2d 490 (Wis.App., 2007). A child playing house on church property was injured when she tried to push on a bell, which fell and injured her. The girl sued the St. Ignatius Catholic Church through her parents for negligence, and a jury awarded her damages. St. Ignatius appealed, arguing that it was entitled to immunity under the Recreational Use law, Wis. Stat. §892.52.

Held: The award of damages to young Miss Fargo was affirmed. The recreational immunity statute limits property owners’ liability toward others who use their property for recreational activities. The statute defines recreational activity as “any outdoor activity undertaken for exercise, relaxation or pleasure…” It lists 29 specific recreational activities but instructs that “recreational activity” should be liberally construed in favor of property owners to protect them from liability.

To determine whether a person was engaged in a recreational activity under the statute, the Court said, a fact-finder should consider the totality of circumstances surrounding the activity, examining the intrinsic nature of the activity, the purpose of the activity — including the injured person’s subjective assessment of the activity — and consequences of the activity. A court should also consider the nature of the property, including whether the owner intended the property to be used for recreational activities, and the reason the injured person is on the property.

The Church should have posted this sign. Er ... on second thought, maybe not .

The Church should have posted this sign. Um … on second thought, maybe not.

Here, St. Ignatius argued it was entitled to immunity because young Reba Fargo was injured while playing house with a friend on church property, and this was a recreational activity. The Court disagreed. Instead, it ruled that Reba was injured when she pushed the bell, which fell on her foot. The Court held that her act of pushing the bell wasn’t related to the game she had been playing. Rather, viewing the activity objectively, she was attempting to move a large, stationary object by pushing very hard.

The Court concluded that this independent act was mischievous because Fargo was trying to move an object that was not designed to move. Wisconsin law holds that mischievous conduct is not a recreational activity. What’s more, considering the nature of the property, St. Ignatius was a church, not a playground or other place where recreational activity would usually occur. The church made attempts to limit children playing on its property. While not determinative, that fact was an appropriate factor bearing on the recreational use analysis.

Considering all of the factors, the Court concluded that Reba Fargo was not engaged in a “recreational activity” within the meaning of the Recreational Use statute. Thus, St. Ignatius was not entitled to immunity.

– Tom Root

Case of the Day -Thursday, October 10, 2024

Posted on October 10, 2024 by TLRoot tagged.

DO YOU KNOW THE MUFFIN MAN?

So who was it who lived on Byrum Lane-O?

No, it wasn’t the Muffin Man, but the Clarks. They had assembled several parcels of land into a pretty nice cattle spread and homestead along the Jefferson River. And they had always used Byrum Lane. The road passed across their land, across the Dwyer Place and ultimately back to some more of their land and up to their house.

Back in the 1960s, the land around the Byrums’ cow palace had been subdivided in smaller lots for homes, almost none of which (other than the Clarks’ place) had been built. Meanwhile, all the landowners and their guests used Byrum Lane, and had for a long while. The County had even maintained the road sporadically.

But then came the legal drama. When the Clarks completed their new home, the Dwyers (or maybe the Dwyers’ descendants, who were the parties to the case), told the Clarks they couldn’t use the road anymore. The Clarks sued, arguing they had a prescriptive easement. A prescriptive easement is much like adverse possession (the doctrine that lets an especially brazen and long-term trespasser gain title to your land). However, unlike adverse possession, the prescriptive easement isn’t about ownership: rather, it’s about the right to use someone else’s property. If you have used someone else’s driveway openly, notoriously, adversely, continuously and without interruption for the period of time required by statute, an easement in your favor has been created just by force of your chutzpah.

In this case, the Clarks had used Byrum Lane without permission for years, as had their predecessors, and as had just about everyone else. The County had even maintained it for a while, seemingly uncertain whether it was a public right-of-way or not. The specific issue before the Supreme Court was whether the prescriptive easement extended to the Clarks’ use of Byrum Lane to reach a house on a parcel that didn’t exist when the prescriptive easement came into being. The Court said they could. The land had been subdivided before the prescriptive easement came into being, so the Dwyers had reason to think that if an easement had come into being prescriptively, it could be used to reach one of the homes which were contemplated on the vacant lots.

Clark v. Heirs and Devisees of Dwyer, 339 Mont. 197, 170 P.3d 927 (Mont. Supreme Court, 2007). The Clarks owned real estate, which they had acquired as several tracts over a seven-year period beginning in 1979. The Dwyers owned real property that bordered a piece of the Clark land with railroad tracks acting as a visible property line. The Dwyer property was bordered on the east by a county road named “Waterloo Road” and on the north by a roadway known as “Byrum Lane.”

Byrum Lane extended from Waterloo Road, across the Dwyer property, and across the northern border of the Clarks’ property – which lay between the Dwyer land and property owned by George and Virginia Byrum – before continuing onto the Byrums’ property lying to the southwest of the Clarks’ land. In essence, Byrum Lane dissects the Clarks’ land.

The Byrums used Byrum Lane by virtue of two recorded easements in their favor. The portion of Byrum Lane crossing the Clarks’ land is a recorded 60-foot wide roadway and utility easement. The portion of Byrum Lane traveling from Waterloo Road over the Dwyer property is a road and utility easement for a 30-foot wide roadway. This portion of Byrum Lane crosses the Dwyer property from Waterloo Road for a distance of about 834 feet before reaching the Clarks’ property.

Historically, Byrum Lane was used by the Clarks and their predecessors to access the tracts the Clarks had purchased. During the period of 1979 to 1986, Byrum Lane served as the Clarks’ sole access to their house. From the period of 1986 to 1991 the Clarks used Byrum Lane to feed livestock, load hay, and move equipment. Later, after they built a new house in 1988 on one of their tracts that previously had no residence, the Clarks continuously used Byrum Lane (although they also had access to their house by way of a roadway from Waterloo Road.)

The Clarks claimed a prescriptive easement along Byrum Lane, allowing them access over the Dwyer property to their land. Following trial, the court found that Byrum Lane had been used by the public and Clarks’ predecessors since the early 1900s, had been maintained by the county road department on occasion, was generally known as a public road which the public had a right to use long before the Dwyers purchased their property, and had been used without permission by the Clarks and Byrums (as well as others) since the time the Dwyers bought their land. The Dwyers and Byrums argued that the Clarks didn’t have the right to use the road to reach a residence on a tract that hadn’t had one when the prescriptive easement came into existence.

The trial court disagreed, saying that all owners of the road were put on notice in the 1960s that the road was intended to service residences when the subdivision of the property into various tracts took place. The court concluded that the Clarks established the elements of a prescriptive easement, an open, notorious, exclusive, adverse, continuous, and uninterrupted use of the roadway for at least five years. The Dwyers appealed.

Held: The Supreme Court upheld the trial judge. The Dwyers complained that the trial court had no business making findings about the public-use nature of the road. The Supreme Court disagreed, holding that although the action involved an alleged private easement, the public-use findings served only to give credibility to the private easement claim and had no other legal effect.

To establish a private prescriptive easement, the Court said, a party must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the full statutory period of five years required by Montana Code § 70-19-404. An open and notorious use is a distinct and positive assertion of a right that is hostile to the rights of the owner and brought to the attention of the owner. Once a prescriptive easement is established, the owners of the easement are limited to the use and frequency of use that was established during the prescriptive period. If an easement is not specifically defined, it is considered to be of a size that is reasonably necessary and convenient for the purpose for which it was created, and not more. And once established, a prescriptive easement “runs with the land,” which means that the benefit or burden passes automatically to successors.

Applying these principles, the Supreme Court found that the Clarks had a prescriptive easement to use Byrum Lane. The right to use the private prescriptive roadway easement provided subdivision access extended to the Clarks’ and other tracts, lands that never had residences. The tracts were subdivided before the prescriptive easement came into being, the Court said, and the act of subdividing the tracts of land put all landowners on notice that the disputed roadway was intended to service all residences. Furthermore, the disputed roadway had been used to service parcels for several decades.

– Tom Root

Case of the Day – Wednesday, October 9, 2024

Posted on October 9, 2024 by TLRoot tagged.

DIAMONDS ARE FOREVER – EASEMENTS, NOT NECESSARILY…

Easements are fairly easy to grant. A blank piece of paper, a wild notion that some right should be given to your neighbor, a notary public to make it all legal, and maybe a fifth of good whisky to make you sufficiently reckless, and you can blot your title for a good long time.

How long, you ask? How about “perpetually,” the answer usually goes. But not always. Normally, one would hope that the easement was drafted precisely enough to specify its duration, or at least leave the intent of the grantor clear. But not always.

Young law students learn quickly enough in contract law that where a time for performance is not specified, a “reasonable” period of time is assumed. A “reasonable time” varies according to subject. If I promise the neighbor kid I will pay $20.00 to have my lawn cut, the little layabout cannot wait two months before showing up with the mower expecting the deal to still apply. On the other hand, if I agree with a neighbor that if he plants an apple tree on my land for me, he can have half of the apples, he can wait 15 years before showing up with a basket, and I have no beef with him.

So it is with easements. In today’s case, neighbors granted mutual easements a half-century before, relating to maintaining a fence, letting the one cross the property of the other, and letting one party cut timber on the other’s land. No term was specified. When the fence maintenance and property crossing continued for 50 years, the court had no problem. But the timber harvest was clearly, according to the court, intended to be accomplished in the short term. The holder of the timber harvesting right could not wait two score and ten before arriving with his saw.

You snooze, you lose.

Lewison v. Axtell, 195 N.W. 622 (Supreme Court, Iowa, 1923). Ollie Lewison and Oscar Axtell owned tracts of land on both sides of the Iowa River. The prior owners of both properties had signed a contract many years before – in fact, 20 years before the predecessors sold their land to Ollie and Oscar – that granted easements for the construction and maintenance of a fence along Ollie Lewison’s tract, as well as a right for Oscar Axtell to pass through Lewison’s property. In exchange for the fence, the prior owner of Oscar Axtell’s tract was given the right to trim timber and brush from certain areas of the Ollie Lewison property.

When each of Ollie and Oscar took possession of his respective tract, no mention of the easement contract was made in either deed.

The fence remained in place for many years, during which time Ollie Lewison had allowed Oscar Axtell to cross his property. However, when Oscar Axtell decided to remove timber from Ollie Lewison’s property, Ollie sued to prevent Oscar from doing so, claiming that too much time had elapsed for him to exercise that right. The trial court found in favor of Ollie.

Oscar Axtell appealed.

Held: Oscar was not permitted to cut any timber on Ollie’s land.

The Supreme Court of Iowa defined the sole issue as being “whether the [defendant] now has a right to remove timber or brush from [the plaintiff’s property].” In Iowa, the Court said, “contracts for the purchase of growing trees must remove the same within the time specified, and, if the contract is silent as to time, then within a reasonable time after the contract becomes effective.” In this case, the Court found that Oscar Axtell was required to have removed the trees within a reasonable time, and – given that he had been in possession of his tract for more than 30 years without doing so – his attempt to do so was no longer reasonable.

The Supreme Court conceded that the question could have gone either way, but its conclusion was buttressed by the fact that some rights in the contract – such as the right to build a fence and for Oscar Axtell to pass across Lewison’s land – were described as “perpetual,” but the right to cut the timber was devoid of any language suggesting the original parties had foreseen, when signing the contract a half-century earlier, that the timber harvesting would extend into perpetuity as well.

– Tom Root

Case of the Day – Tuesday, October 8, 2024

Posted on October 8, 2024 by TLRoot tagged.

I’M FROM MISSOURI

All right, I’m not from Missouri, but I have passed through the “Show Me State” a few times, and it’s a pretty nice place. But, given their reputation for being hard to convince, how would Missourians treat encroachments to their properties from trees not their own?

On one hand, there’s the state nickname. The most well-known and widespread story features Missouri’s United States Congressman, Willard Duncan Vandiver, who gave a speech in 1899 to some Philadelphians in which he said:

 ”I come from a state that raises corn and cotton and cockleburs and Democrats, and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You have got to show me.”

 His statement may be interpreted as a claim that Missourians are not naïve: If you want someone to believe you, you better have convincing evidence.

On the other hand, Missouri’s official motto is “Salus populi suprema lex esto,” which my sainted Latin teacher, the late Emily Bernges, would have told us translates to “the welfare of the people shall be the supreme law.”

All right, let’s run with that.

When Pete Hasapopoulos’s driveway started crumbling from neighbor Joyce Murphy’s Chinese elms, was his good the supreme law? Or, because Missourians are not naïve, should he have known that Joyce’s Chinese elms were going to grow? After all, a natural tree largely does what it wants to do. It may sit on one owner’s property, but above ground, the branches may spread over the neighbor’s property, and leaves or fruit or even deadfall may make a mess of the neighbor’s house, outbuildings or yard. Underground, the root systems may spread until they meet retaining walls, basements, septic systems and underground utilities.

This phenomenon is called “encroachment.”

Traditionally, the rule has been that any property owner has the right to trim back branches and root systems to the property line, at his or her own expense. This “self-help” doctrine is known as the Massachusetts Rule, so called because it was first articulated in a Massachusetts case known as Michalson v. Nutting. The dark side of the Massachusetts Rule was that no matter how destructive the neighbor’s tree was to your property, you had no right to sue your neighbor to force him or her to trim the tree or roots or to get any financial help from your neighbor for costs you incurred in doing it.

As American society became more urbanized, other courts took a more liberal view. When a neighbor’s banyan tree – a monstrosity of a tree – began overgrowing Mr. Whitesell’s property in Honolulu, he sued his neighbor to get a court order to force the neighbor to take care of the problem. Impressed by the sheer magnitude of the nuisance caused by the tree, the Hawaii court held that in Whitesell v. Houlton that while anyone had the right of self-help as described in the Massachusetts Rule, when a tree caused sensible harm to a neighbor, the owner of the offending tree could be ordered to trim the tree or roots at his or her own expense. This is called the Hawaii Rule.

The Hawaii Rule has gained traction in a number of states over the past 20 years. Tennessee, New Mexico, North Dakota, Arizona and New York follow it. Several other states follow the rule with variations.

But not in Missouri. What’s that? “Show me,” you demand? All right, you’re from Missouri. We will.

Hasapopoulos v. Murphy, 689 S.W.2d 118 (Court of Appeals of Missouri, Eastern District, 1985). Pete Hasapopoulos experienced problems from overhanging branches and cracking of his driveway caused by the roots of two Chinese elm trees owned by the next-door neighbor, Joyce Murphy. The trial court held that Joyce was not liable, and Pete appealed.

Held: Joyce prevailed.

The Court of Appeals, agreeing with other jurisdictions “which find no cause of action for damages to neighboring property caused by encroachment of the roots or branches of healthy trees,” found that Joyce was not liable. At the same time, it held that Pete retained a right of self-protection by cutting off the offending roots or branches at the property line.”

The Court observed that Missouri is “squarely among those jurisdictions which find no cause of action for damages to neighboring property caused by encroachment of the roots or branches of healthy trees, but leaves the plaintiff to his right of self-protection by cutting off the offending roots or branches at the property line.” And here, Pete had no proof the chinese elms were defective.

Application of the Massachusetts Rule, the Court, results in no injustice in this case. “Neither plaintiffs nor defendant committed a wrongful act. We are not inclined to find defendant acted unreasonably in permitting perfectly healthy trees to grow, and certainly defendant intended no harm thereby. The trees and their proximity to plaintiffs’ land existed when plaintiffs purchased their residence. They must be charged with awareness of the potential effects of growing trees. Recourse to self-help to protect from damage and to eliminate annoyance from overhanging branches was available to plaintiffs for 15 years before they had the branches cut off at the property line. Imposition of liability upon the tree owner under such circumstances would create the potential for continuous controversy between neighbors and could promote harassment and vexatious litigation, disruptive of neighborhood serenity. Possible exposure to liability would warrant the uprooting of trees and shrubbery in proximity to boundary lines resulting in non-aesthetic barrenness.”

– Tom Root

Case of the Day – Monday, October 7, 2024

Posted on October 7, 2024 by TLRoot tagged.

HE SAID, SHE SAID…

This is probably the right time, what with Presidential campaign drama being played out in Washington and across the country, to run with our own “he said, she said” case, a peculiar turn-of-the-last-century trespass to timber case from New Jersey.

The defendant farmer was accused of trespassing onto the plaintiff’s land without permission and cutting down 32 trees. He said he only cut 13 trees, and anyway, he had permission from the plaintiff’s father (the plaintiff being a fair damsel who, back then, couldn’t be worrying her pretty little head about real property management).

The plaintiff’s dad, unsurprisingly, denied giving permission.

It seemed pretty clear that the jury bought the plaintiff’s version of events. The damages awarded could not have been for just 13 trees, implying the jury must have believed that Farmer Ruddy had taken all 32. The fact that the jury found a trespass meant that it necessarily disbelieved Farmer Ruddy’s story about looking at the trees with the plaintiff’s father and making a deal.

After the obligatory denial that it was not second-guessing the jury, the court of appeals held that punitive damages were not proper where the case was nothing more than “an honest dispute as to permission for the act found to be a trespass…” Sure, and Bonnie and Clyde thought they had permission to take money that wasn’t theirs from the bank. So their offense was really just “an honest dispute as to permission for the act” found to be a robbery accompanied by lots of gunfire.

If Farmer Ruddy did not have permission (as the jury found he did not), then his entire story about walking the boundary with Ms. Hollister’s father was a woof story. And necessarily, Farmer Ruddy’s conduct in trespassing and taking the trees was wanton and malicious.

The court of appeals was simply substituting its own conclusions for those of the jury, rewriting the verdict as best it could by reducing the damages by about half.

This is not only an old decision, it’s an awful one. The Court may have been swayed by George Ruddy’s motive, to remove the shade from his field and thereby make it more productive. It may have preferred George’s detailed testimony over getting permission from plaintiff Minnie Hollister’s dad, whose hot denials may have sounded hollow. It may have figured that some woods belonging to a mere girl should not be favored over a field owned by a man.

Who knows (but the Court)? The point is that those conclusions are factual, and in this country, findings of fact are made by the jury, not an appeals court. This is raw judicial encroachment on the jury function, 19th-century style.

And some think that judicial activism is a recent phenomenon.

Hollister v. Ruddy, 66 N.J.L. 68 (N.J. 1901). Farmer George Ruddy had a problem. Minnie Hollister’s trees that stood along the boundary with his field threw so much shade that a healthy part of the cropland was not healthy at all. George cut down some trees, the exact number being an issue, some of which were boundary trees.

Minnie claimed that George had no permission to remove any trees at all. George testified that he had obtained permission from Minnie’s father, who had the authority to approve tree removal. George gave convincing testimony that he had driven the elder Hollister from town to the field, that they discussed the trees and shade problems they caused, that the trees were only fit for firewood, and that George even offered to sell the wood and give all of the proceeds to Minnie (because his only interest was in making the field more productive). Farmer Ruddy said he had cut only 13 trees on the boundary, not the 32 trees Minnie claimed were gone.

No matter. The jury believed Minnie Hollister and found that George had trespassed. Miss Minnie recovered $400.00 in damages to the trees and punitive damages of $350. George appealed.

Held: Minnie was not due any punitive damages.

The trial court had instructed the jury that after it figured out the value of the timber that was improperly taken, “if you believe that the action of this defendant, in entering upon the plaintiff’s land and cutting the trees, was wanton, willful and malicious, and that he meant to take property that he knew was not his own, and cut down the trees maliciously and carried them away without the plaintiff’s knowledge or consent, you may add such damages as you think is proper punishment for a man who willfully does an illegal act of trespass of that character.”

The court of appeals agreed with the jury instruction, but it found that the clear weight of the evidence showed that Farmer Ruddy had not cut or authorized the cutting of more than the 13 trees that stood on or near the boundary line and that the trees he cut were fit only to be cut for cordwood. Their value, based on the trial court testimony, was about $20.00. But even if the jury thought that George Ruddy had cut all 32 trees, the most they could have been worth was about $400.00. So plainly, the appellate court concluded, the jury must have allowed punitive damages.

The Court ruled that the right to award punitive damages rests primarily upon a single ground – wrongful motive. But here, the Court said, there was no competent evidence that George had authorized the cutting of anything more than the trees on or along the boundary line, and he claimed that his reason for cutting those was that they shaded his field so as to prevent the raising of full crops. He also claimed that he had procured permission from the elder Hollister, who was in charge of the property, for the cutting of those trees, although Mr. Hollister hotly denied this.

The Court conceded that “the verdict determined that permission was not given, and on that point alone we would not disturb it; but it seems to us quite plain that the jury was not justified in finding the defendant’s conduct wanton or malicious. Without conceding that for a mere trespass on lands and the cutting of trees that have no special value in themselves, and the cutting of which inflicts no peculiar injury on the landowner, punitive damages can ever be properly awarded, we see no ground for their allowance on the testimony above cited.”

The Court characterized the trespass case as “an honest dispute as to permission for the act found to be a trespass. It is true that some of the trees cut were exactly on the boundary line, and it is argued that that fact gave them a peculiar value. No such value was contended for or submitted to the jury. The line was not obliterated, for the stumps of the trees remained in the earth, and the line itself was shown by a post and wire fence, which, though considerably fallen into decay, still left the boundary line between the parties clearly discernible. There was no peculiar injury or any indignity inflicted on the plaintiff. It will be enough if she gets just compensation, which, of course, may include the value, if any, of any of the trees as line trees.”

– Tom Root

Case of the Day – Friday, October 4, 2024

Posted on October 4, 2024 by TLRoot tagged.

TALKIN’ ‘BOUT THE BIG “D”

Nothing can come between brothers… except maybe an angry ex.

As brothers, Jerry and Kenneth were tight, just good ‘ol boys down on the farm. Their folks had given them 20 acres each, two small farms next to each other.

Ken got his farm first, and he put up a rickety, crooked fence, one good enough to keep cows penned up but not much as a boundary marker. A few years later, he gave brother Jerry permission to put up his own cattle pen, which was attached to Ken’s own wandering fence. The upshot of all this sloppy fence building was that a 2.6-acre parcel belonging to Ken was on Jerry’s side of the fence. So what? They were brothers, after all. Ken didn’t mind, and he and Jerry both used the little piece of land. Jerry built a pond on part of it. Ken harvested some of the timber standing on it and sold the lumber for profit.

So the boys lived side by side, happily ever after. Well, not quite. Seems after about 20 happy years, Jerry’s wife had had enough of the cows, enough and the ponds, and mostly, enough of Jerry. So it was the big “D” for Jerry, and when the smoke cleared, his ex owned a good chunk of his place.

She didn’t much like the ambiguous status of the 2.6 acres, so she sued Ken. Why not? She had just sued his brother, and look how well it turned out for her! The ex claimed the 2.6 acres by adverse possession. However, it turned out that her ex-brother-in-law wasn’t the pushover Jerry had been. The trial court agreed that it couldn’t be adverse possession unless Jerry had held the 2.6 acres in a manner hostile to his brother’s rights. And, after all, they were family.

Simply put, there was no evidence that Jerry had fenced in his brother’s land except with his brother’s permission. Permissive possession, simply put, is not adverse.

Cleveland v. Killen, 966 So.2d 848 (Miss.App., 2007). Ken and Jerry each owned a 20-acre tract of land located next to each other in Neshoba County. Ken’s tract was directly north of Jerry’s, and there was a straight property line dividing the two parcels.

Ken received his land from his folks in the 1960s. When Jerry got his share in 1970, he wanted to build a fence for some cows. Jerry got Ken’s OK to “tie on” additional fencing to a fence that Ken had built on his own property, a crooked thing that was sort of parallel to the boundary line, but not intended to represent the boundary line. In fact, it seemed none of the parties knew where the exact boundary line was when Jerry built the fence. Since Ken’s fence spanned the middle of the property, Jerry began at the corners and added fencing eastward and westward to the edges of the property. Combined with Kenneth’s portion, this let Jerry fence his cattle without building a fence across the entire property. But because Ken’s original fence was north of the actual property line, the completed fence separated the 2.6 acres in dispute from the remainder of Ken’s property.

For a long time, there was no conflict about who owned the 2.6 acres now in dispute. Jerry used the land for gardening and for animals, and Ken cut timber on the land and built a gate in the fence so he could run his cattle over to Jerry’s pond. But some 20 years after Jerry built the original fence, he put in a pond, about a third of which was on Ken’s land but on Jerry’s side of the fence. There was no conflict over the pond until Jerry’s wife divorced him and got a remainder interest in his 20 acres. Ex-wife Tommie sued Ken when he hired a surveyor to mark the property and then built a fence that represented the true property line. By then, Jerry was suffering from dementia and didn’t testify. The trial court found for Ken, and Tommie appealed.

Held: The land was not lost to Tommie by adverse possession, the Court of Appeals held, affirming the trial court. The Court found that the evidence was sufficient to show that Jerry had had Ken’s permission to use the 2.6-acre parcel in question. The landowners were brothers who had lived side by side with their families for 35 years with no disputes, there was evidence that Jerry had asked for Ken’s OK to build a fence (which Ken had given), the brothers thereafter used each other’s property, Ken brought his cattle across the land to use the pond, and Ken even cut down some trees located in the disputed area and kept the profit he received from selling the timber.

As a rule, permissive possession of lands — even if continued for a long time — doesn’t confer title on the person who possesses them until a positive assertion of a right hostile to the owner has been made. If there never had been a request or a grant of permission to use land, the use would not have been permissive, but rather would have been adverse. When a close family relationship is involved, proof of adverse possession is not ordinarily as easily established as it is when the parties are strangers.

– Tom Root

Case of the Day – Thursday, October 3, 2024

Posted on October 3, 2024 by TLRoot tagged.

THE EAGLE HAS LANDED

Unlike the kid above, our Ralph wasn't quick like a bunny when the branch fell.

Unlike the kid above, our Ralphie wasn’t quick like a bunny when the branch fell.

When the elder Mr. Eagle volunteered to help trim a tree at his church, his son Ralph tagged along. It seems that Ralphie was anxious to help Daddy.

Ah, the brashness of youth! The lad (he was 50 years old, but he still lived with mom and dad, so he was unquestionably a kid, albeit a big one), shouldered the three septuagenarians out of the way and climbed the ladder himself. Well, one thing led to another, and the group of tree-trimming amateurs lost control of a limb. The limb fell, the 70-year old man holding the ladder jumped out of the way to avoid being hit, and the falling limb knocked the ladder out of the way. Ralphie fell off the ladder and landed — hard.

Having his eye on the collection plate, the litigious Eaglet sued the Church, the other retirees and, of course, his own father (with whom he resided) for negligence. He claimed that the volunteers were acting as agents of the church, making the church liable.

The trial court would have none of this, and threw the case out. The Court of Appeals agreed, finding that as volunteers, the tree-trimming crewmembers owed each other reasonable care at most. And it wasn’t reasonable to believe the man holding the ladder would stand and take a hit when the limb fell. There wasn’t evidence that any of the trimmers were negligent, so the Church couldn’t be liable.

As for premises liability, the Court said, the evidence showed Eagle had volunteered to help three old men do something dangerous: he should have seen it coming. In reading the decision, one gets the impression that neither the trial court nor the appellate panel thought much of the young Eagle, who horned in on the volunteer effort, ignored his father’s request that he not participate, and then — after getting hurt — suing everyone involved.

Eagle v. Owens, Case No. C-060446, 2007-Ohio-2662, 200y Ohio App. LEXIS 2469 (Ct.App. Hamilton Co., 2007). A small church needed some tree trimming performed. During a Sunday service, the pastor had asked for volunteers to perform the tree-trimming task. The church typically relied on volunteers for landscaping work, including potentially dangerous work such as trimming trees. Merida and Owens volunteered for the task. Both had performed similar tasks for the church on several occasions in the past without incident.

Before leaving the church that day, the two volunteers stood by the tree to examine what had to be done. When Eagle’s father walked by, they recruited him to help them. Eagle’s father was a deacon of the church, an unpaid, rotating position that required him to make decisions for the church’s benefit with the four other deacons. Ultimately, the three men, all over the age of 70, agreed to meet the next morning to perform the task.

When the elder Eagle arrived the next day, he brought his 50-year-old son with him. The son thought the other volunteers were too old, so he took over trimming from a ladder perch. Before the younger Eagle began sawing, his father insisted on changing the position of the rope around the limb. Merida remembered telling Eagle’s father that he did not like the change, but he claimed that he deferred to him because he was a deacon. The limb did not fall cleanly, and its branches knocked over the ladder the younger Eagle was standing on. One of the men who had been holding the ladder ran to avoid being struck by the limb. Eagle fell and was injured.

He sued everyone who was there, as well as the church, alleging that they had “carelessly and negligently caused a tree limb to fall and strike” him. He also alleged that his father, Owens, and Merida were acting as agents or employees of the church when the accident occurred and that the church was responsible for the acts of its agents. The individual defendants moved for summary judgment on the basis that Eagle had assumed the risk of any injury by participating in such an inherently dangerous activity. The church moved for summary judgment on the respondeat superior claim, arguing that it could not be liable where the individual defendants were not negligent and were not agents of the church, and where Eagle had assumed the risk.

The trial court granted summary judgment for the defendants without giving any reasons or issuing a decision. The younger Eagle appealed.

Held: The young Eagle’s wings were clipped. The Court agreed with the trial court’s dismissal, holding that as nonprofessional volunteers, the defendants at most owed Eagle a duty of reasonable care under the circumstances. Eagle did not present any testimony, expert or otherwise, to demonstrate how his father’s, Merida’s, or Owens’ conduct fell below a standard of reasonable care. No one foresaw that the branches on the limb would strike Eagle after breaking off from the trunk, and no one expected Owens to hold the ladder if it swayed while Eagle was on it, because it was obvious that he was physically unable to do so. And if he had stayed to steady the ladder, he likely would have been struck and injured by a large limb.

The Court held that the duty of reasonable care did not require such a foolish act of bravery, despite Eagle’s assertion that he would have steadied the ladder and suffered the blow of the limb if the roles had been reversed. To establish a claim against the church under the doctrine of respondeat superior, the record must demonstrate that a principal-agent relationship existed and that the tortious conduct was committed by the agent while in the scope of his agency.

Here, the Court said, it did not need to determine whether reasonable minds could have concluded that any of the three men were agents of the church and whether Eagle was injured by acts taken within the scope of that agency because the individual defendants did not act tortiously towards Eagle in carrying out the task. Where there is no actionable conduct by an agent, there can be no vicarious liability for the principal. Finally, on the claim of premises liability, the Court held that in determining the duty the church owed to Eagle, it had to focus on Eagle’s status as a participant in the tree-trimming task, because his injury resulted from his participation in this task and not from his status as a person present on the church’s property in general.

It was undisputed that Eagle was warned of the danger, that the church had always used volunteers – including Merida and Owens – to perform similar tree-trimming tasks in the past, and that these volunteers had always performed without incident. Eagle did not present any testimony from a tree-trimming professional to attack the church’s decision to use these same volunteers to remove this limb. The Court concluded that reasonable minds could come to only one conclusion, and that conclusion was that the church did not breach a duty of care owed to Eagle.

– Tom Root