Case of the Day – Monday, January 13, 2025

Posted on January 13, 2025 by TLRoot tagged.

CONNECT THE DOTS

A negligence action is a lot like a child’s “connect-the-dots” game. If you want to win, you have to connect the dots of “duty” to “breach of duty” to “proximate cause of damages” to “amount of loss.”

Skip a step, and you can walk away empty-handed, or – like the couple in today’s case – with a lot less.

We find it a bit unsettling that a tree service was not alerted to a bigger problem by the 100-lb. concrete plug stuck in the bottom of a tree it was to trim, and that the trimming crew proceeded to “top” the tree in order to make it healthier. Perhaps using animal magnetism on the tree or dousing the roots in snake oil might have helped.

This case has cautionary tales aplenty. First, with digital film as cheap as it is (as in, 80% of Americans have smartphones), take pictures of the trees before and right after trimming. This is true whether you’re Harry and Harriet Homeowner or whether you run Paul Bunyan’s Tree Service.

Second, do not ignore warning signs that a tree has significant problems. Pretending that a concrete plug was not poured into a tree by a former owner and that some simple shaping will keep it strong and healthy, is confusing a dangerous conflation of wishes and facts.

Third, both the homeowners and the tree service should insist on a detailed contract, one that spells out the obligations and expectations of both parties.

Finally, if litigation ensues, take a serious look at your expert’s analysis. Try to poke holes in the expert’s report. Be your own “tiger team.” When you read in the decision that the expert was unable to testify to a crucial element, it’s already too late.

Sandblom v. Timber Tree Service, Inc., 2009 R.I. Super. LEXIS 126, (Super. Ct. Rhode Island, Oct. 27, 2009). Steve and Terri Sandblom hired Timber Tree Services, Inc., to provide tree services to five trees located on their Arlington Street property. Steve told Timber Tree that he and his wife wanted one tree removed and the other four trimmed – two in the backyard and two in the front yard, one of which was a mature silver maple tree.

A concrete patch in a tree… never a good idea.

Even before work commenced, Timber Tree told Steve that total removal of the silver maple tree was an option, due to the fact that the tree appeared to be damaged, with a basketball-sized cement plug in the base of the tree. The concrete suggested rot, which was later confirmed by Timber Tree workers. The plug had been in the tree when the Sandbloms bought the property in 2004. Steve elected to have the tree “topped” instead because Timber Tree’s owner told Steve that after “topping off,” the tree would be healthy and regain a healthy condition similar to a neighbor’s fully-grown silver maple.

Timber Tree gave the Sandbloms a written estimate of the charges for the work to be performed, a total charge of $1,400.00 without itemization. Work began in April 2005.

Late in the day, a Timber Tree worker asked Steve whether he wanted the silver maple tree cut down entirely. Steve examined the tree, and testified later that so much growth had been cut from the silver maple that it only could be described immediately after the work as two bare trunks, totally denuded of any vegetation.

The Sandbloms sued, claiming that as a result of Timber Tree’s negligent services, the silver maple tree in the front yard suffered permanent and irreversible damage, thereby reducing the value of their property as a whole. Pursuant to G.L. 1956 § 34-20-1, they sought twice the value of the tree and three times the value of the wood. Timber Tree counterclaimed for the outstanding balance due for services rendered.

Held: The Court, rejecting Steve’s testimony that the tree was healthy, found that the silver maple was already a diseased tree when it was topped. Steve’s expert was unable to quantify how much of the tree’s condition was caused by existing rot or prior improper pruning. The expert’s damage calculation thus was rejected.

Steve testified that before Timber Tree’s work, the silver maple was “overgrown” with vegetation and needed trimming, but was otherwise healthy. The Court found the testimony not credible in light of the observations of rot made by Timber Tree’s owner and workers. The placement of a cement plug sometime before suggested that rot may have been present for a considerable period of time.

Despite Timber Tree’s suggestion that perhaps the tree was not worth further substantial investment, Steve chose to proceed with the request to “top off” the maple. Steve said he expected the silver maple would be “topped” to get tree growth away from electrical wires. Timber Tree’s owner described the work to be performed as the removal of “sucker growth.”

Instead, Timber Tree trimmed so much growth from the silver maple that was nothing but two bare trunks. However, because there was no photographic evidence of the condition of the silver maple prior to the trimming, the Court could only conclude from the evidence that the silver maple was not healthy before it was topped.

Steve’s expert, John Campanini, testified that Timber Tree’s work was contrary to industry standards in that its workers removed more than 20% of the live wood from the tree. He also testified that Timber Tree failed to adhere to industry standards by pruning or cutting known nodes of the tree, which he found by observing the “cuts” made to the tree.

As for Timber Tree’s other work, John Campanini said some of the work appeared improper in that Timber Tree failed to remove all of the dead wood on one of the trees. On a second tree in the backyard, Timber Tree did not complete the job of thinning out the crown of the tree, in that many branches on the lower canopy were not removed. This, John Campanini described, was “sub-par performance.” John Campanini supplied no testimony to quantify the damage caused by Timber Tree’s errors and omissions.

Mr. Campanini used a formula called the “trunk formula,” whereby the calculation of loss starts with the circumference of the trunk near the ground and continues based on certain objective and subjective factors relative to the tree’s location and condition. According to Mr. Campanini, this mode of calculation is approved by the International Society of Arboriculture. The result of the calculation is to determine an “appraised” value of the tree before Timber Tree’s work, which he concluded to be $5,100.00.

Although it found his testimony credible, the Court declined to rely on Mr. Campanini’s analysis. It noted that, for example, the formula failed to account for the apparent rot of the tree, as evidenced by the concrete plug. Also, the photographic evidence of the current condition of the tree undercut any claim that the silver maple was “totally lost” as a result of Timber Tree’s work. On the contrary, the evidence of the tree’s current condition showed that the silver maple had returned to a tree lush with foliage; indeed, even Mr. Campanini testified that the Silver Maple was not dead and did not need to be replaced.

Mr. Campanini said that damage to the silver maple could be cured by four or five subsequent remedial prunings at $750.00 apiece, to select branches that may develop good supporting unions and help regain the form and shape of a natural silver maple. The tree was about 80 years old, making replacement almost impossible. Such a mature tree would not be available from a nursery for transplantation, leaving the only replacement alternative as a young sapling that would take many years to develop into the stature of the silver maple prior to Timber Tree’s work.

In order to establish a negligence claim against Timber Tree, the Sandbloms had to prove by a preponderance of the credible evidence that Timber Tree was negligent, by showing that Timber Tree owed the Sandbloms a legally cognizable duty, a breach of that duty, proximate causation between the conduct and the resulting injury, and the actual loss or damage. Then, the Sandbloms had to prove that Timber Tree’s negligence caused loss or damage to their property and demonstrate the value of those damages as determined by the reasonable value of the loss or damage. Although mathematical exactitude is not required, the damages must be based on reasonable and probable estimates.

The Rhode Island Supreme Court has held that “the general rule is that where the damage to realty is temporary, the cost of repair measure is proper, and where the damage is permanent, the diminution in value measure is most appropriate.”

Looks good to me…

Although the Court found that Steve proved negligence by Mr. Campanini’s testimony, his evidence on the issues of whether the negligence caused damage and how much those damages were was “somewhat shaky.” The evidence showed that the silver maple was not healthy when it was pruned, meaning that the evidence did not show that Timber Tree’s negligence damaged the tree beyond where it was before the topping. What’s more, the evidence did not show that the silver maple was completely destroyed, such that replacement would be the proper measure of damages. Good thing, too, because an actual replacement cost would be very difficult to calculate, “due to the fact that a similar mature maple would not be available at a nursery for transplantation.”

Because the evidence showed that the tree had made a considerable recovery since it was pruned, the damage it suffered was temporary and the cost of repair would be the appropriate measure of the damages. The only credible testimony concerning the cost remedial measures was Mr. Campanini’s testimony that the silver maple could be restored with four to five remedial prunings, at a cost of $ 750.00 per pruning. The Court awarded the Sandbloms $ 3,750.00 in damages.

The Sandbloms asked for double damages under § 34-20-1. But that section only provides such damages where the cutting or destruction of a tree occurred “without leave of the owner thereof.” Here, Timber Tree performed its services with Steve’s permission. “While the services may not have been to Mr. Sandblom’s satisfaction, “ the Court said, “the Legislature did not intend double damages for negligent services that were performed at Plaintiffs’ request.”

– Tom Root

Case of the Day – Friday, January 10, 2025

Posted on January 10, 2025 by TLRoot tagged.

TRESPASS 101

There are a few basic peculiarities of trespass that I have written about repeatedly, but which do not seem to sink in. C’mon, people!

A few years ago, I was working on a case in which a utility company delivered a standard form easement to a homeowner. The owner found the document stuck in his door with a dollar bill attached. He read the easement, tore it in half, and thought nothing more of it until the utility crews – figuring he must have signed it – tore up his side yard.

The homeowner bided his time, suing many years later (but within the 21-year statute of limitations). The electric company was a Goliath and brought in a big law firm from the big city to defend it. The lawyers were derisive in their answer, contending that the trespass complaint failed because – among other reasons – the utility workers believed in good faith they had an easement to be on the land, and, at any rate, the homeowner could not prove he had been damaged by the trespass.

I well recall the utility’s lawyers’ incredulity when I suggested that at common law, their good faith and five bucks could buy a cup of coffee at Starbucks. (Well, maybe not anymore). Speaking of five bucks, the very fact of their trespass was the only damage the homeowner had to show. Where there is trespass, there are always damages. “You can go look it up,” I suggested.

They did. And the utility settled.

Today’s case – nearly as old as I am – is one where one homeowner let her pet dinosaur wander on the property of another… No, not really, but sometimes I feel that old. Instead, the case is one where a property owner thought some cedar trees were hers, not her neighbors. She hired a tree service to top them. Topping is never a good idea, but that’s a topic for another time. When the trespassing owner got sued, her defense was that she did not know the trees belonged to her neighbor, and anyway, the trespass did not cause any damage.

Those two concepts – intent is irrelevant and damages are presumed – are the bedrock of trespass.

Longenecker v. Zimmerman, 175 Kan. 719, 267 P.2d 543 (Supreme Court of Kansas, 1954). Alice Longenecker owned a piece of real estate. Kay Zimmerman, without her permission, directed the Arborfield Tree Surgery Company to enter Alice’s property and top off, injure and effectively destroy three cedar trees worth $150 each, which both provided shade and were ornamental. Alice argued she was entitled under the provisions of G.S.1949, 21-2435, to recover treble damages.

Alice and Kay owned adjoining residences and were neighbors for about five years. On September 8, 1950, Kay hired a tree surgery company to go onto Alice’s property to top three cedar trees. The trees were located some two or three feet north of Alice’s south boundary line. The trees, before being topped, were 20 to 25 feet high and were trimmed as Alice wanted them to be.

They did not meet with Kay’s approval, however. She had the tree surgeons cut about 10 feet off the tops of the trees. The topping meant the trees would never grow any higher.

Alice didn’t want the trees to stop growing. Cedars are not pruned from the top but are feathered and shaped, not cropped. Alice argued that the trees were, in effect, destroyed by improper pruning. She attached a sentimental value to them as they stood; they served a special purpose as both shade and ornamental trees.

Kay told a different story. She said the trees, prior to the time they were topped, seemed to be dying out at the top and they also contained bagworms; that two or three feet were taken out of the top of one tree and about a foot or so out of the other two; that the work she had done was beneficial to the trees and that they were not injured. The work consisted of cutting out dead branches and cleaning out bagworms.

One of Kay’s expert witnesses testified that the cutting away of dead wood would not have injured the physical condition of the tree. However, he admitted that if the top is taken out, the trunk is no longer going to grow in height. Kay said she was mistaken as to the boundary line and had believed the trees were on her property.

The trial court found for Kay, and Alice won nothing. She appealed.

Held: The trial court gave the wrong instruction on trespass, and its decision was reversed.

The determinative question on appeal was whether the trial court erred in refusing Alice’s requested instruction to the effect that because Kay had admitted the trespass on Alice’s property by topping the three cedar trees, she was liable to Alice in damages. But instead of Alice’s requested instruction, the court told the jury that because Kay had

admitted that she had plaintiff’s trees topped and therefore she has admitted the trespass and is liable in damages for such sum, if any, as you find from a preponderance of the evidence plaintiff has sustained. In arriving at the value of said trees you may, if you find from a preponderance of the evidence they have been damaged, injured or destroyed, and should take into consideration the cost of replacement and also the sentimental and utility value of the trees.

The Court held that this instruction was just plain wrong. From every trespass, that is, the “direct invasion of the person or property of another, the law infers some damage, without proof of actual injury. In an action of trespass, the plaintiff is always entitled to at least nominal damages, even though he was actually benefited by the act of the defendant.” Nominal damages are recoverable even though no substantial damages result and none are proved.”

The trial court was wrong to include a suggestion that Kay could have trespassed without causing any damage to Alice. A trespass always causes damage, even though that damage may be nominal. The trial court submitted the question to the jury whether Alice had suffered any damage by reason of the unlawful trespass, when in fact the jury should have been instructed that damages, in some amount, resulted as a matter of law.

It cannot be said that the erroneous instruction given by the trial court did not prejudice Alice.

– Tom Root

Case of the Day – Thursday, January 9, 2025

Posted on January 9, 2025 by TLRoot tagged.

THE HORSE HAS BOLTED

Anyone wanting to witness an exercise in futility only has to examine some of the laws passed by Congress, largely meaningless gestures intended to prevent something that has already happened.

I give you TSA for example. To be sure that no one takes a utility knife (the uninitiated call them “box cutters”) onto a plane again after 9/11, TSA makes grannies remove their shoes and uses machines that reveal your bodily imperfections to the world. This is little more than “security theater,” intended to make us feel safer despite the government’s own evidence that TSA checkpoints are weapons sieves.

In the tree world, after the Emerald Ash Borer was already hopping amok across North America, states responded with roadside signs warning people against transporting firewood.

The Emerald Ash Borers, of course, being illiterate insects, did not read the signs. Rather, the little green destroyers continued their march unimpeded.

Sure stopped those Emerald Ash Borer critters…

When Frances Levine’s neighbor Ida decided to hack down a boundary tree, Frances got a restraining order stopping the butchery. By then, the tree was pretty much done for. The trial court, recognizing that the tree was much too far gone, declined to issue a permanent injunction against further tree removal. The tree was already beyond repair: issuing an injunction against killing it now would be futile.

Frances would not take ‘no’ for an answer… until she heard it two more times from two higher courts.

What Ida did was not right, and could get Frances some damages. But the act was done, and an order prohibiting the act would not unring the bell.

Levine v. Black, 312 Mass. 242, 44 N.E.2d 774 (Supreme Ct. Mass. 1942): A large tree was located on the property line between Frances Levine’s lot and a parcel owned by Ida Black. The boundary line ran just about through its center, which was only about two feet from Frances’ southerly wall. It was from 50 to 60 feet high and in “a reasonably healthy condition” before Ida began chopping the branches.

Ida was looking to build a new repair shop extending to the northerly boundary of their land, and finding the tree in her way, began to cut it down without Frances’ consent. Ida intended to remove the entire tree. She cut and carried away branches and limbs, some of which extended over Frances’ residence.

When Frances yelled at Ida about the arboreal butchery, Ida stopped, and thereafter a court issued a restraining order. The trunk of the tree is still standing, but the upper part has been reduced to two denuded limbs, the highest point of which is about forty feet from the ground. , “and there is an entire absence of branches and foliage.” On the south side of the trunk, there is a large scar resulting from the removal of the bark by chopping it with an axe.

Frances sued, but the trial court dismissed the action. She appealed. The appellate court ruled that both parties equally owned the tree, but Ida had damaged the tree so badly that an injunction would have served neither party. The court held that the tree would never grow back, and therefore it would have been more beneficial to both parties to have the tree chopped down. Thus, the court of appeals affirmed the trial court decree dismissing Frances’ action for a permanent injunction to prevent Ida from cutting down a tree.

Frances appealed to the Supreme Court of Massachusetts.

Held: The court of appeals was right. The damage had been done, and an injunction should not issue.

The Court observed that where the trunk of a tree stands wholly on the land of one property owner, he is deemed the owner of the entire tree. This is true despite the fact that the Massachusetts Rule gives his or her neighbor the right to cut off limbs and roots which invade his premises. But where, as in the present case, the trunk stands across the boundary line, it has generally been said that under these circumstances both parties own the whole tree as tenants in common.

In other cases, the Court admitted, it has been held that each party has title to only that part of the tree on his side of the line but has a right to prevent his neighbor from so dealing with his part as unreasonably to injure or destroy the whole. But here, resolving inconsistencies in the two approaches is not necessary. Under either view, “it is difficult to see why either owner should have any less right to cut off branches and roots than he would have if the trunk stood entirely upon the other’s land.”

But this case, the Court ruled, it is unnecessary to determine whether “the value of a tree to one owner is to be weighed against the detriment to the other owner of being unable to use all of his land for building purposes.” That is because the overarching principle applicable here is that relief by injunction will not be granted where the granting of it would be but a futile gesture and would serve no useful purpose in protecting any substantial right or interest of the party applying for it.

Before this suit was brought, the Court said, “the tree had been reduced to a condition in which it could be of no benefit to the plaintiff from the viewpoint either of beauty or of utility. It was and still is a bare skeleton consisting of a trunk and two limbs, with no other branches or foliage whatever. There is nothing to show that the lapse of any reasonable period of time will restore it to attractiveness or value. Its removal would now appear to be advantageous to both parties and harmful to neither.”

The Court did not intend to reward Ida’s trespass, Rather, it simply recognized reality, that to deny a permanent injunction under these circumstances “is merely, in dealing solely with the question of injunctive relief, to take a practical view of an existing situation for which an injunction can afford no genuine remedy.”

– Tom Root

Case of the Day – Wednesday, January 8, 2025

Posted on January 8, 2025 by TLRoot tagged.

DEEP POCKETS, ONE – MASSACHUSETTS RULE, NOTHING

Nothing can skew the impartial dispensation of justice like a rich defendant. After all, the Massachusetts Rule is pretty doggone clear: self-help trumps litigation. But even where that is true, sometimes rich defendants – like hard cases – make bad law.

Take the case of Mrs. Norwood. When the tree roots of a 25-year-old oak tree planted by the City of New York invaded her sewer line, Mrs. Norwood thought that the whole deal stank. After all, the City knew the sewer line was there 25 years before, and it knew the little oak sapling it planted at that time would become a mighty and sewer-invading oak.

Dorothy always had the power in her ruby slippers to return to Kansas. Likewise, Mrs. Norwood always had the power of her diamond-studded Massachusetts Rule rights: She could have dug those roots out of her yard, and the City could not raise so much as a little stink about it.

But Mrs. Norwood couldn’t see spending a dime to take care of her property when the City, with its weighty balance sheet and untold millions of dollars in the bank, could do it for her.

She sued. The Court agreed. Massachusetts Rule, solid though it usually is, be damned! Let the government pay.

Norwood v. New York, 95 Misc. 2d 55 (Civil Ct. Queens, June 21, 1978): Back in 1953, the City of New York planted an oak tree over a sewer line leading to Delema Norwood’s home. Over time, the oak tree roots entered the joints of a sewer line, causing the pipe to burst. Delema sued, claiming that the damage was the City’s responsibility.

At trial, Delema’s expert testified that the sewer was properly designed and constructed when it was installed in ‘53.

Held: Because the sewer line was properly constructed, and the City planted a tree that had the propensity to dig into sewer lines, The City of New York, rather than Delema, was responsible for the cost of repairing the sewer line.

The question, as framed by the Court, was whether a municipality that plants an oak tree over a residential sewer line, is liable to the landowner when the roots of the tree damage the sewer line? The Court found that 25 years before, City, without the request or permission of landowner Delema Norwood, planted an oak tree at the curb line of her property over the sewer line leading from her house to the sewer in the street. An oak tree has roots that go down deep and have a propensity for entering the joints of sewer pipelines. The roots of this oak did exactly that and caused the sewer pipe to burst.

The Court found a case where the landowner was liable because the sewer line was constructed incorrectly. But that was not the case here, where the sewer was properly constructed. Delena’s expert testified that the sewer was made of vitreous clay pipe and joined with cement. He testified that this was a proper method of construction at the time the sewer was built, over 25 years ago.

In another case, the plaintiff’s complaint was dismissed because sufficient facts to establish that defendant was responsible for this damage were not alleged. That court noted that “whether the defendant can ever be held liable for the natural growth of a tree, in possession of or belonging to the city, is uncertain.”

Finally, a plaintiff alleged that roots from a defendant’s poplar tree had grown onto the plaintiff’s property, disturbing and eroding her swimming pool and the patio around it. The court there held the complaint stated a cause of action.

In this case, the Court weighed the idea that urban trees are beneficial to city dwellers and enhance the surrounding area. On the other hand, owners of property are entitled to have their sewer lines protected; the destruction of sewer lines will cause obvious discomfort not only to the landowner but to others in the area.

In balancing these interests, the Court held, at least where the sewer line is properly constructed, the municipality, rather than the landowner, should bear the cost of repairing a damaged sewer line when it plants a tree. After all, the oak was well known for having the propensity to dig into sewer lines. In this situation, it was foreseeable that sometime in the future, damage might very well occur.

The Court admitted that “while a rule imposing liability upon the municipality may tend to deter the planting of certain kinds of trees, the municipality may still safely plant other trees. Moreover, with respect to newly constructed sewer lines, the municipality should be in a position to avoid liability since a properly constructed sewer line now should be impervious to the roots of trees.”

The Court acknowledged the Massachusetts Rule, observing that “a landowner may, on his own land, resort to self-help to remove roots adversely affecting his own property.” While some argue that this is sufficient protection for a landowner and he need not be given a cause of action for damages where tree roots damage his sewer line, other jurisdictions reject this argument. But this Court ruled that it would be unrealistic to limit a landowner to a right to dig for and cut roots. “While such a limitation upon the rights of a landowner may be proper with respect to overhanging branches of a tree, the Court wrote, “such a limitation would be manifestly unfair to a landowner whose property may be directly injured by the effect of spreading roots. Unlike branches that are readily visible and which may often be cut without great difficulty, roots are not generally visible and may require considerable digging in order to remove them. Indeed, the landowner will usually not know that he has reason to cut roots until damage has occurred.”

The Court found that the City owed for the cost to repair the sewer line.

– Tom Root

Case of the Day – Tuesday, January 7, 2025

Posted on January 7, 2025 by TLRoot tagged.

MASSACHUSETTS RULE – THE OLD IS NEW AGAIN

Yeah, we talk about the Massachusetts Rule all the time, but really, how relevant is it to our modern, digitized, frenetic world?

Ask Pete Kirk and Bryan Johnson. These unhappy landowners did not think much of an affordable housing development going in next to their parcels. Their stated complaint was that drainage would be altered and eight Norway maples on or near the boundary lines might be harmed.

I have no reason to suspect that Pete and Bryan objected to the nature of the development, or what all of those people needing “affordable housing” might do to their property value. But they were mightily unhappy that regrading or excavation could to their trees, and they sought to get the zoning board’s approval withdrawn.

Sorry, the court said to Pete and Bryan. This being Massachusetts, the Massachusetts Rule reigns supreme. The developer had the right to do with his property as he wished, even if it cut or affected tree roots that had encroached on his land. Strangely, the Court seems to have engrafted a specific intent requirement on the developer. He could cut roots or change the grade (which would bury the roots too deep in the soil), even if he knew it would kill the trees. The only limitation is that he could not do so with the intent to kill the trees.

Come again? I have read Michalson v. Nutting repeatedly without being able to find scienter anywhere in the ruling. Is the Court saying that what you do as a landowner to exercise your self-help rights under the Massachusetts Rule is somehow regulated by the purity of your motives? Outside of the obvious difficulty in proving what the landowner intended to accomplish in any given act on his or her property, what does motive have to do with the reasonableness of an act?

Forgive me for thinking of the Tin Man in a yoga class.

Kirk v. Li, 2019 Mass. LCR LEXIS 2 (Mass. Land Ct., Jan. 7, 2019). Developer 269 North Ave, LLC got a comprehensive permit from the Weston Zoning Board of Appeals (Board) for a 16-unit housing project on a one-and-a-half-acre parcel. The property, severely sloped in the rear, presented tough challenges to satisfying the requirement that the project not result in an increase in stormwater runoff, because all of the stormwater from 16 acres surrounding the site accumulates on the property. Because of the particularly porous soils on the property, all of this stormwater recharged into the ground, with none of it running off. Construction of the project would increase the impermeable surfaces on the property, such as buildings and parking lots, which meant a decrease in open land available to recharge stormwater.

To satisfy stormwater regulations, the developer designed a system to collect and discharge all stormwater into the ground. The Board was satisfied and issued the comprehensive permit.

Peter Kirk and Bryan Johnson owned land that abutted the developer’s property on the south and north respectively. They complained to the Board that the developer’s stormwater system would not handle the stormwater flow onto its property, resulting in flooding on their land. Additionally, Pete and Bryan argued that the housing development would harm or even kill trees that straddle the boundary or are on their properties. When the Board disagreed, they sued.

Held: The Court held that Board did not act unreasonably or arbitrarily or capriciously in accepting the developer’s stormwater management plan or its measures for protecting the trees.

This review focused only on Pete and Bryan’s complaints about their trees. Pete identified three trees on his property or on the common boundary line with the developer’s property, and Bryan cited five trees on his land or on the common boundary line they asserted would be adversely affected by the project. Their experts testified that the root systems of the eight trees, all Norway maples, would be harmed by the roots being cut or by adding more than one to three inches of soil above the existing surface grade. The cutting and grading would all take place on the developer’s property, but would – according to Pete and Bryan – harm or even kill the trees.

The Court admitted there was “no bright line delineating what unilateral actions regarding a shared tree are or are not permitted.” To be sure, a property owner cannot act to intentionally destroy a shared tree without the consent of the others who share an ownership interest therein. Yet, the growth of roots and branches into a neighbor’s land, the Court said, “no matter how essential to a tree’s survival, cannot vest in the tree’s owner some indomitable nonpossessory interest in the space the tree occupies.”

Here, the developer did not want to remove the trees. As a matter of law, the Court ruled, the developer would be entirely within his rights to pursue the project even if it has the effect of harming some of the trees’ roots. With respect to trees situated entirely on Pete’s or Bryan’s property, the Massachusetts Rule provides that the developer has an unfettered right to cut the roots and branches of such trees back to the property line. With respect to the trees situated on shared property lines, the Court held, the developer similarly has the right to cut roots and branches situated on the developer’s property. The only limitation is that the developer may not do so with the intent of killing those trees.

The Court found that the expert testimony made it clear that some level of activity within the area immediately surrounding the trunks of the trees could have the effect of killing them. “However,” the Court noted, “the testimony does not speak to where the roots of the… trees are actually located or what harms to the trees are certain or even reasonably certain… Here, where the applicable law makes it doubtful that [Pete and Bryan] have a claim to demand any protections for [their] trees, the level of speculation in the resulting harms renders these risks too remote to bear on whether the Board’s Decision was improper.

– Tom Root

Case of the Day – Monday, January 6, 2025

Posted on January 6, 2025 by TLRoot tagged.

COUNT YOUR SILVERWARE

You know people like this. They leave restaurants with their pockets bulging from stolen packets of sugar, jelly or ketchup. They return from a vacation with a valise full of shampoo, conditioner, soap and teabags, boosted from every hotel on their itinerary. When they move from a house, they are sure to pick it clean of light bulbs, curtains, and even the unused toilet paper rolls left on the dispensers. In rare cases, they even uproot garden plants as they leave.

When you have folks like this over for dinner, you should audit your silverware before they leave.

The late Mr. Thomas was that kind of guy, probably a man with a closet full of mini-shampoo bottles, Bob Evans jelly tubs, and McDonald’s sugar packets. He was quite a thrifty guy. Maybe there’s a better word to use than “thrifty.” A word like “light-fingered.”

However you might describe him, after he signed the deal to sell his Iowa farm to Mr. Laube, but before he surrendered possession, Mr. Thomas thought he just might thin the timber a bit by cutting down and selling about a hundred walnut trees. True, the walnuts weren’t really ready for harvest – the 20-year-old trees were only about halfway to an age where they should be harvested – but Mr. Thomas could hardly see the sense of leaving all of that nice hardwood for Mr. Laube to cash in on a couple decades after closing.

Mr. Laube sued. Sadly, while he won the case, he was butchered on damages. There was no question that Mr. Thomas was liable. After all, the contract of sale didn’t reserve any timber rights to the seller. But the issue was the value of the trees that had been removed.

Generally, there are several ways to figure damages for the loss of trees. Where the trees are for a special purpose, such as for windbreaks, shade or ornamental use, the measure is usually the difference in the value of the real estate before and after the destruction of the trees. Where the trees have no special use beyond being marketable timber, the measure of damages is the commercial market value of the trees at the time of taking. Where the trees can feasibly be replaced, the measure of damages is the reasonable cost of replacement.

The Court ruled that the value of the 100 immature walnut trees was their present-day value at the mill, despite Mr. Laube’s lament that they would have been worth so much more had they been 20 years older. The Iowa Supreme Court admitted that Mr. Laube had a point – he had been deprived of trees that had great potential value, something that just giving him present commercial value didn’t recognize. But the Court said that the law had never allowed such damages, and it didn’t intend to do so here. The Court speculated – and that’s exactly what it was – that it “was perhaps to address this criticism that the legislature provided for treble damages in Iowa Code section 658.4.”

When taking all of the lightbulbs from your just-sold house, be sure to wear gloves so as to avoid being burned. The only one who should be burned by this process is the unwitting buyer.

Poppycock. Punitive damages are intended to punish, not make up for deficiencies in the law of compensatory damages. Farmer Thomas did not profit from his selling of the walnut trees on his way out the door, but Mr. Laube was hardly made whole.

Laube v. Estate of Thomas, 376 N.W.2d 108 (Sup.Ct. Iowa, 1985). In 1983, the Thomases contracted to sell a farm to Mr. Laube. Possession was to pass on March 1, 1984. Although no timber rights were reserved to the Thomases, they removed about 100 walnut trees from the tract between the contract and closing. There was no question of liability; in fact, at trial, Thomases offered to confess judgment for $1,000. The offer was refused.

The trial court awarded Laube the commercial value of the trees at the time they were cut. Laube appealed.

Held: The measure of damages used by the trial court was correct.

The walnut trees were timber or forest, not used for a windbreak or ornamental purposes. The trees had stood at two sites on the farm, one a low-level area near a stream and the other in a permanent pasture. The 100 in question were smaller, presumably inferior for marketing purposes. The evidence showed that it was not a practical marketing time for the trees in question. At an age of 20 years, they would not mature so as to reach their reasonable marketing potential for another 20 years. Mr. Laube argued he should be awarded damages that took the current market price, considering the size and quality of trees 20 years hence, then discounting the figure appropriately to reach the present value.

It's he present-day value of the commercial timber that matters.

It’s the present-day value of the commercial timber that matters.

The Supreme Court admitted that “especially [in] the showing of the inappropriateness of cutting the trees at their stage of semi-maturity, there is at first blush an attractiveness in plaintiffs’ contention that a routine allowance of only log value is inadequate. On the other hand, their suggested recovery does not conform with any recognized measure of damages for loss of trees.” Where the trees were put to a special purpose, such as for windbreaks, shade or ornamental use, the measure is usually the difference in value of the realty before and after the destruction of the trees. Where the trees had no such special use, the measure is the commercial market value of the trees at the time of taking. Where the trees can be replaced, damages are the reasonable cost of replacement.

Here, the Court said, the commercial value of the trees was the appropriate measure of damages. It suggested that the law provided for treble damages in Iowa Code § 658.4 to help adjust for the unfairness of situations such as the one in this case. However, it would not take into account future value in setting compensatory damages.

– Tom Root

Case of the Day – Friday, January 3, 2025

Posted on January 3, 2025 by TLRoot tagged.

SELF-HELP WEEK

Quite unintentionally, 2024 (slogan “At Least It’s Not 2020”) – as it slunk out the door in well-deserved shame – is ending with an orgy of self-reliance versus resorting to the courts. On New Year’s Eve, we reviewed a Florida case, Balzer v. Maxwell, in which the court held that the fact that an aggrieved landowner has no remedy but self-help means that when he or she exercises that right, the tree owner has no claim for what might become of the tree. Yesterday, we read a Massachusetts court holding that, on the other hand, when a city takes over an abandoned property for taxes, it assumes liability for hazard trees on the property.

In today’s case, Pennsylvania applies the Massachusetts Rule principles of self-reliance to encroaching tree roots.

Keiper v. Yenser, 1967 Pa. Dist. & Cnty. Dec. LEXIS 171 (Common Pleas Ct, Carbon County, Pa., January 23, 1967). Bill and Becky Keiper complained that for more than five years, the roots of Yensers’ willow tree have been extending into their land and penetrating their sewer line, which has cost the Keipers $166.07. They seek reimbursement for the money they have spent and a court order for the permanent abatement of the root encroachment (that is, an order that the Yensers remove the roots at their expense).

The Yensers filed a demurrer; in the alternative, they argued that laches prevented the Keipers from winning, and contended that abatement should not be ordered because the Keipers had an adequate remedy at law.

Held: The Keipers claim had to be dismissed.

Pennsylvania has no statute that would permit the Keipers to claim that the Yensers’ tree was a nuisance. Nor was there any case precedent.

However, looking at other states, the Court noted that in Gostina v. Ryland, a Washington state case, the court held that “were it not for our statute of nuisances, the respondents herein would not be accorded any judicial relief”. And Michalson v. Nutting, the Court said, held in very similar circumstances that “the neighbor, though without right of appeal to the courts if harm results to him, is nevertheless, not without remedy. His right to cut off the intruding boughs and roots is well recognized. His remedy is in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

Thus, the Court held that while the Keipers could cut the offending roots themselves, they had no cause of action to compel the Yensers to do so. “It is a principle well settled by many adjudicated cases, that an action does not lie for a reasonable use of one’s right, though it be to the injury of another. For the lawful use of his own property, a party is not answerable in damages, unless on proof of negligence…”

– Tom Root