Case of the Day – Monday, February 27, 2023


Abe Lincoln could have been talking about Mr. Victor, who has a real dummy for a client.

Abe Lincoln could have been talking about Mr. Victor, who has a real dummy for a client.

Honest Abe Lincoln was right: Mr. Victor had a first-class knucklehead for a client. The old lawyer’s proverb warns that “The man who is his own lawyer has a fool for a client.” Today’s case from Iowa puts meat on those bones.

Mr. Victor’s car was hit by a truck at an intersection. That kind of thing happens on a daily basis. After the crash, he took matters into his own hands. That does not.

Usually, people use lawyers for that kind of thing. Back when we had phonebooks, the solicitors we needed were on the back cover soliciting us. Those guys usually take cases like this one on a contingency basis, meaning that they don’t get paid unless you win.

Of course, lawyers tend to be picky about the kinds of personal injury actions they will bring, , for the same reason that more people bet on the horse “California Chrome” than lay money down on “Old Glue Factory.” Who wants to waste time and money?

Maybe Mr. Victor didn’t like lawyers. Maybe (as is more likely), no attorney would touch the case from a remote control bunker in the Amazon rain forest. For whatever reason, Mr. Victor represented himself. Apparently subscribing to the old Vladimir Ilyich Lenin maxim, “Quantity has a quality all its own,” Mr. Victor sued the other driver, the company that owned the truck the other driver was operating, the property owner whose trees allegedly obscured the stop sign, the county for poor maintenance of the intersection, and the state for poor design of the road. Certainly, someone in that thundering herd must have a fat wallet. 

Mr. Victor did it all in federal court, no doubt because suing in federal court sounds a whole lot cooler than suing in state court. And it is, too, except for those pesky rules about jurisdiction and sovereign immunity. Guess he only skimmed those chapters in Personal Injury Law for Dummies.

You thought we were kidding? There's really such a book ...

You thought we were kidding? There really is such a book …

By the time the Court was done, the State of Iowa was dismissed as a defendant, as was the property owner. In fact, the only defendant left was the County, which was unable to prove that its tree-trimming practices were a discretionary function. Still, Mr. Victor got pretty badly decimated, proving once again that there’s a reason trained professionals cost money – it’s because they know what they’re doing.

Victor v. Iowa, 1999 U.S. Dist. LEXIS 23530, 1999 WL 34805679 (N.D. Iowa, 1999). A car driven by Martin L. Victor collided with a truck driven by Ronald Swoboda and owned by the Vulcraft Carrier Corp. The accident happened at the intersection of County Road C-38 and U.S. Highway 75. Then the fireworks started.

Victor, acting as his own lawyer, sued the State of Iowa, Plymouth County, Vulcraft and adjoining property owner Elwayne Maser in U.S. District Court. Vic apparently alleged (1) that “Iowa law regarding the right to sue private property owners for negligence is unconstitutional;” (2) that Victor should be allowed to sue Maser for acting negligently in failing to trim vegetation that obstructed his view of southbound traffic on U.S. Highway 75; (3) that the State of Iowa and Plymouth County acted negligently by failing to properly maintain a roadway, investigate the accident thoroughly, and place warning signs and markings appropriately; (4) that the highway patrol failed “to perform duties of safety officers, in assessment of dangerous conditions existing;” and (5) that Vulcraft is responsible for its driver’s failure to follow safety standards for commercial trucking. All the defendants moved to dismiss or for summary judgment.

Held: The State of Iowa was dismissed, because the Iowa Tort Claims Act, which gives permission to residents to sue the State, limits those actions to state court. The Court held that the 11th Amendment to the U.S. Constitution barred actions in federal courts against States except under narrow exceptions. One of those is that the State must have given a waiver and consent that is clear and express that it has waived sovereign immunity and consented to suit against it in federal court. Although a State’s general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment. In order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court, and the ITCA does not do so. Therefore, Victor’s claims against the State of Iowa were dismissed.

It was just your basic accident ... until Mr. Victor made a federal case of it.

It was just your basic accident … until Mr. Victor made a federal case of it.

As for the property owner Maser, the Court ruled that Iowa law put no duty on a private property owner to remove trees that obstructed the view of a highway. Although Victor claimed the Iowa law on the matter unconstitutionally deprived him of the right to sue, he never explained why. The Court observed that “while mindful of its duty to construe pro se complaints liberally, it is not the job of the court to ‘construct arguments or theories for the plaintiff in the absence of any discussion of those issues’… Besides the bare assertion that the Iowa law is unconstitutional, Victor has provided no other discussion of the issue.” Thus, the property owner Maser was dismissed as a defendant.

Victor’s claims that Plymouth County was negligent in failing to install proper warning signs and cut tree branches that obstructed his were not dismissed at this point. Section 670.4 of the Iowa Code exempts a municipality such as Plymouth County from liability for discretionary functions, if the action is a matter of choice for the acting employee, and — when the challenged conduct does involve an element of judgment — the judgment is of the kind that the discretionary function exception was designed to shield. Here, Plymouth County’s policy directed that employees “may trim branches of trees because the trees may constitute an obstruction to vision of oncoming traffic at an intersection,” thus giving employees discretion in implementation of this policy. Thus, the Court said, “the action (or inaction) of which Victor complains was a matter of choice for the county’s employee.”

However, the Court said, Plymouth County’s policy did not encompass “social, economic, and political considerations” and therefore the discretionary function exception does not apply. Victor could proceed with rebutting the County’s claim that the view was not obstructed.

– Tom Root


Case of the Day – Friday, February 24, 2023

Toga, Toga!!

AnimalHouse150306So you heard about the sweethearts of Sigma Chi? The story broke about eight years ago about how the Sigma Chi frat brothers at Southern Methodist University – who lived off-campus in an upscale place called Maison des Animauxharassed the O’Connells, their next-door neighbors, for sport. Oh, the highjinx of these fun-loving rascals! Among other pranks, they liked to urinate on the O’Connells’ fence, write obscenities in the snow in their yard, spit on the O’Connell house and throw raw meat onto the patio (prime cuts of beef, we hope).

It all started with a noise complaint, something to do with the brothers’ 24/7 partying. As the Grinch might have said, “The noise, noise, noise, noise, noise!” Mr. O’Connell said he “brought it to their attention and said ‘you can’t do that.’ They told me they pay rent and they can do whatever they want. It’s their right.”

The O’Connells now, after a year of abuse, had the media worked into a righteous froth. So that should take care of that. But were the brothers right? Can they do whatever they want until you’re finally able to get a crew from Action News to show up with cameras and a scowling investigative reporter?

Consider the poor aggrieved neighbors, the Rileys, in today’s case. They didn’t have an Eyewitness News crew. But they did have a lawyer. The house next door to the Rileys was owned by a landlord who rented it to some dopers. But not just any dopers. This wasn’t just boom boxes blasting the Grateful Dead and the wafting smell of freshly decriminalized marijuana. Nope, the neighbors here were good capitalists, appearing to run a brisk retail operation, with traffic at all hours of the night and unsavory customers. Imagine a 24-hour McDonald’s drive-thru window, but handing out nickel bags instead of Big Macs and Eggs McMuffin. [Editor’s note – we had a lively debate over how to pluralize McDonald’s famous breakfast sandwich. The Editor won.]

The traffic was accompanied by the screeching of tires, the occasional and casual vandalism toward the Rileys’ property, cursing and shouting, and the discharge of firearms. Someone even shot the Rileys’ dog.

Now we’ll put up with a lot, but we won’t put up with that. You shouldn’t shoot a dog. (See this post for more details). The Rileys felt the same. They complained in winter 1999, but nothing changed. The police raided the place, but all they found was some personal-use marijuana. The Rileys complained to landlord Richard Whybrew again. The Attorney General complained to Mr. Whybrew. Nothing happened. Mr. Whybrew said the tenants were paying their rent, so he wasn’t going to do anything. Apparently, he believed that money talks, and neighbors walk.

Riley v. Whybrew, 185 S.W.3d 393 (Ct.App.Tenn. 2005). The Rileys lived in a house in a subdivision next to a house Richard Whybrew leased to the Parkers. Problems ensued.

Shortly after the Parkers moved in, the Rileys began experiencing problems with their tenant neighbors. A high number of unknown persons would come to the Parkers’ house at all hours of the day and night, with horns honking, tires squealing and loud voices. They would drive up, engage in a brief conversation or transaction with a resident at the Parkers’ home, and leave after a few minutes. The Rileys overheard many conversations about the sale of drugs, as well as frequent profane and abusive language. On several occasions, firearms were discharged at the Parkers’ residence at various times during day and night. Some activities were directed toward the Rileys: chemicals were put in their gas tanks, a laser pointer was aimed at Timothy Riley, personal property was stolen from the Rileys’ home, and when the Rileys were seen by the Parkers or their visitors, they were taunted, cursed at or stared at menacingly. The Rileys’ dog was even shot by a visitor to the Parkers’ home.

Of course, sometimes your neighbor’s harassment is a little more subtle …

A month later, the police conducted a raid on the Parkers’ residence, and Marina Parker was arrested for possession of marijuana. Despite the arrest, the disturbing activities at the Parkers’ home continued. As a result, the Rileys employed an attorney to notify Whybrew of the problems. In February 2000, the attorney sent Whybrew a letter informing him that his rental property was “being used for illegal activities, in violation of the housing and zoning codes, and probably in violation of the terms of [the] lease.” Later that month, Whybrew received a letter from the director of the Narcotics Prosecution Unit of the Office of the Shelby County Attorney General about the drug trafficking. The letter noted that the amount of controlled substance found at the Parkers’ home was not enough to compel Whybrew to evict the Parkers, but stated that Carter wanted Whybrew to be aware of the situation. A year later, the Rileys again complained to Whybrew, who said the Parkers had a lease and paid their rent on time, and he did not plan to take action against them.

The Rileys sued Whybrew, the Parkers, and ten “John or Jane Doe” defendants, seeking damages for infliction of emotional distress and asking for abatement of the nuisance. Whybrew asserted that the other defendants were the sole cause of any injuries suffered by the Rileys. Whybrew maintained that the Rileys failed to state a claim upon which relief could be granted and asked the trial court to dismiss the complaint. The trial court granted summary judgment to Whybrew.

Held: The case was reinstated, and the Rileys were entitled to a trial. The Court of Appeals found that a material question of fact existed as to whether Whybrew negligently allowed the tenants’ illegal behavior to continue, and that issue precluded summary judgment against the Rileys on their nuisance claim. The Court agreed that even if Whybrew had had knowledge of his tenants’ illegal activities – including drug use, discharging firearms and harassment – his failure to stop the Parkers’ activities could only be characterized as negligence. Thus, as a matter of law, it could not constitute the intentional infliction of emotional distress.

However, the claim of negligent infliction of emotional distress was related to the claim of negligence for landlord’s failure to abate the nuisance caused by the Parkers’ illegal activities, and as such, the Rileys’ claim for damages for emotional distress was not a stand-alone claim, and could be heard even absent expert medical testimony as to their damages. Most importantly, the Court ruled, while Whybrew argued that there was no breach of any duty to the Rileys because there was no proof that he was aware of the Parkers’ illegal activities until February 2000 (and the Parkers moved from the residence after being served with this lawsuit two months later), it disagreed and held that the Rileys had established a genuine issue of material fact on the claims of maintaining a nuisance and negligent infliction of emotional distress, sufficient to withstand a motion for summary judgment.

The case went back to trial.

– Tom Root


Case of the Day – Thursday, February 23, 2023


I do not often report on a case that is probably destined for the dustbin of history, but then, these are unusual times. Climate change is a hot topic once again, and renewable energy (which became a whipping boy after the Texas freeze two years ago but a hero when Russkie gas suddenly disappeared from Europe last summer is a hot topic.

“You’re getting a little political, there, aren’t you, tree man?” readers are probably muttering. I am taking sides… I’m just observing that use of renewable energy is becoming a national priority. In today’s case, from 35 short years ago, access to sunshine was not a right that a landowner could assert against a neighbor whose trees had gotten too tall. I suspect that a California court today would not reach the same conclusion…

Sher v. Leiderman, 181 Cal.App.3d 867 (Ct. App., 6th District, 1986). In 1962, Rudolph and Bonnie Sher entered into a long-term land lease with Stanford University for a lot on the Stanford campus in an area known as Pine Hill 2, one of five model planned subdivisions developed by Stanford for use by faculty and staff. All building and landscaping on subdivision lots was subject to Stanford’s prior review and approval. Shortly after the Shers’ plans were approved, Herb and Gloria Leiderman leased an adjacent lot. They in turn obtained design approval for their home and proceeded with construction. Both families moved into their new homes in 1963 and have lived there ever since.

The Shers’ lot sits on the northeast slope of a hill. The Leidermans’ lot is southwest of the Shers’ and occupies the upper slope and the crest of the hill, fronting on Lathrop Drive. The two lots share a common boundary along the Shers’ southern – and the Leidermans’ northern – property line.

The Shers’ home was designed and built to take advantage of the winter sun for heat and light. The home is oriented on the lot so as to present its length towards the south. South-facing windows are relatively larger than others in the house. The south side of the house is also “serrated” to expose the maximum area to the sun. A large south-facing concrete patio operates to radiate sunlight into the home’s interior. Skylights add to the light inside the house and an open floor plan in the common areas increases the general circulation of light and air. Roof overhangs are designed at an angle and length to block the hot summer sun while permitting winter sunlight to enter the house. Roof and walls are well insulated. Deciduous trees and shrubs along the southern side of the house aid in shading and cooling in the summer but allow winter sunlight to reach the house.

The Sher home is a “passive solar” home., with design features and structures identified forming a system intended to transform solar into thermal energy. A concomitant design goal was to create a bright and cheerful living environment. Although the home includes many passive solar features, it does not make use of any “active” solar collectors or panels. Nor does it employ any “thermal mass” for heat storage and distribution. Building materials used throughout were typical and conventional for the time; the house does not contain any special materials primarily selected for effective thermal retention.

At the time the Shers and Leidermans designed and built their homes there were no trees on either lot. But over the years both the Shers and the Leidermans, as well as their neighbors, landscaped their properties. As noted above, the Shers’ landscaping was designed to enhance and complement their home’s effectiveness as a solar system. The Leidermans’ landscape plan was disapproved in part by the Stanford housing office, specifically because of trees to be planted along their northern property line bordering the Shers’ lot.

Despite the lack of approval, the Leidermans planted the trees, including a large number of Monterey pine, eucalyptus, redwood, cedar and acacia. The trees were planted to beautify the Leiderman property, to attract birds and other small creatures, and to provide shade and privacy, not with any intent on the Leidermans’ part to deprive the Shers of sunlight.

In 1972, the Shers discovered that some of the Leiderman trees cast shadows on the Sher house in the wintertime. The Shers paid to have the offending trees topped. In 1977, several other Leiderman trees were removed because their continued growth posed a threat to the sewer line. The cost of this removal was shared by the Shers and Stanford. Further tree work was done at the Shers’ expense in the winter of 1979. The Leidermans themselves also engaged in other tree trimming and removal over the years at a cost of about $ 4,000. Since 1979, however, the Leidermans refused trimming, either on their own or in cooperation with the Shers.

At time of trial, trees on the Leiderman property completely blocked the sun to much of the Sher home in the winter months. From December 21 to February 10, the central portion of the Sher home was cast in shadow between 10 a.m. and 2 p.m. The Shers added a skylight over their kitchen area to help alleviate the problem, but now this too is largely shaded during the winter.

The shade problem transformed the formerly cheerful and sunny ambience of the Sher home; the interior is now dark and dismal in the winter months. The shading has also had an adverse impact on the home’s thermal performance. The Shers’ expert testified that heat loss during the winter months amounted to an equivalent of $30 to $60 per season in heating costs. Two experts testified that the loss of sunlight to the Shers’ house has resulted in a diminution of market value between $15,000 and $45,000. The trial court also found that the Shers have suffered actual and serious emotional distress as a result of the blockage of sunlight to their home.

In order to restore sunlight to the Sherså’ home during the winter months it would be necessary to trim some of the Leidermans’ trees, top others and remove those where topping would destroy the character of the tree or possibly kill it. Annual trimming would also be necessary.

The Shers sued, claiming the Leidermans’ trees were a private nuisance as well as a public nuisance under the California Solar Shade Control Act (Pub. Resources Code § 25980); and alleging negligent infliction of emotional distress. The trial court found for the Leidermans.

The Shers appealed.

Held: The Leidermans did not owe a duty to the Shers, and their trees were not a nuisance just because they blocked the sunlight.

The trial court found that the relief requested by the Shers would amount to burdening the Leiderman property with a permanent easement for passage of light to the Sher property. It is well settled in California, however, that a landowner has no easement for light and air over adjoining land in the absence of an express grant or covenant. Nuisance law likewise holds that blockage of light to a neighbor’s property, except in cases where malice is the overriding motive, does not constitute actionable nuisance, regardless of the impact on the injured party’s property or person.

The public interest in promoting solar energy, the Court said, did not justify creating a private cause of action in nuisance by one neighbor against another for obstruction of light to a house designed to take advantage of winter sun for heat and light. Each landowner’s right to use his property lawfully to meet his legitimate needs is a fundamental precept of free society, and, although his use may be made subject to limitations for the public good, it cannot be said his rights as to adjoining landowners are thereby diluted.

The general rule is that in determining whether any interference with use and enjoyment of land is unreasonable a court must balance the gravity of the harm against the utility of the conduct. As for the value of solar energy, it is solely within the province of the Legislature to gauge the relative importance of social policies and decide whether to effect a change in the law so as to create a private cause of action in nuisance for blockage of light to a neighbor’s property.

The California legislature has created an exception to established nuisance law in the Solar Shade Control Act, Pub. Resources Code, §§ 25980-25986 The Act prohibits landowners from planting or allowing a tree to grow which will shade more than 10 percent of a neighbor’s solar collector during certain hours of the day. The Court observed that judicial expansion of the law would be unwarranted, whether it constitutes a limitation on legislative protection of solar access or the initial phase of a more comprehensive legislative plan to guarantee solar access, particularly where legislative solutions are feasible as shown by legislation enacted by another state.

The Court said that allowing a landowner to bring a nuisance action to prevent a neighbor’s blockage of sunlight to the owner’s property would violate established principles of due process and property law, which require that a property owner or prospective purchaser have notice of limitations on the use of his property. Zoning and other local ordinances provide such notice as do the recording laws, while abatement through a nuisance action does not. Furthermore, creation of such a cause of action would foster ill will and proliferate litigation between neighbors.

In an action to enjoin a public nuisance under the Solar Shade Control Act, Pub. Resources Code, §§ 25980-25986, the windows and skylights could not be construed as solar collectors as defined in Pub. Resources Code, § 25981, which includes in its definition a structure or part of a structure used primarily as part of a system which makes use of solar energy for space heating or cooling. Although the windows and skylights were intended to catch the winter sun and provide warmth to the house, this was not their primary purpose. Furthermore, inclusion of portions of a house such as the windows, walls, roof, patio, and skylights as within the act’s definition of solar collectors would impose upon the local law enforcement agencies responsible for enforcing the act the enormous task of determining whether a portion of a house was actually a solar collector whenever it was not readily identifiable as such.

In determining whether the Legislature intended the term “solar collector” in the Solar Shade Control Act to include passive solar collectors such as windows and skylights, Pub. Resources Code, § 25980 is not controlling. That section speaks of imposing only specific and limited controls on the shade cast by trees and shrubs on solar collectors. The Legislature’s intent to exclude passive solar collectors from the act’s coverage is also established by the requirement of § 25981 that structures must be primarily used as solar collectors to be included within the act’s coverage.

Finally, in their action for negligent infliction of emotional distress, the Shers proved they had suffered emotional distress due to the fact that trees planted on the Leidermans’ property had grown to the point that they shaded the south-facing windows of the Shers’ house, making it gloomy and cold during the winter months. Nevertheless, the trial court properly denied the Shers any recovery, where the injury causing the emotional distress was only to their property, where there was no trust, contractual, or other special relationship between the parties giving rise to a duty on defendants’ part, and where defendants had acted reasonably in planting trees on their property and allowing them to grow.

– Tom Root


Case of the Day – Wednesday, February 22, 2023


Denise Pevarnek’s agent chopped down her neighbors’ trees so she’d have a better view of the river. The neighbors complained (surprisingly enough), but Denise steadfastly ignored their remonstrances. The neighbors then sued, but Denise ignored the summons. She finally decided to start paying attention after a default was entered against her and the trial court intended to assess treble damages against her in the amount of $77,000.

YouSnoozeYouLoseDenise tried futilely to undo the consequences of her earlier indolence. Alas, a stitch in time saves nine. The Court ruled that she had had plenty of notice, but her decision to ignore the lawsuit was her problem, and undoing the default she so richly deserved would have turned her problem into her neighbors’ problem. And they were already smarting from the loss of their trees.

Of interest in the case — one argument Denise included in her scattershot but untimely defense — was her contention that the cost to replace the trees wasn’t the right measure of damages, and that the trial court was wrong to rely on an affidavit of an arborist that didn’t explain in detail how he had arrived at the damage costs. The Court rejected this, saying that in the case of trespass, the measure of damages is either the reduction in value of the property, or — where the property can be repaired — the cost to fix things. The goal of the damage award, according to the Court, is to come as close as possible to compensating the owner for the damages, and trial courts have a lot of latitude to choose the method that seemed more reasonably calculated to do so.

The affidavit, the Court noted, laid out the expert’s education and experience, showed that he had inspected the damaged real estate. and proposed a reasonable strategy for repairing the harm. The arborist listed what had to be done and how much he’d charge to do it. It might not be perfect, but perfection is often the enemy of “good enough.” The affidavit, the Court ruled, was “good enough.”

Stitch2The Court reminded the defendant that if she really had found the damage showing to be flawed and superficial, she could have come to the hearing and contested it. Snooze and lose, indeed.

Bologna v. Pevarnek, 2007 Mich. App. LEXIS 2689, 2007 WL 4207801 (Mich.App., Nov. 29, 2007). Denise Pevarnek hired Chester Damiani to clean up her property. He was zealous to a fault, deciding that to improve the view of the Detroit River from her adjacent lot by cutting down trees belonging to her neighbors, the Bolognas. Believing that Denise and Chester’s conduct was baloney, the Bolognas sued for trespass, alleging that the destruction reduced the value of their property and exposed a view to Pevarnek’s unsightly neighboring property and asking for $28,000, trebled by Michigan’s wrongful cutting statute to $84,000.

Denise Pevarnek was served with the lawsuit, but she didn’t answer. As is customary when that happens, the Bolognas got a default judgment. Thereafter, they presented an affidavit of a certified arborist that the cost of landscape restoration was $24,050. At this point, Denise took notice, and began taking action to defend, seeking to have the default undone. The trial court refused, and it entered judgment against her for $77,730. Pevarnek appealed.

Held: The judgment was upheld. Much of the case revolves around whether Denise  should be relieved from her default judgment. The Court of Appeals ruled, in essence, that she knew about the suit and did nothing. In other words, “you snooze, you lose.” But of interest in the area of tree law was Denise’s claim that the trial court was wrong in using the cost of replacing the trees as a measure of the damages the Bolognas suffered. The Court of Appeals said where the wrong consists of a trespass to property resulting in an injury to the land that is permanent and irreparable, the general measure of damages is the diminution in value of the property. If the injury is reparable or temporary, however, the measure of damages is the cost of restoration of the property to its original condition (if less than the value of the property before the injury).

perfectThe rule is, however, flexible in its application. The ultimate goal is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss. Here, the Court said, given the fact that the Bolognas’ trees could be restored, it was proper for the trial court to use the cost-of-restoration method.

Pevarnek argued that the trial court erred by adopting without question the assertion of alleged damages without sufficient foundation. The plaintiff had filed an affidavit of arborist Steve McCollum, who swore that – in order to return the property to its pre-trespass condition, that is, with no view of Pevarnek’s property – 12 new trees had to be planted, some existing trees had to be replanted, the over-pruned trees had to be removed, and the lawn had to be repaired. He stated that the total cost of this work was $24,050. The trial court awarded plaintiffs damages of $77,730, equal to three times the sum of the cost of work proposed by McCollum and $1,860 for the cost of a privacy fence. Although McCollum’s affidavit didn’t explain how he calculated the damages, he stated his qualifications and education, he said he had personally inspected the Bologna property, assessed their needs, specifically listed the work to be done, and listed the cost for his business was to complete it. The Court said the expert affidavit put forth a reasonable basis for the damage computation, and that was enough.

– Tom Root

Case of the Day – Tuesday, February 21, 2023


Years ago, our neighbor Olwen – who, if she had not passed away (meaning, of course, that we cannot speak ill of her), we would have described as a battleaxe – surrounded two sides of her property with 2-3’ arborvitae. It didn’t really look that bad, but… well, they grew.

And grew, and grew and grew. Our neighbor never trimmed them before she departed this mortal coil. And the two families who lived there subsequently never trimmed the trees, either.

Consequently, the arborvitae are 25 feet tall and still growing. We finally had to move our vegetable garden about 20 yards to the west because of the shade they were throwing. Exercising our Massachusetts Rule rights last fall, we hacked about ten of them back to the property line in order to install a new shed. We then built a fence to try to keep the monsters in check.

My wife mutters about the arborvitae daily. I have no problem understanding Nancy – the protagonist in today’s case – who must have loved neighbor Pnita’s arborvitae as much as my wife loves Olwen’s. But while my wife just glowers at the arborvitae, Nancy – a woman of action – did something. She brought in a trimming crew and topped the neighbor’s trees.

She didn’t kill them, just sort of knee-capped them. Who knew that so much visceral pleasure could end up being so expensive?

So this post is for my wife, a cautionary tale lest she decides to take matters into her own hands on the next-door arborvitae. Take a deep breath, honey…

Joseph v. Nathanson, 87 Mass. App. Ct. 1102, 23 N.E.3d 151, 2015 Mass. App. Unpub. LEXIS 37 (Ct.App. Mass. Jan. 16, 2015). Pnina Joseph and Nancy Ellen Nathanson owned abutting properties and share a property line. Pnina planted thirty-five arborvitae trees on her property close to the property line to serve as a privacy screen. In October 2012, Nancy directed her landscaper to go onto Pnina’s property and “prune” the trees. The landscaper “topped” the trees by cutting about five to six feet from the tops.

Pnina sued under Massachusett’s tree-cutting statute, G. L. c. 242, § 7, and a jury returned a verdict in Pnina’s favor, awarding her $35,000. The award was trebled under the statute. Nancy appealed, arguing that her actions did not violate the tree statute because the trees were not “cut down” or “destroyed” as required by the statute.

Held: “Topping” the trees so that they would no longer grow any higher justified application of the Massachusetts wrongful-cutting statute.

General Law c. 242, § 7 provides for liability on the part of anyone who “without license willfully cuts down, carries away, girdles or otherwise destroys trees.” Nancy asserts that under the tree statute, Pnina’s trees had to be completely destroyed or cut down in order for the plaintiff to recover. She argues that the evidence showed that the trees were alive, growing, and healthy after the topping of the trees and therefore could not possibly have been “destroyed.”

The Court said it would interpret a statute to give effect “to all its provisions, so that no part will be inoperative or superfluous.” The statute here requires that the trees be “cut down, carried away, girdled or otherwise destroyed.” G. L. c. 242, § 7. “The phrase “otherwise destroyed” includes,” the Court said, “but is not limited to, the preceding phrases including ‘cut down’.” In other words, “cut down, carried away,” and “girdled” are examples of how a tree may be destroyed; they are not exclusive.

The judge instructed the jury that the word “destroy” has a commonly understood meaning, which includes “to ruin completely, to ruin the structure, organic existence or condition of a thing, to demolish, to injure or mutilate beyond possibility of use.” The Court held that this definition given to the jury correctly provided a broader meaning to the term destroy than the examples in the statute.

Pnina’s expert testified that the “topping” of the trees meant that they would never grow vertically again and were no longer functional as a privacy screen. The jury was entitled to credit that testimony, to agree with Pnina that the trees were “mutilated beyond possibility of use” as a privacy screen, and therefore to find in Pnina’s favor.

– Tom Root


Case of the Day – Friday, February 17, 2023


“A stitch in time saves nine” is an idiom that’s been around for three hundred years or so. It also is an everyday explanation of the equitable doctrine of laches.

It always seemed a little ironic that English common law needed an entire branch of jurisprudence known as “equity.” Oliver Wendell Holmes, Jr., famously lectured a litigant once that his courtroom was “a court of law, young man, not a court of justice.” It was precisely because there was so much law and so little justice that medieval England developed a parallel judicial system known as courts of equity, where litigants could get just results that were precluded in the courts of law by hidebound rules of pleading and damages.

The basis of equity is contained in the maxim “Equity will not suffer an injustice.” Other maxims present reasons for not granting equitable relief. Laches is one such defense.

snoozeLaches is based on the legal maxim “Equity aids the vigilant, not those who slumber on their rights.” In other words, “you snooze, you lose.” Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. If the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice.

Ms. Garcia suffered encroachment from a copse of boundary-tree elms for a long time, perhaps too long a time, without doing anything about it. She could have trimmed roots and branches that intruded into her alfalfa fields years before – New Mexico law let her do that – but she fretted and stewed in silence. When she finally wanted to take action, the elms were so big that the trunks themselves had crossed the property line. Her “self-help” would have killed the trees.

The lesson? As Ed McMahon used to adjure us, “You must act now.”Act now

Garcia v. Sanchez, 108 N.M. 388, 772 P.2d 1311 (Ct.App. N.M. 1989). This dispute between neighboring landowners involves trees originally planted on the defendant’s property which have overgrown and now encroach upon the plaintiff’s property. By the time Garcia bought her land in 1974, ten elm trees planted some years before near the common property line were well established. Although originally planted inside the defendant’s property line, over the years the trees had reached full size, and had grown so that nine of them were directly on the boundary, with the trunks encroaching onto the plaintiff’s property from one to fourteen inches.

Garcia used her land for growing field crops. Sanchez’s side had a driveway and residence. Garcia didn’t complain about the trees until 8 years after buying her property. Two years after her first complaint, she sued.

The trial court found Garcia’s actions in providing water and nutrients to her crops had caused the trees to grow toward her property, but it concluded that Sanchez negligently maintained the elm trees, allowing the roots and branches to damage the crops on Garcia’s property. The court also found that she has not suffered enough damage to warrant the removal of the trees and that cutting any substantial portion of the trunks of the trees would seriously harm them. The court found that yearly trenching of the roots and trimming of branches on Garcia’s side of the property line would essentially resolve any problems resulting from the encroachment of tree roots and overhanging branches on her property, so it ordered Sanchez to pay $420.80 for damage to Garcia’s alfalfa, to yearly trench the roots and trim the branches of the trees, and to provide water and nutrients to the trees in order to restrict their growth toward plaintiff’s property.

The parties appealed.

Elms make good boundary trees

Elms make good boundary trees

Held: The Court of Appeals reversed and remanded. It held that the trees originally planted inside a property line, which had grown to encroach onto adjoining property along boundary, were not jointly owned under the common boundary line test absent an oral or written agreement to have the trees form boundary line between the parties’ property. It agreed that the trial court’s refusal to order that Sanchez remove the encroaching trees was not an abuse of discretion, observing that the trial court had tried to balance equities by weighing the value of trees against the agricultural character of the property involved and the nature of harm suffered by Garcia.

But the Court of Appeals went further: it ruled that the harm caused to Garcia’s crops by the elms’ overhanging branches and tree roots is not actionable. Instead, following Abbinett v. Fox, the Court held that a plaintiff’s remedies are normally limited to self-help to protect against the encroaching branches and roots. But here, Garcia waited too long: her plan now, after years of suffering in silence, to remove a substantial portion of the root system or trunk of the encroaching trees (the Massachusetts Rule right) may endanger lives or injure Sanchez’s property, and that laches gives a court the right to limit the exercise of her self-help plan under its equitable authority.

The Court sent the case back to the trial court to determine whether Garcia’s failure to exercise self-help to control encroaching roots, branches and tree trunks over an extended period should preclude injunctive relief now.

– Tom Root