Case of the Day – Wednesday, June 15, 2022


A long, long time ago, before I was trained to think like a lawyer, I was a neophyte law student and still thinking like a layman, that is to say, “normally.” New law students are first exposed to contract law. Digging into Basic Contract Lawthat boring-looking brown tome that was chock-a-block with fascinating cases, I very quickly ran into Peevyhouse v. Garland Coal Co. (on the second day of class, I recall).

Farmer Peevyhouse signed a deal with Garland Coal Co., to strip mine his land. The land was hilly, and Farmer P thought the strip mining was the ideal time to fix that. So he got Garland Coal to agree to level the land when the company was done strip mining.

Garland Coal left a lot of hills behind…

When the coal was gone, so was Garland Coal, leaving the farm just as hilly as it was before the mining. Farmer Peevyhouse sued for breach of contract. He won, of course, but when it came to figuring damages, the court noted that the diminution in value of the farm because it was still hilly (as opposed to flat) was only about $5,000. But if Garland Coal were required to come back to keep its promise to level the place, Garland Coal would have to spend $25,000 to pull it off. The higher award would constitute economic waste, the court held, and the court was not about to be wasteful with the coal company’s money.

Back then, as a tyro-at-law, I couldn’t understand the decision. Who cared if the damages were wasteful, or if the market value of the farm was only slightly less? To me, Farmer Peevyhouse made a deal, Garland Coal agreed to the deal, and – inasmuch as Garland got all the coal it bargained for – Farmer P should get what he bargained for as well, economics be damned. To me, the economics did not matter nearly as much as did the reasonable expectations of the parties.

Now, with many years of practice under my belt, I tend to think like a lawyer. But Peevyhouse still makes no sense to me. The farmer would not have let Garland Coal strip his land without the promise to level the hills. So the promise was material to the farmer. Why reward Garland Coal simply because Mr. Peevyhouse’s legitimate desires might not make great economic sense?

In The Princess Bride, Inigo Montoya ends his years-long quest to avenge his father’s untimely death in a fight to the death with the six-fingered man. At last, Montoya has the tip of his sword at Count Rugan’s throat:

Inigo Montoya:   Offer me money.
Count Rugen:     Yes!
Inigo Montoya:   Power, too, promise me that.
Count Rugen:     All that I have and more. Please…
Inigo Montoya:   Offer me anything I ask for.
Count Rugen:     Anything you want…
[Rugen knocks Inigo’s sword aside and lunges. But Inigo traps his arm and aims his sword at Rugen’s stomach]
Inigo Montoya:   I want my father back, you son of a bitch!

That, on a less dramatic level, was Paul Harder’s complaint. As we read in yesterday’s installment on this case, while Paul was gone from Alaska, Joel and Darlene Wiersum clear-cut his land without permission in order to improve their view. In seeking money to restore his property – a sum that came to something like four times the fair market value of his land before the clear-cutting – Paul told the jury he “didn’t want money,” but rather he only wanted his trees back. Paul, therefore, asked for damages to restore the property by replanting the forested area.

Count Rugen could give Inigo money and power and land. But he could not give Inigo what he wanted the most, a desire that was heartfelt if utterly infeasible (and rather uneconomical). In that regard, Inigo Montoya and Farmer Peevyhouse had something in common. The question is whether they both had something in common with Paul Harder. We’ll find that out now…

Wiersum v. Harder, 316 P.3d 557 (Alaska, 2013). Paul Harder owned a pretty nice piece of Alaskan wilderness near Kodiak. He built a cabin on it and lived happily for quite a stretch. But when wanderlust set in, he subdivided the land, sold the plot with the cabin on it to his sister Lisa and kept one for himself, and left for a 15-year sojourn in warmer climes.

Paul lived in Hawaii but returned to visit his plot of land occasionally and enjoy the hunting, fishing and recreation opportunities it afforded.

About nine years after Paul went south, Joel and Darlene Wiersum bought some land at the top of a hill, adjacent to the Harder tracts. Looking down the hill, they could see Lisa’s cabin several hundred yards below, and incorrectly assumed she owned it all. One day, Darlene called Lisa at work and asked whether they could cut down some trees on Lisa’s property that Darlene thought might “come down with the wind” and hit their home. Lisa gave them permission because she thought the removal of some trees would “let a little more light in” to the woods.

Darlene and Joel did not just thin out a few hazard trees. Instead, they clear-cut the entire hill, out to almost 400 feet beyond their property line. When Lisa returned home to find that bare naked hillside, she told the Wiersums not to cut any more trees.

When Paul returned a couple of years later, he discovered the clear-cut hillside (which really was on his plot, not that of his sister), and promptly sued the Wiersums for timber trespass. A jury him $161,000 in compensatory restoration damages, which was trebled under Alaska statute AS 09.45.730.

The Wiersums appealed.

Held: The jury’s restoration damage award was reversed and sent back for retrial.

A party who is injured by an invasion of his or her property that does not totally destroy its value may choose as damages either the loss in property value or “reasonable restoration costs.” To determine whether an award of restoration costs is appropriate, Alaska follows the Restatement (Second) of Torts § 929. The Restatement says if a plaintiff is entitled to damages for harm to land resulting from a trespass that does not amount to a total destruction of value, the damages include either (1) the difference between the value of the land before the harm and the value after the harm, or – if the plaintiff so chooses – the cost of restoration that may be reasonably incurred. Damages are measured by the difference between the value of the land before and after the harm only if the cost of restoring the land to its original condition is disproportionate to the loss in the value of the land caused by the trespass “unless there is a reason personal to the owner for restoring the original condition.”

That’s the law for you. A layman untrained in legal niceties would say “a personal reason,” but the legal phrase is a “reason personal.” The distinction is intended to convince you that the law must be complex, and thus you ought to pay that “bill inflated” your lawyer hands you without a whimper.

A “reason personal,” the Court said, is a reason peculiar or special to the owner, where “the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.” For example, the Court in the past had found a “reason personal” where the damaged property was used by the plaintiff as “a showplace in connection with his nursery business” and, in another case, where the property enjoyed “unique views… abundant trees, and the unusual juxtaposition of the trees, the cabin, and the views,” and its owners, who planned to retire on the property, had testified that “other properties in the area were not comparable.”

To find that a plaintiff had a “reason personal” for restoration, where those costs were much higher than the loss of value to the land, a court should look for evidence showing “a reasonable likelihood that the trees would be restored.”

Paul showed at trial that he held on to the Monashka property for 34 years and that he intended to build a house and live on it once his son graduated from college because “it’s a very beautiful piece of property.” A real estate agent testified that he approached Paul about selling the land, but Paul had refused. Paul testified he “didn’t want money,” but rather he only “wanted his trees back” and was asking for damages to restore the property by replanting the forested area. He said he enjoyed spending time with his children on the property, but that after the trees were cut down, the property “looked totally different,” full of salmonberry bushes… whereas it was just like thick moss before,” and he reported that he had not heard any ravens there since the trees were cut.

The Wiersums argued the award of restoration damages was objectively unreasonable because the total market value of Paul’s property before the timber trespass was only $40,000. A damage award of $161,000, they contended, was disproportionate to the property’s diminution. Besides, peripatetic Paul’s “minimal use of and contribution to the land’s special value would at most justify a marginal award of restoration costs.”

The Court noted it had found in the nursery case that restoration damages were not “grossly disproportionate” where the owner had paid $4,000 per acre for the property, but the jury awarded $12,550 for restoring a quarter-acre of land. Because the principal value of the property stemmed from the creek running through it, and the owner intended to use the property to create “a showplace in connection with his nursery business,” the cost of restoration, although disproportionate to value, was reasonable. Nevertheless, the Court had previously cautioned that “restoration costs exceeding diminished market value may be awarded only to the extent such added costs are objectively reasonable in light of the ‘reason personal’ and in light of the diminution in value.”

The “reason personal” may be a non-commercial one based on the property’s uniqueness, but the restoration award must be limited to the cost that has been or may be reasonably incurred.  The reason for this rule, the Court said, is “to reduce the economic waste that occurs when a party incurs repair costs in excess of the diminished value of the property.” The application of this principle “must ensure that an award of restoration damages does not confer a windfall upon a landowner.” Where proposed replacement costs are excessive in relation to the damage caused by the trespass, “the achievement of a reasonable approximation of the land’s former condition may involve something less than substantially identical restoration… It may be more appropriate to award costs for the planting of saplings, or a few mature trees, or underbrush to prevent erosion and achieve a lesser but, over time, reasonable aesthetic restoration.”

Applying these principles to Paul’s denuded hillside, the Court held that the award of $161,000 in restoration costs was objectively unreasonable in light of the $40,000 pre-trespass total value of the property. Paul’s “reason personal” for restoration, and the absence of any proof of the extent of the decrease in the value of his property, made it more appropriate to award costs “for the planting of saplings or a few mature trees or underbrush to prevent erosion and achieve a lesser but, over time, reasonable aesthetic restoration.” The Court’s conclusion was based on its determination that the “property could be reasonably restored by replacing at least some of the mature Sitka spruce with saplings or smaller trees and that because the property’s large trees were growing in a forested environment where the root zones were intertwined” it was not possible to ” replace that exact tree in that environment.”

The jury must base its award on a finding that the restoration costs were objectively reasonable in light of the value of Paul’s land, the loss of value due to the Wiersums’ trespass, and his “reason personal.” Here, the Court said, no reasonable juror would award restoration costs totaling more than four times the full fair market value of the property before the trespass. Thus, the Court sent the case back for a new trial on damages.

And what’s my take on this case, based upon my decades of thinking like a lawyer? I’m with Inigo Montoya and Paul Harder: “I want my trees back, you son-of-a-bitch,” and economics be damned.

This is a bad decision.

– Tom Root


Case of the Day – Tuesday, June 14, 2022


You know the guy I’m talking about. Nothing is ever his fault. (No, I did not suggest a certain former inhabitant of the White House or the current inhabitant, either – we stay above politics around here).

But… that guy. The blame always lies with someone else. Think of John Belushi in the Blues Brothers, groveling at the feet of an assault rifle-toting Carrie Fisher, explaining all the reasons he had left her standing at the altar and ending with the plaintive wail, “It’s not my fault!”

Today’s defendants have something in common with the pathetic Jake Blue. For reasons unexplained (but I suspect, given this occurred on breathtaking Kodiak Island, Alaska, that it was intended to enhance their view), Joel and Darlene wanted to remove some trees on the downslope of the hill they lived on, out to about 400 feet. Most of the trees – beautiful 100-foot plus Sitka spruces – were not on their property. A minor detail.

Darlene called her neighbor, Lisa, and asked whether she and her husband could cut down a few trees on Lisa’s land, you know, just trees that might pose a hazard if they were to fall in a windstorm across the property line and strike Joel and Darlene’s cabin. Lisa was at work when Darlene called her, and she didn’t really have a well-formed idea of what her neighbors had in mind. This was understandable, given that Darlene misled Lisa into believing they were talking about a few sickly boundary trees. Lisa, thinking that thinning the woods there would probably let more light in and spur growth, said that she did not mind at all.

When Lisa got home that evening, she discovered a denuded hill, with trees clear-cut from the boundary line toward her cabin for almost 400 feet. Hyperion itself couldn’t have fallen from that point and hit Joel and Darlene’s. Lisa was furious and called Darlene (who had the good sense not to answer the phone). Lisa told Darlene’s voice mail that there would be no more tree cutting.

Now for the fly in the ointment: Lisa had always thought that her land extended all the way from her cabin to Joel and Darlene’s property line. But it did not. Her brother, Paul, who had subdivided a larger parcel years before and sold Lisa one of the plots – the one with his old cabin on it – had reserved for himself a plot between Lisa’s and Joel and Darlene’s place. After selling in 1992, Paul had left for an extended sojourn (well over a decade) in Washington state and Hawaii. When he finally came home from wandering the Lower 48, some two years after the tree-cutting incident, he was not pleased. Paul demanded of Lisa to tell him who had cut all of his trees. That was when Lisa found out that much of the property between her cabin and the land up to Joel and Darlene’s property line belonged to Paul.

Naturally, Paul went after Joel and Darlene. Who wouldn’t? But they sniveled, “It’s not our fault! Lisa told us we could cut your trees!” Well, they did not exactly snivel, not audibly, but they promptly brought Lisa into the lawsuit as a third-party defendant. They maintained that because Lisa gave them permission to cut some trees without telling them that some of the intermediate land between their property and her cabin was Paul’s (and that they could not cut his trees), she was negligent. Joel and Darlene whined that if Paul had been damaged, Lisa owed Paul some of those damages. They argued Lisa had breached her duty to inform them, that she had made misrepresentations to them, and that she had breached her duty to Paul as well as a general duty she had to her neighbors.

The Alaska Supreme Court cut through Joel and Darlene’s arguments like a hot knife through butter. Lisa got nothing out of the tree-cutting episode, and she thus owed nobody nuthin’. Joel and Darlene had no right to rely on Lisa’s permission without checking the boundaries themselves. The Court’s finding might have been a blessing for the defendants, too, because it avoided the sticky question of whether – given Darlene’s obvious fraudulent misrepresentation to Lisa as to their tree-cutting – Lisa could possibly be liable at all. After all, if Darlene asked Lisa, “Hey, mind if we clear-cut 400 feet in the direction of your shanty so that we can improve our magnificent view?”, we suspect Lisa would not have been so forthcoming with permission.

Clearing up the issue of Lisa’s liability let the Alaska Supreme Court get to the meat of the case, which was the amount of damages owed Paul. We’ll take up that part of the holding tomorrow.

Wiersum v. Harder, 316 P.3d 557 (Supreme Court of Alaska, 2013). Paul Harder owned a pretty nice piece of Alaskan wilderness near Kodiak. He built a cabin on it and lived happily for quite a stretch. But when wanderlust set in back in 1992, he subdivided the land, sold the plot with the cabin on it to his sister Lisa and kept one for himself, and set off for parts unknown.

Not completely unknown, however. Paul spent the next 15 years living in Washington state and Hawaii, but he returned every so often to visit his plot of land and enjoy the hunting, fishing and recreation opportunities it afforded. It was, after all, overlooking Monashka Bay on Kodiak Island – it would be hard to stay away from home when it was as beautiful and wild as that.

About nine years after Paul went south, Joel and Darlene Wiersum bought some land at the top of a hill adjacent to the Harder tracts. Looking down the hill, they could see Lisa’s cabin several hundred yards below, and they assumed she owned everything between their home and hers. One day, Darlene called Lisa at work, and asked whether they could cut down some trees on Lisa’s property that Darlene thought might “come down with the wind” and fall on their land, damaging their home. Lisa readily gave them permission, because she thought the removal of some trees might “let a little more light in.”

Darlene was not being exactly straight with Lisa. She and Joel never intended to thin out some hazard trees. Instead, they intended to clear-cut the entire hill, out to more than 300 feet beyond their property line. When Lisa returned home from work later that day, the deed had been done; she discovered that bare naked hillside. Upset by the number of trees that had been cut, Lisa immediately called the Wiersums and left a message instructing them not to cut any more trees.

Paul did not return to the Last Frontier for about two years. When he did, he discovered the clear-cut hillside. Paul asked Lisa who had cut the trees, and then explained to her that the trees had been on his plot, not hers. After that, he promptly sued the Wiersums for timber trespass.

The Wiersums, apparently a couple not lacking chutzpah (just look at the clear-cutting escapade), filed a third-party complaint blaming Lisa for the trespass. They sought to apportion fault onto Lisa, claiming that she had negligently misrepresented that she owned the property where the trees were cut when she gave them permission to remove trees from her property. The trial court granted Lisa’s summary judgment motion and dismissed the claim against her. The Wiersums and Paul went to trial, and a jury awarded Paul $161,000 in compensatory restoration damages along with statutory treble damages.

Held: Lisa was not liable for the Wiersums’ trespass, but the case had to be sent back to the trial court, because the damages were excessive. Today, we’ll talk about Lisa’s “duty” to the Wiersums and her own brother.

The Wiersums contended that fault must be apportioned to Lisa because she was negligent when she failed to disclose to Darlene that she did not know exactly where her property lines were and that Harder also owned property in the area. In essence, their negligence claim was based on the theory that Lisa had negligently misrepresented or failed to disclose information to the Wiersums, and her negligence thus caused them to trespass on Paul’s property and remove his trees.

However, the Court held, negligent misrepresentation requires a showing that a party made a misrepresentation in the course of her business, profession, or employment, or in any other transaction in which she has a pecuniary interest.” Likewise, a person is liable for failure to disclose information when there is an affirmative duty to do when someone “fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction.” Lisa had no financial interest in what the Wiersums did with their land and thus owed them no duty under a theory of negligent misrepresentation or failure to disclose information when she had an affirmative duty to do so.

But did Lisa owe a duty to Paul? The Wiersums argued that Lisa owed a broad duty of care to her neighbors – both themselves and Harder – and was liable for any unreasonable risk of harm to them that stemmed from her own conduct. They supported this assertion with references to the Restatement (Second) of Torts § 158 and § 165, and they cited decisions from other states in support of the rule that a “landowner who intends to have timber cut on his land owes a duty to an adjoining landowner to ascertain the boundary line of the adjoining land with diligence and care.”

None of these arguments carried the day. The Court held that sections 158 and 165 of the Restatement (Second) of Torts were inapplicable, because they applied only where the person intentionally causes a third person to enter land, that is, “commands or requests” a third person to enter the land of another. Lisa never commanded the Wiersums to do anything. Section 165 similarly provided no support for the Wiersums’ position, but rather imposes liability where someone recklessly or negligently enters land in possession of another, or causes “a thing or third person so to enter,” and thereby harms the land. Comment (a) to this section indicated that the rule applies where “the conduct of the actor either… involve[s] an unreasonable risk of invading the possessor’s interest in his exclusive possession of the land, or… [is] caused by an abnormally dangerous activity carried on by the actor.” Lisa’s act of giving the Wiersums permission to cut trees on her own land did not present an unreasonable risk that the Wiersums would enter Paul’s land and cut his trees.

The Wiersums also argued that a Texas case held that landowners who intended to cut timber on their own land owed a duty to adjoining landowners to ascertain the boundary lines of the adjoining land. But Lisa did not seek out the Wiersums to remove trees from her land, nor did she affirmatively offer inaccurate information about her property boundaries. The Wiersums did not ask her for this information and, because this was not a business transaction, she was under no legal obligation to provide it. Thus, the Court said, she did not assume a duty to give accurate information to the Wiersums when they asked permission to remove her trees.

Finally, the Wiersums relied on Prosser and Keeton’s treatise on tort law for the rule that a landowner owes a broad duty “to cause no unreasonable risks of harm to others in the vicinity.” The Court was unimpressed. “Our prior decisions recognize that landowners have a duty to use due care to guard against unreasonable risks created by dangerous conditions existing on their property. We have also held that a landowner must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances. But we have never previously gone so far as to hold that a landowner has a broad duty to prevent the unreasonable risk of harm to her neighbors caused by third parties.”

Foreseeability of harm is the most important factor in whether Lisa had a duty to Paul, the Court said, and “there can be no duty where the harm is unforeseeable, but foreseeability alone is insufficient to establish a duty if the burden of taking care or the effect on society is too harsh.”

The foreseeability of harm to Paul resulting from Lisa’s conduct was low. Lisa made no active representation to the Wiersums to imply that the trees on the hillside near their property were hers and not Paul’s. She merely gave the Wiersums permission to cut trees on her own land. It was thus foreseeable that the Wiersums would cut trees on Lisa’s property, but it was not foreseeable that they would remove 70 large trees from Paul’s hillside – some of which were located between 300 and 400 feet from their own land – “without conducting proper due diligence to identify the true property owner and then seeking that person’s permission. No person,” the Court said, “can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.”

– Tom Root


Case of the Day – Monday, June 13, 2022


Unfiled lawsuits rarely get better if you continue to delay.

Unfiled lawsuits rarely get better if you continue to delay.

Tony Balducci had a couple of parcels on Sumner Street in beautiful Lunenburg, Massachusetts. One of them, a property at 240 Sumner, was subject to occasional flooding problems arising from poor drainage. Tony wanted the problem remedied, so he made a deal to partner up with the Town to install a drainpipe. Like most deals of this nature, Tony’s job was simply to pay, and the Town’s end of the project was to do the actual work.

The directionally-challenged workers for the town installed a drainpipe. It’s just that Mr. B had two places on Sumner, not just one. And (you guessed it), the drainpipe was installed at 244 Sumner Street instead of 240 Sumner Street (where it was supposed to be set). The result, of course – besides a drainpipe installed where it wasn’t needed – was that the flooding problems continued at 240 Sumner, where it was needed but not installed.

Tony was galvanized into action… some seven years after the error. The mystery is why it took him so long to notice the Town’s error, and why – after he figured it out a year later – why it took him more than six years to sue. There is, of course, a statute of limitations to just about every kind of action, civil or criminal. In the case of contracts in Massachusetts, it’s six years. The Town argued he had waited too long to sue. Tony responded that he had six years from the time he discovered the mistake – not from the time of the mistake itself – to sue.

The Court agreed that the “discovery rule” let Tony run his time to file a lawsuit from the day he learned of the Town’s blunder, but his victory proved to be a hollow one. Quite often, laws permitting suit against governments contain what are called “exhaustion” requirements. Before you can sue, you have to “exhaust” your administrative remedies by filing a claim with the governmental agency, usually on a prescribed form with a prescribed number of copies and according to a prescribed schedule. The goal, public policy types tell us, is to enable the governmental agency to resolve problems short of lawsuits by promptly and fairly addressing the claimant’s concerns.

Well, Bill Barr has a description that fits that notion as well as it characterizes the former President’s election theories. The real purpose of the “exhaustion” requirement is to exhaust people like Tony, or – barring the grinding down of the citizenry with arcane complaint requirements – to set a snare to trap the unwary.

Tony Balducci was one of those unwary ones. Whatever else he might have done during the six-year interregnum between discovering that the drainpipe was in the wrong place and suing, Tony never made demand on the Town to cure its negligence. That meant that his claim for negligence had not been administratively exhausted, and the count was thus thrown out. Unsurprisingly, the Massachusetts Tort Claims Act required that such a demand — called “presentment” — be made on the municipality before a lawsuit could be filed.

It is not clear how Mr. Balducci missed the fact the Town had put the drainpipe in the wrong place, or - for that matter - that his property was still a little damp.

It is not clear how Tony missed the fact the Town had put the drainpipe in the wrong place, or – for that matter – that his property was still a little damp.

Tony had a few other claims to make against the Town, including trespass and wrongful removal of trees. After all, he had given the Town the OK to enter onto 240 Sumner, but not 244 Sumner. Those counts were not subject to an exhaustion requirement, and they survived. But it’s clear that early in his lawsuit, Tony already had a big mountain to climb. More careful procedural planning — not to mention being quicker out of the chute — would have saved him some legal headaches now.

Balducci v. Town of Lunenburg, 23 Mass. L. Rep. 289 (2007), 2007 Mass. Super. LEXIS 497, 2007 WL 4248021 (Mass.Super. 2007). Tony Balducci owned two properties next to each other on Sumner in the Town of Lunenburg. In 2000, he and the Town entered into a written agreement for the replacement of a drainpipe located on his property, with Tony and the Town splitting the cost. He gave the Town an easement for the installation. But instead of installing the drainpipe at 240 Sumner Street, the Town installed it at 244 Sumner Street. As a result, Tony continued to experience flooding in his building at 240 Summer Street. He sued the Town of Lunenburg, alleging breach of contract, negligence, trespass, willful trespass to trees, and nuisance.

The Town moved to dismiss, arguing that the various counts should be dismissed due to the statute of limitations, a failure to comply with the Massachusetts Tort Claims Act, and failure to state a claim upon which relief may be granted.

Held: The Town’s motion was only granted in part. The Town first argued that Tony’s claim was barred by the statute of limitations because he brought the action more than six years after the alleged breach. But the Court observed that the “discovery rule” operates to toll — or suspend — a limitations period until a plaintiff learned or should have learned that he has been injured by the defendant’s conduct. Because Tony could present facts that show that he only learned of the improper installation of the drainpipe in 2001 when his basement flooded, the Court was unwilling to dismiss the action on the basis of the Town’s motion alone.

Likewise, the Court denied the Town’s argument that the contract action should be dismissed for failure to state a claim. The Court said there were genuine issues of material fact as to whether the Town had permission to install the drainpipe where it did, and whether it did so properly. The agreement was vague as to where the drainpipe should be installed, and the Town’s easement only referred to the agreement.

However, the Town was able to get the negligence claim dismissed. The Massachusetts Tort Claims Act required that a party present its claim in writing before suing. If a party does not fulfill this requirement, its case has to be dismissed for failure to state a claim upon which relief may be granted. Tony did not aver in his complaint that he has complied with the MTCA, requiring that the negligence count be dismissed.

The trespass claim — that the Town trespassed when it entered the wrong parcel of land to install the drainpipe and that the permanent nature of the drainpipe has created a continuous trespass — would not be dismissed. An action for trespass against a municipality does not come under the MTCA, so Tony was able to proceed on this claim without making any form of presentment. Tony’s complaint that the Town unlawfully removed trees from his property in violation of state statute, would not be dismissed.

SL151123Tony argued that because the easement deed wasn’t recorded until late 2004, the discovery rule barred dismissal of this count under the statute of limitations. While the Court didn’t agree with that argument, it held Tony appeared to be able to show a set of facts, such as that he did not become aware that trees on the wrong property were cut down until the easement deed was filed in December 2004.

Finally, Tony argued the Town created a private nuisance when it installed the drainpipe on Tony’s property. The Town argued the count should be dismissed for failure to state a claim upon which relief may be granted, as the allegations could not constitute a private nuisance. The Court disagreed, noting that where a municipality is the owner or in control of real estate and creates or permits a private nuisance to another person’s real property, it was liable just as a natural person would be. The essence of private nuisance is injury to property or persons outside the public place controlled by the municipality. There was a genuine issue of material fact as to whether the Town installed a drainpipe on property it controlled, which is now causing injury to Tony’s land.

– Tom Root


Case of the Day – Friday, June 10, 2022


Horrific crashes. They happen everywhere. Someone blasts through a stop sign late at night and slams into another car. One driver dies. A lawsuit ensues.

It’s an all-too-frequent tragedy. In today’s case, however, the inevitable lawsuit by the next-of-kin has an unusual twist. The surviving driver wasn’t the only one named as a defendant. Included in the lawsuit was the owner of the corner property, who was accused of contributing to the accident by letting overgrown trees and shrubs obscure the stop sign.

The investigating highway patrol officer testified that the sight lines were not so obscured that the offending driver couldn’t have seen the traffic sign. But the Court of Appeals decided that it wasn’t necessary to sort that out, because Georgia law resolved the issue.

It turns out that a state statute made it unlawful for a property owner to place any unauthorized device or structure in such a location as to obscure traffic signs. Over the years, the courts had defined the statute to include trees and shrubs planted by the owner as among the prohibited devices. But the catch is that the owner himself or herself must have planted the trees and shrubs: if the overgrowth was natural, it could be a rainforest for all Georgia law cared.

The sign's obscured by a rainforest? That's fine with Georgia, as long as you didn't plant it ...

The sign’s obscured by a rainforest? That’s fine with Georgia, as long as you didn’t plant it …

The Court held that because there was no proof the landowner had planted the overgrown vegetation, it didn’t matter how bushy he had let it become. The landowner couldn’t be liable. The lesson seemed to be that the less you do to take care of your place, the better off you are. Truly, less can be more…

Estate of Rachels v. Thompson, 658 S.E.2d 890, 290 Ga.App. 115 (Ga.App. 2008). Around midnight on July 4, 2003, young Winston Rachels was driving his truck northbound on Kent Rock Road, approaching Emmitt Steel Road. There is a stop sign on Kent Rock Road at its intersection with Emmitt Steel Road, but no stop sign on Emmitt Steel Road. Around this same time, Ashley Grant was traveling westbound on Emmitt Steel Road in a Jeep. Ashley did not see Winston’s truck until immediately prior to the accident. The truck and Jeep collided.

The sign, it turned out, was covered with kudzu ...

The sign, it turned out, was covered with kudzu …

Winston’s estate sued Walter Thompson, the property owner adjacent to the road, on the grounds that the property was overgrown, thus hindering visibility. The Estate’s negligence claim was premised upon Walt having violated O.C.G.A. § 32-6-51, which provides that “[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which: … (3) Obstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads[.]” The lower court dismissed the case, and the Estate appealed.

Held: The case was dismissed.

The Court noted that O.C.G.A. § 32-6-51 has been interpreted to include purposely planted trees and other vegetation, including an allegedly vision-obstructing row of trees planted by the defendant. But here, there was no evidence that Walt had planted the foliage at issuel. The photos placed into the record by the Estate in opposition to the motion show a lot overgrown with kudzu.

In his response to the Estate’s interrogatories, Walt said that “[t]here are no improvements on the property[,]” and [s]ince there were no improvements on the property, no maintenance was required.”

The Court held that the Estate has failed to show Walt breached any duty to trim vegetation that he purportedly owed Winston, and summary judgment was correctly granted to Walt.

– Tom Root


Case of the Day – Thursday, June 9, 2020


Who could forget the opening, the siter strings, Eric Burdon’s urgently whispered intonation, then the pounding of the drums? Yeah, Summer of Love, Monterey International Pop Festival, the Animals

We bring up “in the beginning” (not the much better-known use of the phrase), because it seems that everything arboreal in the common law is imagined to have sprung from the flinty ground of New England in 1931 with the Massachusetts Rule. We all know the Massachusetts Rule:

A property owner’s remedies when branches overhang or roots intrude from a tree on a neighbor’s land are limited to “self help.” In other words, a suffering property owner may cut off boughs and roots of a neighbor’s trees which intrude into another person’s land. But the law will not permit a plaintiff to recover damages for invasion of his property by branches or roots of trees belonging to an adjoining landowner. And a plaintiff cannot obtain equitable relief — that is, an injunction — to compel an adjoining landowner to remove roots or branches of such trees invading the plaintiff’s property or to restrain such encroachment.

We all have come to think that the Bay Staters invented the Massachusetts Rule. Fact is, they did not. Just as the Hawaii Rule was around before Hawaii was even an American possession, the Massachusetts Rule predated Michaelson v. Nutting by at least 40 years, and probably – if we delved back into English common law – much longer.

In today’s case, circa 1893, a railroad got tired of its engineer being smacked in the face by some overhanging branches belonging to Mr. Hickey. It offered him $10 to cut down the trees (worth about $255.00 today). He declined. So the railroad sent its own crew to cut the branches off at. the property line. Mr. Hickey sued. The railroad defended. And the Michigan Supreme Court gave us a Hickey Rule.

They gave us a Hickey? Maybe calling it the Massachusetts Rule is a better choice.

Hickey v. Michigan Central Railroad Co., 96 Mich. 498, 55 N.W. 989 (Mich. 1893). Mr. Hickey lived next to the Michigan Central right-of-way. Probably to wall off some of the noise and cinders, he planted trees along the boundary of the railroad right-of-way. The branches eventually overhung the right of way to such an extent that at times they brushed against the face of the engineer when his duties required him to lean out of his cab for the purpose of maintaining a lookout.

Finally, the Michigan Central sent a crew to trim the branches of the trees up to the line of the fence. Mr. Hickey did not claim the trees were damaged beyond this, or more than was necessary to remove the overhanging branches. The questions presented was simply whether these overhanging branches constituted a nuisance, and whether, as a nuisance, the Michigan Central had the right to cut them, and whether, before cutting them, the railroad was obligated to serve notice on Mr. Hickey that it would do so, giving him the opportunity to remove them himself.

At trial, Mr. Hickey testified that a Michigan Central supervisor had complained that the overhanging “You had better take it, or someday I will get an order to cut down those trees, and then you won’t get anything.”

The trial court held that the Michigan Central had a duty to notify Mr. Hickey that the branches were an obstruction, that he must remove the branches or the trees, or that they would do so. Then, if he refused, the railroad might remove the branches from the right of way itself.

Held: The Michigan Supreme Court reversed, holding that “any person injured by a nuisance, to the extent that he may maintain an action at law therefor, may remove so much of the nuisance as is necessary to secure to himself immunity from damage therefrom; but he must not be guilty of any excess therein, for, as to all excess of abatement, he will be a trespasser.”

The general rule is subject to this exception: “Where the act complained of is one of positive wrong or willful negligence, or the security of life and property is endangered, and the danger seems imminent, the party threatened with the injury may abate the same without giving notice to the wrongdoer, or waiting for him to remove it. Where, however, the nuisance is merely permitted to exist, and the case is not very urgent, notice, and an opportunity to remove it, is essential, before the complaining party would be justified in forcibly abating the same.”

But it turns out that this exception has an exception. “There is no decided case,” the Court said, “which sanctions the abatement, by an individual, of nuisances by omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. The permitting these branches to extend so far beyond the soil of the owner of the trees is a most unequivocal act of negligence, which distinguishes this case from most of the other cases that have occurred.”

The rule, the Court said, was that “trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages, and an abatement of the nuisance, against the owner or occupant of the land on which they grow, but he may not cut down the tree. Neither can he cut the branches thereof, beyond the extent to which they overhang his soil.”

The purpose of notice in such case, the Court said, is evident: is to give to the owner the opportunity of himself abating the nuisance. Here, no one disputed that Mr. Hickey knew that Michigan Central found the overhang to be a nuisance, and he refused payment to abate the nuisance. “We think,” the Court held, that “he is not in a position to insist that he was entitled to further notice.”

– Tom Root


Case of the Day – Wednesday, June 8, 2022


If there are two basic building blocks of tree law, they are the Massachusetts Rule – that New England rock of individualism and self-reliance – and the Hawaii Rule – that piece of creeping socialism that lets a property owner use the courts to force a neighbor to remove a tree that was a bother (we said that tongue-in-cheek).

After running out of gas and the funds needed to pay for it, I was homebound. For something to do, I went on a quest to identify the legal precedent in every state that addresses the issue of the encroachment of overhanging limbs and subsurface roots, so that we could present a state-by-state compendium of encroachment law. It was either that or cut the grass on my hands and knees with a pair of scissors (no gas for the mower). Wisely, I opted to go the encroachment route.

I had not even gotten out of the Northwest Territory – remember what that is? – when I found that the Massachusetts Rule did not start in Massachusetts. What’s more, as we see today, the Hawaii Rule was the law of the land in the Hoosier State back when Hawaii still had a queen, and the Americans had yet to diddle in the affairs of the Kingdom in order to engineer annexation.

Indiana’s rule can be summed up as this: a tree that encroaches on a neighbor’s property and creates a nuisance – producing such a condition that in the judgment of reasonable persons is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits” – has to be removed at the expense of the tree’s owners.

A tough place, Indiana… In today’s case, a tree that had once belonged to the plaintiff – who had sold the property to the defendant – had grown into the boundary fence, damaging it. The roots raised some sidewalk slabs on a walkway the plaintiff maintained near the boundary. The plaintiff, unwilling to fix the rather minor damage ($2,500 in 2010, not a princely sum), went to small claims court to make the other guys pay.

It seems to us that as a matter of equity, the plaintiff knew something like this would happen when he let the tree sprout years before, at a time when he owned the parcel on which the tree was growing. But equity appeared not to have any place in the courtroom that day.

But back to my basic point: the Hawaii Rule did not originate in Hawaii at all. What we thought we knew about that Rule turns out to be wrong. What next? Is the Massachusetts Rule equally mislabeled? Tune in tomorrow…

Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind.App. 2011). Steve Scheckel owned a piece of property separated by a chain-link fence from a plot belonging to NLI, Inc. Steve has a walkway paralleling the fence that runs about five feet from the boundary line. Steve had previously owned both his land and the NLI property, and – when he had – a tree grew on the NLI property near the fence. After he sold the land to NLI, the tree continued to grow, as trees are wont to do, until it grew into the fence and its roots grew under the walkway, leaving the gate in the fence unusable and the walkway badly cracked and buckled. Steve spent $2,500 fixing the mess.

Steve complained to NLI about the damage, but the corporation took no action. He then sued NLI for negligence and nuisance in small claims court. The court found for NLI on the grounds that while the size and placement of the tree damaged the fence and walkway, a landowner is not liable for harm caused beyond property boundaries by a natural condition of the land.

Steve appealed.

Held: The Court of Appeals reversed, and ordered that the trial court find NLI liable.

Steve contended that the trial court erred in applying the “natural condition” rule. The natural condition rule, as set out in which provides that a landowner was not liable for harms caused to others outside of his land caused by a natural condition of the land, arose “at a time when land was largely unsettled and the burden imposed on a landowner to inspect it for safety was held to exceed the societal benefit of preventing possible harm to passersby.”

Over the years, the rule has been subject to exceptions when landowners had actual knowledge of a dangerous natural condition, regardless of location, and – in an urban area – when he or she fails to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of the trees on the land near the highway. The rationale for imposing such a duty on urban landowners is that the risk of harm to highway users is greater and the burden of inspection on landowners is lighter in such populated areas.

Most recently, the Indiana Supreme Court observed that the natural condition rule as stated in the Restatement of Torts § 363(2) has little or no utility in an urban setting. A landowner in an urban or residential area “has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring land owners, arising from the condition of trees on his or her property.”

Here, the Court of Appeals said that

[s]trictly applying the Restatement rule in these settings would leave landowners powerless in the face of a neighbor who refuses to remove or secure an obviously decayed and dangerous tree simply because it is a natural condition of the land. As a result, Indiana, along with several of our sister states, has retreated from strictly applying the Restatement rule in urban or residential settings where the landowners have actual or constructive knowledge of the dangerous condition.

Here, the small claims court held that the condition of NLI’s tree did not pose an unreasonable risk of harm to neighboring landowners, but rather the placement and size of the tree that caused the damage. The Court of Appeals, however, disagreed, seeing “no meaningful difference between the two situations. Indeed, it may be difficult to determine whether a tree is decayed to such an extent that it poses an unreasonable risk of harm to an adjoining property owner, but a tree upon one’s property that is growing into a structure on an adjoining property is readily observable.”

The Court applied a three-part duty analysis it adopted from an Indiana Supreme Court ruling, concluding that a landowner in a residential or urban community owes a duty to prevent an unreasonable risk of harm to adjoining property owners or their property resulting from trees growing upon the landowner’s property. Those three factors – relationship, foreseeability and public policy – all support its conclusion that NLI owed Steve a duty:

The relationship is significant in that it is between the owners of adjoining property, and will often be that of next door neighbors. There is a high degree of foreseeability of harm where one’s tree is growing into a structure on an adjoining property. Finally, the landowner is best situated to prevent or minimize the harm by trimming the tree upon the landowner’s property. Accordingly, we conclude that the trial court erred in applying the natural condition rule to bar Scheckel’s negligence claim.

The Court also said the natural condition rule did not bar Steve’s private nuisance claim, either. A nuisance is defined as whatever is injurious to health, indecent, offensive to the senses, or an obstruction of the free use of property, such that it essentially interferes with the comfortable enjoyment of life or property. Ind.Code § 32-30-6-6. A public nuisance affects an entire neighborhood or community, while a private nuisance affects only one individual or a determinate number of people, arising when it has been demonstrated that one party has used his property to the detriment of the use and enjoyment of another’s property.

Nuisance actions may either be nuisances per se (at law) or nuisances per accidens (in fact). A nuisance per se occurs when the use itself is unlawful. A nuisance per accidens, a nuisance-in-fact, is not a nuisance in itself but becomes one by the manner in which it operates. In determining whether a private nuisance per accidens is actionable, the inquiry is whether the alleged nuisance produces such a condition that in the judgment of reasonable persons is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits.”

Ever since 1894, the Court said, Indiana has recognized the right of landowners to recover damages to their property caused by trees growing on an adjoining property as a private nuisance. In the 1894 Toledo, St. Louis & Kansas City Railroad Co. v. Loop decision, the Indiana Supreme Court held that in the event of trees growing so close to the boundary line between two properties that their branches encroach on the adjoining premises, the adjoining landowner may have an action for damages in nuisance if injury were shown.

The Court of Appeals concluded that the trial court erred by applying the Restatement’s natural condition rule to Steve’s cause of action.

– Tom Root


Case of the Day – Tuesday, June 7, 2022


Back a century ago or so, when the car was new-fangled, the airplane only read about in magazines, and no one had any broadband, simpler tree questions than our usual fare were being asked. And answered.

Here’s a sample tree question from those days: I have an apple tree growing close to our mutual property boundary. Some of the branches overhang your land, and every year, beautiful ripe apples fall on your side of the property line as well as on mine. Whose apples are they?

If you read yesterday’s case, you would say, “Why they’re mine, because I own the soil, the air branches above and the roots below,” remembering well the doctrine of cujus est solum ejus est usque ad coelum et ad inferos. And you would be…


At common law, the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

Now let’s make the issue more complex. Mr. X owns the timber rights to Blackacre (the name of the mythical piece of land that is the centerpiece of every first-year law school property law question). Ms. Y, however, holds title to Blackacre, subject only to Mr. X’s right to cut down the trees.

Now it turns out that the Blackacre trees are quite fecund, shedding copious amounts of valuable chestnuts. Ms. Y plans to make chestnut stuffing at Thanksgiving. Mr. X, however, says the nuts are his, because they came from the trees to which he has the rights to the trees. He intends to roast the chestnuts over an open fire at Christmas.

‘Aw, nuts!’ you say. ‘You fooled me about the apples. I’m not even going to try to guess. I have no idea.’

Neither did Roscoe Vincent and S.R. Haycraft, protagonist and antagonist in today’s 104-year old antique case from Kentucky.

The court sorted it out for the boys. It’s answer? ‘It depends.’

We love those kinds of answers.

Vincent v. Haycraft, 66 S.W. 613 (Ky.App. 1914). Gillis Vincent conveyed 35 acres of woodland to S. R. Haycraft, reserving to “all timber upon the land herein conveyed with the free and unobstructed right to cut and remove same for the final period of seven years from this date.” Shortly after the sale, Gillis sold the timber rights to Roscoe Vincent. A year later, Roscoe bought the acreage from S.R. Haycraft.

But S.R. reserved possession of the acreage for a year, agreeing to give occupancy of the tract to Roscoe on New Year’s Day 1913. The timber on the land consisted principally of beech trees, and in the fall before S.R. gave up possession, the trees produced a bumper crop of mast.

Mast is the fruit of the beech tree, found in small burrs that drop from the tree in autumn. They are small, roughly triangular and edible, with a bitter, astringent, or in some cases, mild and nut-like taste. They have a high enough fat content that they can be pressed for edible oil. At the time, mast was chiefly valuable as a food for hogs. The beech mast ripened and fell on the ground in the months of October and November.

The issue was whether the mast belonged to Roscoe Vincent, who had acquired title to both the timber and the land, or S.R. Haycraft, who had retained the use and possession of the land until January 1, 1913? The court below held that the mast belonged to Haycraft. Roscoe Vincent appealed.

Held: The mast belonged to S.R. Haycraft.

Roscoe argued that S.R. never acquired any title to the timber. Therefore, when he sold the land to Roscoe, he could only reserve the use and possession of the land that he had previously owned. Roscoe argued that the reservation of the timber carried with it the reservation of the fruit of the timber. Having no title to the timber, he said, S.R. could in no way acquire title to the fruit of the timber. He compared the situation to that of a fruit tree overhanging the premises of another, in which event it is generally held that the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

The Court agreed that S.R.’s purpose was to reserve until the following January 1st whatever estate he had in the land by virtue of his original deed, and it acknowledged that mast is as much the “fruit of the beech tree as the acorn is of the oak, the chestnut of the chestnut tree, or the walnut of the walnut tree.” But it is not like the fruit of a fruit tree.

In the case of fruit falling onto adjoining property, the Court said, the neighboring landowner on whose soil the fruit falls has no interest in the adjoining land of which the tree is a part, and thus, no right to the fruit. Nor is it like the sale of an orchard with the reservation of possession of certain of the trees. “The sole purpose of reserving an orchard or certain fruit trees,” the Court held, “would be to reserve the fruit, for fruit trees are valuable for the fruit alone.”

Here, the case depends on the parties’ intention. The primary purpose of the reservation was the timber itself, and not the incidental fruits of the timber.

Generally, the Court ruled, a sale or reservation of timber to be cut and removed within a specified time is a sale or reservation of only so much as may be cut and removed within that time. Therefore, the removal of the timber within the time specified is an element necessary to the completion of the title. Here, Gillis and later Roscoe, had the right at any time before the expiration of their timber reservation to cut and remove as much timber as they could. While S.R. reserved use and possession of the land after sale to Roscoe, Roscoe retained the right to go upon the land and cut and remove the timber, as well as any constituent part of the timber.

Roscoe retained the right to the mast, in other words, as long as it was hanging on the tree. When, however, the mast became ripe and fell on the ground, it was no longer a part of the timber, and the right to cut and remove the timber did not carry with it the independent right to go on the premises and carry away the fallen mast.

Thus, S.R.’s retention of the use and possession of the land until the following January 1st gave him the right to collect the ripened mast which had fallen on the ground during the months of October and November.

– Thomas L. Root