Case of the Day – Thursday, December 5, 2019


Tom and Jody apparently did not think much of the cottonwoods standing in the very front yard of the house across the street from them. They talked to a tree service (I surmise from the facts of the case), who told them that the cottonwoods stood in the city right-of-way, so they could have them removed regardless of what neighbors Chris and Jeanne may have thought.

That seems rather extreme: a homeowner on one side of the street can cut trees on the other side of the street. And, it turned out, there was a paperwork catch. The City of Anchorage ordinance required that one get a permit to “use” the right-of-way. “Using” the right-of-way includes cutting down a tree.

Tom and Jody did not bother getting a permit. Neither did the tree service they hired. A few months after the fact (probably because neighbors Chris and Jeanne were howling about the missing cottonwoods), the tree service applied for and got an after-the-fact permit. After all, as Admiral Hopper famously said, it’s easier to ask for forgiveness than for permission.

Chris and Jeanne cried foul, arguing that because the tree service did not have permit in hand when it took down the trees, the tree removal constituted timber trespass, and entitled them to treble damages. Their case wasn’t helped when the Anchorage bureaucracy pointed out that the trees were on its right-of-way, not on property controlled by Chris and Jeanne. To add insult to injury, the municipality asserted its right to grant retroactive tree removal permits, and, by the way, told Chris and Jeanne that the tree removal was a good thing, and replacement trees would never be permitted.

An interesting issue was whether Chris and Jeanne even had the right to sue for trees removed from the city right-of-way. Alas, that question was not answered, because the Alaska Supreme Court said the back-dated permit the City issued Tom and Jody was perfectly acceptable.

Rosauer v. Manos, 440 P.3d 145 (Supreme Ct. Alaska, 2019). Chris and Jeanne Rosauer owned a home across the municipal roadway from a home owned by Thomas Manos and Jody Liddicoat. The Municipality of Anchorage owns a right-of-way between the Rosauers’ property and the municipal roadway.

In August 2015 Tom and Jody hired Greatland Tree Service to cut down several cottonwood trees within the municipal right-of-way in front of the Rosauers’ property. The Anchorage Municipal Code requires private citizens to get a permit for the “use” of municipal rights-of-way, including for tree removal. Neither Tom and Jody nor Greatland obtained a permit before the tree removal, but Greatland later obtained a permit after the fact, a few months later.

In April 2016 the Rosauers sued Tom, Jody and Greatland, seeking damages under Alaska’s timber-trespass statute, AS 09.45.730, which provides that a “person who without lawful authority cuts down, girdles, or otherwise injures or removes a tree, timber, or a shrub on the land of another person or on the street or highway in front of a person’s house… is liable to the owner of that land.”

The next month Chris asked the Municipality to invalidate the permit issued to Greatland. The Municipality denied Rosauer’s request, explaining in a permit-inspection report that the trees had been located on a “right of way and not on private property” and that their removal benefitted the Municipality by “improv[ing] maintenance, snow removal, and access to the drainage ditch.” The report stated that the Municipality “will not permit the replacement of the trees in the same location.”

The two issues arising under the statute were whether the retroactive permit negated the requirement that removal be “without lawful authority” and whether the Rosauers could bring a claim under the statute even though they did not own the land from which the trees were removed.

The defendants argued that, because the statute does not specify when authority must be obtained, the retroactive permit constituted “lawful authority.” The Rosauers countered that while the statute is silent on timing, the Anchorage Municipal Code requires that a permit be obtained before removing trees from a right-of-way. The defendant replied that the code allows the Municipality to waive any breach of the terms or conditions of a permit, and that such terms and conditions include the requirement for obtaining a permit before tree removal.

Cottonwoods – fast-growing… and as messy as a 3-year old...

Tom and Jody also argued that the Rosauers lacked standing to bring a claim under AS 09.45.730 because they did not own the land from which the trees were removed. Tom and Jody interpreted the condition “liable to the owner of that land” to grant a cause of action only to the owners of land from which trees are removed. The Rosauers responded that Tom and Jody seemed to ignore the second condition — “or on the street or highway in front of a person’s house” — and that the term “owner of that land” also applies to homeowners whose property abuts a street or highway from which trees are removed, thus granting them a cause of action.

The trial court granted summary judgment to the defendants, holding that to “prevail under AS 09.45.730 Plaintiffs are required to show Defendants cut down a tree on the street in front of their house without lawful authority.” The court concluded that the retroactive permit conferred lawful authority after the fact but before the lawsuit, and that was all that was required.

The Rosauers appealed to the Alaska Supreme Court.

Held: Forgiveness is as good as permission.

Under AS 09.45.730, Alaska’s timber-trespass statute, a landowner may recover treble damages from a person who without lawful authority cuts down a tree on the land of another person or on the street or highway in front of a person’s house.

At the same time, municipalities may broadly delegate powers to their agencies or officers. Delegation of power promotes efficient government. Here, the Court said, Anchorage Municipal Code 24.30.120(A) broadly entrusts decisions regarding the safe and efficient use of public spaces to the Department of Development Services. Authority to grant retroactive permits, with terms and conditions necessary to protect the public interest, is consistent with such a policy.

The Court said Tom and Jody were correct that AS 09.45.730 does not specify when lawful authority must be obtained, a point which the Rosauers conceded. The statutory provision granting the Department permitting authority makes clear that permitting decisions involve agency expertise on public safety issues. This is clearly illustrated by the permit at issue in this case.

The subsequent permit-inspection report — created in response to the Rosauers’ request that the permit be invalidated — refuted any suggestion that it is unreasonable to interpret the municipal code provision authorizing waiver of permit terms and conditions to include waiver of the prior authorization requirement.

Thus, the Court ruled, the retroactive permit conferred lawful authority for the tree removal. Because the Municipality’s retroactive permit deprived the Rosauers of the requirement under AS 09.45.730 that removal be “without lawful authority,” the Court said the issue of whether the Rosauers had standing to sue need not be decided.

– Tom Root


Case of the Day – Wednesday, December 4, 2019


In the 1970s (and undoubtedly even now), parking around The Ohio State University College of Law was awful. Everything was either reserved for faculty and staff (the parking lots) or metered with devices that would have made Einstein proud: while time crawled as we sat in property law, it was accelerated by the meter so that the hours (and the quarters) flew by.

The result, predictably, was that as a law student, I collected more than my fair share of parking tickets. When I didn’t pay them (chiefly because my student budget did not include a big chunk for the City of Columbus), dunning notices would be sent to my legal residence, which of course was my ancestral home. My mother would see them, shake her head is deep disappointment at her eldest son, and say, “I would think that law school would teach you to respect the law.”

Well, it did not, Ma, I am sorry to say. Or maybe not so sorry. After all, today’s case is Exhibit A in my argument that while Aretha may be entitled to a little respect, the law is not.

Ken and Sally Eyer were senior citizens who were forced to sell off timber in order to pay Sally’s chemotherapy bills. They owned the land: a big timber company contracted to cut the trees. Ken Eyer showed the company the boundary line, but the timber company – which, being in the business, should have known better, crossed onto neighboring land and committed a trespass to timber. The neighbors sued the Eyers, the Eyers brought in the timber company, and then, what appears to have been a straightforward case, went to hell.

A concurring jurist in today’s Idaho Supreme Court case said it best: while the decision

“correctly applies the law… the outcome is most unfortunate for the Eyers. It appears to me that the legal system catastrophically failed Kenneth and Sally Eyer. 

This case started out as a $1,600 timber trespass. Pursuant to Idaho Code section 6-202, the Eyers were obligated to their neighbors, Russell and Laura Stevens, for treble damages. The Stevens filed suit, seeking a whopping $268,770 in damages. Eventually the case was settled upon the Eyers’ agreement to pay $50,000, plus interest, out of the estate of the last of them to die (they were octogenarians). Trial testimony indicated that $15,000 of the settlement was for damages and $35,000 for the Stevens’ attorney fees incurred in the suit. The Eyers had incurred their own attorney fees and costs in the sum of $37,934 by the time of the settlement. The Eyers’ third-party claim against Idaho Forest Group then went to trial and the Eyers lost. The district court granted Idaho Forest Group attorney fees and costs in the amount of $97,821.30. Thus, excluding attorney fees incurred by the Eyers in pursuing their third-party complaint and this Court’s award to Idaho Forest Group of its fees on appeal, the Eyers are out a minimum of $185,755.30 on a $1,600 timber trespass… 

It is not clear from the record how the Eyers ended up in this position but it is a tragedy and does not speak well for the legal system. It is imperative that court procedures be reformed to expedite the process and reduce the cost of litigation to avert a repeat of this unfortunate story.”

So no, Ma, in the ensuing 40-odd years since law school, I have not learned to respect the law.

I respect Ken Eyer. (Sadly, Sally died of cancer shortly after the Idaho Supreme Court stripped her of her life savings, but I respect her memory).

Stevens v. Eyer, 161 Idaho 407, 387 P.3d 75 (Supreme Ct. Idaho, 2016). Ken and Sally Eyer entered into a log purchase agreement with Idaho Forest Group, Inc., because the couple – both in their 80s – needed money to pay medical bills. IFG sent an agent to the Eyers’ property prior to logging to assist them in locating property lines. “”I told them not to cut anything I could see from my deck,” Ken told the Spokane, Washington, Spokesman-Review.

But when the logging occurred, IFG mistakenly cut timber located on neighboring land belonging to Russ and Laura Stevens. The Stevenses promptly sued the Eyers for timber trespass. The Eyers brought a third-party action against IFG, which essentially said that if the Eyers were liable to the Stevenses, then IFG was liable to the Eyers for the same amount. The Eyers claimed IFG breached its duty to properly mark the property lines.

The Stevenses, who sued for over $250,000 for $1,600 worth of mistakenly-cut trees, settled with the Eyers for $50,000, to be paid from the estate of the latter Eyer spouse to die.

At trial, the Eyers alleged that IFG assumed a duty to locate the property boundary between the Eyers and Stevens properties. The jury found that IFG had not assumed this duty.

Afterwards, IFG moved for an award of $95,600 in attorney fees under Idaho Code section 12-120(3), which permits award of such fees in a commercial transaction. The Eyers argued that there was no commercial transaction because they were going to pay medical bills with the proceeds of the timber sale. The district court awarded IFG the full amount of their requested attorney fees.

On appeal, the Eyers contended Idaho Code section 12-120(3) does not apply.

Held: The Eyers owed the legal fees.

The commercial transaction ground in Idaho Code Ann. § 12-120(3) neither prohibits a fee award for a commercial transaction that involves tortious conduct, nor does it require that there be a contract. Instead, the rule is based upon the second paragraph of § 12-120(3), which mandates an award of a reasonable attorney fees to the prevailing party in any commercial transaction.

The Court said that whether a party can recover attorney fees under the statute depends on whether the “gravamen of a claim” is a commercial transaction. A “gravamen” is the material or significant part of a grievance or complaint. Courts analyze the gravamen claim by claim. To determine whether the significant part of a claim is a commercial transaction, the court must analyze whether a commercial transaction (1) is integral to the claim and (2) constitutes the basis of the party’s theory of recovery on that claim. In order for a transaction to be commercial, each party to the transaction must enter the transaction for a commercial purpose.

The Court noted it had previously characterized transactions as commercial when the purpose for entering into the transaction was to generate income. Earning income, the Court said, is the quintessential act of engaging in commerce.

To be sure, the Eyers had purely personal purposes in mind for the revenue they would realize from the sale of timber to IFP. Most people who are employed use their income for “personal or household purposes,” such as paying for lodging, food, utilities, and entertainment. Nevertheless, the Court said, by virtue of their employment, they are engaged in commerce. It is for that reason that actions brought for breach of an employment contract are considered commercial transactions under Idaho Code Ann. § 12-120(3).

– Tom Root


Case of the Day – Tuesday, December 3, 2019


Have you ever wondered why this blog is named “tree AND neighbor law?” Primarily, it’s because when I set it up, someone had already taken “Google” and “Amazon.” I had to settle for what was left.

All right, not really. But you may have noticed by now that there are many tree cases that never would have been brought but for the fact that neighbors were involved, or maybe just N-I-N-Os, “neighbors in name only.”

Today’s case is one of those cases. Reading between the lines, the Fleeces and Kankeys appeared to be congenial next-door neighbors. They had agreed on their property boundary, marked as it was by a common fence. When the fence deteriorated, they agreed to share the cost of replacement.

But when the Kankeys bulldozed the old fence and put in a sparkling new edifice, everything went south. It seems that some scrubby trees along the old fence were destroyed in the process. Suddenly, the Fleeces became the aggrieved parties, and not only did not want to contribute to the fence project, but demanded $17,500 to replace trees that lacked any market value. They apparently were anxious to try out Arkansas’s double and treble damage statutes as well.

The trial court made short work of the Fleeces’ attempted fleece, but the court of appeals grudgingly admitted that yes, replacement value counted (even for trees that lacked any market value). The appeals judges seemed to suggest that it would be (or should be) pretty hard to prove the intent needed for application of the multiple damage statutes.

Nevertheless, the court seemed to say, no matter what Bill Kankey’s good intentions in moving the project along, some of those trees – we don’t know how many – appear to have been boundary trees. Thus, the Fleeces and the Kankeys owned those trees as tenants in common. Neither owner had the right to destroy the tree without the consent of the other.

Fleece v. Kankey, 77 Ark. App. 88, 72 S.W.3d 879 (Ct. App. Ark. 2002). Harlan and Nancy Fleece were Bill and Charlotte Kankey’s neighbors. For some time, they had agreed an old fence was the boundary line between them, and when the fence began falling apart, they agreed to share in the cost of replacing the fence. Bill and Char bulldozed the old fence that separated the properties, as well as some trees that stood alongside of the fence.

That’s when the deal fell apart. Harlan and Nancy sued Bill and Char for trespass and for destruction of the trees. The trial court found that, except for two posts that needed to be moved south two feet, the new fence was located in the same position as the old fence. The court held that Harlan and Nancy suffered no loss over the destroyed trees, because they had no market value.

Harlan and Nancy appealed, arguing that they should have been awarded damages for the replacement value of the destroyed trees. Bill and Char replied that because they had no market value and because the removal of the trees and installation of the new fence actually improved the area, Harlan and Nancy had nothing coming.

Held: The case was reversed, and sent back to the trial court for consideration of Harlan and Nancy’s damages due to the trees’ loss.

Arkansas Code Annotated § 18-60-102(a) provides, in part, that “if any person shall cut down, injure, destroy, or carry away any tree placed or growing for use or shade… on the land of another person… the person so trespassing shall pay the party injured treble the value of the thing so damaged, broken, destroyed, or carried away, with costs.” The treble-damages remedy requires a showing of intentional wrongdoing, although intent may be inferred from the carelessness, recklessness, or negligence of the offending party. Less-than-intentional conduct may support double damages under Ark. Code Ann. § 20-22-304, but must be pleaded in order to give a defendant adequate notice of the remedy he would be confronting.

Harlan and Nancy argued that the statute did not require that a tree have a market value in order for a landowner to be entitled to replacement value damages. Larry Morris, a registered forester, gave expert testimony that 35 trees had been bulldozed on the east/west side and 25 more on the north/south side. He explained that the destroyed trees included Post Oak, Black Oak, and Black Jack Oak. He calculated that the replacement value of the trees was $ 17,531.00.

The trial court dismissed Morris’s testimony because it focused on replacement value, not market value. The trial court held that “in view of the rural nature of this area, and the location of the lane over which the Fleeces travel, it seems absurd to award damages on a replacement estimate, because the removal of the old fence and the installation of the new fence has actually improved the area.”

The appellate court found this ruling clearly erroneous, one that suggested that the trial judge failed to consider the number of trees cut down and their replacement value. The appellate court said that the Arkansas rule is that when ornamental or shade trees are injured, the use made of the land should be considered, and the owner compensated by the damages representing the cost of replacement of the trees.

Damages awarded for loss of a shade tree cannot include both replacement costs and consequential damages, but clearly replacement costs are a proper measure of damages.

“Because the trial court appears to have relied entirely on the question of market value,” the appeals court said, “we are unable to determine whether the court considered other factors besides the market value in assessing appellants’ damages, including replacement value and the number of trees lost. Therefore, we reverse and remand.”

The appeals court included a final observation, “that it appears uncontroverted that many of the trees were located in the boundary line. Other jurisdictions have held that owners of boundary line trees are considered tenants in common, and neither tenant possesses the right to destroy the commonly held property without consent of the other.”

– Tom Root


Case of the Day – Monday, December 2, 2019


apple_tree140217Seems like not so long ago, a class of sharp-witted grade school students at Western Reserve Elementary School asked us a question, one which seemed simple but is deceptively complex. Inquisitive kids that they are, they wanted to know whether it would be an act of theft for the owner of an apple tree to go onto neighboring property to retrieve apples fallen from the owner’s tree.

Turns out it’s a darn good question. Not much has been decided on this, requiring us to read an 1870 New York case for an answer. In that decision, a logger lost his logs in a flood. They came to rest on the riverbank, making a mess of the riverbank owner’s land. A fast talker convinced the log owner to let him negotiate with the landowner, pay the guy’s damages and retrieve the logs. He made a deal with the landowner and hauled the logs away, but he never made the promised payment. The Court ordered the logger to pay the damages, holding that the owner of property that ends up on the lands of another has a choice: abandon the property and have no liability to the landowner, or retrieve the property and pay for any damages caused by the property’s coming to rest.

Of interest to our intrepid 6th graders (after whether someone is going to help pay for their lunches) was this: the Court noted in passing that it was settled law that one whose fruit falls or is blown upon his neighbor’s ground doesn’t lose ownership, but instead “may lawfully enter upon the premises to recapture his property.”

There you go, sixth grade! Who says adults don’t listen to you? And as for the rest of us, isn’t it curious how contrary the holding is to the Massachusetts Rule of self-help, that was handed down some 55 years later? And at the same time, isn’t it interesting how consistent the New York court’s decision is with the North Dakota Supreme Court opinion in Herring v. Lisbon, that the portion of the tree overhanging a neighbor’s land still belongs to the tree’s owner, thus imposing on the owner a duty to ensure that the tree does not cause harm.

Sheldon v. Sherman, 3 Hand 484, 42 N.Y. 484, 1870 WL 7733 (Ct.App.N.Y. 1870), 1 Am.Rep. 569. Sherman’s logs were swept away in a spring flood on the Hudson River, coming to rest on Sheldon’s property where — Sheldon complained — they caused great damage. A third party, Mayo Pond, told Sherman he’d pay Sheldon’s damages, have the logs cut into lumber and deliver the boards to Sherman for a set fee. But then the double-dealing Pond told Sheldon he was agent for Sherman in settling the damages, and that Sherman would pay the damages agreed upon. This was news to Sherman, who refused to pay the damages because he already had a deal with Pond that Pond would pay. Landowner Sheldon sued log owner Sherman for the agreed-upon damages, and the trial court found for Sheldon. Sherman appealed.

upcreek140217Held: Sherman was up a creek without a paddle. The Court of Appeals — New York’s highest court — held that Sherman had a choice. One whose property ends up on the lands of another by an inevitable accident (such as a flood), without the owner’s fault or negligence, may elect either (1) to abandon the property, in which case he is not liable to the landowner for any injury caused by the property; or (2) to reclaim it, in which case he is obligated to make good to the landowner the damages caused by the property. Here, once Pond agreed with Sherman that he’d settle with the landowner and retrieve the logs. Pond’s authority from Sherman to remove the logs was clear, whatever his right to promise payment might have been. Thus, the law implied the existence of a promise by the log owner to pay damages.

The waters receded, but the logs were everywhere ...

The waters receded, but the logs were everywhere …

Of interest in the decision is the Court’s discussion of what it called “a large class of cases” in which injury is suffered by a party, but the law gives no redress. The Court said, “If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew. If one builds a dam of such strength that it will give protection against all ordinary floods, the occurrence of an extraordinary flood by which it is carried away, and its remains are lodged upon the premises of the owner below, or by means whereof the dam below is carried away, or the mill building is destroyed, gives no claim against the builder of the dam.” In this case, the Court said, the logs were carried down the river and deposited on Sheldon’s land without fault on the part of the defendant. Thus, Sherman was not responsible for damages, and a promise by him to Sheldon to make it good would be unenforceable.

If Sherman chose to abandon his property, he had the right so to do and no one could call him to account. He was not compelled, however, to abandon it, but had the right to reclaim it. The Court said the case was “like one whose fruit falls or is blown upon his neighbor’s ground, the ownership is not thereby lost, but the owner may lawfully enter upon the premises to recapture his property. When he does so reclaim or recapture, his liability to make good the damage done by his property arises. He then becomes responsible. Before he can reclaim or recapture the property thus astray, justice and equity demand that he should make good the injury caused by its deposit and its continuance.”

– Tom Root


Case of the Day – Friday, November 29, 2019


Potatotruck140220Nothing light today, boys and girls. We have work ahead of us. Sure, Thanksgiving is a memory (except for all of the leftovers stacked in the refrigerator), but Black Friday is here, and we have a few more days of the long weekend (and Ohio State v. Michigan) ahead of us. But as that great educator M.C. Hammer once said, “Yo, sound the bell, school is in, sucker …

So listen up. When land is conveyed from one party to another without any limitations whatsoever, the conveyance is done in “fee simple absolute,” or just “fee simple” for short. The conveyance usually says that the land is conveyed “unto the said party of the second part and its successors and assigns forever,” or words to that effect.

At the time the railroad came through a part of Idaho (think “Famous Potatoes”) in the late 19th century, a lot of landowners thought they were conveying their land to the railroad in fee simple. But their deeds had not just the magic “fee simple” language, but also a “habendum clause.” A “habendum clause” is a clause in a deed that defines the extent of the interest being granted and any conditions affecting the grant.

Legal mumbo-jumbo? Not when the facts changed.

Legal mumbo-jumbo? Not when the facts changed.

In the case of the Idaho deeds, the conveyance language transferred title to the railroad “to have and to hold all and singular the tenements, hereditaments and appurtenances as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever.” Yeah… yadda, yadda, yadda, how lawyers like to natter on and on… None of this gibberish seemed important for a century, during which time the trains puffed up and down the track. But when the rail line was torn up, suddenly the old documents became very interesting.

Under the National Trails System Act, the government can convert an old railroad right-of-way into a recreational trail without the rail line being deemed to be abandoned. That’s what happened in Idaho. But some of the landowners whose properties were transected by the abaondoned right-of-way, talked to a smart lawyer. She said, “these old documents aren’t deeds, they’re just easements for a railroad.” That was an important distinction: the easements weren’t for the benefit of some granola-munching hikers, but rather for rolling stock.

The Federal Court of Claims had a tough task. The Idaho Federal District Court had already ruled that such deeds were conveyances in fee simple, which meant that the owners who abutted the railroad had no means of reclaiming the land. The problem was that the interpretation of the deeds was a matter of Idaho law, and the Idaho Supreme Court had never reached the precise issue. The Court of Claims carefully parsed other Idaho decisions and decided that, based on its treatment of other cases, the Idaho Supreme Court would rule — if it had been asked to  — that the references in the deeds to the “perpetual right of Way for said second party’s Rail Way Line” limited the purpose of the conveyance, and therefore made the deed a grant of a mere easement, not perpetual ownership.

With two federal courts disagreeing on what Idaho jurists would say if asked, it’s likely that the state courts themselves ultimately will have to resolve the issue by ruling definitively on the question.  They have not done so yet.

Abandoned right-of-way

Abandoned right-of-way

Blendu v. United States, 79 Fed.Cl. 500 (2007). Owners of land abutting or traversing an abandoned railroad right-of-way contested the government’s using the right-of-way as a recreational trail pursuant to the National Trails System Act, claiming that the government’s action effected a taking of their property without just compensation in violation of the Fifth Amendment.

The predecessor landowners had deeded land to the railroad about a hundred years before, with deeds that contained language in the granting clauses that convey all estate, right, title and interest in the property to the railroad, but also contained habendum clauses “to have and to hold all and singular the tenements, hereditaments and appurtenances as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever.” Under the Act, the government could convert abandoned railroad rights-of-way to trails without the use constituting an abandonment of the right of way. However, Blendu and the plaintiff property owners argued that under their deeds, they had really just given easements – not a deed in fee simple – and the cessation of rail service did not permit the government to use the easement of a trail. They moved for summary judgment in the U.S. Court of Claims, and the government cross-moved for summary judgment, arguing that the deeds were a conveyance of the property in fee.

Held: Under Idaho law, a deed which contained a granting clause which quitclaimed certain real estate to the railroad and a habendum clause stating that railroad held the real estate “as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever,” the deed only conveyed an easement and not fee simple title.

The easement was for rolling stock, not for Birkenstocks.

The easement was for rolling stock …

... not for Birkenstocks.

… not for Birkenstocks.

The Court said that the use of the term “right of way” in the habendum clause unambiguously reflected an intention to convey an easement, overcoming Idaho’s statutory presumption in favor of a fee simple interest. The Court of Claims concluded the distinction between the granting clause and the habendum clause had not been made by the Supreme Court of Idaho, but the Court of Claims believed that the Idaho Supreme Court cases found the presence of the term “right of way” in any substantive part of the deed to be determinative. The deeds in this case contained the term “right of way” in the habendum clause, thus unambiguously reflecting an intention to convey an easement and overcoming Idaho’s statutory presumption in favor of a fee simple interest.

As further evidence of the conveyance of an easement, the Court said, the deeds contained a designation for use of the right of way for the Railroad’s “railway line.”

The easement was for rails, not trails.

Oh, and Go, Bucks!

– Tom Root


Case of the Day – Wednesday, November 27, 2019


… there’s plenty of half-vast lawyering going on.

I found myself thinking that in connection with a case I was reviewing, one that had nothing to do with trees (but a lot to do with plants, those being Cannabis sativa, and involving trucks and conspiracies and the pesky Controlled Substances Act.

Potheads or not, I thought, the defendants deserved better lawyering than they got. There’s a lot of that substandard, just-barely-enough-to-prevent-a-malpractice-suit representation, not only in the criminal courts but in civil practice a well.

Today’s case is an excellent example of phone-it-in representation on both sides of the courtroom. The plaintiff’s lawyer seems to simply have loaded a civil action blunderbuss and fired away. It was obvious that the defendant’s tree roots were destroying the boundary wall by pushing against it from the defendant’s side of the edifice, and therefore, the roots were located on the defendant’s property. So why would the lawyer include a trespass count? Any first-year law student could tell you that the roots were not on his client’s land, and being on someone else’s land without permission is the sine qua non of trespass.

And before the defendant starts to feel smug about the plaintiff’s pleading miscue, she should look at her counsel’s performance. That lawyer spent the defendant’s money on a couple of experts, who may or may not have rendered solid, helpful opinions. We’ll never know, because the defendant’s lawyer did not bother to put the expert’s opinions in affidavit form – a pure rookie mistake.

The defendant might have walked away from this lawsuit relatively inexpensively, by getting the plaintiff’s whole complaint dismissed. But she never had a chance to make her substantive argument, because her lawyer overlooked something everyone knows – that statements by experts and witnesses have to be in affidavit form.

Half-vast lawyering all around…

1212 Ocean Ave. Housing Development Corp. v. Brunatti, 50 A.D.3d 1110, 857 N.Y.S.2d 649 (Sup.Ct.N.Y. 2008). 1212 Ocean Avenue Housing Development Corp., a soulless, faceless corporation if ever there was one, owned property next to Debbie Brunatti’s place. The two properties are separated by a 10-foot high retaining wall, which was built in 1924 when an apartment building was constructed on 1212’s premises. The heartless corporate suits alleged that an elm tree planted on Debbie’s property more than 40 years ago grew over the course of time so that its trunk came to rest atop the retaining wall. The roots of this tree also damaged the retaining wall, causing it to crack and curve. In December 2004, the New York City Department of Buildings issued a summons to 1212, requiring it to fix the defective retaining wall. Shortly later, 1212 sued Debbie to recover damages for nuisance, trespass, and negligence.

Debbie had the tree removed about four months after being sued. She argued, among other things, that the defective condition of the retaining wall had not been caused by tree roots, and that 1212 could not maintain an action for damages because it had not engaged in self-help to remedy the situation. The trial court denied Debbie’s motion.
Debbie appealed.

Held: The trial court properly denied Debbie’s motion to dismiss for nuisance and negligence.

The unsworn reports from two engineers she submitted in support of her application were insufficient to establish, as a matter of law, that the tree roots did not damage 1212’s retaining wall. “Furthermore,” the court said, “while it has been recognized that a property owner may resort to self-help to remove tree roots encroaching upon his or her property, and that this may constitute a sufficient remedy in some circumstances, the defendant failed to demonstrate that self-help would have been practicable here, where it is undisputed that the tree roots rested entirely on her property.”

However, the Court said, the trial judge should have granted that part of Debbie’s application for summary judgment on the trespass count. Since the tree roots rested entirely upon Debbie’s property, there was no intentional intrusion or entry onto the 1212’s property which could constitute trespass.

– Tom Root