Case of the Day – Wednesday, March 14, 2018


dasani151013Regular devourers of news know that the vaguely-scandalous acronym SCOTUS is really an intimate body part at all, but rather the Supreme Court of the United States. Likewise, the President is regularly referred to as POTUS, and the First Lady FLOTUS and so on. But you have to be a real policy wonk to ring on a Jeopardy! clue reading “This definition, known as WOTUS, is one of the hottest environmental issues of the day.”

The proper answer is “What are the Waters of the United States?” The definition of what streams, rivers, rivulets and trickles are considered the “waters of the United States,” and thus to be regulated by the Environmental Protection Agency, has been debated since the Obama administration redefined just about everything short of a Dasani bottle to be WOTUS, and thus reachable by EPA clean water regs. The Sixth Circuit United States Court of Appeals has already enjoined the U.S. Environmental Protection Agency from enforcing new “clean water rules.” The Court held, among other things, that the likelihood that the rules were unconstitutional is pretty substantial, because the rules  are “facially suspect” (which is the judicial equivalent of holding one’s nose).

Last month, with a new sheriff in town since Trump took office, the EPA and Army Corps of Engineers announced that the new WOTUS rule would not become effective until February 6, 2020, to give everyone time to “study them” (code for “figuring out how to kill the new reg once and for all).

Nevertheless, the Court of Appeals decision got us musing about “waters of the United States,” and the expression’s older cousin, “navigable waters.” That brought to mind Orr v. Mortvedt.

In Orr, our latest installment of neighbors behaving badly, we find a gaggle of adjacent homeowners living around a flooded quarry in Iowa. The owner of the quarry sold off the land in pieces to several buyers; apparently, he may have oversold it a bit.

The Mortvedts made a deal in which they bought land and some real estate under the lake all the way to the west shore. That’s what the sales agreement said. Problem is, the deed delivered to the Mortvedts at closing didn’t exactly agree, and no one read the fine print.

Later, they got into it with the neighbors, who actually did own some of the land the Mortvedts thought they had bought. The neighbors were frosted because the Mortvedts were boating and fishing on parts of the lake over their land. Eventually, this being the land of the free and all, everyone sued everyone else.

quarry151013The case went all the way to the Supreme Court of Iowa, which held that the Mortvedts couldn’t get their deed reformed to match the sales agreement, because the law didn’t let that happen where an innocent third party was involved. The Orrs — who were the neighbors who would be affected by such a reformed deed — weren’t a party to the original deal. If the Mortvedts got their deed changed to reflect that they owned more property, the Orrs’ deed would necessarily have to be changed to show that they owned less. They weren’t a party to the original deal between the Mortvedts and the sellers, and therefore, it would be unfair to take their land to satisfy the Mortvedts.

As for the widespread boating on the lake, the Supreme Court of Iowa was forced to make a decision of first impression in the state, and adopt the common law rule that for non-navigable water (such as this lake), an owner was restricted to boating and fishing only on the part of the lake which lay over bottom that party owned. This was pretty much an unsatisfactory result — the case discusses at length all of the good reasons for adopting the Scottish rule to the contrary — but as the old legal aphorism goes, “hard cases make bad law.”

Orr v. Mortvedt, 735 N.W.2d 610 (Supreme Court of Iowa 2007). The Twedt family owned a rock quarry and land surrounding it in Hamilton County. There came a time when the mining of the quarry was discontinued, and the excavated area ¬– consisting of about thirty acres – became a lake. The Twedt family sold the land in a series of transactions over a period of years. Each of the transactions resulted in the conveyance of a portion of the lake bed and land surrounding it. Jeffrey and Susan Mortvedt purchased a tract west and north of the lake, including the northern tip of the lake bed, in 1996. Two years later, Stephen and Shirlee Orr bought a parcel situated primarily on the east side of the lake and including that part of the lake bed located between the parts previously purchased by another party, the Sevdes, and the Mortvedts. The Orrs soon conveyed a piece of the property they had acquired, including a part of the lake bed, to Ronald Cameron.

hardcase151013The Mortvedts argued their property extended to the water’s edge on the west side of the lake., but the Orrs claimed a survey filed at the time of the Mortvedts’ purchase establishes that the Orrs own a narrow strip of land on the west side of the lake. The boundary dispute escalated when the Orrs cut down trees and planted other vegetation on the disputed narrow strip of land, as well as from the parties’ inability to agree about their respective rights to use the lake. The Sevdes and the Orrs objected when the Mortvedts used parts of the lake beyond the boundaries of the lake bed owned by the Mortvedts for fishing and boating. The Orrs, the Sevdes, and Cameron sued, seeking a resolution of the boundary dispute and other relief, and the Mortvedts counterclaimed, asking that the plaintiffs be required to restore the lake water level to that which prevailed when the Mortvedts purchased their property in 1996, and that the plaintiffs be held not to have a right to install or maintain a fence in the lake. The Mortvedts also sought reformation of their deed to conform it to the understanding of the parties to the 1996 conveyance that their east property line extends to the lake water’s west edge.

The trial court held the parties were entitled to the exclusive possession, use and enjoyment of the water covering the real estate described in their respective deeds. It also held that each of the parties owned any minerals located on the real estate described in its respective deed, that the Mortvedts were prohibited, absent express written permission, from entering upon or using the water overlaying the properties owned by the Sevdes, the Orrs, and Cameron — who were legally entitled to construct a fence, berm or other structure to mark the boundaries of their properties — and the Sevdes, the Orrs, and Cameron were entitled to drain the water covering, mine minerals from, and restore wetlands upon their properties. The court denied the Mortvedts’ counterclaim. The Mortvedts appealed.

This guy is charged with assaulting a child and her mother. Truly a defense attorney's nightmare ... and a living example of a

This guy is charged with assaulting a child and her mother. Truly a defense attorney’s nightmare … and a living example of a “hard case” that may lead a jury to make bad law.

Held: The Mortvedts were not entitled to obtain reformation of the deed, because the remedy of reformation was unavailable under the circumstances of the case.

The Iowa Supreme Court ruled that it only would order reformation of a deed against a party to the deed, a person in privity with such a party, or a person with notice of the relevant facts. Reformation will not be ordered to the prejudice of innocent third persons.

The Orrs were innocent third parties as to the transaction between the Twedt estate and the Mortvedts, and had no knowledge that the Mortvedt transaction was anything other than was recorded in the deed. The Court found that a reasonably prudent person would interpret the survey filed with deed, prepared by a professional surveyor, as an illustration of the boundary legally described in the Mortvedts’ deed and as confirmation that the Mortvedts had not acquired from their grantor the narrow strip of land on the west side of the lake that is the subject of this dispute. Nothing stated or illustrated in the Mortvedts’ recorded deed and survey would cause a prudent subsequent purchaser to further inquire into the deeding parties’ intentions and to consequently discover any discrepancy between those intentions and the legal description in the deed. The holding, of course, meant that Mortvedts had no claim for damages for the Orr’s removal of trees from the narrow strip of land on the west side of the lake.

The Court also held that while the public generally has a right of access to navigable watercourses, the term “navigable watercourses” refers to watercourses “susceptible of use for purposes of commerce” or “possess [ing] a capacity for valuable floatage in the transportation to market of the products of the country through which it runs.”

The Court said that the landlocked body of water in this case had never served as a highway of commerce, and the non-navigable status of the lake dictated that the bed of the lake is owned by the state or by private parties. The non-navigable lake in this case was privately owned by the parties because each of their deeds includes part of the lake bed. And in an issue never decided in Iowa before, the Supreme Court held that the common law rule adopted by most states — that on non-navigable waters, users are limited to the areas of the watercourse which lay on lands they owned, rather than having a right to use the whole watercourse if they owned land underlying any of it.

Ironically, there is little doubt that under the EPA’s rules, the 30-acre quarry sitting in the middle of the Great Plains is among the “waters of the United States.”

– Tom Root


Case of the Day – Tuesday, March 13, 2018


different151009The late Steve Jobs — whose equipment we use in running — exhorted us all to “think different,” by which he meant “buy Apple products.” Now, of course, Steve’s life has been turned into a best-seller and a major motion picture… and like its competitors, Samsung, Google and Microsoft, Apple’s brand has been a bit tarnished as of late. 

Notwithstanding Steve’s Einsteinian advice, our late mother – a retired English teacher – used to lecture us that Apple really meant “think differently.” No matter.

Today, we’re taking a fresh look at the Virginia Supreme Court’s decision in Fancher v. Fagella, the seminal 21st century case on tree encroachment. In so doing, we re-read the old Smith v. Holt decision that is credited with first adopting the old Virginia Rule 76 years ago. And we’re thinking different about it.

Initially, we confess, we joined with the Virginia Supreme Court and commentators in ridiculing Smith v. Holt’s focus on whether a tree was “noxious” or not. We liked the newer Fancher approach, which the Washington Post, after all, hailed as breaking new ground. But now, after revisiting Smith v. Holt and considering the 19th century cases on which it was based, we’re wondering why Virginia ever thought the Fancher decision was necessary at all. Thinking different … can an Apple Watch be in our future?

Over the years, the law on what a neighbor may do with encroaching trees branched into three or four divisions. The flinty self-reliant New Englanders have followed with the Massachusetts Rule, a holding that landowners may resort to self-help to stop encroaching trees and roots by trimming them back to the property line, but the courts are not available to hear encroachment disputes if self-help is not adequate. At the other end of the United States (and 50 years later), Hawaii adopted what is unimaginatively known as the Hawaii Rule, a holding that while Massachusetts Rule-style self-help was always available to a landowner, so were the courts: landowners could sue to collect damages and to force a neighbor to trim or remove a tree when that tree was causing actual harm or was an imminent danger to his or her property.

We’re thinking different about Fancher … so where’s our free $1000 iPhone X?

The disrespected Virginia case on the issue, Smith v. Holt, was in fact forward-looking and logical: in essence, Smith v. Holt adopted the Hawaii Rule years ahead of the Ahola State, and did so with law which — had the Virginia courts not acted so precipitously in Fancher v. Fagella — would still be the law in the Old Dominion.

Smith v. Holt was the 1939 decision — handed down only eight years after the Massachusetts Rule was adopted in the Bay State — that the Virginia Supreme Court repudiated in its 2007 Fancher decision. In Smith v. Holt, the Virginia Supreme Court reviewed a dispute in which a neighbor’s private hedge had grown over the years to the point that it was growing on the complaining neighbor’s lawn and shading a large portion of it. The Court held that the Massachusetts Rule should apply unless the hedge in question was (1) causing actual harm or was an imminent danger to the neighbor; and (2) was “noxious.” Because Mrs. Smith had not shown that actual harm was being caused, the Supreme Court declined to order Mr. Holt to remove the hedge. The Smith v. Holt holding was seen at the time as a variation on the Massachusetts Rule — although we doubt that it was any real departure from the implied limits of that rule — and became known as the Virginia Rule.

In Fancher v. Fagella, the Supreme Court abandoned the Virginia Rule it adopted in Smith v. Holt. We think this abandonment was unnecessary, premised on a misunderstanding of its own holding 68 years earlier. The adoption of the Hawaii Rule is happening increasingly throughout the United States, and probably is as inevitable as urban growth. However, the Virginia Supreme Court’s overturning of Smith v. Holt was an over-reaction predicated on its own misunderstanding of what is meant by a “noxious” tree. Even in the Massachusetts Rule decision eight years before, the court had cited a 19th century New York decision that held “[i]t would be intolerable to give an action in the case of an innoxious tree whenever its growing branches extend so far as to pass beyond the boundary line and overhang a neighbor’s soil.” The Massachusetts Rule was never intended to extend noxious trees. And what the Smith v. Holt court meant by “noxious” was clear in the context of that case. The court relied on an 1884 Mississippi case in which a mulberry tree was held to be “noxious” because its roots had penetrated and contaminated a neighbor’s well. There was nothing inherently poisonous about the tree: it was just growing in such a way as to cause real harm to the neighbor, beyond mere shade and encroachment. In fact, in the only Virginia case ever to rely on Smith v. Holt -— the case we’re reviewing today — a trial court found in 1990 that “under the circumstances of this case, the “mock” or “osage” orange trees are noxious.”

Osage oranges ... the very definition of

Osage oranges … the very definition of “nuisance.”

So it’s clear that whether a tree is “noxious” has nothing to do with the inherent characteristics of the tree or hedge, but has everything to do with where the tree or hedge at issue is located and what it is doing to the neighbor. And that is the classic definition of a nuisance given by the U.S. Supreme Court in a 1926 case: “merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” A noxious tree is a perfectly good tree, but one in the wrong place causing actual, substantial harm, or threatening the same.

But the Fancher Virginia Supreme Court ran off on a tangent, talking about kudzu and poison ivy when it is clear that the courts that first enunciated the “noxious” standard meant nothing more than a tree that was causing or threatening real harm. Ironically, under the Hawaii Rule adopted in Fancher, the plaintiff would have done no better than she did in Smith v. Holt. The hedge she complained about in 1939 wasn’t causing her any harm other than shade and encroachment on her property. That’s not actionable under the Hawaii Rule. If it had been destroying her foundation or choking her sewer, the Smith v. Holt court would have declared it “noxious” and thus a nuisance.

Likewise, Smith v. Holt was all Mr. and Ms. Fancher needed to carry the day. In fact, their arborist understood: he testified that the sweetgum “tree was ‘noxious’ because of its location …” (emphasis added). The arborist and the Fanchers both understood Smith v. Holt. Why the trial court could not, and why the Virginia Supreme Court found it necessary to overrule a perfectly serviceable decision — something courts are traditionally loathe to do — we don’t know. But contrary to the hand wringing and the editorializing, no new day has dawned on Virginia encroachment law. Under Smith v. Holt, a tree causing actual or imminent sensible harm to a complaining neighbor was a “pig in a parlor.” Under Fancher v. Fagella, it still is.

nuisance151009Arrington v. Jenkins, Chancery 89-173, 1990 WL 751069 (Cir.Ct.Va. Feb. 20, 1990) (unreported). This decision, which relied on Smith v. Holt, a landmark Virginia case which was overruled in September 2007 by Fancher v. Fagella, appears to have concerned a suit by one urban neighbor against another because her Osage orange tree had limbs which were overhanging his yard. The Osage orange, of course, drops round fruit of about 5 inches in diameter, which are green and lumpy and inedible to humans. The fruit are known as hedge apples.

Arrington sued for an injunction, asking the Court to order Jenkins to trim the branches that were overhanging the Arrington yard, apparently because of the 5” inedible “hedge apples” the tree dropped on his lawn every fall.

Held: The trial court held that “under the circumstances of this case, the ‘mock’ or ‘osage’ orange trees are ‘noxious’” within the meaning of Smith v. Holt. Because of that fact, the trial court said, the responsibility for the trimming of the trees to avoid the fruit from falling upon Arringtons’ property must rest with Jenkins. The court issued an injunction that restrained Jenkins from allowing the limbs of the Osage orange trees to grow over and above the Arringtons’ land.

– Tom Root


Case of the Day – Monday, March 12, 2018


risk151008More unneighborly neighbors …

Ms. Smith owned 134 landlocked acres, and she gained access to them only through using a township road that was no longer maintained and appeared by all accounts to be abandoned. But the road led through the Thompsons’ place, and — for reasons not revealed in the case — they didn’t much like Ms. Smith crossing their land on the abandoned township road.

They sued to keep her off the road, claiming trespass. Ms. Smith responded that it was still an official township road. “We’ll see about that,” the Thompsons must have grunted in reply. They were grunting because they were busy pounding metal posts into the old road so she couldn’t use it. For legal cover, the Thompsons petitioned the Township to vacate the road.

Here’s where it gets murky. The Township apparently refused to vacate the road, and Ms. Smith asked for summary judgment, pointing out that the court couldn’t issue an injunction to keep her off a public road. The court agreed, but the Court of Appeals did not. It found that the general public had no absolute right to use an unmaintained township road, and that the trial court could enjoin Ms. Smith from doing so if it were so inclined. Also, it said that there were way too many moving parts to this case for summary judgment to be appropriate.

closed151008Frankly, the notion that the general public has no right to transit a public highway that isn’t being maintained is an alarming one, for a number of reasons. Chief among them is the difficulty anyone would have telling when a road ceases to be poorly maintained, and falls into non-maintenance. This decision strikes us as a lousy one.

Thompson v. Smith, 172 Ohio App.3d 98, 873 N.E.2d 323 (Ct.App. Columbiana Co., 2006). This case arose out of a property dispute that began when Marlene Smith attempted to use an old township road named Ashton Road in Madison Township near the Columbiana County Airport. The road hadn’t been maintained by Madison Township for many years and was mostly overgrown with trees. Ashton Road cuts through property owned by both Donald and Rebecca Thompson, as well as land owned by Ms. Smith, a 134-acre tract abutting and just north of the 53 acres owned by the Thompsons. Ashton Road begins somewhere west of the Smith property, then cuts generally southwest through both properties, and eventually connects to other township and county roads to the south and east of the Thompsons.

It appeared from the record that Ms. Smith’s 134 acres were landlocked, and Ashton Road might be her only access to other improved and maintained roads, but it was unclear. The Smith property was cut off from access to the north many years ago when State Route 11 was built. A portion of Ashton Road served as a private driveway to the houses around the southwest corner of the Thompson property, and it is partly maintained by the Thompsons. The Thompsons do not maintain any portion of Ashton Road beyond their own driveway and private home.

Some time point prior to the filing of the complaint, Ms. Smith or her agents entered what they assumed was Ashton Road and removed a locked gate that was crossing the right of way. The gate had actually been installed by Ms. Smith some years before, but it had not been locked until the Thompsons began doing so. The Thompsons then filed a complaint against Ms. Smith alleging trespass, preliminary injunction, permanent injunction, and quiet title. Ms. Smith filed an answer and counterclaim.

roadblock151008Sometime after the complaint was filed, the Thompsons installed seven metal posts across what they consider to be an abandoned part of Ashton Road, and they petitioned the Township to officially vacate Ashton Road. Ms. Smith then filed a motion for summary judgment. The motion argued that a member of the general public could not be found to trespass on a public road and that the court of common pleas had no jurisdiction to quiet title to a township road. The motion asked the court to dismiss the trespass claim and the quiet-title claim.

The trial court held that Ashton Road was a public road, that none of the parties had acquired any private ownership interest in the public road known as Ashton Road and that none of the parties can be found to have trespassed on Ashton Road. The court dismissed the Thompsons’ requests for injunction, finding that no person has the authority to erect obstacles on a public road. The court also held that it had no authority to quiet title to Ashton Road.

The Thompsons appealed.

Held: The Court of Appeals reversed, finding that genuine issues of material fact precluded summary judgment, and that the trial court had the power, if it so elected, to grant an injunction against a private person using a public road.

The Thompsons demanded that Ashton Road be the road not taken ... but the whole idea frosted Ms. Smith.

The Thompsons demanded that Ashton Road be the road not taken … but the whole idea “frosted” Ms. Smith.

The Court found that genuine issues of material fact concerning landowners’ and neighbor’s property rights and their actions and intentions with respect to road, which township had not vacated but which had become overgrown with weeds and bushes, precluded summary judgment for neighbor on landowners’ claim for injunctive relief to prevent neighbor from using the road.

The Court held that the general public has no absolute right to use or change a township road that is not being maintained by the township, whether or not the road has been formally vacated by the township. Also, §5553.042(B) of the Ohio Revised Code holds that a township shall lose all rights in and to any public road, highway, street, or alley which has been abandoned and not used for a period of 21 years, after formal proceedings for vacation have been taken. “Upon petition for vacation of such a public road, highway, street, or alley filed with the board of county commissioners by any abutting landowner, if the board finds that the public road, highway, street, or alley has been abandoned and not used for a period of twenty-one years as alleged in the petition, the board, by resolution, may order the road, highway, street, or alley vacated, and the road, highway, street, or alley shall pass, in fee, to the abutting landowners, as provided by law…”

The Court of Appeals held that the trial court erred when it concluded that there were no circumstances in which an injunction could be granted to prevent a private citizen from using a public road. But one of the primary purposes of injunctive relief in Ohio is to protect property rights. The trial court in this case is free to utilize the remedy of injunctive relief to protect the rights of the parties, even though the primary dispute involves access to and use of a public road.

The Court concluded there remained unresolved factual disputes concerning the property rights of the parties and their actions and intentions with respect to Ashton Road. Therefore, summary judgment was not appropriate.

– Tom Root


Case of the Day – Friday, March 9, 2018


Those tin hats really work -- it's just that THEY want you to think there's something wrong with wearing 'em ...

Those tin hats really work — it’s just that THEY want you to think there’s something wrong with wearing ’em …

Could you say that “it’s not paranoia if they’re really out to get … your trees?” Put on your tin foil hat, conspiracy enthusiasts! Or not, if you think that’s an aluminum industry conspiracy.

In today’s case, the Riehl family had what could be fairly described as a mania for not trimming their trees and bushes. Their preoccupation with the natural look made the neighbors’ use of a common roadway rather tough. As a result, the Riehls were sued in the 1970s, and while the neighbors were found to have an easement, the court didn’t force the Riehls to trim the trees.

Some 15 years later, the City of Rossford passed a nuisance ordinance aimed at people who didn’t trim their trees along streets. And the odor of conspiracy wafted through the town, spread by black UN helicopters …

The City sued the Riehls in 1997, but then cut a deal with them by dismissing the action and trimming the Riehls’ trees itself. But in subsequent years, aided no doubt by the Illuminati and Council for Foreign Relations, the City cited the Riehls almost annually, hired contractors to cut the trees down, and then billed the Riehls for the trimming. Finally, the Riehls had had enough, and — proving that a man who acts as his own lawyer has a fool for a client — they filed their own complaint, alleging everything from fraud to contract breaches to infliction of emotional distress to multiple Constitutional law violations. And they sued the City, the prosecutor and all of their neighbors.

The trial court (probably in the pockets of the New World Order) threw out the suit even with respect to defendant who didn’t answer. The Court of Appeals agreed, expressing bafflement as to why the neighbors were even named, and finding that the fact that the City made a deal in 1997 didn’t mean that it couldn’t come back every year after.

Time for the Riehls to raise their own militia … and maybe set them to work trimming the bushes.

conspiracyalert140321 Riehl v. City of Rossford, Slip Copy, 2007 WL 2164158 (Ct.App. Ohio, July 27, 2007). This case is the latest installment in the ongoing dispute between property owners in Eagle Point Colony about an undedicated access road/alley commonly known as Thirwal Drive. The Riehls owned property along Thirwal Drive, and their perpetually untrimmed trees and bushes encroached on the road to the detriment of other property owners who use it, as well as delivery and trash truck servicing all of the owners along the road. In 1977, a number of the other residents sued the Riehls seeking to enjoin them from clogging, choking or narrowing the width of Thirwal Drive. The court ruled that the other owners had an easement by prescription over the Riehls’ land in the form of Thirwal Drive and permanently enjoined the Riehls from clogging, narrowing, or impeding the use of Thirwal Drive.

But when the neighbors filed a contempt motion because the Riehls weren’t cooperating, the trial court determined that the Riehls didn’t have the obligation to remove or trim the bushes and trees, or otherwise to repair or maintain the easement.

Thereafter, in 1995, Rossford City Council passed Ordinance No. 94-045, which held that “[e]very occupant of land shall maintain his property so that no brush, trees, bushes or obstructions extend into, on or over any public or private way generally used for the passage of persons or vehicles so as to obstruct or interfere with the passage of such persons or vehicles, or with the ingress and egress of emergency, maintenance, repair or service vehicles or equipment.” Pursuant to the ordinance, the City cited the Riehls in 1997 but later dismissed the case. Thereafter, it cited the Riehls virtually every year, trimmed the trees and bushes itself, and billed the Riehls for the cost.

Finally, in 2005, the Riehls sued the City, the prosecutor, and all of the other neighboring property owners. The poorly-drafted complaint alleged the City had breached a contract by passing an ordinance charging the Riehls for the trimming, committed fraud, violated the Riehls’ property rights, and retaliated against them by enforcing the nuisance ordinance. The trial court dismissed the action on all counts as to all defendants. The Riehls appealed.

Held: The dismissal was affirmed. The Court said the current litigation, reduced to its essence, was simple: it involved the Riehls’ continuing violation of Rossford’s nuisance ordinance, which was passed after the 1978 decision. Nothing in the prior decision of the trial court had any effect on the subsequently-passed ordinance. And, the Court held, the Rossford nuisance ordinance had a real and substantial relation to the safety and general welfare of the public and is neither unreasonable nor arbitrary. It seeks to prevent Rossford property owners from obstructing any public or private way that is used for the passage of persons or vehicles, including emergency, maintenance, repair or service vehicles or equipment. The nuisance ordinance applies equally to the Riehls and all other residents of Rossford.

At its heart, the Riehls’ complaint alleged that the 1997 judgment granting the city’s motion to dismiss the first nuisance action filed against the Riehls, amounted to a res judicata determination that the Riehls never again had an obligation to trim their bushes and trees and prevent them from obstructing Thirwal Drive. However, the Court held, a political subdivision or an employee of a political subdivision is immune from liability in a civil action for injury or loss to property when the claims are in connection with the political subdivision’s or employee’s performance of legislative or quasi-legislative functions, or the enforcement or nonperformance of any law. What’s more, the Supreme Court of Ohio has expressly stated that “[t]here are no exceptions to immunity for the intentional torts of fraud and intentional infliction of emotional distress …”

Because the Riehls’ claims against the city arose out the city’s performance of governmental functions, and because no exceptions to immunity apply with regard to the Riehls’ claims against the city for fraud and intentional infliction of emotional distress, the city was entitled to summary judgment on those claims.

The city’s immunity doesn’t extend to contracts. The Riehls argued that in 1997 the city of Rossford entered in to a settlement agreement with the Riehls approved by Judge Dwight Osterud. They claim that the city agreed to trim the Riehls’ bushes and trees that encroached on Thirwal Drive. Nevertheless, in 2003 and 2004, the city of Rossford passed ordinances assessing the costs of trimming against the Riehls’ real estate. The Riehls claim that the February 1997 judgment entry amounted to a contract and that through their actions, the governmental defendants breached this contract with the Riehls.

blackhelicopter140321 The Court rejected their argument. It held that there was no enforceable plea agreement. The City got no benefit and the Riehls suffered no detriment from the deal. Thus, the Court held, there was no consideration for the contract, and thus there could be no contract. The Riehls also argued that assessing them for trimming their trees constituted an unconstitutional taking of their property without compensation. But the Ohio Supreme Court has held that the government must pay just compensation for total regulatory takings “except to the extent that ‘background principles of nuisance and property law’ independently restrict the owner’s intended use of the property.” That’s all that was happening here. There was evidence that the nuisance ordinance had been enforced against other residents, too, so the Riehls’ claim of disparate treatment failed as well. Finally, there was no evidence that the city had enforced the tree nuisance ordinance against the Riehls as punishment for their voicing their views pursuant to their First Amendment rights.

Just like everyone else in Rossford, the Riehls must keep their bushes and trees trimmed at their own expense.

– Tom RootTNLBGray140407

Case of the Day – Thursday, March 8, 2018


The sun setting in the east?

The sun setting in the east?

Will Mark and Elizabeth Heil be having their neighbors Stewart and Christina Hines over to enjoy margaritas and the sun set over the ocean? Don’t bet on it for two reasons, neither of which is more likely than the other: First, the Heils and Hines are neighbors on beautiful Hilton Head Island, South Carolina, and thus, it’s physically impossible for them to watch the sun set in the east over the Atlantic. The second reason is that they’re pretty clearly NILOs (neighbors in location only). They may have homes next to each other, but there’s no love lost between them.

The Heils had a vacation home on the Island, next to a house owned by the Hines (who, being more frugal, perhaps, rented it out to tourists). One November, the Heils visited their Shangri-La, only to notice branches from one of the Hines’ healthy oak trees overhanging the house’s roof. They observed no roof damage, and saw nothing to suggest the tree was diseased or failing. Nevertheless, the Heils asked the Hines to do something about it.

The Hines were good neighbors, albeit thrifty ones. They asked the Heils to get some bids from tree services, and the Heils complied with bids in the thousands. The Hines found Sam’s Tree Service, a guy with no insurance, an undocumented worker (attention, President Trump!), and probably a beat-up truck, too, for all we know. But he was properly licensed, and had no record of complaints. More important for the Hines, Sam did the job for a mere $500.00.


Just a little hole…

Many months later, when the Heils next visited their house, they found a hole in the roof and water damage everywhere. Their insurance carrier denied coverage because inspectors determined that the Hines’ tree had rubbing against the roof, causing the hole. (That alone is worth a whole blog, but we’ll pass on that issue). The Heils demanded that the Hines and Sam pay for the damage, but both declined.

Sam said his climber performed the limb removal while he supervised from the ground, and never stood on the roof. Instead, he was suspended above the roof on a safety harness. The encroaching limbs were tied off, cut and lowered down to the ground. While performing the trimming, Sam’s man noticed only a dented shingle, nothing that would affect the roof’s integrity, so he did not pass on the information about the shingle.

The Heils, of course, sued. They fired a negligence blunderbuss at the Hines, saying they were negligent for not inspecting the tree, for hiring Sam, for paying so little to have the work done, and even for letting an undocumented worker do the trimming. The trial court found no evidence that the Hines had breached any duty to the Heils by failing to inspect and maintain their tree, and by negligently hired Sam’s Tree Service.

The court gave them short shrift, upholding the standard that homeowners have no duty to repair damage caused by their healthy trees of which they are not aware. The Hines hired a tree service within a month of being asked to do so, and no evidence explained why – let alone showed that – Sam’s low price, lack of insurance, or undocumented worker led to the hole that the Heils found in their roof.

The real problem here was that the Heils, apparently unaware of the Massachusetts Rule or too chary to care, left it to well-meaning neighbors to remedy a problem that belonged to them. The Hines’ principal mistake was in not telling the Heils to pound sand to begin with, and to trim the branch themselves.

Sure, you say, but how about the Hawaii Rule? Fancher v. Fagella? To that we say, even if the Heils could have shown that the tree was a nuisance – which on verdant Hilton Head Island, where the vegetation grows prodigiously, might be a real stretch – the costs borne by both parties probably would have been less. The branch was healthy, the cost of remediation was slight, and the Heils are consenting adults who should look after the integrity of their own house.

broketable161117There’s an old legal aphorism that when your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on both the law and the facts, pound on the table.

The Heils broke the table.

Heil v. Hines, Case No. 2015-001988 (Court of Appeals of South Carolina, Nov. 9, 2016).  Mark and Elizabeth Heil had a vacation home on Hilton Head Island, next to a rental house owned by the Stewart and Christina Hines. One fall, the Heils observed branches from a healthy oak tree owned by the Hines overhanging their house roof. They saw no roof damage, and no disease or decay on the tree. The Heils asked the Hines to trim the tree.

At the Hines’ request, the Heils provided bids from tree services, but the Heils hired a local company, Sam’s Tree Service. Sam’s was licensed but not insured, and used a worker who was an illegal alien. Sam’s charged $500.00 to trim the tree.

The following spring, the Heils found substantial water damage in their home from a hole in the roof. Their insurance company denied them coverage, because inspectors found the damage was from a roof hole caused by the Hines’ tree.


   The blunderbuss – a crude but destructive weapon. Likewise, the blunderbuss complaint… Sam’s was negligent because its trimmer lacked a green card? Really?

The Heils sued, contending that the Hines were negligent for not inspecting the tree, for hiring Sam’s, who must have caused the damage and was too cheap, uninsured and an employer of illegals. The trial court granted summary judgment to the Hines, finding that the Heils had no evidence that the Hines had neglected their healthy tree, or that Sam’s removed the branch in a negligent manner.

The Heils, of course, appealed.

Held: The Court of Appeals ruled that the Heils “produced no evidence from which an inference could be made that [the Hines] breached their duty of care.” The Court held that to make out a claim for negligence, the Heils had to allege facts showed (1) a duty of care owed by the defendant; (2) a breach of the duty by a negligent act or omission; and (3) damage proximately caused by the breach.

Here, the Court said, the oak tree was a live, healthy tree, and the Heils – who didn’t see any roof damage themselves ¬– presented no evidence that the Hines “could have observed, by reasonable inspection, the damage possibly caused by the tree limb.” Note the word “possibly” – the plain fact was that the Heils had no evidence that the tree limb caused the hole, or even when the hole was formed.

What’s more, the Court said, when the Hines were notified the tree needed to be trimmed because it was encroaching on the Heils’ roof, the Hines hired Sam’s Tree Service and the work was completed within a month of notice. The Heils had no explanation – let alone evidence – for their claim that Sam’s Tree Service use of an undocumented worker and its low fee somehow constituted a breach of the Hines’ duty to the Heils.

The Heils had no proof that Sam’s Tree Service performed its work in a negligent way or that “another tree service company would have known or communicated that a single dented shingle was cause for structural concern – if the dented shingle was the cause of the damage.”

– Tom Root


Case of the Day – Wednesday, March 7, 2018


Dogs have been man’s best friend for something over 10,000 years, but that doesn’t mean the law does not have a healthy respect for the mischief our canine brothers and sisters can cause. Common law was rather comme ci, comme ça about the hounds. The “one bite” rule ruled the day throughout the 19th century, holding that an owner or keeper of a dog would be held legally liable for damages caused by the animal only if it could be shown that the animal had a propensity to do something harmful which was unusual for the animal’s class (such as biting people, scratching them or knocking them down) and the owner or keeper knew about the dangerous propensity prior to the incident in question.

As society became more urban and orderly, a number of states imposed strict liability on dog owners. If Fido bit, you were hit. In so doing, states treated domestic animals the same as inherently dangerous situations for which res ipse loquitur applied.

Res ipse loquitur is a great doctrine. Meaning literally “the thing speaks for itself,” res ipse loquitur acknowledged that some conditions – like keeping a wild animal, storing explosives in a residence in town, or cutting down a tall tree in the middle of a neighborhood. Typically, res ipse loquitur requires a showing that the accident is of a kind that doesn’t normally occur unless someone has acted negligently; the evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and the type of negligence in question falls with the scope of the defendant’s duty to the plaintiff.

Dog bite laws are actually even worse for the owner than the classic res ipse loquitur situation. After all, as a matter of strict liability, you might get bitten only because you pulled a gun on the dog. No matter: strict liability says that the dog and his or her owner are at fault.

Today’s case is an excellent example of what usually happens. Latasha Maupin was squirrel hunting with her boyfriend out in the woods when she cut across Roland Tankersley’s land, on a path she had long used with the Tankersley clan’s permission.

The Tankersleys were cool with it, but their dogs were not. Latisha was badly mauled by a pack of Tankersley mutts.

A Samaritan motorcyclist riding on a nearby road saw the attack and dragged Latisha to safety. She recovered enough to sue Roland Tankersley, relying on state law. Roland said she had to prove he either knew Latisha would be cutting across his land or be aware that the mutts were dangerous. Latisha, taking the modern view, argued that Roland owned the dogs, and that was enough.

The jury found that Roland was the owner of the dogs, but he had had no idea Latisha would be near his dogs that day or had he failed to exercise ordinary care to control his dogs for the safety of others. The core legal issue – whether strict liability was the state of the modern law – ended up in the Kentucky Supreme Court.

Maupin v. Tankersley, Case No. 2016-SC-000572-DG (Sup.Ct. Kentucky, Feb. 18, 2018). Latasha Maupin was squirrel hunting with her boyfriend on heavily wooded property owned by his family. She decided to go home early, and cut across Roland Tankersley’s 42-acre tract, using a path she and her family had used with permission for years. Near where the path met the road, a pack of Roland’s dogs attacked her, causing substantial injury. Latisha sued Roland for her injuries, relying on KRS 258.235(4).

The trial court, however, instructed the jury that Latisha had to show that Roland knew that Latisha was likely to be crossing his land and to come into contact with his dogs, or failed to exercise ordinary care to control his dogs for the safety of others. Latisha howled that this was wrong, and the mere fact that the dogs belong to Roland was enough to make him pay.

Latisha lost the appeal as well, but she was dogged in her determination. The case ended up at the Kentucky Supreme Court.

Held: The General Assembly’s intent in passing the dog bite statute was clear: to mandate that dog owners are strictly responsible for injuries caused by their dogs.

The statute simply held that “any owner whose dog is found to have caused damage to a person, livestock, or other property shall be responsible for that damage.” The Court interpreted the statute by giving its words “common and ordinary meaning, unless they are technical terms,” and it “liberally construe[s] our reading of a statute with the goal of achieving the legislative intent of the General Assembly regarding the statute’s purpose.” Here, the Court said, under the rules of statutory construction, “shall” is mandatory language and there is “no legal distinction between the words “liable” and “responsible.”

The Court observed that a major concern driving the General Assembly to adopt the dog bite law was the protection of livestock as well as people. The historical emphasis has been on the agrarian interest in the protection of farm animals.

But Latisha was not the only lucky dog in the case. While Roland was liable to her simply by dint of ownership, the Court said that Latisha’s comparative negligence “may be considered in measuring the damages awarded to her.” Kentucky’s comparative fault statute requires the trier of fact in “all tort actions” to “consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed” when determining the percentage of the total fault properly attributed to the parties.

Thus, the Court said, “it is appropriate for the jury, during the calculation of damages phase, to lessen the liable owner’s monetary responsibility for the victim’s injuries if the facts demonstrate that the victim’s own negligent or intentional acts contributed to the dog attack’s occurrence.” Citing the agrarian concerns that underlay the adoption of the law, the Court observed that “it would be incredulous to believe that the General Assembly intended for the owner of trespassing cattle, who break out of a neighboring pasture and enter the dog owner’s land, to be fully compensated for damages inflicted by the homestanding dog upon the intruding livestock.”

– Tom Root


Case of the Day – Tuesday, March 6, 2018


We’re not really sure what happened here, only what one neighbor said happened, and what the other denied. But that’s all right, because today’s case is not about who cut down whose trees, but instead whether an insurance company had to step into the dispute to defendant Shelly Albert when neighbor Henri Baccouche said she done him wrong.

Henri said Shelly trespassed on his property, built a fence across some of his land, and severely damaged nine olive trees in the process. So his complaint was what we call trespass to trees. Shelly argued that she was obligated to trim the trees because of fire regulations, she had been trimming them for years without Henri complaining, and the trees were boundary trees anyway, so she had a right to trim them.

We all know what can happen when we lose a lawsuit. But the pain in the wallet begins way before that, with the cost of attorneys, experts, filing fees and litigation expenses. That’s a good reason for insurance. Shelley had some, a homeowner’s policy bought from Mid-Century Insurance Company (so named, perhaps, because the middle of the last century was the last time the company every paid a claim).

We’re just kidding, of course. Mid-Century couldn’t wait to start paying for lawyers and depositions and settlements and the like, all on Shelley’s behalf.

Wait. We’re kidding about that, too. Shelley notified Mid-Century as soon as she was sued. She demanded Mid-Century mount a defense for her, but Mid-C said, “no dice.” The insurance policy covered accidental occurrences, the Company said, and Shelley, by her own admission, had deliberately hacked up the olive trees.

Shelley was outraged. She fumed that Henri’s “entire complaint is false [and] outrageous… the trespass claim is ridiculous… in those boundary trees were enclosed by me, prior to any survey being done, based on a good faith belief that property encompassing the trees was mine… no intentional tort will lie” She contended Mid-Century’s decision to deny her claim was “clearly error.”

Shelley’s insurance policy covered her from injury due to accidents. Shelley’s problem, of course, was that she said the accident was that the trees might really by Henri’s and not shared, and that she and her guys might trimmed more than they were entitled to. But they did not mean to. Fact is, however, the “accident” had to be conduct, not its unintended result. If Shelley had run over the trees with a bulldozer while she was digging a hole for a pool, that would be an accident. But “accident” is like “intent” in trespass. You don’t have to intend to walk onto some else’s land. You just have to intend to step where you step. If that land belongs to someone else – whether you knew it or not – you’ve trespassed.

Shelley intended to prune the trees. It was no accident, whether she was right in her belief that she could do so or not. Thus, the insurance company could not possibly be liable, and it did not have to defend her.

So Shelley lost big (and spent a lot on legal fees) before ever squaring off against Henri. Lesson? It might make good reading some evening (when nothing good is streaming on Netflix) to read your homeowner’s insurance policy. Sometimes, it can be scarier than a slasher movie.

Albert v. Mid-Century Insurance Co., 236 Cal.App.4th 1281 (Ct.App. 2nd Dist., 2015). Shelley Albert had a homeowners insurance policy with Mid-Century Insurance Co., which covered “property damage resulting from an occurrence,” including paying the costs of defense “against any suit seeking damages covered under this section…” The policy defined an “occurrence” as “an accident, including exposure to conditions, which occurs during the policy period, and which results in… property damage… during the policy period,” but specifically excluded damages resulting from “an intentional act by or at the direction of the insured.”

Oh, what peace of mind Shelley must have had! At least until she was sued by her neighbor, Henri Baccouche, for damage Shelley was alleged to have caused to his property when she erected an encroaching fence, and pruned nine mature olive trees on his property. Shelley called on Mid-Century to provide a defense, but the insurance carrier refused, saying it was not liable under any stretch of the policy. Mid-Century said Henri’s “do not meet the definition of occurrence resulting in bodily injury or property damage as defined by your policy,” because protection against Henri’s claim was barred by the policy’s exemption for intentional acts.

Shelley sued Mid-Century, claiming breach of contract, and breach of the implied covenant of good faith and fair dealing. Defendant filed a motion for summary judgment. The trial court granted judgment to Mid-Century, holding that Shelley’s conduct in cutting Henri’s olive trees was intentionally undertaken, and there was no evidence whatsoever that the trees were injured in some accident.

Shelley appealed.

Held: Mid-Century had no duty to defend Shelley. The policy was quite clear that it covered property damage resulting from an “occurrence,” and an “occurrence” was an accident. “Accident” in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured, the Court said. An intentional act is not an “accident” within the plain meaning of the word.

The Court said that an accident “is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.” For example, if a driver intentionally speeds and, as a result, negligently hits another car, the speeding would be an intentional act. However, the act directly responsible for the injury hitting the other car was not intended by the driver and was fortuitous. Accordingly, the occurrence resulting in injury would be deemed an accident.

Shelley deliberately hired a contractor to trim the trees, but argued that the excessive cutting was not an intended consequence, and should be deemed an accident. Specifically, she maintains that the excessive cutting could have resulted from “miscalculation by the independent contractors, or it could have been as a result of a mishap with a motor vehicle… or truck… used in the tree trimming process, or by falling ladders, malfunctioning chainsaws or any number of other instrumentalities. All of these were possible ‘accidents’ causing the alleged excessive cutting.”

Nonsense, the Court said. “It is completely irrelevant that plaintiff did not intend to damage the trees, because she intended for them to be pruned. Moreover, it is undisputed that the contractor intended to cut the trees, and absolutely no facts exist, in the complaint or otherwise, indicating that some unforeseen accident (such as a slip of the chainsaw) caused the damage to the trees.” It was always Shelley’s position that the trees had not been damaged or pruned excessively (and therefore were not subject to an accident), and that they had been cut in accordance to the City’s brush clearance ordinance. The Court ruled that “an insured may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in which the third party claimant might amend its complaint at some future date.”

Even with the most charitable view of the underlying events, the Court said, the trimming of the trees was no accident.

– Tom Root