Case of the Day – Tuesday, May 15, 2018


We all know about adverse possession, that peculiar legal doctrine that holds in essence that if you’re brazen enough to trespass on someone else’s land continuously for a period prescribed by statute, the property becomes yours. In most places, such as Pennsylvania, the period is 21 years long. So for 20 years, 11 months and 31 days, you’re a squatter. The next day, you’re landed gentry.

It seemed to me like judicially-sanctioned theft when I learned about it in law school (so long ago that twice the statutory period has passed since I walked those hallowed halls). The theory, my property professor droned, was that public policy favored productive use of the land, and taking over a piece of land from an owner careless enough to let you take it over put it to a more productive use, and thus should reward the taker. So if I like my piece of country property as a preserve for the birdies and little critters, and you want to bulldoze it for a new Starbucks, you win. The whole notion seems as cockeyed to me now as it did when I was a well-scrubbed and wide-eyed first-year law students back in the halcyon days of the 1970s.

To claim adverse possession, you have to show that your occupation of the land was open, notorious, hostile and adverse to the interest of the owner a continuous period of whatever the statute prescribes, say 21 years as an example. Some might say that if you built your Starbucks on my forest plot, and I did nothing about it for that long, I deserved to lose my land. To which I might reply that the law does not seem to offer much protection to someone when his or her property can be lost to another person simply because the thief gets away with it for long enough.

But if I thought adverse possession was screwy, I was hardly prepared for its little brother, a  prescriptive easement. Adverse possession is occupation of the land. A prescriptive easement is a mere use of someone else’s land without exclusive occupation. My kids cut through the neighbor’s side yard for years as a shortcut to the church. I still do it when I’m running late. If now, 25 years after the neighbor’s house was built, he put up a fence to stop us, should we be able to claim a right to have the fence removed so that we can continue to save five minutes getting to worship? What we would have, we could argue, was a prescriptive easement.

I once had a client who was about to build a garage on a piece of his land. The power company sued, because lines that went behind his property for years had been slightly rerouted so that they crossed a corner of his place. The electric company said it had moved the lines a convenient 23 years before, and now it had a prescriptive easement, which limited my client’s use of a quarter of his property to a vegetable garden.

We stared down Reddy Kilowatt in that case, because we located an aerial photo of the town from 20 years before that showed the electric company was bluffing, and the lines had not been moved as of that date. My client sold the electric company an easement over 50 feet of back yard for about $30,000. Happy ending.

As much as I dislike the whole notion of prescriptive easements, I admire creativity. I always thought of such easements as being created by the deliberate actions of humans. My kids cut across the neighbor’s lawn. The power company restrung its lines. But the plaintiffs in today’s case showed creativity I lack. Here, they claim a prescriptive easement not because of what they did, but because of what their tree did. Because the limbs and roots of a tree they owned grew into a neighboring property and remained there for more than 21 years, they argued, they had thus obtained a prescriptive easement that would prevent the neighbor from doing anything to the tree. It’s as if the Massachusetts Rule had an expiration date.

At first blush, it seems to ring all the prescriptive easement bells, and seemed pretty doggone clever. But after thinking about the whole notion for long enough, the appeals court wisely said it simply did not make sense.

Koresko v. Farley, 844 A.2d 607 (Pa.Cmwlth. 2004). The Koreskos bought property with a line of trees on one boundary, all of which had been there more than 21 years, which hang over the boundary with the neighboring property containing a house, owned by M.J. Farley Development Co. Inc. Farley had submitted a subdivision plan seeking to divide the property into two plots, and to build a second residence on the newly-formed plot. 

The subdivision plan proposed to place a water line and driveway near the boundary trees. Upon learning of the proposal, the Koreskos sued in equity seeking injunctive relief and, of course, money damages. In their complaint, the Koreskos claimed the driveway and trench would damage the root systems of the boundary trees. Among their claims, the Koreskos alleged unreasonable interference with their prescriptive easement. They claimed that because their trees’ roots and branches encroached on the subdivided property for over 21 years, a prescriptive easement existed for the tree roots and branches, and that development of the property would unreasonably interfere with that easement; and

After the trial court held that “Pennsylvania does not and will not recognize an easement for tree roots or overhanging branches,” the Koreskos appealed.

Held: Pennsylvania will not recognize a prescriptive easement created by the growth of a tree.

A prescriptive easement is a right to use another’s property which is not inconsistent with the owner’s rights and which is acquired by a use that is open, notorious, and uninterrupted for a period of 21 years. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

The law holds that overhanging tree branches are a trespass. In Pennsylvania, a landowner has the right either to compel removal of overhanging branches or to engage in self-help. However, the Restatement notes that a continuing trespass is not a trespass at all if the actor causing the trespass has obtained an easement by adverse possession, and ponders openly whether the continued presence of encroaching tree branches, held openly, notoriously, hostilely, and continually for 21 years would create a prescriptive easement in the airspace which they hang.

If this were the case, the Court said – noting it could find no Pennsylvania law which would indicate that a prescriptive easement was not available in this situation – a landowner who suffers actual harm for the first time during the tree owner’s 22nd year of hostile ownership would be precluded from seeking any remedy whatsoever, even self-help. However, the Court said, if an action is available without a showing of damage – and a trespass action assumes damages, so it can be brought whether the trespasser has actually injured the victim’s property or not – the landowner has no reason to complain if a neighbor’s tree causes damage after the prescriptive period has run, because he or she could have sued at any time during the 21-year period.

The Court held the Koreskos failed to state a claim for prescriptive easement as a matter of law. No Pennsylvania case has held such easements are cognizable, the Court said, and other jurisdictions have reasoned that such should not be recognized. Finally, the potential of widespread uncertainty occasioned by such easements convinced the Court that they should not be recognized as a matter of public policy.

The Restatement holds that, to be adverse, a use must be open and notorious is for the protection of those against whom it is claimed to be adverse. It enables them to protect themselves against the effect of the use by preventing its continuance. This requirement may be satisfied by a showing that either the land owner against whom the use is claimed has actual knowledge of the use or has had a reasonable opportunity to learn of its existence.

Encroaching tree parts, the Court held, by themselves do not establish “open and notorious” use of the land. Neither roots below the ground nor branches above the ground fairly notify an owner of a neighbor’s claim for use at the surface. In the absence of additional circumstances, roots and branches alone do not alert an owner that his or her exclusive dominion of the ground is challenged. This is no different from prior legal decisions that already held that the known presence of windows near a lot line does not create a prescriptive easement for light and air.

In a Kansas decision, an appeals court in the Sunflower State held that an easement by prescription cannot be acquired by overhanging tree branches, said:

The result reached here will be distasteful to all who treasure trees. The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each owner’s rights insofar as that is possible. Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.

The Koresko Court said, “We agree with this reasoning and holding… and we expressly adopt it in Pennsylvania.”

Finally, the Court considered the consequences of the holding urged by Koreskos. Trees growing over property boundaries and streets, around utility lines, and under sidewalks are common in Pennsylvania. “A decision suggesting that the prolonged presence of these tree parts assures their unreduced continuation could cause uncertainty,” the Court held. “Both the extent of the prescriptive easement and its effect on public and private use are problematic. As a matter of sound public policy, we decline to recognize a new estate which offers uncertainty and invites clarification through litigation.”

– Tom Root


Case of the Day – Monday, May 14, 2018


I’ll tell you where the real money is in litigation. It’s not the guy who walks into the lawyer’s office with a tale of woe at the hands of some big, faceless, loaded corporation. It’s not the guy who was busted for pot, and he bonded out on Friday but they didn’t release him until Monday.

It’s here: if I had a nickel for every would-be client who ever asked me to take a case on contingent fee, because they were sure to get beaucoup bucks in the end with an outraged jury handed them millions in punitive damages for a fender-bender, or a sharp-tongued government clerk, or a badly-written newspaper story, or whatever the injury du jour might be. Total up my nickels, and I ought to be sitting on the veranda of my Caribbean beachfront mansion writing this right now.

Few would-be litigants really appreciate that punitive damages, also called exemplary damages, are damages awarded by a jury to punish a defendant for some terrible conduct, because, after all, it’s a civil action, and you can’t throw the malefactors in jail. But contrary to legend, punitive damages have to be tied to some actual harm.

In today’s case, some junior leasing agent for a billboard company got too enthusiastic in clearing the view for the billboard, and when the dust settled, some of the trees that had been felled belonged to the neighbor of the guy who had leased space for the billboard (now there’s someone who should be locked up). The leasing agent was sloppy, careless even, perhaps – dare we say? – reckless.

The jury found that the neighbors were harmed in an amount of about $32,000. But it added to that figure an eye-popping $2 million in punitive damages. That was too much for the trial judge, who tried to get the farmer to accept a remittitur, that is, settle for a paltry $550,000. The farmer wouldn’t do it, so the court ordered a new trial. The farmer appealed.

All of $32,000 in damage, and a cool half mil on top of it? Farmer Blust was the living embodiment of the aphorism, “Pigs get fat, but hogs get slaughtered.”

Blust v. Lamar Advertising Company, 157 Ohio App.3d 787 (Ct.App. Montgomery Co., 2004). A Lamar leasing agent signed up Jim Weber in September 1998, leasing a small piece of Jim’s farmland near the property line between his farm and the Blust farm for a billboard. The two farms were separated by an old wire fence that was largely concealed amid dense brush, vines, and trees. Because Lamar planned to erect its billboard near the tree line and  undergrowth separating the two farms, it hired Woody’s Tree Medics to remove some of the trees and vegetation from Jim’s property.

A Woody’s work crew entered the Blust property and cut down 34 trees, 17 of which were more than three inches in diameter. At trial, a jury found Lamar liable in tort for trespassing and removing the trees without permission, and awarded the Blusts compensatory damages of $32,000 and punitive damages of $2.2 million. The trial court denied Lamar’s motion for judgment notwithstanding the verdict on the punitive damages award but indicated that it would grant a new trial on all issues, including liability, unless the Blusts accepted remittitur, that is, a reduction, of the punitive damages award to $550,000.00, with half of that amount going to a nonprofit nature conservancy. The Blusts rejected remittitur, and the trial court ordered a new trial.

The Blusts appealed, challenging the trial court’s holding that the punitive damages verdict was excessive and its decision to grant a new trial on all issues. 

Held: The Court held that the Blusts were entitled to punitive damages, but the award was excessive. Thus, the trial court did not err in ordering a new trial, limited how much should be awarded in punitives.

In order to recover punitive damages, the Blusts had to show that Lamar acted with “actual malice.” Actual malice, the Court said, is a state of mind under which a person’s conduct is characterized either by ill will or by such a conscious disregard for the rights and safety of other persons that its conduct is very likely to cause substantial harm.

The Blusts argued that Lamar’s act of directing their trees to be cut constituted a conscious disregard for their rights that had a great probability of causing them substantial harm. The Court agreed, finding substantial evidence in the record that Lamar’s agent consciously disregarded the Blusts’ property rights by ordering the cutting of trees on their property. Jim Weber told Lamar’s agent about where the property line fell, and told her to follow the farm fence as a guide. After the cutting began, a friend of the Blusts appeared at the site to tell the Woody’s crew that it was cutting trees on the wrong property. The Blusts’ tenant farmer, Ted Eby, saw workers clearing trees from the Blusts’ property, and he  spoke to Woody’s crew and the agent, and told them they were cutting the Blusts’ trees.

Despite all of these warnings, the agent told Woody’s workers to keep the saws humming. A reasonable juror, the appeals court said, could find that Lamar consciously disregarded the Blusts’ property rights.

A closer question, the Court observed, is whether Lamar’s agent was aware that having the Blusts’ trees cut carried with it a great probability of causing substantial harm. “We harbor no doubt,” the Court said, “that clearing the trees had a great probability of causing some harm. Indeed, removing the trees was absolutely certain to cause harm to the extent that the Blusts lost their trees. The crucial issue on appeal is whether the agent knew that this loss of the trees had a great probability of resulting in substantial harm to the Blusts, or more specifically, whether reasonable minds could differ on this issue.”

The Court said “substantial” means “major, or real importance, of great significance, not trifling or small.” Here, the “harm” was obvious: it was the loss of the Blusts’ trees. But in order to determine whether this harm was “substantial,” it was necessary to assign some measure of value to the trees. The Blusts said that someday, they might divide a portion of the farmland into residential plots, and the absence of trees would harm the value of the plots. The Blusts’ expert testified that the trees’ loss would diminish the fair market value of the subdivided property by $51,600.

The Blusts also argued that they hoped to sell the wood from three wild walnut trees someday for veneer. What’s more, the Blusts presented testimony that it would cost $40,566 to purchase and replant all of the trees or $24,335 to replant 11 of the larger trees. Lamar argued, on the other hand, that the stumpage or firewood value of the timber was only $105. Lamar also presented expert testimony that removal of the trees may have caused the Blusts’ property value to decline by at most one percent, or $3,870.

The Court held that most of the measures of damage could be characterized as “substantial.” But the record contained no evidence that Lamar’s agent knew the Blusts might subdivide their farm for residential purposes. The record also contained nothing to indicate that the agent knew of any plans to sell the walnut trees for veneer. Likewise, the agent did not know that the Blusts – who did not live on the parcel – would ever want to replace some or all of the trees. Thus, the agent could not have known that cutting the trees would harm the future value of the land as subdivided plots, frustrate the prospects of marketing veneer, or even just lead to $25,000 – $40,000 replacement costs.

However, fair market value is a different story. Even Lamar admitted that the cutting may have reduced the Blusts’ property value $3,870. “A reasonable juror,” the Court said, “could find that a loss of this size qualifies as substantial harm and not a trivial loss.” A decline in property value because of losing trees is a “typical measure of the harm, and it is entirely predictable.”

When a verdict is influenced by passion or prejudice, the Court held, a trial court must order a new trial. However, when a verdict is merely excessive, but not influenced by passion or prejudice, a trial court must offer the plaintiff a choice between remittitur or a new trial. If the plaintiff rejects remittitur, a new trial must be ordered.

The Court agreed that the Blusts’ punitive damages award was grossly excessive under constitutional standards, and had to be set aside. Therefore, the judge properly directed the Blusts to choose remittitur or a new trial. However, the only issue tainted by error was the jury’s punitive damages award. The Blusts should not have been required to place in jeopardy their compensatory damages award or the jury’s determination that some punitive damages are warranted by undergoing a new trial on those issues.

The case was sent back to the trial court for a new calculation of punitive damages.

– Tom Root


Case of the Day – Friday, May 11, 2018


flo161221It’s an awful thing to see two insurance companies, toe to toe, fighting each other to the death. Imagine Flo stomping on the GEICO Gecko…

Well, maybe “awful” is an overstatement, but today’s case does pit two insurance companies against each other. One insured an engineering firm against professional negligence (malpractice), while the other that insured the company against everything else. And you can bet that they were arguing over who would get the honor of picking up the check.

Compare it to a doctor’s office: if you doctor cuts off your ear when he or she was supposed to be curing your eczema, that would be covered by the professional insurer (assuming a jury thought it might be malpractice). If after you get the ear cut off, you slip and fall on a wet floor while paying, the doctor’s general insurer would cover your sore tush (financially, of course).

The engineering firm, an outfit named Czop/Specter, Inc. (pronounced “czop-specter”), had a contract with the Commonwealth of Pennsylvania to inspect its highways, and — when it found a dangerous condition — to schedule crews to fix it. Czop/Specter had an employee whose credentials were approved by PennDOT, who took special training in highway standards, and then performed the inspections. When poor Mr. Cuthbertson (just your average motorist) was hurt by some driver who blew through a stop sign, his lawyer — who had no interest in committing legal malpractice — sued everybody. Claiming that the driver who hit his client couldn’t see a stop sign obscured by trees and foliage, Cuthbertson included the engineering firm Czop/Specter as a defendant in the suit, claiming that Czop/Specter should have identified the obscured sign and had the trees trimmed. Czop/Specter’s insurance companies were fighting over whether the negligence that the plaintiff alleged was covered by the professional liability policy (the cut off ear) or the general policy (a slip on the wet floor).

The insurers sued in federal court, asking it for a declaratory judgment – simply an order from the court determining whether any damages that might be awarded because of any negligence should be paid by the professional liability insurer or general insurer. The professional liability insurance company claimed that the allegedly negligent inspection wasn’t a professional service, but instead could have been performed by anyone. The general insurer argued the liability wouldn’t belong to it, because its policy specifically excluded inspections from covered acts. The court said that the employee who performed the inspections had to be approved beforehand by PennDOT, had to complete special training and — although not an engineer himself — had other specialized education in herbicide application which was necessary for the position. The court’s conclusion: you don’t have to be a doctor or lawyer to provide professional services.

obscure151106Is there a lessons here? The court seemed to suggest that because the claimed negligence didn’t fall under one policy, it necessarily had to fall under the other. But that ain’t necessarily so. It’s entirely possible that Czop/Specter could have found itself being sued for negligence on a matter that no one ever contemplated — a passenger in a car hit because of an obscured sign because of an untrimmed tree because of a negligent inspection — one that was covered by neither policy. A lesson for arborists and tree specialists. You’d be wise to carefully read those boring, tedious, incomprehensible policies.

Lumbermens Mut. Cas. Co. v. Erie Ins. Co., 2007 WL 2916172 (E.D.Pa., Oct. 21, 2007). Donald Cuthbertson, Jr. was injured in an auto accident when another driver drove through a stop sign and collided with the car in which Cuthbertson was riding. Cuthbertson sued in state court, alleged among other things that the accident occurred because the driver did not see “an obscured and otherwise difficult to observe stop sign … due to a combination of factors, including tree branches, vegetation, bushes, brush and grass which obstructed visibility of eastbound drivers west of the stop sign.”

Czop/Specter, Inc., held a contract with the Pennsylvania Department of Transportation to perform inspections on the highway and to schedule any work required as a result of the discovery of hazardous road conditions resulting from overgrown vegetation. The inspection and scheduling services were performed by Czop’s employee, David Riley. In his complaint, Cuthbertson asserted that Czop was negligent in the performance of the contract.

Lumbermens Insurance provided a defense to Czop under the terms of an Architects and Engineers Professional Liability Policy that covered claims “arising out of a wrongful act in the performance of ‘professional services’.” Professional services were defined as “those services that the insured is legally qualified to perform for others in the insured’s capacity as an architect, engineer, land surveyor, landscape architect, construction manager or as defined by endorsement to the policy.” Lumbermens claimed that Erie Insurance Exchange — which insured Czop against general claims — had the obligation to defend, because the inspection services weren’t “professional services.” Erie’s policy contains an endorsement excluding from coverage “damages due to any services of a professional nature, including but not limited to: … supervisory, inspection, or engineering services.” Erie argued that the services performed by Czop through Riley constituted supervisory and inspection services and, therefore, the claim is excluded from coverage under the Erie policy. The battling insurers asked a federal district court to settle the dispute between them.

The plaintiff argued that the engineering firm inspector had ignored the risk ...

The plaintiff argued that the engineering firm inspector had ignored the risk …

Held: Lumbermens must defend Czop from the lawsuit, because the services were professional in nature. Under the law, a ‘professional’ act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.

In determining whether a particular act is of a professional nature or a ‘professional service’ a court must look not to the title or character of the party performing the act, but to the act itself. Riley’s services under the Engineering Agreement were “services of a professional nature” because the job entailed Riley’s inspection and supervisory services, which could not have been performed by just “anyone” and which were expressly excluded from coverage under the Erie policy. The Engineering Agreement required Czop to submit Riley’s credentials for approval by PennDOT for the position of “Roadside Development Consultant.” Riley was then trained by a PennDOT employee, and he attended mandatory seminars that prioritized needed work and roadside vegetation control. Upon completing his training, Riley conducted inspections in order to identify hazards, scheduled roadside work to be performed by others in accordance with PennDOT’s standards, and supervised the contractors performing the work.

The Court found that Riley could not have performed the job without the specialized training he received from PennDoT. Riley did not hold an engineering degree, although Czop is an engineering firm. Riley did, however, have specialized herbicide training which he used in connection with his inspection responsibilities under the Engineering Agreement. One need not be a doctor or a lawyer to render professional services. The job that Czop was paid for was the inspection and supervisory services performed by Riley. His failure to inspect and supervise the trimming of the vegetation that obscured the stop sign — if it happened — would constitute a “wrongful act in the performance of professional services” as that term was defined in the Lumbermens policy.

– Tom Root


Case of the Day – Thursday, May 10, 2018


To a nonlawyer, nothing sounds as enticing as running to a judge who will immediately express shock and dismay at a plaintiff’s shoddy treatment by issuing a thundering injunction to stop the defendants in their tracks.

OK, we’re wrong. To a nonlawyer, a lot of things sound more enticing… a cold beer after a long, hot day of work, the only winning ticket in a $140 million Powerball drawing, watching your neighbor wrap his new Porsche – a car you lust after but could never afford – around a utility pole.

But when a person feels wronged, the urge to have his or her lawyer blast the defendants with both barrels right out of the gate is almost irresistible. So let’s get a temporary restraining order, followed by a preliminary injunction, followed by a first-class trial and a hanging.

But getting a preliminary injunction is not all that easy a thing. First, you have to show that without it, you will be irreparably harmed. That’s not easy, because almost any harm can be repaired, usually by a liberal application of money. Then, you have to show that you’re “likely to succeed on the merits,” a fancy term for proving that you’re going to win when you go to trial. Inasmuch as a trial is when you put on all of your evidence, winning a preliminary injunction means you have to try the case twice, and at the injunction stage, you have not had the benefit of perusing your opponent’s files and harassing him or her in a deposition.

Finally, you have to show that equity is on your side. That’s a fairly squishy concept, but generally, it measures how big a pain it’s going to be for the other party if the injunction is granted. If the injunction is, for example, do not cut down my trees in your easement before we work out whether you have the right to do so, that’s not tough. The cost to the other guy of not cutting them down is not that great, and the cost to you if he does certainly is great, probably irreparable harm.

On the other hand, if – like plaintiff John Haverland in today’s case – you want a mandatory injunction, one which does not prevent something from happening but instead orders that the other guy do something, that’s a much taller order.

Two things to remember: First, getting a preliminary injunction does not mean that you’re going to win the case. We have no idea how John Haverland made out after the trial, or even if there was a trial. Second, because this is New York State, where everything is upside down, the “Supreme Court” is a trial court. New York’s highest court is the New York Court of Appeals.

Go figure.

Haverland v. Lawrence, 800 N.Y.S.2d 347 (Sup.Ct. Suffolk Co., Dec. 1, 2004): Mike Haverland sued his neighbor, Guy Lawrence, and his landscaper, because Guy had the landscaper plant an 80-foot line of 13’ tall pine trees along the boundary between the two homes. Mike said the trees were so close to the boundary line that, although their trunks did not cross the line, the root balls (which of course were well buried) did.

Mike complained that, besides the root balls, the trees had been staked, and some of the stakes were in his yard. He said Guy’s contractor crossed onto his land while planting the trees and knocked down five of his oak trees and construction stakes marking the site of his new house. Finally, he argued that the pine trees changed the grade slightly, so that water accumulates and floods in a 22-foot strip of his property after a hard rain. This, Mike said, would result in a foot of standing water, making this part of his land unusable.

Mike’s real complaint was that that this flooding and the fast-growing roots of the trees would undermine the integrity of foundation of his house, which had not yet been built. He asked for a preliminary injunction directing that Guy Lawrence and East Hampton Bayberry, Inc., his contractor, remove the pine trees, rootballs and stakes from his land, and restore the previous natural grade and surface water flow on Mike’s property.

Mike’s surveyor, David L. Saskas, said he had placed surveyor stakes on Mike’s property to enable Mike’s general contractor to place stakes marking the location of the foundation of Mike’s new house. In the course of this survey, Mr. he determined that ten large evergreen trees had been planted very near the boundary line with Mike’s property. The trunks of five of these trees were within six inches of the line. and the holes and root balls for these trees extended up to 2½ feet onto Mike’s land. Only two of these ten trees were planted entirely on Guy’s property. The metal stakes and guy wires for the trees extended as much as four feet into Mike’s property. Finally, David said, the planting of the new trees created a small berm which raised the grade of the land extending into Mike’s yard. David offered his opinion that the change of grade altered the run-off pattern of surface water and “contributed” to the flooding on the Mike’s land.

Mike’s first cause of action in the complaint was for trespass and the second alleged commission of a nuisance based on a violation of the East Hampton Town Code Section 255-10-50. Mike also wanted a permanent injunction forcing Guy to restore the old grade so as to return the runoff to its prior state, and to remove all trees, stakes and rootballs that were encroaching on his land.

Guy’s contractor argued there was no trespass because Mike’s own surveys showed that all of the tree trunks were on Guy’s land. The contractor said it was conjectural to believe that the tree roots would someday undermine the foundation of Mike’s house. The contractor said any flooding that might occur did not constitute irreparable injury. Instead, the condition was minor and easily remedied.

Guy agreed that the tree trunks did not encroach, and argued Mike was just guessing as to the size of the buried rootballs. He said Mike’s claims of flooding were exaggerated, and Mike had no proof that the newly-planted trees were responsible for it. He also argued that Mike failed to show how any of the East Hampton Town Code had been violated, and that equity is not balanced in Mike’s favor “since removal of the trees and re-grading of the land is a drastic remedy and there are other and less drastic remedies available.” Guy alleged that Mike never said anything about the grade or flooding, but only brought it up after he hired an attorney.

Mike responded that this is a case where the planting of the trees, as opposed to their natural growth, caused the encroachment. Self-help is not an appropriate remedy, Mike argued, because trimming the encroaching part of the trees would kill them. He said it was hardly unfair to make Guy and his contractor “pay for what they would have had to pay originally but for their illegal trespass.”

Held: The Court denied Mike his preliminary injunction.

For a preliminary injunction, Mike had to show (1) a likelihood of ultimate success on the merits; (2) irreparable injury unless the preliminary injunction was granted; and (3) that a balancing of equities favors Mike’s position.” Preliminary injunctive relief is a drastic remedy which will not be granted unless a clear right to the injunction is established under the law and the undisputed facts. The burden to show that undisputed right rests upon the movant.

The Court held that Mike’s allegation that Guy’s contractor drove across his yard, tore out construction stakes and killed five oaks was enough to show he was likely to prevail on a trespass action. Any unauthorized entry upon the land of another constitutes trespass. The Court said that Mike, to the extent he has alleged – and Guy admitted he had told the contractor to drive over Mike’s land – that the contractor drove over Mike’s land and destroyed property, “has established the likelihood of success on the merits. However, as to the remainder of the complaint, defendants’ submissions in opposition to the application raise numerous and significant triable issues of fact which preclude such a finding.”

Mike’s real problem, the Court ruled, was that he had not shown that he would suffer an irreparable injury if the preliminary injunction was not granted. Mike’s claim that the newly-planted trees have fast growing roots that will undermine the foundation, “lacks specific evidentiary support and is merely speculative and conclusory.” His claim that the foundation will suffer irreparable damage should the flooding continue is con by contradicted by his admission that the integrity of that foundation will be gradually undermined. The fact that Mike claimed he was temporarily deprived of the use of part of his property because of flooding after a heavy rain was not an irreparable injury. Anyway, the Court said, “there is also a sharp factual dispute with regard to the cause of the flooding as well as the frequency and extent of the flooding.”

Finally, the Court held, Mike did not show that equity was on his side. First, the Court said, Mike was seeking a preliminary injunction directing not that Guy abstain from some conduct, but rather that he and his contractor actively do something: remove planted trees and re-grade Mike’s property to restore the previous pattern of surface water runoff. As a general rule, the Court observed, “mandatory injunctions are not favored and will be granted in only the most extraordinary circumstances.” This is especially so where, as here, Mike sought to get the same injunctive relief he sought in the final, permanent injunction. In such a case, “a preliminary injunction will not be granted unless the plaintiff demonstrates, upon clear and undisputed facts, that such relief is imperative and because without it, a trial would be futile.”

The Court weighed the drastic nature of the relief sought against Mike’s conjecture that the tree roots might eventually reach his foundation, as well as the “sharply disputed claim” that Guys’ planting of the trees and re-grading of his property caused extensive flooding, is not enough to prove the existence of the “extraordinary circumstances which would tip the balance of equity in his favor.”

– Tom Root


Case of the Day – Wednesday, May 9, 2018


The common-law rules governing rules on matters like encroachment can, of course, be modified by meddling legislatures. For example, we all know that if your neighbor’s tree encroaches above or below the soil onto your yard, you have the right of self-help and no more. You do not have the right to force your neighbor to correct things unless the encroachment causes “sensible harm,” and indeed becomes a nuisance.

As we learned yesterday, however, the law recognizes negligence per se, which is essentially presumed negligence because you broke the law. Likewise, the law can declare that some things constitute nuisances for no better reason than the law says they are.

In Connecticut, a land where the state has yet to meet a tax or a regulation it doesn’t like, there is a statute that declares running bamboo to be a nuisance. It falls on the homeowner to prevent his or her running bamboo from running into someone else’s yard, whether the encroachment causes harm or not. If you fail to control your running bamboo according to statute, you are negligent per se, and the bamboo is a statutory nuisance.

Who ever imagined that running bamboo was such a problem in temperate Connecticut? Well, the legislature for one. Generally, it seems to be a common enough problem, with running bamboo making kudzu propagation look like a bonsai tree by comparison.

Whatever the reason Connecticut may have had for enacting a law directed specifically at running bamboo, it seemed to come in handy for Jean Walden, when a neighbor’s running bamboo ran into her backyard. She sued, wanting an order that her neighbor remove it.

The neighbor Nationstar, a mortgage company, filed a motion that the amount of damages be apportioned between it and Jean. Jean was not much interested in talking about whether she was negligent: as far as the statute and Jean were concerned, Nationstar let the bamboo encroach, and it was solely liable. Apportionment is premised on the notion that it takes two to tango, an approach Jean – who considered herself blameless – was not interested in at all.

What ensued was an “angels-on-the-head-of-a-pin” kind of thing, where the court wrestled with whether a negligence action could be found anywhere within Jean’s complex complaint. A negligence claim would justify apportionment. A claim that did not sound in negligence would not.

Walden v. Nationstar Mortgage, LLC, Case No. KNLCV176030465S (Super.Ct. Connecticut, November 27, 2017) 2017 Conn. Super. LEXIS 4963. Nationstar controlled property which contained a colony of running bamboo that had grown beyond the property line into the Walden Property. Jean Waldon had warned Nationstar on a number of occasions to control the bamboo colony so that it does not invade her yard. Nevertheless, Nationstar’s uncontrolled colony of bamboo has crossed onto the Walden Property and started to take over the yard.

Jean hired a lawyer who knew how to plead a complaint. Her suit claimed Nationstar was negligent because it had a duty not to allow the bamboo to encroach onto Jean’s land, but failed to control the bamboo. She also claimed the bamboo colony physically invaded her property without her permission, she had asked Nationstar to do something, but it had not. She complained its failure to act was intentional. Jean also included two counts claiming Nationstar violated Connecticut General Statutes § 22a-16 and § 22a-381e (part of the “Connecticut Environmental Policy Act”), creating “an unreasonable harm and future threat of harm to the public trust in the natural resources of the state.” Finally, she alleged that the migration of the bamboo colony unreasonably interfered with her peaceable use and enjoyment of her property.

Nationstar filed a complaint for apportionment, asking that responsibility for the negligence be apportioned between itself and Jean. as the parties responsible for negligence, under General Statutes § 52-572h. Jean quickly amended any mention of “negligence” out of the complaint, and then opposed the apportionment request on the grounds that Nationstar was maintaining a nuisance, she should not share in any blame for it, and apportionment was improper.

Held: Nationstar is entitled to its claim for apportionment, to have responsibility for the damage apportioned between itself and Jean.

Jean argued that General Statutes § 52-572h – the apportionment statute – does not apply to a violation of the CEPA because such a violation is not based on negligence, and the apportionment complaint cannot rest on any basis other than negligence. The statutory cause of action of the running bamboo, Jean said, is based on nuisance and not negligence. Nationstar retorted that a defendant found liable under CEPA will be deemed to have been negligent by virtue of violating the statute, because such a violation is negligence per se.

General Statutes § 22a-16 provides that “any person… may maintain an action in the superior court… for declaratory and equitable relief against… any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction…”

That is what Jean is doing, the Court said. She was enforcing General Statute § 22a-381e(b), which provides in relevant part that “[n]o person who… allows running bamboo to be planted on his or her property shall permit such bamboo to grow beyond the boundaries of his or her property.” General Statutes § 22a-381e(c) provides in relevant part that “no person shall… allow running bamboo to be planted on his or her property at a location that is forty feet or less from any abutting property…”

Negligence per se, the Court said, “serves to superimpose a legislatively prescribed standard of care on the general standard of care… A violation of the statute or regulation thus establishes a breach of duty when (1) the plaintiff is within the class of persons intended to be protected by the statute, and (2) the injury is the type of harm that the statute was intended to prevent.” Connecticut courts treat a statutory violation as negligence per se in situations in which the statutes… at issue have been enacted for the purpose of ensuring the health and safety of members of the general public.”

The CEPA was enacted to enable people to seek redress in the court when someone is polluting the environment, the Court said. Plus, the Appellate Court has held that “§ 22a-16 imposes on the defendants a standard of care, the violation of which constitutes negligence per se.” The two-pronged test applied to establish negligence per se is: (1) that the plaintiff was within the class of persons protected by the statute; and (2) that the injury suffered is of the type that the statute was intended to prevent.”

Here, Jean alleges damage to her property caused by bamboo. She is within the class of persons protected by the anti-bamboo statute. Furthermore, the Court said, the alleged injury suffered by the plaintiff is of the type that CEPA intended to prevent – in this case, the continued violations of the running bamboo going beyond Nationstar’s property and onto Jean’s abutting property.

Jean also argued that the apportionment statute, General Statutes § 52-572h, applies exclusively in negligence cases. Her claim, she said, for nuisance, alleging common-law nuisance and statutory nuisance under General Statutes § 22a-318e(f). Nationstar said that a cause of action for nuisance may be based upon a defendant’s negligent misconduct, and thus, apportionment was permissible.

The Court disagreed that Jean alleged statutory nuisance. General Statutes § 22a-318e(f) provides that allowing running bamboo to grow beyond the boundaries of a parcel of properly “shall be deemed to be a nuisance,” but Jean just argued in the complaint that the bamboo colony “unreasonably interferes with the peaceable use and enjoyment by the plaintiff of the Walden Property.” That, the Court said, sounds like common-law nuisance.

A common-law nuisance claim has four elements: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff’s] injuries and damages. While there are some similarities between a public and a private nuisance, the two causes of action are distinct. Public nuisance law relates to the interference with a public right such as public health and safety. Private nuisance law, on the other hand, concerns conduct that interferes with an individual’s private right to the use and enjoyment of his or her land.

Jean was alleging that the bamboo colony unreasonably interfered with the peaceable use and enjoyment of her land; she does not allege interference with a public right. Therefore, the Court said, the nuisance she alleged is a common-law private nuisance. A common-law private nuisance cause of action must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The interference may be either intentional or the result of the defendant’s negligence.

Thus, a common-law private nuisance can be based on negligence, and Nationstar’s complaint to apportion the liability can go forward.

– Tom Root


Case of the Day – Tuesday, May 8, 2018


Here at Tree and Neighbor Law blog, we get mail, like this letter:

Dear Blogger on All Things Tree and Neighbor Law:

My neighbor walks his dog past my house several times a   day.  He never has his dog on a leash, and it sometimes   runs through my front yard chasing squirrels.

The dog has never paid any attention to me or anything    else that is not a squirrel, and the owner cleans up after her, so it's not that. It is just that I think dogs      belong on leashes.

The other day, I leaned out of my front door and yelled   at him that his dog was supposed to be on a leash. He     explained that I was mistaken, and that the law only      required that he keep his dog under reasonable control.   I have to admit that the dog always comes when her owner                                                calls her, and she stops and sits on command.

                                              Still, it offends me that a dog should be unleashed,                                                    allowed to chase squirrels, and permitted to be so free. Isn’t my neighbor breaking the law?

                                                                       Signed, A Grumpy Neighbor

Hey, Grumpy Neighbor, we understand your complaint. Maybe that’s because we know who you are, inasmuch as you’re writing about our 40 lbs. of border collie mix, Winnie. Winnie cares not a whit about people, bicycles or baby strollers. If you’re not a varmint – coyote, raccoon, squirrel or especially a woodchuck – she will ignore you.

Notwithstanding that, Winnie inherited a lot of the typical border collie temperament and intelligence, being very attentive to commands (even to the extent of sitting on the tree lawn waiting for your signal that she may cross the street) and quite obedient. We and Winnie walk several miles every morning, exploring the fields, woodlands and streams behind the nearby hospital, and usually hit country trails later in the afternoon for another search for small game.

Come to think about it, Winnie’s better behaved than a lot of neighborhood kids. But no matter, Grumpy Neighbor, because watching her trot by while not being on a leash offends your sensibilities.

Still, we’re reasonable, so when you yelled through your screen door the other day that dogs are supposed to be on leashes, we researched the law to be sure that our recall was right. And it is. There is no law (at least where we live, your results may vary) specifying that dogs are to be kept on a leash. Instead, our local ordinance – like many – only prohibits dogs from running at large (and owners not cleaning up after them, but that’s another story).

But is Winnie “running at large” when she trots by with us right behind her, simply because she is not leashed? A very good question, deserving a look at what “running at large” is all about… which brings us to a mother suing her daughter over the misadventures of a three-legged goat. And, no, we did not make this up.

Moore v. Spencer, Case No. 06 CA 830 (Ct.App. Carroll Co., Sept. 12, 2007), 2007 Ohio App. LEXIS 4272. Susan and Wayne Moore were Floridians on a Christmas visit to their daughter and son-in-law in Ohio. Susan brought her puppy, a Cairn terrier (whom we’ll refer to as “Fido,” his actual name not being recorded in the decision). One morning, Susan and her daughter, Laura, went outside with the dog. Laura decided to let Marrif, her three-legged pet goat, out of its enclosure to play with the puppy. The goat and Fido had not previously met, but Laura assured her mother that her goat played well with her friends’ dogs.

It was not to be. Instead of being friendly, Fido began to bark aggressively at Marrif the goat, and in response, the goat postured as though she intended to butt the plucky pup half way back to the Sunshine State. Susan swooped in to pick up the dog before it learned a sorry lesson from a three-legged goat, but as she bent down to grab her hound, Marrif rammed Susan’s right eye with her horn. Susan suffered significant injuries as a result.

This being America and all, Susan and Wayne promptly sued their own daughter and son-in-law. The kids subsequently won summary judgment after the trial court found that Susan had assumed the risk of her injury. Susan and Wayne appealed.

Held: Susan had no claim against her kids or the kid. She argued that her daughter and son-in-law were responsible because they were in violation of O.R.C. § 951.02. She also claimed that the evidence did not establish that she had assumed the risk.

Section 951.02 of the Ohio Revised Code provides that “no person, who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, or geese, shall permit them to run at large in the public road, highway, street, lane, or alley, or upon unenclosed land…” Susan complained that that was exactly what Laura’s goat had been doing at the time of Susan’s injury, running at large. Because of this statutory violation, Susan contended, Laura was negligent per se, that is, negligent as a matter of law with no further showing of duty or breach necessary. For good measure, Susan alleged regular negligence as well, arguing that because the goat was loose and not penned or tied, Laura had violated the duty of care she owed to Susan when she released Marrif.

Marrif, however, was not “running at large” for purposes of the statute by its own terms, the Court ruled. The goat was on Laura’s property, not public property, at the time of the incident. The Court had previously defined “running at large” in a case concerning a dog, holding that “a dog is at large when a vagrant, when it runs at will, when it is absolutely beyond control or call and is acting on its own initiative, and under circumstances where there is no connection, physical or sympathetic, between the dog and the master…” A dog on its master’s premises is not a vagrant and is not running at large.

The Court said that O.R.C. 951.02 was “designed to prevent trespass by animals and was not to be for the benefit of highway travelers.” Negligence per se is only applicable in trespassing cases. Accordingly, if trespass is not at issue, a plaintiff must plead and establish negligence as it may otherwise arise from the ownership of a domestic animal. Susan admitted that the goat was on Laura’s own property at the time of the incident. Based on Susan’s own testimony, her reliance on O.R.C. 951.02 was misplaced.

Because she could not establish that her daughter violated a statute, and thus was negligent per se, Susan had to prove the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. To be sure, Laura owed her mother, who was her social guest, the duty to “exercise ordinary care not to cause injury by any act of the host or by any activities carried on by the host while the guest is on the premises… and to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.” However, Laura was not an insurer her guest’s safety.

In negligence cases raised against the owners of animals, liability is customarily determined by assessing whether the owner could have reasonably anticipated the event that resulted in injury. Here, nothing in the record established that Laura knew the tree-legged Marrif to be “a dangerous, aggressive or otherwise mischievous domestic animal.” Here, the Court observed, it appeared that the puppy Fido’s aggressive bark led to the escalation that resulted in the accident, not any depraved nature on the part of the goat.

Susan had visited her daughter’s property about once a year for about six years before the incident, and she admitted she never saw the goat act in an aggressive manner before. While she never saw the goat running loose unless Laura took it out, on a prior occasion they took Marrif for a walk up the road on a leash.

Based on the undisputed evidence, the Court said, it found that while Laura had a duty to exercise ordinary care and to warn of any known dangers on the premises, not a single fact tended to show that she could have reasonably anticipated this incident and her mother’s injury. Thus, she was not negligent.

– Tom Root


Case of the Day – Monday, May 7, 2018


lawsuit151105The Walls never imagined that when they bought the overgrown half-acre next to the old church that they were buying boundary trouble. But as soon as Mr. Wall started clearing the trees and brush, the parishioners next door at the Springfield Missionary Baptist Church starting complaining that he was trespassing against them.

Being a careful kind of guy, Mr. Wall stopped until he could have an expert check it out. It turned out he wasn’t on the Church’s land, so he kept clearing the land. The Church was unwilling to forgive him his trespasses. It sued, arguing that while maybe it was the Walls’ land (which would mean he was not trespassing), the Church had acquired it over the years by adverse possession (which meant that he was).

The Walls moved for summary judgment, arguing that there was no way the Church’s claim could bear fruit, and asking the trial court to throw the case into the proverbial fire. There were simply no facts, Mr. Wall claimed, supporting the congregants’ claims. Part of the Walls’ claim was that the area was so overgrown – sort of a micro-wilderness – it would have been impossible for the faithful to have wandered in it enough to possess the disputed land within the meaning of adverse possession law.

When a party files for summary judgment, it is incumbent on the other side to show with affidavits and other documentary evidence that genuine questions of fact exist. Here, the Church opposed the Walls’ motion with three affidavits of long-time members that seemed to be pretty much “cookie-cutter” claims that the Church had openly, continuously and hostilely possessed the disputed land for years.

The trial court wasn’t impressed: it threw out the affidavits because the witnesses didn’t adequately describe a boundary fence on the disputed property or even claim that they were familiar with the boundaries. The Court of Appeals, however, reversed – it found that the affidavits were detailed enough to show that a real question existed whether the Church had possessed some of the Walls’ property.

But then on rehearing, the Court reversed its own reversal, concluding that the affidavits permitted two equally reasonable inferences as to whether the fence was located on the neighboring landowners’ property. That being the case, the Court said, the affidavits did not create a genuine issue of material fact warranting submission of the case to the jury. Someone could only speculate or guess whether the fence was located on the neighboring landowners’ property or on the church property, and the court would not let the Church continue to assault Mr. Wall’s title to the property over such tottering facts.

cutter151105The moral to the story: it’s never a good idea to file conclusory affidavits. Detail is good, and the more facts you can aver, the better. Here, the Church’s lawyer wrote some mirror-image affidavits that were short enough on fact and long enough on conclusion (and confusion) that the Church got its case tossed.

Springfield Missionary Baptist Church v. Wall, 993 So.2d 469 (Ala.Civ.App. 2008). Springfield Missionary Baptist Church owned land next to a half-acre parcel owned by Robert and Melissa Wall. Robert began clearing the land when the Church contacted him, contending that he had torn down a boundary-line fence and some trees on Church property. Concerned about the allegation, he double-checked the boundary line and determined that he had not crossed it. He then continued with his clearing.

The Church sued the Walls to quiet title to a portion of the Walls’ property. The Walls moved for a summary judgment, arguing that the Church’s deed did not give it title to the disputed strip of land, as the Church had alleged in its complaint, and that, even if the Church was arguing that the fence it claimed had since been destroyed once encroached onto the Walls’ property such that it could claim adverse possession of a portion of the Walls’ property up to that fence, neither of the surveyors who had surveyed the properties and determined the boundary line had indicated an encroachment of any kind on either survey.

The Walls also argued that their property had been “overgrown” and heavily wooded at the time it was purchased in November 2005 and that, because it was in such a condition, no part of it had been susceptible to being used in a manner that could establish adverse possession of any part of the property. The Church countered that the fence that the Walls had destroyed had served as a boundary line between the two properties. It said it had used the property up to the fence as a parking lot and that it had used the area up to the fence for more than 60 years, thus establishing adverse possession of the disputed “strip.”

The Church submitted the affidavits of three long-time church members. In nearly identical affidavits, two of them said they had been parishioners since 1928 and 1934, respectively. Both said that the Church has claimed ownership the property encompassed by the legal description set out in the 1995 survey, and the Church had in continuous, actual, open, notorious, and peaceful possession of said land from at least the year 1928 to the present time. Regarding the fence, they both said it had been located on the property as long as they could remember. A second affidavit executed in opposition to the Walls’ motion for a summary judgment said the Church had been in its present location for over 20 years and that she has been a member of the church for over 20 years. The third member’s affidavit said the old fence that was removed by [the Walls] had been in place as long as [I] can remember and served as the boundary line.” According to her, “the church parking lot went all the way to the fence line,” and that she had walked the boundary line marked by the fence many times.

The trial court struck the affidavits submitted by the Church on the grounds that the affidavits only stated conclusions regarding adverse possession instead of making statements of fact that would support a conclusion that the Church had adversely possessed the disputed property. It held that the affidavits failed to adequately describe the fence and because the affiants failed to testify that they were familiar with the legal boundary line of the property. The trial court’s judgment, in addition to striking the affidavits, determined that the church had failed to provide substantial evidence of an encroachment on the Walls’ property.

The trial court granted summary judgment in favor of the Walls.

The Church appealed, arguing that it presented substantial evidence creating a genuine issue of material fact and thus presented sufficient evidence to preclude the entry of the summary judgment.

Answer: The part where you claimed to the neighbors' property.

Answer: The part where the Church said to the Walls “thou shall not clear your property because it really belongs to us.”

Held: The Court of Civil Appeals reversed the trial court in a decision in September 2007, but then, in January 2008, reversed its reversal, upholding the trial court. The Court of Appeals ultimately held that the summary judgment affidavits submitted by church members did not present solely conclusory statements so as to warrant striking the affidavits in their entirety. However, the affidavits didn’t create a controversy that required the case to go to the jury. The affidavits permitted two equally reasonable inferences as to whether the fence was located on the neighboring landowners’ property, leaving a fact finder to only speculate or guess whether the fence was located on the neighboring landowners’ property.

The Court observed that it was only where evidence points equally to inferences both favorable and unfavorable to the party moving for summary judgment that it lacks probative value, and its use to support one inference more than another, when in fact it will support both with equal plausibility, becomes mere conjecture and speculation.

– Tom Root