Case of the Day – Monday, March 29, 2021


There aren’t any winners in today’s neighbor-aggravating-neighbor case, one which had its genesis in one neighbor deciding that encroaching tree branches meant he could hack the trees – which stood on his neighbor’s land – back to mere stumps.

Things fell apart from there. The neighbors alleged two more atrocities in the ensuing year, and they blamed the tree hacker, because… well, why not? The Court, I think, was all too credulous, partly because the tree-cutter was not a native English speaker and was too easily dismissed for that reason.

I suspect that because the all-too-clear video of one altercation has Craig, who portrayed himself as the victim to the court, calling Mr. Cheung things – such as “f—face” – that would have gotten Craig’s teeth relocated to his intestines in any midwestern bar. And he told Mr. Cheung that he was under arrest, a claim that I would have found amusing. But then, I have three years of law school and many more of law practice behind. Mr. Cheung is an immigrant, and may well come from a place where arbitrary arrest is the rule rather than the exception.

Old Craig did not seem terribly rattled by Mr. Cheung’s alleged threat to kill him, and as a threat – if that’s what it was – it was dishwater weak.

The wily Confederate raider (whose conduct in other quarters was abhorrent, I hasten to add) General Nathan Bedford Forest is widely credited with saying that his guiding tactical principle as “getting there firstest with the mostest.” That’s what Craig and his wife did here, it seems, got to court first with a double-barreled assault that the neophyte Hogan Cheung was helpless to fend off.

Still, had Hogan only been a faithful treeandneighborlawblog reader, he would have been well aware of the Massachusetts Rule, and only cut the offending branches to the fence line. And all of the ensuing unpleasantness could have been avoided.

Stolarczyk v. Cheung, 2019 Cal. App. Unpub. LEXIS 2271 (Ct.App. 1st Dist., March 28, 2019). Craig and Shana Stolarczyk and their two young children live on a property that adjoins the parcel on which Hogan Cheung, his wife, two small children, and mother-in-law live in San Mateo. A fence that runs between the Stolarczyks’ backyard and Cheung’s side yard.

The Stolarczyks complained that Hogan Cheung had cut down two trees on their side of the fence a few years ago. Matters escalated from there into general ugliness. At one point, Craig and Shana said, someone dumped gasoline on their backyard, with a dribble that seemed to run from the dump location to the fence. Hogan denied having done so.

Craig’s and Shana’s landlord lived next door. Being aware of the problems, he installed a security camera on his own property that took in the Stolarczyks’ and Cheungs’ backyards. The camera recorded, among other things, a verbal altercation between Craig and Hogan over the camera installation. Craig taunted Hogan with obscenities. Hogan asked Craig to take the camera down. When Craig refused, Hogan covered the camera lens. Craig then told Hogan he was under arrest followed by the same vile epithet first used to address him. Hogan asked Craig if he was threatening him. Craig again told Hogan that he was under arrest, and Hogan responded, “That’s fine, thank you. And I will always come back for you.”

Craig asked Hogan if he ‘want[ed] to do something?” Hogan said, “I already did something.” Craig accused Hogan of pouring gasoline on his yard, to which Hogan replied, “No one put gas, you put your gas and you[‘re] blaming it on people.” Craig asked Hogan if he “want[ed] to settle it,” to which Hogan responded, “You don’t need to settle it, you’re dead.” Laughing, Craig told Hogan he was going to call the police because he was just threatened.

Hogan admitted he cut down overgrown trees planted in the Stolarczyks’ backyard in March 2016. Prior to cutting the trees, Hogan twice requested the Stolarczyks’ landlord manage the trees to no avail. According to Hogan, the trees grew fast, crossed the fence by three feet to four feet, and left limbs over his house and satellite dish. In addition, noise from the trees swaying in the wind and scraping and rubbing against the walls of his house made it difficult to sleep. Hogan stated he did not cut down the trees completely, only the portions rubbing against his house that were overgrown.

Hogan denied pouring gasoline in the Stolarczyks’ yard, and he said he placed tape over the camera lens because his wife was afraid, seeing the camera as “a really bad invasion looking into my house in the bathroom[], whatever [his wife] was doing.” He acknowledged he called the police about the camera before he taped over it and that an officer told him not to touch it. Prior to covering it, he also asked the Stolarczyks to take it down but they threatened and cursed him. Addressing the “you’re dead” statement he made to Craig, Hogan explained that Craig and his companion were cursing and provoking him, that his English was not “too good,” and he did not know what to say. He said his comment was not a threat but his way to end the conversation and signal he no longer wanted to talk. Hogan denied ever threatening to kill Craig.

In 2016, the Stolarczyks suspected herbicide was dumped over the fence into their yard, and in July 2017, Craig was overwhelmed by the smell of gasoline in his backyard. He said he smelled gas in the soil all along the fence line and observed discolored and foul-smelling mulch. The fire department confirmed the presence of a gasoline odor and doused the area with water.

The Stolarczyks filed a petition for a civil harassment restraining order against Hogan Cheung the next month.

The trial court acknowledged Hogan’s right to reasonably trim a neighbor’s trees that cross into his property but held he was not entitled to simply cut off the foliage to a point below the fence line. The court also noted the ongoing and escalating nature of the dispute, and found Hogan Cheung to be “not the most believable witness” ever to appear in court. The court found his explanation that he did not understand what he was saying on the video to be “ludicrous” and did not see him as a victim in any way. Based on the video, the court found Hogan was self-confident and assertive when he taped over the camera, which the court said the property owner had every right to place on his property. Nothing suggested the camera was positioned to film the interior of Hogan Cheung’s home. With respect to the chemicals on their property, the court found it was “a reasonable inference to draw that someone else is responsible for that and I think that [the Stolarczyks’] concerns are legitimate that [Hogan Cheung was] responsible for that… I think without question, it has been sufficiently proven that Mr. Cheung damaged their property. He vandalized their property. There is a reasonable inference to be drawn, and it’s for that issue I am still going to issue a restraining order.”

The order required Hogan Cheung to stay five yards away from the Stolarczyks and to refrain from harassing or contacting them, or destroying their personal property. Mr. Cheung appeals.

Held: The restraining order was upheld.

Under Section 527.6 of the California Code of Civil Practice, a person who has suffered harassment… may seek a temporary restraining order and an order after hearing prohibiting harassment.” Harassment is “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.”

Hogan Cheung argued the court erred in granting the restraining order because the Stolarczyks failed to establish several of the required elements of Section 527.6 by clear and convincing evidence. In particular, he contends the Stolarczyks failed to prove his conduct served no legitimate purposes, caused them substantial emotional distress, or posed any risk of future harm.

The Court of Appeals rejected his argument. “We find no merit to Cheung’s broad contention that his version of what happened was ‘equally likely’ as the Stolarczyks’ and did not amount to harassment.” Hogan claimed the Stolarczyks failed to prove his acts served no legitimate purpose: he said his trimming trees encroaching on his property and covering a surveillance camera directed towards his house were lawful acts with legitimate purposes. But Hogan Cheung cut the trees below the fence line, and not just those portions extending into his property. Also, the video camera was neither located on the Cheung property “nor trained on the inner sanctum of Cheung’s house.” It hardly help Hogan’s case that he admitted that he was told by police not to touch the camera but did so anyway. “All of this evidence,” the Court said, “supports an implied finding that Cheung’s acts served no legitimate purpose.”

Hogan also claimed his conduct did not cause the Stolarczyks substantial emotional distress. In fact, the trial court rebuked Craig for behaving badly, describing his behavior in the video as “antagonistic and sarcastic and profane.” Nonetheless, the appellate court said, the petition for a restraining order was not filed solely based upon the camera incident nor was Craig the sole petitioner. Despite Craig’s laughter and potty-mouthed taunting he displayed that evening, the Court ruled, the “trial court could reasonably infer that both Craig and Shana suffered substantial emotional distress from having their trees chopped down and the debris left in their yard, and from having chemicals poured into their backyard where their small children play.”

The record likewise permitted the finding of likely future harm, supporting “the conclusion that a restraining order was necessary to prevent bad acts from continuing into the future. Cheung initially chopped down the Stolarczyks’ trees in March 2016; the Stolarczyks smelled gasoline along their fence line in July 2017; the altercation over the camera occurred in August 2017; and by the time of the hearing in September 2017, the trees had regrown to twice the height of the fence.” The dispute had not resolved itself in over a year, and the trees were growing large again. “Because we’re talking about trees that were cut in 2016, and Mr. Cheung still, it would appear, has issues with the fact that these trees are on his neighbor’s property and continue to grow and grow tall,” the Court said, the record supported a finding of threat of future harm.

– Tom Root


Case of the Day – Friday, March 26, 2021


I don’t know how, but somehow I managed to stay awake in Constitutional Law, despite the fact that the first-year law class was right after lunch in a too-warm lecture hall. My alertness undoubtedly is why I so well Justice Potter Stewart’s concurring opinion in the otherwise unremarkable obscenity case Jacobellis v. Ohio.

The Justices were wrestling with how best to craft a working definition of obscenity against which to judge a triple-X movie reel confiscated from alleged porn purveyor Nico Jacobellis. Justice Potter Stewart knew better than to waste time conjuring up limitations on the meaning of “obscenity.” In his now-famous concurrence, he declared that

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Justice Stewart’s verbal frustration with an evanescent standard came to mind last night when I got a call from long-time reader Wendy Whist, who was being driven to distraction by the neighbor’s dogs. Wendy lives on a quiet residential street in the sleepy little Ohio town of Snoreburg. Well, it was quiet and sleepy, until neighbor Bertha Barkley acquired a pair of noisy little barkmeisters.

It may just be my perception (driven no doubt by the pair of mini-noisemakers my neighbor Ann leads past my house several times a day), but it seems to me that the smaller the dog, the more annoying the bark. That is certainly the case for Bertha’s little snack-dogs: she leaves the pint-sized yappers outside all day in her fenced-in back yard. Wendy reports that the dogs bark at intruders, clouds, insects, leaves, grass, trees, the air, the moon, the sun, light, dark… you get the idea. Wendy says the cacophony is incessant.

When Wendy complained to her neighbor, Bertha – whose disdain for others makes her much more cat-like than dog-like – retorted that the dogs were in a fenced-in yard, so there was not a thing Wendy could do about the noise. When the neighbor on the other side of Bertha’s place called the police, the responding officer said that because the dogs were fenced in behind Bertha’s place, there was nothing law enforcement could do.

Wendy called me because I write about tree law. Trees have bark. Dogs bark. It’s a logical connection.

The police officer was mistaken. Like many towns, Snoreburg has an ordinance that prohibits people from “keep[ing] or harbor[ing] any animal or fowl in the Municipality which frequently create unreasonably loud and disturbing noises of such character, intensity, and duration as to disturb the peace, quiet and good order of the Municipality.” The ordinance makes the first offense a minor misdemeanor. For a second offense within two years, jail time and an order to get rid of the barking dogs (or chickens, as the case may be) may be imposed.

I suggested that the next time the nice policeman is called, point out the ordinance to him and demand politely that he go and do his best endeavor (which in this case would be to cite Bertha and her dogs).

But the whole episode set me to wondering. This blog’s approach to tree and neighbor law is much more civil and less criminal than just getting your neighbor locked up. Could Bertha’s continual and continuous barking (OK, it’s really her dogs making the noise, but it’s hard to keep Bertha’s uncivil attitude separate from her canines’ caterwauling) constitute a nuisance? Could the long-suffering Wendy sue Bertha, seeking an order to that she abate the nuisance, which is legalese for “shut the dogs up?” Those musings reminded me of Potty Stewart wrestling with the definition of obscenity in Jacobellis. At what point does the barking cross that fuzzy line between mere irritation and legally-actionable annoyance?

The court in today’s case grappled with that question. Like Justice Stewart, the panel of appellate judges eschewed drawing a bright line. Instead, they delivered the usual nuisance-law mush that “the amount of annoyance or inconvenience will constitute a legal injury resulting in actual damage, being a question of degree, is dependent on varying circumstances, cannot be precisely defined, and must be left to the good sense and sound discretion of the tribunal called upon to act.”

But that being said, the appellate judges held, here the defendants’ four dogs had clearly barked themselves well over that line, indistinct though it may be. The Court of Appeals said of nuisance that ‘they know it when they hear it, and the dogs’ barking was clearly it.’

Zang v. Engle, Case No. 00AP-290 (Ct.App. Franklin Co., Sept. 19, 2000) 2000 Ohio App. LEXIS 4222, 2000 WL 1341326. Charles Zang and his family lived next door to the Engles, who owned four dogs. Charlie testified that since they moved into their house in 1997, the dogs were outside and barked continuously. He could hear the dogs barking from inside his house, both with the windows open and closed. He described the barking in the two years prior to trial as extreme, excessive, and loud, barking that at times affected his ability to sleep, interrupted meals, interfered with phone calls, television watching, and entertaining. Charlie, who worked from home, had to move his office from the back of his home to the front, yet he still at times heard the barking.

Ms. Zang said that it affected her ability to concentrate, it caused her to become “more stressed out” when the dogs were out and barking excessively, and it affected her mood when she entertained guests. Id. at 150-151. She has not been able to relax, and the barking has interrupted her sleep. She said, “We find that there are times when we are trying to have a normal dinner conversation and the dogs come out barking and we become so frustrated and so upset because we can’t do anything about that that we have to go and shut the windows, or we have felt on many occasions that we don’t want to necessarily be at home and that we will just leave, just to get away.”

The barking had gone on regularly over the past couple of years. Charlie kept a log of the dog barking. Entries were made almost every day from mid-December, 1997, to mid-March 1999. Most days, the dogs were described as barking continuously for at least fifteen minutes up to over one hour. The remaining time the dogs were out, they barked periodically. Some of the barking occurred around 11 p.m. and 12 a.m. A lot of the barking was during the evening hours of 5 to 6 p.m. However, the logs as whole show that the dogs were outside and barking at various times.

Charlie sued the Engles, claiming that barking dogs constituted a nuisance. The trial court agreed and ordered the Engles to abate the nuisance. The Engles appealed.

Held: The barking dogs constituted an absolute nuisance.

An absolute nuisance, for which strict liability (or liability without fault) is imposed by law, is a civil wrong arising or resulting from the invasion of a legally protected interest, and consisting of unreasonable interference with the use and enjoyment of the property of another. It is the doing of anything or the permitting of anything under one’s control or direction to be done without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his legal rights which results in injury to another.

A private nuisance, on the other hand, involves the invasion of the private interest in the use and enjoyment of land. The law of private nuisance is a law of degree, and it generally turns on the factual question of whether the use to which the property is put is a reasonable use under the circumstances and whether there is an appreciable, substantial, tangible injury resulting in actual material and physical discomfort. What amount of annoyance or inconvenience will constitute a legal injury resulting in actual damage, being a question of degree, is dependent on varying circumstances, cannot be precisely defined, and must be left to the good sense and sound discretion of the tribunal called upon to act.

To entitle the Zangs to recover damages for a nuisance, it is not necessary that they be driven from their home or that the Engles create a positive unhealthy condition. Instead, it is enough that the Zangs’ enjoyment of life and property is rendered uncomfortable. In so determining, a trial court must look at what persons of ordinary tastes and sensibilities would regard as an inconvenience or interference materially affecting their physical comfort.

Given all of the facts, the Court held, “there was sufficient competent, credible evidence to support a finding of a private nuisance.”

The permanent injunction issued by the trial court directed in part that the Engles are “permanently enjoined and restrained from permitting any of the dogs they own or harbor, to bark in the manner described in the following paragraph, while said dogs are outside their residence… All parties understand that an infrequent bark is not what this permanent injunction is enjoining; rather, the intent of this Permanent Injunction is to restrain and enjoin the Engles’ dogs from creating an unreasonable amount of noise so as to interfere with the peace, quiet and normal enjoyment to which the Zangs are entitled in the use of their residence… The Engles are to obtain an anti-barking device for the dogs.”

The Court of Appeals held that the injunction was enforceable and proper. “The law of nuisance,” the Court held, “is a law of degree and reasonableness. It does not follow then that an injunction cannot issue which addresses the exact nuisance found to exist. Here, the nuisance is dog barking. While the amount of barking that may be found excessive cannot be measured exactly, there is sufficient evidence in the record as to dog barking that can be looked to if enforcement of the injunction is necessary.”

– Tom Root


Case of the Day – Thursday, March 25, 2021


My first brush with the law of trespass came at the age of 5 or so, when I learned from a Bear of Little Brain that a sign in the Hundred-Acre Wood that said, “Trespassers Will-“ was really shorthand for “Trespassers William,” who had once lived there. Of course, as I now know, “Trespassers William” is an indie rock band. Growing up is no fun.

Since the time I was compelled to grow up, I have seen countless “no trespassing” signs on fencerows, on gates, freestanding by driveways, and tacked to front doors. The signs always sort of troubled me. As everyone knows, a trespass is an unauthorized entry upon the land of another even if no damage is done or injury is slight. To me, a sign prohibiting trespassing implied that absent the sign, trespassing was fine.

If I cut across my neighbor’s yard to get to the new Dunkin’ Donuts before all the crullers are gone, I have trespassed whether there’s a sign or not, or whether I buy him some crullers or not. If he posts a sign along my increasingly well-worn path, does it gain him anything?

The law, as always, provides us with an answer: maybe.

Jimmy Bob Christensen, sadly enough, came up on the wrong side of that “maybe.” Being a man who liked his privacy, Jimmy Bob posted “No Trespassing” signs at the far end of the 40-foot gravel driveway leading to his rather dilapidated mobile home. He liked being alone, for reasons that will become clear.

One day, a couple of local police officers knocked on the door of Jimmy Bob’s neighbor, asking why she had bought out the local Kroger of pseudoephedrine. She said it was for Jimmy Bob, who was busy cooking it into methamphetamine. The police headed down Jimmy Bob’s driveway, past the “No Trespassing” signs, and knocked on his door.

Apparently, manufacturing meth is an odiferous business, and the smell was distinctive. Although Jimmy Bob told them to vamoose and despite lacking a search warrant, the cops entered the mobile home and they found meth and guns.

Generally, a driveway, a front sidewalk, even a door knocker or front doorbell, is enough to give any person with a legitimate reason your implied consent to walk up to the door and seek admission. If it’s someone you don’t want – an encyclopedia salesman or religious proselytizer, perhaps – you can withdraw the implied consent by telling them to leave.

Sometimes, posting a sufficient warning is enough to withdraw your implied consent ahead of time. That’s the purpose of a “No Trespassing” sign. And that was surely what Jimmy Bob intended.

If the police had heeded the sign, they never would have smelled the cooking meth. Jimmy Bob’s lawyer argued that they had trespassed, and that therefore the search was illegal (and nothing they found could be used as evidence).

The issue got to the Tennessee Supreme Court, which held that in this case, “no” really did not mean “no.”

State v. Christensen, 517 S.W.3d 60 (Supreme Court of Tennessee, April 7, 2017): In August 2013, two law enforcement officers drove down James Christensen’s unobstructed driveway, past a “No Trespassing” sign, parked near his residence, and walked up to the front porch. After Christensen opened his door, the officers smelled the odor of methamphetamine being manufactured. They asked Christensen for consent to enter his residence, but he refused and closed the door. They forced the door, and inside the residence found an active methamphetamine lab and several guns.

Prior to trial, the Defendant filed a motion to suppress evidence, claiming that the evidence had been seized as the result of an unlawful search because he had posted “No Trespassing” signs near his driveway. He asserted that the officers’ entry onto his property without a warrant violated the Constitution. After a hearing, the trial court denied the motion.

Held: A “No Trespassing” sign, in and of itself, is not enough to withdraw the implied invitation to anyone with a legitimate purpose to walk up to the front door and knock. The Court said “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers, and peddlers of all kinds. This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave… “

Of course, the Court said, a homeowner may take actions to revoke or otherwise limit that invitation or license. The implicit license enjoyed by police and citizens alike to approach the front doors of homes may be limited or rescinded by clear demonstrations by the homeowners that are “unambiguous and obvious to the casual visitor.”

Unfortunately for Mr. Christensen, a “No Trespassing” sign is not such an “unambiguous and obvious” revocation. The Court said, “in light of the strong social presumption that a visitor to a residential neighborhood can enter the front porch curtilage to knock, we doubt a reasonable, lawful visitor would believe that ‘No Trespassing’ eliminated that presumption in every instance. Every reasonable person knows – even without seeing a “No Trespassing” sign – that one cannot trespass on private property. But that knowledge coexists with knowledge of the equally well-established principle that one may generally enter the curtilage to knock. A reasonable observer could also understand a “No Trespassing” sign as restating the “no-trespassing” principle without thinking it had any bearing on the implicit license to enter the curtilage for social reasons. In a residential context, the intention of the homeowner who posts signs, without more, seems inadequate to revoke the license.”

Of course, the right kind of sign could do the trick, the Court said. “For example, a “No Trespassing” sign posted on a fence encircling a property imparts a different message than the same sign standing alone. And a closed or locked gate, especially in the residential context, imparts more information to the reasonable observer… But nothing aside from their numerosity makes the “No Trespassing” signs in this case particularly distinctive. And numerosity alone does not eliminate the ambiguity noted above. No special facts – like a fence or other physical obstacle-clarified to the reasonable visitor that these signs revoked the license.”

The Court said, “the plain meaning of ‘No Trespassing’ is that it prohibits what people ordinarily think of as trespassing, and does not alter the character of an entry that one would not otherwise think to be a trespass, such as the implied license to approach the homeowner’s door to knock and talk.”

– Tom Root


Case of the Day – Wednesday, March 24, 2021


bearontom141013We saw a notice at church the other day reminding the kids that it was time to start signing up for summer camp, now only a scant several months away. We remember camp fondly – dirt, mosquitoes, busy days leaving us hungry enough to eat a bear. If we could find a bear.

Of course, finding a bear might have been a tall order in the wilds of eastern Ohio several decades ago. There are a lot more roaming the woods these days. But even if we had found an Ursus americanus, locating our prey would have only been half the task. It is a profound truth of life that sometimes you eat the bear, and sometimes the bear eats you. You might ask poor Tim Hilston (although the answer to your question will have to wait until the next life) …

Mr. Hilston understood the bipolar nature of life, or maybe just the literal truth of the expression. Back about the turn of the century (this century), Mr. Hilston was field-dressing an elk carcass when he became a carcass himself at the hands — the paws, maybe — of a couple of grizzly bears.

Kind of a gory way to go… but the story doesn’t end there. After all, this is America. Nothing happens anymore, even in the wild, without someone being blamed for it, and this was no exception. The late Mr. Hilston’s estate promptly sued the State of Montana for letting the bears kill poor Mr. Hilston. The State defended under the Montana Recreational Use Act, saying that wild and hungry bears were a “condition of the land” for which it was not responsible. Mr. Hilston’s survivors argued that the State’s allegedly lousy bear management was a problem having nothing to do with the land.

Popular media attribute the "sometimes you eat the bear ..." line to the 1998 movie, "The Big Lebowski ..."

Popular media attribute the “sometimes you eat the bear …” line to the 1998 movie, “The Big Lebowski …”

The Court said ferae naturae — judges love to use Latin words, these meaning “wild animals” — were as much a condition of the land as a tree or a rock or a stump. Mr. Hilston’s tragic demise was not the State’s fault.

Estate of Hilston ex rel. Hilston v. State, 337 Mont. 302, 160 P.3d 507 (S.Ct. Mont., 2007). Mr. Hilston was hunting elk in the Blackfoot-Clearwater Wildlife Management Area (“BCW”). Mr. Hilston shot an elk, and while he was field dressing the carcass, he was attacked and killed by grizzly bears. State and federal wildlife investigators captured the two grizzly bears responsible for the attack, a 12-year-old female and one cub, and killed them.

The BCW is located in the Blackfoot Valley about 45 miles east of Missoula on state and private land, and is open to public access free of charge. Mr. Hilston’s estate sued the State of Montana for negligent grizzly management. The State filed a motion for summary judgment, and the trial court held it was entitled to judgment as a matter of law under the Recreational Use Immunity Act. Hilston appealed.

... but "Preacher Roe," who pitched for 16 years in the major leagues until 1954, said it first.

… but “Preacher Roe,” who pitched for 16 years in the major leagues in the 40s and 50s, said it first.

Held: Grizzly bears are a “condition of the property” under the Recreational Use Immunity Act (§70-16-302, MCA). Hilston contended that the Act applied only to defects in property, and that that grizzly bear management in the BCW is not a “condition of the property” for which the Act grants immunity. The Court disagreed.

The Act provides that a landowner otherwise qualified under the terms of the Recreational Use Immunity Act owes no duty of care to a user “with respect to the condition of the property, except that the landowner is liable to the person for any injury to person or property for an act or omission that constitutes willful or wanton misconduct …” In this case, there was no dispute that the late Mr. Hilston was using state-owned land for recreational purposes, that his use of the property was gratuitous, and the alleged mismanagement by the State was not willful or wanton. The only question was whether the statute provides immunity for an attack by an indigenous wild animal on the property, and, derivatively, whether wild animals are a “condition of the property” for which a landowner owes no duty of care.

The rule of law is a landowner cannot be held liable for the acts of indigenous wild animals occurring on his or her property unless the landowner has actually reduced the wild animals to possession or control, or introduced a non-indigenous animal into the area. Grizzly bears are wild animals existing upon the property, and, as such, are a “condition of the property” for purposes of Montana’s Recreational Use Immunity Act.

Thus, the State of Montana owed no duty to protect Mr. Hilston from the grizzly bear attack that led to his unfortunate death, and the District Court correctly granted summary judgment for the State.

– Tom Root


Case of the Day – Wednesday, March 23, 2021


bush141014 When the telephone company built a substation on Mr. Doelle’s land, he didn’t beat around the bush. He sued for trespass.

The phone company replied that it intended to take a corner of his place under the doctrine of eminent domain. The trial court agreed the phone company could do so, upheld Mr. Doelle’s claim of trespass, and awarded $300 for the value of the land taken under eminent domain. In addition, the trial court granted Mr. Doelle an extra $400 for “shrubbery support.”

Sounds more like a divorce, doesn’t it? The idea was that Mr. Doelle could screen the substation from his view with a few strategically-placed bushes, and the money was to enable him to plant whatever he wanted.

Despite the trial court’s crafty decision, no one was happy. Mr. D appealed the eminent domain, and the phone company appealed the “shrubbery support” award.

support141014The Court of Appeals cleaned things up. It upheld the trespass and the phone company’s right to take the property for the public good. It approved the $300 value for the land, but it reversed the “shrubbery support.” You see, Mr. Doelle had never asked for trees or shrubs to screen his view of the substation. The trial court has certain inherent powers to fashion an appropriate set of damages for the wrongs brought before it, but the “shrubbery support” award appeared to be based more on the trial court’s sympathy for Mr. Doelle’s visual plight than on any evidence.

Doelle v. Mountain States Tel. & Tel., 872 F.2d 942 (10th Cir. 1989). In this case (which primarily involved questions of easement and eminent domain), Mr. Doelle sued Mountain Bell for trespass, alleging it had put a substation on his property without his permission. Mountain Bell laid claim to a small portion of Mr. Doelle’s property in order to build and maintain a substation. Mountain Bell sued to have him evicted from his property.

The trial court upheld the trespass but found Mr. Doelle hadn’t been damaged. It also awarded Mountain Bell to claim the property for the common good, awarding Mr. Doelle $300 for the value of the land that was taken. The Court then awarded him an additional $400 to install shrubbery to screen his view of the substation, thereby making the intrusion less onerous. Mr. Doelle appealed the eminent domain ruling, and Mountain Bell appealed the $400 in “shrubbery support.”

These are not the Bushes we are talking about.

The Bush family – remember them?  They are not related to the bushes involved in today’s case.

Held: The Court of Appeals upheld the trespass and Mountain Bell’s right to claim the property by eminent domain. However, it reversed the $400 shrubbery award to Mr. Doelle.

The Court observed that Utah’s law of eminent domain does not provide for equitable damages. Rather, the trial court found authority to make the award entirely from its inherent power. Even assuming that the trial court had the equitable power to fashion an appropriate remedy, the Court of Appeals said, Mr. Doelle never sought equitable relief in the form of trees to screen his view of the substation nor presented evidence concerning the cost of planting trees.

While a trial court’s award of damages will not be set aside unless it is clearly erroneous, an award must be based on reasonable inferences rather than on mere sympathy. When damages cannot be fixed with the desired certainty, the proof must be reasonable under the circumstances.

This damage award was not reasonable.

– Tom Root


Case of the Day – Monday, March 22, 2021


After the Virginia Supreme Court decided in Fancher v. Fagella that Linda Landowner has a duty to ensure her trees don’t become a nuisance to her neighbor Arnie Adjacency, you could be forgiven for reasoning that she also has a duty to be sure that her trees don’t fall on Mortimer and Mildred Motorist. After all, a duty to protect others from physical harm ought to rank higher on the hierarchy of social good than keeping Arnie’s retaining wall from collapsing.

One of the beauties of the law, however, is that it often does not make sense. The Virginia Supreme Court had an opportunity to underscore that unsurprising phenomenon when it ruled that Fancher’s departure from the old Virginia Rule of Smith v. Holt didn’t extend to a landowner’s duty to the passing public. When a tree on the front yard dies, decays, and falls in the road, let the driver beware …

Cline v. Dunlora South, LLC, 726 S.E.2d 14 (Supreme Ct. Virginia, 2012). Cline was driving on a public road when a tree fell and crushed the roof of his car. Cline suffered severe and permanent injuries, including fractures of his cervical spine.

The tree was located about 16 feet from the edge of the road, on land owned by Dunlora South. At the time of the mishap, the road was traveled by about 25,000 vehicles per day. The tree, about 25 inches wide, was “dying, dead, and/or rotten” at the time it fell. It had been in this condition for “many years,” the Court said, “and exhibited visible signs of decay, which were open, visible and/or obvious.” According to Cline, the tree’s condition was or should have been known by Dunlora, just as the company should have been aware of the hazards presented by trees being next to the public highway. Cline sued, but the trial court held that Virginia law did not provide for recovery of personal injury damages caused by a private tree falling on a public highway. Cline appealed, and the case reached the Virginia Supreme Court.

Another Latin phrase ... this one more familiar ...

Another Latin phrase … this one more familiar ...

Held: The Court held that, even after Fancher v. Fagella, a private landowner was not responsible for damages to a person using a public highway, when that damage was caused by a tree located on the landowner’s property. At common lawthat is, law imposed and changed incrementally by decisions handed down judicial decision – a landowner owed no duty to those outside the land with respect to natural conditions existing on the land, regardless of the danger posed by such dangerous conditions. Although Virginia courts had never recognized that principles of ordinary negligence apply to natural conditions on land, in Smith v. Holt, an adjoining landowner was held to have a nuisance cause of action if an injury was inflicted by the protrusion of roots from a noxious tree or plant on the property of such adjoining landowner. The Court observed that the duty it recognized in Smith v. Holt was “in accord with the broad common law maxim: ‘sic utere tuo ut alienum non laedas’ – one must so use his own rights as not to infringe upon the rights of another … The principle of sic utere precludes use of land so as to injure the property of another.”

It was this principle that gave birth to the “Virginia Rule,” a splitting of the difference between the Massachusetts Rule and the Hawaii Rule.

Fancher changed a lot, the Court admitted. It modified Smith’sVirginia rule” by discarding the subjective requirement of “noxious” nature, and imposing a limited duty on owners of adjoining residential lots to protect against actual or imminent injury to property caused by intruding branches and roots. Fancher articulated a rule allowing relief where trees encroaching onto the land of another begin to constitute a nuisance, that is, when they encroach upon the property of another such that they cause actual harm or the imminent danger of actual harm. Fancher thus recognized that a trial court must determine whether circumstances are sufficient to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots.

We bet the driver heard this one ...

We bet the driver heard this one …

The Court held here that the Fancher rule imposing a duty on a tree owner to protect a neighbor’s land from damage caused by the tree, only “addresses a narrow category of actions arising from nuisance caused by the encroachment of vegetation onto adjoining improved lands.” The Fancher and Smith duties are dramatically different than imposing a duty on a landowner to monitor the natural decline of his or her trees adjacent to a roadway. Fancher does not impose a duty on a landowner to inspect and cut down sickly trees that have the possibility of falling on a public roadway and inflicting injury.

Instead, the duty owed by adjoining property owners is to not do anything to make the highway more dangerous than it would be in its natural state. In this case, no one suggested that Dunlora engaged in any affirmative act that made its property adjoining the highway different than it had been in its natural state. Cline’s complaint was that Dunlora failed to act, and Virginia common law tort principles do not hold that a landowner owes a duty to take affirmative acts to protect travelers on an adjoining public roadway from natural conditions on his or her land.

– Tom Root


Case of the Day – Friday, March 19, 2021


Crunch. And after the tree falls, the insurance company adds insult to injury.

Crunch. After the tree falls, the insurance company adds insult to injury.

An unhappy homeowner from urban Cincinnati, Ohio – we’ll call her Sylvia Glade – wrote to us about her neighbor’s oak tree. It seems that one of the oak’s branches was overhanging Sylvia’s home. The branch constantly dropped sticks, and the tree itself has been shedding branches regularly. As far back as the late 1990s, Sylvia thought the tree was dangerous and began asking her neighbor, whom we’ll call Elouise, to do something about it. A tree expert whom Sylvia hired five years ago to inspect her own trees agreed, saying the big oak should go.

The elderly Elouise was unmoved. She gave Sylvia permission to cut down the tree (as long as Sylvia paid for it), but then denied her the right to enter the property to do so. With the property line hard up against Sylvia’s house, Sylvia couldn’t even get a ladder under the branch to cut it away without Elouise’s cooperation (which, it is obvious by now, was not to be forthcoming).

But there’s good news: Sylvia doesn’t have to worry about that branch anymore. Sadly, there’s bad news, too: the branch is no longer a hazard because it fell on a windy day, crushing two floors of Sylvia’s house. Her neighbor’s insurance carrier said, “Oops, looks like an act of God! Not our responsibility.” Sylvia thinks God should be left out of things, because the branch — which broke right at the trunk — looked very decayed.

Elouise’s insurance company says Elouise had no idea the tree wasn’t healthy. “She didn’t know, so we don’t owe,” the company’s mantra seems to be. Sylvia complains she told the neighbor on many occasions, and even the neighbor admits she saw decayed branches that had fallen from the tree. Once, Elouise even hired Sylvia’s son to haul away some large branches that the old oak shed in a windstorm. Sylvia asked us what duty of care Elouise owed her under Ohio law.

We start with the evolution of the Massachusetts Rule. Originally, the Rule held that a homeowner usually had no remedy against overhanging branches, other than his or her right to trim the branch back to the boundary line. That Rule has been limited in the last decade or so, notably in the Virginia Supreme Court case of Fancher v. Faglia (2007) and the North Dakota Supreme Court holding in Herring v. Lisbon Partners Credit Fund, Ltd. (2012). Both of those courts ruled that while a property owner might be limited to self-help where an encroaching tree was only doing what trees do – that is, dropping leaves, nuts, berries, seedpods and twigs – where a tree becomes a nuisance, the owner of the tree is liable for removing it.

The relevant Ohio case is Nationwide Insurance Co. v. Jordan. In that case, Mrs. Jordan’s big maple tree fell, damaging the neighbors’ place. They sued Mrs. Jordan, claiming the tree trespassed.

No dice, the Court said. The trespass claim would only work if the tree were an absolute nuisance, and that isn’t the case. Mrs. Jordan would be liable, the Court held, if she actually knew the tree was dangerous or if she reasonably should have known the tree was dangerous. The Court decided Mrs. Jordan has neither kind of knowledge. The neighbor, although vociferous in her condemnation of the tree to anyone else in earshot, admitted that she never complained to Mrs. Jordan about it.

In Sylvia’s case, the insurance company is wrong. It’s not enough that the neighbor says she didn’t know the branch was dangerous. The other half of the question is this “should have known” business. Was Elouise on constructive notice that the tree was dangerous, that is, should she reasonably have known the decay was making the tree unsafe? If Sylvia is right, the evidence will show the neighbor was told many times the tree was a hazard. Elouise had witnessed the tree drop a number of large branches of the previous years. She had to hire Sylvia’s brawny son to clean up the mess. And Sylvia told her about the danger, even agreeing to pay for the removal of the tree herself.

Several Ohio cases (such as Wertz v. Cooper) suggest that neighbor Elouise – being an urban dweller – has a greater duty to inspect her trees than would a country squire. The evidence suggests Elouise had every reason to be concerned about the tree, and thus had a duty to inspect it to be sure it wasn’t about to collapse Sylvia’s house.

claim140414Elouise’s insurance company may want to rethink its position… and start looking for its checkbook.

Nationwide Insurance Company, et al. v. Jordan, 639 N.E.2d 536 (1994). This action arose between adjoining landowners as a result of the falling of a mammoth maple tree. The insurance company, which had paid the damages to its insured’s place, sued for trespass and negligence. The defendant tree owner testified that she had no notice the tree was susceptible to falling. Her tenant likewise testified that she had no notice of the tree’s danger. The defendant’s tree service manager testified that he worked on the property’s trees every two years and that the tree in question was not unsafe less than two years before it fell. The only person to testify to notice that the tree was rotten and likely to fall was the plaintiff’s insured.

The trespass claim arose because the plaintiff maintained that the falling tree trespassed on the insured’s property. The trial court made short work of this, holding that the only way liability could be imposed on Mrs. Jordan without proof of fault would be if the tree were an absolute nuisance. Healthy trees growing on real property, even urban real property, are not absolute nuisances, the trial judge said. Thus, the insurance company had to prove that Mrs. Jordan either knew or had constructive knowledge that the tree was likely to fall. The insurance company couldn’t prove that, so the trial court found for Mrs. Jordan. The insurance company appealed.

A diagram of one modern method of measuring a tree's decay. Elouise had any number of options - some cheap, some costly, some old school, some high-tech - for verifying the health of her big old oak.

A diagram of one modern method of measuring a tree’s decay. Elouise had any number of options – some cheap, some costly, some old school, some high-tech – for verifying the health of her big old oak.

Held: Mrs. Jordan was not liable. The Court said that there was no evidence that Mrs. Jordan actually knew or had any reason to know that the maple tree was in danger of falling. The neighbor complained that the tree’s propensity to fall was obvious to her, but she admitted he never told Mrs. Jordan. The Court observed that “[h]ad the plaintiff conveyed this knowledge to her neighboring landowner, the danger might well have been obviated, or, alternatively, the plaintiff’s hands would be clean and the defendant would have been on notice and resultantly liable for the fall.”

The Court further held that a tree on an owner’s property was not an “absolute nuisance,” and thus the adjoining landowner could not proceed merely upon strict liability against the owner. Instead, the neighbor was required to prove negligence. To recover on a theory of negligence arising out of a falling tree, a plaintiff’s evidence must establish that defendant had actual or constructive notice of patent danger that the tree would fall. Here, Mrs. Jordan had neither actual notice nor constructive notice of the tree’s dangerous condition. Both Mrs. Jordan and her tenant testified that they had no notice of the tree’s danger, Mrs. Jordan’s regular tree trimming contractor worked on the property’s trees every two years and found that the tree in question was not unsafe not more than 24 months before it fell.

The Court ruled in favor of Mrs. Jordan.

– Tom Root