Case of the Day – Thursday, October 3, 2019


Senator Hubert Humphrey once said, “Show me a self-made man – and I’ll show you the horrors of unskilled labor.”

When Farmer Wilson decided to sue his neighbor, demanding after 50 years of not bothering to enforce an agreement on keeping trees bordering his field trimmed that the neighbor clear cut a 40-foot wide swath, he decided to represent himself. After all, it seemed that that lawyering business was just so much talk. Anyone ought to be able to do it…

Well, not just anyone. It turned out that as a lawyer, Farmer Wilson was more a son of the soil than he was a barrister. The heart of Farmer Wilson’s nuisance beef was that the trees cut down the crop yield on his land, because they shaded the field. Reduced to its essence, that was just a claim that he had a right to light, that is, a right to the sun being shaded by his neighbor’s trees. What he was claiming was the easement known as “ancient lights,” the Court said, and “ancient lights” was a doctrine that had been run out of West Virginia.

If that weren’t enough, the Court threw even more shade on Farmer Wilson’s lawsuit. The prior owner of Farmer Wilson’s land had had a deal with the former owner of the next-door property on keeping the bordering trees trimmed. Farmer Wilson candidly admitted he had not tried to enforce the contract for a half century, confidently asserting that this meant his damages had really accumulated.

But what it really meant was that under the West Virginia statute of limitations that applied to nuisance suits, his lawsuit was about 48 years too late.

Farmer Wilson may not have been a self-made man, but his lawsuit was an excellent illustration of the horrors of unskilled labor.

Wilson v. Polino Enterprises, Inc., 2018 W. Va. LEXIS 413, 2018 WL 2277812 (Supreme Ct. of Appeals W.Va., 2018). Farmer Wilson and Polino Enterprises own adjacent properties in Upshur County, West Virginia. The Wilson property borders the Polino land’s western and southern boundaries. Farmer Wilson sued Polino, complaining that the Company had created a nuisance on the western boundary of its property that was damaging his farmland.

Farmer Wilson claimed that that trees on Polino’s side of the property line were nuisances because of “[d]amage to the production (yield and quality) of crops as a result of invasion by roots and shading.” For this alleged crop damage, Farmer Wilson asked for $100 per year for a total of $4,500 from May of 1969 through 2014 when he originally filed the action. He also sought unspecified “labor and equipment cost[s] of removing branches and limbs of trees fallen” on his farmland. Finally, he wanted Polino to remove deer stands placed in trees near the property line because he had “no way of policing the killing of deer” on his property.

Polino filed a motion for summary judgment in the trial court. The Company showed the court letters between the parties regarding the care of boundary areas between the properties. In the letter, Farmer Wilson noted that Polino had previously agreed to his “cutting overhanging limbs and dragging them back to the wooded area” of the Wilson property, but that the proposal would restrict his cutting of tree limbs to those “no higher than 25 to 30 feet from the ground level.” Consequently, Farmer Wilson requested that Polino “clear-cut all the area 40 feet from our fenced border to remove the encroaching limbs and roots of trees from your forested land.” His letter explained that ‘I have neglected enforcement of the agreement between Mr. Robert Woofter[, a previous owner of the Polino property,] and my father. As a result, [I] have suffered economic loss during the past 50 years and [am] suffering economic loss each year in the form of forage corps harvested from the cultivated fields involved.’

In its motion for summary judgment, Polino argued that assuming all of Farmer Wilson’s allegations were true, it was nevertheless entitled to judgment as a matter of law on the nuisance claim. The trial court agreed.

Farmer Wilson appealed.

Held: Polino’s trees were no nuisance.

A private nuisance is a substantial and unreasonable interference with the private use and enjoyment of another’s land.

Abe Lincoln could have been talking about Farmer Wilson, who has a real dummy for a client.

The lower court properly ruled that Farmer Wilson’s nuisance claim was barred by the statute of limitations under West Virginia Code § 55-2-12(a). That section gave a party claiming a nuisance only two years from the time the claim arose to sue.

The Supreme Court even consider the statute of limitations, because it did determined that Farmer Wilson’s rather opaque and do-it-yourself nuisance claim was fatally flawed. His contention, as best the Court could surmise, was that insufficient sunlight caused by overhanging trees on respondent’s property had resulted in his farmland yielding fewer crops. That claim, the Court said, “fails as a matter of law… The common law doctrine of ancient lights has been abolished in West Virginia… Though an adjoining property owner may still establish an easement implied by necessity to light and air, such an easement does not exist here because there is no prior common ownership of the parties’ properties.”

In Cobb v. Daugherty, the court discussed easements of necessity, also called easements by necessity or ways of necessity. Such easements are typically implied to provide access to a landlocked parcel. Easements implied from quasi-easements, also called implied easements or easements by implication, are based on a landowner’s prior use of part of the landowner’s property (the quasi-servient tenement) for the benefit of another portion of the property (the quasi-dominant tenement). Three elements – common ownership, transfer of part of the land (severance), and necessity of some kind – are required in both cases. The fundamental distinction is that easements implied from quasi-easements are based on prior use.

While Cobb recognized that a certain type of an easement to light and air still exists in West Virginia, the Court said, Farmer Wilson did not meet the legal requirements. He had not previously owned the Polino property. Therefore, the Court ruled, “we conclude that the circuit court did not err in awarding respondent judgment as a matter of law with regard to petitioner’s nuisance claim.”

– Tom Root


Case of the Day – Wednesday, October 2, 2019


More than one reader wondered where I was headed yesterday when I wrote about the New Hampshire law of animals ferae naturae. Other than showing you a picture of my dog – always a worthwhile goal, in my book – the blog may not have seemed all that relevant. After all, neighbors, especially urban neighbors, are seldom overrun with wild animals intent of committing mayhem in your back yard.

But, yes, I had a point. As that great philosopher Elvis once said, “I said all that to say all this…” The law of animals ferae naturae translates a bit into “plants ferae naturae.”

In today’s case, the afflicted neighbor, Linda Pesaturo, claimed that her neighbor’s trees were overhanging her property, making her driveway unusable and collapsing her fence. The trees, she complained, were a private nuisance.

The New Hampshire Supreme Court nixed the claim. It pointed out that just as the law of animals ferae naturae required human interference with the animal before making a property owner liable for a resulting nuisance, it was not enough that Linda said the trees caused damage. Unless she could somehow show that neighbor Robbin had somehow interfered with nature in the planting or growth of the pine and maple, the lush and fecund trees.

Tree’s gonna tree.

Pesaturo v. Kinne, 161 N.H. 550, 20 A.3d 284 (Supreme Ct. N.H., 2011). Linda Pesaturo brought a small claims action against her neighbor Robbin Kinne, seeking more than $2,000 in damages because two of Robbin’s trees overhung her property; one limited Linda’s use of her driveway, while the other one damaged her fence.

Robbin moved to have the claim dismissed, arguing that Linda failed to state a claim upon which relief could be granted. The trial court agreed, dismissing Linda’s negligence and nuisance claims.

Linda appealed.

Held: Linda had adequately raised a claim for negligence with respect to one tree, but she failed on the other. Her claim of private nuisance was properly rejected.

It is the common law rule that a landowner is under no affirmative duty to remedy conditions of purely natural origin on his or her land even though they are dangerous or inconvenient to his neighbors. In order to create a legal nuisance, a human act must have contributed to its existence, just as under the law of animals ferae naturae, as held in Belhumeur, a landowner cannot be held liable for the acts of wild animals occurring on his property unless the landowner has actually reduced indigenous wild animals to possession or control, or introduced non-indigenous animals into the area.

But ferae naturae does not apply to plants, such as trees. Instead, the Court ruled, a duty exists on the part of a landowner when it is foreseeable that an injury might occur as a result of the landowner’s actions or inactions. A landowner’s liability may extend beyond the borders of his or her property, and a duty may be present if the landowner’s acts or omissions create a sufficiently foreseeable risk of harm in such a case, where it can be found that the landowner did not use reasonable care in the maintenance and operation of his or her property.

Because there is a foreseeable risk of injury when a tree is decayed or defective, a landowner who knows or should know that his tree is decayed or defective has a duty to maintain the tree to eliminate this dangerous condition. Thus, a landowner who knows or should know that his tree is decayed or defective and fails to maintain the tree reasonably is liable for injuries proximately caused by the tree, even when the harm occurs outside of his property lines. However, a landowner does not have a duty to consistently and constantly check all trees for nonvisible decay. Rather, the manifestation of the tree’s decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.

To recover for negligence, a plaintiff must demonstrate that the defendant has a duty, that he or she breached that duty, and that the breach proximately caused injury to the plaintiff. In this case, Linda’s complaint failed to allege a cause of action for negligence because she had not alleged that Robbin’s trees were decayed or defective, or that Robbin knew that the trees were in such a condition but failed to eliminate the danger to Linda.

But when Linda amended her complaint, which she did after the Robbin filed her defense of failure to state a claim, she sufficiently alleged that defendant knew about Robbin’s oak tree had “swinging, dead limbs” and, thus, that the tree was decayed or defective, thereby imposing a duty upon him to eliminate the condition. The amended complaint also sufficiently alleged that Robbin breached his duty by failing to act and that this breach caused Linda injury by denying her use of her driveway.

But Linda’s claim that Robbin’s pine tree damaged her fence was insufficient. She claimed the tree failed because of “rain, wind, ice and snow,” and because Robbin’s “insufficient management” of his pine tree, limbs broke off and damaged her fence. Her claim was insufficient to establish that the tree was decayed or defective.

– Tom Root


Case of the Day – Tuesday, October 1, 2019


I dimly remember my first-year property law professor teaching us about ferae naturae (wild animals). The cases we studied then had to do with ownership? You shoot a deer bounding over the fields, and it falls for the final time in Farmer Brown’s corn. Who owns the deer?

But what if the deer was not a deer, but a family of fat old woodchucks? As we Midwesterners know, woodchucks don’t get fat by accident. Rather, they do it by ravaging someone’s field. So what if a woodchuck family lived under Farmer Brown’s cornfield year-around, eating tender shoots of corn, timothy hay, and Mrs. Brown’s buttercups and vegetable garden? And when the pickings got slim, the chucks invaded your soybeans (the roots of which they love)?

Farmer Brown knew the furry little woodchucks – diligent destroyers that they are – were ravaging the crops. Shouldn’t he have removed the pests himself, you know, shot them, poisoned them, blown them out of the earth, run them down with a tractor, borrowed a rodent-hating dog like my own stone-cold groundhog slayer, Winnipeg Rocket Riley Root?

The ‘chucks are ferae naturae, wild animals who answer to no one. Still, you might think Farmer Brown had a duty not to let his field be a staging area for rodent terrorism. (America invaded Afghanistan for much the same sin).

That question bedeviled Denny and Shirley Belhumeur, who were stung by what the trial court incorrectly called a “bee’s nest.” C’mon, people, it’s a hive!

Belhumeur v. Zilm, 157 N.H. 233, 949 A.2d 162 (Supreme Ct. N.H., 2008). Dennis and Shirley Belhumeur lived next door to Jason and Jessica Zilm. One day, Dennis got stung several times by some aggressive bees that had swarmed into Denny’s property from their hive in a tree on Jason’s property. Denny sued, claiming that Jason had actual or constructive knowledge of the bees’ existence and aggressive behavior and was negligent in not removing the hive. As well, Denny claimed the bees constituted a private nuisance.

The trial court granted summary judgment to the Jason. Dennis, feeling like he’d been stung again, appealed.

Held: Jason was not liable for wild animals living as a natural occurrence on his property.

The Court held that the buzz is that a landowner is under no affirmative duty to remedy conditions of purely natural origin upon his land, even where the conditions are dangerous or inconvenient to his neighbors. In other words, in order to constitute a nuisance as a matter of law, human action must have contributed to the condition’s existence.

Under the doctrine of animals ferae naturae, the Court said, wild animals are presumed to be owned by no one specifically, but rather by the people generally. This doctrine has spawned a rule of law that 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. New Hampshire does not as a matter of judicial policy impose absolute liability for damage by wild animals.

The doctrine of ferae naturae is actually based upon a reality not appreciably altered by the passage of time; namely, the unpredictability and uncontrollability of wild animals. The doctrine of animals ferae naturae reasonably balances the interests of landowners and the interests of those who may be harmed by the actions of wild animals found on or emanating from the landowners’ property. Here, the bees were wild, and neither Jason nor Jessica had the ability or duty to control them.

Claims for negligence rest primarily upon a violation of some duty owed by the actor to an injured party. Absent a duty, there is no negligence. Duty, the Court said, “is an exceedingly artificial concept, therefore, when charged with determining whether a duty exists in a particular case, courts necessarily encounter the broader, more fundamental question of whether a plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” The decision to impose liability ultimately rests on a judicial determination that the social importance of protecting the plaintiff’s interest outweighs the importance of immunizing the defendant from extended liability. 

It is a sad fact of life that dogs bite and bees sting. There is no social utility in demanding that Jason and Jessica be liable for when it happens.

Denny complained that Jason had actually gotten estimates from tree removal companies, and in so doing, assumed a duty to Denny that he otherwise would not have had. The Court said that while Jason was the bee’s knees for doing so, that did not impose a duty on him to carry through with the job. “In determining how much action is sufficient to create a duty on the part of a person volunteering services, it is necessary to know if conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury.”

– Tom Root


Case of the Day – Monday, September 30, 2019


I found myself wondering the other day, as I mentioned an allegation of trespass in a post, whether we talk about basic garden-variety trespass often enough.  So here we are.

The United States inherited the law of trespass from medieval England.  At common law, a trespass upon land occurred when a person, acting without authority, physically invades or unlawfully enters the premises of another, and damages result (even though the damages may be insignificant).  The entry may be intentional or negligent.  Just about every entry onto the land of another that occurs happens due to negligence, because it requires remarkably little negligence to accomplish a trespass.

I watched a lot of football this past weekend, starting with high school football on Friday night, as my beloved Norwalk Truckers throttled Ontario (the town, not the province) 52-7. Saturday night, my bride of 40 years and I watched our Ohio State Buckeyes – we went to OSU, so we have a right to be Scarlet-and-Gray fans – lay a 48-7 hurt on Nebraska. Yesterday, I was shocked, shocked I tell you, to watch the new Cleveland Brown thoroughly pound the old Cleveland Browns (known for the past 23 years as the Baltimore Ravens) 40-25.  Mighty fine weekend, I’d say.

But because I have football on my mind, let me liken trespass to catching a pass on the inbounds white line. If you deliberately run out of bounds and then catch the pass, the pass is no good. Call it trespass. If you catch one right on the line, and your foot accidentally steps on the white line as you catch it, the pass is no good. It’s still trespass.

If you catch a pass in bounds, and while you’re in the air catching it, a defender wraps you up and carries you out of bounds, however, the pass is complete.  It’s not a trespass.

In other words, you can intentionally trespass. You can negligently trespass. But if your body is deposited on someone else’s land through involuntary means, it’s not a trespass.

Trespass is most commonly asserted by people who have lost trees to a misguided tree cutter taking timber on the wrong side of an unclear or misunderstood property line.  It has also been applied where people took self-help a little too far, and went onto neighboring property to aggressively trim a problem tree.  Trespass has been found where people mistakenly believed they owned the property they had occupied, where a party has negligently caused livestock or water to enter another’s land, and where someone was on the property with permission to cut down certain trees, but cut down trees he had been told to avoid.

Muir v. Ruder, 945 S.W.2d 33 (Court of Appeals of Missouri, Eastern District, 4th Div. 1997). Jim Ruder, a landscaper, agreed to buy trees on the Muirs’ property.  Ruder was to remove the trees, and pay $6.00 a tree.   He also agreed to transplant 120 trees for Muir, and repair any ruts or holes created in the process.   The deal went south, as such deals sometimes do, and the Muirs sued.  They said Ruder had committed trespass by breaking the contract and then entering the property and unlawfully removed about 220 trees.  Ruder said he only took 130 trees, and the rest were stolen by persons unknown.  He admitted he didn’t paid for any trees, fill in ruts or holes, or transplant any trees.  He claimed he told the Muirs he didn’t have the right equipment to move the specific trees they wanted transplanted.

The trial court agreed that Ruder had trespassed, and awarded the Muirs $6,160 in damages.

The Court of Appeals reversed, providing some basic guidance on the law of trespass in the process.  It said the evidence failed to prove the elements of either trespass or conversion.  Common-law trespass, the Court said, is the unauthorized entry by a person upon land of another.  For damages to be awarded for trespass, a plaintiff has to show that the defendant intended to be on the property and that he directly interfered physically with that property.  Removing trees from someone else’s property may also be statutory trespass. A person can wrongfully cut down a tree in two ways, either of which would result in trespass under § 537.340 RSMo.  He can enter the land without permission and cut down the trees. Alternatively, he can enter with the owner’s consent and then exceed the scope of the consent by cutting down trees without permission.

Here, the Court found, Muir – wisely or not – had given Ruder permission to enter his property.  Muir argued that the agreement was broken because landscaper removed the first batch of trees, but did not transplant the trees Muir wanted moved. Ruder testified that he had already removed the first trees before he realized that the trees Muir wanted transplanted were too large for his equipment.  Ruder nevertheless returned to the property for more trees.  Muir said he “objected” when Ruder took the second load before paying for the first load, but he didn’t tell Ruder to leave or to bring the first load of trees back.  Instead, he watched Ruder take the second load, and even had Ruder show him how to bag trees.  The Court said, “One who silently watches another enter upon his land, and then willingly engages him in conversation while standing on the premises, may not later complain of trespass.”

 – Tom Root


Case of the Day – Friday, September 27, 2019


In this tree law gig, I read a lot of cases. After awhile, reading between the lines gets a lot easier.

Today’s case, I decided when I was most of the way through it, was nothing special, just some neighbors who were over-the-top haters of the defendant. The defendant seems like a guy whose crime was that he apparently had the effrontery to move in next door, and then fixed up the place.

The trial court’s long opinion had flushed away most of the plaintiffs’ breathless and frantic complaint – and “flushed” is the correct verb for most of the claims the tin-foil-hatted neighbors made against the defendant– when I got to their claim that defendant Bill Collison had “damaged a maple tree near the property line by shaving the trees directly up from the property line.”

“Holy Massachusetts Rule!” I muttered to myself. Everyone knows that this claim should be summarily tossed, because the Massachusetts Rule is as universally accepted as is turkey at Thanksgiving. Assuming Bill did “shave” the tree at the property line, that’s perfectly within his rights.

Much to my shock, the Court disagreed. It held that the right of “self-help” trimming of encroaching branches is not established in Delaware, and if this court was going to do it, it would not do it on summary judgment. It became obvious to me that whatever else Judge Calvin Scott, Jr., of Newark, Delaware, reads with his morning coffee, it sure isn’t this blog.

It did not take long to find reason to question the Judge’s refusal to grant summary judgment on this issue. In the 1978 Delaware Chancery Court decision Etter v. Marone, the court ruled

At the same time, certain generally accepted principles obtain with regard to encroaching trees or hedges. Regardless of whether encroaching branches or roots constitute a nuisance, a landowner has an absolute right to remove them so long as he does not exceed or go beyond his boundary line in the process. 2 C.J.S. 51, Adjoining Landowners § 52; 1 Am.Jur.2d 775, Adjoining Landowners § 127. He may not go beyond the line and cut or destroy the whole or parts of the plant entirely on another’s land even though the growth may cause him personal inconvenience or discomfort. 2 C.J.S. 51, supra.

So the Judge seems to be wrong: Delaware is firmly in the Massachusetts Rule camp.

Pretty clearly, what with allegations of underground tanks and clogged drainpipes and extreme mental anguish contained in the messy and unsupported complaint, Judge Scott had his hands full. By and large, he acquitted himself masterfully in the opinion, carefully deconstructing the plaintiffs’ complaints. But I’m betting that in about nine weeks, the Judge will be sitting down to a turkey dinner with all the trimmings. When he does, he should reflect that as many of us accept the Massachusetts Rule as will be dining on the same meal that day.

Dayton v. Collison, C.A. No. N17C-08-100 CLS (Super. Ct. Del. Sept. 24, 2019), 2019 Del. Super. LEXIS 446. Margaret Dayton and Everett Jones clearly had it out for their neighbor Bill Collison. They claimed that since 2014, Bill had removed a significant number of standing trees and about 5,000 square feet of naturally growing plants from the City of Newark’s natural buffer zone, removed a 30-year-old drainage pipe located on his property and filled the remaining pipe with rocks and debris, intentionally altered the natural grade of his property so as to interfere with the natural flow of water, and trimmed a maple tree located on Maggie and Ev’s property along the boundary line. Additionally, they claim that an underground storage tank Bill installed – apparently your garden-variety propane tank – violates Newark’s municipal ordinances.

Maggie and Ev allege Bill’s property is a public nuisance, and that they have suffered “extreme mental anguish and damages of at least a $50,000 loss in the value of their home” because of flooding caused by Bill’s alteration of the grade’ invasion of privacy due to the removal of the buffer zone, being forced to live next to a hazardous condition because of the propane tank, and “damage or potential damage” (guess they’re not sure which) to the structural integrity of their property’s foundation.

They also claim Bill trespassed on their property multiple times to “alter the natural drainage flow of water, construct a berm, cut Plaintiffs’ trees, and take pictures or otherwise spy on Plaintiffs. From this, Plaintiffs claim they have suffered and continue to suffer damages and mental anguish in a sum to be determined at trial.”

Bill moved for summary judgment, claiming that Ev and Maggie cannot bring claims based on alleged violation of city ordinances, and showing that their claims were baseless.

Held: Summary judgment in Bill’s favor was granted on all claims except the tree-trimming claim.

The Court held that a public nuisance is one which affects the rights to which every citizen is entitles. The activity complained of must produce a tangible injury to neighboring property or persons and must be one which the court considers objectionable under the circumstances.

To have standing to sue on a public nuisance claim, an individual must be capable of recovering damages and (2) have standing to sue as a representative of the public “as in a citizen’s action or class action.” Here, Maggie and Ev have no right to bring a claim against Bill for alleged violations of the Code and thus, no standing to sue as a representative of the public. The Newark Code creates no rights enforceable by members of the public, and thus, it presents no basis upon which the requested relief may be granted.

To determine whether an implied private right of action exists, Delaware courts ask, among other things, whether there any indication of legislative intent to create or deny a private remedy for violation of the act. Under the Newark City Charter, the City possesses “all the powers granted to municipal corporations by the Constitution and laws of the Delaware, together with all the implied powers necessary to carry into execution all the powers granted..” The city manager is responsible for the administration of all city affairs authorized by or under the Charter and may appoint individuals to enforce select ordinances of the Code. The Court held that these reservations showed the City of Newark intended for it to be solely responsible for enforcing its ordinances, and did not intend to create a private right of action based upon ordinance violations.

Claims that Bill’s tree cutting was creating a public nuisance on the floodplain likewise claimed violation of City ordinances, and was a claim Ev and Maggie lacked any standing to bring. Likewise, their claim that Bill’s propane tank had been installed without a permit alleged violation of the City Code, and was a claim only the City could make.

Finally, Ev and Maggie claimed Bill created a public nuisance because he allegedly removed a drainage pipe from his property and filled the remaining pipe with rocks and debris. Outside of the fact that they were able to cite to no evidence that any drainpipe had ever existed on Bill’s property, only the City of Newark had jurisdiction and control over drainage.

But Ev and Maggie claimed that Bill created private nuisances, too. A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of their land. There are two types of private nuisance recognized in Delaware: nuisance per se and nuisance-in-fact. A claim for nuisance per se exists in three types of cases: 1) intentional, unreasonable interference with property rights of another; 2) interference resulting from an abnormally hazardous activity conducted on the person’s property; and 3) interference in violation of a statute intended to protect public safety. A claim for nuisance-in-fact exists when the defendant, although acting lawfully on his own property, permits acts or conditions that “become nuisances due to circumstances or location or manner of operation or performance.” Plaintiffs allege claims under both nuisance per se and nuisance-in-fact.

But saying it doesn’t make it so. The Court granted Bill’s motion for summary judgment on the private nuisance claims because Ev and Maggie did not provide sufficient evidence supporting their nuisance per se claim, did not submit expert reports to show necessary elements of their claims.

Ev and Maggie also argued that Bill’s destruction of certain trees on their property and his failure to respect known boundary lines also constitute a continuing nuisance. They alleged they suffered a diminution in the value of their home, in a minimum amount of $50,000, as a result of the “nuisance created and maintained by” Bill. Ev and Maggie estimated the value of their home and the loss they had suffered. They argue that as landowners, they may give an opinion as to the value of real estate. The Court disagreed: “Although Plaintiffs might know the fair market value of their property based on what they paid for it and based on a comparison of their property to other homes in the area, Plaintiffs do not know how each of Defendant’s alleged actions changed the value of their property. To establish how each of Defendant’s actions changed the value of Plaintiffs’ property, Plaintiffs would need to identify and submit an expert report from an expert witness; Plaintiffs have not done so.”

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

Ev and Maggie allege that that they have suffered “extreme mental anguish” as a result of Bill’s alleged nuisances. The Court ruled that Ev and Maggie “needed to show proof of the ‘extreme mental anguish’ they allegedly suffered through a medical expert. Without expert testimony, the Court is not able to find that Plaintiffs suffered this type of harm or that Defendant’s conduct caused such harm. Plaintiffs have neither identified an expert witness to testify to this matter nor submitted an expert report regarding this matter.”

Ev and Maggie’s only victory came on their claim that Bill damaged their maple tree. They alleged that he damaged a maple tree near the property line by shaving the trees directly up from the property line. Ev and Maggie have identified and submitted a report from an arborist, Russell Carlson, detailing the manner in which the maple tree was damaged by Bill’s alleged cutting back of the branches. The report shows the damage done to the maple tree and provides a value of the damages done to the tree.

Bill responded to their report, arguing that he has a right to engage in “self-help” to the property line. The Court held that “it remains unclear in Delaware whether a defendant has a right to engage in ‘self-help’ by cutting tree limbs that extend onto his property. The Court declines to make a determination on this issue in a motion for summary judgment. Therefore, Defendant has not shown, in the face of Mr. Carlson’s report, that he is entitled to judgment as a matter of law. Accordingly, summary judgment on this allegation is not proper.”

Ev and Maggie argued they are entitled to treble damages pursuant to 25 Del. C. § 1401, Timber Trespass. The Court may award treble damages for timber trespass when the plaintiff establishes that a trespasser “fells or causes to be cut down or felled a tree or trees growing upon the land of another”; 2) that plaintiff’s property was established and marked by permanent and visible markers or that the trespasser was on notice that the rights of the plaintiff were in jeopardy; and 3) that the trespass was willful.

Because Ev and Maggie only alleged that Bill damaged the tree, and did not cut it down altogether, they are not entitled to treble damages.

Ev and Maggie also alleged Bill intentionally trespassed on their property. The elements of a claim for intentional trespass are that plaintiff has lawful possession of the land, the defendant entered onto plaintiff’s land without consent or privilege, and plaintiff shows damages. The Court held that there was a factual dispute as to whether Bill ever entered onto Ev’s and Maggie’s land. Thus, Bill was denied summary judgment on the trespass count.

Still, the Court pretty much savaged Ev’s and Maggie’s rather shrill and frantic claim, leaving their all-encompassing nuisance broadside a rather puny trespass and trim of a single tree.

– Tom Root


Case of the Day – Thursday, September 26, 2019


As I have noted many times before, the ancient doctrine of sovereign immunity (you can’t sue the king) remains alive and well in this country. You cannot sue the federal government, a state government, or even a city or county, unless the same government you intend to sue has passed a law saying you may do so.

And face it, who is daft enough to give you advance permission to sue them?

That’s why tort claim statutes are written so narrowly. Many of the rights they purport to give are illusory. Today’s case is a great example.

At first blush, the Tennessee Governmental Tort Liability Act seems expansive, letting a private party sue the government for negligence, or even – without negligence – where the roadway is controlled by the government and is dangerous, provided the government has notice of the dangerous condition.

Ah, but the proof of the pudding is in the tasting. Today’s case recites a lot of facts, necessary to establish the mood. The facts seem to me (and, I bet, to most fair-minded people) to easily push the plaintiffs over the finish line, making the County liable. But in the end, the court decided that the evidence was not enough to even reach a jury.

Getting a court to declare the very government of which it is likely a part to be liable to pay out big bucks is like asking the Las Vegas house to even up the odds – not very likely to happen.

Graham v. Bradley County, 2013 Tenn. App. LEXIS 611, 2013 WL 5234240 (Ct. Appeals Tenn. 2013). On July 21, 2008, Ronald Graham, M.D., and his wife, Winifred, were driving their VW convertible past property owned by Henry and Gayle Evans on Tunnel Hill Road. The top portion of a sugar maple tree fell onto the car, seriously injuring them.

It turned out that 25 years before, the tree had been damaged so badly that it had decayed, losing about 85% percent of its strength. Believing that the tree was defective, unsafe and dangerous, the Grahams sued the Evanses and Bradley County. The County asserted that it was immune from suit pursuant to the Tennessee Governmental Tort Liability Act. The Grahams argued that GTLA immunity should be denied because the County had actual or constructive notice of the tree’s condition. The Grahams eventually settled with the Evanses, but after they did, the County amended its answer to allege comparative fault of the Evanses.

At trial, the County’s road superintendent admitted the County was specifically responsible for maintaining the road and was required to inspect and repair any unsafe conditions. He agreed that the County had taken action to remove other hazards that were above the roads. He said that when conditions on private property affected the roads, he either asked the property owner to remedy the condition or obtained an entrance permit to enter the property and remedy the condition. If the condition presented an emergency situation, the County did not wait for permission. The county does not hire professionals to ascertain whether trees posed an emergent situation, but the employees notified the road superintendent of dangerous conditions. County paved the road, patched potholes, mowed county property near the road, removed litter, and trimmed trees, brush, and bushes near the road.

The road superintendent acknowledged that the tree was visible from the road ,and that county workers had likely passed by the tree as they responded to complaints and performed general maintenance nearby. He admitted that the tree had been trimmed in 2006 but did not have any record of whether the County trimmed that particular tree even though the County was trimming other trees in the area.

The County was responsible for maintaining about 750 miles of county roads, with “countless” trees alongside the roadways. The County had no budget or manpower to inspect each tree to determine whether that tree was in a weakened condition.

The road on which the accident occurred, Tunnel Hill Road, was about 7.4 miles long, passing pastures and wooded areas. The road superintendent said the County did not touch the trees unless a specific tree posed a hazard. He claimed that he had neither noticed nor received a specific complaint about the tree in question. There had been no other falling-tree accidents along Tunnel Hill Road, but on the day of the accident, the County experienced a severe storm, and the superintendent received about ten reports concerning fallen trees or tree limbs.

Mr. Evans, owner of the tree, acknowledged that an oak tree had fallen onto the tree. He and his son had once attempted to remove the oak tree but were unsuccessful. He said that anyone walking on the roadway would have noticed the Tree’s limb that extended over the roadway, that the Tree and its limbs appeared to be alive, and that the Tree was as “green as every other tree down there.” He did not notice that the tree had decayed and did not believe it posed a danger. He claimed that there had been a severe thunderstorm the night of the accident, with thunder, lightning, and strong winds. Mr. Evans acknowledged that the tree appeared to have been trimmed at some point but asserted that he had never trimmed the tree.

A board certified master arborist found that an older oak tree had fallen onto the tree and split the tree, causing one portion to lean over the road. He explained that a casual observer might think that two trees were simply growing side by side. He stated that in reality, the tree had lost about 85% of its strength and had suffered extensive decay. He said that the portion of the tree that was “leaning over the road was damaged” and “badly decayed.” He believed that the tree’s defects were visible from the road. He said that the top of the tree was “too heavy” for the “decayed trunk to support” and that it fell onto the car from a height of about 25 feet. He believed that the wind from the thunderstorm was the “final straw” that caused the tree to fall but asserted that a healthy tree would not have been affected by the storm.

The arborist conceded that despite the tree’s defective state, it yielded green foliage and was positioned among other trees. He asserted that the tree was the largest one in the row and was noticeable because of its size and because of the position of the oak tree. He admitted that one would have to be “looking up in the trees” to see the scar caused by the oak tree. He acknowledged that someone simply walking alongside the road would not notice the tree’s defects and that even if an untrained observer noticed the defects, he or she would probably not realize that the tree needed to be removed.

Another decayed limb from the tree had been trimmed in summer 2006. The arborist testified that the limb was at a height of 20 to 25 feet, and that he had to use a lift to inspect the limb. He observed no reason for any entity other than the County to have trimmed the tree, and that the person who cut the limb would have had to see the tree’s defects. He believed that county workers performing maintenance on the road would have viewed the tree’s condition and would have been prompted to investigate the condition of the tree if they had been exercising reasonable diligence. If he had been asked, the arborist would have recommended that it “either be pruned or removed.”

Based on all the evidence, the trial court held that the County was immune from liability. The court found no proof that the roadway was unsafe as a result of the presence of the tree, or that the County had constructive or actual notice concerning the tree’s condition.

The Grahams appealed.

Held: The County immune from liability.

In 1973, the General Assembly enacted the GTLA (Tenn. Code Ann. § 29-20-201(a)) to codify the general common law rule that all governmental entities shall be immune from suit for any which may result from the activities of such governmental entities.

Passage of the GTLA constituted “an act of grace through which the legislature provided general immunity to governmental entities from tort liability but removed it in certain limited and specified instances.” The Grahams maintained their claim skirted municipal immunity, based on a simple negligence claim for failure to maintain the county roadways and Tennessee Code Annotated § 29-20-203.

The elements of a negligence claim include (1) a duty of care owed by the defendant to plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause. Tennessee Code Annotated § 29-20-205 removes governmental immunity for injuries caused by negligent acts or omissions of county employees. The legislature, provided in § 29-20-205(4) that governmental immunity shall not be removed for failure to inspect property not owned by the County.

All parties admit, however, that immunity may be waived for the negligent failure to maintain county roadways. The Grahams argued that the County’s duty to maintain its roadways included a duty to inspect for unsafe conditions that may exist along the roadway and that extend over and above the roadway. The County denies having such a duty.

Here, the County had a duty to maintain its roadways and that the duty likely extended to maintaining obstructions located above the roadway. Duty is defined as “the legal obligation owed by defendant to plaintiff to conform to a reasonable person standard of care for the protection against unreasonable risks of harm,” and a duty exists “if defendant’s conduct poses an unreasonable and foreseeable risk of harm.” A risk is unreasonable where the foreseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm. The question of whether a duty exists requires consideration of whether ‘such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of others — or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant.

Here, the Court refused to impose upon the County a duty to inspect every tree that “leaned” over the roadway. Imposing such a duty, the Court ruled, would place an insurmountable burden upon the County and detract from its ability to maintain the roadways. The County maintained its roadways by trimming trees that posed obvious issues and by responding to complaints concerning specific trees, brush, and bushes. The evidence reflects that the tree in question continued to sprout green leaves, was located among other healthy trees, and did not appear to be decayed or damaged to the extent that was discovered after the accident. The County had never received a specific complaint about the tree, and the only evidence offered concerning the County’s interaction with the tree was conjecture at best.

The Grahams also based their claim on Tenn. Code Ann. § 29-20-203(a), which removed “immunity from suit of a governmental entity… for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity.”

Suits brought pursuant to § 29-20-203 must show three elements: “The local government must own and control the location or instrumentality alleged to have caused the injury;” The location or instrumentality must be “defective, unsafe, or dangerous;” and the local government entity must have “constructive and/or actual notice” of the condition.

The Tennessee Supreme Court has defined actual notice as “knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.” “Constructive notice” is defined as information or knowledge of a fact imputed by law to a person (although he may not actually have it) because he could have discovered the fact by proper diligence, and his situation was such as to cause upon him the duty of inquiring into it.

Here, the Court said, the County never received a specific complaint about the tree. While the tree had been trimmed in 2006, and the Grahams argued that the County was the only entity that would have had reason to trim the tree, there was no actual evidence that it was the County that did so. Based on the witnesses’ testimony that the tree did not appear to be damaged or decayed, and the arborist’s testimony that one would have to look up into the trees to see the damage caused by the oak tree, the Court concluded that the County did not have sufficient knowledge of facts that would have required it to investigate the tree’s condition.

– Tom Root


Case of the Day – Wednesday, September 25, 2019


I had a secretary once, a delightful country girl who careered from being sharp as a tack to dumb as a stump. One of her expressions, when she would be nattering on about something for what seemed to be hours on end, was, “Never mind me. I’m just talking out loud.”

Courts are constantly getting trouble for “talking out loud,” saying more than is necessary in a decision. When an opinion, aside, observation or frolic unnecessary to the decision are included in an opinion, it is known as obiter dictum, Latin for “by the way.” Obiter dictum is a concept derived from English common law, wherein a judgment is comprised of only two elements: ratio decidendi and obiter dicta.

One of the early lessons law students learn in their first year is that for the purposes of judicial precedent, ratio decidendi (which means the rule of law on which a decision is based) is the only part of the decision that is binding. Any statement that is obiter dictum is persuasive only.

By the way, lawyers usually call obiter dictumdictum” for short. If there is more than one piece of dictum in a case, they are pluralized as “dicta.” (That previous “by the way” – in itself a perfect example of dictum – comes to you courtesy of my late and beloved Latin teacher, the incomparable Emily Bernges.

Now to brush up on a little law: if I trespass on your land, you can sue to have me ejected. If you do nothing, and suffer my trespass and bad manners for long enough (usually 21 continuous years, but this can vary by state), I can sue you to quiet title, and the land becomes mine by adverse possession.

Now instead of squatting on your place, I string a power line across a corner of it. You don’t give me permission, but again you suffer in silence. It is not adverse possession, because you could continue to use the land under the power line. It’s just that I have taken the right to use your property without your permission, but in a way which is not inconsistent with your rights. If I keep my power line there for 21 continuous years, I have not acquired ownership of the land, but I have acquired a prescriptive easement. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

So that’s the progression. If I use your real estate without permission, I am a trespasser. If I remain a trespasser openly and continuously for long enough, I either wrest ownership of the land from you or at least obtain the right to an easement that you cannot take back.

As we saw in yesterday’s case, Jones v. Wagner, a Pennsylvania court addressed encroaching tree branches and roots. This is unsurprising. Forty-nine other states have done the same. But where everyone else is content with the Massachusetts Rule or the Hawaii Rule, the Virginia Rule or some amalgam of the three, the Pennsylvania court boldly went where no court had gone before. It decided that the owner of the encroaching trees became a trespasser when the branches overhung or the roots entered the subsurface. Such a holding was utterly unnecessary: trees grow, their owner does not control the growth, and simple rules allocating cost and responsibility work for everyone else with the need to resort to pounding the round peg of trespass into the square hole of encroachment.

But the Pennsylvania court did just that. But if a tree can trespass (or more to the point, if the owner of a tree is a trespasser because of how the tree grows, might the owner also acquire a prescriptive easement if the encroachment goes on long enough?

And here came the dictum. After foolishly applying trespass to tree encroachment, the Jones v. Wagner court decided to speculate in the opinion whether prescriptive easements could be acquired by tree trespass. That was not an issue in the case. It was pure dictum, talking out loud. But it did not take too long for another party to take the Jones v. Wagner idle musings, and run with them.

Koresko v. Farley, 844 A.2d 607 (Commonwealth Ct. Pa. 2004). John and Bonnie Koresko bought a piece of property in Tredyffrin Township in 1986. Several trees over 21 years in age (which is important) grew on their property very near one property line. Branches hang over the boundary with the neighboring property.

That land was owned by Ollie Bower, who sold it to a developer in 1999. The developer wanted to subdivide the property into two lots, and build two houses. The subdivision plan proposed the installation of a water line and the construction of a driveway near the boundary trees. Upon learning of the proposal, the Koreskos sued, seeking injunctive relief and money damages. The Koreskos claimed unreasonable interference with an easement. Specifically, they alleged 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. They assert development of the property would unreasonably interfere with that easement.

The trial court turned the Koreskos down, holding that “Pennsylvania does not and will not recognize an easement for tree roots or overhanging branches.”

The Koreskos appealed.

Held: Encroaching branches and roots cannot create a prescriptive easement.

A prescriptive easement is a right to use another person’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 at least 21 years. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

In Jones v. Wagner, a Pennsylvania Superior Court held that overhanging tree branches constitute a trespass. A landowner has the right to compel his or her neighbor to remove of overhanging branches, or the landowner may use self-help to cut the branches back himself or herself.

In discussing the appropriateness of self-help, the Wagner Court mused in a note:

An adverse possession action can often devolve into a pissing contest …

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. Restatement (Second) of Torts § 161, comment d. We cannot help but wonder 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 would be the case, and we can find no Pennsylvania law which would indicate that a prescriptive easement is not available in this situation, a landowner who suffers actual harm for the first time during the tree owner’s twenty-second year of hostile ownership, might very well be precluded from seeking a judicial, or even self-help, remedy. This result, while not entirely unforeseeable, is anomalous. However, if an action is available without a showing of damage, the landowner has no reason to complain if a neighbor’s tree causes damage after the prescriptive period has run.

Citing this language, the Koreskis argued that their amended complaint sufficiently pleads a cause of action for unreasonable interference with a prescriptive easement. In contrast, the developer argued he Koreskis had not shown that such an easement existed. Specifically, the developer claimed. the encroachment of the tree roots and branches is not “open and notorious” conduct sufficient to create an easement.

The Commonwealth Court ruled that the Koreskis had failed to state a claim for prescriptive easement as a matter of law, for several reasons. First, encroaching tree roots and limbs by themselves cannot notify a landowner of a claim to use the ground. Second, Pennsylvania has never recognized the existence of such an easement. Third, the Court said, “well-reasoned authority from another jurisdiction persuades us that such easements should not be recognized.” Finally, the potential of widespread uncertainty such easements would cause “convinces us that they should not be recognized as a matter of public policy.”

“The requirement 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,” according to Restatement of Property, Servitudes § 458, comment h. The requirement enables owners to protect themselves against the effect of the use by preventing its continuance.” To prove an adverse use is “open and notorious,” a claimant may show that either the landowner against whom the use is claimed has actual knowledge of the use or has had a reasonable opportunity to learn of its existence.

But encroaching tree parts, by themselves, do not establish “open and notorious” use of the land. Neither roots below ground nor branches above ground fairly notify an owner of a claim for use at the surface, the Court said. In the absence of additional circumstances, such as use of the ground for maintenance or collection of leaves or fruit, roots and branches alone do not alert an owner that his exclusive dominion of the ground is challenged.

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.

Finally, the Court said, “we consider the consequences of the holding urged by the Koreskis here. Judicial notice can be taken that 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. 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