Case of the Day – Tuesday, August 31, 2021

BAMBOO-ZLED

In the Noxious Tree Hall of Infamy, you’ll find Osage Oranges that make a mess, Callary Pears that smell like an outhouse, the execrable and ill-named Tree of Heaven. But Number One may be running bamboo. It’s so bad, it’s in the Hall of Infamy and it’s not even a tree, strictly speaking.

Yet there are online tributes to the beauty of running bamboo, right along side Youtube videos on how to kill the stuff. Lest you wonder how to come down on this debate, be aware that laws banning the growing or even maintenance of existing stands of running bamboo are everywhere. That should give you a hint.

I’ve written about it before, and I don’t doubt that I will again. But today’s decision caught my eye, and – while long – it is a classic, both for the ingenuity of the defendants in suggesting that their bamboo invasion of the neighbors gave them a prescriptive easement to keep invading (because everyone knew the bamboo would invade), and for the court’s strenuous efforts to pound the defendants on every cause of action.

I mean, really, the defendants trespassed on the plaintiffs’ property because roots from bamboo they planted in the 1990s encroached on their neighbors in 2017? That’s fairly contrary to the rule that growth from natural things that invades the neighbors – even if a nuisance – is not a trespass.

Sultan v. King, 2021 N.Y. Misc. LEXIS 4575, 2021 NY Slip Op 21227 (County Ct. Suffolk Co., August 19, 2021). The Sultans and the Kings owned vacation homes on Shelter Island, New York. About 30 years ago, the Kings planted a grove of running bamboo on their property to serve as privacy screening between their place and the Sultans’.

When they planted the bamboo, it was still legal to do so. Although New York outlawed plant running bamboo in 2015, existing stands of bamboo were grandfathered in, so the Kings were able to keep and maintain their stand of the noxious stuff.

The Court noted that “[t]here is no dispute that running bamboo is an invasive species of plant that can be expected to spread in all directions. The invasive nature of running bamboo has spurred legislative action in many jurisdictions. As noted, in New York State it is unlawful to plant running bamboo due to its noxious nature. Many local jurisdictions on Long Island have adopted laws that either prohibit the maintenance of running bamboo or which impose regulations on properties where running bamboo is located so as to prevent the spread to neighboring properties… The regulations vary from outright prohibition of growing or maintaining running bamboo, requiring the removal of existing bamboo, to prohibiting the spread to neighboring properties or within a certain distance of property lines. Some also require remediation of encroachments of running bamboo onto neighboring properties.

But Shelter Island was not such a town.

The Kings kept a landscaper busy keeping their bamboo under control in their yard, but they did nothing to keep it out of other yards, including that of the Sultans. Mrs. Sultan testified that she and her husband have consistently employed a gardener who regularly mows the lawn and maintains the landscaping on their property, and paid him extra to clean bamboo leaves and debris that had fallen onto their property from overhanging bamboo.

By 2017, the running bamboo – an invasive species that tends to spread in all directions – was spreading into the Sultans’ yard.  The Sultans testified that they first became aware of the spread of the running bamboo onto their property in the spring of 2017. The Kings said the Sultans complained in 2017 about the spread, which was relevant to the Kings’ statute of limitations defense that the Sultans did not sue within the time permitted by law.

Even if that were not so, the Kings argued, everyone knows running bamboo runs, which means that the Kings acquired a prescriptive easement over the Sultans’ property to let their bamboo grow and grow and grow… Finally, they argued, the Sultans could control the bamboo by mowing down the young shoots, so it could not possibly be a nuisance.

Held, the Sultans could proceed with their suit, and recover damages for nuisance and trespass.

Initially, the court held, it was immaterial when the Sultans first learned about the spread of bamboo onto their property from defendants’ property, because the trespass was continuing. Every day was a new affront, and renewed any claim the Sultans had.

As for the negligence cause of action, it accrues at the time when the damages become apparent. The Sultans testified that the first time they became aware of the encroachment of bamboo growth spreading onto their property was in the spring of 2017. Since the underground spread of the bamboo system, according to the experts for both sides, preceded the sprouting of bamboo above the soil line, the encroachment of the bamboo must have occurred at an earlier time. However, the court found the Sultans’ testimony that they first became aware of the bamboo encroachment onto their property in 2017 to be credible, and started the statute of limitations running then.

The court made quick work of the Kings’ claim to a prescriptive easement. To establish a prescriptive easement, a party must prove by clear and convincing evidence that the use of another’s real property was open, notorious and continuous for a period of at least ten years. Here, the court ruled, “defendants have utterly failed to prove any of the elements of a prescriptive easement, much less by clear and convincing evidence. There is no evidence that any of the parties were aware of the encroachment of the defendants’ bamboo onto plaintiffs’ property, with particular reference to the side of the house abutting defendants’ property and the front yard, prior to 2017. Further, encroachment of bamboo roots underground not visible hardly amounts to a ‘use’ of real property or ‘open and notorious’.”

Even though the bamboo was legal, the Kings were still liable for private nuisance if their conduct was “a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities.  The invasion is intentional when the party at fault acts for the purpose of causing it, or knows that it is resulting or is substantially certain to result from his conduct.”

Here, the evidence showed that the Kings’ bamboo spread onto the Sultans’ property was a “substantial, intentional, unreasonable interference with plaintiffs’ right to use and enjoy their property and that it was caused by the failure of defendants to act to prevent the migration of the bamboo from their property onto plaintiffs’ property.” Although the Kings argued that running bamboo can be contained by regularly mowing and clipping of sprouts before they grow into stalks, that only controls the bamboo, but does not eradicate it. The Sultans’ expert admitted that the bamboo growth and roots that had spread underneath their deck would have to be excavated to stop the spread and growth of the bamboo. The Kings’ expert witness admitted he had used barriers dug into the ground to contain his own bamboo field decades ago. The court held that only effective means to eradicate and contain the bamboo is to excavate and remove the existing bamboo growth and to install a barrier.

The Court also observed that the Kings’ argument “that mowing and clipping is an effective means to prevent the spread of bamboo is belied by the determination in 2015 to make it unlawful to plant running bamboo in the State of New York. Also, the many local jurisdictions that have gone further to regular existing bamboo fields to require setbacks from neighbor’s property and to require the removal of bamboo that had spread to other properties is further evidence that the containment method offered by defendants is not in fact an effective means to stop the spread of running bamboo and to eradicate the underground root systems.”

The court concluded that the running bamboo was a private nuisance.

The elements of trespass are an intentional entry onto land of another without justification or permission.  The court said the Kings intentionally planted the bamboo on their property. “While not necessarily ‘immediate’,” the court said, “there is no question that the intrusion upon plaintiffs’ property was inevitable given the fact that defendants did nothing to prevent the spread of the bamboo. The nature of running bamboo is to spread in all directions unless action is taken to contain it, as testified by the experts for both sides. Accordingly, the court finds that the bamboo encroachment onto plaintiffs’ property constitutes a trespass, plaintiffs having proven the elements of trespass by a preponderance of the evidence.”

Finally, the court found that there was no question that the Kings failed to exercise reasonable care in the maintenance of their property by not taking action to prevent the spread of the bamboo, and thus were negligent.

The court held that the Kings owed the Sultans $57,149.38.

– Tom Root

Case of the Day – Monday, August 30, 2021

THEY DO THINGS FUNNY IN LOUISIANA

The bridge was down ... something like this ...

The bridge was down … something like this …

This might not be the best day to point out that things are different in Louisiana, what with Cat 4 hurrricane Ida churning through the state. But, hurricane or not, Louisiana marches to a diffefrent drummer.

It’s the only state in America not to have a legal system based on English common law. Counties are parishes, county commissioners are “police juries,” and when a party loses in court, it may file a devolutive appeal.

But Louisiana has a lot of trees and thus generates a substantial amount of neighbor and tree law. Today’s case is a little different, a case of a large farm seeking to get a county (parish) road – long closed due to a bridge being down – declared abandoned, so that ownership could revert to the farm. The evidence was all over the map, including minutes of the parish government showing an intent — albeit a desultxory one — to get the bridge fixed and the road reopened, recall of the people who lived around and near the road as to when it was closed, and even a tree expert, who dated a tree growing up through the roadbed of the abandoned stretch of highway.

The trial court weighed all of the conflicting evidence, and concluded that the weight of it supported a finding that the parish had abandoned the road more than 10 years before, meaning that ownership reverted to Richland. The appellate court didn’t necessarily agree, but appellate courts review lower court decisions deferentially. Here, the standard was whether the trial judge’s findings were reasonable, based on the record, and the court of appeals said they were.

Louisiana law is different ...

Louisiana law is different … (Dramatic re-enactment of actual Bayou State courtroom proceeding).

Richland Plantation, Inc. v. East Feliciana Parish, 973 So.2d 179 (La.App. 1 Cir. 2007). The Parish of East Feliciana maintained a public road running north from Richland Creek to Louisiana Highway 422 through property owned by Richland Plantation, Inc. In 2005, Richland sued, maintaining that the Parish had abandoned the road. Richland alleged that public use and maintenance had been terminated for more than ten years, and therefore the road was abandoned and full ownership of the property reverted to it.

The Parish claimed the road was temporarily closed in December 1996 because the bridge across Richland Creek was unsafe. In September 2001, the Parish filed a petition for expropriation of some of Richland’s land for the bridge, and a judgment was rendered in its favor in March 2005, but was later reversed. The Parish said the expropriation suit established that it did not have any intention of abandoning the road.

Trial witnesses had varying recollections of when the road was closed. Photographs of the gravel road south of the bridge where it was still open and maintained were compared with photographs of the closed area of the road, which was overgrown with plants and seriously eroded. The bridge railings were twisted and bent, and the wooden planks were rotted and broken. A forester testified for Richland that one of the trees in the roadbed had been growing there for eleven years; a cross-section of the trunk showing its growth rings was submitted into evidence. In addition to witnesses’ testimony, the record included some bridge inspection reports, as well as the minutes from Parish meetings, showing when and why the road had been closed and when the expropriation process to rebuild the bridge was approved. The trial court agreed with Richland, and the Parish filed a devolutive appeal.

Held: The road was declared to have reverted to Richland. The Court said that under Lousiana law, the public may own the land on which the road is built or merely have the right to use it. The courts have held that maintenance of a road by a Parish for three continuous years gives rise to a “tacit dedication” of the road to public use by its owner. Abandonment of a public road must be evidenced by (1) a formal act of revocation in accordance with Louisiana statute, (2) relocation of the public road by the governing body, or (3) clear and well-established proof of intent by the governing body to abandon. Nonuse of a strip of land as a public road or street for a period in excess of ten years may also result in termination of the public use.

The road abandoned, maybe? Bayou law would bring a tear of joy to Robert Frost's eye ...

The road abandoned, maybe? Bayou law would bring a tear of joy to Robert Frost’s eye …

Because the Parish didn’t execute any formal act of revocation and its meeting minutes showed its intent was to rebuild the bridge and re-open the road, the Court concluded there was no proof of any intent to abandon this roadway. Thus, the only means by which the Parish’s servitude of public use of the roadway could be terminated was by factual non-use for more than ten years. Within that period, even occasional use or use by only one person constituted public use.

Reviewing the record to determine whether a reasonable factual basis for the trial court’s findings, the Court held that while there were obviously some conflicting stories about exactly when and how the northern portion of Ellis Road was closed, there was reasonable factual basis in the record for the trial court’s finding that the road had not been used for over ten years and was, therefore, abandoned by the Parish.

Richland’s licensed forester testified concerning the age of a tree that was located in the roadbed of the old road, and determined from dendrochronology how long the tree had been there. He determined that the tree growing in the roadbed was 11 years old when it was cut in June 2006, thus dating the abandonment of the road at over 10 years.

– Tom Root

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Case of the Day – Friday, August 27, 2021

SURVIVOR – LAWSUIT ISLAND

Life (and law practice) sometimes imitates art. It may be a stretch to label the long-in-the-tooth CBS series, Survivor, as art, but any number of great artists, authors and composers were unappreciated during their day, just as the Survivor writers have complained that they are unappreciated. Maybe some day, Survivor – which in the recent seasons was on the edge of extinction – will be studied by college students as a paradigm of our day. Scary, isn’t it?

Arthur C. Clarke once predicted just such a thing

But our point – just like contestants are voted off the island in Survivor – weak cases are many times voted off the docket, so to speak, by summary judgment. Summary judgment is a mechanism for a judge to decide cases where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Stack said it was a big hole…

In today’s case, Stack was trimming Hernandez’s trees at Hernandez’s invitation. While working on a lawn with spotty and bumpy grass, Stack tripped on a small depression and broke his leg. He sued, of course – who wouldn’t? His suit alleged that Hernandez should have been aware of the depression and should have warned him of it. He didn’t have any proof that Hernandez was aware of the depression, and the Court very nearly granted summary judgment for Hernandez. But it concluded that a reasonable juror conceivably could — after hearing witnesses and cross-examination — conclude that Hernandez should have known about the depression, and should have either warned Stack or filled it in himself.

So after the summary judgment challenge, Stack remained a “survivor” — leaving it to a jury to vote his case off the island later.

Stack v. Hernandez, Conn. Super. LEXIS 1487, 2007 WL 1893617 (Conn.Super.Ct., June 12, 2007). Stack was trimming trees at the defendant’s property at the invitation and permission of the defendant. While doing so, he stepped in a depression in the front lawn and broke his leg.

... but Stack recalled it was somewhat small. This is known in the law as "a genuine issue of material fact."

… but Hernandez recalled it was somewhat small. This is known in the law as “a genuine issue of material fact.”

The depression was about 4 inches wide and 3 or 4 inches deep. Stack’s right toe went into the depression and stopped. The lawn was bumpy and had yellow patches in it. Stack did not see the depression before he stepped into it. Hernandez had no actual knowledge of the depression. He performed normal maintenance on the lawn himself but had never noticed the hole.

Stack sued Hernandez for negligence, alleging that Hernandez failed to remedy the depression in the lawn or to warn him of it, even though he knew or should have known of its presence. Hernandez filed for summary judgment on the grounds that there was no genuine issue of material fact on the issue of notice.

Held: Summary judgment was denied. The Court observed that summary judgment is not well adapted to negligence cases, where, as here, the ultimate issue in contention involved a mixed question of fact and law.

The Court said Mr. Stack's case barely stacked up ... but enough to get the matter to trial.

The Court said Mr. Stack’s case barely stacked up … but enough to get the matter to trial.

The conclusion that a defendant was negligent is necessarily one of fact. A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.

The existence of actual or constructive notice is a question of fact. Although Hernandez argued there was no evidence from which a judge or jury could conclude that he had actual or constructive notice of the depression or that it was a danger of which Stack was entitled to be warned, the Court found Stack’s allegation strong enough to survive a summary judgment motion.

The Court characterized Stack’s claim as weak, but conceded that a reasonable person could conclude that the depression in the lawn was a “danger” which Hernandez should have discovered and remedied with a reasonable inspection. The Court observed that a party has the same right to submit a weak case as he has to submit a strong one, and gave him his day in court to submit it.

– Tom Root
TNLBGray140407

Case of the Day – Thursday, August 26, 2021

THE DEMOCRATIC PEOPLE’S REPUBLIC OF HOWELL, MICHIGAN

The Mayor of Howell?

The Mayor of Howell?

Like many American cities, the City of Howell, Michigan requires its property owners to keep their lawns mowed below a certain height. Violators of the ordinance are charged a fine as well as a fee for the costs associated with hiring a private contractor to mow or otherwise maintain the property. Such an ordinance, of course, occupies the same moral plane as laws that feed subordinates to hungry piranhas or shooting up 11 musicians with helicopter gunships (that last might be justifiable, depending on the musicians).

Or so David Shoemaker, a Howell homeowner, would have you believe. He complains that such an ordinance “makes the City look like North Korea rather than an American city.” Kim Jong Eun would be amused … or, if he was not, he’d have David shot to pieces with an anti-aircraft gun.

It seems that Shoemaker and his daughter planted a maple tree in their tree lawn, that strip of grass between the sidewalk and the street. The maple flourished for a few years, until the City came along to widen the curb. City workers hacked down the tree, and – when Shoemaker complained – they imperiously told him there was nothing he could do about it, because the City owned the tree lawn. Later, the same workers planted nine saplings in the tree lawn, and guy-wired them to a fare-thee-well.

Shoemaker was incensed, and he figured to get even. If the tree lawn was the City’s property, he reasoned, then city worker could just jolly well cut the grass on the tree lawn. He wasn’t going to do it. So Shoemaker stopped mowing the strip between the sidewalk and the street.

In North Korea, it’s illegal to name a baby “Kim Jong-Eun” (like anyone would want to). According to Shoemaker, Howell has an equally irrational and stupid ordinance, one that prohibits the owner or occupant of any lot in the City from “maintain[ing] on any such lot … any growth of weeds, grass or other rank vegetation to a greater height than eight inches.” The ordinance explicitly applies to any land “along the sidewalk, street or alley adjacent to the same between the property line and the curb.” Shoemaker’s act of civil disobedience promptly ran into a city inspector, who cited him under the ordinance when the grass in the tree lawn got to be high enough to harvest.

If you're looking to get even, tread very carefully. It may cost you more than it's worth.

If you’re looking to get even, tread very carefully. It may cost you more than it’s worth.

No doubt the city inspector wanted to throw Shoemaker and his daughter into the gulag. But he was limited to fining Shoemaker, and charging him for the cost of mowing the lawn. After several infractions and city-sponsored mowings, Shoemaker was billed for $600.00 by the City.

Shoemaker filed suit against the City in federal court, asserting that Howell had violated both his procedural and substantive due process rights. Amazingly (to us), the district court granted summary judgment for Shoemaker on both claims. But down at the U.S. Court of Appeals for the Sixth Circuit, cooler heads prevailed.

Shoemaker argued that the City ordinance requiring him to mow the tree lawn violated his procedural and substantive due process rights. The Court held that while the citation for violating the ordinance didn’t expressly state appeal rights, the imposition on a property owner was so slight, a property owner was given a chance to avoid the fine by cutting the grass after the citation was served, and the standards of the ordinance – grass in excess of 8 inches high – were pretty straightforward. Anything you can settle with a yardstick isn’t very complex. The Court was not about to turn the fairly simple citation into a procedural due process violation.

Shoemaker claimed the statute violated his substantive due process rights as well. For those of you who had constitutional law right after lunch, and consequently fell asleep in a warm classroom with a full stomach, “substantive due process” is the doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed.” Which deprivations? Well, it “depends on the nature of the right being deprived.” Specifically, “[g]overnment actions that do not affect fundamental rights … will be upheld if they are rationally related to a legitimate state interest.”

There… that’s clear. If you had stayed awake in Constitutional Law, and taken good notes, you might be nonetheless be forgiven for thinking that “fundamental rights” are what Justice Potter Stewart was thinking of when quipped about pornography in Jacobellis v. Ohio: “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 …”

What interested us about this decision was Shoemaker’s insistence that the tree lawn was owned by the City of Howell, and not by him. He said a city worker had told him that, and thus the matter was settled. The Sixth Circuit, not a court to take a litigant’s word for it, examined Michigan law on the topic.

The district court had granted summary judgment in favor of Shoemaker because the City owned the tree lawn in front of Shoemaker’s house, and “the right not to be forced by a government to maintain municipal property” is a fundamental one. The ordinance infringed on that basic right.

Nonsense, the Court of Appeals said. While Michigan cities possess “nominal” title to land designated for public use, the private property owners retain the usual rights of the proprietor. This relationship, the Court said, “reflects the reality that homeowners like Shoemaker have a special interest in the curb strips adjacent to their houses because these strips of land are, for all practical purposes, simply extensions of the homeowners’ lawns. The curb strips also provide a traffic and safety buffer between the street and the rest of the property. In other words, despite the City’s right of way over the curb strip for public use, Shoemaker retained both his property interest in and de facto use of the land in question.’

As for Shoemaker’s hyperbolic comparison of Howell’s lawn-cutting ordinance to Korea, the Court dryly observed that the notion “should come as a surprise to the citizens of both nations. On the one hand, North Korea is a totalitarian regime that notoriously tortures criminal defendants, uses nerve toxin on political opponents, executes non-violent offenders, and sends those accused of political offenses to forced labor camps. On the other hand, laws like Howell’s lawn-trimming ordinance “are ubiquitous from coast to coast.”

Shoemaker v. City of Howell, 795 F.3d 553 (6th Cir., July 28, 2015). Shoemaker and his minor daughter lived on East Sibley Street in Howell, Michigan, for 9 years. Early on, they planted a maple tree in the tree lawn, that strip of grass between the sidewalk and street.

During this time, the City undertook a citywide project to refurbish and landscape its streets. East Sibley Street next to the Shoemaker residence was among the areas where work was done. The City removed the Shoemakers’ maple tree replaced it with nine saplings. Shoemaker claims that when he protested the tree’s removal, City workers told him “that’s not your property, you have no say on what goes in or out of there.” Upset by the City’s unilateral remodeling of the curb strip, Shoemaker chose to protest the City’s actions via civil disobedience: he stopped mowing the curb strip.

The City received a complaint about Shoemaker’s uncut tree lawn. Based on the complaint, City Code Inspector Donahue visited the residence and left a door-hanger notice informing Shoemaker that his lawn was in violation of City Code § 622.02, which requires property owners and occupants to maintain the vegetation on their land. The Ordinance prohibits the owner or occupant of any lot in the City from “maintain[ing] on any such lot.., any growth of weeds, grass or other rank vegetation to a greater height than eight inches,” and applies to any land “along the sidewalk, street or alley adjacent to the same between the property line and the curb.” A violation of the Ordinance subjects the responsible party to fines.

The prisoner's last words: "I should have mowed my whole lawn."

The prisoner’s last words: “I should have mowed my whole lawn.”

On August 4, 2011, Donahue noticed vegetation that was taller than eight inches on the curb strip in front of Shoemaker’s house. As before, Donahue left a door-hanger notice informing Shoemaker of the violation and mailed another Notice of Ordinance Violation. He returned to the property on the next day to find that, although the lawn had been freshly mowed, the grass on the curb strip remained in excess of the Ordinance’s limitation.

Shoemaker told Donahue that he would not mow the curb strip because he had been told by City employees that the area was the City’s property and not his own. Donahue insisted that the property did in fact belong to Shoemaker. Shoemaker asked to be ticketed for the violation in order to challenge the Ordinance in court. Shoemaker was charged a total of $600 for his violations of the Ordinance, including $300 in grass-cutting services and $300 in fines.

Shoemaker filed suit against the City, asserting violations of his procedural and substantive due process rights. The district court granted summary judgment in favor of Shoemaker, finding that the City owned the curb strip in front of Shoemaker’s house, that “the right not to be forced by a municipal government to maintain municipal property” is a fundamental one, and the Ordinance “unconstitutionally infringes” on that right.

The City of Howell appealed.

Held: The City did not violate Shoemaker’s procedural due process rights because it provided him with ample notice of the violation and an adequate opportunity to be heard. The City did not violate his substantive due process right, because Shoemaker continued to own the tree lawn, subject only to certain rights the City had to use the area for permissible purposes.

The Court weighed several factors in deciding exactly how much procedural process was due Shoemaker, including whether a private interest is affected by the official action, the risk of an erroneous deprivation of rights, the probable value, if any, of additional procedural safeguards, and the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Clearly, a private interest was affected by the Ordinance, although it was a slight one. The constitution does not require strict adherence to the City’s Ordinances. What it does demand – that the notice as given be reasonably calculated to alert Shoemaker of the charges against him and any avenues available for challenging those charges – was accomplished by the notices distributed by the City, which explained what he had to do to avoid a fine.

There was little risk of erroneous deprivation under the Ordinance If the vegetation on the land in question is allowed to grow beyond eight inches tall, then the owner or occupier of that land has violated the Ordinance. Due to this objective, readily ascertainable standard, there is little chance of a wrongful application of the law. The ample means of challenging an alleged violation under the laws of the City and the state of Michigan further counsel against the need for additional procedures. Finally, the burden of added process here would be significant, and that the potential burden “militates against yet more process.”

The Court said that Howell did not violate Shoemaker’s substantive due process rights because Shoemaker had a shared ownership interest in and the de facto use of the curb strip. Under Michigan law, Shoemaker technically owned the property at all relevant times and the City simply possessed a right of way for public use. The erroneous reasoning of the district court relied entirely on the inaccurate determination that the City is the sole owner of the curb strip. Given Shoemaker’s shared ownership interest in the curb strip as well as his de facto use thereof, no substantive due process violation occurred.

Substantive due process holds that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed. The limitations the Constitution imposes on such governmental deprivations depends on the nature of the right being deprived. Government actions that do not affect fundamental rights will be upheld if they are rationally related to a legitimate state interest.

The district court acknowledged that the Supreme Court has always been reluctant to expand the concept of substantive due process, because guideposts for responsible decision-making in this unchartered area are scarce and open-ended. Despite this, the district court expanded the concept by identifying a new fundamental right: the right not to be forced by a municipal government to maintain municipal property.

The Howell ordinance - yet another reason for Colin Kaepernick to not stand up for the National Anthem?

The Howell ordinance – yet another reason for Colin Kaepernick to not stand up for the National Anthem?

The Court of Appeals observed that this “right” was predicated on the finding that the City owned the tree lawn, and that was wrong. Through a conveyance by a platting statute, the government does not receive title in the nature of a private ownership; it acquires no beneficial ownership of the land and has no voice concerning the use; and it does not possess the usual rights of a proprietor, but rather takes title only to the extent that it could preclude questions which might arise respecting the public uses, other than those of mere passage. “Simply put,” the Court of Appeals said, “the law vests the governmental entity with nominal title. We pause at this word ‘nominal’ to emphasize the obvious, i.e., that the property interest conveyed by these early platting statutes is a fee in name only.”

The reality, the Court ruled, is that homeowners have a special interest in the curb strips adjacent to their houses because these strips of land are, for all practical purposes, simply extensions of the homeowners’ lawns. The curb strips also provide a traffic and safety buffer between the street and the rest of the property. In other words, despite the City’s right of way over the curb strip for public use, Shoemaker retained both his property interest in and de facto use of the land in question.

Shoemaker suggested that the Ordinance was somehow “un-American.” The Court didn’t sit still for the argument. It said, “Shoemaker’s argument, like the district court’s opinion, relies on the erroneous assumption that the City is the sole owner of the curb strip. Shoemaker specifically compares the requirement that he maintain the curb strip associated with his property to draconian mandatory public-labor measures adopted by regimes in troubled nations such as the Republic of the Congo, Uzbekistan, and Burma/Myanmar. These analogies are almost too outlandish to address. But even more hyperbolically, Shoemaker argues that the Ordinance ‘makes the City look like North Korea rather than an American city’. This final comparison should come as a surprise to the citizens of both nations.”

Indeed it does.

– Tom Root

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Case of the Day – Wednesday, August 25, 2021

SHUT MY MOUTH!

When the Harrises moved in back about 1956, they thought their land extended back well beyond where it actually did. They tended to their land – including the part they thought was theirs but wasn’t – planting flowers, mowing the lawn, and finally nurturing a beautiful break of pine trees along what they thought was the property line.

doghouse150730

The Harrises eventually sold the land to their granddaughter, Melissa Watts-Sanders. She likewise believed that the land went back to the trees, and she maintained it as though she owned (which she thought she did). Making her own improvements, she installed a dog pen on the disputed property.

Or perhaps we should we say “soon-to-be disputed property.” Because it seems she had a new neighbor, Mindy Chambliss. Ms. Chambliss did things right. Among those right things was her hiring of a surveyor. The surveyor unsurprisingly found that the land with the dog pen on it really belonged to Mindy.

Ms. Chambliss was not a lawyer (or much of a speller, which is a rapidly-dying art in this day and age). However, she knew some impressive-sounding legal terms – “cease and desist” being among them – so she wrote Ms. Watts-Sanders a missive demanding that she “cease and desist” with the dog pen, and claiming the property she believed to be rightfully hers. In the letter, Ms. Chambliss officiously explained that her survey “does superscede [sic] the fact that the property was maintained for 49 years.”

Badspelling140909Maybe it was the spelling. Whatever the reason, Ms. Watts-Sanders was not suitably cowed by the letter, so Ms. Chambliss sued. When she did, Ms. Watts-Sanders defended by arguing that a new boundary line had been established over the years by acquiescence. Nonsense, said Ms. Chambliss. Pine trees did not a boundary make, and none of Ms. Watts-Sanders’ predecessors had ever expressed an intention to occupy the land. And, Ms. Chambliss said, proudly showing her “cease and desist” letter to the Court, she had told Ms. Watts-Sanders about the surveyor’s findings.

‘Say what?’ the court asked, looking at the letter. ‘You mean Ms. Watts-Sanders and her people had maintained the property for 49 years?’ Well, the Court said – notwithstanding Ms. Chambliss’s opinion – that really did “superscede” something. In fact, given that Watts-Sanders and her predecessors’ people maintained and used the land for half a century without any complaint from Chambliss’s predecessors, the case was pretty compelling that someone had acquiesced to the pine tree boundary.

The lesson here? Clients, let your lawyers be your mouthpiece. Ms. Chambliss’s smug “explanation” of what trumped what turned out to be an admission against her own interests, and ended up being a pretty costly law lecture.

There's a reason lawyers are called 'mouthpieces' ...

There’s a reason lawyers are called ‘mouthpieces’ …

Chambliss v. Watts-Sanders, 2008-AR-0131.003, 2008 Ark. App. LEXIS 85, 2008 WL 241288 (Ark.App., Jan. 30, 2008). Mindy Chambliss and Melissa Watts-Sanders share a common backyard boundary. The dispute began after Ms. Chambliss ordered a survey which showed that Ms. Watts-Sanders had built a dog pen on Ms. Chambliss’s land. Ms. Watts-Sanders claimed property up to a row of pine trees planted on the disputed tract, but those trees were 23 feet east of the surveyed boundary line. Ms. Chambliss demanded that Ms. Watts-Sanders remove the dog pen, claiming to Ms. Watts-Sanders in writing that her survey superseded the fact that Watts-Sanders maintained the property for 49 years.

The property formerly belonged to Watts-Sanders’ grandparents, Vivian and Loren Harris. The Harrises bought the property in 1956 and built a house there. They later planted the pine trees and developed the flower bed toward the rear of the property. Mr. Harris cut the grass between the flower bed and the pine trees and that he treated the pine trees as the boundary between the two properties. No one except the Harrises used the disputed area since 1956. Ms. Watts-Sanders received the deed to the property from her grandmother in 2004. She noted that the pine trees were planted as close to in a line as possible and that the trees marked the boundary line between the properties.

Ms. Chambliss simply said too much. Never write paragraph where a sentence will do.

Ms. Chambliss simply said too much. Never write a paragraph where a sentence will do.

Ms. Chambliss purchased her property in 2003, and thought her land went to the concrete edging of the flowerbed. She was unaware that Ms. Watts-Sanders claimed possession of the disputed property until she placed the dog pen. Ms. Chambliss claimed that she had maintained the disputed property since purchasing it in 2003 and that she never saw Watts-Sanders on the property. The trial court found that Watts-Sanders had established the row of trees as the boundary by acquiescence and quieted title to the disputed property in her name. It also awarded her $250 in damages for the cost of rebuilding the dog pen. Ms. Chambliss appealed.

Held: The decision in favor of Ms. Watts-Sanders was upheld. Ms. Chambliss argued that the tree line was not a physical and permanent boundary, there was no evidence that Watts-Sanders’ predecessors occupied the disputed property, and there was no proof that any of Watts-Sanders’s predecessors-in-interest took any actions to indicate that the disputed land belonged to them.

The Court noted that the mere existence of a fence or some other line, without evidence of mutual recognition, cannot sustain a finding of boundary by acquiescence. However, silent acquiescence is sufficient, and the boundary line usually can inferred from the parties’ conduct over so many years. A party trying to prove that a boundary line has been established by acquiescence need only show that both parties at least tacitly accepted the non-surveyed line as the true boundary line.

The takeaway for today? Remember this ...

The takeaway for today is this …

Here, the Court said, the law merely required the boundary line to be some monument tacitly accepted as visible evidence of a dividing line, and the row of pine trees sufficed. The evidence was sufficient to show that Ms. Watts-Sanders and the Harrises occupied the disputed area, including evidence that Mr. Harris planted the pine trees and Ms. Chambliss’s own ill-advised admission that Ms. Watts-Sanders and the Harrises had maintained the disputed tract for forty-nine years.

Finally, evidence showed that only Ms. Watts-Sanders and her predecessors used the disputed tract. A boundary by acquiescence exists in cases where one party has used land belonging to another and the true landowner did nothing to assert his interest. Here, Ms. Watts-Sanders’ family’s use of the property remained undisturbed for almost 50 years. No one objected when her mother had one of the trees removed. Acquiescence can result from the silent conduct of the parties, and the fact that none of appellant’s predecessors used the property east of the tree line could be seen as tacit acceptance of the tree line as the boundary between the two properties.

– Tom Root
TNLBGray140407

Case of the Day – Tuesday, August 24, 2021

CONTEMPTUOUS NEIGHBORS

contempt150729Contempt of court is the mechanism by which a court enforces compliance with its orders. Punishment can range from a reprimand to jail time. Regardless of whether the contempt is civil or criminal, it’s something that litigants and lawyers would agree is best avoided.

Some people, like George Reece and Gerry Smith, just can’t help themselves. The neighbors squabbled for years over boundaries and an old hemlock tree. Finally, in 2005, they buried the hatchet, agreeing to a settlement where Reece gave Smith some property, and Smith gave Reece some property. The settlement specifically provided that Reece got property next to a pond that included his beloved hemlock tree.

So much for congeniality. It wasn’t long before they were back at it. Smith accused Reece of trespassing, harassing him, assaulting him, and diverting rainwater to flood Smith’s land. Reece countered that Smith had cut down his beautiful hemlock and destroyed a custom wrought-iron gate. The court threw up its hands, found them both in contempt and sent them off to jail for 20 days – presumably not as cellmates – to contemplate their misdeeds.

Reece and Smith could have been the inspiration for Mad Magazine's famous warring spies.

Reece and Smith could have been the inspiration for the late Mad Magazine’s famous warring spies.

Both of them appealed. The Court of Appeals sided with Smith for procedural reasons, holding that the act of asking that the other party be held in contempt was a motion, not a new civil action. That being the case, Reece wasn’t entitled to counterclaim for contempt himself. If he felt strongly enough about the destroyed gate and hemlock tree, Reece could file his own motion for contempt, or start a separate lawsuit for trespass to trees.

It’s a cinch that Reece probably felt strongly about it after 20 days in jail, and it seems to us rather hyper-technical of the court not to consider Reese’s misstyled counterclaim to be a motion for show cause to hold Smith in contempt. To do so would have been more efficient, as well as a triumph of substance over form.

Reece v. Smith, 292 Ga.App. 875, 665 S.E.2d 918 (Ga.App. 2008). This case was the last in a series of appeals resulting from several years of litigation between Gerry Smith and George Reece, who live next door to each other (but obviously not in harmony).

Smith and Reece repeatedly petitioned the court to intervene in a property-line dispute. In 2005, they entered into a settlement agreement in which they agreed to get an accurate survey of the disputed property and, based upon the survey, to convey portions of their property to each other in settlement of the long-running dispute. Smith specifically agreed that certain property next to a pond would belong to Reece and that this property included a tall hemlock tree. The court entered a final order approving the settlement agreement, ordering the parties to comply with it “in every respect.”

Two years later, Smith asked the court to hold Reece in contempt of the agreement. Smith said Reece had trespassed on his property several times, had threatened and hit him, and had caused rainwater to flow onto his property. Reece denied it and asked the court to hold Smith in contempt, saying that Smith cut down the hemlock tree, destroyed a wrought iron gate Reece had erected across his driveway, interfered with the surveyors, removed pins marking the property lines, blocked the access roads to his property, and stalked and harassed him and his guests. Reece asked for damages for the destruction of the hemlock tree and the gate.

The trial court found that each of them had committed some of the acts alleged and ordered them to serve 20 days in jail and pay a fine. The court also ordered Smith to pay Reece $5,000 in damages for cutting the hemlock tree, but it denied Reece’s claim for damage to the gate, ruling that he hadn’t presented sufficient evidence on the value of the gate.

Both parties appealed.

Held: The Court upheld the jail sentence against , but reversed Reece’s counterclaim. In order to find criminal contempt, there must be a showing of willful disregard or disobedience of the order or command of the court. The sentences and fines should be affirmed if there is sufficient evidence to find that a party committed at least one of the contumacious acts listed in the court’s order.

box150729Smith’s testimony that an adjoining owner had constructed his driveway in such a manner that it caused rainwater to dump onto Smith’s property, had trespassed and threatened him, and drove into a sand pile in Smith’s front yard was sufficient to support the court’s finding that Reece was in contempt of the court’s previous order relating to the settlement.

The contempt remedy is part of the judiciary’s inherent power to enforce its orders. As such, an action for contempt is ancillary to the primary action and is characterized as a motion and not a pleading. Because it is not a complaint, an application for contempt may not, standing alone, serve to commence a civil action for damages.

Therefore, Reece could not file a counterclaim for contempt or obtain an order requiring Smith to pay $5,000 in damages for cutting the hemlock tree. However, he could file a separate suit in superior court for damages resulting from destruction of the hemlock tree and wrought iron gate.

– Tom Root

TNLBGray140407

Case of the Day – Monday, August 23, 2021

WHO ARE YOU GOING TO BELIEVE – ME OR YOUR OWN EYES?

combusted150728Judges actually go to judges school to learn cool, judge-related things. Not the law … they already know about the law, or they know how to look it up. Instead, judges learn really practical things — such as how to tell when a witness is lying.

And how can you tell when witnesses are lying? No, not when their lips move. That’s too easy. But judges learn how to watch for signs — and they don’t tell us in the great unwashed what those signs are — that witnesses may be dissembling. Dissembling: a great euphemism for lying.

In today’s case, two New York neighbors had a common fence. On the Zeltsers’ side of the fence was a one-foot wide strip of land between the fence and the driveway. It had been there for a long time. The Zeltsers took care of the strip, planted trees and shrubs, enclosed it from the street and even paved part of it. But in 2003, the Sacerdotes had a survey done and found, lo and behold, the strip belonged to them. They tore down the fence and cut down the trees. The Zeltsers sued.

The trial court found, on the crucial issue, that the Zeltsers had used the one-foot wide strip openly, continuously and exclusively from 1987 to 2003. The Sacerdotes argued that there had been evidence — testimony from the Sacerdotes — that showed otherwise. But the Court of Appeals noted that the trial court — which had been in “a unique position to assess the evidence and the credibility of the witnesses” — resolved that issue in favor of the Zeltsers.

Generally, appellate courts will not disturb credibility findings of a trial court. The trial judge, after all, with her keen eye for prevaricators (a euphemism for dissemblers, see above), can smell testimony that gives off the reek of tergiversation — and the appellate court wasn’t about to question what the trial court had decided.

There is undoubtedly a good backstory here, one we’ll never know. The Zeltsers were awarded the one-foot strip by adverse possession, so it’s a cinch the judge believed them. In fact, all of the physical evidence – the old fence, the trees planted by the Seltzers, the asphalt and the edging – made this a pretty open and shut case.

The only evidence to the contrary was the Sacerdotes’ testimony. It was rather self-serving testimony at that. The self-serving nature doesn’t make it wrong, but it sure makes it suspect.

pic150728The Zeltsers won rights to the foot-wide strip. In the process, they lost any chance that they’d be invited to a Sacerdote picnic any time soon.

Zeltser v. Sacerdote, 860 N.Y.S.2d 624, 52 A.D.3d 824 (N.Y.A.D. 2 Dept., 2008). The Zeltsers and the Sacerdotes owned adjoining residential properties. When the Sacerdotes purchased their property in 1987, an existing fence — covered in rose bushes and vines — ran parallel with their property line from the street to a garage in the rear for about 100 feet. A small strip of dirt, about a foot wide was sandwiched between the fence and the Zeltsers’ driveway. The Zeltsers believed that the strip — which was on their side of the fence — belonged to them. They planted trees on the strip, trimmed the bushes and vines on the fence, and installed a row of bricks as an edging. They installed a fence that enclosed the front portion of the strip, making it inaccessible from the street, and they laid asphalt on the strip between their garage and the Sacerdotes’ garage, both of which were on the back portion of the respective properties.

It turned out that title to the one-foot strip was held by the Sacerdotes. They never mentioned that to the Zeltsers, and may have been uncertain about it themselves, until they had a property survey done in 2003. After the survey, the Sacerdotes removed the fence and the trees.

The Zeltsers sued to quiet title to the disputed strip, based on their claim of adverse possession.

liarliar150728Held: The Zeltsers had become owners of the strip of land by adverse possession. The Court observed that a party claiming title by adverse possession – rather than a written instrument – must show that the parcel was either regularly cultivated, or improved or protected by a substantial enclosure. Additionally, the party must satisfy the common-law requirements demonstrating by clear and convincing evidence that the possession of the parcel was hostile, under claim of right, open and notorious, exclusive, and continuous for the statutory period of 10 years.

The trial court properly found that the Zeltsers had established that they met both the statutory and common-law requirements of adverse possession. The trial court’s findings relied substantially on its perception of the credibility of the witnesses, and the appellate court was not willing to disturb those findings. The Court said that the evidence established that the Zeltsers openly used and maintained the disputed strip from 1987 until 2003.

The Sacerdotes argued that there was conflicting evidence as to whether the Zeltsers’ possession of the disputed property was exclusive. However, the trial court — which, the Court observed, “was in a unique position to assess the evidence and the credibility of the witnesses” — resolved that issue in favor of the Zeltsers, and the appellate court wasn’t about to disturb the finding.

– Tom Root

TNLBGray140407