Case of the Day – Tuesday, February 19, 2019

PRIDE GOETH BEFORE A FALL

Rural lawyers are quite familiar with the not-so-legal but all-too-real concept of being “homered,” a problem I mentioned a week or so ago.

Being “homered” is a phenomenon that occurs when an out-of-town client, especially one represented by big-city out-of-town lawyers, appears in a small rural county courthouse on the opposite side of a case against a local resident represented by a local lawyer. As a matter of law, it means nothing that the judge plays golf with the local lawyer, or that the local litigant had been sitting in the next pew over from the judge’s family for two decades or more. The law does not countenance favoritism, and the judge has taken an oath.

That’s the law. But it is not real life. As a matter of fact, you can be sure that Vicki Lawrence was wrong when she warned you not to “trust your soul to no backwoods southern lawyer.” Indeed, if your case against a big pipeline company is being heard in the local courthouse, there’s no one to whom you would be better advised to trust your soul, or at least your case, than that shambling wreck of an attorney who needs a haircut and is wearing his lunch on his jacket lapel.

The other side might have good lawyers, indeed, very good lawyers from very good law firms from the big city. But that clownish local yokel with the battered briefcase is a great lawyer… because he knows the judge.

When you’re actively homering your opponent, luck is on your side. Of course, as my beloved 2nd grade teacher Minta Newmeyer taught me a few years ago, “luck” is defined as the result of preparation meeting opportunity. So having a couple of good-old-boy experts won’t hurt, and neither will not taking everything the smarty-pants experts from the pipeline company say at face value.

In today’s case, there is simply no way a local longtime landowner should have won against the big pipeline operator. When Buckeye Pipeline showed up at Bob Pichulo’s door after 25 years of silence wanting to clear-cut its easement, the company’s judgment that the trees should be removed should normally have been sufficient to carry the day. But Bob and his hometown legal talent found some experts of their own and – perhaps benefitting as well from the fair winds and following seas that result from homering the other side –  pretty much kicked the stuffing out of the haughty pipeline people.

It hardly helped Buckeye’s cause that its case was largely one of ipse dixit. The pipeliner’s case could charitably be summarized as “we own the easement, and the trees need to be cut because we say so.” Even after being called on it, Buckeye continued to spin, saying the tree roots were dangerous to the pipeline because they said so, and the trees could make lightning strike the pipeline because they said so. It’s a bad idea to make outrageous claims that you cannot back up. Regardless of your political persuasion, you can look at President Trump’s most recent dust-up with former FBI official Andrew McCabe, pick your prevaricator, and take my point.

The moral: When you’re Goliath going up against David, try a little humility. And duck when he fires that stone.

Pichulo v. Buckeye Pipeline Co., 2019 Mich. App. LEXIS 261 (Ct.App. Michigan, Feb. 14, 2019). Bob Pichulo bought property in Mount Morris Township back in 1992. Thirty-three years before the sale, the previous owners had granted Buckeye Pipeline an easement to construct and maintain an oil pipeline across the property.

Bob knew about the easement when he bought the place. Yet it hardly affected him for about 23 years. Then, in 2015, Buckeye sent him a letter informing him of Buckeye’s intent to remove 13 Norway maple trees were on the easement. Buckeye asserted that the trees had to be removed because they obstructed aerial surveillance of and access to the pipeline in case of an emergency or for repairs. In response, Bob sued seeking a temporary restraining order and permanent injunction against cutting the trees.

After an evidentiary hearing on the preliminary injunction motion, the trial court ordered that all underbrush be removed from the easement and the branches on the Norway maples be trimmed to provide a 10-foot clearance.

Buckeye later moved for summary disposition of Bob’s complaint, arguing that it was entitled to remove the trees as a matter of law. Bob responded that there was a real question whether the removal was reasonably necessary for Buckeye’s use of the easement. The trial court agreed with Bob.

Over the course of the four-day trial that followed, the trial court heard Bob’s testimony about the value of the trees to him; pilots’ testimony about the visibility of the pipeline easement after the clearing of underbrush and pruning of the trees; testimony from an expert who estimated that the trees were older than the pipeline, grew shallow roots, and had a monetary value of nearly $50,000; and testimony from experts in oil pipeline regulation, maintenance, and safety who disagreed about whether Buckeye’s proposed plan to remove the trees was reasonably necessary for its enjoyment of the easement.

The trial found Bob’s evidence to be more credible and convincing, and held that removal of the Norway maples was not reasonably necessary. Consequently, it permanently enjoined Buckeye from removing them.

Buckeye appealed.

Held: Bob was entitled to his permanent injunction.

Buckeye argued that it was entitled to judgment as a matter of law. Its argument, in essence, was that it had the easement for the purpose of maintaining its pipeline, and cutting down the trees was maintenance. No one could question Buckeye’s judgment that the trees should go.

An easement is a right to use the land burdened by the easement rather than a right to occupy and possess the land as does an estate owner. The use of an easement must be confined to the purposes for which it was granted, including any rights incident to or necessary for the reasonable and proper enjoyment of the easement, which are exercised with as little burden as possible to the owner of the land.

When considering the scope of an easement, a court must discern the parties’ intent as shown by the plain language of the document granting the easement. “Where the language of an easement is plain and unambiguous,” the Court said, “it is to be enforced as written and no further inquiry is permitted… Under our well-established easement jurisprudence, the dominant estate may not make improvements to the servient estate if such improvements are unnecessary for the effective use of the easement or they unreasonably burden the servient tenement.”

There was no question the easement gave Buckeye a “right of way” and “free ingress and egress,” for the purpose of constructing, maintaining, operating, altering, repairing, or removing the pipeline. And “maintenance” in an easement generally includes the right to clear “the property [of trees] to ensure maintenance and inspection,” the term “maintenance including maintaining the property in the appropriate condition so that it is accessible in the event that repair of the pipeline is required.” What Buckeye proposed to do by removing the trees was undoubtedly encompassed by the right of maintenance.

Buckeye argued that this conclusion required the trial court to grant it summary disposition. But a trial court also is required to consider “(1) whether the tree removal is needed for Buckeye’s effective use of the easement and (2) whether the tree removal unreasonably burdens Bob’s servient estate.” Those questions, the Court wrote, are in regard to the extent and scope of the easement, and generally are questions of fact.

Bob and Buckeye presented competing testimonial and documentary evidence regarding whether aerial surveillance of or access to the pipeline was unreasonably obstructed by the trees. Thus, the Court concluded, there remained a question of fact as to the extent of the burden presented by the trees and their roots with respect to potential emergencies and repairs. In light of such questions of fact to be decided at a trial, Buckeye was properly denied summary judgment.

That was especially true because the trial court made reasonable findings of fact that undercut Buckeye’s claims. Buckeye said the trees had to go in order to give Buckeye access to the right-of-way and the pipeline, to respond to emergencies as they arise; and to remove the risks that the tree roots posed to the pipe. Buckeye’s expert William Byrd testified that the trees and their roots inhibited Buckeye’s access to the pipeline, because excavation equipment could not reach the pipeline in an emergency. Byrd opined that removal of the trees was reasonably necessary for future maintenance and that such actions were common in the oil pipeline industry. Bob contradicted that evidence with testimony from his own expert Richard Kuprewicz. Rich concluded that removal of the trees was not reasonably necessary in anticipation of potential maintenance. He said federal regulations did not declare a set width for pipe excavation and opined that removal of the trees to access the pipeline when the time for such maintenance came would not significantly extend the time required to perform such excavation, should the need arise.

The trial court found Bob’s expert to be more credible when he said there was already adequate space to access the pipeline and that the potential requirement to remove the trees before performing such excavation, if needed, would not cause a significant delay. The appellate court give deference to the trial court’s findings of fact.

Buckeye also argued that the trial court clearly erred by finding that it is not permitted to remove the trees in anticipation of a future emergency. Buckeye introduced testimony that the Norway maples would present a significant burden both in identifying an emergency and accessing the pipeline in case of an emergency. Buckeye’s patrol pilot testified and provided photographs showing that his aerial view of the pipeline and easement was obstructed by the trees. Buckeye’s agent also testified that the trees would significantly delay Buckeye’s ability to properly access the pipeline. He noted that federal regulations required Buckeye to prepare an emergency plan. Buckeye already has such a plan, but to carry it out, it argued, it must remove the trees in question.

 

Bob’s evidence contradicted Buckeye’s claims. He elicited testimony from another pilot that the easement around the pipeline plainly was visible when flying past the property at the proper angle. Bob also provided photographs showing an unobstructed view of the pipeline, which is identified on the photographs by the presence of yellow tape. His expert Rich, meanwhile, testified that in cases of emergency, it would be entirely improper and unsafe to rush to the scene of the leak with large machinery and to begin excavation. Instead, he testified, the s pipeline had internal sensors that allowed for the identification of leaks in general areas, which could then be isolated and the flow of oil through that area stopped. This effectively reduced the amount of environmental contamination without having to rush in with dangerous machinery.

While Rich agreed that federal regulations required an emergency plan, he pointed out that the regs did not require removal of any trees.

The trial again found Bob’s expert to be more credible. With respect to locating an emergency via aerial surveillance, the trial court relied on the pilot’s photographs and testimony establishing that the pipeline was visible. Because the trial court’s decision on this issue relied on admissible and compelling evidence in the record, the Court of Appeals said, it was not clearly erroneous and thus carried the day.

The Court said, “Given our deference to the trial court’s credibility determinations and decision to believe [Rich] instead of Buckeye[‘s] expert, and the trial court’s reliance on admitted evidence, the record presented does not provide any reason for us to be “left with a definite and firm conviction that a mistake has been made. Thus, based on the facts as found by the trial court, Buckeye’s request to remove the Norway maple trees was not reasonably necessary for Buckeye to prepare for an emergency.

Finally, Buckeye argued that the trees had to be removed because their roots presented a danger to the pipeline. In support of that, its expert testified that tree roots acted as conduits for electricity, so they could cause lightning to strike the pipeline. In addition, Buckeye presented evidence that the roots potentially could grow toward and eventually chip away at the pipes, and its expert testified that the tree roots could entangle the pipeline, causing damage. On cross-examination, however, he acknowledged that he was aware lightning strikes could happen but did not know of any specific examples. Bob countered with expert testimony from an arborist who testified that the root system of a Norway maple stays in the top 10 inches of soil, which is above the pipeline. As to the tree roots and potential pipeline erosion, Bob’s expert explained that the pipeline’s cathodic protection would be able to provide a timely alert that a tree root was encroaching on the pipeline and, if that failed, other tools can be used to identify external corrosion of the pipeline.

The trial court again found Bob’s evidence more credible, weighing the fact that Buckeye’s expert could not identify any particular instance where a lightning strike on a pipeline had been conducted by a tree root. Considering that evidence in light of the arborist’s testimony that the tree roots did not go as deep as the pipeline and Rich’s testimony that Buckeye would be alerted to any encroaching root in a timely manner, the trial court found that removal of the trees was not reasonably necessary for Buckeye’s maintenance of the pipeline. The Court of Appeals held that the trial judge’s conclusion was not clearly wrong, and thus had to be accepted.

In sum, the Court of Appeals said,

Buckeye asserted that the Norway maple trees had to be removed because they were a danger to the pipeline and an obstruction to surveillance and access. Buckeye’s contentions rely on a misapplication of the law in Michigan with regard to easements. Buckeye, under the terms of the easement at issue here, does not have the right to ensure freedom from any and all obstructions or dangers to the pipeline. That simply is not the standard for such inquiries. Instead, Buckeye’s rights under the easement are limited to freedom from unreasonable obstructions or dangers. The extent, or reasonableness, of the obstruction presented by the trees is a fact question for the trial court to decide and it did so here. The trial court, after considering all of the evidence and weighing the credibility of the witnesses, decided that removal of the Norway maple trees was not reasonably necessary for Buckeye’s maintenance, operation, or repair of the pipeline.

– Tom Root

TNLBGray140407

Case of the Day – Friday, February 15, 2019

SO WHY ISN’T IT THE CALIFORNIA RULE?

The Massachusetts Rule is a topic I tend to flog ad nauseum. This is chiefly because it arises in so many states and in so many forms.

There are two components to the Massachusetts Rule. The first is easy and universally acclaimed. A landowner owns the portion of branches and roots of a neighbor’s tree than encroach on the landowner’s property, and may trim those to his or her heart’s content.

The second is more controversial, and has been limited or abridged by a number of jurisdictions, that a landowner’s right to stop an encroaching tree from harming his or her property is limited to self-help – you can trim limbs and cut roots to the boundary line, but you cannot sue to force the tree’s owner to do it for you.

There are more exceptions than you can shake a fallen limb at. The Hawaii Rule holds that you can sue to have the tree’s owner “abate a nuisance,” that is, do whatever it takes to stop the tree from causing you “sensible harm.” Variations have been adopted in Virginia, North Dakota, New Mexico and Tennessee, to name a few places. In fact, some argue that the Massachusetts Rule is a frontier relic, and these days, urbanization and complexity make it prudent for tree’s owner to be responsible for nuisances it causes.

Curiously, however, everyone still refers to the original flinty self-help standard as the Massachusetts Rule. But it arose in Michigan before that, and – as we see today – in sunny California about seven years before Michigan.

I saw a column in the San Francisco Examiner the other day written by a California lawyer. He was explaining how California fixed liability for fallen trees. He cited a California Supreme Court case called Grandona v. Lovdal, which he described as a 1952 decision that applied the Massachusetts Rule in California (although he did not call the rule that).

I was puzzled, because I thought I knew the leading California cases for the last half of last century. I had never heard of Grandona or Lovdal. I looked it up, and had a tough time finding it. It turned out it had been decided 63 years earlier, in 1889.

And it is a fascinating case, one in which the parties squabble of how much benefit or damage the trees caused, exhaustively referree’d by the trial court. The California Supreme Court simply cut the Gordian knot: it does not matter, the Court said, because the plaintiff has the power to stop encroachment at the property line, and with a saw instead of a lawsuit. While the Court did not say that a nuisance action would never lie (and California has leaned more toward Hawaii and away from Massachusetts in the ensuing 130 years), it seemed to pretty firmly foreclose any successful nuisance action as long as the landowner could be said to own anything straying over or under the damaged property.

So why don’t we call it the California Rule?

Grandona v. Lovdal, 21 P. 366, 78 Cal. 611 (Supreme Ct. Cal. 1889). Andrea Grandona owned about 15 acres of farmland next to that of Ole Olson Lovdal. Ole Olson (probably not the children’s chant) had a line of cottonwoods, planted about eight feet apart, running for 500 feet or so just on his side of the boundary, planted about 25 years before by a prior owner.

Andrea complained that the branches of the tree were overhanging part of her land, and the roots were encroaching about 30 feet into her property, making plowing impossible. She sued to abate a nuisance and for damages, wanting Ole Olson to pay her for the damage the trees caused, and to cut them down.

The trial court would have none of it. It found that the trees had not destroyed any portion of Andrea’s crops, and the had not prevented Andrea from plowing or cultivating the land. In fact, the trees ha anchored the fence against floods, and Ole Olsen had kept the trees trimmed, using the limbs he removed for fuel and construction, but he had done nothing more to affect their growth other than to trim.

Andrea appealed, and the case ended up in the Supreme Court.

Held: The trees were no nuisance, and Ole Ole Olson is in free.

The Court was not impressed with Andrea’s complaint that the trees prevented full and fair use of the land, because he could not plant fruit trees on the shaded portion. The Court noted with a bit of exasperation that “we are unable to see how it can be said that land is injuriously affected, or that its owner’s personal enjoyment is lessened, because he cannot use it for a purpose which he has never attempted or wished to use it for.”

The heart of the Court’s decision, however, was that Andrea could hardly be inconvenienced by overhanging branches or encroaching roots, because that which encroached on his property belonged to him. “The trees and the overhanging branches,” the Court said “insofar as they were on or over his land, belonged to the plaintiff, and he could have cut them off or trimmed them at his pleasure. This being so, we do not see how the fact that the trees had grown so that a small part of them was on plaintiff’s land could give him any cause of action.”

Andrea argued that Ole Olson “maintained the trees for the purpose of supplying himself with fuel and hop-poles, and thereby using plaintiff’s land for his own profit and advantage.” But how can this be so, the Court wondered. “The fuel and hop-poles growing over plaintiff’s land were his, and could have been claimed by him as against the defendant. And the fact that the balance of the limbs and branches were useful to defendant in no way harmed the plaintiff or gave him cause for complaint.”

The trial court’s dismissal of Andrea’s complaint was upheld.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, February 14, 2019

A PRÉCIS ON ENCROACHMENT

North Dakota - you can see the gas flares from outer space.

North Dakota – you used to be able to see the gas flares from outer space. Now, the place is hot once again. 

It’s been a roller coaster for North Dakota over the past decade. Early on, North Dakota was a pretty happenin’ place. It was the No. 2 oil producer in the country, unemployment there was at a measly 2.6%, 18,000 more people moved there in 2013 than left … and the state had so much underground methane that it was flaring $100 million in natural gas a month that it couldn’t use.

Suddenly, you couldn’t give away houses there, equipment firms were saddled with bulldozers they couldn’t use, and boom towns were going bust.

But what goes around comes back again. Now, Nodak is back on top, pumping as much oil as all of Venezuela (although that’s a pretty low bar). But we’re not here to talk about fracking.  The natural resources we care about around here are underground only to the extent of their root systems – root systems that, along with branches, can occasionally encroach on the neighbors. And that can be a real pain in the neck.

About seven years ago, our guest justices from the North Dakota Supreme Court took time from deciding mineral rights, liability for train derailments, mobile home park regulation and the like to consider the law of tree encroachment. They did a bang-up job of summarizing the history, policy bases and goals of the various rules, before thoughtfully consigning the Massachusetts Rule’s proscription against lawsuits to what we here at treeandneighborlawblog call the “wood chipper of history.”

Back to the pain-in-the-neck tree. Dr. Richard Herring knows something about pains in the neck. They’re his livelihood, as long as they’re found in his patients. But this chiropractor had to deal with another pain the neck, too. The property next door, on which sat an apartment building, had a large tree with branches that were overhanging Dr. Herring’s bone-crunching office. He fought back with self-help, trimming branches, cleaning up the debris that clogged his gutters, and raking up the mess the tree made every fall. But he couldn’t keep ahead. Finally, the branches damaged his building, and the debris created an ice dam on his roof that flooded the place.

pain-neck140211The absentee owners and hired managers at the apartment house next refused his entreaties to care for the tree. So he sued, claiming that they had a duty to manage the tree so it didn’t mess up his place. The trial court threw the suit out, telling the good doctor that he could trim the parts of the tree that were overhanging his place, but that was his only remedy.

“Wait,” you say, “that’s the Massachusetts Rule.” Right you are. But, as the North Dakota Supreme Court decided, there are other rules out there as well, including some that it thinks are a whole lot better than the doddering relic from Michalson v. Nutting. It reversed the trial court, holding that a tree owner does indeed have a duty to care for his or her trees so as to avoid damage to others.

In its thoughtful opinion, the Court wrote perhaps as fine a roundup on tree encroachment rules as has yet been written.

Herring v. Lisbon Partners Credit Fund, Ltd., 2012 N.D. 226, 823 N.W.2d 493 (Sup.Ct. N.D., 2012). Dr. Herring owned a commercial building in Lisbon housing his chiropractic practice. The apartment building next door is owned by Lisbon Partners and managed by Five Star. Branches from a large tree located on Lisbon Partners’ property overhang Herring’s property and brush against his building. For many years, Dr. Herring trimmed back the branches and cleaned out the leaves, twigs, and debris that would fall from the branches and clog his downspouts and gutters. He claimed that the encroaching branches caused water and ice dams to build up on his roof, and eventually caused water damage to the roof, walls, and fascia of his building. Herring contends that, after he had the damages repaired, he requested compensation from Lisbon Partners and Five Star but they denied responsibility for the damages.

Encroaching tree roots and branches can sometimes be unsightly

Encroaching tree roots and branches can sometimes be unsightly

Dr. Herring sued Lisbon Partners and Five Star for the cost to repair his building, claiming the companies had committed civil trespass and negligence, and maintained a nuisance by breaching their duty to maintain and trim the tree so that it did not cause damage to his property. The district court granted Lisbon Partners and Five Star’s motion for summary judgment, dismissing Herring’s claims. The court held Lisbon Partners and Five Star had no duty to trim or maintain the tree, and Herring’s remedy was limited to self-help. He could trim the branches back to the property line at his own expense, but that was it.

Held: The trial court’s dismissal was reversed, and Dr. Herring was given his day in court.

The North Dakota Supreme Court began its analysis by observing that the Massachusetts Rule was the original common law on tree law in the United States, holding that a landowner has no liability to neighboring landowners for damages caused by encroachment of branches or roots from his trees, and the neighboring landowner’s sole remedy is self-help: the injured neighbor may cut the intruding branches or roots back to the property line at his own expense. The basis for the Massachusetts Rule is that it is “wiser to leave the individual to protect himself, if harm results to him from the exercise of another’s right to use his own property in a reasonable way, than to subject that other to the annoyance and burden of lawsuits, which would likely be both countless and, in many instances, purely vexatious.

The Hawaii Rule, on the other hand, rejected the Massachusetts approach as overly simplistic. Instead, it held that the owner of a tree may be liable when encroaching branches or roots cause harm, or create imminent danger of causing harm, beyond merely casting shade or dropping leaves, flowers, or fruit. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.

The Restatement Rule, based upon the Restatement (Second) of Torts §§ 839-840 (1979), distinguishes between natural and artificial conditions on the land. Under the Restatement Rule, if the tree was planted or artificially maintained it may be considered a nuisance and its owner may be liable for resulting damages, but there is no liability for a naturally growing tree that encroaches upon neighboring property.

The Virginia Rule, adopted in 1939, makes a distinction between noxious and non-noxious trees. Under the old Virginia rule, a tree encroaching upon neighboring property will be considered a nuisance, and an action for damages can be brought, if it is a “noxious” tree and has inflicted a “sensible injury.”

The district court concluded that under N.D.C.C. § 47-01-12, Herring had a “right” to do as he wished with the overhanging branches and underlying roots of the tree, and therefore this portion of the tree was “just as much the responsibility of the adjacent landowner as it is the owner of the trunk.” In effect, the district court concluded that because Herring had the “right” to the branches above his property, he therefore had the responsibility to maintain them as well.

The state Supreme Court complained that the district court had essentially nullified N.D.C.C. § 47-01-17. That statute expressly provides that when the trunk of the tree is wholly upon the land of one owner, the tree “belong[s] exclusively to that owner.” The district court’s holding that Herring in effect owned the branches above his property was thus contrary to statute. Statutes must be construed as a whole and harmonized to give meaning to related statutes, and are to be interpreted in context to give meaning and effect to every word, phrase, and sentence. The interpretation adopted by the district court did not give meaning and effect to that portion of N.D.C.C. § 47-01-17 which provides that the owner of the tree’s trunk “exclusively” owns the entire tree.

Our thanks to the Supreme Court of North Dakota for its comprehensive opinion ...

Our thanks to the Supreme Court of North Dakota for its comprehensive opinion …

Contrary to the district court’s conclusion that the Massachusetts Rule was more consistent with North Dakota statutory law, the Supreme Court held that the Hawaii Rule more fully gives effect to both statutory provisions. The Hawaii Rule is expressly based upon the concept, embodied in N.D.C.C. § 47-01-17, that the owner of the trunk of a tree which is encroaching on neighboring property owns the entire tree, including the intruding branches and roots. And because the owner of the tree’s trunk is the owner of the tree, the Supreme Court thought he or she should bear some responsibility for the rest of the tree. The Court said “we think he is duty bound to take action to remove the danger before damage or further damage occurs.”

The Supreme Court also observed that “the Hawaii Rule is the most well-reasoned, fair, and practical of the four generally recognized rules. We first note that the Restatement and Virginia rules have each been adopted in very few jurisdictions, and have been widely criticized as being based upon arbitrary distinctions which are unworkable, vague, and difficult to apply … In fact, the Supreme Court of Virginia has … abandoned the [old] Virginia rule in favor of the Hawaii Rule [in] Fancher …”

The Court said the Massachusetts Rule fostered a "'law of the jungle' mentality" among landowners.

The Court said the Massachusetts Rule fostered a “‘law of the jungle’ mentality” among landowners.

The Court also complained that the Massachusetts Rule has been widely criticized as being “unsuited to modern urban and suburban life.” The Massachusetts Rule fosters a “law of the jungle” mentality, the Court said, because self-help effectively replaces the law of orderly judicial process as the only way to adjust the rights and responsibilities of disputing neighbors. The Court observed that while self-help may be sufficient “when a few branches have crossed the property line and can be easily pruned by the neighboring landowner himself, it is a woefully inadequate remedy when overhanging branches break windows, damage siding, or knock holes in a roof, or when invading roots clog sewer systems, damage retaining walls, or crumble a home’s foundation.”

Accordingly, the North Dakota Supreme Court held that “encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.” The rule does not prevent a landowner, at his or her own expense, from cutting away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, February 13, 2019

YOU, SIR, ARE NO GENTLEMAN

It is fairly common to find parties in some kind of kerfluffle over an alleged breach of contract, where one complains that despite what the document might say, the parties had really orally agreed to something else altogether.

That’s what canny lawyers make sure that every contract has an integration clause in it. An integration clause is no relic of the civil rights era. Instead, it provides that the parties have no deals but the deal written down in the contract, and if it ain’t written, well… then it just ain’t so.

Beyond the careful draftsmanship lies the common-law “parol evidence rule.” The word here means “oral” or “solely evidenced by speech.” Today’s case provides a perfect example of it. When the power company got a written easement to trim trees on the Larew estate, that easement provide it could keep the lines free of tree hazard. But as the easement was being signed, Mr. Larew asked, “How about my 300-year old white oak?”

“Oh, that?” the slick power company real estate man said. “We’ll never touch it. You have my word on it.”

Right. It may have taken the power company 20 years, but the tree did get hacked up. When old man Larew’s kids sued – he was long gone – the power company said, “What gentlemen’s agreement?”

Its lawyers, having gone to law school, said, “Parol evidence rule! You can’t introduce evidence of an inconsistent oral deal to undercut a clear written easement.”

They were right about that, but dead wrong that the easement meant that they could do as they liked to the trees. The trimming crew boss talked to the property owners, but then unlimbered the saws and, as for what was needed, said, “I’ll be the judge of that!”

The West Virginia Supreme Court said, “Not so fast, my friend! ‘Reasonableness’ and a due regard for the rights of the Larews have a lot to do with it, too.

Larew v. Monongahela Power Co., 199 W. Va. 690 (Supreme Ct. W.Va., 1997). In 1975, Glen Larew (a predecessor-in-interest to Susan and Keith Larew) granted a written easement to Monongahela Power Company giving Monongahela the right to trim, cut or remove trees in order to maintain electric service. According to the Larews, there was also a “gentlemen’s agreement” in 1975 that a 300-year old white oak tree on the Larew property would never be touched.

However, one day in 1994, Asplundh Tree Expert Company, Monongahela’s tree trimming contractor, told the Larews that tree trimming would commence shortly pursuant to the easement. The Larews discussed the extent of the trimming with Asplundh, but to no avail. Two months later, the trimmers arrive with chainsaws blazing. They trimmed three trees on the Larews’ property, including severely cutting up the 300-year old white oak.

The Larews sued for wrongful cutting, arguing that the extent of trimming was unreasonable. Monongahela filed for summary judgment, alleging that “reasonableness” is not an issue because the determination of the extent of tree trimming needed rests solely with the easement holder. The trial court agreed with Monongahela, and dismissed the Larews’ complaint.

The Larews appealed.

Held: The power company’s easement gave it the right to trim trees to the extent that the trees endangered the safety or interfered with the use of the power lines, but such trimming has to be done in a reasonable manner with due regard to the rights of all parties. The trimming must not inflict unnecessary damage to the land or unreasonably increase the burden on the servient tenement (the property owner’s rights).

The Larews raised two arguments on the appeal. First, they claimed, the trimming violated the 1975 “gentlemen’s agreement” not to trim the white oak. Second, they argued that the trimming performed was unreasonable.

The Supreme Court made short work of the “gentlemen’s agreement.” The parol evidence rule, which generally prohibits the introduction of any extrinsic evidence to vary or contradict the terms of written contracts, is quite clear: prior or contemporaneous statements that contradict clear, unambiguous language of a written contract are inadmissible. Parol evidence may only be admitted toexplain uncertain, incomplete or ambiguous terms.

Here, the terms of the written easement were clear, and evidence of an oral “side deal” that contradicted those written terms was inadmissible.

The fee interest in land over which a power company has been granted an easementremains in the party making the grant. The grantor-owner of the land retains the right to make any reasonable use of the land subject to the easement so long as that use is not inconsistent with the rights of the grantee.

In exercising the rights granted under an easement, a power company must follow the rule of reasonableness. In other words, the power company may not inflict unnecessary damage on the land and may not unreasonably increase the burden placed upon the servient tenement.

A power company does have the right, under a general right-of-way easement, to enter upon the land to maintain and repair its equipment to the extent necessary to the safe and effective operation of that equipment. A power company, however, in exercising that right of entry, may not inflict unnecessary damage on the land. A power company, in exercising its right to enter upon the land to maintain or repair its equipment, may not unreasonably increase the burden placed upon the servient tenement. This right of entry includes the right to enter upon the land to cut or trim trees or limbs which might be a danger to the power lines.

A power company’s right as an easementholder is limited to the removal of that which endangers the safety, or interferes with the use of the power company’s lines on the right-of-way and any removal must be done in a reasonable manner, with due regard to the rights of all the parties. The power company’s rights are not, however, unlimited. The power company must not inflict unnecessary damage to the land nor may its exercise of its rights unreasonably increase the burden placed on the servient tenement.

The Larews also maintained that there was a genuine issue of material fact concerning the reasonableness of Monongahela’s trimming. The circuit court held that “the easement permits Mon Power to exercise its own opinion in determining how much to trim to prevent the trees from interfering with the power lines” and that the rule of reasonableness stated in Kell v. Appalachian Power did not apply.

In Kellthe Court observed that the “fee interest in land over which a power company has been granted an easement remains in the party making the grant. The grantor-owner of the land retains the right to make any reasonable use of the land subject to the easementso long as that use is not inconsistent with the rights of the grantee.”

Thus, the Court said, in exercising the rights granted under an easement, a power company must follow the rule of reasonableness. It “may not inflict unnecessary damage on the land” and “may not unreasonably increase the burden placed upon the servient tenement.” In Kellthe Court held that the right given by the utility easement was “to cut and remove trees, overhanging branches or obstructions that endanger the safety, or interfere with the use, of the power company’s lines on the right-of-way granted by the indenture.”

Given the principles that Kell is predicated upon, the Court said, “we find that the circuit court erred in holding that as a matter of law, the appellees were not subject to the reasonableness rule of Kell. [Monongahela’s] right is limited to the removal of that which endangers the safety, or interferes with the use of the power company’s lines on the right-of-way and any removal must be done “in a reasonable manner, with due regard to the rights of all the parties.”  

Because there is a genuine question of material fact concerning whether the power company unreasonably increased the burden on the Larews’ property when it exercised its rights under the easement, and whether Monongahela limited the trimming to that necessary to assure the safety and continued use of the power company’s lines, summary judgment should not have been granted.

– Tom Root

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Case of the Day – Tuesday, February 12, 2019

DAMNED IF YOU DO…

Yesterday, we read about Mamie Segraves, who successfully sued an electric utility because its workers determined that trees within its easement posed a risk to the distribution lines, and that one should be removed and the other topped.

Segraves taught us that in Missouri, the utility’s judgment that a tree needs to be removed does not mean much if the homeowner wants it preserved. Today, from the Damned If You Do, Damned If You Don’t Department comes another Missouri decision, in which a utility is held liable because the landowner wanted a tree in the easement area removed, but the utility did not see the need.

When Greg Fenlon noticed a hazard tree he believed threatened his local power grid, he called the electric company. It’s crews, unfortunately, were uninterested in taking direction from Greg and, to make matters worse, did not perform their duties much to Greg’s liking. He wanted the hazard tree removed. They demurred.

After the crew headed off for coffee and doughnuts, Greg hired a crew that would take direction from him (because he was paying them). Greg’s crew removed the tree, and Greg sent the bill to Union Electric. Union sent it back.

Greg was as serious about litigation as he was tree removal. He sued Union Electric for the cost of his tree-cutting crew. And he got further than you might think.

Fenlon v. Union Electric Co., 266 S.W.3d 852 (Court of Appeals of Missouri, Eastern District, 2008). Greg Fenlon was not a guy to let a job go undone. When he noticed a dangerous tree interfering with Union Electric wires, he contacted the utility to report it. Union Electric sent a couple of men in a truck, who trimmed back a few branches but refused Greg’s demand that they cut down the hazardous tree (despite the fact it was inside the utility’s easement). So Greg did the job himself, hiring a contractor to cut down the tree. He then sued the utility for the cost of the removal.

The trial court dismissed Greg’s claim, and he appealed.

Held: Greg’s suit was reinstated.

The Court observed that suppliers of electricity must exercise the highest degree of care to maintain their wires in such condition as to prevent injury, citing the Missouri Supreme Court’s Gladden case. However, the Court said, “nothing in Gladden limits the exercise of the highest degree of care solely to the trimming of branches that are either touching or close to wires. Rather, the focus in Gladden is on the likelihood of injury and prevention thereof.”

The key issue here, the Court said, was whether the hazard tree created an unreasonable risk of injury, and that was a question of fact. If it did, then Greg’s self-help in the Union Electric easement should be paid by the utility.

The trial court was in error when it effectively determined a question of fact question on a motion to dismiss. Greg’s pleadings were adequate to state a cause of action, so the matter had to go back for trial.

– Tom Root

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Case of the Day – Monday, February 11, 2019

HERE WE CUT DOWN THE MULBERRY BUSH…

When Mamie’s lights went out, she called the electric company to fix them. The linemen tracked down the problem and fixed it while Mamie was off at Wal-Mart. But while they were there and Mamie wasn’t, the electric workers saw an excellent opportunity to saw… and to get rid of some trees in the utility’s easement across Mamie’s yard that they thought were in the way of the distribution line to Mamie’s house.

Mamie returned, shopping bags in hand, to find her mulberry tree had been cut down and cherry tree topped. Naturally, she sued. After all, her trees had not caused the power outage. But the electric company said the tree could have caused the power loss, but for the grace of God, and it relied on its easement to support its right to remove the one tree and permanently stunt the other out of concern that someday they might pose a hazard.

I would have bet a new chainsaw that the electric company was going to win this one, and I can only conclude that it may have been “homered” by the local judge. After all, Mamie was a neighbor, and the big, bad electric co-op was just some faceless out-of-towner. I know of no other way (than possibility an inability to read precedent and engage in reasoned thought) to justify a holding that while the utility had an easement, as well as the duty to maintain the reliability of its lines, it nonetheless could not merely be liable for overzealous trimming, but even be socked with treble damages.

Treble damages are only appropriate in Missouri if the malefactor lacks probable cause to believe it owned the land the tree stood on. That test should have been modified to comport with the facts. Consolidated had an easement for the electric lines to cross Mamie’s property, and whether its decision to trim or remove the trees near its lines was correct or not, the decision should have been accorded deference.

Tomorrow, we’ll look at a subsequent Missouri electric company case, where we will see the utility get sandbagged despite its desperate reliance on today’s holding.

Segraves v. Consolidated Elec. Coop., 891 S.W.2d 168 (Ct.App. Missouri, 1995). Mamie Segraves sued Consolidated Electric Co-op, her electric utility, after one of its linemen cut down her mulberry tree and “topped off” her cherry tree.

One summer day, Mamie awoke to find that her electricity was off. She left to go shopping at 9 a.m., and when she returned two hours later, the lights were back on. However, the mulberry and cherry trees in her front yard had been cut down and one branch of her elm tree had been cut off.

Mamie testified these trees had never interfered with her electrical service before. In the past, Consolidated had asked to trim the trees around her electric lines, and she had always agreed, but it had not done so in the past six years. Mamie estimated the value of the mulberry tree was $2,000.00, and the value of the cherry tree was $500.00.

Mitch Hurt, a senior linemen with Consolidated, testified he was called to handle an electrical outage. He tracked the outage to a problem with one of the lines near Mamie’s home, but he could not pinpoint the problem. He had to drive down the road and look at the individual lines to try to find the problem. When he passed the line leading up to her house, he could not see the transformer pole. He stopped and went to inspect her service. He noticed her mulberry tree was very close to the transformer, and so he cut it down “to get it away from the transformer pole.” He also cut off the entire top of a nearby cherry tree because its branches had all grown towards the line. He felt these branches presented a safety hazard because children could easily climb them and reach the power lines. Mitch admitted it may not have been necessary to cut down either of these trees to reinstate electrical service.

Bob Pogue, Jr., Mitch’s boss, testified he told Mitch to trim as much of the trees as he thought was necessary. Bob Jahn, Consolidated’s general manager, testified Mamie knew about the location of the electric lines when she bought the place.

The trial court found in Mamie’s favor, and assessed treble damages. Consolidated appealed.

Held: The Co-op had no right to cut the trees, and treble damages were proper.

The trial court did not find Consolidated to be a trespasser, because it had the right to enter onto Mamie’s premises to maintain the electric lines. The right to remove limbs that have fallen onto the lines, however, “does not extend to cutting down trees or ‘topping’ trees that are not presently interfering with electrical service without prior consultation with the property owner.” While the mulberry and the cherry trees probably needed to be trimmed, the trial court said, there was no evidence that the mulberry “needed to be cut to a stump and that the cherry needed to be cut back to its major trunks, eliminating all of the fruit-bearing branches.”

Section 537.340 of the Revised Statutes of Missouri allowing for treble damages for the destruction of trees, does not require that a party wrongfully enter upon the property. In fact, the Court of Appeals said, Mamie can recover for wrongfully cut down trees if she can establish either that Consolidated wrongfully entered her land and cut down the trees, or Consolidated entered her land with consent but exceeded the scope of the consent by cutting down the trees without permission.

While it is true, as Consolidated argued, that a license may be converted into an easement by estoppel if the licenseholder can establish it spends a great deal of time and money to secure enjoyment of its use, the scope of such an easement nevertheless will be determined by the meaning and intent that the parties give to it. The Court found no history between the parties of cutting down trees, and nothing from which such a right to cut down trees can be implied. Thus, even if Consolidated did acquire an easement by estoppel, it exceeded the scope of the easement by cutting down Mamie’s mulberry and cherry trees.

The utility also argued it was required by law to trim or remove the trees to ensure safety. Under the National Electrical Safety Code, Consolidated argued, it was required to trim or remove trees that may interfere with ungrounded supply conductors should be trimmed or removed, and where that was not practical, the conductor should be separated from the tree with proper materials to avoid damage by abrasion and grounding of the circuit through the tree. Consolidated maintained it had authority to remove Mamie’s trees according to the Code because there was substantial evidence showing limbs of both trees had been burned by electricity, the mulberry tree was blocking the transformer pole, and the children living nearby could have easily climbed either tree and reached the live electric wires.

The Court rejected that, holding that Consolidated failed to show that the Code applied here because it failed to present evidence that the electrical wires leading to Mamie’s home were “ungrounded supply conductors.” Further, even if the Code applied, it gives electric companies two options, trim or remove the trees. The trial court found it was unnecessary to remove the trees in this case.

Not to be deterred, Consolidated also argued it was obligated to remove the trees because it had a non-delegable duty to maintain a safe clearance around its electrical lines. “Although Consolidated was required to exercise the highest degree of care in maintaining its electrical wires,” the Court said, “it was not required to remove the trees surrounding them, and it exceeded its authority by doing so.”

Section 537.340 of Missouri Revised Statutes holds that if any person shall cut down, injure, or destroy or carry away any tree placed or growing for use, shade, or ornament, or any timber, rails, or wood standing, being or growing on the land of any other person, the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed, or carried away, with costs.

The Court noted that a person can only fell trees wrongfully in one of two ways: he can enter the land wrongfully and fell the trees; or, he can enter with the landowner’s consent and then exceed the scope of that consent by felling trees without permission. While the statute limits damages recoverable to single damages in certain cases, such as where it appears the defendant has probable cause to believe that the land on which the trespass is alleged to be committed, or that the thing so taken, carried away, injured, or destroyed, is his own. It was up to Consolidated to prove it has such probable cause.

The determination of whether the defendant proved probable cause existed rests with the trial judge. Here, the Court said, “the trial judge did not abuse his discretion in finding Consolidated did not have probable cause” to believe it had the right to cut down Mamie’s trees.

– Tom Root

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