Case of the Day – Monday, December 20, 2021


It's hard to enjoy an idyllic sunset when you can't get to the lakeshore.

It’s hard to enjoy an idyllic sunset when you can’t get to the lakeshore. Recreational use statutes make it easier.

A landowner has little natural incentive to let people freely enjoy his or her land. You have a nice pond and woods, and, being as you’re a nice person, you let the birdwatchers’ society wander around looking for the white-throated needletail. Next thing you know, one of them steps into a prairie dog hole, and you’re being sued.

But public policy is firmly in favor of getting people out to enjoy nature’s bounty (and to exercise, a good idea what with all of the helpings of Christmas goose and figgy pudding we’re consuming this season). For that reason, virtually all states have passed some version of a recreational use statute. These statutes generally state that a landowner only has a duty not to be grossly negligent to people using his or her unimproved land without charge for recreational activities. They are intended to encourage the opening of private land – unspoiled natural areas – for free recreational use by shielding landowners from liability for the most common forms of negligence.

Today’s case raises an interesting question under the Texas recreational use statute. In this case, the City of Waco had a park that included limestone cliffs. A boy was sitting on the cliffs when a portion collapsed, causing him to fall to his death.

A user might anticipate he could fall off a cliff – but not that it would give way.

A user might anticipate he could fall off a cliff – but not that it would give way.

The City argued it couldn’t be held liable under the statute, because it did nothing to cause the defect in the cliffs. However, the Court of Appeals agreed with the boy’s mother that the landowner didn’t need to cause the defect if the fault was so latent, that is, hidden, that the recreational user would not reasonably be aware of it. That one might accidentally fall off a cliff was foreseeable, the court admitted. But it wasn’t open and obvious that the cliff one was sitting on would suddenly give way.

Because the defect wasn’t obvious, all the boy’s mother had to do was advance in her pleading some allegation of gross negligence. In her complaint, she argued that the City was aware others had been hurt by falling rocks, and it had reports warning of the danger of collapsing cliffs. Those reports recommended the City post warning signs, but it didn’t. The court said those allegations were good enough to make out a claim under the recreational use statute.

Kirwan v. City of Waco, 249 S.W.3d 544 (Tex.App 2008). Debra Kirwan’s son, Brad McGehee, was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the City of Waco, when the ground beneath him gave way, and he fell about 60 feet to his death. Kirwan brought a wrongful death suit against the City, alleging a premises defect.

A firefighter who responded to the scene of Brad’s fall testified that an average person would “probably not understand that the ground could give way underneath them.” The trial court threw out the suit, holding that Debra had not: (1) “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or (2) “raised a genuine issue of material fact.”

Debra appealed.

Held: The suit was reinstated and sent back for trial. Deb challenged whether Texas Civil Practice & Remedies Code § 75.002(c)the state recreational use statute – requires that all premises defect claims be based on a condition created by the defendant, thus barring any claim based on the existence of a natural condition that the defendant happened to know about. Under the recreational use statute – intended to encourage landowners to open their property to the public for recreational purposes – a landowner’s duty to a user is no greater than that owed to a trespasser, the minimal duty to not injure anyone willfully, wantonly, or through gross negligence.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy's life.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy’s life.

The law is clear that a landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, an owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But the appeals court held that the recreational use statute permits claims based on natural conditions as long as the condition is not open and obvious, and the plaintiff furnishes evidence of the defendant’s alleged gross negligence. Here, the court said, the crumbling rocks and cracks on the cliff that gave way did not conclusively prove that the danger of the unstable cliff rock was open and obvious. Crumbling rock may alert the average person to the risk of slipping and falling, but certainly not that the ground will simply fall apart beneath him. The court ruled that unstable cliff rock is not necessarily an open and obvious condition that a person might reasonably expect to encounter.

To state a claim under the Texas recreational use statute, Deb had to allege sufficient facts to show that the City of Waco was grossly negligent. The pleadings need only provide a plain and concise statement of the cause of action sufficient to give the defendant fair notice of the claim involved. In her pleading, Debra alleged that the City was actually aware of the dangerous condition on the cliff, that other park patrons had died or been seriously injured by the condition of the cliffs, that the City received a report from its own expert warning of dangerous rock falls and advising the City to post signs warning of potentially fatal rock falls, and that the City had failed to do so, in fact, to warn or guard against this danger at all amounted to gross negligence.

The court agreed that Deb plainly alleged the City’s conduct amounted to gross negligence. The City’s complaint that the pleading didn’t allege that the City had created the condition was meritless. Where a claim is based on hidden natural conditions, such as the structurally unstable cliff rock in this case, Debra need not plead that the City was grossly negligent in creating a condition to make her case.

– Tom Root


Case of the Day – Friday, December 17, 2021


The general rule in this country as to boundary trees – those trees located partly on parcels belonging to more than one owner – is that the landowners have rights to the tree as tenants in common. This means that no owner can do anything to the tree without permission of the other.

There’s a good reason I suggest that owners get good advice from a local attorney. This blog is not legal advice. You pay for legal advice. What I write here is free. You get what you pay for.

What’s more, there are nearly always variations, however slight, among the states. Today’s case is a perfect example. The tree was clearly a boundary tree, but one of the owners, who did not think he was an owner, had a tree trimming service sever some roots and branches on his side of the property line. He sued the other owner for the cost of the tree service, alleging the other guy owned the tree.

Of course, the other guy only owned it to the same extent the aggrieved owner did. But in New York –unlike elsewhere – a tenant in common may trim on his or her side of the property line, self-help that is consistent with the Massachusetts Rule but inconsistent with what everyone else says a tenant-in-common may do.

Vive la difference!

Ahmed v Zoghby, 63 Misc. 3d 866, 98 N.Y.S.3d 391 (City Ct. Middletown, NY, 2019). A large tree straddled the property line separating Shafi Ahmed’s property from that of Allen Zoghby. Allen complained that the tree’s roots extended under and pushed through a portion of his driveway. As well, branches of the tree hang over his property and drop leaves and other debris onto his roof.

Shafi produced evidence that the tree straddled the property line, that his insurance company had ordered him to fix the heaved concrete, and that leaves and twigs fell on his roof. He also produced estimates from two companies to repave the driveway, including cutting off the tree’s roots. Shafi eventually hired a third contractor, Max Landscape LLC, for $2,950.00 to do the work. He eventually hired a third contractor, paid him $2,950.00 for the job, and had the work done.

Allen testified that he had the entire tree (including the overhanging branches) trimmed 8-10 years before. He did not know if the tree was on his property or Shafi’s property, but he believed it straddled the property line between the two properties. Allen showed that he, too, had cracked driveway pavement.

Shafi bought his residence in December 2004. Allen bought his in October 2002 and sold it in 2018.

Shafi sued Allen for maintaining a private nuisance, seeking damages, and an order that the tree be removed.

Held: It is the long-standing rule in New York that a tree is wholly the property of him upon whose land the trunk stands. However, if a tree straddles the line between two properties, the owners of each property own the tree as tenants in common. Because of this, Shafi could not sue Allen for a private nuisance. Even if he could, Shafi had not proven any real sensible damage, and his action in removing the branches were self-help actions as co-owners of the tree and were not subject to reimbursement by the neighbor. Finally, a property owner who owned a tree as a tenant in common with a neighbor could not recover damages resulting from the tree’s root because both parties would be liable for the damage.

The Court noted that a tree is the property of the person upon whose land the trunk stands. But if the tree straddles the boundary line between two properties, the owners of each property own the tree as tenants in common. Where damages are caused by roots from a tree owned by neighbors as tenants in common, each owner may not recover from the other property owner but is limited to self-help remedies to cure any such damage on that owner’s property caused by the tree’s roots so long as that action does not injure the main trunk of the tree.

Overhanging branches, accumulated fallen leaves, branches, and or buds, or cosmetic damage to a garage, or branches and leaves blocking the sun, without proof of actual injury to a person or that person’s property (which injury is known as “sensible damage”), is not enough to sustain a claim of private nuisance. In a private nuisance context, just as it has been established that a property owner may resort to self-help in the first instance to remove tree roots adversely affecting his land, so it has been held with the removal of overhanging tree branches. Where the parties own as tenants in common, each party is entitled to conduct ordinary clipping or pruning, so long as this does not injure the tree’s main trunk.

Even if this were not so, under CPLR 214(4), actions to recover damages for injury to property must be commenced within three years of the property damage. Shafi paid a contractor to trim the tree in 2013 but did not sue until 2018. Therefore, even if he were entitled to sue, he would be too late.

Beyond that, the Court said, “overhanging branches, accumulated fallen leaves, branches, and or buds, or cosmetic damage to a garage, or branches and leaves blocking the sun, without proof of actual injury to a person or that person’s property is not enough to sustain a claim of private nuisance.” The remedy in such case, the Court said, is self-help: “Summary abatement by self-help under these circumstances is a sufficient remedy. Just as it has been established that a property owner may resort to self-help in the first instance to remove tree roots adversely affecting his land, so it has been held with the removal of overhanging tree branches… Shafi, in essence, resorted to self-help in 2013 by hiring a contractor to remove the branches and leaves, and that self-help was appropriate in this case because of the lack of “sensible damage” from the falling and accumulating leaves.”

Third, even if the branches and leaves caused “sensible damage,” Shafi would not have a right to require Allen to reimburse the $1,000.00 because Shafi owned the tree as tenants in common with Allen. Shafi’s remedy, as a co-owner of the tree as tenants in common with Allen, would be self-help by trimming the branches, so long as that action does not injure the main trunk of the tree.

– Tom Root


Case of the Day – Thursday, December 16, 2021


We read judicial decisions not for the winners or losers (although that can be interesting and sometimes important). Instead, like the grizzled prospector on some mountain stream in gold rush country who washes pan after pan of gravel and sand for that all-too-occasional pebble of gold, we look for nuggets of wisdom hidden in the dross of legal minutiae.

Today’s case had a lot of moving parts. For brevity, I cut out all of the other defendants (such as the parents of the minor operating the motorcycle) and cross-defendants, cross-plaintiffs, counterclaimants, and the such, whose claims were irrelevant to the legal nugget in the case. Instead, I focused solely on the defendant Fancy Creek Township.

The Township was in the case because the plaintiffs claimed the stop sign at the intersection they blew on their motorcycle was obscured by bushes. The plaintiffs argued that the Township was negligent for not trimming the bushes away from the sign, and that was why they raced through the crossroads, only to be t-boned by a car that had the right of way.

So what do we know about negligence? First, we know the defendant must have a duty to the plaintiff. Second, he or she has to have breached the duty. Finally, the breach has to have been the proximate cause of the plaintiff’s injuries (and, of course, the plaintiff actually has to have been injured).

In this case, the jury had found in favor of the Township. The Court of Appeals firmly held that the Township had a duty to motorists to keep the vegetation away from the signage. The Township had 37 miles of road to maintain, not a whole lot, but it had no inspection plan to ensure that the foliage stayed away from the signs. That, the Court said, was a breach of its duty.

But the Court, which was after all only reviewing what a jury had found, concluded that a rational jury could have decided that the very youthful and inexperienced motorcycle operator Ronnie was going too fast, or that he decided to blast through the intersection, or that he didn’t see the stop sign for some other reason. In other words, the Court said, the jury properly found that the Township’s negligence was not the proximate cause of Ronnie’s accident, and thus, it was not responsible for Craig’s injuries.

Norvell v. Fancy Creek Township, 130 Ill. App. 3d 275, 474 N.E.2d 53 (Ct.App. Illinois, 1985). A motorcycle driven by Ronald M. Kreis and on which Craig A. Norvell was a passenger collided with a car driven by Shirley Fieten at an intersection in Fancy Creek Township. Shirley was traveling north on Route 29 at a normal speed. The motorcycle approached on the Township road traveling west and entered the intersection without stopping. The car struck the bike.

A stop sign facing westbound on the Township road had been placed in the usual location. The Township had a duty to properly maintain the sign. Township workers had permitted bushes to grow in front of the sign to the extent that it was obscured at a distance of 61 feet east of the stop sign. However, some 355 feet east of the stop sign, a visible sign warning travelers that there was a stop ahead. Expert testimony indicated that a stopping distance for an automobile traveling at 45 mph would be 323 feet. At the time of the collision, Craig and Ronnie – the boys on the bike – were 13 and 15 years old, respectively.

When a vehicle approached the intersection from the east, as the motorcycle did, an operator could see other indications that an intersection was ahead. From 60 feet, the back of a stop sign on the west side of Route 29 was clearly visible. The grade of the Township road rose as it extended east from Route 29 until it reached a crest about 182 feet east of the route. Someone traveling west on the township road approaching the intersection could not see the intersection until reaching the crest. The Township had 37 miles of road to maintain, for which it had no regular inspection schedule. The intersection was one of the two most dangerous in the township.

Neither Craig nor Ron could recall the accident. Craig had only passed through the intersection once before as a passenger in a vehicle traveling on Route 29 three weeks before the collision. Ron’s sister lived south of the intersection a short distance, and that while Ron was driving in the area before the crash, he had once made a wrong turn and had come upon Route 29.

Craig, through a guardian, brought suit to recover for his injuries against the Township. After trial, the trial court entered a judgment in favor of the Township.

Craig appealed.

Held: The judgment in favor of the Township was affirmed.

A prior case had found a different township liable for negligence in a similar accident. Here, in that case, there was no sign present. In this case, there was a sign indicating a stop ahead and some evidence that the driver knew something of the area.

The Court found the Township was negligent but held that the negligence was not the proximate cause of the accident. The Township’s negligence in failing to keep the stop sign visible would, as a matter of law, have been a proximate cause of the collision unless the collision would have happened even had the stop sign had not been obscured.

Because a sign indicated that a stop was ahead, the Court found, a jury could have concluded that if Ronald did not see that sign or observe the other indications that he was approaching a State highway, then he was so inattentive that he would not have seen the stop sign even if it had not been obscured. On the other hand, the jury could have determined that Ron saw the warning sign, knew that a stop sign was ahead but was going too fast to stop, and therefore decided it was best to attempt to get across the intersection as quickly as possible. In either case, the jury could have concluded that the failure to clear the brush from in front of the sign was not a proximate cause of the collision.

– Tom Root


Case of the Day – Wednesday, December 15, 2021


My favorite daughter, who holds a Ph.D. in demographics from Cal Berkeley (forgive the proud papa boast), earned her undergraduate degree in linguistics a decade or more ago. That came after 20 years of listening to her mother and me complain that the English language is going to hell.

You know, to be perfectly honest, at the end of the day I could literally die at the debasement of the King’s English. A prime example, IMHO, is the ubiquitous airline expression “preboarding.” Since when does one “preboard” by boarding? And the credit-card come-on I got the other day, telling me I was “pre-qualified?” Just what is that? Am I qualified? Or not qualified? To me, “qualified” seems rather binary – you are or you aren’t.

But my Ivy League-educated daughter just rolls her eyes, and tells me that “language is dynamic.” In other words, 2021 English is not 1921 English, which was not 1821 English, and so on. “Get used to it, Dad,” she counsels me.

This brings me to today’s case. Ann sued her neighbor Mike because, after she gave him permission to perform “limited trimming” of her Norway Oak tree, the branches of which were overhanging his property, she says he over-trimmed, hacked away at the tree roots, and smeared a foreign substance on the root he did not hack. Her expert said the Norway Maple was worth $96,000.

C’mon, man. Ninety-six large for a tree considered to be an invasive species? Surely you jest.

Surely she did not. The whole case sounds sketchy. Apparently, Mike performed all of his depredations of the branches and roots from the comfort of his own property. Regular readers of this blog should, at this point, express shock. That sounds like the Massachusetts Rule, especially because Mike argued that her tree had encroached and damaged his property. Why did Mike even require permission to trim overhanging branches and encroaching roots? 

But that’s a question for another day. What the Connecticut trial court was deciding in this opinion was whether Ann was entitled to a prejudgment remedy. “Prejudgment” here is judgment in the same sense that “preboarding” is judgment. If Ann gets her remedy, she gets to attach Mike’s property (bank account, gold bullion, beach house, whatever) up to the amount of the judgment to which she is likely entitled. To do so, she has to show “probable cause” to believe that Mike is liable (that he trespassed, was negligent, whatever) and that she was damaged to a likely amount.

“Prejudgment” sounds a lot like judgment to me, especially because she pleads her claim, he opposes it, and the court decides. Far be it from me to ask how a criminal law concept like “probable cause” found its way into the civil sphere, but the fact that Ann can force a paper trial before the trial, and thereby lock up Mike’s assets (thus restricting his ability to freely use his own property) makes little sense. A canny plaintiff can use the prejudgment remedy route to oppress the defendant and run up litigation costs, thus forcing a settlement that looks a lot like the defendant folding. The fact that the court was able to find probable cause to believe that Mike had trespassed by trimming on his side of the property line suggests that the legal theories are less than perfectly thought out.

It’s one thing to permit a prejudgment remedy where the probable cause is present and there is reason to believe the defendant will run off with his assets in order to make himself judgment-proof. But in Connecticut, you don’t have to show a defendant will cut and run, just that prejudgment, there is probable cause to believe you are likely to get a judgment.

Ann ultimately fails to lock up Mike’s assets, because her expert testimony was pretty sloppy. Nevertheless, the whole notion of a prejudgment judgment seems like an erosion of the King’s English, let alone civil procedure.

Greco v. Gallo, 2019 Conn. Super. LEXIS 2963 (Superior Ct. Conn., Nov. 21, 2019). Ann Greco owned a beach house next to a beach house belonging to Michael Gallo. A 40-year old Norway Maple tree stood on her property near the boundary between the two parcels. Ann claimed that on April 1, 2017, Mike requested permission to prune one of her trees that was overhanging his property. She said she granted limited permission, but Mike pruned well beyond what she had authorized. Ann alleged that Mike damaged the roots of the tree with an ax, and he applied some substance to the tree’s roots, thereby harming and perhaps destroying the tree.

Ann sued for compensatory damages, double or treble damages under C.G.S. § 52-560, and punitive damages. Her complaint alleged that Mike was individually liable for her losses under the following legal theories: (1) liability for violation of Connecticut’s tree statute, C.G.S. § 52-560, and (2) liability for common-law negligence.

Ann claimed that Mike performed arboriculture on the tree without a valid license and applied a foreign substance to the tree’s root structure. She further alleges that he or his agents caused the tree to die, and she was harmed through the loss of the tree, its valuable shade, and the cost of the tree’s removal and replacement. She also claimed Mike was negligent, in that he failed to follow her limited pruning instructions and thus breached a duty of responsible conduct and care over her tree when he performed arboriculture on the tree without a license, Ann further claimed his negligence caused the death of the tree.

Mike denied everything and argued in addition that § 52-560 does not apply to this case because Mike never entered Ann’s property, and the remaining defendant had no role in the pruning of the tree.

Not to be outdone, Mike counterclaimed against Ann, alleging damages to his real and personal property caused by her negligence, for her failure to keep her tree from overgrowing and encroaching on his property. He alleges that for a long time before April 2017, Ann’s tree was excessively growing on his property, causing damage to his septic system and roof, and requiring demolition and rebuilding of his garage.

Not content with litigating the case to the end, Ann sought to attach some of Mike’s property even before judgment, preventing either from selling it until the case was resolved. Outside of Connecticut, prejudgment attachment normally is intended to ensure that a defendant does not render himself judgment-proof before a case is tried. But in the Nutmeg State, prejudgment attachment does not require a showing that the defendant is likely to hide assets. Instead, it appears to be a civil bludgeon with which a well-heeled plaintiff can beat a defendant into submission by making it impossible for him to do business (or even survive) for as long as a trial goes on.

Held: Ann was not entitled to truss up Mike to the tune of $30,000 pending litigation over one dead tree.

A prejudgment remedy is available upon a finding by the court that “there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff.” C.G.S. § 52-278d(a)(1). In order to grant prejudgment attachment, a court must determine whether or not there is probable cause to sustain the validity of the applicant’s claim. The plaintiff does not have to establish that she will prevail, only that there is probable cause to sustain the validity of the claim. “The court’s role in such a hearing is to determine probable success by weighing probabilities.

The Court said Ann proposed suing Mike in two counts alleging liability under C.G.S. § 52-560 and liability in common-law negligence.

C.G.S. 52-560 provides that

Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another or on public land, except on land subject to the provisions of section 52-560a, without license of the owner, and any person who aids therein, shall pay to the party injured five times the reasonable value of any tree intended for sale or use as a Christmas tree and three times the reasonable value of any other tree, timber or shrubbery; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on this land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.

Section 52-560 embodies the long-standing common law that predated its passage and includes the legal concepts of trespass and damages. The elements of an action for trespass are (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion, or entry by the defendant affecting the plaintiff’s exclusive possessory interest; (3) done intentionally; and (4) causing direct injury.” A trespass can exist without personal entry on the land of another. Anything a person does that appropriates adjoining land or substantially deprives an adjoining owner of the reasonable enjoyment of his or her property is an unlawful use of one’s property.

Section 52-560 does not give a new and independent cause of action, the Court said, but instead prescribes the measure of damages in cases where compensatory damages would, in the absence of the statute, be recoverable.” An action under § 52-560, therefore, is an action in trespass with a specifically prescribed measure of recovery of damages. As with trespass, the plaintiff cannot recover if the defendant had the “license,” or permission of, among others, the owner. Failure to prove the elements of the underlying trespass, the Court held, dooms an action under § 52-560.

Here, the Court held, Ann claims the evidence supports liability against Mike for violating C.G.S. 52-560, in that he admittedly pruned said tree, used an ax or hatchet on the roots of the tree and placed some substance around the root region of the tree so as to harm it permanently. Although Mike’s actions all occurred from his neighboring property, Ann claims the trespass is established through his unauthorized actions on the tree from his property. Mike’s testimony supports that he did do such pruning from his property on her tree, but Ann alleges he went too far and was much too aggressive in that pruning process. And even further, the evidence showed he never asked permission to take an ax the tree roots on his property, and he never asked permission to put some foreign substances at or near the tree roots. This conduct beyond the permission given by Ann, the Court said, supported the probable cause finding on the trespass issue.

Ann also claimed, in addition to the § 52-560 count, that Mike was negligent. Such a common-law cause of action is permitted in tree damage cases, in addition to the statutory count. The essential elements of a cause of action in negligence are duty, breach of that duty, causation, and actual injury. Here, the Court said, the evidence permitted the court to find that Mike owed a duty to Ann once he asked her for permission to prune the tree, to exercise that permission reasonably and within the scope of permission she gave him.

The testimony and the photographs offered at hearing support the claim that Mike may not have been reasonable in how he conducted himself after Ann gave him limited permission to prune. Taking an ax or hatchet to the roots and placing foreign substances at the root areas, the Court held, may be a sufficient basis to find that he breached that duty and sustain the validity of Ann’s negligence claim. Thus, there is probable cause to sustain the validity of the negligence claim against Mike.

However, before the court can grant Ann’s application for prejudgment attachment, the court had to also find that the damages she claimed are supported by the requisite probable cause.

Section 52-560 is very clear as to what is or is not the measure of damages in tree damage cases, the Court ruled. Ann could seek damages for the trespass itself, for the value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel.

For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of.

The proper measure of damages is either “the market value of the tree, once it is severed from the soil, or the diminution in the market value of the… real property caused by the cutting.”

Ann overreached. She sought an attachment of $30,000 each over real and personal property of all three defendants and was “rather unclear as to the exact basis for the alleged damages related to the Norway Maple in question. And, there is contradictory evidence provided by each alleged expert arboriculturist on this topic.”

Expert testimony from Ann’s expert and Mike’s expert set the “reasonable value” of the tree from $4,600 to $98,000. The Court noted drily that

it is unclear if these sums are replacement cost figures for said tree or if they are values of the tree as timber once cut. Neither expert offered opinions with any reasonable degree of arboriculturist probability in their written reports nor in their testimony at trial; and neither expert provided sufficient scientific methodology or reasoning for how they each arrived at the dollar amounts testified to. In fact, both witnesses had never testified in court before, and both had limited prior experience in placing a valuation on trees in question such as the case at bar. Their testimony did not provide clear evidence on the replacement cost of the tree versus the cost of the tree once cut for potential lumber, as required by the statute and case law for the measure of damages under §52-560.

The Court noted that “trial judges are afforded wide discretion to serve as gatekeepers for scientific evidence because a relevance standard of admissibility inherently involves an assessment of the validity of the proffered evidence. More specifically, if scientific evidence has no grounding in scientific fact, but instead is based on conjecture and speculation, it cannot in any meaningful way be relevant to resolving a disputed issue.”

Therefore, while the Court found probable cause for believing Mike would be liable, it could not find sufficient probable cause as to the amount of damages claimed by Ann, so as to justify the placement of a monetary attachment on Mike’s property.

– Tom Root


Case of the Day – Tuesday, December 14, 2021


Don’t you believe it …

… or so one of my favorite poets, Bob Frost, said. The flinty old New Englander wrote a lot of good, straightforward stuff (my favorite being The Pasture), but you need to know that this particular line about fences was written as a wry observation. Frost didn’t believe it, and he intended that his readers question it, too.

Today’s neighbors are living proof of that. Lyle and Kate Batton had lived next to Dan and Kathy Bylander for 13 years, and the factual recitation in the case makes it pretty clear that they were good neighbors to each other. There was a property line between their homes. Of course. There always is. But it wasn’t very important to them.

Instead, the friendly neighbors freely used each other’s properties, even giving each further permission to plant trees on the other’s properties. In fact, they did not really know for sure where one property ended and the other began. It seems that the Bylanders and the Battons had differing ideas about who owned what, but they were good neighbors. The technicalities of ownership were not that important.

But at last, the Bylanders moved out, and the Hawks moved in. The Hawks felt the need for a fence to separate themselves from the Battons, and that’s when the neighbors ceased to be good.

As Bobby observed, “Something there is that doesn’t love a wall.” That something apparently was Lyle Batton. And who can blame him? For 13 years, Lyle and Kathy lived in unfenced harmony with Dan and Kate. At any rate, at some point after the fence was installed, tempers frayed and Lyle exchanged sharp words with new neighbor Terry Hawk. And that’s when everything changed.

The Hawks demanded every inch of the land their surveyor said was theirs. The Battons demanded damages, and wanted the court to declare that their occupation of some of the disputed land over the years made it theirs.

The lawyers profited, and the neighbors – both sets – lost.

Batton v. Hawk, 2019 Minn. App. Unpub. LEXIS 1133 (Ct.App. Minn. Dec. 9, 2019). Lyle and Katherine Batton bought land in Thief River Falls 19 years ago. At the time, they shared their southern boundary line with Daniel and Kathy Bylander.

During the time that the Battons and Bylanders were neighbors, neither knew where the exact boundary line existed between their properties, but they did not much care – they were friends as well as neighbors. The Bylanders planted evergreen trees on what they believed was their property on the western side of their northern boundary line, which they thought was about eight to ten feet north of the line of evergreen trees. They mowed the area like it was theirs, because they figured it was.

At the same time, the Battons planted various trees along what they believed was their southern boundary line in the eastern part of the land, up to the edge of the Thief River. A second tree line, made up of about 12 spruce trees, sat north of the Bylanders’ home on the west side of the adjoining properties and acted as a windbreaker for their house. The Battons gave the Bylanders permission to plant more trees along the line.

Then disaster struck. After 13 years, the Bylanders sold their property to Terry and Dawn Hawk. The next year, the Hawks wanted to build a fence along the northern line of their property. The Hawks talked to the Battons about the property line, and the Battons explained that they believed it was along the tree line.

Trust but verify. The Hawks hired Houston Engineering to survey the boundary line. Houston found the Battons’ understanding of the boundary line was wrong, as the boundary line went through, or was very close to, the southeast corner of the Battons’ house.

Lyle Batton and Terry Hawk then met with a Houston Engineering surveyor to discuss establishing a new boundary line. The new boundary line ran 13½ feet north of the original boundary line, increasing the size of the Hawks’ property. The surveyor labeled this “Tract A.” Tract A included the wind-breaking tree line that sat north of the Hawks’ home. On the east end of the properties, the new boundary line was 25 feet south of the original boundary line and would become the Battons’ property. The surveyor labeled this “Tract B,” which included an area south of the Battons’ home. Tract A is .021 acres, and Tract B is .326 acres. The parties agreed that Tract A would become the Hawks’ land and Tract B would become the Battons’ land. After the meeting, surveyors from Houston Engineering placed markers along the new boundary line.

So the Hawks began to build a fence near the markers placed by the surveyors. At the Battons’ request, the Hawks built the fence directly on the new boundary line, and gave the Hawks permission to enter their land to maintain the fence. According to the Battons, when Terry was finishing the eastern part of the fence, they realized that the markers placed by the surveyors were not in the correct spots and that the Hawks’ fence was “maybe a few inches up to many feet” north of what the Battons believed was the new boundary line.

The Battons also complained that the Hawks cut down four of their spruce trees on the western side of their property in order to build the fence. The Hawks countered that maintained that when the Hawks were building the fence, several trees fell down due to a heavy storm.

Following a hostile confrontation between Lyle and Terry in July 2016, the Battons sued the Hawks, asking the district court to order the parties to exchange deeds to Tract A and Tract B, to determine the practical boundary line of the property, and to rule that the Battons had adversely possessed some of the Hawks’ property, and therefore owned it. But the Battons’ complaint had a typographical error and, instead of requesting that the district court determine they had adversely possessed Tract B, they requested Tract A, which was already part of their property by deed.

The Hawks answered that the parties had discussed exchanging deeds to the tracts of land, but that they had never come to an agreement to exchange the deeds. The Hawks counterclaimed that the Battons had trespassed on their land and had damaged their property by removing the survey markers, and also that had relied on the Battons’ promise to grant them an easement.

The district court held a bench trial. At the end of the trial, the Battons amended their complaint to indicate that they adversely possessed Tract B, not Tract A, and the hey also moved to amend further to state that they adversely possessed the land that extended from Tract B to the middle of the tree line.

The district court held that the Battons failed to establish their claim for adverse possession, because they did not show that they openly and continuously possessed the rest of the land that they claim north of the tree line, failed to establish a claim for boundary by practical location, and did not show that the four removed trees belonged to the Battons.

The Battons appealed.

Held: The Battons did not get any land by adverse possession, or get a declaration that the old supposed boundaries governed.

A party can become the titleholder of land by adverse possession. To show adverse possession, plaintiffs must show, by clear and convincing evidence, that their possession was actual, open, continuous, exclusive, and hostile for 15 years. Evidence presented in support of adverse possession must be strictly construed, with every presumption or inference to be taken against the party claiming adverse possession.

The district court found that the Battons had not established open, hostile, and continuous use of all of the land. Such use must give “unequivocal notice to the true owner that someone is in possession in hostility to his title.” There is sufficient evidence when “visible and notorious acts of ownership have been continuously exercised over the land for the time limited by the statute.”

The Battons and the Hawks had different understandings of where the boundary line fell. The Battons treated the tree line as the boundary, while the Hawks (and the Bylanders before them) treated the boundary line as 8-10 feet north of the tree line. Before the Hawks moved in, the Bylanders mowed up to that line and, when the Hawks moved in, the Bylanders instructed them to continue to mow up to that line. While the Battons and the Hawks testified that they used the land for other purposes, there is no dispute that the Bylanders and the Hawks mowed part of the disputed land. “For that reason alone,” the Court ruled, “we cannot conclude that the Battons gave the Hawks unequivocal notice of their hostile possession of all of the disputed land.”

The Battons also testified that they used the disputed land for fishing, playing Frisbee and soccer with their kids, planting a garden and trees, and placing birdhouses and bird feeders. They said that they treated the disputed land as their own because they planted a garden, except that neither of them could not remember how long it was there. Lyle testified that he placed birdhouses and bird feeders on the disputed land, but all had been removed several years before the trial. Because the evidence supporting adverse possession must be strictly construed, the Court said, “the district court’s finding that the Battons’ use of the land was simply occasional is not clearly erroneous.”

The Battons also argued that they had proven a boundary line by practical location. A boundary by practical location may be established in one of three ways: (1) by acquiescing in the boundary for a sufficient period of time to bar a right of entry under the statute of limitations; (2) by expressly agreeing with the other party on the boundary and then by acquiescing to that agreement; or (3) by estoppel.

The Battons argued that they established a boundary by practical location by acquiescence. If a party acquiesces in a boundary for a sufficient length of time to bar a right of entry under the statute of limitations (15 years in Minnesota), a court may establish the boundary by practical location.

The district court did not expressly address whether they had established a boundary by acquiescence. But the judge did note that there must be acquiescence to a boundary line for the statutorily required 15 years in order to be established as a boundary by practical location. Because the Hawks had not lived in the home long enough to meet the 15-year requirement, the Court looked to their predecessors, the Bylanders.

But the Battons and Bylanders treated the boundary line differently. While the Bylanders believed the boundary was eight to ten feet north of the tree line, the Battons believed the boundary was along the tree line. The disputed 8-10 feet showed that the parties did not acquiesce to a boundary line. Instead, they apparently agreed to disagree, but they maintained the peace despite their disagreement.

Thus, the Court said, the Battons failed to establish a boundary by acquiescence.

Finally, the Court observed that the district court had concluded that it could not determine if the four trees were on the Battons’ land. Based on this inability, the district court did not award them treble damages for trespassing and felling under Minn. Stat. § 561.04. Lyle testified that the Hawks cut down four trees that were on the Battons’ land in order to erect their fence. The Hawks, on the other hand, said that during the summer of 2015, a storm downed some trees and the Hawks removed them from the property. Terry denied cutting down any trees north of the fence line.

Because the district court sits in the best position to weigh the credibility of witnesses, the Court of Appeals ruled, “we are not left with the firm conviction that, based on the conflicting testimony, the district court made a clear error.”

– Tom Root


Case of the Day – Monday, December 13, 2021


Originally a phrase used in the computer programming world, “garbage in, garbage out” was just too useful an aphorism to stay in Silicon Valley.

Today’s case provides a good illustration as to why. One sanitation worker was backing up a garbage truck while the other, the son of a spelling-challenged mother named Kert Seymour, was holding onto a platform on the back. The truck veered too close to a tree growing along the boulevard, and strap-hanger Kert bashed his hand between the truck and the tree trunk.

If you have not studied the law (having instead favored useful pursuits), you might think that  garbageman Kert had only himself to blame for not moving his hand as the tree trunk approached. Or maybe blame the driver, who should have kept the truck farther from the tree. That’s much too logical.

There are two problems with your thinking. First, Kert couldn’t very well sue himself. There was no money there. Likewise, he could not collect much from his co-worker driver, who, if he had a lot of money, probably would not be driving a garbage truck. The employer, who owned the truck, was immune from liability to sanitation werker Kert except for whatever worker’s comp would pay. Which clearly wasn’t enough to satisfy Kert.

So what to do? The answer is obvious. You sue the homeowner’s association that owned the private road on which the accident happened, arguing that if it had not planted the tree where it did, the accident could have been avoided.

If you’re a plaintiff’s lawyer, this is how you follow the money. There’s just one problem: how do you convince a jury to overlook the fool who didn’t pay attention, or the driver who couldn’t back straight, in favor of the association that owned the tree?

The three essential elements of negligence are (1) the negligent party must owe a duty to the injured party; (2) the negligent party must have breached its duty; and (3) as a direct result of that breach, the injured party must have been actually damaged.

Before negligence can be determined, the extent of the defendant’s duty to the injured has to be defined. That was the issue in this case.

Alleging that the defendant breached a duty to sanitation werker Kert for letting a tree grow was “garbage in.” Unsurprisingly, Kert got “garbage out.” You’d think he would have known that’s how garbage works.

Seymour v. Lakewood Hills Association, 927 S.W.2d 405 (Court of Appeals of Missouri, Eastern District, Third Division, 1996). Kert Seymour (whose spelling skills obviously landed him in his chosen occupation) was a sanitation worker. Kert was riding on the back of a garbage truck when his co-worker, who was backing the truck down a private residential street, hit a tree standing in the boulevard. Kert’s hand was crushed between the truck and tree.

The road was owned and maintained by Lakewood Hills Association, so naturally Kert sued the Association for planting the tree where his co-worker could hit it. After all, while its connection to the accident seemed tenuous, the Association did have something no other likely defendant had: money.

The trial court said Kert’s position was garbage, and granted summary judgment for the Association. Kert appealed.

Held: The Court of Appeals held the Association owed Kert nothing.

Under Missouri law, if a condition on the property is so open and obvious that an invitee should reasonably be expected to discover it and realize the danger, the landowner does not breach its standard of care unless it should anticipate the potential harm despite such knowledge or obviousness. The failure to protect an invitee like Kert against conditions that are open and obvious as a matter of law does not fall below the applicable standard of care.

Lakewood Hills argued the tree in the center of the road was so open and obvious that a person should reasonably be expected to see it and recognize the danger posed. Both Kert and his co-worker admitted that they knew the tree was there. Kert stated that he had seen it many times when collecting trash. The tree being clearly visible from the end of the street, common sense dictates that a reasonable person would have appreciated the harm likely to occur should a vehicle strike the tree.

The Court held that “as a matter of law, that the dangerous condition presented by the tree was open and obvious.” In other words, Kert, if you remain vigilant while the truck is moving, you might Seymour.  

The Court consigned Kert’s lawsuit to the dustbin of litigation. Which Kert probably emptied. One handed.

– Tom Root


Case of the Day – Friday, December 10, 2021


Go, Roughriders!

Go, Roughriders!

There seems to be so much to do in the Christmas season that I can never catch up, and rarely can I get one task completed for all of the other tasks awaiting my attention. My bride of 40 years and I bought our Christmas tree two weeks ago. It took us five days to even get it inside and up. It took another five days to get the lights on. The poor tree still awaits decorations.

I note this as an excuse. A week ago, I addressed the first half of the question asked by alert sixth-graders at Western Reserve Elementary School (home of the Roughriders). It’s taken me until today to continue that thread: Today, we look at another decision from the days of yore to gain a better understanding of the issue they raised: if your apple tree drops its apples in the neighbors’ yard, do you have the right to go on to their land to pick them up?

Remember these guys? They apparently had 19th century doppelgangers.

Remember these guys? They apparently had 19th-century doppelgangers.

Neil Sedaka warned us about bad blood, although about 120 years too late for Newkirk and Sabler, the two actors in this little drama. It’s pretty clear from reading between the lines of this antebellum case that these neighbors loathed each other. Sabler told Newkirk to stay off his land, so Newkirk, of course, couldn’t resist having his guy cut across Sabler’s back 40 with a team of horses. Not to be outdone — sort of like a 19th-century version of “Spy vs. Spy” — Sabler rebuilt the fence Newkirk’s man had taken down, but he nailed it in place. The hired hand couldn’t get the horses and wagon out of the field, so he left them on Sabler’s land and retrieved his boss. The boss returned and started tearing down the fence when Sadler arrived. Words flew, tempers flared, and fisticuffs ensued.

After Newkirk apparently won the fight and got his horses back, he sued Sadler for assault, intending to add insult to injury. But the court threw the last punch, holding that Newkirk had no right to enter onto Sadler’s land to get property he wrongfully put there to begin with, and Sadler had every right to bean Newkirk with a club (which he had done) to keep him off.

Relevant to the question we considered last week, the court differentiated between this case and other situations — including an apple tree owner’s apples falling on a neighbor’s land. When a fruit tree drops its bounty on the neighbor’s land, the tree’s owner cannot prevent it. The owner continues to own the fruit, the court observed, and he or she may enter the neighbor’s land without being deemed a trespasser to collect the fallen fruit.

Unfortunately, this much of the opinion is obiter dictum, unnecessary to the decision, and thus is of limited value as precedent. Nevertheless, kids, it’s the best we have. Sometimes the answers just aren’t all that clear.

horsewagon140218Newkirk v. Sabler, 9 Barb. 652 (Sup.Ct. N.Y. 1850). Newkirk had sent his servant with a team and wagon across the defendant’s farm — upon which he entered by taking down the bars — to a neighbor’s house, even though Sabler had forbidden Newkirk from crossing his lands. On his return of the team to the place where it had entered, the servant found the fence bars had been refastened by boards nailed over them. The servant couldn’t break through, so he left the team and wagon on the Sabler’s property and returned to Newkirk’s to tell him what had happened.

Newkirk went with his servant to the fencerow and tore down the fence to get his team and wagon out. Sabler arrived on the scene and forbade Newkirk from taking down the fence, and when Newkirk continued, a fight ensued between the parties. At one point, Sabler beat on Newkirk with a pole. Nevertheless, Newkirk finally got the fence down, removed his team, and then — to add insult to injury — sued landowner Sabler for assault.

At trial, the judge instructed the jury that although Newkirk’s team and wagon were wrongfully on Sabler’s land, it was Newkirk’s duty and right to get them off with the least possible injury to the premises, and that Sabler was not justified in using violence to prevent him from removing his team from the premises. The jury found for Newkirk.

Sabler appealed.

Held: Newkirk had no right to enter onto Sabler’s land to reclaim his horses. Sabler had a right to defend his possession against Newkirk’s tearing down the fence and use as much force as necessary to prevent Newkirk from entering the property. The court held that an owner of personal property detained on the land of another — if he cannot obtain peaceable possession of it — may only bring suit in court to regain his property. Of interest, however, is the recognition in this early decision of a number of circumstances where the owner of a chattel — that is, personal property — may enter on the land of another without being found to be a trespasser.

appletree140217One example is a landlord’s right to inspect the premises to ensure the tenant is not engaged in waste. Others include a sale of land with a reservation of the timber rights, or if one enters the land of another to prevent the landowner’s livestock from dying, or because the public highway is blocked and he must get around the blockage. And the court held, “If my tree be blown down and fall on the land of my neighbor, I may go on and take it away. And the same rule prevails where fruit falls on the land of another. But if the owner of a tree cut the loppings so that they fall on another’s land, he cannot be excused for entering to take them away, on the ground of necessity, because he might have prevented it.”

In this case, the court held, Newkirk’s horses and wagon were on Sabler’s lands where they had been left by Newkirk’s servant. They were not there with Sabler’s permission. Instead, Newkirk had been guilty of trespass in sending his team across Sabler’s lands after he had been forbidden to do so. And Sabler had the right to detain them before they left the premises, and it was not necessary to decide whether the defendant detained the property rightfully or wrongfully. If Newkirk could not regain the possession of his property peaceably, his only choice was to sue.

– Tom Root