Case of the Day – Monday, November 18, 2024

Posted on November 18, 2024 by TLRoot tagged.

WHEN YOU CAN’T SEE THE FOREST FOR THE GOODS

You can see why Hocking Hills is a good place for a park.

I’m always looking for ideas, and I am rather shameless about appropriating them. So when an Ohio lawyer friend, himself from a timber-harvesting family, mentioned a case that delineated when trees were attached to the real estate and when they were “goods,” I chased down the decision. Or, in this case, the decisions – one from the court of appeals, and a second from the Ohio Supreme Court.

Speaking of “appropriating,” that was exactly the context in which the case was decided. It seems that Dudley DeBolt had a pretty nice place in Hocking County, beautiful Appalachian foothill country. In fact, Dudley’s place was so nice the government wanted it for a park. Governments being what they are, the appropriate agency – an entity called the Board of Park Commissioners of the Columbus and Franklin County Metropolitan Park District – sued Dudley to take 40 acres of his wooded land for its purposes.

Under the laws governing eminent domain, not to mention the 5th Amendment, when the government takes private property for public purposes, it must pay just compensation. But it seems that the Park Board didn’t want to pay Dudley for the timber contract he had already signed with a local timber merchant, one for the select cutting of about 150,000 board feet of hardwood. The land itself was worth $58,000, Dudley claimed, but there was also the timber contract that he now would be unable to fulfill, for an additional $14,000.

Nope, the Park Board argued, the trees are attached to the land and had no value separate from the land. That had been Ohio law prior to the adoption of the Uniform Commercial Code. The trial court agreed with the Park Board.

The Court of Appeals did not. Rather, it held that the UCC had changed everything, and as a result, Dudley was given a chance to prove to the jury the existence and value of the timber contract. The Ohio Supreme Court agreed, and the case went back to the trial court.

Board of Park Comm’rs v DeBolt, 1984 WL 4248 (Ct.App. Hocking County, Ohio, 1984). The Board of Park Commissioners of the Columbus and Franklin County Metropolitan Park District sued landowner Dudley DeBolt, Jr., appropriate 40 acres of his land. Mr. DeBolt believed the fair market value for the land to be $73,970, including $32,000 for the land at $800 an acre, $26,000 for the home and $14,000 for his profit from the removal of certain timber on the property. The trial court agreed with the Park Board that Mr. DeBolt was not allowed to calculate the value of his standing timber separately from the land, and it refused to allow Mr. DeBolt to put in any further evidence of the value of his timber. The jury returned a verdict of $58,000 as compensation for the land and improvements taken. Mr. DeBolt appealed.

Held: Mr. DeBolt was allowed to value the timber separately. Although the Board argued that Ohio law prohibited setting a market value for trees on land to be appropriated separate and apart from the value of the land, the Court pointed out that the decision which applied that holding was made well prior to Ohio’s adoption of the Uniform Commercial Code. The UCC provides that a “contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without material harm thereto… or of timber to be cut is a contract for the sale of goods within sections 1302.01 to 1302.98 of the Revised Code, whether the subject matter is to be severed by the buyer or by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.” Thus, the Court ruled, the UCC had abrogated prior Ohio law by making a contract for the sale of timber into a contract for the sale of goods.

Here the evidence showed that in the summer of 1981, a timber merchant and DeBolt had a contract for cutting timber and had agreed on a price. Therefore, the Court said, DeBolt ought to have had the right to prove the existence and value of the timber contract. It was a contract for the sale of goods, and Debolt thus had a vested contractual right which was frustrated by the Park Board’s appropriation. The Court said that “the enactment of the UCC has in our opinion changed the character of standing timber from realty to personalty when there is a contract under R.C. 1302.03.” Once the contract was made, the trees were “goods” under the UCC and no longer a part of the land.

People who have to pay attention to the bottom line make careful decisions about whether appealing an adverse decision is worth the time and legal costs. Not so governments, which hire lawyers by the gross and pay them with taxpayer dollars. Unhappy at having to part with an additional $14,000, the Board of Park Commissioners appealed to the Ohio Supreme Court. Even in 1984, a for-profit entity would have easily seen that legal fees and wasted time would easily exceed that.

Board of Park Comm’rs v DeBolt, 15 Ohio St.3d 376 (Supreme Court of Ohio 1984). The Ohio Supreme Court agreed with the Court of Appeals that the record supported a finding that a contract may have existed for the sale of the timber. The Supreme Court found some evidence that Dudley DeBolt was to receive $14,000 for the sale of some 150,000 board feet of lumber, and that such lumber was to be obtained in a select cutting, which was permitted under the terms of his mother’s will. The timber cutter said 150,000 board feet of lumber could be obtained in a select cutting and stated that he had first surveyed the property some eighteen months prior to the trial.

The Supreme Court ruled that a contract for the sale of timber is a contract for the sale of goods, not realty. ORC § 1302.03(B). Such a contract is protected against a governmental taking without just compensation, as it was part of the property taken by the Board of Park Commissioners. Because such a contract is an asset separate and apart from the land, it is subject to separate valuation. The case was sent back to the trial court to give Dudley a chance to prove his case.

– Tom Root

Case of the Day – Friday, November 15, 2024

Posted on November 15, 2024 by TLRoot tagged.

SLAPP-HAPPY

Only in California could a tree-trimming case end up as a free speech issue.

Our regular readers know that good old-fashioned Massachusetts Rule self-help is available to any homeowner seeking to protect life and property from encroaching trees. Today, we look at what happens when good old-fashioned common-law self-help runs into bureaucracy.

The Dilbecks wanted to add a second story to their house, but their neighbors’ oak tree had extended its branches so close to the Dilbecks’ place that they had to be trimmed back in order to make room. No problem, right? We all know that self-help is available to the Dilbecks anywhere in California. Sure, but it turns out that Los Angeles isn’t just anywhere. In LA, oak trees are “protected,” and before trimming the oak, the Dilbecks had to get a permit from the County. And the County wouldn’t issue a permit unless the tree’s owner signed on to it.

So much for self-help. The Dilbecks sued, asking that the County be ordered to issue the permit and that their neighbors be found liable for trespass for the tree (the theory being that the neighbors let the branches intrude over the Dilbecks’ lawn). And here’s where it got even more complicated. California has a statute addressing litigation known as “strategic lawsuits against public participation,” the so-called anti-SLAPP statute. This mouthful with the catchy name is intended to stop oppressive lawsuits intended to keep people from exercising their rights to free speech. There’s a whole cottage industry in the Golden State surrounding SLAPP actions. And as with a lot of other good ideas (such as RICO), the anti-SLAPP statute is another tool in the canny lawyer’s arsenal, something else with which to bludgeon a plaintiff.

Here, the neighbors complained that the Dilbecks were trying to force them to petition the County to let the tree get trimmed, and the suit should be thrown out as violating the anti-SLAPP statute. The trial court refused to dismiss the action. The Court of Appeals agreed, holding that the Dilbecks weren’t demanding that the neighbors do anything. They were asking the County to do something, and they were suing the neighbors for trespass because of the tree. California law would let them collect money damages if the encroaching tree was a nuisance (Bonde v. Bishop held as much). So whether the Dilbecks win on the merits or not, the action was not a SLAPP suit, and it wouldn’t be dismissed.

Whew! Makes you long for the simple, ol’ Massachusetts Rule… no permits, no lawsuits, just an aggrieved landowner with a chainsaw.

Dilbeck v. Van Schaick, 2007 Cal. App. Unpub. LEXIS 7718, 2007 WL 2773986 (Cal.App. 2 Dist., Sept. 25, 2007). The Dilbecks owned a place in Altadena, next door to the Van Schaicks. The Dilbecks planned to remodel their home by adding a second story. However, the branches of an oak tree located on the Van Schaicks’ property have grown over the Dilbecks’ home, rendering the Dilbecks’ plans unworkable unless the tree was pruned.

Oak trees are protected by California state law. The County of Los Angeles had adopted regulations to preserve and protect oak trees, requiring a permit to cut down mature oak trees or to prune their larger branches. The Dilbecks applied to the County for a permit, but the County had not approved it because it took the position that only the owner of the tree may obtain a pruning permit, and the Van Schaicks had not acquiesced. So the Dilbecks brought suit against the Van Schaicks and the County for declaratory relief and trespass. They alleged the oak tree growing on the Van Schaicks’ property had encroached onto their land and interfered with their ability to add a second story to their home. The suit said the County refused to grant the permit because the Dilbecks were not the owners of the tree. The trespass cause of action alleged the oak tree branches were encroaching on the Dilbecks’ land and asked for an order permitting the Dilbecks or an independent contractor to prune the tree.

The Van Schaicks filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, asserting that the complaint was based on their refusal to support the Dilbecks’ oak tree permit application and therefore attacked their right to free speech. They further argued that the trespass claim lacked merit because the law forbade the Van Schaicks to prune or cut the offending oak tree branches.

The Dilbecks contended that their action did not fit within the definition of a SLAPP suit and that, in any event, their complaint had merit. They denied that the complaint sought to compel the Van Schaicks to support or sign the oak tree permit. The trial court denied the Van Schaicks’ motion to strike, finding that they had not demonstrated that they were being sued for engaging in protected activity. Instead, the trial court held, they were just being sued for trespass. The Van Schaicks appealed the court’s denial of their motion to strike.

Held: The Dilbecks’ complaint did not arise from acts undertaken in furtherance of the Van Schaicks’ rights of free speech or petition, and the Van Schaicks’ attempt to get it dismissed was rejected. The California Legislature enacted the anti-SLAPP statute in response to its perception that there has been an increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition for the redress of grievances. The anti-SLAPP statute provides a procedure for the court to dismiss at an early stage non-meritorious litigation meant to chill the exercise of free speech rights. The statute requires the trial court to engage in a two-step process when determining whether a motion to strike should be granted, first, whether the defendant has made a threshold prima facie showing that the acts of which it complains were ones taken in furtherance of its constitutional rights of petition or free speech in connection with a public issue, and two, whether there is a probability that the plaintiff will prevail on the claim.

The issue here, the Court said, was whether the complaint arose from conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. The Van Schaicks contended the suit sought to compel them to petition the County for discretionary relief from the oak tree statutes. The Court disagreed, holding that their characterization of the complaint was wrong. In fact, the Court said, the suit merely sought to compel the County to review the merits of the permit application submitted by the Dilbecks and requested an order permitting the Dilbecks or their arborist to prune the tree. The complaint did not seek to compel Van Schaicks to become personally involved in the permit application process in any way, and thus did not violate the anti-SLAPP statute.

The Van Schaicks contended that the complaint would indirectly force them to speak because a judgment in favor of the Dilbecks on the trespass action would necessarily require the Van Schaicks to petition the County of Los Angeles for discretionary relief from the Oak Tree statute. The Court rejected that argument, finding that the Van Schaicks’ position was based on the incorrect assumption that the only remedy available for trespass was injunctive relief. However, California law held a party over whose land overhanging branches extend may either cut them off or maintain an action for damages and abatement, as long as he or she can prove the branches constitute a nuisance.

The prospect that the Van Schaicks could eventually be faced with an order to abate the nuisance and could do so only by seeking a permit from the County did not transform the Dilbecks’ lawsuit into a SLAPP action. The Court ruled that the thrust of the Dilbecks’ complaint was the injury caused to their property by the encroaching tree, not the Van Schaicks’ decision to refrain from involvement in the permitting process. The permit, although obtainable only by petitioning a governmental entity, principally concerned and affected the remodeling of a private home by private individuals.

– Tom Root

Case of the Day – Thursday, November 14, 2024

Posted on November 14, 2024 by TLRoot tagged.

NO, YOU CAN’T TRIM MY TREE… BUT WHEN YOU DO, LEAVE ME THE WOOD

The Griswolds (no, not those Griswolds) worried about the heavy limbs of a century oak overhanging their place. Adrian, the arborist they had hired, got permission from the sweet old lady living next door, Clare, for a tree-trimming crew to come onto her property to trim the branches overhanging the Griswolds place.

Seems pretty clear cut, a garden-variety Massachusetts Rule situation, complicated only by the need to use the neighbor’s place to gain access. What could go wrong?

Whatever grandmotherly Clare thought arborist Adrian meant by saying he was going to trim the oak, cutting limbs off was apparently not what she had in mind. Once the chainsaws started up, she suddenly concluded that she had never given Adrian permission to be on her property, and anyway, she had asked Adrian to give her the wood from the branches.

Huh? It’s kind of puzzling. If Clare had denied Adrian permission to use her property to trim the tree, how could she could have asked him for the wood at the same time. It confused the jury, too, which found permission must have been given, and, necessarily, concluded that Clare could not be believed.

But seriously, wouldn’t a signature on an approval form obviated six years of litigation? A cautionary tale for our time…

Beals v. Griswold, 468 So.2d 641 (Louisiana App. 4th Cir. 1985). The Griswolds lived next to Clare Beal, who had a beautiful, full 130-year-old oak tree in her side yard. Limbs from the tree overhung the Griswolds’ place. They hired Adrian’s Tree Service, Inc., to trim the overhanging limbs. While the trimming work was in progress, Clare protested excitedly and the work was stopped.

Clare sued the Griswolds and Adrians, but the jury found for the defendants. Clare appealed, complaining that the jury should have found the Griswolds and the tree service to have committed trespass for entering her property to perform the tree trimming without her permission; conversion, for discarding the severed tree limbs despite Clare’s request that they be given to her; and negligence for failing to cut the tree according to Louisiana Horticulture Commission standards.

Held: The jury’s finding for the Griswolds and Adrian’s Tree Service was upheld.

Trespass in Louisiana is defined as any unlawful physical invasion of the property of another without the other’s consent. Here, the thrust of Clare’s trespass action is that the Griswolds unlawfully entered her property without her permission to gain access to the branches overhanging the Griswold residence. Although everyone agreed that the tree service’s workers walked onto Clare’s front yard and climbed the tree from her property, the crucial issue was whether she consented to their entry. Although Clare vehemently denied that she had given her consent for the work to either the arborist or the Griswolds, her version of the events was in direct conflict with what the Griswolds testified to.

Arborist Adrian Juttner testified he had obtained Clare’s oral permission to prune when he inspected the property with the Griswolds to prepare a cost estimate for the job. Adrian said that after discussing the matter with the Griswolds, he approached Clare, walked outside in her yard with her, and pointed out the limbs he was going to cut. She said that was “all very fine and good with her.” The Griswolds corroborated this, testifying they had discussed with Adrian the need for Clare’s permission with Juttner, who then walked to Clare’s house and later returned to tell them he had received it.

There was adequate evidence in the record for the jury to find that Clare had consented to Adrian’s entry onto her property.

But Clare complained that – oral approval aside – a trespass occurred because she gave no written permission to enter her property. In support of this argument, she relied on regulations of the Louisiana Horticulture Commission requiring every licensed tree surgeon to enter into a written contract with the property owner employing him to engage in tree surgery service and to obtain written permission from the owner before using “climbing irons” to climb the tree.

The Court said the regulations Clare relied on appear to require the tree surgeon to enter into a written contract with the property owner employing him. They do not require written consent from the adjoining landowner. Here, Adrian’s Tree Service gave the Griswolds a written memorandum, and that was sufficient.

“Conversion” in Louisiana is a distinct act of dominion wrongfully exerted over another’s property inconsistent with or in denial of the owner’s rights. Clare complained the jury erred in failing to award damages for Adrian’s conversion of the 800 lbs. of wood cut from the tree.

Clare testified that Adrian’s Tree Service disposed of the felled limbs and refused her request to retain them as firewood. Although Adrian acknowledged that Clare Beals had asked about firewood after the cutting had occurred, he testified that she was completely “irate and irrational” at the time of the incident and that he was not willing to expend the labor to chop up the branches, which were lying in the Griswolds’ driveway, and deliver the wood to Clare’s property. No evidence showed that any employee of Adrian’s Tree Service denied or refused to allow Clare access to remove the cut wood herself. Under the circumstances, the Court concluded that Clare had access to the wood and that Adrian merely refused to haul the wood back to her property. Adrian did not wrongfully exert dominion over the branches, especially in light of the evidence that Clare had earlier given her permission to prune the tree without mentioning her desire to retain the branches.

The Court further noted that the main thrust of Clare’s claim and evidence concerned her cause of action in trespass. Evidence of conversion was sketchy at best, the Court said.

Finally, Clare proffered testimony by two tree surgeons to support her argument that the tree was not trimmed as required by Horticultural Commission standards of tree pruning. In contrast to their views, however, the Griswolds’ tree expert testified that no damage was done to the tree in this case. The Court said photographs and testimony led to a conclusion that the tree is intact and healthy. Furthermore, the Court found that stumps remaining from the trimming may very well have resulted from Clare’s own abrupt halting of the work in progress on the morning of the incident.

The jury’s judgment that there was no negligence was supported by the evidence.

– Tom Root

Case of the Day – Wednesday, November 13, 2024

Posted on November 13, 2024 by TLRoot tagged.

I FEEL PRETTY, OH SO PRETTY …

Hawkins v. McGee – the case of the hairy hand

There’s always a tension between the value that a lover of the land places on his or her trees and the price tag affixed to those same trees by the green-eyeshade crowd of financial experts testifying in some cold courtroom.

The general rule is that the measure of damages when trees are wrongfully cut should be the difference between the value of the property before the trees were removed and the value after the trees are taken down. Fans of the old case of the hairy hand (Hawkins v. McGee) from law school remember the general diminution of value concept. Notwithstanding this staple of first-year contracts class, courts in many states have carved out exceptions to the rule for situations just like today’s case.

The problem usually arises when only a relatively few trees of limited commercial value are removed or destroyed. In today’s case, an Episcopal Church lost 22 small trees when a contractor dumped too much fill dirt – taken from a road construction project – around their bases. The Church proved in court that replacing the trees — a couple cherry trees and a score of red oaks — would cost just over $17,000. But the trial court threw the case out because it believed that the replacement costs weren’t relevant. Rather, the trial court said, the Church was obligated to prove how much less its land was worth with the trees gone.

The “tree volcano” … pile dirt around the base, and suffocate the sapling. The Church lost 22 trees this way.

Holy birch bark! The problem was that the worth of the property hadn’t fallen much, it being close to a road and of limited use (there’s not that much of a market for church properties). But the Church didn’t want the diminution in property’s value for its collection plate: it wanted its trees back. The Minnesota Supreme Court had mercy on the Church, holding that where the trees served a function that was primarily aesthetic, replacement cost was a fair calculation.

Sometimes justice can’t be done by using the cold, analytical diminution-of-value approach. Occasionally, the wronged owner just plain likes the trees that had been taken, and who’s to say that because the loss may be measured psychologically rather than economically, the damaged party shouldn’t be compensated. We always thought that in such cases, the wrongdoer should be held to lose much of his or her moral standing to complain about how injured the injured party is. In this case, the Court said, that the owner’s enjoyment of the trees might not be quantifiable in a real-estate-value analysis just didn’t matter. (The second case we studied in law school, Peevyhouse v. Garland Coal & Mining Co., has always illustrated the mischief that can be done when a court ignores the aesthetic expectations of the wronged party).

The decision is necessary in the world of tree law because otherwise, too many cases would founder on the rocks of damages: too many malefactors could cut down too many trees, and the likely penalties, even with treble damages available, would not deter the conduct.

Rector, Wardens & Vestry of St. Christopher’s Episcopal Church v. C.S. McCrossan, Inc., 306 Minn. 143, 235 N.W.2d 609 (Sup.Ct. Minn. 1975). When the Minnesota Department of Highways took about 8/10ths of an acre from St. Christopher’s to enlarge the intersection, the church lost its existing access and part of its parking area. The Rector hired C.S. McCrossan to construct a new parking space and access road.

A grove of trees was located at the north end of the lot. In the process of grading, McCrossan dumped fill around the base of the trees, which the church argued caused the trees — two black cherry trees and twenty red oaks — to suffocate and die. The church’s expert testified that because of the variety, size, and condition of the trees, they had a total value of $17,267.

The church asserted that the grove of trees not only acted to screen the area from heavy traffic on two sides but also gave the area a natural, pleasing, aesthetic, wooded atmosphere. The trial court directed a verdict for C.S. McCrossan on the ground that the church failed to prove damage based on the diminution in value of the real estate.

The church appealed.

Held: The decision was reversed. The Minnesota Supreme Court ruled that the proper measure of damages for negligence in suffocating the trees was the replacement cost of trees rather than merely the loss of value of the real estate, notwithstanding the inability of the church to prove that the destruction of trees diminished the value of the property as a whole. The replacement cost of trees that have an aesthetic value to the owner as ornamental and shade trees or for purposes of screening sound and providing privacy may be considered in determining damage incurred from the destruction of the trees to the extent that the cost is reasonable and practical.

Although the evidence may be presented in rebuttal that the effect on the value of land as a whole is minimal, it is for the jury to balance elements of damage in arriving at a just and reasonable award.

– Tom Root

Case of the Day – Tuesday, November 12, 2024

Posted on November 12, 2024 by TLRoot tagged.

TRESPASSERS WILL

Trespass … the concept has been around for a long time. The Israelites trespassed in the Promised Land. Just ask the residents of Jericho. The Romans trespassed throughout the known world. The Pilgrims trespassed on some prime real estate, as the descendants of the Wampanoag tribe will attest. Piglet, Winnie the Pooh’s sidekick, explained to the befuddled bear that his ancestor, “Trespassers William,” was remembered in the Hundred Acre Wood by a memorial sign emblazoned with “Trespasser Will.”

Most famously, Jesus advised us to forgive those who have trespassed against us. Alas, as today’s case illustrates, that advice – like much of His teachings – is honored in the breach.

Trespass is most readily defined as an unauthorized personal intrusion on land in possession of another by a wrongdoer, or by his failure to leave such land, or by throwing or placing something on such land, or by causing the entry of some other person onto such land. Because the law of trespass pops up time and again in tree cases – where some canny lawyer tries to turn the intrusion of branches over or roots under the property of another person into a trespass – it’s a good idea to brush up on the doctrine every now and then.

So pour yourself a glass of Soda Rock cabernet sauvignon, vintage 2010, and consider a recent case involving a boundary dispute between Napa Valley vineyard and adjacent winery operators. About 15 years ago, Ken and Diane Wilson bought a decrepit century-old winery building north of San Francisco. Over a decade, they restored it into a thriving winery, complete with tasting rooms and amusements for oenophiles.

The rear of the winery building backs up to a vineyard belonging to Belle Terre Ranch, with a pathway or “avenue” between. A line of oak trees runs behind the winery within about four feet of the building. Thanks to the ubiquity of satellites (look up and smile!), we are able to easily understand the layout, and thus the nature of the Wilsons’ problem with the neighbors.

During the reconstruction, the Wilsons regularly used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment involved in the reconstruction. Belle Terre also used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain, because it was just trying to be neighborly. Belle Terre’s permission to use the avenue was not intended to be perpetual, but rather just “to repair the winery.”

When the Wilsons applied for permits to complete the winery renovation, Belle Terre raised concerns with the county about trespass by wine-tasting patrons. One of its concerns was that a “survey should be done before a permit is issued.”

Knowing they would need a survey to plan the reconstruction, in January 2003 the Wilsons commissioned a surveyor. His survey showed the Belle Terre-Soda Rock boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

Five years later, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, dust that was settling on the grapevines and damaging the grapes. Wilson replied that the property line was about nine feet out from the winery, saying he had had it surveyed. After this confrontation, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, a line that closely corresponded to the line of oak trees.

Belle Terre’s attorney wrote a letter to the Wilsons in August 2008, telling them to stop trespassing on Belle Terre’s property. When the Wilsons continued to use the avenue, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages.

The Wilsons claimed they owned the nine-foot strip of land and denied they were claiming any interest in Belle Terre’s property. At trial, however, the Wilsons claimed in the alternative a prescriptive easement over the disputed strip of land.

The trial was a battle among the surveyors. When the dust settled (on the grape leaves, no doubt), the trial court found in favor of Belle Terre and issued judgment quieting title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees in the amount of nearly $117,000 under Code of Civil Procedure § 1021.9.

On appeal, the Wilsons argued vociferously against the propriety of the $1.00 in damages, for the very good reason that if no damages were awarded, no attorney’s fees could be awarded.

The California Court of Appeals upheld the judgment in favor of Belle Terre Ranch, ruling that the Wilsons were permanently enjoined from trespassing in Belle Terre’s vineyard. Likewise, the Court said, where there’s a trespass, there are always damages, even if they’re not proven. Property owners possess a “dignitary interest in the inviolability” of their property rights, the Court said. Thus, “every trespass is an invasion of a legal right of another and carries with it the right to nominal damages,” even if actual damages weren’t proven.

Such damages were not proven, in this case, probably because damages were an afterthought to Belle Terre – it started out the case just wanting a court to tell Wilsons to swill their wine somewhere besides on the “avenue.” We suspect that only when their lawyers’ bills started skyrocketing past $10,000 to $50,000 to north of $100,000, did the notion of getting someone else to pay the mouthpiece take hold.

About then, we surmise, one of Belle Terre’s lawyers found a provision in California law that held that in “any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.” The law was intended to give farmers and ranchers a meaningful remedy for damage caused by trespassers breaking through fences to take motor vehicles onto private property. The statute was designed “to enhance the ability of ranchers to sue trespassers for damages, particularly in those cases where the rancher must now either compromise a significant portion of a valid claim by suing in small claims court… or by spending a major share of the recovery to pay his or her attorney.” Sweet! Suddenly, money became a driver in the case, at least enough money to pay learned counsel.

Because Belle Terre did not focus on damages, the trial court just found nominal damages of a buck. That was enough, the judge said, to assess the $117,000 in legal fees against the Wilsons.

Not so, the Court of Appeals held. After a lengthy opinion that appeared to be thoroughly crushing the Wilsons’ grapes, the Court reversed the legal fees holding, thus turning a Mad Dog 20/20 opinion into a Clos Des Papes Chateauneuf-du-Pape 2012. The Court concluded that Cal. CCP § 1021.9 permitted the award of attorney fees only where there had been real damages, not just nominal or assumed damages.

Here, the Court said, the parties were primarily litigating a boundary dispute upon which a trespass claim depended, not the classic trespass case that an aggrieved rancher on a budget might need Cal. CCP § 1021.9 in order to pursue. There was no evidence of actual damage to the Belle Terre vineyards, and thus, while the $1.00 nominal damages stood, the attorney fees did not.

The lesson here – never overlook the benefit of proving actual damages. No doubt Belle Terre started out disclaiming any interest in proving damages. Had it proved even a dollar’s worth of damage from dust on the vines, ruts in the avenue, or anything else, its legal fees would have been covered.

Belle Terre Ranch, Inc. v. Wilson, Case No. A137217 (Ct.App.Cal. 1st Appel. Div., Jan. 13, 2015): Ken and Diane Wilson bought a rundown century-old winery building near Healdsburg, California, in 2001. Over a 10-year period, they restored it and opened a winery and retail operation.

The winery building backs up to a vineyard belonging to Belle Terre Ranch, with an unpaved “avenue” between them. A line of oak trees stands behind the winery within about four feet of the building. During the reconstruction, the Wilsons used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment. At the same time, Belle Terre used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain about the Wilsons’ usage for construction, but the permission was not intended to be perpetual.

The Wilsons commissioned a survey in order to plan the reconstruction of the winery. The survey showed the boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

In about 2008, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, which was settling on the grapevines, damaging the crops. At this time, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, and it closely corresponded to the line of oak trees.

After Belle Terre’s demands that the Wilsons stop using the avenue went unheeded, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages. The trial court found for Belle Terre, rejecting the Wilsons’ survey as flawed. It quieted title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees of about $117,000.

Napa Valley – idyllic, except when litigation rears its ugly head.

The Court of Appeals upheld the judgment in favor of Belle Terre Ranch, enjoining the Wilsons from trespassing in Belle Terre’s vineyard. It held that Belle Terre met its burden of proving the Wilsons intentionally, recklessly or negligently entered Belle Terre’s property or caused another to do so. There was evidence the Wilsons continued to trespass on Belle Terre’s property even after Belle Terre’s lawyer sent them a letter demanding that they cease. Trucks engaged in the Wilson remodel were photographed trespassing on Belle Terre’s property even past the nine-foot disputed area, and a dumpster used for the Wilson construction was placed over the nine-foot line. Belle Terre testified that the Wilsons discharged what appeared to be “gray water” onto Belle Terre’s property and also destroyed a wildlife habitat. A construction worker from Soda Rock also was seen trespassing into Belle Terre’s vineyard. The Wilsons argued there was “no evidence” linking the work performed by “unidentified construction workers” with the Wilsons’ land or improvements, but the court called this argument “patently absurd.”

The Court held that for every trespass upon real property the law presumed nominal damages where actual damages are not shown. “Because property owners possess a ‘dignitary interest in the inviolability’ of their property rights. The Court said that damages, even though nominal, are considered necessary to support a judgment in a trespass tort action since it is essentially an action for damages.

However, the nominal damages will not support an award of legal fees. Here, nominal damages were awarded without proof of actual injury to real or personal property. Based on the plain language of the statute, the Court concluded an award of attorney fees is not available on the facts before us.

Nominal damages have been described as “symbolic” and are often awarded “[w]here there is no loss or injury to be compensated but where the law still recognizes a technical invasion of a plaintiff’s rights or a breach of a defendant’s duty.” In this case, Belle Terre did not present any evidence of damages to personal or real property nor were compensatory damages claimed in the prayer for relief. The Court said that award of nominal damages in the trespass action was intended to redress intangible harm to the “dignitary interests” of the landowner personally, and not injury to the land or to his personal property. In this case, the parties were primarily litigating a boundary dispute upon which the trespass claim depended. Although the Wilsons’ acts of trespass onto Belle Terre’s land arguably supported an award of nominal damages, the Court said, there is no evidence of any actual damage to Belle Terre’s property that would trigger the provisions of section 1021.9.

In cases falling within the intent of the statute, there must be some tangible harm done to real or personal property as a result of the trespass.

– Tom Root

Case of the Day – Friday, November 8, 2024

Posted on November 8, 2024 by TLRoot tagged.

DOING YOUR DUTY

Robert E. Lee, a man torn between duty to country and to his home state (and now vilified in some fashionable circles), once said “Duty is the most sublime word in our language. Do your duty in all things. You cannot do more. You should never wish to do less.”

Judges must remind themselves of that often, as they are called upon to apply laws they believe are ill-conceived in cases where the outcome seems less than just to them. The Supreme Court of Rhode Island (now stripped of its traditional name, “Rhode Island and Providence Plantations,” due to the utter offensiveness of the word ‘plantation'”) faced that unpleasant task a decade ago, being required to send an injured citizen home empty-handed after an accident at a state facility. The Rhode Island statute in question, the State’s Recreational Use Statute, gives unusually broad immunity to governmental units, classifying the people who use parks and other facilities as little more than trespassers.

Agree or not with the Court’s discomfiture at treating a user of a state recreational facility as a trespasser, one must nevertheless admire the Court’s careful application of the law, coupled with its repeated solicitation of the legislature to correct what a majority of the state’s high court sees as short-sighted policy. Clearly, the judges didn’t like what the law compelled them to do… but they saw the only remedy for that as laying with the legislature.

Labedz v. State, 919 A.2d 415 (Sup.Ct. R.I. 2007). Antonina Labedz was walking along a concrete path at Scarborough Beach, a state-owned beach located in Narragansett, Rhode Island. She tripped on an uneven surface and fell to the ground, breaking her wrist. She sued, alleging the State was negligent in “permitting a dangerous uneven condition to exist on a portion of walkway and failing to warn invitees … of the dangerous condition on the premises.” The trial court found that the State was shielded from liability by virtue of the Recreational Use Statute. Labedz appealed.

How did Ms. Labedz miss that hole? Or was the City negligent? We’ll never know because sovereign immunity stopped this lawsuit in its tracks.

Held: The State was not liable. Labedz argued that the Supreme Court should reverse prior cases which gave the State broad exemption from liability. But the Court rejected her position, noting that it had been unequivocal in its view that the unambiguous language of the 1996 amendment to the Recreational Use Statute clearly reflects the General Assembly’s intent to extend to the state and municipalities the limitations on liability afforded by that statute, most recently in Lacey v. Reitsma. The Court took the opportunity again to note its “concern about the troubling result that we felt obliged to reach by virtue of our reading of the Recreational Use Statute, and we urged the General Assembly to revisit the provisions of that statute concerning state and municipal immunity.” The Court felt uncomfortable with a statute that classified users of state and municipal recreational sites “as though they were trespassers.”

Labedz also argued that the trial court was wrong to grant summary judgment where the State could have been found liable if its conduct had been willful or malicious. She had alleged as much in her complaint, but she advanced no evidence to support her claim. But Labedz argued that it was the jury’s duty to find whether the conduct had been willful or malicious, and the trial court shouldn’t have taken away that duty by granting summary judgment without a trial. The Court ruled that if the facts were not genuinely disputed, as in this case, the law is pretty settled that a trial court may proceed to determine the existence of any legal duty without assistance from the jury.

Here, Labedz couldn’t point to any evidence that suggested the State acted willfully or maliciously, as those terms are used in the Recreational Use Statute. Summary judgment for the State was appropriate, albeit not cheerfully granted.

– Tom Root

Case of the Day – Thursday, November 7, 2024

Posted on November 7, 2024 by TLRoot tagged.

YOU’RE BLOCKING THE VIEW I MAY SOMEDAY HAVE

From the annals of neighborly chutzpah comes this tale of unmitigated gall. (Is there ever mitigated gall? Perhaps a question for another time…)

Implied view easements get a deservedly tough rap in this country. You can grant such a view easement to a neighbor, and the courts will enforce it. But that is hardly ever the case, except in planned communities, where restrictive covenants control from the color of your house to whether you can have kids that aren’t cute.

Usually, it is a case where the neighbors have an expectation that nothing will ever change once they buy their property. Trees won’t grow, new buildings won’t go up, a new Dollar General won’t be built across the street… When life goes on, making a mockery of their expectations, they respond with a lawsuit alleging that life is spoiling the view.

But today’s case takes the cake. Here, the neighbors were accused of spoiling the view that the plaintiffs anticipated someday having if they ever got around to building a patio from which to have a view. In other words, you can’t have it because I might want it someday.

There’s a good reason (besides slamming down uppity neighbors) such implied easements are never found to exist. Imagine the confusion. A buyer could identify all of the written easements on the land, but he or she could never know what unwritten easements in favor of presumptuous neighbors might be lurking out there. And the lenders could not be sure, either. Pretty soon, getting financing would be much tougher, finding willing buyers would be much more complex, and before you know it, progress grinds to a halt.

It may seem crass and commercial, but recall the real estate market of 15 years ago. No one is served by a return to that.

Kruger v. Shramek, 5 Neb.App. 802 (Neb.App. 1997). Eric and Ann Kruger bought a lot in the Eagle Run West subdivision of Omaha in late 1991. Two years later, John and Tammy Shramek bout the lot next door. The Krugers preferred to savor the thought of building a house, while the Shrameks – a pair of go-getters – got right on it.

Both lots abut the picturesque 18th hole of the Champions Golf Course. When the Shrameks started building, they reviewed their plans with the subdivision developer, who approved them. The Krugers were another story. They complained about a change in water flow caused by the Shramek’s regrading. They complained about the fence. Mostly, they complained that the Shramek’s landscaping would ruin the view of the 18th hole from their yet-to-be-constructed patio.

The Shrameks tried to accommodate their would-be neighbors. They moved their downspouts underground and ran them to the golf course. They removed a berm, transplanted trees closer to their house, and removed some of the fill dirt near the property line between their lot and the Krugers’ place. Nothing worked. The Krugers remained dissatisfied with the potential obstruction of the view from their hypothetical house caused by the Shrameks’ backyard improvements.

This being America, they sued for an injunction to stop the Shrameks’ from developing their property, seeking an order requiring the Shrameks to restore the rear of their property to its original grade, remove the present fence, and remove the trees. They claimed the Shrameks’ improvements were a private nuisance. The district court denied the Krugers any relief, holding that the change in grade on the Shrameks’ property actually improved the Krugers’ view of the golf course, and at any rate, the improvements made to the Shrameks’ property were not so substantial an invasion of the Krugers’ use of their property to justify the injunctive relief requested and that due to Horgan’s approval of the Shrameks’ construction.

The Krugers appealed.

Held: The Krugers got no injunction.

An injunction is an extraordinary remedy and ordinarily will not be granted except in a clear case where there is actual and substantial injury. Such a remedy should not be granted, the Court said, unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.

The Court said a private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of his or her land. Nebraska follows § 822 of the Restatement (Second) of Torts, which provides that “one is subject to liability for a private nuisance if, but only if, his or her conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land and the invasion is intentional and unreasonable. With respect to a nuisance in the context of an action in equity, the invasion of or interference with another’s private use and enjoyment of land must be substantial.”

The general rule is that a lawful building or structure cannot be complained of as a private nuisance merely because it obstructs the view of neighboring property. This rule flowed from the repudiation of the traditional English doctrine of ancient lights. Under that doctrine, a landowner acquired an easement for light across an adjoining landowner’s property and could prevent the adjoining landowner from obstructing the light once the easement was established by the passage of time. The ancient lights doctrine as applied to claims involving views has been repudiated by every state considering it. One basis for the doctrine’s repudiation is that “it is not adapted to the conditions existing in this country and could not be applied to rapidly growing communities without working mischievous consequences to property owners.” The doctrine essentially created an unwritten negative prescriptive easement over a neighbor’s property, which would frustrate the purpose of the recording statutes, one objective of which is to ensure that all property rights are recorded and discoverable by a diligent title search.

The Court adopted the majority rule that a lawful building or structure, including landscaping improvements associated with any such building or structure, cannot be complained of as a private nuisance merely because it obstructs the view of neighboring property. “Based upon this proposition of law and our determination that the improvements made by the Shrameks were lawful,” the Court ruled, “we conclude that the district court did not err in denying the Krugers injunctive relief based on their private nuisance theory.”

– Tom Root