Case of the Day – Wednesday, February 26, 2025

Posted on February 26, 2025 by TLRoot tagged.

SHOWING UP

Denise Pevarnek’s agent chopped down her neighbors’ trees so she’d have a better view of the river. The neighbors complained (surprisingly enough), but Denise steadfastly ignored their remonstrances. The neighbors then sued, but Denise ignored the summons. She finally decided to start paying attention after a default was entered against her and the trial court intended to assess treble damages against her in the amount of $77,000.

Denise tried futilely to undo the consequences of her earlier indolence. Alas, a stitch in time saves nine. The Court ruled that she had had plenty of notice, but her decision to ignore the lawsuit was her problem, and undoing the default she so richly deserved would have turned her problem into her neighbors’ problem. And they were already smarting from the loss of their trees.

Of interest in the case — one argument Denise included in her scattershot but untimely defense — was her contention that the cost to replace the trees wasn’t the right measure of damages and that the trial court was wrong to rely on an affidavit of an arborist that didn’t explain in detail how he had arrived at the damage costs. The Court rejected this, saying that in the case of trespass, the measure of damages is either the reduction in the value of the property or — where the property can be repaired — the cost to fix things. The goal of the damage award, according to the Court, is to come as close as possible to compensating the owner for the damages, and trial courts have a lot of latitude to choose the method that seemed more reasonably calculated to do so.

The affidavit, the Court noted, laid out the expert’s education and experience, showed that he had inspected the damaged real estate, and proposed a reasonable strategy for repairing the harm. The arborist listed what had to be done and how much he’d charge to do it. It might not be perfect, but perfection is often the enemy of “good enough.” The affidavit, the Court ruled, was “good enough.”

The Court reminded the defendant that if she really had found the damage showing to be flawed and superficial, she could have come to the hearing and contested it. Snooze and lose, indeed.

Bologna v. Pevarnek, 2007 Mich. App. LEXIS 2689, 2007 WL 4207801 (Mich.App., Nov. 29, 2007). Denise Pevarnek hired Chester Damiani to clean up her property. He was zealous to a fault, deciding to improve the view of the Detroit River from her adjacent lot by cutting down trees belonging to her neighbors, the Bolognas. Believing that Denise and Chester’s conduct was baloney, the Bolognas sued for trespass, alleging that the destruction reduced the value of their property and exposed a view to Pevarnek’s unsightly neighboring property and asking for $28,000, trebled by Michigan’s wrongful cutting statute to $84,000.

Denise Pevarnek was served with the lawsuit, but she didn’t answer. As is customary when that happens, the Bolognas got a default judgment. Thereafter, they presented the affidavit of a certified arborist who opined that the cost of landscape restoration was $24,050. At this point, Denise took notice, and began taking action to defend, seeking to have the default undone. The trial court refused, and it entered judgment against her for $77,730. Pevarnek appealed.

Held: The judgment was upheld. Much of the case revolves around whether Denise should be relieved from her default judgment. The Court of Appeals ruled, in essence, that she knew about the suit and did nothing. In other words, “you snooze, you lose.” But of interest in the area of tree law was Denise’s claim that the trial court was wrong in using the cost of replacing the trees as a measure of the damages the Bolognas suffered. The Court of Appeals said where the wrong consists of a trespass to property resulting in an injury to the land that is permanent and irreparable, the general measure of damages is the diminution in value of the property. If the injury is reparable or temporary, however, the measure of damages is the cost of restoration of the property to its original condition (if less than the value of the property before the injury).

The rule is, however, flexible in its application. The ultimate goal is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss. Here, the Court said, given the fact that the Bolognas’ trees could be restored, it was proper for the trial court to use the cost-of-restoration method.

Pevarnek argued that the trial court erred by adopting without question the assertion of alleged damages without sufficient foundation. The plaintiff had filed an affidavit of arborist Steve McCollum, who swore that – in order to return the property to its pre-trespass condition, that is, with no view of Pevarnek’s property – 12 new trees had to be planted, some existing trees had to be replanted, the over-pruned trees had to be removed, and the lawn had to be repaired. He stated that the total cost of this work was $24,050. The trial court awarded plaintiffs damages of $77,730, equal to three times the sum of the cost of work proposed by McCollum and $1,860 for the cost of a privacy fence. Although McCollum’s affidavit didn’t explain how he calculated the damages, he stated his qualifications and education, he said he had personally inspected the Bologna property, assessed their needs, specifically listed the work to be done, and listed the cost for his business was to complete it. The Court said the expert affidavit put forth a reasonable basis for the damage computation, and that was enough.

– Tom Root

Case of the Day – Tuesday, February 25, 2025

Posted on February 25, 2025 by TLRoot tagged.

THIS ONE IS FOR MY WONDERFUL WIFE

Years ago, our neighbor Olwen – who, if she had not passed away (meaning, of course, that we cannot speak ill of her), we would have described as a battleaxe – surrounded two sides of her property with 2-3’ arborvitae. It didn’t really look that bad, but… well, they grew.

And grew, and grew and grew. Our neighbor never trimmed them before she departed this mortal coil. And the two families who lived there subsequently never trimmed the trees/shrubs/whatever-the-hell-they-are, either.

Consequently, the arborvitae are 25 feet tall and still growing. We finally had to move our vegetable garden about 20 yards to the west because of the shade they were throwing. Exercising our Massachusetts Rule rights last fall, we hacked about ten of them back to the property line in order to install a new shed. We then built a fence to try to keep the monsters in check.

My wife mutters about the arborvitae daily. I have no problem understanding Nancy – the protagonist in today’s case – who must have loved neighbor Pnita’s arborvitae as much as my wife loves Olwen’s. But while my wife just glowers at the arborvitae, Nancy – a woman of action – did something. She brought in a trimming crew and topped the neighbor’s trees.

She didn’t kill them, just sort of knee-capped them. Who knew that so much visceral pleasure could end up being so expensive?

So this post is for my wife, a cautionary tale lest she decides to take matters into her own hands on the next-door arborvitae. Take a deep breath, honey…

Joseph v. Nathanson, 87 Mass. App. Ct. 1102, 23 N.E.3d 151, 2015 Mass. App. Unpub. LEXIS 37 (Ct.App. Mass. Jan. 16, 2015). Pnina Joseph and Nancy Ellen Nathanson owned abutting properties and shared a property line. Pnina planted thirty-five arborvitae trees on her property close to the property line to serve as a privacy screen. In October 2012, Nancy directed her landscaper to go onto Pnina’s property and “prune” the trees. The landscaper “topped” the trees by cutting about five to six feet from the tops.

Pnina sued under Massachusett’s tree-cutting statute, G. L. c. 242, § 7, and a jury returned a verdict in Pnina’s favor, awarding her $35,000. The award was trebled under the statute. Nancy appealed, arguing that her actions did not violate the tree statute because the trees were not “cut down” or “destroyed” as required by the statute.

Held: “Topping” the trees so that they would no longer grow any higher justified application of the Massachusetts wrongful-cutting statute.

General Law c. 242, § 7 provides for liability on the part of anyone who “without license willfully cuts down, carries away, girdles or otherwise destroys trees.” Nancy asserts that under the tree statute, Pnina’s trees had to be completely destroyed or cut down in order for the plaintiff to recover. She argues that the evidence showed that the trees were alive, growing, and healthy after the topping of the trees and, therefore, could not possibly have been “destroyed.”

The Court said it would interpret a statute to give effect “to all its provisions, so that no part will be inoperative or superfluous.” The statute here requires that the trees be “cut down, carried away, girdled or otherwise destroyed.” G. L. c. 242, § 7. “The phrase “otherwise destroyed” includes,” the Court said, “but is not limited to, the preceding phrases including ‘cut down’.” In other words, “cut down, carried away,” and “girdled” are examples of how a tree may be destroyed; they are not exclusive.

The judge instructed the jury that the word “destroy” has a commonly understood meaning, which includes “to ruin completely, to ruin the structure, organic existence or condition of a thing, to demolish, to injure or mutilate beyond the possibility of use.” The Court held that this definition given to the jury correctly provided a broader meaning to the term destroy than the examples in the statute.

Pnina’s expert testified that the “topping” of the trees meant that they would never grow vertically again and were no longer functional as a privacy screen. The jury was entitled to credit that testimony, to agree with Pnina that the trees were “mutilated beyond the possibility of use” as a privacy screen, and therefore to find in Pnina’s favor.

– Tom Root

Case of the Day – Monday, February 24, 2025

Posted on February 24, 2025 by TLRoot tagged.

DOING NOTHING IS NOT AN OPTION

“A stitch in time saves nine” is an idiom that’s been around for three hundred years or so. It also is an everyday explanation of the equitable doctrine of laches.

It always seemed a little ironic that English common law needed an entire branch of jurisprudence known as “equity.” Oliver Wendell Holmes, Jr., famously lectured a litigant once that his courtroom was “a court of law, young man, not a court of justice.” It was precisely because there was so much law and so little justice that medieval England developed a parallel judicial system known as courts of equity, where litigants could get just results that were precluded in the courts of law by hidebound rules of pleading and damages.

The basis of equity is contained in the maxim “Equity will not suffer an injustice.” Other maxims present reasons for not granting equitable relief. Laches is one such defense.

Laches is based on the legal maxim “Equity aids the vigilant, not those who slumber on their rights.” In other words, “you snooze, you lose.” Laches recognizes that a party to a lawsuit can misplace evidence, lose witnesses, and thus forfeit a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. If the defendant can show disadvantages because, for a long time, he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice.

Ms. Garcia suffered encroachment from a copse of boundary-tree elms for a long time, perhaps too long a time, without doing anything about it. She could have trimmed roots and branches that intruded into her alfalfa fields years before – New Mexico law let her do that – but she fretted and stewed in silence. When she finally wanted to take action, the elms were so big that the trunks themselves had crossed the property line. Her “self-help” would have killed the trees.

The lesson? As Ed McMahon used to adjure us, “You must act now.”

Garcia v. Sanchez, 108 N.M. 388, 772 P.2d 1311 (Ct.App. N.M. 1989). This dispute between neighboring landowners involves trees originally planted on the defendant’s property which have overgrown and now encroach upon the plaintiff’s property. By the time Garcia bought her land in 1974, ten elm trees planted some years before near the common property line were well established. Although originally planted inside the defendant’s property line, over the years, the trees had reached full size and had grown so that nine of them were directly on the boundary, with the trunks encroaching onto the plaintiff’s property from one to fourteen inches.

Garcia used her land for growing field crops. Sanchez’s side had a driveway and residence. Garcia didn’t complain about the trees until 8 years after buying her property. Two years after her first complaint, she sued.

The trial court found Garcia’s actions in providing water and nutrients to her crops had caused the trees to grow toward her property, but it concluded that Sanchez negligently maintained the elm trees, allowing the roots and branches to damage the crops on Garcia’s property. The court also found that she had not suffered enough damage to warrant the removal of the trees and that cutting any substantial portion of the trunks of the trees would seriously harm them. The court found that yearly trenching of the roots and trimming of branches on Garcia’s side of the property line would essentially resolve any problems resulting from the encroachment of tree roots and overhanging branches on her property, so it ordered Sanchez to pay $420.80 for damage to Garcia’s alfalfa, to yearly trench the roots and trim the branches of the trees, and to provide water and nutrients to the trees in order to restrict their growth toward plaintiff’s property.

The parties appealed.

Elms make good boundary trees

Held: The Court of Appeals reversed and remanded. It held that the trees originally planted inside a property line, which had grown to encroach onto adjoining property along the boundary, were not jointly owned under the common boundary line test absent an oral or written agreement to have the trees form the boundary line between the parties’ property. It agreed that the trial court’s refusal to order that Sanchez remove the encroaching trees was not an abuse of discretion, observing that the trial court had tried to balance equities by weighing the value of trees against the agricultural character of the property involved and the nature of the harm suffered by Garcia.

But the Court of Appeals went further: it ruled that the harm caused to Garcia’s crops by the elms’ overhanging branches and tree roots is not actionable. Instead, following Abbinett v. Fox, the Court held that a plaintiff’s remedies are normally limited to self-help to protect against the encroaching branches and roots. But here, Garcia waited too long: her plan now, after years of suffering in silence, to remove a substantial portion of the root system or trunk of the encroaching trees (her Massachusetts Rule right) may endanger lives or injure Sanchez’s property, and that laches gives a court the right to limit the exercise of her self-help plan under its equitable authority.

The Court sent the case back to the trial court to determine whether Garcia’s failure to exercise self-help to control encroaching roots, branches and tree trunks over an extended period should preclude injunctive relief now.

– Tom Root

Case of the Day – Thursday, February 20, 2025

Posted on February 20, 2025 by TLRoot tagged.

INJUNCTION JUNCTION

Pipelines are tubes through which money flows. There are barrels of revenue and gallons of net income in building those capital-intensive projects.

Yesterday, we read how Buckeye Pipeline Co., got whupped by local tree owner Bob Pichulo. And that was no mean feat. Buckeye is not just a couple of guys in a rusty Reading work truck. Instead, it is a subsidiary of Buckeye Partners, L.P. a master limited partnership that in turn is owned by IFM Investors, a global fund manager owned by 27 Australian pension funds. The IFM bought Buckeye in 2019 in a deal valued at $10.3 billion. At the time, Buckeye had prior year revenue of $4 billion and about $400 million in net income. Buckeye’s assets included 6,000 miles of pipeline, with over 100 delivery locations and 115 liquid petroleum products terminals with aggregate tank capacity of over 118 million barrels, and a network of marine terminals located primarily in the East and Gulf Coast regions of the United States, as well as in the Caribbean.

So Bob was a problem, but not much of one. Or it would not have been if Buckeye had just gone ahead and cut down the 13 maple trees, and paid the $50,000 Bob’s expert said the trees were worth. Buckeye would have had the clear view and open space it wanted for the pipeline. Cut the check, Buckeye. It’s only money. And by your metric, not much money at that.

But Bob’s backwoods Wolverine lawyer had one final trick up his rumpled sleeve. Bob did not ask for money. Instead, he asked for and got a permanent injunction. So Buckeye no longer had the option of cutting the trees and tendering a check to Bob.

Injunctions are extraordinary remedies, generally reserved for cases where the harm is irreparable, that is, not compensable with dollars.

On appeal, Buckeye whined that the trial judge should not have granted an injunction, because Bob’s own expert said the trees were worth $50K. The very fact that Bob could assign a dollar value to his trees, Buckeye argued, meant that the harm was not irreparable.

Everyone knew what Buckeye meant. What it meant was that if it lost, it would trespass anyway, cut the trees it wanted removed, and then remedy its trespass with a checkbook. The trial court did not intend to let that happen.

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

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

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

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

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

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

Buckeye appealed.

Yesterday, we discussed how Bob’s experts, perhaps with the help of a judge inclined to find the home team a little more believable, steamrolled Buckeye. What we did not talk about was the permanent injunction.

Buckeye complained that the trial court abused its discretion by issuing a permanent injunction against it cutting down Bob’s trees. It claimed the injunction was not a proper remedy because Bob had a legal remedy available, the loss of Bob’s trees was not irreparable, and a weighing of the harms between the parties and the risk to public safety should have favored Buckeye.

It is true, the Court said, that injunctive relief is an extraordinary remedy that “issues only when justice requires, there is no adequate remedy at law, and there exists a real and imminent danger of irreparable injury,” and that he grant of such injunctive relief is within the sound discretion of the trial court. The general rule is that a court will balance the benefit of an injunction to the plaintiff against the inconvenience and damage to the defendant, and grant an injunction or award damages “as seems most consistent with justice and equity under all the circumstances of the case.”

“While an injunction may lie when a tort is merely threatened,” the Court said, “a cause of action for damages will not.”

Buckeye argued that the trial court should not have granted injunctive relief in favor of Bob because the harm to him could be remedied by the payment of money damages. Bob’s expert did testify that the Norway maples had an established value based on their health and age. However, the Court said, just because an object has monetary value does not rule out a permanent injunction. Permanent injunctions are permitted not only “[w]hen an injury is irreparable,” but also when “the interference is of a permanent or continuous character, or the remedy at law will not afford adequate relief”

Thus, the Court ruled, proof that monetary damages would not be adequate or that there would be a permanent interference also could warrant an injunction. Here, the trial court credited testimony from the plaintiff that the trees had a sentimental value to him and that no amount of money would satisfy his loss. Further, the trial court noted that removal of the trees would have been permanent, because they reasonably could not be replaced, considering the arborist’s testimony that the trees were quite old and took over 70 years to grow.

Additionally, the Court noted that when a tort merely is threatened, the proper remedy is for an injunction, not for damages. “The trial court did not clearly err in determining that removal of the trees was not reasonably necessary to the defendant’s use of the easement,” the Court of Appeals ruled. Bob showed that Buckeye was threatening to commit a trespass or, in other words, a tort. Consequently, the Court said, injunctive relief was the proper remedy.

In a last gasp, Buckeye argued that the trial court did not weigh potential harm to the plaintiff, the defendant, and the public. Buckeye is correct that, typically, a trial court is required to “balance the benefit of an injunction to plaintiff against the inconvenience and damage to defendant,” and only issue an injunction if it would be “consistent with justice and equity under all the circumstances of the case.” However, such balancing is not required where a trespass could result from an intentional or willful act. Here, Buckeye made no secret of its intent to remove the 13 Norway maples. “Therefore,” the Court held, “defendant’s proposed action was intentional and willful.”

Even assuming that the trial court did not properly balance the harms, the error would have been inconsequential, because the trial court was not required to do so.

– Tom Root

Case of the Day – Wednesday, February 19, 2025

Posted on February 19, 2025 by TLRoot tagged.

PRIDE GOETH BEFORE A FALL

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

Being “homered” is a phenomenon that occurs when an out-of-town client, especially one represented by big-city out-of-town lawyers, appears in a small rural county courthouse on the opposite side of a case against a local resident represented by a local lawyer.

As a matter of law, it means nothing that the judge plays golf with the local lawyer, or that the local litigant had been sitting in the next pew over from the judge’s family for two decades or more. The law does not countenance favoritism, and the judge has taken an oath.

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

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

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

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

It hardly helped Buckeye’s cause that its case was largely one of ipse dixit. The pipeliner’s case could charitably be summarized as “we own the easement, and the trees need to be cut because we say so.” Even after being called on it, Buckeye continued to spin, saying the tree roots were dangerous to the pipeline because they said so, and the trees could make lightning strike the pipeline because they said so. It’s a bad idea to make outrageous claims that you cannot back up.

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

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

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

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

Buckeye appealed.

Held: Bob was entitled to his permanent injunction.

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

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

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

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

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

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

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

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

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

Mark Twain says there are none of these …

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

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

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

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

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

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

In sum, the Court of Appeals said,

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

– Tom Root

Case of the Day – Tuesday, February 18, 2025

Posted on February 18, 2025 by TLRoot tagged.

TAKE A LITTLE OFF THE SIDES

The Massachusetts Rule is the original dose of self-reliance, holding that a landowner has an absolute right to trim back overhanging branches and encroaching roots of his or her neighbor’s tree. But even in Massachusetts, sometimes people may get carried away.

There’s a lot of bad trimming going on out there ...

The O’Malleys had planted and nurtured nine rather rare (for Massachusetts) false cypress trees on their land, using them to form a natural screen between their home and Ruhan’s place next door. The trees were about 15 to 20 feet tall. Along came Ruhan’s landscaper, who apparently knew about the Massachusetts Rule in a crude sort of way. He trimmed the false cypress trees back to the property line and then some, sawing them right down to the trunks on Ruhan’s side of the trees. The court said that the trees continued to survive and even to serve as a screen, but that their “aesthetic integrity” had been compromised by the negligence of Ruhan’s agent. That’s legalese for “the trees looked like hell.”

In the battle of the experts, the O’Malleys leapt to an early lead. Their arborist expert witness testified that replacement of the trees would cost about $14,000. Ruhan’s expert didn’t testify as to the cost of cleaning up the damage but instead suggested that the trees were still growing and still screening the O’Malleys, so the shaving of one side of the trees didn’t really harm anything. The Court disagreed with Ruhan, finding that loss of aesthetic integrity was indeed damage, regardless of whether the trees still grew or not. And because Ruhan’s expert hadn’t put in any evidence challenging the O’Malleys’ estimate of $14,000 to replace the trees, that number was the best evidence the Court had to go on.

The lesson is that the expert should have covered all the bases: he or she should testify that there was no loss, but if there was, it would only cost an amount certain to repair. If you don’t give the court your own evidence, you can hardly blame the judge for using the other side’s. And a curious note: the Court of Appeals suggested that the whole notion of whether Ruhan was entitled under the Massachusetts Rule to trim all the way to the trunk wasn’t necessarily settled, but because he didn’t raise the question on appeal, the Court couldn’t consider it.

O’Malley v. Ruhan, 2006 Mass.App.Div. 174, 2006 Mass. App. Div. LEXIS 65, 2006 WL 3501553 (Mass.App.Div. 2006). The O’Malleys sued Ruhan after his landscaper pruned the branches of their nine false cypress trees — 15 to 20 feet tall each — back to the trunks of the trees, rendering the trees permanently lopsided. The trial court held that the value of the trees, although they survived, was equal to their replacement cost, and awarded the O’Malleys $14,007. Ruhan appealed.

Held: The O’Malleys were entitled to recover the replacement costs for the false cypress trees. O’Malley’s arborist expert opined that replacement costs totaled $14,007.00. Ruhan did not object to that expert’s testimony, including his opinion as to replacement cost. In the absence of objection, the Court said, the expert’s testimony was to be accorded appropriate evidentiary weight. Ruhan’s expert, on the other hand, apparently testified in essence that the mutilation of the trees did not diminish the value of O’Malley’s property at all, that is, that Ruhan’s negligence caused no harm of any kind to O’Malley.

When trimmed too vigorously, trees can become less aesthetically pleasing.

Because the trial court found that harm had been caused, the Court said, that issue was decided. The only issue was the amount of damages. The Court held that it would be appropriate to award damages based on the value of the timber, on diminution in the value of the property, or for the reasonable costs for restoring the property to its original condition. Observing that courts throughout the country have placed a greater emphasis on the rights of a property owner to enjoy the aesthetic value of trees and shrubbery, notwithstanding the fact they may have little commercial value, the Court held that when trees are destroyed by a trespasser, “sound principle and persuasive authority support the allowance to an aggrieved landowner of the fair costs of restoring his land to a reasonable approximation of its former condition, without necessary limitation to the diminution in the market value of the land.” Because the amount awarded by the trial court was based on the only damages figure in evidence, it was reasonable.

Interestingly enough, the appeals court made reference to the Massachusetts Rule first enunciated in Michalson v. Nutting. The Court observed that while it is the law in Massachusetts that a neighbor has the right to remove so much of a neighbor’s tree as overhangs his property, “[e]xplication of the parameters of this right, though, is as scarce as palmetto palms on Cape Cod. Presumably, the right is one that must be exercised in a reasonable manner.” But, the Court noted, whether Ruhan was within his rights or not under the Massachusetts Rule was not raised on appeal, so the Court didn’t decide it.

– Tom Root

Case of the Day – Friday, February 21, 2025

Posted on February 16, 2025 by TLRoot tagged.

PARTITION

What happens when landowners can’t get along? Not like husbands and wives – that kind of “not getting along” will always be with us. Rather, what happens when heirs end up owning property together, with each having a fractional piece and no one being able to agree with anyone else about anything?

When that happens – as it did in today’s case – the law provides that land may be partitioned, that is, divided among the owners according to statute. Where reasonable division isn’t feasible, the land is sold and the proceeds are divided.

There’s another legal concept important for today’s case, and that’s what’s commonly known as the Statute of Frauds. The Statute of Frauds was intended to prevent frauds by requiring that certain types of agreements be in writing. Traditionally, the statute of frauds requires a signed agreement for

• contracts in consideration of marriage (including prenuptial agreements);

• contracts that by their terms cannot be performed within one year;

• contracts relating to an interest in land (including contracts of sale, mortgages and easements);

• contracts by the executor of a will to pay an estate debt with his or her own money;

• contracts for the sale of goods totaling $500 or more; or

• contracts in which one party becomes a surety for another party’s debt or other obligation.

The contracts covered by the Statute of Frauds can be remembered by using the mnemonic device “MY LEGS”: Marriage, contracts for more than one Year, Land, Executor (or Estate), Goods ($500 or more), Surety.

In today’s case, one landowner – called a co-tenant because the owners owned the land as a tenancy in common (an expression having nothing to do with rental) – wanted to cut down trees on two of the parcels. When the other co-tenants complained, the first (we’ll call him Greedy Gus) said he was taking the two lots on which the trees were located anyway, and letting the other owners have the more expensive, better parcel. The other owners (think of them as Sloppy and Hasty) agreed with his oral proposal and even made a $16,000 equalization payment as part of the understanding. But when they finally got around to signing an agreement, Greedy Gus wanted to change the deal. Now he sought a whopping big equalization payment, one Sloppy and Hasty wouldn’t pay.

No deal was signed, and Gus then sued for partition under the statute (which would have valued the entire property and given him a much larger stake than what the others said he had agreed to). Sloppy and Hasty counter-claimed, but the trial court granted summary judgment for Gus. S & H appealed, and the Court of Appeals sided with them.

The appellate panel held that there were enough facts in play to require the matter to go to a jury, but the Arizona Supreme Court had the last word. Both the appeals court and the Supreme Court warned Sloppy and Hasty, the two co-tenants who were arguing for the existence of an agreement, that the alleged voluntary partition agreement was subject to the Statute of Frauds, and the amount of paper evidencing an agreement was pretty sparse. Partial performance of a contract will exempt it from the Statute of Frauds: if I sell you a lot, and accept your payment but refuse to give you a deed, the partial performance — your payment — excuses non-compliance with the Statute. Here, the Court of Appeals was pretty clearly unimpressed with the suggestion that the tree cutting was enough performance to excuse the lack of paper. It offered Sloppy and Hasty their day in court, but the day didn’t look too promising.

The day turned out to be anything but promising. The Arizona Supreme Court held that in order to constitute partial performance, the act had to unequivocally prove the existence of the unwritten contract. In other words, “part performance must consist of acts that ‘cannot, in the ordinary course of human conduct, be accounted for in any other manner than as having been done in pursuance of a contract’. The Supreme Court said that “in addition to providing an equitable basis for ordering specific performance, acts of part performance serve an important evidentiary function – they excuse the writing required by the statute because they provide convincing proof that the contract exists. So that this exception does not swallow the rule, the acts of part performance take an alleged contract outside the statute only if they cannot be explained in the absence of the contract.”

Here, the Supreme Court ruled, the acts that Sloppy and Hasty called evidence of part performance were really acts that were as consistent with their one-third co-tenancy interest as they were of anything else. With no partial performance, the unwritten contract went unenforced, too.

Owens v. M.E. Schepp Ltd. Partnership, 182 P.3d 664 (Supreme Court of Arizona, 2008). The parties owned undivided interests as tenants in common in contiguous residential lots. Hal Owens had a two-thirds interest and Schepp Partnership had a one-third interest. Two of the three lots were vacant, and a residence and guest house were on the third. The guest house was rented to third parties, but one of the Schepp partners lived in the residence.

Perhaps one of the first cases of partitioning …

Hal sued for partition of the lots and an accounting for rents and profits. Schepp Partnership answered and counterclaimed for specific performance of an alleged voluntary partition agreement or, alternatively, damages for a purported reduction in the value of two of the lots caused by Hal’s removal of mature trees. Schepp Partnership argued that statutory partition was not available to Hal because he had entered into the voluntary partition agreement.

While meeting with the Schepps over a City notice to clean up the lots, Hal had said he wanted to remove a row of mature, 65-foot tamarack trees along the northern edge of the lots. Thomas Schepp objected, saying the neighbors would be upset. Hal responded that he would decide what to do because he was taking two lots and leaving the most developed one to Schepp Partnership. He also told the partners that because Schepp Partnership would be getting the more valuable lot, it might cost the partners some money.

The parties agreed to divide the lots in this manner but did not reach an agreement on any equalization payment. The Schepp brothers understood, however, that Hal might make a future claim for such payment. Soon after the meeting, Hal removed the trees. He told one of the Schepps that because he had paid a great deal of money for the two lots, the choice to remove the trees was his alone. Hal and Thomas Schepp then agreed a second time that Hal would take two lesser-value lots and Schepp Partnership would take the developed one. Based on this agreement to split the lots, the Schepps allowed Hal to remove the mature trees. Schepp Partnership later paid Hal $16,600, one-third of the total removal cost, as compensation to Hal in light of Schepp Partnership’s receipt of the more valuable lot.

A few months later, the Schepp Partnership sent a partition agreement to Hal for execution, but he returned it unsigned objecting to the lack of an equalization payment provision. Hal proposed that Schepp Partnership pay him $233,333 and grant him an access easement as equalization. The parties negotiated but never reached an agreement regarding additional compensation. The trial court granted partial summary judgment for Hal, ordering statutory partition and appointment of commissioners and dismissing the counterclaim for specific performance, holding that there was never an agreement as to how the property was to be divided between the parties. The Schepps appealed.

The Court of Appeals reversed the trial court, but the Schepps couldn’t find much solace in that fact. Partition is a means of dividing real property among certain types of owners. Property may be partitioned by agreement, or — if agreement cannot be reached — according to the requirements of state law. Voluntary agreements to partition real property are preferred to and controlling over involuntary partition proceedings.

A contract is formed when there is a bargain – consisting of promises exchanged – and consideration. To be enforceable, a contract must be reasonably certain and definite. Agreements leaving material terms for future resolution can be enforceable nonetheless if the parties sufficiently manifested mutual assent to be bound by those agreements. Where terms are missing, extrinsic evidence can be used to establish the meaning of the parties’ contract and supply omitted terms.

Here, the Court of Appeals said, a genuine issue of fact existed as to whether the co-tenants mutually agreed to be bound by an oral partition agreement. That issue of fact precluded summary judgment. But any alleged agreement between the co-tenants to partition the lots constituted an agreement for sale of their respective interest in the other’s remaining real property for purposes of the statute of frauds. And in order to satisfy the statute of frauds, the agreement must be in writing.

Subsequently, the Arizona Supreme Court disagreed, reinstating the original trial court decision. It held that no trial was necessary because neither the Partnership’s withdrawal of its objection to the tree removal nor its payment of one-third of the landscaping contractor’s bill was “unequivocally referable” to the alleged contract. Put differently, neither act is of such character as not to be reasonably explicable on other grounds. While it is true that partial performance of an oral contract is enough to take the agreement outside of the Statute of Frauds, the Partnership did nothing that proved the deal through partial performance. Thus, the contract should have been – but was not – put in writing.

– Tom Root