Case of the Day – Tuesday, December 11, 2018

HALFWAY BETWEEN MASSACHUSETTS AND HAWAII

In the world of tree encroachment, regular readers of this site know that there is a continuum of liability extending from the Berkshire Mountains of Massachusetts all the way to Mauna Kea on the Big Island of Hawaii.

We all know about the Massachusetts Rule, which holds that a landowner has no liability whatsoever for encroachments of the branches or roots of his or her tree over, on or under neighboring land. Your neighbor doesn’t like it? That’s why Poulan sells chainsaws.

On the other end is the Hawaii Rule, where with the privilege of tree ownership comes great responsibility. If you own a tree that causes sensible harm to your neighbor’s property and you know or should know that, you are liable for harm that it causes.

In today’s case, there is no doubt that Ken and Jeannine Carvalho suffered harm from roots belonging to Larry and Judy Wolfe’s trees. When the foundation damage was discovered, the Carvalhos reported to the Wolfes, who cut the trees down.

But that was not good enough. I suspect the Carvalhos hoped to nick the Wolfes’ homeowners’ insurance. It seems a shame that their lawyer’s pleading skills were not equal to the aggressiveness of the Carvalhos’ avarice. Or maybe they demanded that counsel bring the suit, and he or she was honest in not claiming the Wolfes knew or intended the roots grow into the Carvalho’s foundation when neither evidence no common sense suggested they did.

Still, the case gave Oregon to stake out a position on the continuum that certainly was not the Massachusetts Rule but wasn’t the Hawaii Rule, either. Instead, the Oregon Rule – such as it is – comes out something like halfway between.

Carvalho v. Wolfe, 207 Ore. App. 175, 140 P.3d 1161 (Ct.App. Oregon 2006). The former owners of Larry and Judy Wolfe’s property planted trees along the property line. Once the property became theirs, the Wolfes became responsible for the ongoing care, maintenance, and control of those trees.

In 2004, Ken and Jeannine Carvalho discovered that trees’ roots had grown to all the way to the foundation of their home, causing structural damage that then amounted to over $61,000 and that was increasing. After the Carvalhos discovered the damage, the Wolfes cut down the trees but did nothing to be sure then roots had stopped growing.

The Carvalhos sued the Wolfes for trespass and nuisance. In their trespass claim, Ken and Jeannine alleged that they had legal possession of their property and that they did not authorize the entry “of any trees, roots, or vegetation of any kind onto their land from defendants’ land.” In their nuisance claim, the Carvalhos said the roots “have severely and unreasonably invaded plaintiffs’ land” and that the invasion had interfered with their “ability to use and enjoy their land” as a result of the damage to their house. The Carvalhos did not allege in either claim that he Wolfes acted with any specific level of culpability or that they were engaged in an ultrahazardous activity.

The Wolfes moved to dismiss both claims for failure to state a claim for relief. They asserted that the Carvalhos’ claim was fatally defective in several respects, including by failing to allege the Wolfes had been negligent or had engaged in an ultrahazardous activity by allowing the roots to encroach on the Carvalho property. The Wolfes also argued that the encroaching tree roots did not constitute a nuisance, because a landowner is limited by law to using self-help remedies for such an encroachment, not seek relief in the courts. The trial court agreed, granted the Wolfe’s motion and entered a judgment dismissing the action.

The Carvalhos appealed denial of the trespass and nuisance claims.

Held: The Carvalho claims were properly dismissed.

Each of those the Carvalhos’ theories of liability – trespass and nuisance – involved a different kind of interference with their interest in their land. An actionable invasion of a possessor’s interest in the exclusive possession of land is a trespass; an actionable invasion of a possessor’s interest in the use and enjoyment of his land is a nuisance. Courts in some places have concluded that tree roots or branches that intrude into or over neighboring lands may be either a trespass or a nuisance; others have rejected liability under either theory.

The Court of Appeals reviewed the two cases of the extreme ends of the tree encroachment continuum. In Michalson v. Nutting, the Massachusetts court held that there was no distinction between an intrusion by overhanging branches and one by invading roots. In either case, an owner has the right to grow trees on its land, which naturally leads to branches and roots crossing the boundary line. When that happens, the owner of the other land is limited to cutting the branches and roots where they intrude, a holding now known as the Massachusetts Rule.

On the other end was of the continuum was Whitesell v. Houlton, in which a banyan tree’s branches overhung the plaintiffs’ property, damaged their garage and threatened additional damage until the plaintiffs had them cut back. The Hawaii court held that the Massachusetts Rule was unfair. “Because the owner of the tree’s trunk is the owner of the tree, we think he bears some responsibility for the rest of the tree,” the Court ruled. Thus, Hawaii provides that, if the owner of a tree knows or should know that it constitutes a danger, the owner is liable for harm that it causes on or off the property. In that case, the damaged or imminently endangered neighbor may require the tree’s owner to pay for the damages and to cut back the endangering branches or roots.

Splitting the difference was Abbinett v. Fox, the New Mexico case in which roots from the defendants’ cottonwood tree damaged structures on the plaintiffs’ property. The New Mexico Court of Appeals discussed Michalson and Whitesell, ultimately holding that, although landowners may use their property in ways that maximize their own enjoyment, they may not unreasonably interfere with the rights of adjoining landowners or create a private nuisance.

Here, the Court noted that intrusions were different in each of the cases that we have discussed. In Michalson, the defendants simply planted the tree and refused to remove the roots; there is no suggestion that they intentionally or negligently caused harm to the plaintiffs. In Whitesell, however, the defendants knew or should have known that their tree would cause damage to the plaintiffs’ property, which in Oregon would support a finding that they intended to cause that harm.

Unlike the Massachusetts and Hawaii Rules, the Court ruled that “the issue of culpability is decisive in this case. Thus, we do not need to decide whether we would agree with the Hawaii and New Mexico courts if defendants had acted with some level of culpability or if they had been engaged in an ultrahazardous activity.”

At common law, an unauthorized entry onto the soil of another was in itself a trespass. Oregon law appears to have applied that rule of strict liability, one court holding that because “we hold that the intrusion in his case constituted a trespass it is immaterial whether the defendant’s conduct was careless, wanton and willful or entirely free from fault.” But an Oregon Supreme Court holding applied the rule that “there is liability for an unintentional intrusion only when it arises out of negligence or an ultrahazardous activity.” After these decisions, Oregon law applying to both nuisance and trespass claims required that a plaintiff allege that the “defendant’s actions were intentional, negligent, reckless or an abnormally dangerous activity.”

Here, the Carvalhos did not allege that the Wolfes acted with any level of fault or that they were engaged in an ultrahazardous activity. Rather, they simply sought to hold Larry and Judy strictly liable for the damage that the trees caused. However, the Court ruled, “neither trespass nor nuisance provides for strict liability except for an ultrahazardous activity. While the Wolfes might be liable for intentional trespass or nuisance if they knew or should have known that their caring for the trees would result in the tree roots damaging the Carvalhos’ house, the Carvalhos did not allege that the Wolfes had or should have had that knowledge. While they do allege that the Wolfes have not taken any action to ensure that the trees have been killed and the growth of their roots permanently stopped, Ken and Jeannine seemed to be careful to not allege either that the growth is continuing or that defendants knew or should have known that it is continuing.

By failing to allege that the Wolfes acted or failed to act with any form of culpability, and to allege that they engaged in conduct that could make them strictly liable for trespass or nuisance, the Carvalhos failed to state a claim for relief under either nuisance or trespass.

– Tom Root

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Case of the Day – Monday, December 10, 2018

MAKIN’ BACON

piggies150220Running a swine farm is a smelly but serious business. When a tree fell onto a power line on his neighbor’s land and interrupted his electricity, farmer Timmerman was glad that Northern States Power came out to his neighbor’s place and promptly trimmed the tree and fixed the lines.

But his relief turned to dismay when 10 minutes after the trimmer left, the remainder of the same tree collapsed onto the power line. It turned out the tree that had caused the first outage was completely rotten and, even after being trimmed, it remained a hazard.

The first power failure was an inconvenience. The second power failure was a catastrophe: it cut off the ventilation to Timmerman’s hog barn, and 160 pigs met an untimely demise.

Timmerman sued both his neighbor for not having inspected the tree — which had been rotten for at least five years — and the power company for being grossly negligent in trimming the tree. He claimed gross negligence because Northern States Power’s tariffs excluded it from liability except for gross negligence. The trial court turned him down.

The Court of Appeals agreed. It noted that gross negligence is a pretty serious derelection of duty, and Timmerman’s saying it didn’t necessarily make it so. The neighbors didn’t have a duty to Timmerman, it held, because he wasn’t an invitee (or even a trespasser) onto its land. It noted that NSP had trimmed the tree to the national code, and meeting a national standard was performance enough.

It’s fairly well established that an owner has a duty to inspect trees (with a degree of care that varies according whether the land is urban or rural). If Timmerman had been driving by and the tree had fallen onto his truck, there might have been liability. Why not when the damage isn’t an F-150, but instead 160 hogs’ worth of bacon?

Hard to believe the trees can interfere with the wires.

It’s hard to believe the trees can interfere with wires …

Timmerman v. Manguson, Not Reported in N.W.2d, 1996 WL 266404 (Minn.App. 1996). Timmerman owned and operated a hog farm, to which Northern States Power provides electrical power. The power lines run north across the Mangusons’ farmland and continue onto Timmerman’s land. One afternoon, limbs on a willow tree located on the Mangusons’ land broke, striking the power line and causing a power outage on Timmerman’s farm.

NSP investigated the site, found the burned tree limb that had struck the power line, and trimmed some branches back. The tree trimmer investigated the trunk of the tree from his position on the power pole, but he did not see any signs of cracking or damage to the tree trunk. Ten minutes after he left the area, the power went out a second time. The trimmer returned to the site and trimmed back the tree sufficiently so that, if it continued to topple over, the tree would not hit the power lines again. The next morning, he called another NSP representative to report the outages and suggest that they send in the tree trimming crew to clean up the area.

The second power outage left about 160 pigs in Timmerman’s barn without ventilation, and despite Timmerman’s efforts, nearly all of the pigs in two of the five rooms in the barn died. The tree turned out to be rotten and, according to Timmerman’s expert witness, “undergrown … or there was a lot of trees in that area.” The expert determined that the tree had been rotting for at least the past five years and posed a significant hazard to the power lines.

Timmerman sued NSP for gross negligence and the Mangusons for negligent maintenance and inspection. Both NSP and the Mangusons moved for summary judgment. The district court granted both motions, finding, as a matter of law, that NSP had not been grossly negligent and that the Mangusons owed Timmerman no legal duty.

Timmerman appealed.

sweating150220Held: The decision in favor of the Mangusons and NSP was upheld. The Court held that gross negligence was substantially and appreciably higher in magnitude than ordinary negligence. It was materially more want of care than constitutes simple inadvertence, an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.

Timmerman presented evidence that the tree and power lines at issue could not be viewed properly from the road, but required an on-site, on-foot inspection. He also presented evidence that NSP failed to trim the tree near the lines and allowed them to become overgrown with vines and vegetation.- But the Court said that this evidence did not rise to the level of gross negligence. NSP did not demonstrate an “indifference to present legal duty” nor did it act without “scant care” or “slight diligence.”

NSP had most recently trimmed this tree within NSP’s policy of trimming every four years. Since 1990, NSP had routinely checked the power lines at issue here in accord with the National Electric Safety Code (NESC). NSP representatives have viewed the power lines and trees from the road when driving through the area. NSP also trimmed portions of the tree after the first power outage to restore service. Although, the Court found, the evidence suggests that NSP could have more diligently exercised its duties, that evidence only raises the question of ordinary negligence, for which NSP is not liable under its own tariffs.

As for the Mangusons, the Court held that they had no legal duty to protect Timmerman because they did not have a “special relationship” in which Timmerman had entrusted his safety to the Mangusons. The parties’ relationship as neighboring farmers does not fall into any of the limited number of “special relationships” that the Minnesota supreme court has recognized. Although Timmerman contended the Mangusons had a duty to inspect and repair the tree or else warn him of the dangers on their land, the Court held that the theories of duty and liability don’t apply here because Timmerman was not an “invitee” or “licensee” on the Mangusons’ property. Furthermore, the Court said, even if the Mangusons knew the old tree was near the power lines, knowledge of a dangerous condition, by itself, without a duty to protect, was not sufficient to establish liability for negligence.

Given that no legal duty existed, Timmerman’s negligence claim against the Mangusons could not stand.

– Tom Root

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Case of the Day – Friday, December 7, 2018

THAT DOES NOT MAKE SENSE

The news report noted in yesterday’s “And Now the News” feed nagged at me all day. You recall, the report that an Elkhart, Indiana, resident got up one morning to discover that the City had cut down a beautiful 33-foot spruce in his tree lawn – that strip of grass between the sidewalk and street – for use as the municipal Christmas tree.

That does not make sense. Unless Indiana is different from most of the other states in the nation, a property owner whose property lies along a highway (known as an “abutting landowner”) is deemed to own the land to the middle of the highway, with the highway and portions beyond it merely reserved to the City or State (or whatever political subdivision it might be) as a “right-of-way.”

The thing about a right-of-way, which is simply one flavor of an easement, is this: the political entity (we’ll just say “City” here, because that’s the bad guy in the news report) is entitled to use the right-of-way for an intended purpose, a highway. If there comes a time when it ceases being a highway, the right-of-way  is extinguished, and the landowner is free to use the property all the way up to the centerline of the old road as he or she wishes.

And that’s what bothered me so. No one would question the City’s right to remove a tree that somehow created a hazard to the public using the highway. That is simply a reasonable exercise of the City’s privileges under the easement. But here, the City decided to save a few bucks by cutting down a free Christmas tree, not to facilitate use of the highway but instead for the purpose of decorating another part of town.

The article suggested that maybe the whole episode resulted because a prior owner has asked that the tree be removed. Elkhart Building and Grounds Department head Mike Lightner said, “We thought we were doing a good thing by getting a tree removed from the tree lawn, for a resident who wanted it removed, and being able to repurpose it as a Christmas tree for other people to enjoy it instead of hauling it away, while saving the city some money.”

Maybe so, but the City should not be imperiously telling people that it owns the trees in the tree lawn. It can do what it likes with the tree lawn, as long as the act is reasonably related to the purpose of its right-of-way. But it does not “own” the trees.

While I was researching the issue, I stumbled across the obverse situation, where a homeowner who was hurt by a falling tree in the tree lawn blamed the City for not reasonably using its right-of-way, more particularly, not properly discharging its duty to inspect.

Czaja v. Butler, 604 N.E.2d 9 (Ct.App. 3rd Dist. Indiana, 1992). Karen and Joseph Czaja lived along U.S. Highway 6 in Butler, Indiana. There were three trees located on the State of Indiana right-of-way in the front yard of their home. On January 25, 1990 two severe storms blew through the city, causing severe damage in the area and blowing over several trees. The first storm dropped a 12” diameter limb from one of the trees in Czajas’ front yard onto U.S. 6. The City removed it after the first storm passed through.

But later in the day, a second storm hit. Karen was returning from picking her children up from school during the storm. As she was waiting to turn into her driveway from the street, the tree closest to her driveway fell on top of her car, injuring her.

The storms that day caused extensive damage. Roughly eight whole trees were uprooted or broken off, and many others lost large limbs or parts of their trunks.

The Czajas sued the City, alleging city employees were negligent in failing to inspect the tree in front of the Czaja home and in failing to remove the tree which the city knew, or should have known, was dangerous. The City moved for summary judgment, which the trial court granted.

The Czajas appealed.

Held: The City was not negligent.

The City’s evidence described the storms’ intensity that day, including the facts that eight trees were blown over, four other cars were struck by fallen trees and an uprooted tree fell onto the roof of the Butler Quick-Mart. In addition, it filed deposition testimony of the City superintendent that he inspected the Czajas’ tree the following day and found that while the core was rotten to within four inches of the outside diameter of the tree, there were no outwardly visible signs that any part of the tree was dead or rotten. The evidence showed that before the tree fell, the superintendent had no actual notice that the tree was rotten. The tree had green foliage two years before when Joe Czaja spoke to him about removing it so that Czajas could widen their driveway.

In their depositions, the Czajas both admitted that before the tree fell, they had no reason to believe that the tree was likely to fall. Nevertheless, at the trial court, they pressed the argument that the City had an absolute affirmative duty to maintain an inspection procedure concerning all the trees located in its right-of-way along the highway.

The appellate court rejected the Czajas’ position, holding that while the City has a duty to keep its streets reasonably safe, the duty is only triggered when it has actual or constructive knowledge of the dangerous or defective condition. Here the City’s established it neither had knowledge that the tree was defective, nor did it have any reason to know the dangerous condition of the fallen tree.

All the Czajas were able to show was that during the years they had lived there, dead branches occasionally fell from the tree, the sidewalk had buckled from tree roots, and some erosion showed next to the curb near one of the trees.

The Court held that the Czajas’ evidence was insufficient to raise a genuine issue of fact requiring trial. “We take it to be common knowledge that mature trees, as these were described to be, have limbs and branches that die and occasionally fall from the tree,” the Court ruled. “It is also a common experience that the root systems of such trees buckle and crack cement sidewalks laid too close to the tree. Indeed, the city superintendent stated in his deposition that he attached no particular significance to these conditions. The Czajas have not pointed to any evidence supporting the notion that the city should have been forewarned in this particular instance that the tree was in danger of falling. It would be nothing but sheer speculation to draw that conclusion from the evidence relied upon. It follows that the summary judgment was properly granted.”

– Tom Root

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Case of the Day – Thursday, December 6, 2018

BLAMING THE VICTIM

Just when I think I have seen all of the chutzpah that it is humanly possible to muster, someone impresses me with an Olympian performance.

Take Henry and Angela D’Andrea, for example. When the roots of their maple tree, after 14 years of impressive growth, began to eat a lightweight concrete-block fence – made with Waylite Superock® blocks, something new to me but apparently a material of note a generation or two ago – Hank and Angie did not offer to fix their neighbor’s wall. They did not even keep their mouths shut, which you might expect the tree’s owners to do under the circumstances.

Not these brawlers. The D’Andreas sued their neighbors, the Gugliettas, demanding that they remove the cracked and decayed fence because… well, because the D’Andreas’ tree had caused the fence to be cracked and decayed. It was a sort-of “because I made the mess, you need to clean it up” argument.

Cosmic justice has a way of getting done. The neighbors did the only thing they could do (lawfully, that is), and counterclaimed against the D’Andreas. The trial court agreed that the fact that the Guglietta fence was unsightly was not enough to make it a nuisance. (Good thing, too… imagine the precedent that would set for all of the unsightly people in this world if their unsightliness made them a per se nuisance). The court did, however, award damages to the defendant Gugliettas for the damage that the D’Andrea maple roots had done to the fence.

The appellate court strained to justify the award, but justify it it did. The Superior Court held that while the Massachusetts Rule addressed both branches and roots in dictating that self-help was the only remedy available to an afflicted neighbor, it could not possibly mean it. Really, the Court ruled, roots were quite different from branches. For instance, roots grow differently than branches, vertically, horizontally, every which way. Plus, the roots are underground: you can see branches and can trim them when needed, the Court opined. But you never see a root until it has caused damage.

Does any of this make sense? That hardly matters… cosmic justice requires that sometimes logic and precedent yield to its demands.

D’Andrea v. Guglietta, 208 N.J. Super. 31, 504 A.2d 1196 (Superior Ct. N.J. 1986). Henry and Angela D’Andrea’s maple tree had been planted about three feet from the boundary about 14 years before. As healthy trees are wont to do, it grew, extending both branches above ground and roots below, until it cracked a Waylite block boundary fence owned by John and Pat Guglietta. The D’Andreas sued the Gugliettas on the grounds that the fence was cracked  and falling down – an unsightly mess – and a nuisance, asking that the trial court order that it be removed.

The Gugliettas counterclaimed, arguing that the fence was fine, but the D’Andreas’ maple tree was the true nuisance.

The trial court dismissed the D’Andreas’ action because their only proof was that the boundary fence was aesthetically displeasing to them. Mere homeliness, the Court ruled, is not enough to support a finding of a nuisance, As for the Gugliettas’ claim, however, the trial court held that the D’Andreas were liable for the unforeseen damage to their neighbors’ wall arising out of root growth from the maple tree.

The maple tree was planted around 1970, about the same time the Gugliettas installed a chain link boundary fence. Three years later, they removed the chain link fence, and replaced it with their Waylite block fence; the maple tree roots were nowhere near the wall when the Gugliettas dug down to put in foundation footings.

Eleven years later, things had changed. The Gugliettas noticed a crack in the wall. Or several cracks. They dug along the wall’s foundation and discovered “gigantic” maple roots up to 30 feet long coming through the wall. A masonry contractor estimated repair would cost about $ 3,000.

The D’Andreas never argued the obvious defense, that the Gugliettas could have avoided the injury to their masonry wall by self-help, that is, by digging down, severing and removing the maple tree roots on their side of the common boundary. The trial court awarded judgment for the Gugliettas on their counterclaim, and gave them damages but no specific relief (like an order that the D’Andreas do something about their tree.

The D’Andreas appealed.

Held: The maple tree was a nuisance, and had to go.

Under common law principles, the Gugliettas were entitled to cut off invading tree roots by exercising self-help, under the Massachusetts Rule. In fact, the trial court held that overhanging tree branches may constitute a nuisance for which an action for damages lies, and that a landowner may exercise the common law right of self-help to lop off overhanging branches to the property line but no further. “As a matter of logic,” the trial court ruled, “no distinction can be made between roots and branches.” It nevertheless awarded damages to the Gugliettas.

The Superior Court, needing to bolster the damage award it obviously agreed with, disagreed. The approach that roots and branches are the same “overlooks real distinctions between the two,” the Court held. “Unlike tree branches, tree roots are largely underground and evident only upon digging down; their extent and girth may be uncertain and unpredictable; they are not commonly pruned or otherwise tended; their severance may endanger the tree’s stability in high winds and rainstorms. A tree root system may extend vertically downward or may spread laterally close to the surface. The relatively uncomplicated law governing invasion of adjoining  property by tree branches may not be fairly applicable under all circumstances to tree roots.”

There is general agreement, the Superior Court said, that tree roots extending under a neighbor’s land are owned by the owner of the land on which the tree trunk stands; that the owner of a tree has no right to its sustenance from adjoining land; and that a neighbor may resort to self-help to remove invading tree roots. The Court acknowledged that the Massachusetts Rule is that damage caused by tree roots spreading from an adjoining property is damnum absque injuria and that the only redress is self-help.

Other reported decisions however, have recognized a cause of action for damages for injury caused by tree roots from a tree or trees planted by the owner of adjoining property or his predecessor. As well, they have barred recovery of damages for tree root injury by applying the defense of avoidable consequences, In fact, the Court observed, the Hasapopoulos court in Missouri viewed as decisive the evidence that the tree involved was “healthy and undecayed” and that plaintiff had failed to resort to self-help.

The Superior Court noted that the Restatement of Torts draws a distinction between nuisances resulting from artificial and natural conditions of land. The former are actionable, while the latter are not.

Here, the Superior Court ruled, the trial court was right to hold that injury to an adjoining property caused by the roots of a planted tree was actionable as a nuisance, irrespective of the absence of proof of prior notice of the nuisance to D’Andreas. Damages were recoverable, even in the absence of any proof that the damages were avoidable or that defendants had “come to the nuisance.”

When the Gugliettas dug down for foundation footings for their masonry wall in 1973, roots from the D’Andreas’ maple tree planted three years before were nowhere about. Nothing in the record, the Superior Court said, suggests that the maple tree’s roots heaved up or were in any way evident in the vicinity of the masonry wall between 1973 and 1984, when the wall cracked, or that the Gugliettas should have foreseen the direction and extent of the tree roots’ growth.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, December 5, 2018

STAYIN’ ALIVE

Yesterday, pro se plaintiff Caryn Rickel survived the arguments advanced by the slick lawyers representing her bamboo-lovin’ neighbors, the Komaromis. The trial court held that her complaint about the Komaromis’ invading bamboo was a claim on which she could get relief.

But subsequently, the trial court bought the Komaromis’ argument that because Caryn admitted that they planted the bamboo in 1997 and Caryn sustained damage in 2005, she had at most until 2008 to sue for trespass and nuisance.

The reason, of course, are the statutes setting limitations, that is, deadlines by which certain legal complaints have to be brought. The Komaromis’ lawyer probably shouted “a-ha!” when he found that Caryn had admitted she was damaged five years before she sued. Certainly, the trial court shouted it when it agreed with the Komaromis and dismissed Caryn’s lawsuit as untimely.

But for a novice, Caryn was pretty sharp. She took an appeal, arguing that every day the kudzu-like bamboo grew was a whole new affront to her property, and thus the trespass was continuing. The appeals court agreed, although not without a lot of confusing differentiation between continuing trespasses and continuing nuisances, on the one hand, and permanent trespasses and permanent nuisances on the other.

I’m not sure I see the distinction myself. It may be that the confusing definitions won’t help, leaving it like obscenity: we can’t describe it, but we know it when we see it.

For now, Caryn survives a second near-dismissal experience, and she stays alive to fight the bamboo fight.

Rickel v. Komaromi, 144 Conn. App. 775, 73 A.3d 851 (Ct.App. Conn. 2013). After plaintiff Caryn Rickel, won the right to go forward on her claim that the Komaromis’ bamboo had invaded her property, the Komaromis won summary judgment against her in the trial court. Caryn claimed nuisance and trespass. The trial court ruled that because the bamboo began its inexorable crawl across Caryn’s backyard in 2005, her suit filed in 2010 was well beyond the statute of limitations for such actions.

Caryn appealed, arguing that the repeated bamboo encroachment from the Komaromis’ property to her property constituted a continuing nuisance and a continuing trespass, and thus the statute of limitations did not start running.

The Komaromis lived next to Caryn Rickel. In July 1997, the Komaromis planted phyllostachys aureosulcata, a type of invasive running bamboo, along their corner property line, but they did not put up any barrier to contain it. The bamboo encroached upon Caryn’s property. In 2005, during the installation of a patio at the corner of Caryn’s property, a landscaper used a backhoe and dump truck in order to eradicate the bamboo, and then installed steel sheathing along this corner property line in order to protect the patio. Despite the steel sheathing, the bamboo had reentered the area by July 2010.

Caryn sued the Komaromis four months later, bring claims of nuisance, trespass and negligence. She alleged in her complaint that the bamboo “further and repeatedly encroached” on her property and continued to do so. The Komaromis raised a statute of limitations defense on all of the claims against them.

The trial court granted the Komaromis’ motion, concluding that the applicable statutes of limitations had provided Caryn with a maximum of three years from “the date of the act or omission complained of” to bring suit. Because there was no dispute that the Komaromis planted the bamboo in 1997 or that Caryn “discovered the actionable harm in 2005…” Because Caryn did not commence her action against until 2010, the court held that each count of the action was time barred as a matter of law.

On appeal, Caryn claimed that the trial court failed to address the factual question of whether a nuisance or trespass is continuing or permanent requires the  denial of a motion for summary judgment made solely on statute of limitations grounds. She claims that this is because, for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass creates a new cause of action, while a permanent nuisance or trespass involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run.

Held: The Komaromis’ bamboo was engaged in a continuing trespass, and thus Caryn’s lawsuit was timely.

Caryn’s complaint alleged that that the Komaromis’ bamboo repeatedly has encroached on her property, resulting in a continuing nuisance and a continuing trespass. For example, in her nuisance count, she alleged the Komaromis “have planted this nonnative invasive bamboo with no containment of any kind. They have continued to cultivate it and freely allow it to aggressively spread to… adjacent properties… This has been continual nuisance to my use and enjoyment of my land.”

Similarly, Caryn complained the Komaromis “have allowed this nonnative invasive bamboo to aggressively spread from their original planting which was directly on my property line to all three of the [neighboring] properties. The infestation is massive… and has continuously been aggressively invading my land.” Caryn’s continuing nuisance and trespass allegations, the Court said, therefore factor into the question of whether the court correctly concluded that the defendants met their summary judgment burden with respect to the plaintiff’s nuisance and trespass claims, as framed by her complaint.

The Court noted that recent cases treat trespass as involving acts that interfere with a plaintiff’s exclusive possession of real property and nuisance cases as involving acts interfering with a plaintiff’s use and enjoyment of real property. The essentials of an action for trespass are (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; (3) done intentionally; and (4) causing direct injury…” Because it is the right of the owner to exclusive possession that is protected by an action for trespass, usually the intrusion of the property must be physical. Thus, the Court said, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another’s land.”

The statute of limitations for trespass actions in Connecticut is General Statutes § 52-577, which provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” The only facts material to the trial court’s decision on a motion for summary judgment must be the date of the wrongful conduct alleged in the complaint and the date the action was filed.

A “private nuisance,” on the other hand, “is a nontrespassory invasion of another’s interest in the private use and enjoyment of land… The law of private nuisance springs from the general principle that it is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his  neighbor… In order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The interference may be either intentional… or the result of the defendant’s negligence.” A permanent nuisance is one which inflicts a permanent injury upon real estate, while a temporary nuisance is one where there is but temporary interference with the use and enjoyment of property. Whether a nuisance is temporary or permanent is ordinarily a question of fact.”

The statute of limitations for a nuisance claim based on alleged negligent conduct is General Statutes § 52-584. No action to recover damages for injury to real property, caused by negligence, or by reckless or wanton misconduct shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of…” An injury occurs when a party suffers some form of actionable harm.

Nuisance and negligence may share the same statute of limitations, depending on the factual basis for the nuisance claim, but otherwise they are completely distinct torts, different in their nature and in their consequences. A claim for nuisance is more than a claim of negligence, and negligent acts do not, in themselves, constitute a nuisance; rather, negligence is merely one type of conduct upon which liability for nuisance may be based. “Nuisance,” the Court said, “is a word often very loosely used; it has been not inaptly described as a catch-all of ill-defined rights. There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance… There is general agreement that it is incapable of any exact or comprehensive definition.”

In applying these principles to the plaintiff’s claims, the Court said, “summary judgment may be granted where the claim is barred by the statute of limitations… as long as there are no material facts concerning the statute of limitations in dispute.” But here, the date of the act or omission and the date when Caryn first sustained or discovered injury depend on whether the alleged nuisance and trespass are continuing or permanent. Caryn argued that this is because, for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass situation creates a new cause of action, whereas a permanent nuisance or trespass situation involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run.

The applicable statute of limitations runs differently for a continuing nuisance or trespass than it does for a permanent nuisance or trespass. For limitations purposes, the Court ruled, a permanent nuisance claim accrues when injury first occurs or is discovered while a temporary nuisance claim accrues anew upon each injury. Therefore, in the case of a continuing trespass, the statute of limitations does not begin to run from the date of the original wrong but rather gives rise to successive causes of action each time there is an interference with a person’s property. If there are multiple acts of trespass, then there are multiple causes of action, and the statute of limitations begins to run anew with each act.

On the other hand, the Court said, if a trespass is characterized as permanent, the statute of limitations begins to run from the time the trespass is created, and the trespass may not be challenged once the limitation period has run.” Whether a nuisance is deemed to be continuing or permanent in nature determines the manner in which the statute of limitations will be applied. If a nuisance is not able to be abated, it is permanent, and a plaintiff is allowed only one cause of action to recover damages for past and future harm. A nuisance is deemed not abatable, even if possible to abate, if it is one whose character is such that, from its nature and under the circumstances of its existence, it will probably continue indefinitely.

A nuisance is not considered permanent if it is one which can and should be abated. In this situation, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie, and the statute of limitation will begin to run at the time of each continuance of the harm.

Similarly with trespass, the typical trespass is complete when it is committed; the cause of action accrues, and the statute of limitations begins to run at that time. However, when the defendant erects a structure or places something on or underneath a plaintiff’s land, the invasion continues if the defendant fails to remove the harmful condition. In such a case, there is a continuing tort so long as the offending object remains and continues to cause the plaintiff harm. Each day a trespass of this type continues, a new cause of action arises.”

Here, Caryn alleged facts to support her claims that the Komaromis’ conduct in planting the bamboo and then failing to control its growth resulted in a continuing nuisance and a continuing trespass. In seeking summary judgment, however, the Komaromis referred only to three dates to establish the untimeliness of Caryn’s claims — the 1997 planting of the bamboo, the 2005 installation of the patio, and the 2010 commencement of the action – ignoring Caryn’s other allegations.

By conducting its summary judgment analysis only on the basis of the 1997, 2005 and 2010 dates, the trial court did not address the allegations of the defendants’ failure to control the underground spread of the bamboo rhizomes and the above ground spread of the bamboo on the plaintiff’s property. This continuing underground and above ground activity on the plaintiff’s property created a genuine issue of material fact about whether the statutes of limitations were a bar to all of Caryn’s claims encompassed in her trespass and nuisance counts.

Whether the alleged nuisance and trespass by the rhizomes and bamboo were continuing or permanent presents a genuine issue of material fact with respect to the plaintiff’s trespass and nuisance counts. The trial court erred in rendering summary judgment without addressing the plaintiff’s continuing nuisance and continuing trespass allegations, because, by doing so, the court overlooked genuine issues of material fact about whether the alleged nuisance and trespass were continuing or permanent, and thus whether the applicable statutes of limitations had run on the plaintiff’s nuisance and trespass claims.

– Tom Root

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Case of the Day – Tuesday, December 4, 2018

BEHIND THE BAMBOO CURTAIN

I admit to being old enough to remember the Bamboo Curtain, the Cold War political demarcation between the Communist states of East Asia – particularly the People’s Republic of China – and the capitalist and non-Communist states of East, South and Southeast Asia.

As the passing of President George H.W. Bush – the man on whose watch many of those kinds of “curtains” fell – has reminded us, the Iron Curtain, Cactus Curtain, Bamboo Curtain and others of that ilk are now relics of unpleasant history.

But “bamboo curtains,” and literal ones at that, are still with us. Every so often, I am reminded of that when I come across a case involving a stand of bamboo, encroachment that usually started when some well-meaning homeowner (who maybe anticipates an attack of hungry pandas) plants a little stand of bamboo in his back yard.

The problem is that the owner has a “little stand of bamboo” only for a minute or so. The stuff is pernicious and fecund. Bamboo, which is a giant grass and not a tree, has fairly been called one of the world’s most invasive plants. Once established, it is next to impossible to control. The sprouts that shoot up from the ground each spring can grow 12 inches a day. The underground roots of common running “fishpole” bamboo, which can easily reach 15 feet tall, can travel as far as 20 feet or more from the original clump. The experts suggest you control it by digging a two-foot deep trench and lining it with aluminum. Or lead. Or titanium. Or concrete. But whatever you use, leave a portion of it sticking up above ground, because bamboo roots can jump barriers like Superman leaps buildings.

Bamboo: the Asian carp of grasses. As one homeowner site puts it: When you need a concrete bunker to contain a plant, you know you’re in trouble.

Bamboo is not a very good idea. Unless, of course, you’re like Mike and Roberta Komaromi, who simply did not give a rip that their bamboo stand was galloping across neighbor Caryn Rickel’s lot. Usually, we complain about people foolish enough to represent themselves, but here, we grudgingly admit that pro se litigant Caryn was holding her own.

The Komaromis were smug, arguing that they had no duty to corral the bamboo. Well, as is usually the case when hard facts collide with justice, courts find a way to recompense the victim. So it did here, ruling (and right on the Bay State’s south border, too) that the Massachusetts Rule cut no ice in Connecticut.

Rickel v. Komaromi, 2011 Conn. Super. LEXIS 5254 (Superior Ct. Conn., July 13, 2011): Caryn Rickel, bringing her case without a lawyer, complained that her neighbors Mike and Roberta Komaromi planted bamboo in their yard without any plan for containment. As a result, her back yard has been overrun by invasive bamboo.

Mike and Bobbi, who did hire a lawyer, filed a motion to strike the complaint as legally insufficient. That is to say, they claimed that if everything Caryn said in the complaint were true, she still was entitled to no relief.

Here Mike and Bobbi complained that Caryn has not alleged that they had any legal duty to her.

Held: Connecticut would follow the Hawaii Rule, and under that Rule, Caryn had adequately claimed her neighbors had a duty to her which they violated with the bamboo. “The essential elements of a cause of action in negligence are well established,” the Court said, “duty; breach of that duty; causation; and actual injury.” There can be no negligence without there first being a cognizable duty of care.

The test for the existence of a legal duty of care, the Court said, entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.

So how did Caryn do? First, she alleged the Komaromis planted bamboo without any plan for containment and watched while the non-native plant fully invaded Caryn’s back yard. She also alleged the Komaromis failed to take action to alleviate the situation even though the bamboo growth was readily visible. This, the Court ruled, sufficiently alleged that the damage to Caryn’s property was reasonably foreseeable to the Komaromis.

Second, the Court held, the Komaromis’ responsibility for their negligent conduct should extend to the Caryn on public policy grounds. The Court looked at (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions. Consideration of these four factors, the Court said, “supports the conclusion that the court should impose a duty on a property owner to refrain from planting bamboo without a containment plan in order to avoid harming an adjacent property.”

First, property owners are normally expected to refrain from engaging in conduct that would cause damage to an adjacent property. Although landowners may reasonably expect some level of discomfort from having adjacent property owners, it does not mean that property owners should reasonably expect bamboo belonging to an adjacent landowner to fully invade their property.

For the second factor, as a matter of public policy, it is desirable to promote property ownership, and the ability to live free of concern of encroaching vegetation from adjacent properties directly impacts this goal. Allowing a landowner to cultivate his or her land “should be fairly balanced against the rights of adjacent landowners, and imposing a duty on the cultivating landowner whose vegetation harmfully invades another’s property would be in accord with public policy.”

Turning to the third factor, it is true that imposing a duty like this one could encourage other property owners suffering from the same problem to bring similar actions. On the other hand, however, establishing such an affirmative duty may deter potential defendants from engaging in this type of activity.

Finally, the Court rejected the Massachusetts Rule. That rule provides that a defendant has no duty to prevent his trees from causing damage to his or her neighbor’s property and that “a landowner’s right to protect his property from the encroaching boughs and roots of a neighbor’s tree is limited to self-help, i.e., cutting off the branches and roots at the point they invade his property.” The Hawaii Rule, by contrast, grants the landowner a remedy for damages caused by the encroaching vegetation of an adjacent property owner.

The Court adopted the Hawaii Rule, it said, for two main reasons. First, the Rule serves as a gatekeeping mechanism in that it imposes a requirement of actual harm to the property, discouraging trivial suits while simultaneously providing a cause of action for deserving plaintiffs. The Massachusetts Rule, by comparison, “deprives deserving plaintiffs of any meaningful redress when their property is damaged.” Second, the Massachusetts Rule is not “realistic and fair… Because the owner of the tree’s trunk is the owner of the tree,” the Court opined, “we think he bears some responsibility for the rest of the tree. It has long been the rule in Hawaii that if the owner knows or should know that his tree constitutes a danger, he is liable if it causes personal injury or property damage on or off of his property… Such being the case, we think he is duty bound to take action to remove the danger before damage or further damage occurs.”

In addition, the Court said, Caryn had linked the breach of the Komaromis’ duty, the damages she suffered and the causation between the breach and the damages suffered. She alleged that the Komaromis planted the bamboo and that their subsequent inaction as to the bamboo growth “directly caused the harmful condition and continual damage” to her property. Accordingly, the Court said, Caryn has successfully set forth a cause of action in negligence.

So does Caryn win an injunction to get the bamboo eradicated? Stay tuned tomorrow…

– Tom Root

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Case of the Day – Monday, December 3, 2018

WHOSE TREES ARE THEY?

treelawn150217No issue of property ownership may be more misunderstood than the question of who owns the tree lawn, sometimes called the boulevard lawn, that strip of land between your front sidewalk and the street.

The confusion was illustrated recently by our reader Joel, who wanted the city to remove a dead tree on his tree lawn. He had always just understood that the tree lawn wasn’t his, and that he couldn’t cut or trim the trees growing there. We straightened him out, but a lot of uncertainty remains.

In today’s case, homeowners Gene and Joan Foote knew the tree lawn was theirs, but their failure to appreciate the limits of their rights led to a suit against the city. It seems that the city was improving the street, and its plan included the removal of four trees from the Foote’s tree lawn. The homeowners demanded compensation, arguing that the city’s removal of the beautiful trees amounts to a “taking” of property under the 5th Amendment, a “taking” for which they must be paid. A trial court agreed with them.

The Minnesota Supreme Court reversed the decision. It explained that the Footes, like any owner, was entitled to use all of his or her property right to the centerline of the street. However, the property was owned subject to a public easement (that’s why a deed always says “subject to all legal highways, easements and other restrictions of record”). In other words, the owner’s use of the land had to yield to the public easement of the highway.

Here, the city was merely using more of its highway right-of-way by expanding the street. As long as it remained within the bounds of its easement — which usually extends beyond pavement for a distance — the city could remove trees and other of the owner’s property to the extent needed for the public’s enjoyment of the easement. The removal of the trees let the public enjoy the easement, and no money was due the property owner because of it.

Some road-widening projects can get quite close to buildings. Be sure to check on the width of the highway easement before you build.

Some road-widening projects can get quite close to buildings. Be sure to check on the width of the highway easement before you build.

How wide is the right-of-way? It depends on the state you live in and size of the street. If you have questions, you could check with your local government’s engineering department. Or your lawyer.

Lawyers love to answer questions. Usually for a fee.

Foote v. City of Crosby, 306 N.W.2d 883 (Sup.Ct. Minn. 1981). Gene and Joan Foote owned a home in the City of Crosby. The platted right-of-way of the street in front of the home, Cross Avenue, was 80 feet wide and extended to approximately 6 inches from the front steps of the house.

The center 32 feet of the right-of-way was paved. Next to the pavement is a 10-foot wide grassy boulevard, and then a 4-foot sidewalk. On the boulevard were four large healthy elm trees which had been maintained by the Footes. Although the trees had cracked and heaved the sidewalk, there had been no complaints that the trees impeded foot travel, nor had the trees interfered with motorized travel.

The city began an extensive municipal improvement project prompted by the need for storm sewers, including a new lateral line under Cross Avenue. To provide proper grade for drainage, Cross Avenue would be torn up entirely, a plan which called for removal of the four trees, because root cutting necessary to accommodate them to the change in grade and repositioning of the curb and sidewalk would likely kill them. The Footes sued for an injunction, arguing the city couldn’t cut the trees without paying them compensation. The district court granted the injunction, and the city appealed.

sign150217Held: The injunction was dissolved. The Court observed that the owner of property abutting a right-of-way for public travel had the right to use his one half of roadway in any manner compatible with use by public of its easement. Any encroachment on the public right-of-way must be clearly obstruction to public easement before municipality may remove it without an adjudication that it was in fact an obstruction.

The Footes were not entitled to compensation for removal of trees within public right-of-way, the Court ruled, although they had a property right in the trees, because the taking was pursuant to a project which was a proper exercise of police power and encompassed a public purpose, and removal of trees was necessary to implementation of the project. After all, the Court said, the removal of the boulevard trees within the platted right-of-way was necessary to the street improvement project, and if not removed, the trees would clearly obstruct the public’s easement of travel.

– Tom Root

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