Case of the Day – Wednesday, April 26, 2023


Normally, one would think that when an electric utility was busy building new transmission lines, it was just as subject to liability for empty-headed negligence as the next guy. That would be true for your garden-variety profiteering, money-grubbing commercial enterprise. But not necessarily when your Uncle has his fingers in the pie… at least until this past Monday.

Back in the dusty days of the Great Depression, some Americans began to think it was a good idea for the “public” – that is to say, the government – to own electric utilities. A lot of people thought private electric companies charged too much for power, did not employ fair operating practices, and were subject to abuse by the utility holding companies that owned them. What crazy ideas!

After all, the government is benevolent. And efficient. And responsive to citizens. Look no further than your local DMV. Isn’t it sad everything can’t be so well run? During his presidential campaign, Franklin Roosevelt claimed the federal government would never part with control of its power resources. At least where the Tennessee Valley Authority is concerned, he has been as good as his word.

The TVA is a utility that is neither fish nor fowl, acting in all respects like a privately-held company engaged in electricity generation and distribution. At the same time, it acts like a government agency, wielding powers reserved to the government.

Is that a good thing? Don’t ask Gary Thacker. He and fishing buddy Tony “Ski Daddy” Szozda were trollin’ and a’rollin’ in an Alabama fishing tournament on the Tennessee River one weekend, just while TVA crews were raising a submerged power line that they had accidentally let drop into the river. If you ever saw the scene in “The Great Escape” where Steve McQueen commandeers a motorcycle with a rope across the road, you know where things were headed for Gary and Tony. As they passed through the unmarked work area at full throttle, the TVA crews lifted the conductor out of the water. The boat hit the cable. Tony died.

Logically, Gary sued the TVA for negligence. After all, its crews had dropped the cable, and they had no boats patrolling the channel to warn boaters of their recovery activities, despite knowing that boats traversed the area at high speed and that the usual Tuesday fishing tourney – with a lot of fast-moving boats – was underway.

After filing the lawsuit, Gary got smacked again. It turns out that sometimes the TVA is a private utility company. Sometimes it’s the government. Being the government has a substantial impact on liability, because no one may sue the federal government for tortious conduct (like negligence) unless the plaintiff has permission.

Permission is granted by the Federal Tort Claims Act, which grants permission to sue for many types of negligence. The FTCA, however, does not permit suit where the negligent act complained of is a “discretionary function” of government. The trial court concluded that “clotheslining” fishermen with an understaffed and poorly-thought-out power line recovery operation was a government function, and the court thus lacked jurisdiction to hear the lawsuit. The 11th Circuit Court of Appeals agreed.

But two years ago, the Supreme Court of the United States reversed. TVA could be a fish. Or a fowl. But it could not change according to what was convenient. If it was out in the marketplace acting like a private entity, it will be treated like one.

The Court of Appeals had applied an unusually attenuated syllogism here: the TVA has the power of eminent domain to condemn real estate for the installation of power lines. Because that is a government function, if when and where and how to build power lines is a discretionary function, any institutional stupidity that attends the building of power lines is likewise a discretionary function.

The Supreme Court would have nothing to do it. When TVA (or other government actors that compete in the marketplace with private companies)  it is subject to suit when its employees do something bone-headed, and victims are hurt or killed.

There is little question that SCOTUS (the acronym for The Supreme Court Of The United States, used by people in the know) brought some sanity to the FTCA. When we reported on the Court of Appeals decision, we complained, “Where does this string finally snap? Would driving a truck to be used in the building of a power line a discretionary function, so that a drunken TVA employee running down a busload of Brownies be shielded from liability? After all, relieving the tipsy trucker would require using another employee, an allocation-of-resources decision? More to our topic, would the clearing of trees well beyond a right-of-way – because maintaining power lines that TVA built on land it had condemned be part of the “discretionary function” chain – likewise block a suit when the tree fell on the same busload of Brownies? There seems to be no logical way to cabin the 11th Circuit’s reasoning in this decision.”

Maybe the Justices read this blog. It’s doubtful, but the wisdom of the Court’s decision is not.

Thacker v. Tennessee Valley Authority, — U.S. —, 139 S. Ct. 1435, 203 L. Ed. 2d 668 (2019). Gary Thacker sued TVA for negligence involving a tragic 2013 accident on the Tennessee River. While Gary and his friend Anthony Szozda were participating in a local fishing tournament, TVA was raising a downed power line that was partially submerged when a pulling cable had failed earlier that day. At the moment that TVA employees began lifting the conductor out of the water, the fishing partners’ boat passed through. The conductor struck Szozda, killing him, and Thacker. Injuring him seriously.

The district court concluded that TVA’s activities raising the cable were part of its discretionary function as a government agency, and dismissed the complaint for lack of subject-matter jurisdiction. Gary appealed, and the 11th Circuit agreed. Last week, the Supreme Court reversed the two lower courts.

Held: TVA is not immune from suit for negligence arising from the accident.

Under the doctrine of sovereign immunity, no one can sue the United States without the government’s permission. In the Federal Tort Claims Act, the government granted a limited waiver of its immunity, allowing people to sue the government for torts committed by its employees and agents. The FTCA contains an exception from liability when a government employee performs “a discretionary function or duty.”

By contrast, the TVA is governed by its own statutory waiver of sovereign immunity, 16 U.S.C. § 831c, which grants the TVA the power to “sue and be sued in its own corporate name,” with any judgment paid from TVA assets rather than the federal treasury.  The Supreme Court has previously held that when Congress “launched a governmental agency into the commercial world and endowed it with authority to “sue or be sued,’” the clause should be “liberally construed.”

The government successfully convinced the 11thCircuit Court of Appeals that something like the FTCA’s discretionary-function exception should be judicially inferred to prevent “judicial second-guessing” of TVA policy decisions. Citing a prior Supreme Court decision, Federal Housing Administration v. Burr, the government contended that courts should recognize implied limits on “sue-and-be-sued” clause authority when “necessary to avoid grave interference” with governmental functions. Thus, the government argued to the Supreme Court, that the TVA’s discretionary decisions should be protected from court review.

But the Supreme Court “balk[ed] at using Burr to provide a gov­ernmental entity excluded from the FTCA with a replica of that statute’s discretionary function exception.” The Court explained that because “[t]he law … places the TVA in the same position as a private corporation supplying electricity,” “a suit challenging a commercial act will not ‘grave[ly]’—or, indeed, at all—interfere with the ‘governmental functions Burr cared about protecting.’”

However, as the court noted, “the TVA is something of a hybrid, combining traditionally govern­mental functions with typically commercial ones.” The TVA engages in governmental activities such as exercising eminent domain to take private property for TVA use and running its own band of law enforcement agents. The Court said that if TVA’s activities are “commercial—the kind of thing any power company might do – the TVA cannot invoke sovereign immunity.” But even if the conduct is governmental, it must be clearly shown” that granting TVA immunity from private lawsuit is needed to prevent a “grave interference” with a governmental function.

Because the district court bypassed the “grave interference test,” the court sent the case back for reconsideration in light of this analytical framework.

The Court rejected the government’s claim that constitutional separation-of-powers principles prevent courts from reviewing a government entity’s discretionary choices. The Justices rejected the separation-of-powers argument as applied to the commercial activity engaged like the construction undertaken by the TVA in this case. Beyond that, the Court ruled that Congress by statute waiver may strip a government entity of immunity. “The right gov­ernmental actor (Congress) is making a decision within its bailiwick (to waive immunity) that authorizes an appro­priate body (a court) to render a legal judgment.”

The ruling should blunt government defenses of policy immunity for entities that “operate[] in the marketplace as private companies do” and thus should be “as liable as they are for choices and judgments.”

– Tom Root


Case of the Day – Tuesday, April 25, 2023


watergat160524Today’s case is all about someone named Nixon, government break-ins, abuses of power, and that sort of thing. You’re thinking Watergate, 1972?  That’s so 20th Century. There weren’t even any Russians involved…

The Nixon we’re talking about is Diane Nixon, and the government is that of Montgomery County, Maryland. It seems that Nixon — who was the victim here, not the NCA — had a rather unkempt lawn. The Housing Code people inspected and sent her a certified letter telling her to clean it up or the County government would (at her expense). Ms. Nixon received the letter and made some half-hearted attempt to straighten the place up. But after the ten days provided for in the County’s letter elapsed, the housing inspector and a gang of workers broke through a gate, cut the grass, removed the trees, and hauled off the junk.

Ms. Nixon, apparently more adept at scape-goating than landscaping, sued the County, claiming that it and its employees had grievously violated her due process rights by giving inadequate notice of what it intended to do, by trespassing and destroying perfectly good trees, and — while they were at it — hauling off a picnic table.

The federal district court dismissed the case, finding that the County had complied with due process by giving adequate notice of what it intended to do and when, and the Court of Appeals agreed. At its heart, due process requires notice and an opportunity to be heard. Ms. Nixon got adequate notice and she was afforded a right to a hearing, which she didn’t ever exercise. As for the picnic table, the trees, and a wheelbarrow that the workers allegedly spirited off, the State had a procedure for Ms. Nixon to employ in making claims for such damages. After all, due process is nothing more than “the process that is due.”

President Nixon reminds us with his gesture that due process has two (count 'em, two) components - notice and an opportunity to be heard.

President Nixon reminds us with his gesture that due process has two (count ’em, two) components – notice and an opportunity to be heard.

Nixon v. Montgomery County, 251 Fed.Appx. 141 (4th Cir., 2007).   The Montgomery County Department of Housing and Community Affairs received a complaint about Diane Nixon’s place in Silver Spring, a housing code inspector determined that it was in violation of the County Code. He sent Nixon a notice by certified mail, return receipt requested, stating that her property was in violation of the Housing Code, which prohibits “weeds and generalized growth to exceed 12 inches in height limit in a subdivision.”

The notice complied with the Code: it offered Nixon a 10-day waiting period, the opportunity to appeal the notice, and the telephone numbers for the Board of Appeals and for the inspector. But the notice warned that after the waiting period, the County would enter the property for the purpose of bringing it into compliance with the Housing Code. After receiving the letter, Nixon failed to appeal, but she said he hired some youths to help clean up the place. Nonetheless, after the 10-day period expired, the inspector and a work crew arrived at Nixon’s property, entered it through a chain-link gate that they removed from its hinges, and proceeded to clean up the place. The inspector said the property was still in violation of the Code when he arrived on November 7, and that, in cleaning the property, he cut back and removed dead vegetation, vines, overgrown bamboo, logs of wood, and dead, dying, or leaning trees. He also removed a picnic table and wheelbarrow, maintaining that these items were unusable and constituted trash.

Nixon claimed that she had sufficiently cleared the yard of overgrowth to be within the Housing Code and that the inspector actually destroyed healthy trees, ornamental shrubs, and plants with an estimated value of $17,362. She sued the inspector and the County alleging violations of her constitutional rights to due process and freedom from unreasonable search and seizures under both the federal and state constitutions, as well as state tort claims for trespass and conversion. The federal district court granted summary judgment to all defendants on all claims.

mower160524Held:  The Court of Appeals upheld the dismissal of her claim. The Due Process Clause guarantees that “[n]o person shall … be deprived of life, liberty, or property, without due process of the law.” The general rule developed under the Due Process Clause is that individuals must receive notice and an opportunity to be heard before the government deprives them of property.

Nixon claimed the County’s notice was deficient. But the Court said the notice had to be judged according to three standards: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; and (3) the probable value, if any, of additional or substitute procedural safeguards. Finally, the County had to weigh Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Applying these factors, the Court concluded that the County provided constitutionally adequate process to Nixon concerning the removal of the items covered by the Code.

The removal of the solid waste items, covered by Chapter 48 of the Code, appeared closely related to the cleanup of the Chapter 58 items. Although the notice lacked specificity, the Court said, it clearly presented the County’s general concerns, indicated the County’s proposed solution, and provided Nixon with a means to appeal if she so chose.

Nixon also claimed the County exceeded its legitimate authority under any section of the Housing Code by destroying healthy trees and a functional picnic table and wheelbarrow. But the Court said that Nixon didn’t have a viable due process claim because Maryland provided a post-deprivation process that offered Nixon sufficient redress for her alleged property loss.

– Tom Root


Case of the Day – Monday, April 24, 2023


We make countless assumptions every day, based on our experience and education and sometimes prior hard luck. Where we live, whenever you see a deer cross the road in front of you, you slow way down, because experience has taught you that there’s probably a second, and even a third, tailing along. When we grab some fast food, we assume that the acne-challenged teens cooking it in the back are practicing good hygiene, because we know that the County Health Inspector is on the case, and we know that the restaurant knows that, too. When vicious killers are sent to Death Row, we know that the manifold guarantees and procedures in our criminal justice system assure that the mutts are guilty beyond any reasonable doubt. And we fly with confidence that our government inspectors have worked tirelessly to ensure that the complex systems that carry us six miles above the earth at eight-tenths the speed of sound are free of flaws.

Right, Boeing?

The law indulges us our reasonable assumptions, because those assumptions are the grease that makes society work. If we see a person collapsed by the side of the road and call an ambulance, the law will protect us from a claim by the injured party that we should pay for the emergency squad because they never asked us to call. If we see a toddler wandering in the Walmart parking lot, our reasonable assumption that the child is lost protects us from liability for taking her hand and leading her to the store manager.

Even in this era of unusual domestic arrangements, the law permits us our reasonable assumptions. When Phil and Marlee Snowdon decided they wanted to clear some trees and brush along their property line adjoining the neighbors, Hal and Carol Dickinson, they did what good neighbors do: they asked for the Dickinsons’ consent. Phil and Hal walked the boundary line, Phil described what he and Marlee wanted to do, and Hal consented.

What Phil and Marlee did not know was that Carol had owned the property since before she married Hal, which was about 15 years before. She paid all the bills on the place and made all the decisions. Hal was just a kept husband.

Believing they had permission, Phil and Marlee hired Charter Oaks Tree & Landscaping Co., Inc., to perform the work. Charter Oaks was a few days into the tree and shrub removal when Carol returned from an out-of-town trip and blew a gasket. It did not matter that Hal had given permission, Carol fumed, because she had not.

Carol sued the Snowdons and Charter Oaks for trespass and wrongful cutting of trees. The Snowdons admitted she had not given them permission, but argued that her husband, acting as her agent, had done so. Carol said that didn’t matter, because he lacked the authority to do so, and no sense that he was acting as her duly-authorized agent could be inferred from her conduct, because she had never said a thing that would make Phil and Marlee think he could speak for her.

Poor Hal, the kept man. He could not have felt very good about how his wife legally emasculated him. And neither, apparently, did the court. Not because he’s a guy, but rather because you ought to be able to rely on the promises of one marriage partner to bind both.

Sure, marriage alone isn’t enough to presume an agency relationship exists, but assuming that hubby and wifey speak for each other is some of that societal grease we mentioned. Clearly, the court – while mouthing the legal platitude about no presumption of agency arising from the marriage – was going to find a way to make Hal his wife’s agent. The alternative would be to throw sand in the neighborhood gears, requiring the folks next door, the banker, the grocer, and auto mechanic all to question one marital partner expressing the demands and desires of the couple. How could anything ever get done?

This court wasn’t going to be a party to that. Hal was found to have apparent authority to let Phil and Marlee cut the boundary trees.

Dickinson v. Charter Oaks Tree & Landscaping Co., Inc., Case No. 02AP-981 (Court of Appeals, Franklin County, Ohio, April 24, 2003) 2003-Ohio-2055, 2003 Ohio App. LEXIS 1940. In October 1997, Marlee Snowdon and her husband Richard moved next door to Carol Dickinson and her husband, Hal. Carol Dickinson had lived in her house for 30 years. After Hal and Carol married some 15 years before, he began living there, too. Notwithstanding that, Carol owned and managed the property. Significantly, she admitted the Snowdons had no idea who owned the property.

One spring, the Snowdons decided to clean out substantial vegetation overgrowth along the side of their property abutting the Dickinson property. After Marlee and Richard decided to do the work, Richard told her he had received permission from Hal Dickinson after the two men walked the joint property line together and Richard Snowdon pointed out to Hal Dickinson what the Snowdons wanted to do. Marlee Snowdon hired Charter Oaks to do the work.

Marlee Snowdon told Charter Oaks that the Dickinsons had given their consent to removing vegetation along the border between the properties. Charter Oaks’ normal practice was to rely on the representations of the contracting party about the consent of adjoining landowners. Charter Oaks began removing the vegetation between the Dickinson and Snowdon property.

Hal watched Charter Oaks run chippers and perform its work the first day. But on the second day, Carol returned from an out-of-town trip and became upset about the work.

Carol sued the Snowdons and Charter Oaks for trespass and wrongful cutting.

Held: Hal acted with apparent authority, and the Snowdons and Charter Oak were within their rights to rely on his consent. The evidence showed that not only did Hal work frequently in the Dickinson yard, both alone and with Carol, but he trimmed and removed vegetation from the Dickinson property, including the area along the joint property line with the Snowdons. Hal dealt with contractors, including a tree service Carol hired that performed work on the Dickinson property. No evidence suggested the Snowdons were told Hal had limited or no authority to make decisions regarding landscaping matters on the Dickinson property. That evidence let a reasonable person infer that Carol knowingly permitted Hal to act as though he had authority over landscaping matters on the Dickinson property.

What’s more, the evidence showed that Richard Snowdon believed in good faith that Hal had apparent authority to give permission to the Snowdons and Charter Oaks to enter onto the Dickinson property to remove vegetation in the area of the joint property line.

A defendant is not liable for trespass or destruction of vegetation if he is privileged, by receiving the consent of the owner or her agent, to enter onto the property of another to remove vegetation. “Because competent evidence was presented at trial to support a reasonable conclusion that Hal Dickinson was Carol Dickinson’s agent and had apparent authority to give consent to defendants to enter onto the Dickinson property and to remove vegetation,” the Court said, Carol’s claims against the Snowdons and Charter Oak failed.

– Tom Root


Case of the Day – Friday, April 21, 2023


It is almost an anachronism. A Tennessee movie theatre recently aired the movie “Hellboy,” but so as not to offend, it has listed the flick on its marquee as “Heckboy.”

“Hellboy,” of course, is a 2019 American supernatural superhero film based on the Dark Horse Comics character of the same name. I know this because I looked it up on Wikipedia, not having any independent knowledge of who this mutt character might be. Heckboy looks like a Hell’s Angel who fell asleep under the summer sun having forgotten his sunblock. But then, the movie industry hardly has me in mind when it looks to get into consumers’ pocketbooks. Lucky for them.

Suffice it to say that my heart warmed that in this raucous day and age, some people still think that “Hellboy” is an offensive term.

I bring all of this up because of the Heckerts (not a Bowdlerization of “Hellert”), who are the plaintiffs in today’s case. While lacking a sunburn and probably a set of the Hell’s Angels colors, the Heckerts nonetheless were bikers. At least they were until they ran into a tree branch that had fallen over a rural Ohio road. In true, merciless Hell’s Angels fashion, they sued the County and poor old Mary Weinman, who owned the woods in which the limb-shedding tree stood.

But Mary was ready to rumble, and by the time she was done, the Heckerts had had a heck of a time. Mary had no duty to inspect, and because the Heckerts could not show that Mary knew anything about a hazard tree on her land, she owed them nothing.

Truly a heck of a heck of a thing.

Heckert v. Patrick, 473 N.E.2d 1204 (1984). The Heckerts were riding their motorcycle on a country highway in rural Stark County, Ohio, an area of mainly farmland and forest areas. Without warning, a large limb fell in front of their motorcycle. They collided with it, injuring them badly and damaging the motorcycle. They sued Mary Weinman, who owned the land on which the tree stood.

Mary inherited the property from a relative. She lived in an adjoining county, and hardly ever visited the land. She had no idea of any decay or disease in any tree on the property.

A county inspector testified that during the years prior to the accident, he had patrolled the road at least twice a week, and that the tree appeared to be healthy. He said his opinion was that there was no danger of the tree limb falling onto the road. Photographs in the record confirmed this.

The trial court granted summary judgment to Mary and the County (which had also been named as a defendant in the suit).

The Heckerts appealed, and eventually, the case ended up in the Ohio Supreme Court.

Held: Mary and the County were not liable.

The Court held that in Ohio, generally, an urban owner has a duty to inspect his or her trees to ensure they are safe. By contrast, a rural landowner has no duty to inspect every tree on his or her property, but if the rural owner has knowledge — actual or constructive — of a defective condition of a tree that may result in injury to someone using a highway next to the property, the owner must exercise reasonable care to prevent harm from the falling tree or branches.

The Court recognized that suburban sprawl was causing increasing difficulty in differentiating between rural and urban land, but noted the distinction may have more to do with the location of the highway, its size, and type, as well as the number of people utilizing it, than any other factors.

– Tom Root


Case of the Day – Thursday, April 22, 2021


Your neighbor cannot force you to mow his lawn (unless you’re some kind of masochistic marshmallow). So can the city force you to mow its lawn?

Of course not, you snort. “This is ‘Murica. I have rights! I built my own AR-15! They can’t make me do nuthin’!”

“Not so fast,” as Lee Corso might say. Despite the fact that this is ‘Murica, and in ‘Murica the government seemingly cannot conscript you to do its bidding, it turns out that you can be forced to mow the city’s grass in some limited circumstances.

The other day, I talked about the constitutional police power. Today, we see a darker side of it.

Goodenow v. City Council of Maquoketa, 574 N.W.2d 18 (Sup.Ct. Iowa, 1998). The City of Maquoketa, Iowa, enacted an ordinance requiring landowners whose properties were next to a city street to mow grass and trim weeds growing in the City-owned right-of-way, or pay the City to do it. J.E. Goodenow saw it as an unconstitutional a taking of property for private use in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and in violation of article I, section 18 of the Iowa Constitution.

This being ‘Murica, he sued.

Held: A municipality may exercise its police power by adopting ordinances to promote public welfare, to provide for safety and comfort of its inhabitants, and to declare and prevent nuisances. Such ordinances would include the mowing ordinance at issue in this case.

The Supreme Court of Iowa held that in order to be constitutional, an ordinance must have a definite rational relationship to the ends sought to be served by the ordinance.

The Court observed that in Northern Pacific Railway Co. v. Adams County, 138 P. 307 (Wash. 1914), the Washington supreme court upheld a state statute requiring abutting landowners to cut weeds growing along public highways at the landowner’s expense. That decision compared the statute with statutes requiring abutting landowners to remove snow and ice from city-owned sidewalks on their property, reasoning that the policies supporting the snow removal statutes likewise justified requiring abutting landowners to cut weeds along state highways.

Also, the Court noted, in Commonwealth v. Watson, 223 Ky. 427, 3 S.W.2d 1077 (Ky. 1928), a Kentucky court of appeals upheld a statute requiring abutting landowners to cut or clear away weeds and bushes growing along public highways. As in the Washington case, the Kentucky court concluded that it was reasonable to require abutting landowners to clear away weeds along public highways for the same reason that cities had authority to require landowners to remove snow from city-owned sidewalks abutting their property.

Thus, the Court held, that Maquoketa’s ordinance requiring abutting landowners to mow grass and weeds growing on city-owned property for the benefit of the public at the expense or labor of the landowners promoted and protected public health, safety and welfare of persons who traveled upon city streets. What’s more, the ordinance was reasonably related to achieving those goals.

The ordinance was a valid exercises of police power and did not constitute an unconstitutional taking of property without compensation.

– Tom Root


Case of the Day – Wednesday, April 19, 2023


forgot150430Before I forget to do this, I’d like to report on a case of a conveniently forgetful property owner from the Land of 10,000 Lakes.

Mr. Meixner made an agreement with his neighbor, a sawmill, to replace some boundary fences. The first several fencelines were replaced according to the parties’ agreement, with Meixner and the sawmill sharing the costs. Everything seemed hunky-dory, as they like to say in Minnesota..

Out of nowhere, Mr. Meixner sued, claiming that the sawmill had cut down 73 trees on his land before replacing the second of the three fences.

The sawmill said, “Yup. Sure did.” These Minnesotans are people of few words, when they’re not saying things like “hunky-dory.” But the sawmill employee did say, “Had to cut down the trees to build the new fence. Meixner agreed.” Those words were plenty, and the jury found for the sawmill.

On appeal, the Court agreed with the level-headed jurors. It first adopted the general principle that trees on a boundary line are owned in common by the property owners, and neither may cut down a boundary tree without the consent of the other. But here, the Court said, it’s pretty clear that the sawmill employees had Mr. Meixner’s OK to axe the trees. After all, the Court observed, Mr. Meixner had given the sawmill permission to build the new fence, and he even shared the cost. If permission is given to enter onto the property to build a new fence, that permission implies authority to do all acts necessary to the completion of the task.

Don't you believe it ...

Don’t you believe it …

The sawmill employee said the trees had to go if the new fence was to be built. That evidence was good enough for the Court. Mr. Meixner wanted a fence, so he necessarily wanted the trees cut in order to build it.

Meixner v. Buecksler, 216 Minn. 586, 13 N.W.2d 754 (Sup.Ct. Minn. 1944). Meixner owned property next to a lumber company. He had an agreement with the company to replace old fences standing on the common boundary line.

Meixner and Buecksler, a tenant and employee of the company, built a new east-west fence in September 1938. Pursuant to the lumber company’s direction, Buecksler then cleared out the brush and cut down some trees in preparation for building a new fence to replace the old one which marked the boundary between Meixner’s south forty and the company’s north forty. A survey was made of this line, and thereafter Meixner and Buecksler constructed the replacement fence. A third fence was later completed, marking the east-west boundary.

Meixner contended that Buecksler and the company unlawfully cut 73 trees on his property prior to building the north-south fence, and that such acts were done without his knowledge or consent, and constituted trespass. The lumber company claimed Meixner had consented to clearing away the brush and cutting the trees, and that such acts were necessary in order to carry out the mutual plans to build the fence. The jury found for the defendants.

Meixner appealed.

Held: The appeals court upheld the verdict. It found that trees on the boundary line are the common property of the adjoining landowners which neither may destroy without consent of the other. However, trespass is not committed if there is permission or consent to do acts complained of, which consent may be implied from circumstances, and the jury was entitled to find that the Defendants had Meixner’s consent.

Generally, the Court said, permission to do a particular act carries with it authority and right, by implication, to do all that is necessary to effect principal objects and to avail licensee of his rights under license. Meixner’s agreement with Buecksler and the company for building a line fence between the adjoining properties carried with it by implication the right to do such things as were reasonably necessary in order properly to build the fence, including the cutting of trees on the boundary line.

Meixner had asked the court to award him treble damages under the Minnesota statute on wrongful cutting. The court declined, pointing out that there had to be damages in order to treble them, and Meixner simply had none.

– Tom Root


Case of the Day – Tuesday, April 18, 2023


A news story a few ago piqued my interest, and I am only now getting around to writing about it. Everyone knows that the Tree of Heaven, sometimes more accurately called the “tree of hell,” is an aggressive and invasive species. Likewise, everyone knows that the spotted lanternfly is a noxious pest.

It seems Pennsylvania has declared the TOH to be a noxious plant because – in addition to all of the other excellent reasons to try to tear it out by the roots and burn it – the Tree of Heaven is a favorite host of the spotted lanternfly. Being introduced to the noxious plant list won’t be enough to require Pennsylvania landowners to eradicate the Tree of Heaven wherever it is found, but what if it Pennsylvania ordered it?

The Commonwealth’s noxious plant list is a textbook example of the police power, not necessarily the guys with fast cars, flashing lights, and doughnuts, but rather the basic right of governments to enact laws and adopt regulations for the benefit of their communities. Under the system of government in the United States, only states have the right to make laws based on their police power. The lawmaking power of the federal government is limited to the specific grants of power found in the Constitution.

Need an example? Did you happen to read about a recent pandemic, and states shutting down and ordering people to wear masks and the such? That’s the police power in action.

Could Pennsylvania use its police power to force the homeowner who planted a row of trees of heaven in his front yard – if such an idiot exists – to tear them out without compensation?

Eighty years ago, in Miller v. Schoene, the U.S. Supreme Court upheld the constitutionality of a Virginia law requiring landowners to destroy cedar trees to stop the spread of cedar rust. The rust didn’t hurt the cedar trees at all, but it was devastating to apple orchards. The Commonwealth would not pay the owners for the loss of their trees.

The Supremes held that Virginia was within its rights to issue the order. The Commonwealth was “under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity… When forced to such a choice a state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.”

The high court said there was a public interest in the preservation of the apple crop over the cedars. And where the public interest is involved, “preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.”

A more current application of the police power of the government to order the emergency abatement of a threat, relying on the Miller ruling, happened 20 years ago, when five beetles went on a walkabout.

In re Property Located At 14255 53rd Ave S., Tukwila, King County, Washington, 120 Wash.App. 737, 86 P.3d 222 (Court of Appeals, Washington, March 22, 2004). Three citrus long-horned beetles were found in a Tukwila nursery in August 2001, in maple tree bonsai stock imported from Korea. One beetle was a pregnant female. Because there were eight beetle exit holes on the stock, five beetles had presumably escaped from the quarantine area. In fact, one was seen flying away from the nursery. The discovery of the accidental escape was alarming because the beetle, a major pest of citrus, also feeds on many other trees, including apple and other fruit trees as well as alder, willow, oak, and some conifers. Eventually, the beetle kills all host trees.

The Governor proclaimed an emergency in June 2002 and authorized the Department of Agriculture to implement the eradication plan. The Department immediately began to remove trees. The landowners within the one-eighth-mile radius found themselves in the predicament that through no fault of their own, their lovely trees had become a threat to the community because of their susceptibility to being commandeered by a noxious pest. The Department established a $100,000 fund for the purchase of replacement trees and other vegetation for yards and gardens, and arranged to supply landowners with vouchers that could be used to obtain various non-host species of vegetation from participating nurseries.

These efforts to mitigate the effect of the eradication plan fell short of what several landowners regarded as fair. The landowners took the position that they were constitutionally entitled to just compensation before their trees could be destroyed. Targeted for destruction on land belonging to Sheila Malbrain and Lee Terrell were fruit trees, flowering plums, poplar trees, rose and lilac bushes, azaleas, and fir trees their arborist valued at a total of $116,262. Seven fruit trees on Carl Gorgey’s land were valued at $4,430. Six broadleaf trees on land belonging to Ralph and Thelma Kissinger were valued at $17,215.

The Department sought administrative warrants to gain entry to the respondents’ properties. The superior court found that the warrants were supported by probable cause. The court made an unchallenged finding that the beetle constituted an “extreme threat to the interests of the state” and that the Department acted reasonably in its response to this threat. The court nevertheless ruled that destruction of the trees was a compensable taking, and conditioned the issuance of the warrants upon the landowners first being compensated.

Held: The Court followed Miller v. Schoene and applied the law of necessity, holding that in meeting an emergency — such as fire, flood, or pestilence — public officials and private citizens may employ almost any available means in an endeavor to control the danger.

The Court ruled that not eradicating the trees constituted a noxious use of property — a nuisance, if you will — because of the risk the healthy tree might become a host to the beetle. Although the landowners complainned they had to bear a disproportionate cost of the State’s response to the threat, the Court of Appeals held, as in Miller v. Schoene, that the State of Washington had to make a choice to address the threat, and “when the private sacrifices that must be made to defeat a public enemy are not evenly distributed, the Constitution will not necessarily compel an equalizing adjustment.”

Interestingly, both the Supreme Court in Miller and, seventy years later, the Washington court in Tukwila, suggested that the law of necessity was related to the law of nuisance. Both recognize the obligations of property owners to each other and to the community. The power that the State possesses to prohibit uses of property that injure health, morals, or safety of the public is not burdened with the requirement that the State must compensate individual owners for the losses they sustain because they cannot use their property to inflict injury upon the community.

– Tom Root