Case of the Day – Thursday, March 1, 2018


The valentines are in the trash. That can only mean one thing: St. Patrick’s Day is right around the corner. We wandered into a Family Dollar the other morning for some pork rinds and red pop, only to be assaulted by not just shamrocks, but Easter bunnies, IRS forms and even Mother’s Day cards. Halloween is just around the corner.

We’ll launch our First Meteorological Day of Spring festivities with some late-season Snows. The Snows in this case were a couple, one party in a convoluted adverse possession case. The surveyor started the problems in 1969 by taking the landowner’s word for it that a rock marked the corner of the 40-acre tract. It was the wrong marker by about 40 feet, and so everything he did from there was wrong, too. Garbage in, garbage out.

But no one knew about the error. The landowners used the faulty centerline to give an easement to neighbors, and the neighbors put a driveway on it. That was off center as well. To compound problems, there was a decrepit barbed wire fence off center from the off-center centerline that Mr. and Mrs. Snow — who had bought land a year after the faulty survey — believed to be the real centerline.

When the owner next to the Snows sold in the mid 1990s, he knew they claimed the 1.5 acres between the easement and the old fence as theirs, so he sold 8.5 of his 10 acres by warranty deed but the disputed land by quit-claim deed (which meant that the seller wouldn’t help out the buyer in any legal battle arising with the Snows).

And the battle inevitably came. The Snows argued the old fence enclosed the land, and they had exercised control over the disputed acreage by cutting a firebreak and harvesting cedar. But landowner Camp said the land was so densely wooded, no one could see what – if anything – that the Snows had done. The trial court held that the Snows hadn’t exercised continuous control over the land, and that the old fallen-down fence didn’t demark or enclose anything. And there was no evidence that Camp or his predecessor had acquiesced in the old fence being the boundary. If he had, he wouldn’t have conveyed the disputed area, even by quit-claim deed.

By the way, contrary to popular belief, the deed is not called a “quick claim” deed.

Snow v. Camp, Not Reported in S.W.3d, 2007 WL 2782825 (Ark.App., 2007). When the Snows purchased a 40-acre tract in Baxter County in 1967, an old barbed-wire fence crossed the property. It seems that at the time the surveyor, John Ed Isbell, set the boundary between the Snows’ lands and that now owned by the Camps in 1969, he used a stone shown to him by the property owners as the corner of the 40 acres, and then goofed, laying out lines that were about 80 feet short of a true forty acres. Then, in 1970, the Snows, the purchasers of another tract, and the grantor signed a right-of-way easement agreement. The legal description for the 50-foot easement agreement used the 1969 survey’s centerline as the midpoint of the easement. The Snows built a 15-foot gravel driveway that was mostly within, but was not in the center of, the fifty-foot easement.

Twenty-five years later, the Williams bought the tract now owned by the Camps. During his 18 months of ownership, Williams learned that the Snows claimed the 1.5-acre portion lying south of the old fence line and north of their actual boundary line. When he sold 10 acres in 1997 to Camp, Williams knew there was an issue about the area, so he conveyed 8.5 acres north of the old fence by warranty deed and the 1.5-acre area at issue by quitclaim deed.

In May 2000, the Snows sued the Camps for adverse possession of the 1.5-acre tract and for an injunction preventing the Camps from interfering with the easement. They argued that the boundary line between the parties’ property was established along the fence line by acquiescence. As a result of the error in the survey on which the easement’s legal description was based, the Snows asked for reformation of the easement as they had actually used it.

It’s “public” with an “l”. Likewise, it’ “quitclaim” and not “quickclaim.”

At trial, Isbell admitted that his survey was wrong. Ramona McDonald, who was a party to the easement agreement, said that they had intended for the road to be in the middle of the easement. The Snows had exercised control of the 1.5-acre tract by cutting cedar up to the fence line and mowing for a firebreak. When they bought the property, the land was so heavily wooded that the area in question could only be accessed on foot. Williams said he had understood that he owned property north and south of the fence; that he maintained his yard to the fence line; and that on the other side of the fence were dense woods, which he was unaware had been mowed. He said that, once, when he had discovered some men hired by the Snows cutting sprouts close to the easement, he told them that it was his land. He said the fence was completely down on the ground for about twenty feet in at least two places, that it did not surround the Snows’ property and that no one kept animals on either side of the fence. He knew that the Snows claimed the land. He said that neither he nor the Snows had used the area, which he called “just a vacant, barren strip of woods.” Michael Camp admitted that Williams had informed him, after giving him the two separate deeds, that the Snows claimed the 1.5-acre tract. He said he had never considered the old fence to represent the boundary line.

barbwire151005The trial court ruled that the Snows failed to establish adverse possession of the area in dispute, which it found to be unenclosed, because they did not continuously occupy or use the property for more than seven years and they never excluded any record owner from it. The Snows appealed.

Held: The Snows didn’t prove their adverse possession. The Snows argued the trial court should have considered the significance of the surveyor’s incorrect centerline in deciding the claim for adverse possession, although the old fence line to which they claim adverse possession is considerably north of that Line. They argued they had shown control of the 1.5-acre tract since 1969 by clearing a fire break around and making repairs to the fence, cutting trees and bushes, harvesting rocks, mowing, parking equipment, and feeding forest animals there. But the appeals court held that due deference had to be given to the trial court’s superior position to determine the credibility of the witnesses, and the trial court had found some testimony more compelling than other.

In order to prove the common-law elements of adverse possession, the Snows had to show that they has been in possession of the property continuously for more than seven years and that their possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. It is ordinarily enough proof of adverse possession that a claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. For possession to be adverse, it must be hostile only in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the holder of title to the land.

There is every presumption that possession of land is subordinate to the holder of the legal title. The intention to hold adversely must be clear, distinct, and unequivocal. What’s more, the General Assembly added a requirement for adverse possession in 1995, that the claimant prove color of title and payment of taxes on the disputed property or a contiguous piece of land for seven years. Fencing the disputed area is an act of ownership evidencing adverse possession, and the fact that the fence may have deteriorated does not necessarily mean that the property is not enclosed. Instead, the question is whether the enclosure is sufficient to put the record title owner on notice that his land is held under an adverse claim of ownership. In this case, the Court ruled, the evidence easily supported the trial court’s decision. The Snows’ use of the disputed land was sporadic and inconsequential, and in no way exclusive.

The Court rejected the Snows’ argument that the parties acquiesced to the fence line as the boundary. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. A boundary line by acquiescence may be inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. All the Snows had here was a dispute, and no evidence of a tacit recognition by the Camps or their predecessors in title that the old fence line was the boundary.

– Tom Root


Case of the Day – Wednesday, February 28, 2018


Perhaps we should use Mr. Peabody's Wayback Machine ...

Perhaps we should use Mr. Peabody’s Wayback Machine …

Travel back into time with us … back, back, back to September 19, 2017, when we solved the poor Mazda owner’s problem by determining that maybe, just maybe, his landlord was liable for injuries to the unhappy sport car enthusiast’s set of wheels. As in all cases, liability depends on the specific facts. That’s why there’s no substitute for a good local attorney.

While considering the RX-8 owner’s dilemma, we came across today’s case. A hospital was built back in the early 1970s. A landscape architect suggested sweetgum trees on the grounds. When the trees were planted, they seemed like a nice touch, an architectural exclamation point to the building. The sweetgum is a good-looking tree, but rather prolific in its production of sweetgum balls.

Times changed, more people were getting sick, and the hospital grew. So did the trees. When a parking garage was added in the 1980s, the designer told the hospital the trees should be removed because they dropped sweet gum balls that got everywhere and were a nuisance. The hospital refused. Someone in the administration apparently liked the trees.

Ten years later, a hospital visitor slipped on a sweet gum ball in the parking lot and fell, breaking her wrist. Lucky for her there was a hospital nearby. She didn’t feel lucky, however … rather, she felt aggrieved. She therefore sued the hospital for negligence. What else does an aggrieved person do?

The Court applied the reasonable care standard to the case, and found the hospital was negligent. Crucial to the decision was the fact that the parking lot designer had told the hospital years before that the trees were a nuisance, for the precise reason that led to Ms. Henderson’s injury. The hospital didn’t necessarily have to cut down the trees, the Court said, but it could have at least instituted a regular clean-up program to stay on top of the sweet-gum ball problem

Sweetgum's aborted seeds are rich in shikimic acid.Henderson v. St. Francis Community Hospital, 303 S.C. 177, 399 S.E.2d 767 (Sup.Ct. S.C. 1990). Ms. Henderson visited a friend who was a patient at St. Francis Hospital. As she was walking in the hospital parking lot to her car, she stepped on an accumulation of sweet gum balls, turned her foot and fell, breaking her wrist. The balls had fallen from a sweet gum tree planted in the parking lot. She fractured her wrist and sustained various bruises and abrasions.

The original parking lot of St. Francis was designed by CRS Sirrine, Inc. in 1969. The sweet gum trees were planted soon after that. In about 1982, Snoddy & McCulloch Associates, Inc. designed an addition to the parking lot, which had several levels or tiers. Snoddy & McCulloch recommended that the sweet gum trees be removed because they produced debris that would accumulate and become a nuisance. St. Francis refused to remove the trees, instead building a stairway next to one of them.

Sweetgum tree ... star of Fancher v. Fagella, making an encore appearance here.

   The sweetgum tree … star of Fancher v. Fagellamakes an encore appearance in the St. Francis parking lot.

Henderson sued St. Francis, Sirrine and Snoddy & McCulloch, alleging negligent maintenance and negligent design of the parking lot. The jury returned a verdict against St. Francis and Sirrine, but the trial court reversed the jury, entering judgment n.o.v. in favor of the the defendants. The Court of Appeals affirmed, and Ms. Henderson took the matter to the South Carolina Supreme Court.

Held: The Court reversed the judgment. It held that the Hospital was negligent, but not the parking lot designer or the landscape architects. The Court held that the evidence supported finding that the Hospital had been advised to remove sweet gum trees because the trees produced debris which created nuisance and maintenance problem. It didn’t, and thus was negligent in failing to provide reasonably safe conditions for its visitors and patients by not removing the trees or employing an adequate maintenance program. The Court said that although the operator of a parking lot is not an insurer of the safety of those who use it, it must nevertheless use reasonable care to keep the premises used by invitees in reasonably safe condition.

The idea is hardly novel – the New York court said it over a century ago in Gibson v. Denton – if you’re aware of the risk, you had better do something about it. Here, the Hospital had been warned that the trees required removal or regular care. Neither happened.

The degree of care to be exercised by a property owner must be commensurate with particular circumstances involved, including considerations like the age and capacity of the invitees who will be using the premises. For purposes of the measuring whether the Hospital discharged its duty, the “invitees” are the people who visit patients in the hospital and use the parking lot.

– Tom Root


Case of the Day – Tuesday, February 27, 2018


ralphie150930“I get slandered, libeled, I’ve heard words I never heard in the Bible …”

Oh, thank heaven for nosy, nasty neighbors. Because of them, we have a case that started out as a tree problem, and ended up as a neighbor law problem.  And a dignatory tort, to boot. Forgive us, but we love this stuff.

Matters began between neighbors Joe Bouler and Linda McKeever Bullard when she claimed that he has trespassed on her land and cut down some trees. Things devolved from there. At one point, Joe was sure Linda was taking pictures of his wife – of the horror of it all! – and he complained to the cops. For good measure, he told the officer that Linda also had an anti-9/11 sign in the window.

The sign allegedly said, “9/11 F*** You.” Pretty caustic stuff, huh?

If the report was something Joe made up in order to inflame the passions of the police officer, it fell short. It was hard for a police officer to be too fired up when he couldn’t really tell what the sign meant.

Not literally. The literal meaning of the Queen Mother word was clear enough. But not the context, a distinction that Ms. Bullard belatedly appreciated when she sued her big-mouthed neighbor for slandering her to the police by accusing her of posting such a sign.

The court was puzzled, too. Did the sign indicate that Ms. Bullard was one of those conspiracy types? Maybe she figured America deserved to suffer 9/11. But maybe she meant to flip the bird (figuratively speaking) to Osama bin Laden. If so, she would hardly be the first person to use both the term “9/11” and the f-bomb together.

Now if Joe had said he'd seen any of these signs in Linda's window, the slander per se would probably have been complete.

Now if Joe had said he’d seen any of these signs in Linda’s window, the slander per se would probably have been complete.

That was a problem, the Court said. You can’t be slandered unless you’ve been damaged. Some slander is so bad that damages are presumed. That is called “slander per se” under Georgia law (a term fairly common among the states). But slander per se must meet a strict definition, and one element is that it must be clear without resorting to extrinsic facts.

The problem, the Court said, is that the “9/11 F— you” sign wasn’t clearly pro-American, pro-Al Qaeda, pro-religious right, pro-wacko conspiracy, or pro-anything. Without more information, the sign didn’t suggest what — if anything — Ms. Bullard believed or was trying to convey. And because that information wasn’t a part of the sign she had allegedly put up, she had no case against her neighbor.

Bullard v. Bouler, 286 Ga.App. 218, 649 S.E.2d 311 (Ga.App. 2007). Linda McKeever Bullard and her neighbor, Joe Bouler, had quarreled previously in a trespass action in which she claimed Joe had caused trees to be cut down on her land. Bullard took pictures of the trees that had been cut down as evidence for the trespass suit.

SlanderShortly thereafter, a Fulton County Police officer came to her door and asked to speak to her. The officer said Bouler had complained that she was taking pictures of Bouler’s wife in the Bouler’s backyard, and that he also had said Bullard had been posting signs in her window that said, “9/11, F- – – You.” Bullard testified that the police officer reported these allegations “with a look of utter contempt.” Bullard vehemently denied she had posted such signs.

The police officer confirmed that Bouler had made the allegation about the signs, and that she had denied it. Bullard sued, alleging that Bouler’s statement damaged her by accusing her “of a debasing act that may exclude her from all of American society,” an allegation which tracked OCGA §51-5-4(a)(2).

Following discovery, the trial court granted Bouler’s motion for summary judgment. It held that the words spoken were not slanderous because they were “an expression of pure opinion, which is neither provable as true nor as false.”

Bullard appealed.

Held: The allegation Bouler made to the policeman was not slander. Bullard alleged a claim of slander or oral defamation under OCGA §51-5-4(a)(2), which defines one form of defamation as “charging a person … with being guilty of some debasing act which may exclude him from society.” For this form of defamation, damage is inferred, making this type of slander “slander per se.” In other words, malice is inferred from the character of the charge. In order to constitute slander per se, the words must be injurious on their face, extrinsic facts may not be considered, and the court may not rely on innuendo.

innuendo150930When words are defamatory per se, innuendo — which merely explains ambiguity where the precise meaning of terms used in the allegedly slanderous statement may require elucidation — is not needed. Here, the Court said, any slanderous meaning applicable to Bullard from a statement that she had posted a sign with the words “9-11 F— You” is not apparent in the plain meaning of Bouler’s statement. At most, the Court said, Bouler’s words mean that Linda Bullard was the type of person who would say to the public, “Nine-eleven, F— You.” But what the sign meant was ambiguous.

Bullard thought it meant Bouler was saying that she was the type of person who would disparage America’s loss on September 11, 2001 and that Bouler intended to inflame the police officer, a “first responder,” who might have taken offense at that thought. If that was what the words meant, Bouler’s words might very well constitute slander. But, the Court said, the words do not constitute slander per se here because what they really mean is not apparent from the plain meaning of the words.

In order to find the meaning, the viewer would have to rely on some extrinsic fact, and that takes the words out of the “slander per se” category.

– Tom Root

Case of the Day – Monday, February 26, 2018


Buttercup:        Things are seldom what they seem,
                                Skim milk masquerades as cream;
                           Highlows pass as patent leathers;
                                Jackdaws strut in peacock’s feathers.

Captain:           Very true,
                                So they do.

Things are Seldom What They Seem
(duet with Buttercup and Capt. Corcoran)
Gilbert & Sullivan, H.M.S. Pinafore

Pinafore140317So property rights are as dry as toast? Well, maybe, depending on whether it’s your ox that’s getting gored. Consider Marvin Brandt. This hard-working son of a hard-working lumberman is a Wyoming rancher. His father, who started in the 1930s as a lowly sawmill worker, ended up owning the place. Marvin worked at his Dad’s mill as a youth, and he ended up running the mill himself.

The year of our Lord 1976 was an important year. It was the America’s Bicentennial. Marvin bought the sawmill from his father. Congress repealed the General Railroad Right-of-Way Act of 1875. And Marvin bought a nice chunk of land for his sawmill – not to mention plenty of standing timber – from the U.S. Forest Service. He obtained it through a procedure known as a land patent, in which the Government deeds its rights in land to private property holders.

It was a pretty good deal, sold to Marvin without many restrictions. There was an easement for the Laramie, Hahn’s Peak and Pacific Railroad, but that wasn’t much of a problem for him. Easements weren’t such an impediment, he thought. But then, things are seldom what they seem…

Buttercup:    Black sheep dwell in every fold;
                        All that glitters is not gold;
                     Storks turn out to be but logs;
                        Bulls are but inflated frogs.

Captain:     So they be,

The Union Pacific had tracks running through the property that Marvin bought. He wasn’t alone in this: some 30 other people bought Government land subject to the UP’s railroad right-of-way. The right of way originally was obtained by LHP&P in 1908, pursuant to the 1875 Act. The 200-foot wide right of way meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border.

An abandoned rail line, much favored for conversion to bike and hiking trials. Justice Sotomayor darkly predicted in her dissent that the Brandt decision would wreak havoc on the rails-to-trails movement and cost millions in litigation.

An abandoned rail line, much favored for conversion to bike and hiking trials. Justice Sotomayor darkly predicted in her dissent that the Brandt decision would wreak havoc on the rails-to-trails movement and cost millions in litigation.

After the railroad line was abandoned, the Government claimed that the land underlying the old track bed had reverted to Uncle Sam. The Washington bureaucrats had plans to turn the route into a hiking trail. When the Government sued to quiet title on the right-of-way, it named all 31 landowners as defendants. None of them owned more than 3 acres affected by the right-of-way, and none of them mounted a defense. They all threw up their hands, folded quietly, and let the U.S. of A. have its way.

Except Marvin.

Marvin may be one of your rugged Wyoming individualists. He may be ornery. But one thing was for sure – unlike the others, Marvin had over 85 acres affected by the old roadbed. Nearly a half-mile stretch of the right of way crossed Marvin’s land, covering ten acres of his parcel and affected 75 more. In other words, this wasn’t chump change.

The Government, as administrations of either political party are wont to do, tried to steamroll Marvin. The Feds claimed that the LHP&P had owned the land under its rails, subject only to a reversionary interest in the Government if it ever abandoned the line. Therefore, Uncle Sam claimed, when the tracks came out, ownership of the property reverted to the U.S. Forest Service.

The District Court agreed that the 1875 Act and the land patent were not models of clarity, but the Government won anyway. The Court of Appeals reversed. The Government, seeing its Golden Goose about to be slaughtered, appealed to the Supreme Court.

The Supremes, by a resounding 8-1 decision, held that “things are seldom what they seem.” The right-of-way granted to the railroad might seem like a transfer of the land in fee simple, subject only to being returned to the Government if the rail line was abandoned. But it really was only an easement, meaning that the land patent to Marvin had transferred all of the ownership to him, subject only to the easement. When the easement vanished, the land was all his.

Marvin stood to lose a big chunk of land to the Government.

Marvin stood to lose a big chunk of land – a 200′ wide strip along the north-south road on the west side of his property – to the Government.

The Government’s insurmountable hurdle was its own cuteness. Back in the 1920s, the railroad had planned to drill for oil along the right-of-way (remember Teapot Dome?). The Government had opposed it, claiming that it owned the oil. The railroad, Uncle Sam claimed, only owned an easement. The land (and the wealth under it) belonged to the Feds. The case ended up in the Supreme Court, where the Government won.

But now, the Government argued that things aren’t what they seem to be, and – for that matter – what they seemed to be back in 1942. The Forest Service never owned the land under the railroad when it gave Marvin the land patent. Instead, the railroad did, and the Government didn’t get it back until well after it had sold the rest to Marvin. The 1942 decision must be wrong, to the extent it applied to anything other than oil rights. Thus, the railroad right-of-way reverted to the U.S. Forest Service in 1988, 12 years after the rest of the land was sold to Marvin.

The Supreme Court was not amused. Applying the ancient legal principle that “you dance with the one that brung ya,” the Justices ruled that the Government persuaded the Court in 1942 that the railroad right-of-way was just an easement, and it wasn’t going let the Government change its position now just because it suited it to do so. Alas, the Justice Department (and this is a fault that has belonged to predecessor administrations, Republican or Democrat) all too often has no compunction about changing its arguments for convenience when it should adhere to them for principle. This time, it didn’t work.

Only Justice Sonia Sotomayor dissented, in an opinion that seemed peculiarly strained. Anxious to serve the back-to-nature folks who enjoyed Federally-funded hiking and biking trails, she argued that the 1942 case was only about subsurface rights – which seems to us to be a distinction without a difference – and, anyway, the Brandt decision would hurt the rails-to-trails movement and result in a lot of litigation as private landholders sought to get what was rightfully theirs. This may be so, but cost and inconvenience shouldn’t drive Supreme Court opinions. The law should.

So the right-of-way that the Government once said was an easement but now seemed be something else, really was just an easement … as it had been all along.

Buttercup:    Drops the wind and stops the mill;
                        Turbot is ambitious brill;
                    Gild the farthing if you will,
                        Yet it is a farthing still.

Captain:     Yes, I know.
                        That is so.

Marvin M. Brandt Revocable Trust v. United States
, ___ U.S. ___, 134 S.Ct. 48, 186 L.Ed.2d 962 (2014): The General Railroad Right-of-Way Act of 1875 provides railroad companies “right[s] of way through the public lands of the United States,” 43 U.S.C. § 934. One such right of way, created in 1908, crosses land that the Government conveyed to the Brandt family in a 1976 land patent. That patent stated that the land was granted subject to the right of way, but it did not specify what would occur if the railroad relinquished those rights.

Little Buttercup was right - things are seldom what they seem ...

Little Buttercup was right – things are seldom what they seem …

A successor railroad abandoned the right of way with federal approval. The Government sought a declaration of abandonment and an order quieting its title to the abandoned right of way, including the stretch across the Brandt patent. Brandt argued that the right of way was a mere easement that was extinguished upon abandonment.

The district court quieted title in the government. The Tenth Circuit affirmed.

The Supreme Court reversed.

It held that right of way was an easement that was terminated by abandonment, leaving Brandt’s land unburdened. The Court noted that in the 1942 Supreme Court decision in Great Northern R. Co. v. United States,  the Government had argued a position – that the right-of-way was an easement, not a grant of ownership in fee simple subject to a reversionary interest – which was exactly opposite to its position in this case. In Great Northern R. Co. v. United States, the Court found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest.

Thingsareseldom140317Now, the Government was asking the Court to limit Great Northern’s characterization of 1875 Act rights-of-way as easements to the question of who owns the oil and minerals beneath a right of way. But nothing in the 1875 Act’s text supports that reading, and the Government’s argument directly contravenes the very premise of Great Northern: that the 1875 Act granted a fundamentally different interest than did its predecessor statutes. Nor do the Court’s decisions in other cases support the Government’s position, and – to the extent that they could be read that way – the Court said clearly that any such implication did not survive its unequivocal statement to the contrary in Great Northern. Later enacted statutes, such 43 U.S.C. §§ 912 and 940, and 16 U.S.C. § 1248(c), do not define or shed light on the nature of the interest Congress granted to railroads in their rights-of-way in 1875. Instead, those statutes purport only to dispose of interests the United States already possesses.

The land patent Marvin Brandt obtained in 1976 included ownership of the land under the railroad company easement. When that easement was abandoned, Mr. Brandt obtained the exclusive right of possession to the land he already owned.

– Tom Root

Case of the Day – Friday, February 23, 2018


grasshopper140314Perhaps the problem with America these days is that too many people want something for nothing. President Trump wants respect. Nancy Pelosi wants the half of Americans who pay nothing in federal income tax to get even more. And we all want the people we disagree with – and face it, they’re all wrong – to shut the hell up.

Here’s a Vermont case about someone else who wanted something for nothing, a modern take on the grasshopper and the ant. About 50 years ago, the brothers Stanley partnered up to buy some woodland. But only industrious brother George, a busy little worker ant, ponied up the cash for the place, paid the taxes, paid the rent, and managed the affairs of the woodland. Grasshopper John was too busy doing whatever grasshoppers do.

After about 45 years of this, ant George started getting tired of grasshopper John never paying his fair share. Ant George was out a lot of investment, and he decided it was time to pay it back. So he sold the timber on the land for about $46,000.

Suddenly, grasshopper John was very interested in the goings-on, and he sued ant George. But he didn’t just want half of the proceeds. Surely that would be unfair. Instead grasshopper John hires three wise old owls as expert witnesses, and they opine that the timber was really worth anywhere from $60,000 to $80,000. Plus, he retained the services of a foxy old lawyer, who told him he could get treble damages for ant George’s wrongful cutting of the timber (plus a legal fee for the fox).

foxylawyer140314The trial court suspected that John was more snake than grasshopper, but it nevertheless didn’t have much choice but award him half the value of the timber. The court selected the lowest of the various estimates given by the several owls who testified as experts, still awarding the grasshopper one half of the $61,785 value of the timber. The court refused treble damages.

The grasshopper was furious! He had been denied what was fair, namely all of it! He wanted the timber valued at $80,000, with his one-half share trebled to $120,000. Fortunately, the wise Supreme Court upheld the trial court, finding that treble damages for wrongful cutting don’t apply where one owner of the land — even if he’s an industrious ant — gives permission. Still, the ant lost $31,000 of his $46,000 to his brother, the grasshopper, whose investment had never amounted to a farthing.

grasshopperb140314The moral, boys and girls, is that a slothful existence and a good lawyer beats hard work and careful investment any day.

Stanley v. Stanley, 928 A.2d 1194 (Sup.Ct. Vt., 2007). Some 50 years ago, brothers John and George Stanley bought a perpetual lease of a 100 acre wooded lot in Victory, Vermont. Defendant George paid the entire purchase price, but the brothers owned the lot as tenants-in-common. From the beginning of their ownership, George paid the annual rent as well as property taxes when they were assessed.

In 1965, he received money from Portland Pipe Company for the right to lay pipe across the property. In the spring of 2002, he hired a logging contractor to harvest and sell the trees from the lot. The logging operations were completed that summer. George didn’t discuss the logging operation with plaintiff John until after it was completed. George figured that “since he had been paying all the expenses relating to the property, he should be able to make the decisions relating to the land.” George got $45,803.32 for the timber removed from the lot. When John learned that timber was being cut, he took pictures of the operation and tried to reach George — who had neither an iPhone nor broadband — without success.

John didn’t try to stop the logging, but after it was over, he sued his brother, seeking an accounting, partition, treble damages under 13 V.S.A. §3606, costs of the action and attorney’s fees. While he couldn’t afford to share the expense of the land with his brother, John apparently found his checkbook when it came time to hire expert witnesses. He presented testimony from three experts on the value of the timber cut. Thomas Hahn, a private consulting forester, presented two different methods of determining the value of the timber cut from the property, the prevailing market price of a unit of wood in the summer of 2002 based on trade publications (using which he concluded that the value of the timber was $61,785.79), and the “timber cruising” or “sampling” method that would support a finding that the fair market value of the timber was $82,000. Stanley Robinson reviewed the logging contractor’s summary of mill slips and trip tickets, and Alan Bouthelier on his observations from visiting the property prior to the logging. The testimony of these two experts supported a finding that the fair market value of the timber cut was approximately $80,000.

woodpile140314The trial court refused to rely on Hahn’s “sampling” method, dismissing it as too speculative. Instead, it found that the fair market value of the timber cut was $61,785.79, and that plaintiff was entitled to half of this amount. It also ruled that the treble damage statute does not apply to actions between tenants-in-common for the sale of common property, and granted a request for partition. Following the hearing, George gave John $22,901.66, half of what he had been paid for the timber.

None of this was good enough for the rapacious John. So he appealed.

Held: The trial court was affirmed. The Supreme Court held that Vermont’s timber trespass statute — which reads in part that if a person cuts down trees belonging to another person “without leave from the owner,” the injured party can recover treble damages — is plain and unambiguous. The Court said that the statute’s language presupposed that the injured party had ownership rights to the exclusion of the party from whom treble damages are being sought.

The statute is a punitive one, intending to deter intentional trespass and wrongful taking of another’s timber. Because George had an undivided ownership interest in the trees at the time of the logging, the treble damages statute simply does not apply. He simply was not among the intended targets of the statute, those “‘tree pirates’ and ‘arboreal rustlers’ who trespass on another’s property and remove timber to which they have no right.”

John also argued that the trial court erred when it held that the “timber cruising” or “sampling” method of determining the quality and quantity was too speculative. The Supreme Court held that because the trial court, after evaluating several different methods, relied on testimony of the expert as to one of the methods to determine the fair market value of the timber cut and sold, the Supreme Court would not second-guess it on whether it could have used an alternative method.

– Tom Root

Case of the Day – Thursday, February 22, 2018


Regular readers of know that many benefits usually flow to Harry and Harriet Homeowner from hiring an independent contractor to remove a tree. Primary among those advantages is that if (or maybe “when”) things go south on you – such as the tree falls on somebody’s house or a tree service employee takes a header from 100 feet up – you, the homeowner, aren’t liable.

Alas, this isn’t always true. If Harry and Harriet have superior knowledge of the particular latent danger which causes an injury to the contractor, they may be liable. Likewise, if Harry can’t keep his nose out of things, and starts participating in the tree removal, he may be liable for injuries resulting from injecting himself into the contractor’s work. Generally (and reasonably), however, the law protects people who hire the experts and then leave them alone to do their jobs.

So what was Tony Cox’s problem? First, he was a tightwad, not wanting to drop a grand on removing a hazardous tree. So instead hiring the experts, he decided to cut it down himself. After all, he had a saw and gravity to assist him. What could go wrong?

Then, there was Tony’s acrophobia. To solve this problem, he recruited his neighbor Dick Strayer. Dick wasn’t afraid of heights. He climbed radio towers for a living (usually using a safety rig that attached to the towers). Plus, he cut down trees on the side.

Hey, Dick, Oscar Wilde (or maybe Clare Booth Luce, who knows for sure?) said no good deed goes unpunished. What do you suppose he meant by that?

Dick and Tony began cutting. Dick was in the tree, because Tony, as we mentioned, was afraid of heights. Dick was sawing away on a limb when something happened. No one really saw the accident, but everyone saw Dick, as well as the decayed limb he had been sawing, on the ground.

Of course, a lawsuit ensued, because otherwise we would not be writing about this tragedy-in-a-teapot to begin with. Dick claimed Tony was liable for his injuries because Tony did not tell him the limb was rotten, and Tony was actively participating in the tree-removal job. Lucky for Tony, the court was convinced that Dick’s tree experience and his position astraddle the rotten branch made the hazard open and obvious to Dick. What’s more, the court held, Tony did not owe Dick any duty under the participation exception to a property owner’s general lack of duty to an independent contractor, because while Tony was on the crew, he did not “actively participate” by directing the activity that resulted in Dick’s injury.

Strayer v. Cox, 38 N.E.3d 1162 (Ct.App. Miami Co., 2015). Richard Strayer was injured while attempting to cut down a tree located on the property owned by his neighbor, Anthony Cox. Dick Strayer had some qualifications for the job: he been involved in various types of residential and commercial construction, and had been employed climbing cell phone towers. Prior to the accident, he had climbed trees 20 to 25 times to cut them down.

At some point, Tony decided that he wanted to remove a 25’ tall tree in his front yard. Tony presumed it was dead, and he balked at the $1,000 estimate from tree services to remove the tree. So he told Dick he wanted to take the tree down, and asked Dick to help because he was afraid of heights.

Dick first inspected the tree, and thought it looked “okay,” although he later admitted no one short of a tree expert could have told that any of the branches were rotting, and Tony would have had no way to determine if there was rotting or damage to any of the limbs.

At one point, Dick’s feet were on the base of the tree (where a branch met the trunk), and he was standing in the middle of a series of big limbs about 12 feet up. Dick began cutting a branch with his chainsaw. The next thing he knew, he had fallen to the ground, riding the rotted-out branch all the way down. As a result of the fall, Dick hurt his left ankle, which required surgery.

Dick sued, but the trial court granted summary judgment for Tony and his insurance carrier. Dick appealed.

Held: Dick’s lawsuit was thrown out. The appellate court ruled that  the trial court did not err in rendering summary judgment in Tony’s favor. The court held that the undisputed facts showed Tony had no duty to protect Dick from an open and obvious hazard on Tony’s property. Furthermore, Tony did not owe Dick any duty under an exception to a property owner’s general lack of duty to an employee of an independent contractor. Tony did not “actively participate” as required for application of this exception by directing the activity that resulted in Dick’s injury, by giving or denying permission for the critical acts that led to Dick’s injury, or by exercising sole exclusive control over a critical variable in the working environment.

The Court said, “It is fundamental that in order to establish a cause of action for negligence the plaintiff must show the existence of a duty, a breach of that duty, and an injury proximately resulting therefrom. The status of the person who enters upon the land of another ( i.e., trespasser, licensee, or invitee) defines the scope of the legal duty that the landowner owes the entrant.” Here, Dick was an invitee, someone who rightfully came onto Tony’s property by invitation, express or implied, for a purpose beneficial to Tony, to wit, the removal of the tree.

An owner owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that invitees are not unnecessarily and unreasonably exposed to danger. However, the Court observed, the owner does not act as an insurer of an invitee’s safety and owes no duty to protect invitees from open and obvious dangers on the property. Open and obvious hazards are those hazards that are neither hidden nor concealed from view and are discoverable by ordinary inspection. The question is always whether an invitee exercising ordinary care under the circumstances would have seen and been able to guard himself against the condition.

“Liability only attaches when an owner has ‘superior knowledge of the particular danger which caused the injury’,” the Court wrote, “as an ‘invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate’. The open and obvious doctrine is determinative of the threshold issue, the landowner’s duty. In the absence of duty, there is no negligence to compare.”

Dick was barred from recovery because the deteriorating tree was an open and obvious hazard that he freely ascended. He was in a better position to assess the safety of standing on the branch. Naturally, the Court held, Tony had no duty to warn Dick about dangers of which Tony was unaware, such as that the limb Dick was cutting was deteriorating from the inside, decay that was not observable from the outside. In addition, the court observed that Dick had significant experience with cutting trees and that the risk of encountering deteriorating branches was open and obvious.

Dick also argued that Tony should have contacted a certified arborist prior to removal to conduct a risk assessment of the tree. He claimed Tony’s failure to have a risk assessment conducted violated American National Standards Institute (ANSI) sections Z133 and A300, part 1 and 9, which require that any tree being worked on “undergo a tree risk assessment for tree worker safety.” But the court ruled that homeowners like Tony are not subject to the requirements of ANSI, even if the standards were not voluntary to begin with (which they are).

Even if the ANSI standards were somehow to apply to a Harry-Homeowner-tree-removal job, the court ruled, “Ohio courts have held that summary judgment may be granted in cases where building code violations are open and obvious ‘because the open-and-obvious nature of the defect obviates the premises owner’s duty to warn.” The hazard of climbing on the tree limb in a tree with dead branches was open and obvious.

Finally, Tony’s participation on the job did not make him liable to Dick. One who engages the services of an independent contractor, and who actually participates in the job operation performed by such contractor and thereby fails to eliminate a hazard which he, in the exercise of ordinary care, could have eliminated, can be held responsible for the injury or death of an employee of the independent contractor. Here, testimony of the parties indicated that if anyone directed the activities that day, it would have been Dick, who was the individual experienced in cutting down trees and using chain saws. The record was devoid of any indication that Tony directed Dick to do anything on the day of the accident, or even that Tony had any prior experience with chain saws or with cutting down trees.

Dick “directed the activity which resulted in the injury or gave or denied permission for the critical acts that led to the… injury.” The cause of Dick’s injury, in his own words, was that the limb on which he stood fell, taking him down with it, because the limb “was rotted.” Tony had no role in the injury, and thus no liability.

– Tom Root


Case of the Day – February 21, 2018


odd150925What is it with some neighbors? These folks — an “odd couple” of neighbors if ever there were such — lived next to each other in a pretty good Iowa City neighborhood for over 20 years. And they were always at each other’s throats.

Ironically, it was the Felix Ungar neighbors who were the victims. Apparently the Oscar Madisons were unhappy with two trees that stood entirely in the Felix property, but had branches overhanging the Oscars. So what, you wonder, and for good reason. The Oscar property was such a mess that a couple leaves and twigs hardly mattered. However, all of you loyal readers know the answer: under the Massachusetts rule, the Oscars can trim the trees’ branches back to their property line. In fact, borrowing from Virginia and Hawaii, maybe the Oscars could sue the Felixes, alleging that the trees were a nuisance.

Nothing that subtle for our heroes. Instead, the Oscars came onto the Felix property and simply cut the trees down. There. That settled that!

Well, not really.

The Felixes sued. The trial court was clearly appalled at the brazenness of the Oscars. It observed with some amazement that in order to cut down the trees, the Oscars “had to intentionally trespass on [Felixes’] property to cut down the trees and that is exactly what they did.”

The Court rendered its opinion accordingly. What the Oscars did was a trespass, pure and simple, and the damages in a trespass are the costs to restore the property. Those costs were the cost to replant trees about as mature as the two 50-foot tall trees that were removed. On top of that, the Court imposed treble damages under Iowa Statute 658.4 for “willfully injuring any timber, tree, or shrub on the land of another.” The Court held it applied because the Oscars “willfully trespassed” in order to cut down the trees.

They're after your trees ...

They’re after your trees …

We don’t want to be critical, because the Oscars clearly were bad actors here and deserved what befell them. However, courts need to be careful not to get out in front of their statutes. The trial court, in its ire, focused on the wrong “willfully.” Treble damages applied when the Oscars “willfully injured” the trees, not when they “willfully” trespassed. Under the court’s mangled standard, the treble damage statute would have applied if the Oscars willfully sneaked onto the Felixes’ property to smash a jack-o-lantern, but accidentally trampled on Mrs. Felix’s prize rose bushes in their haste to run home. It’s not the willful trespass, it’s the willful chainsaw that matters.

Luckily for the Felixes, the error made no difference. Any way you apply the “willfully” here, the Oscars are liable. They willfully trespassed, willfully fired up their chainsaws, and willfully undertook arboreal mayhem. Game, set, match.

Wunder v Jorgensen, Not Reported in N.W.2d, 2004 WL 3569694 (Iowa Dist., 2004) (unpublished). The Wunders and the Jorgensens lived next to each other in a wooded neighborhood on Iowa City’s west side for over 20 years. During this period, their relationship was acrimonious, with the Wunders continually upset about the debris, both natural and manufactured, which the Jorgensens allowed to build up on or over their common boundary. Among other complaints, the Wunders complained that the Jorgensens erected a lean-to next to an outbuilding, essentially on the property line, which the Jorgensens used to keep garden tools.

pos150925Two trees stood on the Wunders’ property, scotch pines or Canadian hemlocks, with branches that extended over the Jorgensen property. The Jorgensens knew the trees were on Wunders’ lot because they had built the lean-to roof around one of the trees. The trees disappeared one day, setting the Wunders to wondering. Suspecting the Jorgensens, the Wunders sued. And small wonder.

Held: The Jorgensens were liable. The Court found that the Jorgensens had knowingly and willfully cut down two mature trees which they knew to be on Wunders’ property. The Court found the conduct to be inexcusable, noting that the “Jorgensens had to intentionally trespass on Wunders’ property to cut down the trees and that is exactly what they did.”

The Court found that the replacement cost for the trees was $4,061.40. The measure of damages for trespass is replacement cost, and treble damages — awarded if trees are willfully cut down on another’s property — apply in this case, the Court said, because, Jorgensen willfully trespassed on Wunders’ property to cut down the Wunders’ trees.

The Court threw in an observation for the Jorgensens: if trees are replanted, the Jorgensens ought to be informed that the general rule is that an adjoining landowner may cut off growth which intrudes on his or her property … but not more.

– Tom RootTNLBGray