Case of the Day – Wednesday, April 6, 2022

COULDA, SHOULDA, WOULDA

Trials are much more of an art than a science. Trial attorneys walk a fine line between not putting enough evidence on to support their case and dumping so much data into the record that the factfinder cannot dig its way out of the pit of minutiae to reach the right conclusion. I once had an old law professor who cautioned us not to tell him more about the elephant than he ever wanted to know. It’s sort of like that.

Still, the sense that you should never leave any fish in the pond when you’re done angling is not the worst instinct to act upon.

Take the Wolfenbargers, people who probably should have read their property deed a little more carefully when they bought their property next to the Woods’ place. If they had, they probably would not have mistakenly thought they owned the common driveway and thus could cut down the six Eastern Red Cedars that flanked the gravel strip. It’s a bad idea to cut down the neighbors’ trees, even when you think they’re yours. It’s a worse idea to try to defend a tree case against plaintiffs whose surname is “Wood.”

But it’s a worse idea still for your lawyer to figure he or she can rely on rapier-like cross-examination of the plaintiffs’ experts to make your valuation case. The Wolfenbargers’ mouthpiece may have saved them a few bucks on an expert, but he was “pennywise and pound foolish,” as they say. An old lawyer would have told him that “hope is not a strategy.” Neither is complaining to the court that the plaintiffs did not make the kind of damages showing you think they should have. You want a damages showing you can argue to the judge or jury? If so, you had better put the evidence on yourself.

The Wolfenbargers coulda, shoulda, woulda put some diminution of value evidence on, expert testimony that showed the Woods’ place did not lose a third of its value because six lousy trees were cut down. But they didn’t…

Wood v. Wolfenbarger, Case No. E2011-01953-COA-R3-CV (Ct.App. Tenn. Aug. 15, 2012), 2012 Tenn. App. LEXIS 563, 2012 WL 3329525. The Woods owned property next to that of the Wolfenbargers. The two parcels share a gravel road, which the Wolfenbargers mistakenly believed they owned. They did not.

In spring 2009, the Wolfenbargers cut down trees on both sides of the road. The trees, Eastern Red Cedars, belonged to the Woods, and were healthy mature trees when they were cut down. The Woods sued.

The only issue to be decided at trial was the amount of damages. The Woods offered testimony of Jim Cortese, a certified master arborist. He testified that there were varying approaches to figuring the value of the trees. First is the cost approach. One subset of the cost approach is repair cost, which measures the cost to repair broken branches and other less-than-fatal damage to the tree. There is also replacement cost, a method used when the trees are a total loss, but are of the size that can be replaced with the same species of roughly the same size and quality.

Then there is the “trunk formula method.” Jim testified that the trunk formula method is to be used when the is tree is too large to be replaced. The value calculated in that method is the cost of replacing the tree with the largest locally available plant, and then adjusting for the size difference, species classification, condition classification, and location classification of the appraised tree.

Jim also described a timber value method, to be used for trees grown as commercial lumber, employed to determine value for a stand of timber in a woodland setting where the trees are of sufficient size and character to be harvested. Here, Jim said, the timber value was not the appropriate method for determining the value of the Woods’ trees. He explained: “It was my opinion that there were  not enough trees to justify a timber sale. It was – the trees were not really – they just wouldn’t be suitable for a timber sale.” He also explained that “a timber sale is always between a willing buyer and a willing seller. It is not a forced upon somebody valuation that they have to accept what the value of the trees are.”

Jim calculated that if the timber value of the trees was considered, it would be just $840.00. However, he opined that the timber value should not be used here, because this was no commercial timber stand. Instead, Jim testified that the replacement cost method should be used to value the six trees cut in this case. testified that he has successfully transplanted trees as large as the ones at issue in this case. He figured the replacement cost for the trees at $161,300.

He also used the trunk formula method to value the damages. He testified in detail about this method, and  valued the first tree at $14,700; the second at $5,400; the third at $19,000; the fourth at $10,600; the fifth at $5,800; and the sixth at $6,600, for total damages of $62,100.

The trial court said that because the Woods had not offered any evidence of the value of their land or how the aesthetics of the property had been damaged, it would not entertain any damages other than the timber value of the cut trees, citing Tenn. Code Ann. § 43-28-312. Because the cutting was negligent, the trial court said, the statute authorized doubling the damages. The trial judge awarded the Woods  $1,680.00.

The Woods appealed.

Held: The statute did not limit the Woods to the mere value of the wood. Instead, they were entitled to damages calculated by the trunk formula method, raising their take to $62,100.

The Wolfenbargers argued that because no evidence of diminution of value was presented, the timber value was the only appropriate measure of damages under Tenn. Code Ann. § 43-28-312. The Woods responded that they had presented three estimates of damages, and if the Wolfenbargers wanted the trial court to apply a different measure of damages than the Woods’ showing, they should have put on their own evidence. The Court of Appeals agreed. “Plaintiffs presented no evidence with regard to diminution of value. Neither, however, did Defendants. Neither the Trial Court nor this Court may award damages based upon a measure of damages when there is no evidence in the record regarding that measure of damages.”

The Court said, however, that the statute “clearly and unambiguously provided that ‘nothing in this section precludes an owner of property on which timber has been cut by another from recovering damages for loss of value other than commercial timber value, if any, of the timber negligently or intentionally cut’.” Thus, the Woods were free to produce evidence of the measure of damages other than the timber value, which is what they did.

The Court of Appeals found that using timber value was inappropriate, observing that Jim Cortese specifically testified that timber value should not be used. No evidence the record rebutted this testimony, the Court said, and the trial judge found Jim to be a credible witness. On the other hand, the Court of Appeals rejected the Woods’ contention that replacement cost should be used, noting that the Woods had bought their place in 2006 for $185,000. It was “unreasonable to argue that the proper measure of damages for the wrongful cutting of these six trees is the replacement value of $161,300,” the Court said, which was “an amount almost equal to the price… paid for the entire 38 acres only a couple of years earlier.”

However, the Court ruled, the Woods’ trunk formula evidence did make sense. The evidence showed that the six lost trees were too large to be replaced for a reasonable cost. Jim’s trunk formula method provided a value for each tree, evidence which the Wolfenbargers did not challenge. “Given all this,” the Court said, “we find and hold that Plaintiffs proved that the trunk formula method was the appropriate method of valuing the damages in this case. We note that Tenn. Code Ann. § 43-28-312 provides for doubling or tripling, when appropriate, only of the current market value of the timber. As Plaintiffs are not awarded the current market value of the timber, they are not entitled to an award of double the amount of their damages. We modify the Trial Court’s judgment to award damages to Plaintiffs in the amount of $62,100…”

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, April 5, 2022

CORNER WITH A VIEW

We’re watching the spring wheat green up along country roads. It’s still doggone cold – we had snow on the ground last weekend – but it is spring. It won’t be long until everything is growing, including at Ohio agricultural affliction, “corn to the corners.”

Corn to the corners – and no clear sightline.

We saw a great example of it at a crossroads last fall, the practice of planting right up to the edge of a field. We can hardly blame the farmer, who has to maximize the land’s yield in order to stay in business (and to cover the payments on a $200,000 tractor). But corn to the corners – like planting trees and shrubs near the road – can play havoc with sightlines and can pose a real hazard to motorists.

When an accident does happen, lawyers scramble to find as many defendants as possible, because usually, each defendant comes with his or her own insurance policy. As one old lawyer we practiced across from years ago like to say, you have to “get the money flowing.” Nothing makes it flow like a whole passel of deep-pocket insurance companies lined up on the defendants’ side of the room.

But what duty does a landowner have to people traveling by? After Margaret Sheley was killed when her automobile collided with Kimberly Cross’s vehicle at an intersection, her family decided to test those limits. They sued Cross, the County and Buryl and Hazel Grossman, who owned the land by the intersection. The Sheley family argued the Grossmans negligently planted crops on their land such that a motorist’s view of oncoming traffic at this intersection was impaired. The trial court held for the Grossmans, finding they owed no duty to Margaret Sheley.

The Court of Appeals agreed, drawing a distinction between a landowner who creates hazardous conditions on the roadway, as opposed to conditions – hazardous or not – wholly contained on the landowners’ property. Like corn to the corners, or perhaps big, bushy trees.

sightline140613Sheley v. Cross, 680 N.E.2d 10 (Indiana Ct. of Appeals, 1997). On October 15, 1992, Margaret Sheley was killed when her car ran into Kimberly Cross’s vehicle at an intersection. Margaret’s survivors sued Kimberly Cross, the County, and Buryl and Hazel Grossman, the farmer who owned the land next to the intersection. The Sheley family argued that Grossmans, as owners of the land next to the intersection, negligently planted crops on their land such that a motorist’s view of oncoming traffic was impaired. The trial court granted summary judgment in favor of the Grossmans, finding that they owed no duty to Margaret. The family appealed.

Held: The Grossmans owed no duty to Margaret Sheley. Admittedly, the planting of vegetation is considered to create an artificial condition, not a natural one. A “natural” condition is limited to land unchanged by humans. The difference is significant since there are differing duties for natural versus artificial conditions.

Nevertheless, to recover under a theory of negligence, a plaintiff must first establish that the defendant had a duty to conform his or her conduct to a standard of care arising from a relationship with the plaintiff. Absent a duty, there can be no breach and, therefore, no recovery in negligence

care161129The Court said that an occupier of land abutting on or adjacent to a public highway owes a duty to the traveling public to exercise reasonable care to prevent injury to travelers from any unreasonable risks created by such occupier. The landowner has no right to use the property to interrupt or interfere with the exercise of the traveling public’s right by creating or maintaining a condition that is unnecessarily dangerous.

The issue, the Court said, is whether the scope of this duty extends to refraining from creating conditions wholly on a landowner’s property which may impair a traveler’s vision of oncoming traffic at an intersection. The Court ruled that the landowner does, but “that duty is limited to refraining from creating hazardous conditions that visit themselves upon the roadway. Where an activity is wholly contained on a landowner’s property, there is no duty to the traveling public.”

The corn may have extended to the corners, but those corners remained on the Grossmans’ property. Thus, the Sheley family got nothing from the Grossmans.

– Tom Root

TNLBGray140407

Case of the Day – Monday, April 4, 2022

HURTS SO BAD

In case you missed it the past two days, this is a trackhoe removing a tree.

In case you missed it the past two days, this is a trackhoe removing a tree.

Today is our last day down on Dick Lavy’s Darke County farm. As you recall, last Thursday we watched the fun ensue after Dick’s faithful employee Sylvester trimmed the trees along a fencerow that separated one of the Lavy from land belonging to his neighbor, Jim Brewer.

We were quite impressed to watch Sylvester run a trackhoe down the Lavy side of the fencerow, smacking down branches with the machine’s bucket. It was not pretty, but it got the job done effectively and cheaply.

Jim Brewer, however, wasn’t very happy with the result and sued Dick Lavy Farms. Farmer Lavy argued the Massachusetts Rule let him trim overhanging trees any way he liked, that Sylvester wasn’t negligent or reckless and that the damage – if there even was damage – didn’t amount to much. The jury thought it was arboricide and socked Farmer Lavy for $148,350.

Friday, we watched the Court of Appeals for Darke County, Ohio, fillet Dick Lavy’s argument that the Massachusetts Rule was a license to butcher. The Court affirmed a landowner’s right to trim encroaching trees and roots to the property line but held that such trimming had to be done in a reasonable manner so as not to injure the adjoining owner’s trees.

The Court compared the various means of trimming a fencerow, comparing for ease of use, custom in the area, and cost. It concluded that the trial court was right to find DLF negligent in trimming part of the fencerow and reckless in continuing after a sheriff’s deputy advised Dick Lavy to get legal advice before continuing (advice the farmer ignored).

Today, the Court delves into the $148,350 damage award. Clearly, the Court is troubled that Jim only paid $170,000 for the whole 70 acres, and provided no evidence that the value of the land fell a farthing because of Sylvester’s trimming activities. The Court felt hard-pressed to see Jim get almost $150,000 when no trees other than some saplings were destroyed.

Jim didn’t help his cause by admitting (as he had to) that he only visited the land about eight times a year to hunt and picnic, and the trimming didn’t interfere with those activities. He argued that he planned to build a house there in another 14 years or so, but the Court couldn’t see that the damaged fencerow trees had any impact on those plans.

Usually, the measure of damages for a trespass where trees are cut is the difference in the land’s value after the cutting versus before the cutting. There are times when this measure does not capture the real loss: a family loses a cherished ornamental tree, for example, or the landowner nurtures trees for their ecological value.

hurtsobad160929

That’s what Jim Brewer claimed, too…

In this case, however, it’s hard to see how Jim was hurt at all, not to mention hurt as badly as he claimed to be. Indeed, that’s how the Court of Appeals seems to read it, too. Come with us now on a detailed and thoughtful journey through all of the matters a court (and aggrieved party) should consider in setting the amount of loss. Although the Court sends the damage award back for the trial judge to deal with, it’s quite clear that the appellate panel is disinclined to turn the case into a winning lottery ticket for Jim Brewer.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016)

(These facts are repeated from the previous two days: If you don’t need the refresher, skip to the holding)

In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.

The former owner had allowed his neighbor Dick Lavy Farms to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees were ornamental or unique.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line and that such clearing was important for crop production, yield and safety of farm equipment. Using a trackhoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the track hoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch Sylvester stated that he never consciously reached over with the bucket to try and break a branch at the tree trunk that was on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County sheriff’s deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

Or, if you're Sylvester, don't use a chainsaw at all...

Or, if you’re Sylvester, don’t use a chainsaw at all…

The deputy told Brewer that Lavy said that he was allowed to take tree branches from his side and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.

Although the deputy suggested that Lavy obtain legal advice before continuing, Lavy continued clearing the fencerow. Knowing that Brewer was upset, Lavy told his employee not to clean up branches that fell on Brewer’s side.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging a violation of O.R.C. § 901.51, reckless trespass, and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

DLF argued that it had a common-law privilege to cut off, destroy, mutilate or otherwise eliminate branches from Brewer’s trees that were overhanging DLF land. The Farm also argued that if it was liable, the proper measure of damages should be the diminution of Brewer’s property value; in the alternative, the court’s holding on the issue of damages was against the manifest weight of the evidence. Finally, DLF claimed it had not negligently or recklessly trespassed on Brewer’s property.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515.

Dick Lavy Farms appealed.

(If you remember the facts from the previous two days, start here)

Held: The $148,350 in damages was set aside, because Jim Brewer’s property really didn’t diminish in value.

The Court observed that in a previous case, it had held that where the trespasser could not reasonably foresee that trees had a special purpose or value to the landowner, and where the trespasser “cuts trees that are part of a woodland mix and not unique, the ordinary measure of the harm is the difference in the fair market value before and after the cutting.” The trial court, however, had relied on a different standard:

treeworth160929

The question facing the court…

In an action for compensatory damages for cutting, destroying and damaging trees and other growth, and for related damage to the land, when the owner intends to use the property for a residence or for recreation or for both, according to his personal tastes and wishes, the owner is not limited to the diminution in value (difference in value of the whole property before and after the damage) or to the stumpage or other commercial value of the timber. He may recover as damages the costs of reasonable restoration of his property to its preexisting condition or to a condition as close as reasonably feasible, without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

At trial, Jim’s expert arborist testified that the cost of removing the trees Sylveste3r had damaged would cost $55,000, and the cost of replacing them would be $138,000, plus tax. Jim did not offer any evidence that his 70-acre property’s fair market value had fallen by so much as a penny. DLF’s arboriculture expert testified that the life expectancy and service life functionality of the fencerow were not affected by the manner in which the trees were pruned. He valued the fencerow as a woodland edge fence and argued that real estate or fair market value would be the proper way to assess damages. Another DLF expert also testified that the fair market value of Brewer’s property was the same before and after the incident.

The trial court found that the removal of the damaged trees was unnecessary, and thus discounted that $55,000 cost. In addition, the court concluded that the $138,000 estimate for tree replacement was excessive, and reduced that amount by 50%. The court also deducted 14% for ash tree disease, which had already caused the death of a number of trees on both sides of the lane. The trial court thus arrived at $59,340 in compensatory damages.

Next, the trial judge decided that DLF had negligently trimmed one-fourth of the property (or about 1,000 feet), and recklessly trimmed the remaining three-fourths of the fencerow. The trial court awarded $14,835 for negligence and $44,505 for DLF’s recklessness. Pursuant to O.R.C. § 901.51, the court trebled the recklessness amount to $133,515. This brought the total damages to $148,350.

The Court of Appeals noted Ohio’s general rule that “recoverable restoration costs are limited to the difference between the pre-injury and post-injury fair market value of the real property,” The courts have carved out an exception, however, that permits restoration costs to be recovered in excess of the decrease in fair market value when real estate is held for noncommercial use, when the owner has personal reasons for seeking restoration, and when the decrease in fair market value does not adequately compensate the owner for the harm done. This restoration cost exception has been applied, for example, where the damaged trees have been maintained for a specific, identifiable purpose (like recreation, or a sight, sound, or light barrier), when damaged trees are essential to the planned use of the property, or when the damaged trees had a value that can be calculated separately from ornamental trees have been destroyed, or where the trees form part of an ecological system of personal value to the owner.

Even where the restoration exception is applied, the Court said, “the proposed cost [cannot be] grossly disproportionate to the entire value of the injured property.”

The Court said that the damage to Jim Brewer’s trees was “temporary” (meaning, apparently, that the damaged limbs would grow back) and that the Ohio rule is that “damages for temporary injury to property cannot exceed the difference between market value immediately before and after the injury, is limited. In an action based on temporary injury to noncommercial real estate, a plaintiff need not prove diminution in the market value of the property in order to recover the reasonable costs of restoration, but either party may offer evidence of diminution of the market value of the property as a factor bearing on the reasonableness of the cost of restoration.”

The trial court seemed certain that Dick Laye was a deep pocket, and that may have driven its damage award.

The trial court seemed certain that Dick Lavy was a deep pocket, and that may have driven its damage award.

“Viewing the trial court’s award of damages from the perspective of reasonableness,” the Court of Appeals said, “we must conclude that the award for restoration was objectively unreasonable.” First, the application of O.R.C. § 901.51 “almost exclusively involves situations where trees have been completely cut down, making it considerably easier to determine the full extent of the damage to the plaintiff’s property.” Here, Jim Brewer admitted that other than a few small saplings, he was not claiming that any large trees had been removed from his land. Instead, he contended only “that 326 trees had been damaged in some manner and would ultimately die, even though pictures of the area taken in June 2014 depict a substantial canopy of foliage… Brewer also testified that a number of trees had died, but he did not give any specific number.”

The Court found that Jim Brewer’s trees were not ornamental and were not located at his residence. Instead, they were native trees that were just part of a fencerow. Jim testified he used the property for hunting only about six times a year, and for family get-togethers maybe twice a year. He also admitted that the removal of branches had not had any effect on these activities or his ability to rent tillable land to farmers. Jim intended to put a house on the property after his 4-year old child graduates from high school, but he didn’t claim that DLF’s tree trimming affected his plans to do so.

The Court found it noteworthy that Jim Brewer paid $180,000 for all 70 acres, yet claimed the restoration cost (including removal and replanting of trees) for a very small part of that property was more than $200,000.

Jim did not present any proof that the fair market value of the land had fallen because of the tree trimming. The Court agreed that he was not required to present such evidence, but said “it would have been helpful, particularly since two defense witnesses indicated that removing vegetation from the fence row did not impact the fair market value of the land.” Additionally, the Court found that much of the trial judge’s calculations “were based on speculation or were incorrect. For example, the court concluded that one-fourth of the fence row was trimmed negligently, but the plaintiff’s own evidence showed that more like 1,800 feet had been trimmed when Jim Brewer first complained. “The trial court could have chosen to disregard [the DLF employee’s] testimony,” the Court said, “but there is no logical reason to disregard the plaintiff’s own admission about how far the fence row had been cleared.”

The Court of Appeals was not inclined to see Jim Brewer get a winning lottery ticket...

The Court of Appeals was not inclined to see Jim Brewer get a winning lottery ticket…

The trial court also gave no particular reason for its 50% discount on damages. What’s more, the Court of Appeals complained, “the trees on the fence row were a woodland mix of native trees, not ornamental trees. A number of the trees were undesirable, and there was no evidence of special value. In addition, the fence row had been unmaintained for ten or twenty years. Even though these facts no longer require damages to be limited to diminution in value, they are still points that should be considered in deciding whether an award is reasonable.”

The Court of Appeals vacated the damages, and directed the trial court on remand to consider the reasonable restoration costs, taking into consideration the decrease in the fair market value of the land; the fact that the trees were a common woodland mix, not ornamental trees or trees that Jim had planted for a particular purpose; the fact that the fence row was not maintained for many years, and had undesirable and dead trees on each side of the row; the extent to which the trees have regenerated since the date of the 2013 trimming; the lack of impact on Jim’s intended home site; and the fact that Jim’s use of his property is “sporadic and is not impacted by any injury to the trees.”

The detailed list of evidence the trial court is to consider pretty much tells the trial judge how the Court of Appeals expects this to turn out.

– Tom Root

TNLBGray140407

Case of the Day – Friday, April 1, 2022

RUNNING AMOK WITH A TRACKHOE

amok160928Yesterday, we began three days down on the farm with Dick Lavy, and his faithful employee, whom we will simply refer to as Sylvester. As you recall, Farmer Lavy told Sylvester to trim the trees along a fencerow that separated one of the Lavy farms (and the opinion suggests Dick Lavy had a lot of farms) from his neighbor, Jim Brewer.

Sylvester did as he was told, but with a trackhoe instead of a chainsaw. He crawled down the Lavy side of the fencerow, smacking down branches with the trackhoe’s bucket. It was not a pretty job, but it was effective and cheap.

When Jim Brewer sued, Farmer Lavy argued the Massachusetts Rule let him trim overhanging trees any way he liked, Sylvester wasn’t negligent or reckless, and the damage – if there even was damage – didn’t amount to much. The jury mauled Farmer Lavy as badly as his man Sylvester mauled Jim Brewer’s trees, returning a verdict for Jim Brewer in the amount of $148,350.

Yesterday, we watched the Court of Appeals for Darke County, Ohio, fillet Dick Lavy’s argument that the Massachusetts Rule was a license to butcher. The Court affirmed a landowner’s right to trim encroaching trees and roots to the property line, but held that such trimming had to be done in a reasonable manner so as not to injure the adjoining owner’s trees. Today, the Court looks at whether Sylvester acted reasonably in chewing up the fencerow.

What’s interesting about the Court’s analysis is its reliance on expert testimony as to the prevailing custom for fencerow trimming in Darke County, the higher cost of using a chainsaw and bucket truck relative to trackhoes, and the dangers of alternative methods of trimming. As for recklessness, the Court was satisfied to learn that a sheriff’s deputy told Farmer Lavy that his neighbor was unhappy, but Lavy bullheadedly went forward without talking to the neighbor or at least checking with his lawyer to be sure what he was doing was legal. The lesson there is that when you’re on notice but choose to ignore it, you may be judged harshly.

After today’s installment, you’d be reasonable to think that Jim Brewer will probably collect that $148,350 in damages. Monday, we’ll finish Brewer v. Dick Lavy Farms, and you may be surprised.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016)

(These facts are repeated from yesterday: If you don’t need the refresher, skip to the holding)

In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.

The former owner had allowed his neighbor Dick Lavy Farms to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees was ornamental or unique.

trackhoeb160927

A trackhoe –  a blunt instrument for tree trimming.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line, and that such clearing was important for crop production, yield and safety for farm equipment. Using a trackhoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the track hoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch. Sylvester stated that he never consciously reached over with the bucket to try and break a branch at the tree trunk that was on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation, and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County Sheriffs Deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

The deputy told Brewer that Lavy said that he was allowed to take tree branches from his side, and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.

Although the deputy suggested that Lavy obtain legal advice before continuing, Lavy continued clearing the fencerow. Knowing that Brewer was upset, Lavy told his employee not to clean up branches that fell on Brewer’s side.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging a violation of R.C. 901.51, reckless trespass, and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

DLF argued that it had a common law privilege to cut off, destroy, mutilate or otherwise eliminate branches from Brewer’s trees that were overhanging DLF land. The Farm also argued that if it was liable, the proper measure of damages should be the diminution of Brewer’s property value; in the alternative, the court’s holding on the issue of damages was against the manifest weight of the evidence. Finally, DLF claimed it had not negligently or recklessly trespassed on Brewer’s property.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515. Dick Lavy Farms appealed.

(If you remember the facts from yesterday, start here)

Held: Yesterday, we studied the Court’s holding that exercise of the Massachusetts Rule right to trim vegetation that encroaches on an owner’s property is constrained by the requirement that the trimming be done with reasonable care so as not to damage the neighbor’s property.

Today, the Court considered whether DLF had exercised such care, and unsurprisingly found that it did not.

hierarchy160928

 The hierarchy of mens rea.

In his complaint. Brewer claimed a violation of O.R.C. § 901.51, negligent trespass, and reckless trespass. A common-law trespass to real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another, causing damage, even insignificant damage. The act of nonconsensual entry may be intentional or negligent.

The Court admitted the case was unusual, because the DLF worker did not actually trespass on Brewer’s land other than when clearing off brush that had fallen or on one occasion when he was lost control the bucket of the trackhoe. In fact, the worker said he never consciously reached over to snap off a branch at the tree trunk that was on Brewer’s property. The action of clearing debris, the Court said, would not have harmed Brewer, but would actually have benefitted him.

The Court said most instances of trespass occur when people enter onto the land of another, cut down, and remove trees. Still, trespasses can result from people setting in motion actions that intrude on another’s land and cause damage. Thus, the liability could still exist even if DLF workers never actually stepped onto Brewer’s property.

The trial court had previously concluded that DLF was negligent by failing to cut or break the trees above its own land, and that DLF breached a duty to ensure that no damage occurred on Brewer’s side of the property line. The trial court discussed two methods of trimming trees, using a track hoe to tear limbs along fences and using a bucket and chain saw, noting that “the more common but dangerous method of lifting a person” with the scoop bucket on a tractor more clearly respects the property line and causes less damage.

reckless160928To establish actionable negligence, the party seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting from the breach. To get at the duty, the trial court heard from expert witnesses about common practices in Darke County, Ohio, for cutting limbs. Brewer’s expert naturally said that the common practice is to use a chainsaw, hand saw, or pole pruner, but never a trackhoe (which would cause more damage to a tree). The expert estimated the cost of his recommended type of pruning to be about $16,000 for the length of the fence row.

The Court of Appeals concluded that few farmers could afford such an expense for pruning, a finding echoed by a number of farmers DLF called to testify. DLF’s witnesses said the custom in Darke County was to clear fences using a trackhoe or backhoe. DLF’s expert stated that he had farmed in the county for 45 years, and that the common practice for clearing fencerows for the last 15 years had been to use backhoes or trackhoes to tear limbs off overhanging trees. He also named commercial services who used this method. He said that using a bucket truck and chain saw is not common because of cost, as well as the danger it presented.

Another Darke County farmer in Darke County testified that the farmers he knows stand in a loader bucket and trim trees using a chain saw, but he admitted the method was dangerous. He admitted he knew no one who used a trackhoe for trimming.

Arcanum, a small town in Darke County, is home of the annual Tour De Donut, in which people race their bicycles from stop to stop, where they see who can eat the most donuts the quickest. You know, Darke County may have its own standard for "recklessness."

     Arcanum, a small town in Darke County, Ohio, is the original home of the annual Tour De Donut, in which people race their bicycles from stop to stop, where they see who can eat the most donuts the quickest. Although the 2017 race moved to Troy in neighboring Miami County (to accommodate the thousands of racers), the Tour helped Darke County establish its own standard for “recklessness.” (Full disclosure: We have raced this event four times… maybe we’re crazy, too).

The Court of Appeals said that in light of the record, the trial court’s conclusion DLF was negligent was not erroneous. “Farmers may face difficult choices if the available methods are either too expensive, or risk damage to surrounding property, or risk the farmer’s safety. However, the issue in this case is simply whether the method in question caused unnecessary harm to the adjoining property. In view of the evidence, we cannot conclude that the trial court erred in the standard it applied, nor can we conclude that the court’s finding of negligence was against the manifest weight of the evidence. “

Likewise, the Court denied DLF’s that the trial judge’s finding that it was reckless was against the weight of the evidence. Dick Lavy admitted that sheriff deputies told him that Brewer was unhappy with the trimming, and asked him to stop clearing the neither told tell his employee to stop clearing the line in order to give Brewer a chance to do so, nor did he contact Brewer to discuss the matter. There was no need for speed: Lavy told Deputy Nichols that he wanted to clear the fence row before spring planting, but that was two or three months away.

A person acts recklessly, the appellate court said, when with heedless indifference to the consequences, he or she disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he or she disregards a substantial and unjustifiable risk that such circumstances are likely to exist.

The Court of Appeals noted that other defendants had been found reckless where their actions, like Dick Lavy’s, continued after they learned of a dispute about the activity. The same, the Court said, was true here.

– Tom Root

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Case of the Day – Thursday, March 31, 2022

DOWN ON THE FARM

Take your masks off, people, and get back to the classroom. The pandemic’s over, so Uncle Joe has said, and it’s time America returns to normal (whatever that is).

dunce160927It’s high time Ohio takes you all to school, even if it’s only about tree law. We have some thinking people here in Ohio (we think). Just to prove the Buckeye State’s arboreal mettle, we’re going to spend the next three days talking about a single Ohio case, a lengthy decision that’s a veritable final exam in tree law.

This Ohio appellate court decision answers some tough questions, questions such as, if the Massachusetts Rule lets me trim encroaching tree branches and roots up to my property line, what duty do I as the trimmer have to the trimmee? Or, how do I maximize my damages (if I’m the plaintiff) or minimize them (if I’m the defendant)? Or, what method may I have to use to trim back to the property line?

Serious questions, indeed. So we’ll leave COVID-19 and January 6th and Ukraine and immigration and climate change to others, and travel to sunny Darke County, where megafarmer Dick Levy has just had one of his farmhands trim a property-line fencerow by ripping down offending branches with a trackhoe. He claims the Massachusetts Rule lets him use anything short of tactical nuclear weapons to vindicate his tree-trimming rights (pay attention, Vladimir Putin).

The Court, however, is more cautious…

chainsawb160927Tomorrow, we’ll look at whether farmer Lavy’s trespass onto his neighbor’s land was negligent or reckless. Next Monday, we get to the question of damages.

Brewer v. Dick Lavy Farms, LLC, 67 N.E.2d 196, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016).  In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.

The former owner had allowed his neighbor Dick Lavy Farms to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees were ornamental or unique.

A trackhoe removing a tree... rather a blunt instrument.

A trackhoe removing a tree… rather a blunt instrument.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line, and that such clearing was important for crop production, yield and safety for farm equipment. Using a trackhoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the track hoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch, but he never consciously reached over with the bucket to try and break a branch at the tree trunk on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation, and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County Sheriffs Deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

The deputy told Brewer that Lavy claimed the right to take tree branches from his side, and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.

Although the deputy suggested that Lavy obtain legal advice before continuing, Lavy continued clearing the fencerow. Knowing that Brewer was upset, Lavy told his employee not to clean up branches that fell on Brewer’s side.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging (1) a violation of O.R.C. § 901.51; (2) reckless trespass; and (3) and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

A chainsaw would have given a cleaner cut, but they are dangerous.

A chainsaw would have given a cleaner cut, but they are dangerous.

DLF argued that it had a common law privilege to cut off, destroy, mutilate or otherwise eliminate branches from Brewer’s trees that were overhanging DLF land. The Farm also argued that if it was liable, the proper measure of damages should be the diminution of Brewer’s property value; in the alternative, the court’s holding on the issue of damages was against the manifest weight of the evidence. Finally, DLF claimed it had not negligently or recklessly trespassed on Brewer’s property.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515.

Dick Lavy Farms appealed.

Held: The Massachusetts Rule is not a license to maim and maul.

DLF argued it had a common law privilege to sever or eliminate Brewer’s overhanging branches in any manner that it desired, and that the trial court nullified the privilege by holding that DLF could not cause breakage that impacts the tree on the other side of the property line. DLF argued this holding “emasculates the common law privilege and creates a conflict between O.R.C. section 901.51 and a property owner’s constitutional rights.”

Section 901.51 of the Ohio Revised Code provides that:

No person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another or upon public land. In addition to the penalty provided in section 901.99 of the Revised Code, whoever violates this section is liable in treble damages for the injury caused.

The Court agreed that “a privilege existed at common law, such that a landowner could cut off, sever, destroy, mutilate, or otherwise eliminate branches of an adjoining landowner’s tree that encroached on his land.” However, the Court said, “even in situations involving common law privilege, a landowner should not act in a manner as to cause damage to the property of an adjoining landowner. Thus, while a privilege exists, it is not absolute.”

The appellate panel said “it is a well-recognized principle of common law that a landowner has the right to protect his own land from threatened injury, even though, in doing so, he produces a condition that injures adjoining land, provided he acts with reasonable care. Ohio has recognized the right of a property owner to use self-help in removing encroachments on his property. Other jurisdictions also recognize the right of an owner to remove any encroachment on his property which deprives him of the complete enjoyment of his land.”

The critical phrase, the Court held, is “reasonable care.” DLF’s privilege to remove encroachments was limited by the requirement that it use reasonable care not to injure neighboring property. By imposing a standard of recklessness, which requires a higher degree of fault, the Court said, O.R.C. § 901.51 does not interfere with the common law privilege. Owners have an absolute right to destroy any vegetation on their own side of the property. Liability attaches only where the owners’ actions create harm on the other side of the property line.

Farmer Lavy argued that the Massachusetts Rule meant he didn't have to think.

Farmer Lavy argued that the Massachusetts Rule meant he didn’t have to think.

Thus, an owner must use reasonable care when exercising his or her rights under the Massachusetts Rule.

We should note that two judges concurred in the judgment, arguing that there is no duty of reasonable care required by a property owner when protecting his or her own property from encroaching vegetation. The dissenters said the owner “may cut, mutilate, decimate, pulverize or obliterate branches or roots which infringe upon her property from a neighbor’s trees or plants. Self-help is permitted to remove trees or plants. What she cannot do is intrude into the neighbor’s property in doing so. That is why liability is imposed here. Tearing off branches on the DLF property which extended into the Brewer property and which severed the branches at the trunk, or some other point on the Brewer property, constituted an intrusion and the trespass across the property line into the Brewer property, regardless of any degree of care or lack thereof.”

The dissenters drew “a distinction between removal of encroaching vegetation, where self-help is universally accepted, and removal of structures, building or fences, where self-help is often unacceptable.” Curiously, they noted that it “seems likely that a landowner could not chemically treat or poison the roots or limbs that encroach upon her property if that method of destruction will migrate to that portion of the vegetation on the neighbor’s yard and destroy the tree or shrub altogether, but that is an issue for another day.”

– Tom Root

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Case of the Day – Wednesday, March 30, 2022

COLORADO SUPREME COURT BRINGS FORTH A MOUSE

Tree law fans (and we consider ourselves to be fans) couldn’t wait for the Colorado Supreme Court to decide Love v. Klosky, and do away with the clunky old Rhodig v. Keck rule. The Rhodig rule holds that a tree that has grown up to be a boundary line tree is not owned by both property owners unless the neighbors claiming part ownership can jump through hoops to prove they (or their predecessors-in-interest) helped plant or nurture the tree, or treated it as the boundary line. When the Court finally acted a few years ago, it brought forth a silly mouse of a rule that tries to save Rhodig by “clarifying” it in the most meaningless way possible.

The story bears repeating.

In the rest of the civilized world (sorry, Minnesota, not you), a tree that straddles a boundary line is owned by both property owners as tenants-in-common. One owner can’t mess with the tree without the other one’s permission. As 1970s television cooking personality Chef Tell would have said, “Very simple, very easy.” No messy litigation, no one keeping tree-feeding logs, garden shop receipts, or detailed journals of joint plantings of years gone by. Just a simple, binary rule: If the tree crosses the property line, both landowners have an interest. If it does not cross the line, only one does.

Unfortunately, the Colorado Supreme Court’s love affair with stare decisis – the legal doctrine that holdings of prior cases should govern the outcome of present and future cases – has led it to a tortured defense of Rhodig. Everyone has it wrong, the Court said: Rhodig doesn’t apply to all boundary trees, just trees that started growing on one side of the property line and grew across the line to encroach on the other property.

It is more than a little ironic that a cartoon set in Colorado, South Park, once featured the Chewbacca defense, spun out by a Johnny Cochrane caricature. As Johnny put it in his closing, “That does not make sense.”

Johnny could have been talking about this decision. We all learned in 7th grade math that a line segment stretches between points A and B and has no thickness. Unless that tiny little sprig of an oak tree in your backyard has the dimensions of, say, Flat Stanley, the odds that it will not start growing on one side of the boundary or the other approach zero. And 10, 20 or 50 years down the road, proving that the tree began its arboreal life straddling a boundary line of no thickness will require legal and arborist legerdemain that will make the Chewbacca defense sound like a Supreme Court argument.

Love v. Klosky ought to start a real cottage industry for Colorado lawyers and arborists, proving where young maple or catalpa shoots began their lives. The only trees that are not subject to this nonsensical rule would be those old enough to have been standing in the 19th century when Colorado was first platted.

The Colorado Supreme Court had a chance to clean things up by running Rhodig through the tree chipper of legal history. Instead, it labored mightily… and brought forth a mouse.

Love v. Klosky, Case No. 16SC815, 2018 CO, 413 P.3d 1267 (Supreme Court Colo., 2018). Carole Bishop and Mark Klosky and Shannon and Keith Love own adjacent parcels of land in Denver’s Washington Park neighborhood. A 70–foot tall catalpa tree towers over two adjacent properties. At the base of its trunk, the tree sits roughly three-quarters on the Kloskys’ property and one-quarter on the Loves’ property. The tree began growing on the lots well before the parties moved in, and no one knows who (if anyone) planted it. Whatever its pedigree, the tree sheds leaves, seed pods, and branches on both properties.

Catalpa tree

Unhappy with the debris, the Kloskys wanted to cut the tree down. The Loves unsuccessfully tried to convince their neighbors not to do so. When persuasion failed, they sued. The trial court ruled for the Kloskys, holding – consistent with the Colorado rule enunciated in Rhodig v. Keck – that unless the Loves could prove that they or their predecessors had helped in planting or maintaining the tree, or that they and the Kloskys’ predecessors had treated the catalpa tree as the boundary, the tree belonged solely to the Kloskys.

On appeal, the Loves argued that Rhodig should be overturned, but the court held it was bound by Rhodig, which it interpreted to mean that “boundary trees are held as common property only if the landowners jointly planted, jointly cared for, or jointly treated the trees as a partition between the properties.” Two of the appellate judges, however, called on the Colorado Supreme Court to overturn Rhodig and require instead that any time a tree straddles two lands, the adjacent property owners jointly own the tree as tenants-in-common.

The Loves asked the Colorado Supreme Court to review the case.

Held: The Supreme Court, refusing to overturn Rhodig v. Keck, held that the Kloskys could remove the tree because it remained the sole property of the owner of the land where the tree first grew, unless the tree was jointly planted, jointly cared for, or treated as a partition between the two properties. Because the Loves could not prove any shared property interest in the tree, the could not prevent the Kloskys from removing the tree.

The Loves argued that Rhodig should be overruled, and that the Court should automatically make them tenants-in-common with the Kloskys for no other reason than the catalpa tree had crossed the property line. The Kloskys on the other hand, argued that Rhodig holds that even when a tree crosses over a boundary line, it remains the property of the owner of the land on which the tree originally grew unless one of the joint-action situations enumerated in Rhodig applies.

The Court said there was no sound legal basis for abandoning Rhodig, surmising that “our ambiguous precedent caused the lower courts to conflate the common law rule for true boundary-line cases and the test for encroachment trees.” Instead, it clarified that Rhodig only governs “encroachment trees,” trees that begin life entirely on one property only to migrate partially to another. Under Rhodig, a landowner may remove such a tree without first securing the approval of his neighbor, unless the landowners jointly planted, jointly cared for, or jointly treated the trees as a boundary marker. The Court said that Rhodig does not represent some weird minority rule on boundary trees. Indeed, the Court lectured, the common law rule regarding true boundary-line-tree cases – where the tree sits squarely on a property boundary with no evidence of migration – is not implicated by Rhodig. In such a case, a tree standing on the division line between adjoining landowners is generally considered the common property of both landowners, even in Colorado. 

Thus, the Court ruled, Rhodig only applied when a tree originally growing on one property grew and encroached on another. Having clarified what Rhodig means, the Court concluded it was correctly decided and remains sound. “And, we see no conditions that have changed to make the above reasoning any less compelling today than when we decided Rhodig.”

In this case, the Court ruled, the Loves did not sufficiently show other circumstances that could create joint ownership of the encroaching tree. “Just as the Rhodigs had no property interest in the trees that had encroached onto their land because there was not sufficient evidence the parties jointly planted the trees, jointly cared for the trees, or intended for the trees to serve as a boundary,” the Court wrote, “here, the Loves have no property interest in the tree that has encroached onto their land because they have not shown such joint activity implying shared ownership.”

– Tom Root

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Case of the Day – Tuesday, March 29, 2022

I CAN SEE FOR MILES

In the land of pleasant living, we can and often do sue for almost anything. Even so, today’s case is especially egregious.

Today’s plaintiff, Betsy Stibler – whom the court of appeals suggests just may be hypersensitive – apparently had gotten used to seeing for miles and miles from her kitchen window. Or at least to the 18th hole of the golf course next door. When the owner of the country club next door, planted a number of additional trees on its golf course – trees that neither hung over or grew under Betsy’s property – she sued. Sued for no better reason than the trees interfered with her seeing goings-on on the golf course.

OK, the world is full of people like Betsy (who should be named Karen). Not only do such people claim a right to the air they breathe, they claim the air we’re breathing, too. And everything is personal. Note that Betsy did not just sue because the golf course’s trees accidentally or even negligently blocked her view of its property: she claimed the trees were planted maliciously, for the purpose of annoying her.

There are a lot of Betsies in this world who think it’s all about them. But most of those other Betsies don’t have the spare change to hire a lawyer to sue the offending tree planters. Those who do have the money usually have better sense than to fritter it away in a foolish lawsuit, and even then, who don’t have that good sense usually cannot find a lawyer with the same reckless approach to litigation as they do. They enter their attorney’s office full of rage, and then he or she patiently talks them off the ledge.

As my famed relative (so we Roots like to think, at least) Elihu Root once said, “About half the practice of a decent lawyer is telling would-be clients that they are damned fools and should shut up. ”

But occasionally we hit the frivolous litigation trifecta, and that happened in this case. Betsy convinced herself that God or the subdivision or someone had decreed that she should always be able to see the golf course (although why she wanted to see it puzzles us), and she apparently had the excess money to pay a lawyer to tilt at her windmill for her. Unsurprisingly, the magic combination of wealth, entitlement and stupidity enabled Betsy to find a lawyer hungry or foolish enough to take the case.

Now, all that was missing was a compliant judge. Fortunately for the defendants, Betsy could not find one of those. It turns out that for trees to be declared a nuisance in Tennessee requires less sensible judges, not to mention more sensible harm than some cranky lady who does not like the neighbors’ new landscaping.

Stibler v. The Country Club, Inc., Case No. E2014-00743-COA-R3-CV (Ct.App. Tenn., Mar. 9, 2015). Betsy Stibler owned a residence next door to The Country Club’s eponymous golf course. In 2013, The Club planted trees all over its gold course, including Green Giant and Skip Laurel trees planted on the portion of the course which lies behind Betsy’s house. The trees do not encroach on Betsy’s land, and caused no physical damage to her place. But what they do do is obstruct Betsy’s view of the course.

Betsy sued, claiming The Club had created a nuisance by planting the trees and thereby obstructing her view of the golf course. In fact, she claimed the trees were planted “for the purpose of annoying Plaintiff and decreasing the property value of Plaintiff,” and that she was “being deprived of her right/easement appurtenance of enjoyment of all persons owning lots in said sub-division of the park space (i.e. [sic] golf course) as provided by the [subdivision restrictions].” 

The applicable subdivision restrictions state that “no noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood,” and “any park spaces as shown upon the plat, will not be built upon but preserved as ornamental park spaces for the enjoyment of all persons owning lots in said sub-division.”

The Club filed a motion for summary judgment, which the trial court granted on the grounds that Betsy could not prove that the trees constituted a nuisance.

Betsy appealed.

Held: The trees are not a nuisance.

Betsy argued that the subdivision restrictions meant that The Club should be prohibited from interfering with her enjoyment of her property “by changing the very character and nature of her home as a golf course view property.” Betsy asserted that because the trees are a nuisance, they are prohibited by the subdivision restrictions. She also contended that the requirement that park spaces, which Betsy asserted included the golf course, must be preserved for the “enjoyment of all persons owning lots in said sub-division” meant her view of the course had to be maintained.

The Court disagreed with Betsy’s premise. The subdivision plat designated park spaces as “park spaces.” The golf course was labeled “golf course.” The Court said that Betsy’s “desire that the golf course be treated as a park space even though it is not designated as such on the plat is contrary to the very paragraph 7 that Plaintiff relies upon. Further, nothing within the subdivision restrictions guarantees Plaintiff an unobstructed view of the golf course. Nor is there any provision within the subdivision restrictions that prohibits Defendant from planting trees on its own property. This issue is without merit.”  

The Court observed that under Tennessee law, a nuisance is anything that annoys or disturbs the free use of one’s property or renders the property’s ordinary use or physical occupation uncomfortable. “It extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of the property… As long as an interference with the use or enjoyment of property is substantial and unreasonable enough to be offensive or inconvenient, virtually any disturbance of the use or enjoyment of the property may amount to a nuisance.”

However, a use of property that constitutes a nuisance in one context does not necessarily constitute a nuisance in another context. Whether an activity or use of property amounts to an unreasonable invasion of another’s legally protected interests depends on the circumstances of each case, including “the character of the surroundings, the nature, utility, and social value of the use, and the nature and extent of the harm involved.” Whether a particular activity or use of property is a nuisance is measured by its effect on a normal person, not by its effect on the “hypersensitive.” The standard for determining whether a particular activity or use of property is a nuisance is “its effect upon persons of ordinary health and sensibilities, and ordinary modes of living, and not upon those who, on the one hand, are morbid or fastidious or peculiarly susceptible to the thing complained of, or, on the other hand, are unusually insensible thereto.”

When trees are involved, Tennessee law holds that “encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.”

Here, the only damage Betsy can cite is that she thinks her property is worth less because she can no longer see the golf course. The Court held that her claims “are simply insufficient to give rise to a claim for nuisance. Plaintiff has directed us to nothing which would give her a protected legal right entitling her to a view of Defendant’s property.”

The Court cautions that it was not suggesting that trees could never constitute a nuisance, but just that “given all of the facts and circumstances in the case now before us at this time, Defendant has shown that Plaintiff cannot prove that the trees at issue in this case constitute a nuisance.”

– Tom Root

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