Case of the Day – Tuesday, November 27, 2018


Kee Nee Moo Sha, Inc., had a tract of wooded land on a lake, next to a Bible camp owned by the Baptist Church. What could be wrong with that? No loud music, no dancing all hours of the night, no boozing or riotous living… right?

The minister in charge of the Bible camp knew where the boundaries between the Baptists’ and the company’s lands lay. But he had a problem. How could he build more cabins for the pittance that had appeared in his collection plate? The Lord turned seven small loaves and a few fishes into a feast for 4,000 people. But the preacher, a lesser mortal, couldn’t stretch what little he had into more lodging.

And verily, he began to covet his neighbor’s trees.

The minister had a logger cut down about a hundred of Kee Nee Moo Sha’s pine trees. Surely this was manna from heaven — free timber! Except it wasn’t free, as the Baptists soon found out.

Kee Nee Moo Sha reacted much like a modern, more restrained version of the angry vineyard owner.  It sued. The Baptists failed to heed the Lord’s admonition to make peace with the plaintiff before you get to court. Too bad, too. The court found that the minister’s trespass was willful, and in fact, it appeared to be rather irked with the fact that – once on the witness stand – the man of the cloth wasn’t very familiar with the 9th Commandment, you know, the one about bearing false witness and all.

Kee Nee Moo Sha wanted the Baptists to pay for the enhanced value of the timber — that is, the value of the timber after being milled — and the court agreed that measure of damages is acceptable where the trespass is willful. But the court can’t guess at what that value might be, and where Kee Nee Moo Sha failed to introduce any evidence on the enhanced value, it missed its opportunity.

The Baptists introduced evidence of the stumpage value of the timber, that is, the value at the point it had been cut down, but before it was hauled and milled. Stumpage value is always lower, because the owner of the timber has to deliver it to the sawmill and pay for the milling before having a product to sell. Because the stumpage value was the best evidence of value in the record, the Baptists were charged for the lower figure.

The trial court assessed punitive damages against the church camp instead of the treble damages for wrongful cutting which statute permits. The Court of Appeals noted that this was entirely permissible, because sometimes trebling the damages just isn’t good enough to deter such conduct. Where the trespass is wanton but the damage only amounts to $100, $300 might just not get an errant preacher’s attention nearly so effectively as a whopping punitive award. The Court said that either trebling or punitive damages may be applied, at the trial court’s discretion.

covet150212And thus, the Baptists rendered unto Kee Nee Moo Sha …

Kee Nee Moo Sha, Inc., v. Baptist Missions of Minnesota-Plymouth Point Bible Camp, Not Reported in N.W.2d, 1990 WL 212222 (Minn.App. 1990). Kee Nee Moo Sha, Inc., is a family-owned corporation organized for the purpose of holding more than 100 acres of forested land near Hackensack, with a resort on the southern end of the property. The resort belongs to the Baptist Church.

In late 1976, in connection with the transfer of the Baptist’s church property to another church unit, a surveyor was hired to survey and mark the boundary between the Baptists’ land and the Kee Nee Moo Sha property. Shortly after the survey was completed, and while the brush was all cleared and orange flags marked the line, the surveyor walked the boundary line with one of the church’s pastors, pointing out in detail the location of the boundary.

About four years later, the pastor wanted to build more camp buildings as cheaply as possible. Looking for some do-it-yourself financing, he arranged for a local logger to cut about 100 pine trees in and near the main camp buildings. While most of the timber was cut on church property, 26 pines were cut on Kee Nee Moo Sha land. In addition, the pastor had the logger clear cut nearly 100 birch and aspen from the same area of the Kee Nee Moo Sha property, along with 1,600 cubic yards of sand which was used in a drain field near the Baptist building project. Kee Nee Moo Sha was unamused.

A lawsuit inevitably followed. The trial court granted Kee Nee Moo Sha damages for trespass and an injunction against further trespass by the Baptists. Unhappy with the paltry damages awarded, Kee Nee Moo Sha appealed, seeking higher measure of compensation, a more extensive permanent injunction, and costs, disbursements and attorney fees.

Held: The appellate court upheld the trial court decision.

The Court observed that there were several possible measures of damages which could be used when trespass to property involves the taking of timber. One of the oldest is the “enhanced value” of the timber after being sawed and transported to the place of sale or transfer, to be used when the trespass is willful. The presumption in trespass cases where timber is cut is that the trespass is willful, and the burden of proof falls to the trespasser to show otherwise.

Here, the trial court found it couldn’t use the “enhanced value” measure, because no evidence was introduced to permit the Court to determine the value of the processed lumber. Consequently, the trial court used the stumpage value presented by the Baptists to set compensatory damages, and awarded punitive damages in addition to arrive at a fair number. The trial court, passing up treble damages that were authorized but not required by statute, awarded punitive damages instead. The trial court found that “even an award of treble damages for that taking would not adequately punish [the Baptists] or compensate [Kee Nee Moo Sha] for the willful trespass which has occurred.”

The Court agreed that the trial judge’s approach was justifiable under Rector v. C.S. McCrossan, Inc., and the treble damage statute. It observed that Rector, while referring to various measures of damages, does not refer directly to punitive damages. Punitive damages may be awarded, however, when “the acts of the defendant show a willful indifference to the rights or safety of others.” The trial court found that the Baptists’ behavior was willful, and the evidence supported it.

ba150212Minnesota law provides that any award of punitive damages will be “measured by those factors which justly bear upon the purpose of punitive damages, including… the profitability of the misconduct to the defendant… the attitude and conduct of the defendant upon discovery of the misconduct… and the total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct, including compensatory and punitive damage awards.” In this case, the Court didn’t think much of the Baptists’ attitude. First, the defendant cut the timber and removed the sand in order to line its own pocket, that is, to obtain cheap building materials for the camp. Second, the pastor continued to deny any willful misconduct throughout the trial, a denial that flew in the face of proof to the contrary and his own admission that he had been shown a clearly marked boundary prior to these takings. The appellate court dryly called the jury’s awarding compensatory and punitive damages a “just” result.

Kee Nee Moo Sha argued for use of the “replacement value” measure of damages also authorized by Rector, but the Court noted that in instances where the cost of replacement is unreasonable or excessive in relation to the damage to the land itself, the trial court may, in its discretion, allow the jury to consider more than one measure of damages in order to permit flexibility and achieve a just and reasonable result.

– Tom Root


Case of the Day – Monday, November 26, 2018


It’s a great old saw, but as logicians like to point out, “every rule has an exception” is a logical fallacy. As if anyone could possibly know every rule, so that he or she could be sure that every rule had an exception (sort of like the people who claim no two snowflakes are alike: how could they possibly know that?).

But beyond that, if every rule has an exception, then the rule that every rule has an exception itself has no exception, in which case every rule does not have an exception. It’s enough to make your head throb.

But all we care about here are rules in tree law. If there is any rule that seems immutable, it is the rule that a boundary tree belongs to the owners of both properties on which it is growing. No owner can do anything to trim or kill the tree without permission of the other owner. Boundary Tree Law 101 right?

Well, yes, but for the exception. In today’s case, one property owner ignores the warnings of the other, and excavates for a basement, only to sever the roots of the big, beautiful boundary oak tree. The court agreed with the aggrieved plaintiffs all the way, except at the end, where the Supreme Court said, “Sure, that’s the rule… but there’s an exception.”

The exception is that if an owner harms or kills the tree while using his property in a reasonable way, the other owner is without recourse.

Does that tiny little exception look big enough to drive a truck through?

Amazingly enough, this decision remains good law in Oklahoma.

Higdon v. Henderson, 304 P.2d 1001 (Supreme Ct. Okla, 1956). The Higdons filed their petition seeking damages for destruction of a shade tree they said was located on the lot line between their property and that of John Henderson. They said it had been a large towering oak tree which was a valuable shade tree for both lots. They claimed John had been building his house when, over their objections, he excavated a basement, cutting the tree’s roots and killing it.

John argued the Higdons could not recover, because their complaint did not say to whom the tree belonged, and at any rate, they did not state a claim on which they could collect. The trial court agreed, and the case ended up in the Oklahoma Supreme Court.

Held: Identifying the tree as a boundary tree was good enough, but the Higdons could not collect for Henderson’s killing of the tree.

The Court acknowledged the general proposition that “trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.” The Higdons’ complaint referred to the tree as a boundary tree, and that was quite adequate to identify common ownership of it by John and the Higdons. The Court acknowledged the general proposition that “trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.” The complaint referred to the tree as a boundary tree, and that was quite adequate to identify common ownership of it by John and the Higdons.

The Supreme Court also agreed with the Higdons that because the tree was standing on the boundary line, it was the common property of both owners, so that neither had the right to damage or destroy the tree without the consent or permission of the other. But, the Court said, that rule is “qualified by the right of an abutting owner to use his property in a reasonable way and conversely, not in an unreasonable way.”

Here, the Higdons complained that John was building a house. This is not an unreasonable use of the property, the Court ruled. Therefore, the resulting incidental injury to the tree did not give the Higdons a right to recover damages.

– Tom Root


Case of the Day – Friday, November 23, 2018


liar150204Remember prescriptive easements? Those are easements and other rights over property which can be taken because they are exercised adversely to the owner for a number of years (the number varies from state to state).

For example, the electric company strings wires across the corner of your homestead. You didn’t give anyone permission to do that. The wires hang there for 21 years, providing a perch for the pigeons and a trellis for the kudzu. You don’t like them, but you don’t do anything about them. Then you sell the place to Sherman Shyster, an angry lawyer with a laptop and printer. He immediately sues the power company for trespass. But because the wires have been hanging there for a sufficient number of years, the court that the electric company has gained the right to the air rights over that corner of property by a “prescriptive easement.”

The exercise of adverse rights – the wires hanging there – must be done openly, notoriously and continuously. Anything less, and there’s no easement. In today’s case from California, Gabriele wanted a nice driveway on a sloping hill, but he couldn’t fit it onto his fairly vertical land. So he made a deal with his neighbor, Mrs. Hoehne. She gave him a non-exclusive easement to build a drive on a described bit of land, and in return he agreed to build a nice road for her to use to come down to and across a retention pond and dam she had.

Before the drive was built, Mrs. Hoehne sold her land to Ms. Cobb. Ms. Cobb didn’t much want Gabrielle’s driveway cutting across her place, but she was stuck with her predecessor’s easement. Still, she asked Gabriele about his intentions before construction began, and he showed her a sketch of the proposed drive.

oops150204Oops. The driveway didn’t get built according to plan, instead wandering onto Mrs. Cobb’s non-easement property. When Ms. Cobb finally had her own engineer study the layout of the driveway eight years later, he found the encroachment. California’s time period for a prescriptive easement is only five years, but Ms. Cobb claimed that Gabriele lied to her with the misleading driveway sketch. Therefore, she argued, his possession during the five-year period was neither open nor notorious.

Ah, the Court said, there’s a real difference between predicting today how the project will turn out, and describing tomorrow how it did really turn out. A prediction that doesn’t come true is not the same as a subsequent lie swearing that something that didn’t happen really did.

Gabriele thought the driveway would lie completely within the easement. No lie. The driveway turned out not to lie completely within the easement. While the error was lamentable, it was not a lie. That is, predicting a future lie isn’t a lie. Got that?

The court ruled that the driveway could stay where it was, having acquired the right by prescriptive easement.

Cobb v. Gabriele, Not Reported in Cal.Rptr.3d, 2007 WL 1247308 (Cal.App. 6 Dist., Apr. 30, 2007). In 1989, the Gabrieles bought a parcel of unimproved land along Salinas Road. Their engineer prepared plans for a driveway directly onto their land from Salinas Road, but the county wouldn’t permit it because the land was too steep. The Gabrieles discussed an easement with their neighbor, Phyllis Hoehne, who ultimately executed a non-exclusive easement for ingress, egress and public utilities over a piece of her land. The easement provided that the Gabrieles would build a driveway, drainage facilities, and erosion improvements on the easement land, and would allow Hoehne to use the driveway portion to access a retention dam located on her property. The Gabrieles also agreed to build an access road across the dam.

Gabriele's driveway was this long ... but not this nice.

Gabriele’s driveway was this long … but not this nice.

Hoehne then sold her land to Cobb, who didn’t much like the easement. Gabrielle built the driveway without notice to Cobb two years later, and when she demanded to know what he was doing, showed her a sketch which depicted the proposed driveway completely within the easement boundaries.

Somehow, the driveway wasn’t built according to the plan, but instead went outside the easement and encroached on between 100 and 120 feet on Cobb’s property. The Gabrieles have used the driveway continuously since its construction, having paved it in 1997. But the Gabrieles didn’t build what they had promised Hoehne. When Cobb asked about the access road, the Gabrieles explained that the road was just going to be a roughed in dirt road the width of a bulldozer blade, to be used only for a fire exit. Gabriele said Cobb had changed her mind, and didn’t want the roughed-in road. But in March 2000, Cobb’s attorney wrote to the Gabrieles about the easement. He asserted that some of the improvements that were supposed to have been constructed in connection with the driveway had not been completed, and that the driveway had been construed in a location outside of that designated by the easement. However, Cobb testified that at that time she did not have “absolute knowledge” that the driveway was outside the easement. She said her attorney had made that accusation to cover all possibilities should there be litigation.

In 2003, Cobb received a survey showing the encroachment. Cobb sued that year to quiet title and prayed for declaratory and injunctive relief. She wanted an order that the driveway must be moved. She asserted causes of action for trespass, nuisance, breach of contract, negligence, waste, failure to maintain, unreasonable use, fraud, diversion and diminution of water, and damages to trees, and she sought compensatory and punitive damages.

The trial court granted the Gabrieles’ motion for summary adjudication on the claims for trespass, nuisance, negligence, waste, fraud, diversion/diminution, and damage to trees and the request for punitive damages, finding them barred by the three-year statute of limitations, but found in Cobb’s favor on her claim for failure to maintain. The trial court also found that the Gabrieles had a prescriptive easement over the property where the driveway went outside of the written easement.

Cobb appealed.

Held: The judgment was affirmed. The Court of Appeals found that Gabrieles had shown the elements necessary to establish a prescriptive easement, that the use of the property has been open, notorious, continuous and adverse for an uninterrupted period of five years.

The Court said that the requirement that the use be hostile and adverse and under claim of right means that the property owner has not expressly consented to or permitted, allowed, or authorized the use of his or her land; and the user does not recognize or acknowledge the owner’s rights, not necessarily that one must know that the use constitutes an encroachment or trespass. In short, where one openly and continuously — even mistakenly — uses another’s property for the 5-year period without the owner’s interference, it is presumed that the use was adverse, hostile, and by claim of right.

human150204Here, the record showed that the driveway encroached on Cobb’s property. Cobb knew about the recorded easement and had constructive knowledge of its boundaries. As well, she knew exactly where the driveway was constructed and saw the Gabrieles continuously use it for more than the prescriptive period. Finally, there was no evidence that Cobb expressly permitted the Gabrieles to use any area outside the easement, nor was there evidence that the Gabrieles intended to stop using the entire driveway or remove part of it if they had known that part of it was outside the easement.

Cobb claimed the Gabrieles failed to establish the open-and-notorious element because Gabriele concealed the fact that the driveway encroached on her property. She noted that Gabriele assured her that the driveway would be inside the easement and gave her a diagram to that effect. Given the concealment, Cobb argued, she did not have knowledge or constructive notice that the driveway constituted an encroachment.

The Court, however, said that before the driveway was actually constructed, Gabriele gave Cobb a sketch showing that it would be within the easement. Thus, it only represented his understanding of where the driveway would be located, not where it had been located. There was no evidence that when Gabriele gave Cobb the sketch, he knew the driveway would be constructed outside the easement; nor is there evidence that after it was built, the Gabrieles knew it encroached on Cobb’s property. And at trial, Cobb conceded that the Gabrieles did not know about the encroachment until her engineer conducted his survey in 2003.

Mrs. Cobb simply couldn’t have it both ways.

– Tom Root


Case of the Day – Wednesday, November 21, 2018


woodman150203“… touch not a single bough …”, Mrs. Chinn, the plaintiff, cried in this California case on wrongful tree cutting.

The plaintiff, Mrs. Chinn, agreed with her neighbor, Ms. Hess, to build a common fence. The worker hired to construct it found he had to trim the branches of one of Mrs. Chinn’s plum trees to make the fence fit. And that’s where the problems arose.

Mrs. Chinn’s tenants, the Schmidts, told the worker to go ahead and cut down the tree. Of course, they denied this, but the trial court found the testimony of the worker and four neighbors who watched the timber harvest unfold. Mrs. Chinn sued Forrest and Hess for trespass and for treble damages for wrongful tree cutting under California statute.

The issue was whether Forrest and Hess reasonably believed the Schmidts had the authority to speak for Mrs. Chinn. The trial court found that the authority Mrs. Chinn had given them, coupled with her own ignoring of the goings-on in the fence and tree project, gave the defendants a reasonable basis to believe that the Schmidts could give Forrest the right to cut down the tree.

Thus, there was no trespass. And, of course, no trees left standing, either.

A common fence

A common fence

Chinn v. Hess, Not Reported in Cal.Rptr.3d, 2007 Cal. App. Unpub. LEXIS 3942, 2007 WL 1430192 (Cal.App. 1 Dist., May 16, 2007). Chinn and Hess owned adjoining properties. Chinn rented her place to the Schmidts. Chinn and Hess had agreed to build a new fence, which they had hired Forrest to complete. While he was building it, he cut down a plum tree on Chinn’s land which obstructed the planned fence.

Chinn sued Hess and Forrest for trespass and wrongful tree cutting under California Code of Civil Procedure § 733. Forrest claimed he had begun merely by trimming the tree, but the Schmidts came outside and agreed with him the tree should come down. The Schmidts denied this, but the weight of the evidence caused the trial court to believe Mr. Forrest.

The trial court found for Hess and Forrest.  Chinn appealed.

Held: The plum tree remained cut down (of course, it would have at any rate), but Mrs. Chinn was not entitled to treble damages under California Code of Civil Procedure 733. The trial court had found that Mrs. Chinn hadn’t proved that Forrest had proceeded without consent, but Mrs. Chinn complained that it wasn’t her obligation to prove lack of consent, it was Forrest’s and Hess’s duty to prove they had consent.

The plum tree was very severely pruned.

The plum tree was very severely pruned.

The Court of Appeals held that lack of consent is an element of the tort of trespass, meaning that it was one of the issues Mrs. Chinn had to prove in order to establish a trespass. Still, whether she carried her burden of proof wasn’t important here, the Court said, because the trial court had concluded that Forrest and Hess had proven that the defendants reasonably believed the Schmidts were Mrs. Chinn’s agents. Mrs. Chinn had given the Schmidts authority to speak to Ms. Hess about the tree and the fence. Once the Schmidts were empowered to speak for Plaintiff, Plaintiff chose not to communicate with Defendant Marilyn Hess, and when the issue of the plum tree arose, Mrs. Chinn did not respond to messages and did not drive two miles to see the fence. Rather, Mrs. Chinn relied solely on the Schmidts to represent her regarding the fence and tree issue, just as she relied upon them to take care of the garden on the property they were renting.

The combination of her intentional conduct and her want of ordinary care, Mrs. Chinn caused Forrest and Hess to believe reasonably that the Schmidts had authority to consent to removal of the tree. Ostensible authority in an agent is established by showing that the principal, intentionally or by want of ordinary care has caused or allowed a third person to believe the agent possesses such authority. It authority must be established through the acts or declarations of the principal and not the acts or declarations of the agent. Where the principal, like Mrs. Chinn, knows that the agent holds himself out as clothed with certain authority, and remains silent, such conduct on the part of the principal may give rise to liability.

– Tom Root


Case of the Day – Tuesday, November 20, 2018


You can see why Hocking Hills is a good place for a park.

You can see why Hocking Hills is a good place for a park.

I’m always looking for ideas, and I am rather shameless about appropriating them. So when an Ohio lawyer friend, himself from a timber-harvesting family, mentioned an case  that delineated when trees were attached to the real estate and when they were “goods,” I chased the decision down.

Speaking of “appropriating,” that was exactly the context in which the case was decided. It seems that Dudley DeBolt had a pretty nice place in Hocking County, beautiful Appalachian foothill country. In fact, Dudley’s place was so nice the government wanted it for a park. Governments being what they are, the appropriate agency – an entity called the Board of Park Commissioners of the Columbus and Franklin County Metropolitan Park District – sued Dudley to take 40 acres of his wooded land for its purposes.

Under the laws governing eminent domain, not to mention the 5th Amendment, when the government takes private property for public purposes, it must pay just compensation. But it seems that the Park Board didn’t want to pay Dudley for the timber contract he had already signed with a local timber merchant, one for the select cutting of about 150,000 board feet of hardwood. The land itself was worth $58,000, Dudley claimed, but there was also the timber contract that he now would be unable to fulfill, for an additional $14,000.

woodpile150202Nope, the Park Board argued, the trees are attached to the land and had no value separate from the land. That had been Ohio law prior to the adoption of the Uniform Commercial Code. The trial court agreed with the Park Board.

The Court of Appeals did not. Rather, it held that the UCC had changed everything, and as a result, Dudley was given a chance to prove to the jury the existence and value of the timber contract. The Ohio Supreme Court agreed, and the case went back to the trial court.

Board of Park Comm’rs v DeBolt, Not Reported in N.E.2d, 1984 WL 4248 (Ct.App. Ohio, 1984). The Board of Park Commissioners of the Columbus and Franklin County Metropolitan Park District sued landowner Dudley DeBolt, Jr., appropriate 40 acres of his land. Mr. DeBolt believed the fair market value for the land to be $73,970, including $32,000 for the land at $800 an acre, $26,000 for the home and $14,000 for his profit from the removal of certain timber on the property. The trial court agreed with the Park Board that Mr. DeBolt was not allowed to calculate the value of his standing timber separately from the land, and it refused to allow Mr. DeBolt to put in any further evidence of the value of his timber. The jury returned a verdict of $58,000 as compensation for the land and improvements taken. Mr. DeBolt appealed.

selectivecutting150202Held: Mr. DeBolt was allowed to value the timber separately. Although the Board argued that Ohio law prohibited setting market value for trees upon land to be appropriated separate and apart from the value of the land, the Court pointed out that the decision which included that holding was made well prior to the adoption by Ohio of the Uniform Commercial Code. The UCC provides that a “contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without material harm thereto … or of timber to be cut is a contract for the sale of goods within sections 1302.01 to 1302.98 of the Revised Code, whether the subject matter is to be severed by the buyer or by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.” Thus, the Court ruled, the UCC had abrogated prior Ohio law by making a contract for the sale of timber into a contract for the sale of goods.

Here the evidence showed that in the summer of 1981, a timber merchant and DeBolt had a contract for cutting timber and had agreed on a price. Therefore, the Court said, DeBolt ought to have had the right to prove the existence and value of the timber contract. It was a contract for the sale of goods, and Debolt thus had a vested contractual right which was frustrated by the Park Board’s appropriation. The Court said that “the enactment of the UCC has in our opinion changed the character of standing timber from realty to personalty when there is a contract under R.C. 1302.03.” Once the contract was made, the trees were “goods” under the UCC and no longer a part of the land.

BOR150202People who have to pay attention to the bottom line make careful decisions whether appealing an adverse decision is worth the time and legal costs. Not so governments, which hire lawyers by the gross and pay them with taxpayer dollars. Unhappy at having to part with an additional $14,000, the Board of Park Commissioners appealed to the Ohio Supreme Court. Even in 1984, a for-profit entity would have easily seen that legal fees and wasted time would easily exceed that.

Board of Park Comm’rs v DeBolt, 15 Ohio St.3d 376 (1984). The Ohio Supreme Court agreed with the Court of Appeals that the record supported a finding that a contract may have existed for the sale of the timber. The Supreme Court found some evidence that Dudley DeBolt was to receive $14,000 for the sale of some 150,000 board feet of lumber, and that such lumber was to be obtained in a select cutting, which was permitted under the terms of his mother’s will. The timber cutter said 150,000 board feet of lumber could be obtained in a select cutting, and stated that he had first surveyed the property some eighteen months prior to the trial.

The Supreme Court ruled that a contract for the sale of timber is a contract for the sale of goods, not realty. ORC § 1302.03(B). Such a contract is protected against a governmental taking without just compensation, as it was part of the property taken by the Board of Park Commissioners. Because such a contract is an asset separate and apart from the land, it is subject to separate valuation. The case was sent back to the trial court to give Dudley a chance to prove his case.

– Tom Root


Case of the Day – Monday, November 19, 2018


Only in California could a tree-trimming case end up as a free speech issue.

bureaucracy140923Our regular readers know that good old-fashioned Massachusetts Rule self-help is available to any homeowner seeking to protect life and property from encroaching trees. Today, we look at what happens when good old-fashioned common law self help runs into bureaucracy.

The Dilbecks wanted to add a second story to their house, but their neighbors’ oak tree had extended its branches so close to the Dilbecks’ place that they had to be trimmed back in order to make room. No problem, right? We all know that self-help is available to the Dilbecks anywhere in California. Sure, but it turns out the Los Angeles isn’t just anywhere. In LA, oak trees are “protected,” and before trimming the oak, the Dilbecks had to get a permit from the County. And the County wouldn’t issue a permit unless the tree’s owner signed on to it.

So much for self-help. The Dilbecks sued, asking that the County be ordered to issue the permit and that their neighbors be found liable in trespass for the tree (the theory being that the neighbors let the branches intrude over the Dilbecks’ lawn). And here’s where it got even more complicated. California has a statute addressing litigation known as “strategic lawsuits against public participation,” the so-called anti-SLAPP statute. This mouthful with the catchy name is intended to stop oppressive lawsuits intended to keep people from exercising their rights to free speech. There’s a whole cottage industry in the Golden State surrounding SLAPP actions. And as with a lot of other good ideas (such as RICO), the anti-SLAPP statute is another tool in the canny lawyer’s arsenal, something else with which to bludgeon a plaintiff.

Here, the neighbors complained that the Dilbecks were trying to force them to petition the County to let the tree get trimmed, and the suit should be thrown out as violating the anti-SLAPP statute. The trial court refused dismiss the action. The Court of Appeals agreed, holding that the Dilbecks weren’t demanding that the neighbors do anything. They were asking the County to do something, and they were suing the neighbors for trespass because of the tree. California law would let them collect money damages if the encroaching tree was a nuisance (Bonde v. Bishop held as much). So whether the Dilbecks win on the merits or not, the action was not a SLAPP suit, and it wouldn’t be dismissed.

Oaktree140923Whew! Makes you long for the simple, ol’ Massachusetts Rule… no permits, no lawsuits, just an aggrieved landowner with a chainsaw.

Dilbeck v. Van Schaick, Not Reported in Cal.Rptr.3d, 2007 WL 2773986 (Cal.App. 2 Dist., Sept. 25, 2007). The Dilbecks owned a place in Altadena, next door to the Van Schaicks. The Dilbecks planned to remodel their home by adding a second story. However, the branches of an oak tree located on the Van Schaicks’ property have grown over the Dilbecks’ home, rendering the Dilbecks’ plans unworkable unless the tree was pruned.

Oak trees are protected by California state law. The County of Los Angeles had adopted regulations to preserve and protect oak trees, requiring a permit to cut down mature oak trees or to prune their larger branches. The Dilbecks applied to the County for a permit, but the County had not approved it because it took the position that only the owner of the tree may obtain a pruning permit, and the Van Schaicks had not acquiesced. So the Dilbecks brought suit against the Van Schaicks and the County for declaratory relief and trespass. They alleged the oak tree growing on the Van Schaicks’ property had encroached onto the their land and interfered with their ability to add a second story to their home. The suit said the County refused to grant the permit because the Dilbecks were not the owners of the tree. The trespass cause of action alleged the oak tree branches were encroaching on the Dilbercks’ land, and asked for an order permitting the Dilbecks or an independent contractor to prune the tree.

The Van Schaicks filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, asserting that the complaint was based on their refusal to support the Dilbecks’ oak tree permit application and therefore attacked their right to free speech. They further argued that the trespass claim lacked merit because the law forbade the Van Schaicks to prune or cut the offending oak tree branches.

The Dilbecks contended that their action did not fit within the definition of a SLAPP suit and that, in any event, their complaint had merit. They denied that the complaint sought to compel the Van Schaicks to support or sign the oak tree permit. The trial court denied the Van Schaicks’ motion to strike, finding that they had not demonstrated that they were being sued for engaging in protected activity. Instead, the trial court held, they were just being sued for trespass. The Van Schaicks appealed the court’s denial of their motion to strike.

Freespeech140923Held: The Dilbecks’ complaint did not arise from acts undertaken in furtherance of the Van Schaicks’ rights of free speech or petition, and the Van Schaicks’ attempt to get it dismissed was rejected. The California Legislature enacted the anti-SLAPP statute in response to its perception that there has been an increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition for the redress of grievances. The anti-SLAPP statute provides a procedure for the court to dismiss at an early stage non-meritorious litigation meant to chill the exercise of free speech rights. The statute requires the trial court to engage in a two-step process when determining whether a motion to strike should be granted, first, whether the defendant has made a threshold prima facie showing that the acts of which it complains were ones taken in furtherance of its constitutional rights of petition or free speech in connection with a public issue, and two, whether there is a probability that the plaintiff will prevail on the claim.

The issue here, the Court said, was whether the complaint arose from conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. The Van Schaicks contended the suit sought to compel them to petition the County for discretionary relief from the oak tree statutes. The Court disagreed, holding that their characterization of the complaint was wrong. In fact, the Court said, the suit merely sought to compel the County to review the merits of the permit application submitted by the Dilbecks, and requested an order permitting the Dilbecks or their arborist to prune the tree. The complaint did not seek to compel the Van Schaicks to become personally involved in the permit application process in any way, and thus did not violate the anti-SLAPP statute.

The Van Schaicks contended that the complaint would indirectly force them to speak because a judgment in favor of the Dilbecks on the trespass action would necessarily require the Van Schaicks to petition the County of Los Angeles for discretionary relief from the Oak Tree statute. The Court rejected that argumnt, finding that the Van Schaicks’ position was based on the incorrect assumption that the only remedy available for trespass was injunctive relief. However, California law held a party over whose land overhanging branches extend may either cut them off or maintain an action for damages and abatement, as long as he or she can prove the branches constitute a nuisance.

The prospect that the Van Schaicks could eventually be faced with an order to abate the nuisance and could do so only by seeking a permit from the County did not transform the Dilbecks’ lawsuit into a SLAPP action. The Court ruled that the thrust of the Dilbecks’ complaint was the injury caused to their property by the encroaching tree, not the Van Schaicks’ decision to refrain from involvement in the permitting process. The permit, although obtainable only by petitioning a governmental entity, principally concerned and affected the remodeling of a private home by private individuals.

– Tom Root


Case of the Day – Friday, November 16, 2018


The Griswolds (no, not those Griswolds) worried about the heavy limbs of a century oak overhanging their place. The arborist they hired got permission from the aged neighbor for his crew to come onto her property to trim the branches overhanging the Griswolds.

Seems pretty clear cut, a garden-variety Massachusetts Rule situation, complicated only by the need to use the neighbor’s place to gain access. What could go wrong?

Whatever the grandmotherly Clare thought arborist Adrian meant by saying he was going to trim the oak, cutting limbs off was apparently not what she had in mind. Once the chainsaws started up, she suddenly concluded that she never gave Adrian permission to be on her property, and anyway she had asked Adrian to give her the wood from the branches.

Huh? It’s kind of puzzling. If Clare had denied Adrian permission to use her property to trim the tree, how could she could have asked him for the wood at the same time. It confused the jury, too, which found permission must have been given, and, necessarily, concluded that Clare Beals could not be believed.

But seriously, wouldn’t a signature on an approval form obviated six years of litigation? A cautionary tale for our time…

Beals v. Griswold, 468 So.2d 641 (Louisiana App. 4th Cir. 1985). The Griswolds lived next to Clare Beal, who had a beautiful, full 130-year old oak tree in her side yard. Limbs from the tree overhung the Griswolds’ place. They hired Adrian’s Tree Service, Inc., to trim the overhanging limbs. While the trimming work was in progress, Clare protested excitedly and the work was stopped.

Clare sued the Griswolds and Adrian’s, but the jury found for the defendants. Clare appealed, complaining that the jury should have found the Griswolds and the tree service to have committed trespass for entering her property to perform the tree trimming without her permission; conversion, for discarding the severed tree limbs despite Clare’s request that they be given to her; and negligence for failing to cut the tree according to Louisiana Horticulture Commission standards.

Held: The jury’s finding for the Griswolds and Adrian’s Tree Service was upheld.

Trespass in Louisiana is defined as any unlawful physical invasion of the property of another without the other’s consent. Here, the thrust of Clare’s trespass action is that the Griswolds unlawfully entered her property without her permission to gain access to the branches overhanging the Griswold residence. Although everyone agreed that the tree service’s workers walked in Clare’s front yard and climbed the tree from her property, the crucial issue was whether she consented to their entry. Although Clare vehemently denied that she had given her consent for the work to either the tree surgeon or the Griswolds, her version of the events was in direct conflict with the Griswolds’ testimony.

Arborist Adrian Juttner testified he had obtained Clare’s oral permission to prune when he inspected the property with the Griswolds to prepare a cost estimate for the job. Adrian said that after discussing the matter with the Griswolds, he approached Clare, walked outside in her yard with her, and pointed out the limbs he was going to cut. She said “that was all very fine and good with her.” The Griswolds corroborated this, testifying they had discussed with Adrian the need for Clare’s permission with Juttner, who then walked to Clare’s house, and later returned to tell them he had received it.

There was adequate evidence in the record for the jury to find that Clare had consented to Adrian’s entry onto her property.

But Clare complained that oral approval aside, a trespass occurred because she gave no written permission to enter her property. In support of this argument, plaintiff relies on regulations of the Louisiana Horticulture Commission requiring every licensed tree surgeon to enter into a written contract with the property owner employing him to engage in tree surgery service and to obtain written permission from the owner before using “climbing irons” to climb the tree.

The Court said the regulations Clare relied on appear to require the tree surgeon to enter into a written contract with the property owner employing him. They do not require written consent from the adjoining land owner. Here, Adrian’s Tree Service gave the Griswolds a written memorandum, and that was sufficient.

“Conversion” in Louisiana is a distinct act of dominion wrongfully exerted over another’s property inconsistent with or in denial of the owner’s rights. Clare complained the jury erred in failing to award damages for Adrian’s conversion of the 800 lbs. of wood cut from the tree.

Clare testified that Adrian’s Tree Service disposed of the felled limbs and refused her request to retain them as firewood. Although Adrian acknowledged that Clare Beals had asked about firewood after the cutting had occurred, he testified that she was completely “irate and irrational” at the time of the incident and that he was not willing to expend the labor to chop up the branches, which were lying in the Griswolds’ driveway, and deliver the wood to Clare’s property. No evidence showed that any employee of Adrian’s Tree Service denied or refused to allow Clare access to remove the cut wood herself. Under the circumstances, the Court concluded that Clare had access to the wood and that Adrian merely refused to haul the wood to her. Adrian did not wrongfully exert dominion over the branches, especially in light of the evidence that Clare had earlier given her permission to prune the tree without mentioning her desire to retain the branches.

The Court further noted that the main thrust of Clare’s claim and evidence concerned her cause of action in trespass. Evidence of conversion was sketchy at best, the Court said.

Finally, Clare proffered testimony by two tree surgeons to support her argument that the tree was not trimmed as required by Horticultural Commission standards of tree pruning. In contrast to their views, however, the Griswolds’ tree expert testified that no damage was done to the tree in this case. The Court said photographs and testimony led to a conclusion that the tree is intact and healthy. Furthermore, the Court found, stumps remaining from the trimming may very well have resulted from plaintiff’s own abrupt halting of the work in progress on the morning of the incident.

The jury’s judgment that there was no negligence was supported by the evidence.

– Tom Root