Case of the Day – Wednesday, November 14, 2018


My wonderful and sainted Latin teacher, the late Emily Bernges of Sturgis, Michigan, would have shaken her head in dismay, correcting me that I should say, Cogito, ergo sum.

Non hoc tempus, Mrs. Bernges. That was that Descartes fellow who said that. Today’s case departs from his admittedly excellent philosophical proposition, being more in the vein of, “I think it’s mine, therefore, it is mine.” The facts are kind of pedestrian: two rectangular home lots, with the owner of one, Dolfo Otto, suffering the real estate version of “mission creep.” His mowing and trimming and planting expanded incrementally until what he thought was the boundary between the parcels had wandered several feet into the neighbors’ yard. Being a green thumb kind of guy, Dolfo planted a row of maples to mark what he thought was the property line. The trees served a boundary purpose, and Dolfo liked how they looked.

The neighbors changed over the years, and whatever institutional knowledge the earlier ones may have possessed as to the original property line was lost. So it was well over 20 years after the Cornells, the latest owners of the place next door, had a survey done. They discovered that the strip with the maple trees did not belong to Dolfo at all. Dolfo, surprised at the situation, dug in his heels, got a lawyer and sued to quiet title in his favor because he had adversely possessed the land all those years.

Belatedly trying to assert dominion over land he never knew he owned, neighbor Richard Cornell cut down Dolfo’s maples. This unwise escalation of the tension that already existed only threw legal gasoline on the fire. Courtroom hijinks ensued.

What I found particularly interesting about this case was that while mowing and general upkeep of a piece of property generally is insufficient to establish possession, the court found that Dolfo’s planting and nurturing four maple trees was more than enough to establish his possession over property to which he held no title. I guess that when your trees set down roots, so do you.

Otto v. Cornell, 119 Wis.2d 4 (Wis.App. 1984). Dolfo Otto owned a 50’ x 150’ lot next to a similar lot owned by Richard and Dorothy Cornell. Dolfo Otto had maintained a fence on what he believed was the southern boundary of his lot for many years prior to 1945. That year, he removed the fence and planted four maple trees to mark the boundary. Since then, Dolfo mowed and maintained the lawn around the trees and to the north.

The house next door was rented to the Wilsons in 1949. Their driveway was located close to the maple trees. When Mrs. Wilson hit one of the trees with her car and destroyed it in 1951, Dolfo replaced it.

The Cornells bought the next-door lot in 1963. After the land was surveyed 16 years later, the Cornells first realized that the true lot line between their lot and Otto’s lay some feet north of the line on which Dolfo had planted the trees. Dolfo refused to accept the survey results, and in 1980 he sued to establish his title to the property up to the tree line. A few months later, Richard Cornell cut down Dolfo’s four maple trees.

The trial court found that Dolfo had acquired the strip of land on which his maple trees had stood by advwrse possession, and awarded him damages for the destroyed trees.

The Cornells appealed.

Held: Dolfo had title to the disputed property, and he was entitled to punitive damages.

Dolfo based his claim to the disputed property on Wisconsin Ch. 893, Stats., which allows a person who has had uninterrupted adverse possession of land for 20 years to bring an action to establish title. Adverse possession under this section requires enclosure, cultivation, or improvement of the land, as well as physical possession that is hostile, open and notorious, exclusive and continuous for the statutory period.

“Hostility” means only that the possessor, in this case Dolfo, claimed exclusive right to the land possessed. The subjective intent of the parties is irrelevant to the determination of an adverse possession claim.

The requirement of continuity is satisfied by activities that are appropriate to seasonal uses, needs and limitations, considering the land’s location and adaptability to such use. The true owner’s casual reentry on the property does not defeat the continuity or exclusivity of an adverse claimant’s possession unless it is a substantial and material interruption and a reentry for the purpose of dispossessing the adverse occupant.

An adverse possession action can often devolve into a pissing contest …

Here, the Court found that the trial judge’s findings were sufficient to support its conclusion that Dolfo established title by adverse possession. The court found he had planted ornamental trees in 1945 and 1951 to establish the southern boundary of his lot; that at all times he claimed, maintained, and occupied the land around the trees; and that he posted a thermometer on one of the trees. The court found that the Cornells first became aware of where the boundary was located when the property was surveyed in 1979, and that Dorothy Cornell knew for 17 years before that Dolfo claimed the disputed property. The evidence showed that the Cornells never used the disputed property.

The Court of Appeals said Dolfo’s acts in planting the ornamental trees more than 25 years before the lawsuit and in maintaining the land around the trees since then constituted possession of the land by usual improvement, in the same manner a true owner might have manifested possession of land of this character and location. Regardless of his subjective intent in occupying the land – in this case, belief that he owned the property – Dolfo’s possession was legally hostile, open, and notorious.

As well, his possession was continuous and exclusive. The Cornells never tried to dispossess Dolfo until after he sued, and his adverse possession had been established. Although the Cornells testified at trial that they had used the property and were not aware that Dolfo claimed it until the lawsuit, they also admitted that they gave conflicting answers about the extent of their claim and their knowledge of Dolfo’s claim in their pretrial depositions. Apparently the Cornells raked leaves and their children played on the disputed strip from time to time, but these uses were casual, the Court said, and it was unnecessary for Dolfo to be belligerent if his neighbors happened to step across a particular line.

The trial court awarded Dolfo the replacement cost of maple trees. The Cornells argued on appeal that damages could only be assessed based on the diminished value of Dolfo’s land as a result of the destruction of the trees.

The evidence indicated that the trees were planted in a row on a small residential lot. Dolfo maintained the lawn around the trees, and when one was damaged he replaced it. The trees could be ornamental even though they marked a boundary. Had his sole purpose been to mark a boundary, Dolfo could have replaced the fence that existed before the trees, or he could have installed metal stakes or monuments.

The Court cited a Wisconsin Supreme Court decision in which the high court said, “An owner of real estate has a right to enjoy it according to his own taste and wishes… yet the arrangement… of buildings and trees selected by him might be no considerable enhancement of the sale value of the premises… and the disturbance of that arrangement, therefore, might not impair the general market value… While the owner may be deprived of something valuable to him… he might be wholly unable to prove any considerable damages merely in the form of the depreciation of the market value of the land. The owner of property has a right to hold it for his own use as well as to hold it for sale…”

The same applied here. The diminished land value rule is not exclusive. Rather, Dolfo is entitled to have his land returned to the configuration which suited him.

The trial court determined that the property lane went through the trees. The Cornells argued that they were entitled to credit for half the value of the tree, but the Court rejected the claim. “Regardless of where the trial court set the boundary after the trees were cut down,” the Court of Appeals said, Dolfo “possessed both the trees and the land around the trees since the time he planted them.” The trees belonged to Dolfo, and he was entitled to all the damage done to them.

– Tom Root


Case of the Day – Tuesday, November 13, 2018


Hawkins v. McGee - the case of the hairy hand

Hawkins v. McGee – the case of the hairy hand

There’s always a tension between the value that a lover of the land places on his or her trees and the price tag affixed to those same trees by the green-eyeshade crowd of financial experts testifying in some cold courtroom.

The general rule is that the measure of damages when trees are wrongfully cut should be the difference between the value of the property before the trees were removed and the value after the trees are taken down. Fans of the ol’ case of the hairy hand (Hawkins v. McGee) from law school remember the general diminution of value concept. Notwithstanding this staple of first-year contracts class, courts in many states have carved out exceptions to the rule for situations just like today’s case.

The problem usually arises when only a relatively few trees of limited commercial value are removed or destroyed. In today’s case, an Episcopal Church lost 22 small trees when a contractor dumped too much fill dirt – taken from a road construction project – around their bases. The Church proved in court that replacing the trees — a couple cherry trees and a score of red oaks — would cost just over $17,000. But the trial court threw the case out, because it believed that the replacement costs weren’t relevant. Rather, the trial court said, the Church was obligated to prove how much less its land was worth with the trees gone.

The "tree volcano" ... pile dirt around the base, and suffocate the sapling.

The “tree volcano” … pile dirt around the base, and suffocate the sapling. The Church lost 22 trees this way.

Holy birch bark! The problem was that the worth of the property hadn’t fallen much, it being close to a road and of limited use (there’s not that much of a market for church properties). But the Church didn’t want the diminution in property’s value for its collection plate: it wanted its trees back. The Minnesota Supreme Court had mercy on the Church, holding that where the trees served a function that was primarily aesthetic, replacement cost was a fair calculation.

Sometimes justice can’t be done by using the cold, analytical diminution-of-value approach. Occasionally, the wronged owner just plain likes the trees that had been taken, and who’s to say that because the loss may be measured psychologically rather than economically, the damaged party shouldn’t be compensated. We always thought that in such cases, the wrongdoer should be held to lose much of his or her moral standing to complain about how injured the injured party is. In this case, the Court said, that the owner’s enjoyment of the trees might not be quantifiable in a real-estate-value analysis just didn’t matter. (The second case we studied in law school, Peevyhouse v. Garland Coal & Mining Co., has always illustrated the mischief that can be done when a court ignores the aesthetic expectations of the wronged party).

The decision is necessary in the world of tree law, because otherwise, too many cases would founder on the rocks of damages: too many malefactors could cut down too many trees, and the likely penalties, even with treble damages available, would not deter the conduct.

Rector, Wardens & Vestry of St. Christopher’s Episcopal Church v. C.S. McCrossan, Inc., 306 Minn. 143, 235 N.W.2d 609 (Sup.Ct. Minn. 1975). When the Minnesota Department of Highways took about 8/10ths of an acre from St. Christopher’s to enlarge the intersection, the church lost its existing access and part of its parking area. The Rector hired C.S. McCrossan to construct a new parking space and access road.

irrelevant150123A grove of trees was located at the north end of the lot. In the process of grading, McCrossan dumped fill around the base of the trees, which the church argued caused the trees — two black cherry trees and twenty red oaks — to suffocate and die. The church’s expert testified that because of the variety, size, and condition of the trees, they had a total value of $17,267.

The church asserted that the grove of trees not only acted to screen the area from heavy traffic on two sides, but also gave the area a natural, pleasing, aesthetic, wooded atmosphere. The trial court directed a verdict for C.S. McCrossan on ground that church failed to prove damage based on diminution in value of real estate.

The church appealed.

Held: The decision was reversed. The Minnesota Supreme Court ruled that the proper measure of damages for negligence in suffocating the trees was the replacement cost of trees rather than merely the loss of value of the real estate, notwithstanding the inability of the church to prove that destruction of trees diminished the value of the property as a whole. The replacement cost of trees that have an aesthetic value to the owner as ornamental and shade trees or for purposes of screening sound and providing privacy may be considered in determining damage incurred from the destruction of the trees, to extent that the cost is reasonable and practical.

Although evidence may be presented in rebuttal that the effect on the value of land as a whole is minimal, it is for the jury to balance elements of damage in arriving at a just and reasonable award.

– Tom Root


Case of the Day – Friday, November 9, 2018


Trespass … the concept has been around for a long time. The Israelites trespassed in the Promised Land. Just ask the residents of Jericho. The Romans trespassed throughout the known world. The Pilgrims trespassed on some prime real estate, as the descendants of the Wampanoag tribe will attest. Piglet, Winnie the Pooh’s sidekick, explained to the befuddled bear that his ancestor, “Trespassers William,” was remembered in the Hundred Acre Wood by a memorial sign emblazoned with “Trespasser Will.”

Most famously, Jesus advised us to forgive those who have trespassed against us. Alas, as today’s case illustrates, that advice – like much of His teachings – are honored in the breach.

Trespass is most readily defined as unauthorized personal intrusion on land in possession of another by a wrongdoer, or by his failure to leave such land, or by throwing or placing something on such land, or by causing the entry of some other person onto such land. Because the law of trespass pops up time and again in tree cases – where some canny lawyer tries to turn the intrusion of branches over or roots under the property of another person into a trespass – it’s a good idea to brush up on the doctrine every now and then.

sodarockwine150120So pour yourself a glass of Soda Rock cabernet sauvignon, vintage 2010, and consider a recent case involving boundary dispute between Napa Valley vineyard and adjacent winery operators. About 15 years ago, Ken and Diane Wilson bought a decrepit century-old winery building north of San Francisco. Over a decade, they restored it into a thriving winery, complete with tasting rooms and amusements for oenophiles.

The rear of the winery building backs up to a vineyard belonging to Belle Terre Ranch, with a pathway or “avenue” between. A line of oak trees runs behind the winery within about four feet of the building. Thanks to the ubiquity of satellites (look up and smile!), we are able to easily understand the layout, and thus the nature of the Wilsons’ problem with the neighbors.

sodacreek150121During the reconstruction, the Wilsons regularly used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment involved in the reconstruction. Belle Terre also used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain, because it was just trying to be neighborly. Belle Terre’s permission to use the avenue was not intended to be perpetual, but rather just “to repair the winery.”

When the Wilsons applied for permits to complete the winery renovation, Belle Terre raised concerns with the county about trespass by wine-tasting patrons. One of its concerns was that a “survey should be done before a permit is issued.”

Knowing they would need a survey to plan the reconstruction, in January 2003 the Wilsons commissioned a surveyor. His survey showed the Belle Terre-Soda Rock boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

Five years later, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, dust that was settling on the grapevines and damaging the grapes. Wilson replied that the property line was about nine feet out from the winery, saying he had had it surveyed. After this confrontation, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, a line that closely corresponded to the line of oak trees.

Belle Terre’s attorney wrote a letter to the Wilsons in August 2008, telling them to stop trespassing on Belle Terre’s property. When the Wilsons continued to use the avenue, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages.

The Wilsons claimed they owned the nine-foot strip of land, and denying they were claiming any interest in Belle Terre’s property. At trial, however, the Wilsons claimed in the alternative a prescriptive easement over the disputed strip of land.

The trial was a battle of the surveyors. When the dust settled (on the grape leaves, no doubt), the trial court found in favor of Belle Terre, and issued judgment quieting title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees in the amount of nearly $117,000 under Code of Civil Procedure § 1021.9.

sodacreek2-150121On appeal, the Wilsons argued vociferously against the propriety of the $1.00 in damages, for the very good reason that if there were no damages awarded, there could be no attorney’s fees awarded.

The California Court of Appeals upheld the judgment in favor of Belle Terre Ranch, ruling that the Wilsons were permanently enjoined from trespassing in Belle Terre’s vineyard. Likewise, the Court said, where there’s a trespass, there are always damages, even if they’re not proven. Property owners possess a “dignitary interest in the inviolability” of their property rights, the Court said. Thus, “every trespass is an invasion of a legal right of another and carries with it the right to nominal damages,” even if actual damages weren’t proven.

Such damages were not proven, in this case, probably because damages were an afterthought to Belle Terre – it started out the case just wanting a court to tell Wilsons to swill their wine somewhere besides on the “avenue.” We suspect that only when their lawyers’ bills started skyrocketing past $10,000 to $50,000 to north of $100,000, did the notion of getting someone else to pay the mouthpiece take hold.

About then, we surmise, one of Belle Terre’s lawyers found a provision in California law that held that in “any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.” The law was intended to give farmers and ranchers a meaningful remedy for damage caused by trespassers breaking through fences to take motor vehicles onto private property. The statute was designed “to enhance the ability of ranchers to sue trespassers for damages, particularly in those cases where the rancher must now either compromise a significant portion of a valid claim by suing in small claims court… or by spending a major share of the recovery to pay his or her attorney.” Sweet! Suddenly, money became a driver in the case, at least enough money to pay learned counsel.

Because Belle Terre did not focus on damages, the trial court just found nominal damages of a buck. That was enough, the judge said, to assess the $117,000 in legal fees against the Wilsons.

Not so, the Court of Appeals held. After a lengthy opinion that appeared to be thoroughly crushing the Wilsons’ grapes, the Court revered the legal fees holding, thus turning a Mad Dog 20/20 opinion into a Clos Des Papes Chateauneuf-du-Pape 2012. The Court concluded that Cal. CCP § 1021.9 permitted the award of attorney fees only where there had been real damages, not just nominal or assumed damages.

Here, the Court said, the parties were primarily litigating a boundary dispute upon which a trespass claim depended, not the classic trespass case that an aggrieved rancher on a budget might need Cal. CCP § 1021.9 in order to pursue. There was no evidence of actual damage to the Belle Terre vineyards, and thus, while the $1.00 nominal damages stood, the attorney fees did not.

The lesson here – never overlook the benefit of proving actual damages. No doubt Belle Terre started out disclaiming any interest in proving damages. Had it proved even a dollar’s worth of damage from dust on the vines, ruts in the avenue, or anything else, its legal fees would have been covered.

Belle Terre Ranch, Inc. v. Wilson, Case No. A137217 (Ct.App.Cal. 1st Appel. Div., Jan. 13, 2015): Ken and Diane Wilson bought a rundown century-old winery building near Healdsburg, California, in 2001. Over a 10-year period, they restored it and opened a winery and retail operation.

The winery building backs up to a vineyard belonging to Belle Terre Ranch, with an unpaved “avenue” between them. A line of oak trees stands behind the winery within about four feet of the building. During the reconstruction, the Wilsons used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment. At the same time, Belle Terre used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain about the Wilsons’ usage for construction, but the permission was not intended to be perpetual.

The Wilsons commissioned a survey in order to plan the reconstruction of the winery. The survey showed the boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

In about 2008, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, which was settling on the grapevines, damaging the crops. At this time, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, and it closely corresponded to the line of oak trees.

After Belle Terre’s demands that the Wilsons stop using the avenue went unheeded, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages. The trial court found for Belle Terre, rejecting the Wilsons’ survey as flawed. It quieted title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees of about $117,000.

Napa Valley - idyllic, except when litigation rears its ugly head.

Napa Valley – idyllic, except when litigation rears its ugly head.

The Court of Appeals upheld the judgment in favor of Belle Terre Ranch, enjoining the Wilsons from trespassing in Belle Terre’s vineyard. It held that Belle Terre met its burden of proving the Wilsons intentionally, recklessly or negligently entered Belle Terre’s property or caused another to do so. There was evidence the Wilsons continued to trespass on Belle Terre’s property even after Belle Terre’s lawyer sent them a letter demanding that they cease. Trucks engaged in the Wilson remodel were photographed trespassing on Belle Terre’s property even past the nine-foot disputed area, and a dumpster used for the Wilson construction was placed over the nine-foot line. Belle Terre testified that the Wilsons discharged what appeared to be “gray water” onto Belle Terre’s property and also destroyed a wildlife habitat. A construction worker from Soda Rock also was seen trespassing into Belle Terre’s vineyard. The Wilsons argued there was “no evidence” linking the work performed by “unidentified construction workers” with the Wilsons’ land or improvements, but the court called this argument “patently absurd.”

The Court held that every trespass upon real property the law presumed nominal damages where actual damages are not shown. “Because property owners possess a ‘dignitary interest in the inviolability’ of their property rights. The Court said that damages, even though nominal, are considered necessary to support a judgment in a trespass tort action since it is essentially an action for damages.

However, the nominal damages will not support an award of legal fees. Here, nominal damages were awarded without proof of actual injury to real or personal property. Based on the plain language of the statute, the Court concluded an award of attorney fees is not available on the facts before us.

Nominal damages have been described as “symbolic” and are often awarded “[w]here there is no loss or injury to be compensated but where the law still recognizes a technical invasion of a plaintiff’s rights or a breach of a defendant’s duty.” In this case, Belle Terre did not present any evidence of damages to personal or real property nor were compensatory damages claimed in the prayer for relief. The Court said that award of nominal damages in the trespass action was intended to redress intangible harm to the “dignitary interests” of the landowner personally, and not injury to the land or to his personal property. In this case, the parties were primarily litigating a boundary dispute upon which the trespass claim depended. Although the Wilsons’ acts of trespass onto Belle Terre’s land arguably supported an award of nominal damages, the Court said, there is no evidence of any actual damage to Belle Terre’s property that would trigger the provisions of section 1021.9.

In cases falling within the intent of the statute, there must be some tangible harm done to real or personal property as a result of the trespass.

– Tom Root


Case of the Day – Thursday, November 8, 2018


Robert E. Lee, a man torn between duty to country and to his home state, once saidDuty is the most sublime word in our language. Do your duty in all things. You cannot do more. You should never wish to do less.”

Judges must remind themselves of that often, as they are called upon to apply laws they believe are ill-conceived in cases where the outcome seems less than just to them. The Rhode Island Supreme Court faced that unpleasant task a decade ago, being required to send an injured citizen home empty-handed after an accident at a state facility. The Rhode Island statute in question, the State’s Recreational Use Statute, gives unusually broad immunity to governmental units, classifying the people who use parks and other facilities as little more than trespassers.

Agree or not with the Court’s discomfiture at treating a user of a state recreational facility as a trespasser, one must nevertheless admire the Court’s careful application of the law, coupled with its repeated solicitation of the legislature to correct what a majority of the state’s high court sees as short-sighted policy. Clearly, the judges didn’t like what the law compelled them to do… but they saw the only remedy for that as laying with the legislature.

Labedz v. State, 919 A.2d 415 (Sup.Ct. R.I. 2007). Antonina Labedz was walking along a concrete path at Scarborough Beach, a state-owned beach located in Narragansett, Rhode Island. She tripped on an uneven surface and fell to the ground, breaking her wrist. She sued, alleging the State was negligent in “permitting a dangerous uneven condition to exist on a portion of walkway and failing to warn invitees … of the dangerous condition on the premises.” The trial court found that the State was shielded from liability by virtue of the Recreational Use Statute. Labedz appealed.

How did Ms. Labedz miss that hole? Or was the City negligent? We'll never know, because sovereign immunity stopped this lawsuit in its tracks.

How did Ms. Labedz miss that hole? Or was the City negligent? We’ll never know, because sovereign immunity stopped this lawsuit in its tracks.

Held: The State was not liable. Labedz argued that the Supreme Court should reverse prior cases which gave the State broad exemption from liability. But the Court rejected her position, noting that it had been unequivocal in its view that the unambiguous language of the 1996 amendment to the Recreational Use Statute clearly reflects the General Assembly’s intent to extend to the state and municipalities the limitations on liability afforded by that statute, most recently in Lacey v. Reitsma. The Court took the opportunity again to note its “concern about the troubling result that we felt obliged to reach by virtue of our reading of the Recreational Use Statute, and we urged the General Assembly to revisit the provisions of that statute concerning state and municipal immunity.” The Court felt uncomfortable with a statute that classified users of state and municipal recreational sites “as though they were trespassers.”

judge151022Labedz also argued that the trial court was wrong to grant summary judgment where the State could have been found liable if its conduct had been willful or malicious. She had alleged as much in her complaint, but she advanced no evidence to support her claim. But Labedz argued that it was the jury’s duty to find whether the conduct had been willful or malicious, and the trial court shouldn’t have taken away that duty by granting summary judgment without a trial. The Court ruled that if the facts were not genuinely disputed, as in this case, the law is pretty settled that a trial court may proceed to determine the existence of any legal duty without assistance from the jury.

Here, Labedz couldn’t point to any evidence that suggested the State acted willfully or maliciously, as those terms are used in the Recreational Use Statute. Summary judgment for the State was appropriate, albeit not cheerfully granted.

– Tom Root


Case of the Day – Wednesday, November 7, 2018


From the annals of neighborly chutzpah comes this tale of unmitigated gall. (Is there ever mitigated gall? Perhaps a question for another time.)

Implied view easements get a deservedly tough rap in this country. You can grant such an easement to a neighbor, and the courts will enforce it. But that is hardly ever the case, except in planned communities, where restrictive covenants control from the color of your house to whether you can have kids that aren’t cute.

Usually, it is a case where the neighbors have an expectation that nothing will ever change once they buy their property. Trees won’t grow, new buildings won’t go up, a new Dollar Tree won’t be built across the street. When life goes on, they respond with a suit alleging that life is spoiling the view.

But today’s case takes the cake. Here, the neighbors were accused of spoiling the view the plaintiffs anticipated someday having if they ever got around to building a patio from which to have a view. In other words, you can’t have it because I might want it someday.

There’s a good reason (besides slamming down uppity neighbors) such implied easements are never found to exist. Imagine the confusion. A buyer could identify all of the written easements on the land, but he or she could never know what unwritten easements in favor of presumptuous neighbors might be lurking out there. And the lenders could not be sure, either. Pretty soon, getting financing would be much tougher, finding willing buyers would be much more complex, and before you know, progress grinds to a halt.

It may seem crass and commercial, but recall the real estate market of seven years ago. No one is served by a return to that.

Kruger v. Shramek, 5 Neb.App. 802 (Neb.App. 1997). Eric and Ann Kruger bought a lot in the Eagle Run West subdivision of Omaha in late 1991. Two years later, John and tammy Shramek bout the lot next door. The Krugers preferred to savor the thought of building a house, while the Shrameks – a pair of go-getters – got right on it.

Both lots abut the picturesque 18th hole of the Champions Golf Course. When the Shrameks started building, they reviewed their plans with the subdivision developer, who approved them. The Krugers were another story. They complained about a change of water flow caused by the Shramek’s regrading. They complained about the fence. Mostly, they complained that the Shramek’s landscaping would ruin the view of the 18th hole from their yet-to-be-constructed patio.

The Shrameks tried to accommodate their would-be neighbors. They moved their downspouts underground and ran them to the golf course. They changed removed a berm, transplanted trees closer to their house, and removed some of the fill dirt near the property line between their lot and the Krugers’ place. Nothing worked. The Krugers remained dissatisfied with the potential obstruction of the view from their hypothetical house caused by the Shrameks’ backyard improvements.

This being America, they sued for an injunction to stop the Shrameks’ from developing their property, seeking an order requiring the Shrameks to restore the rear of their property to its original grade, remove the present fence, and remove the trees. They claimed the Shrameks’ improvements were a private nuisance. The district court denied the Krugers any relief, holding that the change in grade on the Shrameks’ property actually improved the Krugers’ view of the golf course, and at any rate, the improvements made to the Shrameks’ property were not so substantial an invasion of the Krugers’ use of their property to justify the injunctive relief requested and that due to Horgan’s approval of the Shrameks’ construction.

The Krugers appealed.

Held: The Krugers got no injunction.

An injunction is an extraordinary remedy and ordinarily will not be granted except in a clear case where there is actual and substantial injury. Such a remedy should not be granted, the Court said, unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.

The Court said a private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of his or her land. Nebraska follows § 822 of the Restatement (Second) of Torts, which provides that “one is subject to liability for a private nuisance if, but only if, his or her conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land and the invasion is intentional and unreasonable. With respect to a nuisance in the context of an action in equity, the invasion of or interference with another’s private use and enjoyment of land must be substantial.”

The general rule is that a lawful building or structure cannot be complained of as a private nuisance merely because it obstructs the view of neighboring property. This rule flowed from the repudiation of the traditional English doctrine of ancient lights. Under that doctrine, a landowner acquired an easement for light across an adjoining landowner’s property and could prevent the adjoining landowner from obstructing the light once the easement was established by the passage of time. The ancient lights doctrine as applied to claims involving views has been repudiated by every state considering it. One basis for the doctrine’s repudiation is that “it is not adapted to the conditions existing in this country and could not be applied to rapidly growing communities without working mischievous consequences to property owners.” The doctrine essentially created an unwritten negative prescriptive easement over a neighbor’s property, which would frustrate the purpose of the recording statutes, one objective of which is to ensure that all property rights are recorded and discoverable by a diligent title search.

The Court adopted the majority rule that a lawful building or structure, including landscaping improvements associated with any such building or structure, cannot be complained of as a private nuisance merely because it obstructs the view of neighboring property. “Based upon this proposition of law and our determination that the improvements made by the Shrameks were lawful,” the Court ruled, “we conclude that the district court did not err in denying the Krugers injunctive relief based on their private nuisance theory.”

– Tom Root


Case of the Day – Monday, November 5, 2018


Not Bullwinkle -- Moose River is named for a generic moose, we understand.

  Not Bullwinkle – Moose River is named for a generic moose, we understand.

With the autumn leaves finally popping, it’s a perfect time to drive up U.S. Route 201 a pretty good way, up past Jackman and Wood Pond. There, you’ll happen on beautiful little Moose River, Maine, population 219. Located about 10 miles as the crow flies from the Canadian border, the little town is everything simple and natural that a harried city dweller could imagine about such a bucolic place.

Being a little backwater has some disadvantages. Too small for municipal buildings, the town officials are expected to greet the public and transact the town’s business from their homes. That’s what Elizabeth Bell, the town clerk, did. One January day in 2004, Linda Rodriguez – who had just moved there from Arizona and perhaps was unfamiliar with the concept of winter – was leaving Elizabeth’s home cum office when she slipped on the steps. Unfortunately, the handrail was missing. Liz had noticed it was wobbly, and her hubby removed it for repair. Being a spouse of the male persuasion, he hadn’t quite gotten around to fix it yet. The playoffs were on the weekend before, you know.

Liz didn’t have homeowners’ insurance against claims for personal injury because she believed “neighbors don’t sue… neighbors.” Sadly, it turned out that some of them – the ones from Arizona – do. Liz defended by claiming that she was protected by governmental employee immunity. The Town, on the other hand, argued it was her house, and the Town had no control over it, so it had no liability. Even in friendly small towns in rural Maine, it’s “every dog for himself” when the subpoenas start flying.

Ms. Rodriguez - having just moved in from sunny and hot Arizona - apparently was surprised to find the white stuff was slippery.

        Ms. Rodriguez – having just moved in from sunny and hot Arizona – apparently was surprised to find the white stuff was slippery.

The trial court found that Liz was not immune from liability but the Town was. On appeal, the Maine Supreme Court agreed that her failure to replace the handrail had nothing to do with her government function. As for the Town, the Court said, like it or not, Liz’s place was a public building and the Town could be liable for negligence. And judging from the comments on the news report, some Maine residents see it as another case of “flatlanders” messing things up in Maine.

Rodriguez v. Town of Moose River, 922 A.2d 484 (Sup.Ct. Me., 2007). The Town of Moose River has a population of about 230 residents. Like other small towns in Maine, the Town does not own an office building suitable for conducting Town business. As a condition for holding office, the Town required the town clerk to conduct official duties at her personal residence. The Town conducts its selectmen’s meetings at a selectman’s home.

In March 2000, Elizabeth Bell was elected town clerk and tax collector. Accordingly, she opened her home to the public to conduct Town business. The Town brought its computer, file cabinets, desk, and office supplies to Liz’s home. She placed a sign on the side of her house, which read, “Moose River Town Clerk and Tax Collector.” Shel received about $300 per month as compensation for her work for the Town. During an average year, approximately 200 people would enter her home to conduct Town business.

Moose River isused to different day-to-day hazards than steps without handrails.

      Moose River is used to different day-to-day hazards than steps without handrails.

On January 23, 2004, newcomer Linda Rodriguez went to Liz’s home with her husband and two children to register two motor vehicles. She had called Liz beforehand to schedule the appointment. There was some snow and ice on the sides of the steps leading into the Bell home, but the middle of the steps was clear. During the registration process, Linda had to leave the home office to retrieve her checkbook. After conducting her business, Linda exited the home carrying one of her children in a car seat. She fell when she stepped down to the middle cement step outside, injuring her leg as a result of the fall.

Prior to Linda’s fall, there had been a handrail on Bell front steps. Liz’s husband had removed the handrail when he noticed that it was wiggling, but did not check with the Town before doing so. Linda sued Moose River and Liz, claiming they had been negligent in failing to properly maintain the Bell property. The trial court denied Liz’s motion for summary judgment, holding that she was entitled only to discretionary function immunity. The trial court granted the Town’s motion for summary judgment, finding that Liz’s residence was not a “public building” pursuant to the immunity exception of the Maine Tort Claims Act, 14 M.R.S. § 8104-A(2).

Liz and Linda both appealed.

Held: Liz was denied immunity, and the dismissal of the Town as a defendant was reversed.

The Maine Supreme Court said that whether discretionary function immunity applies depends on whether the challenged act, omission, or decision (1) necessarily involves a basic governmental policy, program or objective; (2) is essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of them; and (3) requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. Of course, the governmental agency involved possesses the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision.

The question with respect to Liz’s entitlement to discretionary function immunity, the Court said, was whether her failure to install or replace the handrail on her front steps constituted a discretionary act “reasonably encompassed” by her duties as the town clerk and tax collector. Generally, operational decisions, such as those regarding the safety or maintenance of premises, fall outside the scope of discretionary function immunity, unless those decisions serve some other government policy or purpose. Here, Liz’s decision on the handrail did not involve a basic governmental policy related to performing duties as the town clerk, was not an act essential to the realization or accomplishment of such a policy, and did not require her to exercise a policy evaluation, judgment, or expertise. Rather, her choice not to replace the handrail (or rather, her acquiescence in her husband’s sloth) resembled a decision ordinarily made by the general population, relating to the duty of care a landowner owes to the people who enter upon his or her property. Thus, she was not entitled to discretionary function immunity.

steps150121However, Liz was entitled to limited liability as a government employee. Pursuant to 14 M.R.S. §8104-D, the personal liability of an employee of a governmental entity for negligent acts or omissions within the course and scope of employment are subject to a limit of $10,000 for any claims arising out of a single occurrence. Because she was required to open her home to the public as part of her duties as town clerk and tax collector, the Court found, Liz’s failure to replace the handrail on her stairs was an act within the scope of her employment.

As for the Town, the Maine Tort Claim Act holds that governmental entities are liable for negligent acts or omissions in the construction, operation or maintenance of any public building or the appurtenances to any public building. For all intents and purposes, the Court said, Liz’s home functioned as a public building as well as her private residence. By its plain meaning, a “public building” includes “[a] building that is accessible to the public.” Here, the residents of Moose River had no choice but to go to Bell’s home to perform legally necessary Town business, such as registering motor vehicles and paying taxes. Liz put a sign on her home, allowed residents to come into her home to conduct official Town business, and did not restrict her hours of service. The Court concluded that on the specific facts of this case, her home was a “public building” within the meaning of the Tort Claims Act.

– Tom Root


Case of the Day – Friday, November 2, 2018


Oh, how it’s good to be king!

I recall my shock as a naïve law student, when I learned that you couldn’t sue the government unless it gave you permission to do so. Huh? What if you, an individual, could wrap your arms around your man purse and tell a putative plaintiff, “You can’t touch this?” Sweet.

If one had the power to deny someone else the right to sue, who – I wondered in my first-year law cluelessness – would ever give anyone else permission to sue? 

The answer, of course, is the government.

The Federal Tort Claims Act and the various state tort claims acts are wonders of obfuscation. At first reading, it seems the governments are taping a big “kick me” sign to their virtual backs, inviting people to go for the really deep pockets. But then, you read the fine print and slowly comprehend that the right to sue has more holes in it than a cheese grater.

Still, occasionally, a political subdivision will discover that even with all of the exemption loopholes in your typical state tort claims act, it’s still wriggling on the hook. Note in today’s case – in which a motorcycle rider blames some county commissioners for not trimming the trees around a stop sign – how the county tries mightily to hide behind the Oklahoma Governmental Tort Claims Act. Somehow, even with a host of exceptions written into the Act, the Board of County Commissioners could not find a shield against liability.

Lopez v. Board of County Commissioners of Cherokee County, 383 P.3d 790 (Okla.Civ.App. 2016). Teresa Lopez was a passenger on a motorcycle operated by Glen Baker when he turned left, failing to yield to a stop sign. Tom Molloy struck Glen’s Harley, seriously injuring Teresa. She sued Glen and Tom, and claimed the Board of County Commissioners of Cherokee County Board was negligent in failing to trimming the vegetation that she said obstructed the view of both drivers. Teresa maintained that the Board “had a duty to maintain advance warning signs and [sight] line vegetation control” at the intersection.

The Board filed a motion for summary judgment arguing that it was immune from suit for Teresa’s claims under the Oklahoma Governmental Tort Claims Act and that it could not be held liable for any claims related to the placing of traffic control signs at the intersection. Teresa argued the GTCA exemptions do not apply and the Board had a duty to maintain foliage around its county road intersections, including its rights of way and beyond.

The trial court granted the Board’s motion for summary judgment, finding the GTCA exemptions applied.

Teresa appealed.

Held: The Board was not immune under the GTCA.

The first exemption the Board relied on for immunity was § 155(4), which states “a political subdivision shall not be liable if a loss or claim results from… adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy.”

The Board argued that Teresa complained it had “failed to adopt a policy that would require its mowers to mow beyond the 16½-foot statutory right-of-way.” Teresa responded that she did not claim that a lack of policy was to blame for the overgrown foliage, but rather the “negligent manner in which they cleared the subject intersection.”

The Board asserted as an undisputed fact that the obstructing foliage was located on private property and that it “only mows foliage within its statutory right-of-way, not on the land of other property owners.” The Court held, however, that “evidence in the record does show the Board, as it has in the past, could have sought permission from the landowner to remove the vegetation but did not in this case.” But other evidence suggested that Board employees never mowed over 5 feet on either side of the road because of the width of the mowing equipment. “Based on this record,” the Court said, “the Board has not established that it mowed the entire width of its ‘statutory-right-of-way’ at this intersection.”

Even if the foliage on the intersection’s east side was located on private property outside the right-of-way, the Board did not establish the absence of overhanging limbs or shrub overgrowth within the right-of-way for which it has admittedly assumed responsibility. The Court held Teresa was entitled to the inference that some of the foliage and vegetation obstructing the motorcycle drivers’ views was located in the County’s right-of-way. Therefore, the Court said, a dispute of material fact remains regarding the applicability of this exemption, and summary judgment pursuant to 51 O.S. § 155(4) on this question was improper.

The second exemption the Board relied on is § 155(5), which states “a political subdivision shall not be liable if a loss or claim results from… performance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees.” The Board argued that the decision to mow the area at all was its discretionary decision.

The state and its political subdivisions are specifically exempt from liability if the loss results from the performance or failure to perform a discretionary act or service. But the discretionary function exemption from governmental liability is limited to initial policy level or planning decisions. On the other hand, the Court ruled, “operational level decisions made in performance of policy are considered ministerial and the government is not exempt from liability with respect to operational decisions.”

Put simply, the Court said, a municipality has discretion whether to do or not to do a public work or improvement… The duty is discretionary up to the time that it is determined to do the work or improvement.” However, “after the work is ordered and involves merely the execution of a set task, nothing remains for discretion: the duty becomes ‘ministerial’ or ‘operational’ and requires the municipality to do the work with reasonable care and in a non-negligent manner.”

Here, one of the board members testified he could refuse to do any mowing district wide if he so chose, but he admitted he had never refused to do so. In fact, he conceded that “mowing is part of the operational responsibilities of Cherokee County” and that, ordinarily, the County would “try to stick with the right-of-way” because otherwise it would “catch trouble” from property owners.

Neither party disputed that the County had in the past and could have in this instance sought the property owner’s permission to clear the vegetation and foliage that Teresa claimed was obstructing visibility at this intersection. “These actions do not fall under the County’s discretionary function exemption but constitute operational responsibilities,” the Court held, and thus § 155(5) did not apply to this case.

The third exemption claimed by the Board was § 155(10), which provides, “The state or a political subdivision shall not be liable if a loss or claim results from… natural conditions of property of the state or political subdivision.” The Board argued that “it is clearly undisputed that the growth of vegetation is a natural condition of Board property.” The Board did not cause the vegetation to grow; it was “a natural process of all vegetation throughout the world.” To the extent that Teresa’s claim arose from “the natural growth of vegetation on the statutory right-of-way,” the Board said, it was “exempt from liability from the claim under” § 155(10).

The Court, however, held that “natural conditions” were simply conditions over which a person has no control. “The vegetation here was clearly not a condition ‘over which [a person] has no control’,” the Court ruled, “because the Board admittedly had the responsibility to mow and maintain its statutory right-of-way at the intersection.” Therefore, § 155(10) did not apply.

Finally, the Board contended § 155(13) shielded it from liability because a “claim based on failure to inspect government property at regular intervals is exempt from liability.” The Board characterized Teresa’s claim as being “essentially a claim that the Board did not properly inspect the road to determine whether additional mowing of vegetation needed to be done.”

The Court disagreed, holding that “maintenance of property is not the same thing as inspection of property for § 155(13).” A landowner may be liable for negligent maintenance of property irrespective of its inspection powers or functions, the Court said. Thus, an exemption arising from an inspection power or function could not include becoming aware of circumstances “in a general sense without also bringing many types of negligence cases within the class of exempted claims.” To hold otherwise, the Court said, “would put in doubt the viability of every GTCA claim based upon what a defendant should have known…” and thus expand the application § 155(13) to the point “that many other provisions of § 155 would be superfluous.”

The inspection exemption in § 155(13) describes the exercise of a particular governmental “power” or “function,” not a simple familiarization with one’s own property. Governmental entities exercise inspection powers and functions in many contexts, the Court observed, but not where inspection would merely familiarize the Board with its own property.

The Board seemed to assert that a failure to inspect the road to determine whether additional mowing needed to be done constituted an inspection function covered by § 155(13). The Court said, “Because no particular governmental inspection power or function is at issue in this case, we conclude § 155(13) is not applicable.”

Teresa was able to take the Board to trial.

– Tom Root