Case of the Day – Monday, February 5, 2018


                   Congratulations to the Eagles on a great game.

Referees make mistakes. Look at last night. That sure looked like pass interference in the Eagles end zone during the 2nd quarter. And was that Corey Clement catch in the 3rd period really a touchdown? And that Ertz touchdown in the 4th period? Don’t get us started…

Judges make mistake, too. If that weren’t so, there’d hardly be a need for courts of appeal or even the Supreme Court.

In today’s case, an electric utility sued back in the 1960s to force a landowner to give it an easement for building and maintaining power lines. The court granted the easement — which consisted of four separate rights — but somehow left out the part where it got an easement of 25 feet on either side of a right-of-way to keep trees trimmed. Some 45 years later, the utility wanted to assign its right to the City of Jackson, Missouri, so the City could build its own power line.

The case ended up in court, where the utility argued that just because the 1969 court forgot to mention the 25-foot easement, that didn’t mean it wasn’t there. After all, the utility asked for it and the court never said it couldn’t have it. And when the damages were assessed so the landowner could get fair compensation for the condemnation, the commissioner charged with assessing the cost included the 25-foot easement. Just an oversight, the utility argued.

There’s an old adage in the law that a court speaks through its record. And in this case, while the 1969 Order probably did omit the 25-foot easement through oversight, that didn’t matter. The Order was clear and unambiguous in how it described the easement. Where the language is clear, a reviewing court won’t second-guess.

The 25-foot wide strips were not covered by the prior easement, no matter what the parties may have meant at the time. Like the Dramatics’ old song went, “Whatcha see is whatcha get.”

dramatics150923City of Jackson v. Bettilee Emmendorfer Revocable Trust, 260 S.W.3d 913 (Mo.App., 2008). The Bettilee Emmendorfer Revocable Trust owned land in Jackson, Missouri, which had been subject of a condemnation action 40 years before when the property was owned by others. Back then, Union Electric petitioned for rights over four portions of the land: a 100-foot easement, for the purpose of installing electric transmission lines, 25-foot sections on either side of the 100-foot easement for maintaining trees, overhanging branches and obstructions, two smaller for use in connection with the transmission lines, and an easement for ingress and egress.

The court’s order in that prior case granted Union Electric the 100-foot easement, easements to the two separate parcels, and an easement for ingress and egress. However, the court failed to mention Union Electric’s request for an easement on the 25-foot strips on either side of the 100-foot easement. A report of commissioners filed in the case indicated the commissioners viewed the 25-foot sections on either side of the 100-foot easement as well as the 100-foot portion itself to be within the easement, and it set damages at $22,224.

In October 2006, Union Electric entered into an agreement with the City of Jackson to allow Jackson to build a new electric line on the eastern edge of the 100-foot easement. Jackson and Union Electric entered into a partial assignment of the easement in accordance with that agreement. But noticing the old trial court order had a hole in it, the City sought a declaration of rights as to whether the 1969 condemnation action awarded Union Electric the 25-foot sections on either side of the 100-foot easement, whether Union Electric has the right to assign to Respondent the right to construct an electric transmission line on the 100-foot easement, and whether the construction of an additional electric transmission line amounts to an additional taking of property from the Trust. The Trust asserted the 1969 Order made no mention of an easement or other rights condemned or established on either side of the 100-foot easement. The Trust also argued that construction of an additional electric transmission line would increase the burden on the property “beyond the scope of the intended and authorized use of the easement,” the grant of the easement would be “inconsistent with the original use of the easement,” and the additional utility poles and electric transmission lines would interfere with reasonable use and enjoyment of the property.

The trial court held that Union Electric’s easement included the right, permission and authority to trim, cut and remove trees, overhanging branches and obstructions on 25 feet on each side of the 100 feet right of way which may endanger the safety of or interfere with the transmission lines, and it had the power to assign the right to the City. The Trust appealed.

What the court's actual order says is what goes ...

What the court’s actual order says is what goes …

Held: The 25-foot strips are not covered by the easement. The 1969 order establishing the easements made no mention of and contained no reference to the 25-foot sections on either side of the 100-foot easement, and thus, those portions are not part of the easement. When interpreting easements, courts ascertain the intention of the grantor from the instrument itself. Only when the language of the deed is “unclear and ambiguous” should a court resort to the rules of construction and consider extrinsic evidence. A contract is not ambiguous simply because parties disagree about its meaning. Rather, an ambiguity arises only “when the terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms.

Here, the Court said, nothing in the lower court language was unclear or ambiguous in the documents creating the easement, thus leaving a court to judge the easement only by the plain language of those documents without the need to refer to extrinsic evidence. The report of the commissioners, while it apparently valued the 25-foot sections in determining damages, does not supersede the court’s unambiguous order.

As for the right to assign, the Court held, it was equally clear and unambiguous that the order granted the easement holder the ability to construct a “line or lines,” permitted the holder to “add to and relocate” the electric transmission lines, and referenced “successors and assigns,” thus indicating that assignments are permitted.

– Tom Root


Case of the Day – Friday, February 2, 2018


The solid rock on which the many decisions on landowner liability for trees that fall on neighbors’ land, houses, cars and sundry possessions is the unremarkable notion that a landowner is not responsible for damage caused by the natural condition of the land. In other words, if it’s just a tree growing naturally on the property – and not some exotic species you saw on your last safari, and just had to plant in your backyard in scenic Bugscuffle, Tennessee – any damage it might cause by shedding its limbs or invading with its roots is pretty much an Act of God.

A monkey on Gibraltar ... but no monkeyshines at Gibralter Fire & Marine Insurance - the company wanted Mr. Griefield to pay.

A monkey on Gibraltar … but no monkeyshines at Gibralter Fire & Marine Insurance. The company wanted Mr. Griefield to pay for the damage that his fallen limb had caused.

Or such was the case in 1946, when the Gibraltar Fire & Marine Insurance Co., tried to collect money from Mr. Griefield for damage his tree had done to its insured. Mr. Griefield told Gibraltar that it had rocks in its head if it thought he was liable for damage caused by a falling limb. But Gibraltar wasn’t monkeying around. It sued, claiming in essence that a landowner was liable whenever one of his or her trees caused harm to a neighbor.

The case didn’t involve questions of whether the tree was diseased, whether Mr. Griefield had a duty to inspect his trees, or whether any defects in the tree were readily apparent. Decisions refining a landowner’s duty – even where the tree is a natural condition of the land – were years in the future. Rather, today’s case established as rock-solid the principle that a landowner has no obligation to trim or take other steps to limit the damages that a tree growing as a natural condition of the land might otherwise cause to a neighbor.

The Mississippi Supreme Court pondered the issue in 1946. Because the decision – although written with some of the ruffles and flourishes typical of decisions of that era – is fairly short, we set it out in full:

Mr. Griefield's tree was a sturdy, natural, plain vanilla oak.

Mr. Griefield’s tree was a sturdy, natural, plain-vanilla variety oak.

Griefield v. Gibraltar Fire & Marine Ins. Co., 199 Miss. 175, 24 So.2d 356 (Sup.Ct. Miss. 1946). This action was begun by the appellee in a County Court and was there tried by agreement by the Judge without a jury, resulting in a judgment for the appellant, but which was reversed by the Circuit Court and a judgment was there rendered for the appellee. The case was tried in the County Court on an agreed statement of facts, which the Reporter will set out in full.

The test of the appellant’s liability vel non is whether the tree from which this limb overhung the land of the appellee’s assignors was of natural growth or had been planted by the appellant or a former possessor of her land. If the latter is the case, liability appears, 4 Restatement, Torts, § 839; Buckingham v. Elliott, 62 Miss. 296, 52 Am.Rep. 188; but if the former is the case the appellant is not liable, 4 Restatement, Torts, § 840, Comment (a). The former is the case here, for there is nothing in the agreed statement of facts to indicate that the oak tree was not of natural growth.

Perhaps an exotic balloon tree in your backyard? Sure ... just remember, it's probably not a "natural growth" on the land.

        An exotic balloon tree in your backyard is probably not a “natural growth” on the land.

The broad language of the opinion in Buckingham v. Elliott, supra, if given effect, would sustain the judgment of the Circuit Court, but when the authority of that opinion is limited, as it should be, to the issue then before the court, it will be seen that the judgment there rendered is not in conflict with the rule announced in 4 Restatement (Torts), § 840, for the trees there, the roots of which caused the plaintiff’s damage, were not of natural growth but had been planted of the defendant’s land. The appellant was under no obligation to the appellee’s assignors to remove the limb of the tree which overhung their land, and her gratuitous promise so to do was not binding on her, but the appellee’s assignors had the right at all times to themselves remove so much of the limb as overhung their land. 1 American Jurisprudence, Adjoining Landowners, § 56.

The judgment of the Circuit Court will be reversed and the judgment of the County Court will be affirmed.


– Tom Root

Case of the Day – Thursday, February 1, 2018


intent160205Intentional grounding? You can bet that was the call after Mr. and Mrs. Peters bought a lot next to the Kriegs.

The Peters didn’t know where the lot lines were. Their real estate agent didn’t, either. Ah, details, details … That didn’t stop them from hacking down trees on the property as soon as the ink was dry on the deed, in order to build their dream house. You probably know where this is going. Harry Peters, acting as his own tree service, goofed, and cut down 29 trees on the Kriegs’ land.

The Peters admitted their honest error. OK, they intended to ground the trees. They just didn’t know that the trees they grounded were the Kriegs’. They were willing to pay for the mistake. But what they were not willing to do was pay the treble damages authorized in the law for wrongful timber cutting.

It was sort of like the intentional grounding foul in football. It’s one thing to get assessed a 10-yard penalty. But on top of that, the team loses the down. Sort of like the double whammy (or triple, if you like) of the statutory multiplier for wrongfully cutting trees.

BMarker140130 C’mon, the Peterses said, there wasn’t any evidence they knew they were cutting Kriegs’ trees. The Court pointed out that the state of the evidence was precisely the problem. It was up to the Peterses to prove that they thought the land was theirs. The wife’s testimony was all they had offered, and it didn’t help: she explained they didn’t really know where the boundaries were, and never bothered to find out. But the biggest problem was what Mr. Peters testified to: nothing. He was the one who cut the trees down, and the Court seemed to expect that he would have material testimony to offer. But he didn’t testify.

Ch 1 Art.xlsThere’s a well-known principle in evidence known generally as the “missing witness instruction.” It holds, as the legendary Professor Wigmore put it, that “the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” In other words, if you have particular control of evidence, and you do not bring it forward, a court is allowed to assume it would have been harmful to your cause if you had done so.

The Court didn’t say it here, but it strongly implied that the absence of testimony from Harry Peters led it to conclude that if he had taken the stand, he wouldn’t have helped his cause any.

Krieg v. Peters, 46 A.D.3d 1190, 850 N.Y.S.2d 211 (N.Y.A.D. 3 Dept., 2007). In May 2004, the parties became adjoining property owners when the Peters family purchased the vacant lot next to the Kriegs. The Peterses intended to construct a house on their property, so Mr. Peters began clearing land without consulting the map referenced in their deed or having a survey conducted. He removed 29 trees from Krieg’s property. Following a jury trial, the Kriegs were awarded damages, including treble damages under New York statute for the removal of this timber. On appeal, the Peterses only contest the treble damages award.

Held: The treble damages were upheld. Under RPAPL §861[2], the New York treble damage statute, in order to avoid treble damages, the Peterses had the burden of proving by clear and convincing evidence that when they removed the trees from the Kriegs’ property, they “had cause to believe the land was [their] own.” Their proof in this regard was woefully inadequate. Mrs. Peters was the only defense witness to testify on this critical issue, and the appellate court found that her testimony had been more damning than helpful in sustaining their burden. She said that, before she and her husband purchased the property, she walked it on one occasion with their realtor. At that time, she specifically asked about the boundary lines but the realtor couldn’t answer her question with any certainty. She said she told her husband of the realtor’s uncertainty when they later walked the property together. She also candidly admitted that no steps were taken to obtain a survey or consult the map referenced in their deed before clearing the land. The Court found it significant that, although he had logged the property, Mr. Peters never testified. It found plenty of evidence that the defendants had no cause to know whether the land Mr. Peters was logging belonged to them or not.

The Peterses also argued that the legislature never intended for RPAPL §861 to apply to individuals such as themselves who make “honest” mistakes about boundary lines. The Court disagreed, holding that on its face, the statutory scheme clearly applied to the facts and circumstances of the case and, in the absence of sufficient proof on defendants’ part to avoid treble damages, it didn’t find the treble damage award to be inconsistent with the law’s purpose or intent.

– Tom Root



Case of the Day – Wednesday, January 31, 2018


Most of the time, the object of a civil lawsuit is to collect damages. Damages may either be compensatory – intended to compensate, or to put the victim in the same place he or she would have been had the wrong not occurred – or punitive, intended to punish the wrongdoer.

Today, we’re going to talk about compensatory damages. How much has an injured party been damaged by loss of or damage to trees? The first question to be answered generally is whether the trees were commercial or “ornamental” in nature.

If the tree that was taken was commercial timber, the calculation is straightforward. Courts use either the stumpage value or the timber value. Stumpage value and timber value estimates are both depend upon timber volume estimates, which in turn are based upon the raw data collected in the field by timber cruisers. Put another way, estimating the value of timber taken in a trespass involves a three-step process. First, a timber cruise is conducted and measurements are taken in the field. Timber cruising includes identifying a tree species, taking stump diameter measurements, taking measurements from the stump to the top of the tree left on the ground, taking measurements of any logs left on the ground, and recording measurements on a tally sheet. Second, the collected measurements are then converted into volume estimates using established mathematical formulas. Third, those volume estimates are then converted into value estimates.

The distinction between timber value and stumpage value only comes into play during the third step of the process. Stumpage value is the value of standing trees or what one might pay for the right to cut and remove trees. Timber value which is the value paid by mills for cut logs. If timber value is used, it would be fair to argue to the Court that a deduction should be included for the cost of cutting and hauling the lumber. But where the timber trespass was especially egregious, don’t hold your breath waiting for compensatory-damage compassion from the bench.

But what about where the tree is not commercial timber, like that 80-year old oak that used to shade your front yard before a confused tree service company employee cut it down, thinking he was to be at your house instead of one two streets away. The single oak’s commercial value won’t begin to compensate you for the loss.

There’s always a tension between the value a lover of the land places on his or her trees and the price tag affixed to those same trees by bean counters testifying in some cold courtroom. That’s why courts in many states apply different rules when the wrongfully taken tree was a stately old elm shading the farmhouse, a tree with maybe $1,000 in timber value but much greater value to the wronged property owner. The fact is that the wronged owner just plain likes the trees that had been taken, and the fact that his or her enjoyment of the trees might not be quantifiable in a real-estate-value analysis, makes little difference.

Anderson v. Howald, 897 S.W.2d 176 (Court of Appeals of Missouri, 1995). Melba Anderson discovered the limits of gratitude. For 40 years, she had let her neighbors, the Howalds, use a 7-foot wide path across the corner of her land to get to their property. In 1991, the Howalds – apparently deciding that they shouldn’t settle for free use of a mere path where a free superhighway could be installed – brought bulldozers onto the Anderson land to “improve” the path. They knocked down trees, dug up rocks and gouged things out but good.

Ms. Anderson sued and won an injunction throwing the Howalds and their bulldozer out, but the trial court only gave her $6.40 in damages.

She appealed.

Held: The puny damage award was reversed. The Court of Appeals noted that “ordinarily, the measure of damages… is the market value of the property at the time it was removed from the land.” In this case, the trees being shade and ornamental trees of no commercial value, that value was slight. That seemed to offend the Court, especially when it saw the photos in the record of the extensive damage done by the Caterpillars.

The Court held that “in at least one instance, this court approved the use of before and after values of the real estate as a measure of damages… where the things taken, injured, or destroyed by a willful trespass have no substantial market value, when considered in their severed state. The “general rule is that the measure of damages for trees which are not valuable for timber is the injury to the land caused by destroying them. This rule is based on the obvious reason that the value of such trees considered apart from the land would not be adequate compensation for the trespass.”

Courts, then, generally apply a measure of damages that considers the fair market value of the property with the tree and without the tree (which can be substantial for a single very large specimen that is the signature tree on the property). More often, the courts hold that the proper measure of damages is replacement cost of trees rather than value of real estate, even if the property owner cannot prove that destruction of trees diminished the value of the property as a whole.

Courts often permit consideration of such replacement costs where the trees have an aesthetic value to the owner as ornamental and shade trees or for purposes of screening sound and providing privacy in determining damages. Because one simply cannot replace a 50-year old sugar maple tree with a like tree, the courts apply a multiplier to the replacement cost to account for the number of years it will take for a replacement tree to reach the size and maturity of the tree that was removed.

– Tom Root


Case of the Day – Tuesday, January 30, 2018


There are all sorts of ways that tree trimmers can die. They can cut an artery, or fall from a bucket truck, or even get walloped by a branch. On occasion, they even get fried by electric lines.

None of it is pretty, either before or after the funeral. After the dust settles, the decedent’s estate (that is, the people the dead guy left behind) look for someone to sue. Usually the pickings are sparse. Maybe the bucket truck was defective, and the employer, the manufacturer and the mechanic who serviced it can be sued. Maybe it was a defective saw, and everyone who ever touched it can be a defendant. But negligence actions are expensive, and contrary to legend, they pay out a jackpot less often than a rigged lottery. Those lawyers on the back of phonebooks (there are still phonebooks, aren’t there?) and in the late-night ads? They won’t charge plaintiffs up front, but they’re pretty picky about which cases they’ll take.

Of all the potential defendants out there, you would think that an electric utility would be the toughest nut to crack. What, you’re going to sue because the overhead wires had electricity in them? C’mon, man.

But every once in a great while, the utility is found to be liable for essentially having done nothing. Such is the case in today’s decision, which – while it does not involve a tree – gives us an excellent principle to apply to arboriculture activities.

Cyril Cronk lost his life by electrocution while digging a ditch for a water main on the south side of Park Avenue in Des Moines, Iowa. Iowa Power and Light had electric transmission lines running overhead, and a backhoe boom got close to one of the lines. It turned out that the boom did not have to touch the line for high voltage to jump the air gap. When it did, and Cyril (down on the ground) touched the backhoe, he became the ground wire. Not good.

The three lower wires on IPL’s poles were not insulated, which was permitted by the electrical code that applied to the line, although insulating material was available for such lines.

As it turned out, IPL was on notice of the water main work, or as the court put it, “It was reasonably to be anticipated and the defendant either knew or should have known that men would likely be working in the streets with modern machinery, such as was used in this instance, for the purpose of excavating or digging ditches or trenches for the laying of water mains.”

But the power lines were clearly visible to the guys on the ground. And the lines were necessary for the public good, and the danger that would result coming in contact with such lines was hardly unknown. So the conclusion of the court that IPL was responsible for Cyril’s death is surprising. Maybe it was because the electric company had a deep pocket.

Tree trimmers find themselves working in proximity to power line frequently. Would putting the power company on notice ahead of time make Reddy Kilowatt a codefendant if the unthinkable happens? Regardless of whether it did or not, it would probably be a good idea, just for the extra level of safety power company participation in the project might bring.

Cronk v. Iowa Power and Light Company, 138 N.W.2d 843 (Supreme Court, Iowa, 1966). The deceased plaintiff on whose behalf the suit was brought, Cyril Cronk, had been a water works employee. He was working on the ground helping free a crane bucket when the boom came in contact with a high voltage transmission line and he was electrocuted.

The trial court found liability strictly on the utility company’s failure to warn of the danger or insulate the wire after the utility company was fully aware the work was going to be done near the line and the company had time to give a warning or insulate a wire. Defendant Iowa Power and Light (“IPL”) appealed.

Held: The Iowa Supreme Court held that the electric utility was liable. Compliance with the safety code is relevant to the question of due care, but not determinative. Proof of compliance with the standards furnished by the National Electrical Safety Code is not conclusive proof on the question of IPL’s due care. Actionable negligence may exist even though the utility company complied with the requirements of the safety code.

It was IPL’s duty to use reasonable care to prevent the escape of electricity in such way as to cause injury to persons who might lawfully be in the area of danger incident to escape of electricity from such lines. One furnishing electricity, while not an insurer, is nevertheless held to the highest degree of care consistent with the conduct and operation of the business. A person or corporation maintaining and controlling wires for the furnishing of electricity to others must insulate their wires at all places where there is a likelihood or reasonable probability of human contact by people whose business or duty or rightful pursuit of pleasure brings them without contributory fault on their part into the zone of danger. However, in the absence of statute, this duty does not compel the company to insulate or adopt safeguards for their wires everywhere but only at places where people may reasonably be expected to come in proximity to them.

The Supreme Court held that the evidence supported finding the utility company had been negligent in failing to insulate wires at such a point, that the negligence had been the proximate cause of Cronk’s death.

– Tom Root


Case of the Day – Monday, January 29, 2018


Don’t ever let your local attorney pull an abscessed tooth. And do not let your dentist practice law.

Dr. Ma needed a new office after he lost his lease to redevelopment. He found a vacant dentist’s office next to a vacant church. The empty dental abatoir was run down and needed work, but otherwise it was perfect. Dr. Ma signed a purchase agreement, which expressly advised him not to rely on anything the seller or his broker said, but instead to hire his own consultants to check the place out stem to stern.

But Dr. Ma was a dentist. According to a current ad campaign, dentists can fix stalled cars, stop bank robbers in their tracks, free people trapped on an elevator… all sorts of stuff. Sort of like Macgyver with a mouth mirror. Dr. Ma didn’t need any other licensed professionals to check the property out. He could handle it. He was, after all, a dental professional.

Dr. Ma would never miss a cavity. But he did miss the fact that the property’s fenced side yard, which was the only access to  shed in which he had installed the air compressor that ran all of his dentist stuff, was really not his at all. Instead, almost all of it was part of the church. In fact, the 6-foot fence that enclosed the side yard was 3½ feet onto the church land.

A few months and countless fillings later, Dr. Ma got a letter from the church property owner, saying Grace Chinese Alliance Church wanted to buy the church property, but a survey showed Dr. Ma’s shed and fence was on first land. Dr. Ma should have referred the matter to legal counsel right then, but he was a dentist. A trained professional. He had this covered, too. The good doctor wrote back, saying “no problem”: the church property owner could remove the fence whenever it needed to. Based on this answer, Grace bought the vacant church.

However, 8 months later, when the Grace Church elders were ready to have the fence moved back to the real property line, Dr. Ma told them to go floss. Hd told them they could not move the fence, and if they tried, he would give them a root canal without novocaine. Or call the police. Or both.

First Dr. Ma said “yes.” Then he said “no.” Up and down, kind of like a yo-yo. “Yo-yo” Ma, it seemed.

The Church was not about to turn the other cheek. It sued, and Dr. Ma – who by now had a lawyer – claimed he had a prescriptive easement.

Everyone is familiar with adverse possession. If you squat on someone else’s land long enough without their permission, the property may become yours. A prescriptive easement is the easement version of that, a right to use a portion of someone else’s property gained by brazenly using it without permission for a sufficient period of time. If a claimant uses a property owner’s driveway without permission to reach the claimant’s back lot, and does it openly, regularly and continuously for long enough, the claimant gets a prescriptive easement. It does not prevent the property owner from using his own driveway: rather, it just lets the claimant use it, too.

To establish a right to a prescriptive easement in California, a claimant must prove use of the property in question for the five years.* The use has to be (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. Even where all of these elements are met, “when a claimant cannot satisfy the requirements for adverse possession, the claimant may not receive a prescriptive easement which extends so far that it becomes the equivalent of a fee interest and dispossesses the record title owners of part of their property.”

A true prescriptive easement does not deprive the property owner of the right to use the affected property, but rather just limits that use in favor of whatever rights the claimant has established. Dr. Ma argued he had a prescriptive easement, but his failure to determine the boundaries of his own property when he should have and his promise to let the Church move the fence when it needed to didn’t help him make his case. The real problem, however, was that Dr. Ma wanted exclusive use of the disputed property, and if he got that, it would deny Grace Church the ability to use the disputed property at all and would frustrate Grace’s intended use of the vacant chapel as its place of worship.

That dentist-as-MacGyver ad campaign we mentioned promise a “different kind of dentist.” Dr. Ma should have been a different kind of dentist: the kind who uses surveyors and lawyers early enough that these sorts of problems don’t happen.

Grace Chinese Alliance Church of the Christian and Missionary Alliance of West Covina v. Lin Ma DDS, Inc., Case No. B272415 (Ct. App. California, Second Appellate District, Jan. 25, 2018), 2018 Cal. App. Unpub. LEXIS 511

In 2010, Dr. Ma was looking for a commercial property to which to relocate his dental practice. The property at issue in this case, the Hayden property, had been used as a dental office at one time, but it was vacant and in disrepair.

Dr. Ma met with Hayden’s real estate agent to look at the property. One of Dr. Ma’s concerns was having a place to locate the air compressor used to power his tools. He discovered that the property had a compressor room, accessible only from the outside from a yard along the side of the building adjacent property owned by Grace Chinese Alliance Church. The side yard was completely fenced in; it was about six feet wide from the building to the fence.

Dr. Ma entered into an agreement to purchase the Hayden property. The standard form agreement included provisions allowing Ma 30 days to obtain a survey of the property; acknowledging that Ma was buying the property in its existing condition, and that no representations, inducements, promises, agreements, or assurances concerning the property had been made by the seller or his broker, and advising Ma to retain his own consultants to investigate the property. In addition to these standard provisions, the parties added several other provisions, including that “Seller and Buyer have agreed that there will be no credits given to Buyer with regards to the condition and the size of the property”; and “Seller and Buyer acknowledge that Broker has made no representations or warranties regarding the physical condition of the property. Seller and Buyer are relying on their own independent investigation in making or accepting this Agreement.”

After closing, Dr. Ma moved his dental practice into the Hayden property. A few months later, he received a letter from a lawyer for Grace Church, who said the Church property was subject to a sale escrow, and that a boundary survey conducted in connection with the sale showed that a fence and shed along Hayden’s east property line was encroaching into the Church property by about 3½ feet along nearly the entire length of the boundary between the two properties. The letter asked Dr. Ma to agree the encroachment could be removed, and Ma replied, “We have no problem with whatever you want to do with the fence as long as it is on your property. Please let us know your future plans if the fence is removed, so that we can prepare for any security issues to our office related to this.” In reliance upon Dr. Ma’s friendly response, the Church completed purchase of the Church property and began renovations.

Eight months later, Grace Church’s pastor wrote to Dr. Ma, telling him that for the Church to meet City codes for parking lots, it had to move the fence to the correct property line, and a piece of the encroaching shed had to be torn out. which required the Church to repave the entire parking area. The Church offered Ma $500 to help him defray the costs of compliance.

This time, getting Dr. Ma’s cooperation was like pulling teeth. He wrote back, telling the Church its survey was both unrecorded and bogus. The Church recorded the survey, but Dr. Ma continued to argue. He said the fence had been in its current location when he purchased the Hayden property, and he had spent more than $50,000 improving the side yard where the encroachment existed. He said his possession and improvement of the property had been open and continuous, and that the disputed property therefore was his, or, if not, he at least had an easement by prescription. He threatened to call the cops if the Church tried to remove the fence.

The Church sued Ma to quiet title and get his fence and shed off of its land. Dr. Ma counterclaimed, saying he had a prescriptive easement to use the disputed 3½ feet, or at least an equitable easement. The trial record showed the fence was 6 feet tall, with locked gates on both ends, and that the Church did not have access to its property on the other side of the fence. The Church needed to move the fence in order to use the property behind it to comply with certain parking lot requirements for the Church’s conditional use permit. The trial court ruled against the dentist, and Dr. Ma appealed.

To establish a right to a prescriptive easement in California, a claimant must prove use of the property in question for the five years.* The use has to be (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. Even where all of these elements are met, “when a claimant cannot satisfy the requirements for adverse possession, the claimant may not receive a prescriptive easement which extends so far that it becomes the equivalent of a fee interest and dispossesses the record title owners of part of their property.”

The problem here is that a true prescriptive easement does not deprive the property owner of the right to use the affected property, but rather just limits that use in favor of whatever rights the claimant has established. If a claimant uses a property owner’s driveway without permission to reach the claimant’s back lot, and does it openly, regularly and continuously for long enough, the claimant gets a prescriptive easement. It does not prevent the property owner from using his own driveway: rather, it just lets the claimant use it, too.

Here, if Dr. Ma got a prescriptive easement to use the disputed property, the Church could not use it at all. The fence prevented the Church from getting a permit to build a parking lot. Without a parking lot, Grace could not conduct services for its parishoners. Not only could Grace Church not use the disputed area behind the fence along with Dr. Ma, but its whole intended use of the church property would be frustrated.

The trial court found that Dr. Ma could not be granted a prescriptive easement because to do so would deny the Church of all of its rights to use the property. Thus, even if the court erred in finding that DDS failed to establish that its use of the disputed property was hostile, the court’s denial of the prescriptive easement was proper. The Court of Appeals agreed that in some circumstances, a court could find an exclusive prescriptive easement to be justified. “But those circumstances are very limited, and involve instances where the easement was necessary to allow a utility to provide an essential service, such as water or electricity, or to protect the health and safety of the public.”

The Court of Appeals was probably influenced by the fact that Grace Church only bought the property because of Dr. Ma’s letter saying that the fence could be moved to the correct position. It did not help that after Dr. Ma told Grace Church that he disbelieved its survey, all of Ma’s own surveys showed Grace was right. It also did not help that testimony showed the dentist had tried to make a secret deal with the seller in order to cut out the broker’s fee, or that Dr. Ma tried to get the judge thrown off the case on a spurious claim of bias. Whatever, Dr. Ma did not come out of trial looking like someone who was entitled to equity, and things did not improve on appeal.

Unsurprisingly, with regard to Dr. Ma’s request for an equitable easement, the court found the equities did not weigh much in his favor. It noted that, on the one hand, the Church was unable to function as it wanted to function because it could not complete its parking lot as required for its conditional use permit without access to the disputed property; on the other hand, Dr. Ma could not show he would suffer any comparable hardship, even if he had to move the compressor or any other equipment from the shed as a result of the fence being shifted to the correct property line.

The Court of Appeals agreed. In order to be awarded an equitable easement, a claimant must be innocent. “That is, his or her encroachment must not be willful or negligent. The court should consider the parties’ conduct to determine who is responsible for the dispute. Second, unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff ‘will suffer irreparable injury… regardless of the injury to defendant.’ Third the hardship to the defendant from granting the injunction ‘must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.”

The trial court found that the Church would be irreparably injured if an easement were granted because it would be unable to function as it wanted to function. It also found that Dr. Ma failed to show he would suffer any hardship if the easement were denied that would come close to the hardship suffered by the Church if the easement were granted. Because Dr. Ma did not even try to show those findings were unsupported by the record, the Court of Appeals denied his request for an equitable easement.

* The length of time needed for an adverse possession or prescriptive easement varies from state to state. California’s 5-year period is actually much shorter than virtually all other states.

– Tom Root


Case of the Day – Friday, January 26, 2018


You would think that a church could get along with its neighbors. Maybe it was the Methodist elders. Maybe the neighbor was a minion of hell. Who can tell from the abbreviated decision in today’s case, handed down by the New York Supreme Court, Appellate Division.

A word of caution here: New York is not like the rest of the world. In New York State, the Supreme Court is a trial court, the Supreme Court Appellate Division is the court of appeals, and the Court of Appeals is the supreme court. There – isn’t that easy? So the next time someone claims to be on the New York Supreme Court, just say, “yeah, you and a thousand other judges.”

Today’s decision involved a party wall, hardly a matter of importance to most folks. But the principle is an important one. Trespass is one of those common law torts (consider a tort to be a “wrong”) that can be committed all to easily. You don’t have to intend to commit a trespass. All you have to do is intend to step where you step. So if you trip on the sidewalk and fall onto someone’s front lawn, it’s not a trespass, but if you step off the sidewalk to avoid a puddle, it is.

What’s more, in every trespass, damages are presumed. There have been cases where people trespassed, thinking they were on their own property, and actually left the place better off than before they arrived. No matter. The law presumes they damaged it.

Obviously, this can cause all sorts of nonsensical results. For that reason, while the law will always assume damages, it won’t always order the trespass to end. Sometimes, the trespass causes so little inconvenience to the property owner and – if it were ordered to cease – would cause such injury to the trespasser, that an injunction would not make sense. The law will generally avoid ordering a result that is wasteful.

In today’s case, Mr. Kimball installed drip edge and cladding on the party wall, with a small portion of it (we’re talking inches) protruding over the Church’s vacant property. Drip edge prevents rainwater and ice melt from running under the shingles and into the wall. Cladding is a finish such as vinyl siding, covering the rather ugly concrete block wall. It protruded onto church property probably 2” beyond where the wall stood.

What would have been the point, other than sheer orneriness, of making Mr. Kimball rip the siding and drip edge off the wall? After all, those additions were needed only because the Church tore down its building, leaving a bare wall exposed to the elements. The court of appeals was not going to demand such a wasteful and damaging result.

The law is not always an ass.

Kimball v. Bay Ridge United Methodist Church, Case No. 2017-03575 (Sup.Ct. New York, Appellate Div., Jan. 24, 2028), 2018 N.Y. App. Div. LEXIS 443. Mr. Kimball and the Bay Ridge UMC owned buildings with a party wall, that is, a common wall along the property boundary that supported and was integral to both buildings.

Lord only knows what went on between the Church and the Kimballs, but things seemed to start when the Methodists tore down their building a decade ago (leaving the party wall, of course, because it was part of Mr. Kimball’s building, too. About seven years after the church building was razed, Mr. Kimball installed cladding and a drip edge along the church side of the wall.

For reasons not clear in the opinion, Mr. Kimball sued the Church for a declaratory judgment and injunction. The Church rendered unto Caesar itself, and its lawyers counterclaimed for trespass, because Mr. Kimball’s cladding and drip edge extended however so slightly into Church airspace, on the holy side of the party wall. In addition to damages, the Church wanted an injunction requiring Mr. Kimball to tear out the cladding and drip edge.

The trial court granted the Church’s trespass complaint, awarding it damages and ordering Mr. Kimball to remove the offending installation. Mr. Kimball appealed.

Held: The appellate court agreed that there was undoubtedly a trespass, but drew the line at an injunction. New York law provided that an “action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land [but n]othing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify.”

In order to obtain injunctive relief under the statute, the appellate court said, the Church was “required to demonstrate not only the existence of [an] encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to [the encroaching party] from granting such relief.” Here, the Methodists did not show that the “balance of equities weighed in its favor.” In other words, what it gained by having Mr. Kimball rip out the cladding and drip edge was bupkis, maybe an inch of space eight feet or so off the ground. But by tearing out the cladding and drip edge, Mr. Kimball would lose the ability to keep water from rotting his roof and joists.

So Mr. Kimball had to pay some damages (and they probably amounted to $1.98 or so), but the law would not make him rip out the cladding and drip edge to satisfy the Church elders.

– Thomas L. Root