Case of the Day – Monday, April 2, 2018


Donald Trump carried Ohio in the 2016 presidential election by 8 percentage points. Some critics have argued it’s because he’s favored by an “uneducated and testosterone fueled bunch” of white men.

dunce160927We’ll leave politics to the trained professionals, but we think it’s high time Ohio takes you all to school, even if it’s only about tree law. We have some thinking people here (we think). Just to prove our arboreal mettle, we’re going to spend the next three days talking about a single Ohio case, a lengthy decision that’s a veritable final exam in tree law.

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

Serious questions, indeed. So we’ll leave the walls and Russia investigations and immigration reform and tweets to others, and travel to sunny Darke County, where megafarmer Dick Levy has just had one of his farmhands trim a property-line fencerow by ripping down offending branches with a trackhoe. He claims the Massachusetts Rule lets him use anything short of tactical nuclear weapons to vindicate his tree-trimming rights. The Court is more cautious…

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

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

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

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

A trackhoe removing a tree… rather a blunt instrument.

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

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

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

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

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

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

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

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

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

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

Dick Lavy Farms appealed.

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

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

Section 901.51 of the Ohio Revised Code provides that:

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

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

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

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

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

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

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

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

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

– Tom Root


Case of the Day – Friday, March 30, 2018


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

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

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

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

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

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

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

Love v. Klosky, Case No. 16SC815 (Supreme Court Colo., Mar. 19, 2018). Carole Bishop and Mark Klosky and Shannon and Keith Love own adjacent parcels of land in Denver’s Washington Park neighborhood. A 70–foot tall catalpa tree towers over two adjacent properties. At the base of its trunk, the tree sits roughly three-quarters on the Kloskys’ property and one-quarter on the Loves’ property. The tree began growing on the lots well before the parties moved in, and no one knows who (if anyone) planted it. Whatever its pedigree, the tree sheds leaves, seed pods, and branches on both properties.

Catalpa tree

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

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

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

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

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

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

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

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

– Tom Root


Case of the Day – Thursday, March 29, 2018


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

Today’s plaintiff, Betsy Stibler – whom the court of appeals suggests just may be hypersensitive – apparently had gotten used to seeing for miles and miles from her kitchen window. Or at least to the 18th hole of the golf course next door. When The Country Club, Inc., owner of the eponymously-named facility next door (and you have no idea how badly we have wanted to used “eponymously” in a blog) planted a number of additional trees on its gold course – trees that neither hung over or grew under Betsy’s property, she sued. Sued for no better reason than the trees interfered with her seeing the goings-on on the golf course.

OK, the world is full of people like Betsy. Not only do they claim a right to the air they breathe, they claim the air we’re breathing, too. And everything is personal. (Note that Betsy did not just sue because the Country Club’s trees blocked her view of its property, she claimed the trees were planted maliciously, for the purpose of annoying her). But most of those other Betsies don’t have the spare change to hire a lawyer to sue the offending tree planters. Those who do have the money usually have better sense than to fritter it away in a foolish lawsuit, and even then, who don’t have that good sense usually cannot find a lawyer with the same reckless approach to litigation as they do. They enter their attorney’s office full of rage, and then he or she patiently talks them off the ledge.

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

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

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

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

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

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

Betsy appealed.

Held: The trees are not a nuisance.

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

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

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

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

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

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

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

– Tom Root


Case of the Day – Wednesday, March 28, 2018


We had a call recently from a North Dakota lawyer, who was involved in a tree case where the standard for measuring damages being considered was the “cost to cure.” He wondered whether we were familiar with the concept.

In losses due to wrongful cutting of trees, we traditionally see damages being applied as diminution of value of the property (noncommercial trespass), the value of the timber (in commercial trespass cases), and, occasionally, restoration value (the cost to restore that which was lost). The ultimate goal, as we once noted, “is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss.”

The question posed our attorney friend from the Flickertail State left us scratching our heads, (not a good idea, because it dislodged some of the little hair we have remaining): it sounded to us that “cost-to-cure” was being used in the case as a fancier name for restoration costs (sometimes called replacement costs). The only place we had seen the term “cost to cure” used was in condemnation cases. A Texas appellate decision in such a case defined the “cost-to-cure” approach as “an appraisal technique used to arrive at the taken property’s market value and the diminished market value of the remainder, which included the cost to replace improvements taken, damaged, or destroyed, after they have been appropriately depreciated.

The attorney asked us whether we could verify “that the Cost of Cure Method has been accepted by the Courts.” Not really. Our problem is that “cost of cure” has been accepted by the courts in condemnation cases, where the government decides to take your property for some more-or-less debatable public “good.” But we have never seen it called “cost of cure” in a tree damage case, where “cost of restoration” is the term applied, when that measure of damage is called for.

Nevertheless, for today we found a condemnation case from Michigan, which tangentially involves trees (and thus, meeting our exacting standards for this blog). So, as a consolation prize, let’s see how a fruit farmer tried to jack up the value of the loss of 20% of his acreage with a “cost to cure” analysis, and how the Court – channeling Publilius Syrustold him the cure couldn’t be better than the disease.

Dept. of Transportation v. Sherburn, 196 Mich.App. 301, 492 N.W.2d 517 (Mich.App. 1992). Loris Sherburn was a fruit farmer along Lake Michigan. When the Michigan Dept. of Transportation decided to extend U.S. 31 in Berrien County, it took 28 acres of Loris’ 124-acre farm. A court battle ensued, as it often does, over the value of the property taken. The State argued the value of the 28 acres was $47,200. Farmer Sherburn argued the property carved off his farm was worth closer to $183,000, claiming that this was the cost to cure the loss caused by the loss of the acreage.

The trial court found Loris was entitled to $56,600 for the condemnation of 28 acres of the farm.

Loris appealed.

Held: Loris was only entitled to $56,600. The Court of Appeals acknowledged that in a condemnation case like this one, when only part of a larger parcel is taken, the owner is entitled to recover not only for the property taken but also for any loss in the value to his or her remaining property. The measure of compensation is the difference between the market value of the entire parcel before taking and the market value of what is left of the parcel after the taking.

Loris’ expert witness used the “cost to cure” method of calculating damages. The appellate court agreed that the cost to cure method is a measure of damages which may be considered by the jury, provided the cost to cure does not exceed that difference between the market value of the entire parcel before the taking and the market value of what is left of the parcel after the taking.

MDOT’s expert witness, an independent real estate appraiser, calculated the value per acre of the farm, which made the place worth $122,800 for all 124 acres. Using the same method, he found the 96-acre parcel remaining after condemnation to be worth $75,600. He therefore concluded that Loris Sherburn’s damages were $47,200, the difference between the value of the entire parcel and the value of the remaining parcel after condemnation.

Farm Sherburn had different ideas. His first expert witness, a real estate appraiser, using a comparable sales method testified that the market value of the farm before condemnation was $215,000. He also estimated it would cost the farmer about $183,000 to replace the mature vineyards, peach and apple trees, and buildings lost in the condemnation. The witness contended that Loris, in addition to retaining possession of the remaining 96 acres, should recover the $183,000 cost-to-cure damages.

Loris’ second witness, an independent fee appraiser, testified that, using the market data approach, the market value of defendants’ farm before the taking was $345,000, while the market value of the remaining 96-acre parcel after the taking was $139,000, leaving a difference of $206,000.

The Court of Appeals agreed with Loris that where a partial taking occurs, it is possible for the property not taken to suffer damages attributable to the taking. “These damages have been described as ‘severance damages’,” the Court held, “which may be measured by calculating the difference between the market value of the property not taken before and after the taking. Where severance damages have occurred, it may be possible for the property owner to take steps to rectify the injuries in whole or in part, thus decreasing the amount of severance damages and correspondingly increasing the parcel’s market value.” These actions constitute a “curing” of the defects, according to the Court of Appeals, and the financial expenditures necessary to do so constitute the condemnee’s cost to cure.

However, the Court held, the cost-to-cure damages in a given case are not unlimited. Where the market value of the property taken, the value of the property remaining, and cost-to-cure expenses exceed the market value of the land before condemnation, cost-to-cure damages will not be awarded. “An owner is not to be enriched because of the condemnation,” the Court said.

This leaves “cost-to-cure” damages as a valid measure of damages “only when it is no greater in amount than the decrease in the market value of the [remainder] property if left as it stood.” Thus, the Court concluded, “where there is no claim of severance damages, the maximum damages recoverable equal (the market value of the entire parcel before the taking) minus (the market value of the remainder after the taking). Where severance damages are claimed, the maximum damages recoverable equal (the market value of the parcel taken) plus (the market value of the remainder after the taking) plus (the cost-to-cure expenses); however, the total damages awarded may not exceed the fair market value of the whole parcel before the taking.”

For Farmer Sherburn, the trial court correctly concluded that cost-to-cure damages are not recoverable to the extent that they exceed the market value of the entire property before the taking.

– Tom Root


Case of the Day – Tuesday, March 27, 2018


Emily Bernges, my sainted Latin teacher, would have been proud. We all recall René Descartes and his famous “Cogito ergo sum,” the philosophical proposition “I think, therefore I am.” For today’s case, I have coined a new maxim: “Ceciderit lignum ideo debitum.”

Today’s case, a fairly pedestrian fallen-tree situation, features a plaintiff that everyone will love to hate, an insurance company. When a tree fell on the neighbor’s garage, the victims, alliteratively named Robert and Roberta, called their local insurance agent. The insurance company paid off. Under the agreement hidden in everyone’s policy that gives the insurer the right to step into the insured’s shoes – called subrogation – the insurance company sued the neighbor whose tree fell.

One has to wonder why the insurance company even bothered. It agreed before trial that the neighbor had no idea – nor should he have had – that there was anything wrong with the hackberry tree.

Descartes was arguably right when he said, “Cogito ergo sum.” I think, therefore I am. But the Latin maxim, “Ceciderit lignum ideo debitum,” which Mrs. Bernges would have translated, “A tree falls, therefore, I pay…” That’s not so catchy, and, as we will see, it’s just plain wrong.

Not so, but sometimes they’re rather obtuse…

American Family Insurance v. Anderson, 107 P.3d 1262 (Kan.App. 2005). Dean Anderson owned property next door to a place belonging to Robert and Roberta Stenfors. One summer evening, a hackberry tree on Dean’s property blew over onto Bob and Bobette’s garage. The Bobs called their insurance carrier, American Family Insurance, which paid to remove the tree and fix the garage, at a cost of $24,837.47.

American Family the sued Dean, claiming he had been negligent in letting the tree fall on the Bobs’ garage. Bob moved to have the claim thrown out, and the trial court obliged.

American appealed.

Dean owed nothing for the fallen hackberry. A directed verdict is appropriate where no evidence is presented on an issue or where the evidence is undisputed and is such that the minds of reasonable persons may not draw differing inferences or arrive at opposing conclusions.

In this case, American Family had to establish that Dean had a duty to the Bobs, that he breached the duty, and that the breach caused the damage to the garage. The Court said that in order for Dean to have had a duty to remove the hackberry tree before it fell, he first had to have actual knowledge that the tree was defective, or there had to be evidence that any reasonable person would have understood meant the tree was defective (which is known as “constructive knowledge”).

Before the trial ever began, American Family stipulated that Dean lacked actual or constructive knowledge the tree was defective. But American Family urged the appeals court to look at the evidence presented at trial. Bob and Bobette, joined by Roy, the guy they hired to remove the fallen hackberry, recalled an incident a decade before in which Roy told Dean he should remove the hackberry along with an adjacent rotten tree. Roy admitted, however, that the hackberry seemed to have gotten healthier in the ensuing 10 years. Roy testified he saw no outward signs of disease or decay on the tree and did not believe the average non-tree person could have seen any indications of internal rotting. The appeals court concluded that based on this record, the testimony presented at trial also failed to establish that Dean had actual or constructive knowledge of the tree’s defects.

American Family also argued the tree was a nuisance. Under Kansas law, “[a] person is liable in damages for the creation or maintenance of anything that unreasonably interferes with the rights of another, whether in person, or property, and thereby causes [him or her] harm, inconvenience, or damage.” The court of appeals said a nuisance is not a separate type of tortious conduct. Rather, in this case, American Family’s nuisance claim was a “sub-variant” of its negligence claim.

A hackberry tree.

The trial court threw out American Family’s nuisance claim because the insurance carrier did not prove Dean had knowledge of the tree’s defective nature. The tree appeared healthy and contained no outwardly visible signs of decay or disease. Further, the trial court noted the tree has withstood 90-mile per hour wind gusts two months before it fell. A reasonable person, the trial court concluded, would not under these circumstances have removed the tree.

The appellate court held that American Family’s failure to prevail on its negligence claim doomed its ability to establish that the tree was a nuisance. Knowledge that the tree presented a danger to Bob and Bobette’s property was crucial, and American Family did not show that Dean knew or should have known of the tree’s defective condition.

American Family’s Hail-Mary argument was that the fallen tree presented a strict liability situation. The appellate court made short work of the claim, noting that the insurance company never raised strict liability at trial, and it could not do so for the first time on appeal.

– Tom Root



Case of the Day – Monday, March 26, 2018


Anglo-American jurisprudence is built on stare decisis, the notion that a decision, once rendered, may be relied upon by future generations to be a correct and reliable explanation of the law.

It does not always work this way. Some decisions are sufficiently wrong-headed (take, for example, Plessy v. Ferguson, that reversal is both legally and morally right. But reversal of precedent is never undertaken lightly.

That’s what a Pennsylvania decision that’s almost 80 years old can make its way into our lineup. Dare v. City of Harrisburg is old, but it’s still good law. As an application of the law of nuisance, as well as an explanation of the police power of a municipality to regulate nuisances for the commonweal, this case is fresh enough to have been tweeted just yesterday. It’s an old case, but a good one.

Mr. Dare clearly was a guy who loved his Carolina poplar. The tree is vigorous and rapidly growing, and – at least by the account in the case – can sniff out a water source like a bloodhound working a spoor. When it finds a water source – especially one as nutrient-rich as a sewer, it pries the source open like a squirrel cracking a nut.

Great for the tree. Not so great for the sewer. Or the city that has to maintain it, or the poor homeowner who watches unspeakable things backflow into his or her basement.

Carolina poplar – a cottonwood-family tree

Dare v. City of Harrisburg, 16 Pa. D. & C. 22 (Pa.Com.Pleas. 1930). In August 1925, the City of Harrisburg established a Shade Tree Commission under an Act providing for the planting and care of shade trees. A few short years later, the Commission ran headlong into Mr. Dare, who had a healthy, full-grown 35-year-old Carolina poplar shade tree in front of his property, one of nine such trees along the street.

In fall 1929, the Shade Tree Commission order the Carolina poplar removed, to be replaced with a Norway maple tree.

The Norway maple was well suited to the Harrisburg climate and soil The Carolina poplar, on the other hand, grows rapidly, is short-lived and has fibrous roots which can extend up to 100 feet in search of water. The roots have a tendency to penetrate the smallest crevices, and particularly enter sewers seeking moisture and food.

The City had a sewer about 38 feet from the tree, which was clogged twice, backing up into nearby homes, during the summer of 1929. Each time, crews pulled bushels of small matted Carolina poplar roots from the sewer. The Shade Tree Commission found that Mr. Dare’s Carolina poplar tree was likely to continue to clog the sewer, costing the City money and causing sewer backups that damaged other homes.

Mr. Dare argued that Commission’s proposal to remove the tree was arbitrary, unreasonable and an abuse of any discretion which the statute may have vested in the Commission. He said the problem was a shoddily-built sewer, and that removing the tree constituted an unconstitutional taking of his property without compensation.

Held: The tree was a nuisance, and the Shade Tree Commission could order its removal without paying compensation to Mr. Dare. The evidence showed that the tree grew out to the sewer and stopped it, different from a case where the growth of the city around the tree was what created the condition now being called a nuisance.

The Court admitted that “it is a serious matter to destroy a beautiful shade tree and thus somewhat diminish both the market value and the advantages of one’s home. But when the tree has become a nuisance and the municipal authorities have upon proper evidence so determined, the court cannot say that a determination to remove such tree is either arbitrary or unreasonable.”

The Shade Tree Act of 1907 gave the Commission the “exclusive and absolute custody and control of and power to plant, set out, remove, maintain, protect and care for shade trees.” This language, the Court said, gives the commission the exclusive power to remove. A municipality has a right to control trees and to remove them, and that courts will not interfere unless there is an abuse of discretion or the power is exercised willfully, wantonly and unnecessarily. Where trees become a nuisance, the municipality does not act in the exercise of eminent domain but under the police power and needs no permissive statute.

Nor must the City pay compensation to the tree’s owner. The Court agreed with the principle from a Municipal Corporations treatise that “without regard to who owns trees in the street, the municipality has the right to control them, and it may in proper cases in the interest of public safety, convenience or health, cut them down. It is well settled that a municipality, even in the absence of a permissive statute, may remove trees, when necessary as against the objection of the abutting owner, without compensation, in connection with making improvements on the street, or where they are an obstruction to travel. For example, to improve and render a highway safe and convenient for travelers, to carry out a plan or system of street improvements, or to prevent the roots of trees from clogging a city sewer.”

Mr. Dare cited Bushong v. Wyomissing Borough, a prior case, in which municipal authorities were denied the right to remove a private landowner’s tree. But there, the Court said the City attempted to remove Norway maple trees (which is the species intended to be substituted in the instant case), which were well adapted to the conditions in the borough, and to plant in its place a Crimean linden, which had not been planted in the borough before and was not an established shade tree. In that case, the Court said, “it was very properly held that shade trees were not nuisances per se, and that the removal of beautiful and ornamental trees which add to the desirability and the value of properties, merely for the sake of uniformity, would be exercising an unreasonable and arbitrary power. But in the case of Mr. Dare’s Carolina poplar, there was “no question of the removal of the tree for the purpose of making municipal improvements, thus exercising the power of eminent domain or merely removing the tree to plant a tree of another kind, which may not be any better adapted to the soil and environment. The question is whether the city has the right, in the exercise of its police power, to direct the removal of a tree which has become a nuisance. We base our decision on that proposition alone.”

– Tom Root


Case of the Day – Friday, March 23, 2018


Filthy_animal140324Any fan of the Christmas comedy hit of the 1990s, Home Alone, remembers Angels with Dirty Wings. It was the film noir movie that the kid protagonist played repeatedly, the mobster’s taunt – “Keep the change, ya filthy animal” – punctuated with a spray of .45 cal. bullets from a Model 1928 Thompson submachine gun, being used as part of the boy’s plot to keep the bad guys at bay.

In today’s case, the angel is Angel’s Path, a developer, and the dirt on its wings slid off a big mound the company put right on its property line as it built houses. The neighbors didn’t much like the dirt sliding into their back yard, and weren’t big fans of the stagnant water that collected after every rainstorm. But when Angel’s Path asked for summary judgment on the trespass and nuisance claims the Peters brought, for some reason they opposed it on the cheap, with an affidavit from Mr. Peters and a bare letter from their engineer.

It’s seldom a good idea, saving money at the most crucial moment in the litigation. Better to adhere to the old law school maxim, “too much is not enough.” You have affidavits from five experts? Use ’em all. You have five boxes of documents? Attach ’em. Opposing a motion for summary judgment is no time to spare the horses. Here, Mr. Peters should have had an affidavit from his engineer, his own survey done by a registered surveyor and recorded down at the county building, and enough pictures of shifting dirt piles and standing water to start his own Instagram site.

angelsfight140324But he didn’t. The trial court granted summary judgment to Angel’s Path, finding the survey of property lines — showing the dirt piles on its own land — more persuasive than Mr. Peters’ affidavit claim that the dirt had sloughed over the line. Peters’ affidavit was “self-serving,” the trial judge complained.

The Court of Appeals reversed. Sure the affidavit may be a little self-serving, the Court said, but for purposes of summary judgment — a fairly high bar for a defendant to leap — the Court had little problem believing that a property owner knew where his own boundary lay. The summary judgment test, after all, is whether the evidence, taken in the light most favorable to the party against whom summary judgment is sought, shows there’s no material question of fact.

This standard required that the trial court assume that any reasonably detailed facts Mr. Peters raised in his affidavit were true. If after doing this, the court still believes that Peters was not entitled to a judgment, then summary judgment could go for Angel’s Path. It was pretty clear that Mr. Peters was going to need a whole lot more persuasion at trial to pull the halo off Angel’s Path, but for now – at the summary judgment stage– his showing was enough to stay in the hunt. Just barely.

Incidentally, this case was brought with a companion case from the Kramers, who sued Angel’s Path, too. That decision is an interesting study in nuisance and trespass. We’ll consider that decision tomorrow.

angelspath140324Peters v. Angel’s Path, L.L.C., Slip Copy, 2007 WL 4563472 (Ohio App. 6 Dist., 2007). Clarence and Nanette Peters said that Angel’s Path, LLC, a developer, damaged their two residential properties. As a result of residential property development by Angel’s Path, dirt mounds at the edge of the development property caused water run-off and flooding on their adjacent land. They sought restraining orders to prevent Angel’s Path from trespassing on their properties or continuing to alter the natural flow of water, as well as damages.

Angel Path filed a motion for summary judgment, arguing that the earth mounds did not cause run-off to appellants’ property or any sinkhole conditions, and therefore, were not a nuisance; and that their surveyor said that the mounds did not encroach upon appellants’ property, so no trespass had occurred. The trial court also granted summary judgment against the Peters on both their nuisance and trespass claims. The Peters appealed.

Held: Summary judgment was reversed. A “nuisance” is the wrongful invasion of a legal right or interest. A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. In order for a private nuisance to be actionable, the invasion must be either intentional and unreasonable, or unintentional but caused by negligent, reckless, or abnormally dangerous conduct.

If the private nuisance is absolute, strict liability will be applied. By contrast, a qualified nuisance is premised upon negligence, essentially a negligent maintenance of a condition that creates an unreasonable risk of harm. To recover damages for a qualified nuisance, negligence must be averred and proven. A qualified nuisance is a lawful act so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.

Where damage to one property by water run-off from an adjacent property is alleged, Ohio has adopted a reasonable-use rule. A landowner isn’t allowed to deal with surface water as he or she pleases, nor is the owner absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Instead, each landowner over whose property water flows is allowed to make a reasonable use of the land, even though the flow of surface waters is altered thereby and causes some harm to others. He or she incurs liability only when the harmful interference with the flow of surface water is unreasonable.

nuisance151019In answer to Angel’s Path’s motion for summary judgment, Mr. Peters provided an affidavit along with photos that claimed the mounds created by Angel’s Path had slid across the common property onto his property. Peters’ affidavit also said that Angel’s Path workers entered onto his property to cut the weeds because the slope of the mounds didn’t allow appropriate maintenance without entering onto his land. Finally, the Peters affidavit stated that the back portion of his property now flooded and would not dry out, preventing his use of the land for a rental or for farming. Peters also included as a letter from his expert stating the mounds blocked the natural flow of the water, creating a “permanent pond,” and suggesting possible ways to eliminate the problem.

The Court said that Mr. Peters’ testimony about the location of his property lines, although perhaps not the best evidence to rebut a commercially prepared survey, was something presumably within the property owner’s personal knowledge. Therefore, despite the fact that he had not yet had a separate survey done, the Court would not disregard the affidavit. At the same time, the Court criticized the trial judge for placing too much weight on the fact that Angel’s Path plans had been approved by the local county engineers. The Court of Appeals said that while the county engineer and other agencies approved the Angel’s Path development plans, including the projected effects that it might have on surrounding properties, “such facts are of little consequence and comfort when examining the real-world results of the construction…”

Here, for the purposes of summary judgment, the Court concluded that the Peters had presented prima facie evidence to establish causes of action for private nuisance and trespass. Whether Angel Path’s actions were reasonable, intentional, or negligent, the Court said, are decisions to be made in a trial, not on summary judgment.

– Tom Root