Case of the Day – Tuesday, July 23, 2019

GIVE ‘EM AN INCH, THEY’LL TAKE A MILE

outhouse141229Seems like it was only 80 years ago or so when Grandpaw emerged from his outhouse one day to find a couple of duded-up flatlanders standing on his little piece of Tennessee hillside. They had some kind of deed full of fancy writin’, and they told him if he signed it, they’d string some wires on poles across the place, and he’d have electric lights just like the big city folks.

That sounded like a pretty good deal to Grandmaw, who was good and tired of hand pumping wellwater, cooking on a stove and buying ice whenever the iceman decided to cometh. She made Grandpaw put his ‘x’ on the dotted line.

The flatlanders were as good as their word. They ran some wooden poles and a couple of wires over the homestead, and pretty soon, Grandmaw had her Frigidaire and electric stove, Grandpaw had an electric light in the privy, and life was grand. The flatlanders from the Tennessee Valley Authority sold Gramp power at dirt cheap rates, and only appeared once every couple years or so and trimmed back a few trees under the wires.

Some time in the 1960s, crews came in and replaced the poles with gigantic steel trussed transmission towers on concrete pads. They cut a bigger swath of timber, removing trees under the towers and a few feet to either side. Grandpa and Grandma were pretty unhappy about it, but they were quite old and didn’t know what to do. You checked things with a lawyer, who told you that TVA had an easement from your grandparents, and was within its rights.

Time marched on, your grandparents went to their reward, and your inherited the old place. You tore down the rambling farmhouse and replaced it with a beautiful log home, a rustic but modern weekend getaway. You like sitting on the porch and looking out over the hills and woods. Every so often, a TVA tree trimming crew would stop by, and trim back a few trees near the power lines. You assured them that they didn’t have to worry about the mature trees beyond about 25 feet, because you’d look after them yourself.

Then, about 500 miles north northeast of your idyllic retreat, an overtaxed transmission line sagged in the August Ohio heat, and arced to a nearby tree. The cascading errors and failures that followed plunged the northeastern United States into darkness that lasted in some places for several days.

Blackout141229Several years after the blackout, the North American Electric Reliability Corporation (NERC) – a government-certified industry organization that sets reliability standards for the transmission of electricity – established tougher rules for vegetation management around electric transmission lines.  Electric utilities faced hefty fines if they did not vigorously maintain their rights-of-way under transmission lines.  In 2012, you got a letter advising you, among other things, that TVA would no longer allow taller, incompatible trees within its rights-of-way, even if landowners say they will control tree height, and that it would be removing –sometimes extensively – incompatible species from its rights-of-way. Any tree that could grow more than 15 feet high at maturity would have to go.

When you found out that the new vegetation management policy will result in TVA cutting down more than 200 trees, you decided to take action.

That’s what Donna Sherwood and a host of neighbors did, suing TVA in U.S. District Court. They argued that TVA had improperly classified the so-called 15-foot rule as routine maintenance which was exempt from the National Environmental Policy Act. In fact, Ms. Sherwood contended, the new 15-foot rule would essentially denude 260,000 acres, a square of land over 20 miles to a side. Besides, Ms. Sherwood argued, TVA didn’t have the right to remove trees in its right of-way that did not interfere with or endanger the transmission lines.

The District Court threw out the case, holding that TVA had complied with the NEPA and that the easements clearly encompassed removal of timber. The plaintiffs asked the court to submit the easement interpretation issue to the Tennessee Supreme Court, a procedure known as certifying a question. The District Court ruled that it didn’t need to certify the question, because state law was well settled. The easements pretty clearly gave TVA the right to clear trees from its rights-of-way.

The Court of Appeals reversed the District Court, but the decision didn’t give the neighbors much comfort. The appellate court held that record did not show that TVA had complied with NEPA, so the case was sent back to the District Court to compile the record. But on the crucial issue, the Court held that crucial Federal interests, as well as Tennessee law, supported a reading of the old easement Grandpaw created to encompass the 15-foot rule, and clear-cutting a swath as wide as the limits of the easement (in some cases, 200 feet).

The likelihood that NEPA would stop TVA is about as likely as your electric bill falling by 50%. That being the case, Ms. Sherwood is undoubtedly scratching her head with gleeful puzzlement that TVA announced after the appellate decision that it would abandon the 15-foot rule without further litigation.

nopruning141229

The neighbors thought they had won… but the matter wasn’t settled in court. Later this week, we’ll see what that meant when the chainsaws came out again.

Sherwood v. Tennessee Valley Authority, 590 Fed.Appx. 451 (6th Cir. 2014). The Tennessee Valley Authority (TVA) provides electric power to consumers in seven states across the Southeast. In order to reliably deliver that power, TVA maintains the vegetation under and around its power line structures. Historically, TVA has removed all trees directly under its power lines, but did not cut down all of the trees in what TVA called buffer or border zones, the edges of the easements TVA possesses.

Over the years, TVA acquired easements that are typically between 75 and 200 feet wide. Built within those easements are approximately 15,900 miles of power transmission lines. Those easements permit the TVA “the perpetual right to enter” and “to erect, maintain, repair, rebuild, operate, and patrol” electric power transmission lines and all necessary appurtenances. As well, the TVA is granted the “right to clear said right-of-way” and keep the right-of-way clear, including brush and trees. TVA has established a vegetation-management program for its easements. TVA maintains the easements by keeping the area beneath the transmission lines clear, while leaving a narrow buffer zone on either side of the easement. The sectors are on five-year cycles for tree removal and three-year cycles for mowing or spraying the undergrowth.

Although the TVA has been maintaining the vegetation in its easements for more than seventy years, it has not removed all of the taller, mature trees located within its rights-of-way. Its right-of-way specialists have been afforded discretion in deciding which, if any, trees to remove. Budget constraints have further restricted the discretion afforded the specialists. As a result, many tall trees remain standing within TVA’s easements. TVA has also made exceptions when landowners have promised to control the height of the trees.

After the August 2003 Northeast U.S. blackout, the wisdom of allowing these taller trees to grow within electric transmission line easements was called into question. In 2007, NERC established rules for vegetation management around electric transmission lines.

TVA altered its vegetation-management practices in order to comply with the new NERC rules and to avoid paying fines and penalties. TVA may allow low-growing species (less than 15 feet at mature height) to be planted in the within the right-of-way, but not directly under transmission lines, but express TVA approval would be required in each case. It would no longer allows taller, incompatible (species that exceed 15 feet mature height) trees within its rights-of-way when requested, even if landowners promise to control tree height. TVA would remove all incompatible species from its rights-of-way.

A TVA spokesman said TVA would have a “zero tolerance policy,” explaining that “we’re going to remove trees that can grow 15 feet or more. We’re also going to clear the full width of the easement.”

Donna Sherwood and her neighbors sued, arguing that TVA’s new policy would result in the removal of millions of taller, older, mature trees from TVA’s rights-of-way. They argued that TVA had failed to conduct the required NEPA studies before implementing this new rule. The plaintiffs have submitted evidence showing that TVA identified more than 200 trees for removal from plaintiffs’ properties. The plaintiffs submitted evidence of the environmental consequences of removing tall, mature trees from the easements.

The district court granted TVA’s motion to dismiss the plaintiffs’ claim that TVA had exceeded the scope of the easements, denying the plaintiffs’ motion to certify a question to the Tennessee Supreme Court. After reviewing the record, the district court held that TVA had not established a new policy, and was acting consistent with the maintenance policy that had been in place for the past fifteen years. Finally, the district court held that TVA’s 2012 vegetation-maintenance policy was not arbitrary or capricious.

The plaintiffs appealed.

Held: The plaintiffs’ request that the District Court certify a question of state property law to the Tennessee Supreme Court was rejected. However, the record showed that TVA had not adequately considered the environmental consequences of its new 15-foot policy, so the case had to be sent back to the District Court.

Easement141229As for the NEPA claim, the Court of Appeals held that the administrative record submitted by TVA did not consider the environmental consequences of the 15-foot rule. The Court held that the plaintiffs were alleging that TVA’s alteration of its vegetation-maintenance practice – the removal of all trees over 15 feet, as well as those trees that will grow to a height over fifteen feet – constituted a major federal action under NEPA. The TVA must compile an administrative record for the decision it made that is being challenged by the plaintiffs, in order for the court to evaluate the decision’s propriety under NEPA.

As for the scope of the easements, the Court of Appeals agreed with the District Court that “[b]ecause federal interests are sufficiently high in this matter, the easements are governed by federal law, not state law.” When the United States is a party to a lawsuit, and the underlying activities arise from a federal program, the federal interests implicated may warrant the protection of federal law.

The Court also agreed that the unambiguous language in the easements gave TVA the perpetual right to remove trees. Although state law was not determinative when applied to a Federal easement, the Court said, under Tennessee law the scope of an easement created by a grant is determined by the language of the grant. Here, the easements involved here unambiguously give the United States three rights: (1) the right to enter and to construct electric transmission line structures, (2) the right to clear the easements of brush, trees, and timber, and (3) the right to remove danger trees from the surrounding land. In describing the rights granted, the easements use the plural “purposes,” not the singular “purpose.”

The Court said that nothing in the language of the easements, explicitly or implicitly, limited TVA’s right to clear trees from the right of-way.

Thus, although the NEPA issue remained to be litigated on remand, the easements were broad enough to clear-cut the full width of the easements, regardless of prior practices or the landowners’ opinions as to what was necessary to protect the transmission lines.

– Tom RootTNLBGray140407

Case of the Day – Monday, July 22, 2019

UNLIKELY HERO MEETS LIKELY DUNCE

Tequila Isaacson

America has to love this story. It has heroics, action, danger – and an O. Henry twist at the end.

A few years ago, in beautiful Snoqualmie Pass, Washington, truck driver Tequila Isaacson stopped at a rest area to use the facilities. As she returned from the restroom, she saw a family desperately trying to rescue their child from a burning pickup truck.

No worms in this Tequila: she leapt into action, and raced over to the glass front door of a coffee shop. The café was closed, but – seeing a fire extinguisher hanging inside – Tequila smashed the glass, seized the red canister, and knocked back the fire.

The fire was extinguished, the child was saved, and Tequila was a heroine.

But then the Washington State Police showed up. Tequila explained what she did to help save the boy and put out the fire. When she reported how she broke down the coffee shop door to grab the fire extinguisher, the Trooper said, “Oooooh, Tequila!” He told her that using the fire extinguisher without permission is theft no matter how good her intentions. The cop said, “Your choice is fix the window or, Tequila, slammer!”

Fortunately for Tequila, God and Al Gore created the Internet, and social media went wild in her defense. But the whole kerfluffle set us to wondering. Could the cop be right? Or course, Mom told us when we were young that the policeman was our friend, and that suggests that he would never mislead us. But then, we also recall law school, where a professor suggested to us that the policeman was not always our friend, and certainly was not always right.

So the following day, will Tequila see the sun rise as a burglar or a hero? That depends, of course, on the law.

Is getting the kid out more important than a broken window?

If you cannot believe that the law is such an ass as to punish someone in Tequila’s position, you’re largely right. Flood waters are rising, so you take that old boat parked in the neighbor’s back yard in order to save Grandma. You commandeer a soccer mom’s SUV to get an injured kid to the hospital. You knock a tainted burrito out of the hands of a Chipotle patron before she can take a deadly bite. At common law (and in many states), you have an affirmative defense to the crimes you committed – trespass, theft, even assault – because it was necessary to serve some greater good.

But consider the standard for a necessity defense, described in the case below. Did Tequila reasonably believe that breaking the coffee shop window was necessary to avoid a harm? The young boy at risk of becoming a krispy kiddie probably thought so. His parents undoubtedly thought so. And what’s worse, a kid burning to death or a broken window and discharged fire extinguisher? That’s not a hard one, either. Finally, did any legal alternative exist? Tequila said she looked for a fire extinguisher, but found nothing besides the one behind the locked door.

If the cop had been successful in finding a prosecutor who didn’t care about keeping his or her job, maybe Tequila would have been charged. But if she had been, the jury would not even have to leave the box to acquit. The necessity defense and common sense would carry the day.

And it apparently did, as a pro-cop website, Blue Lives Matter, reported that Tequila would not be charged. The site explained that the Washington State Trooper simply was not familiar with burglaries, being a “highway patrol agency” (we call them the “misdemeanor police” where we live). The author opines that “through no fault of his own, this trooper was likely completely unfamiliar with criminal law surrounding burglaries.”

The Trooper’s ignorance, of course, did not keep him from throwing his weight around. Thanks to social media, the Washington State Patrol “will be reviewing the way this case was handled with the trooper, adding they are grateful for Isaacson’s courageous effort to help save the child.” That’s code, meaning “the Trooper is going to get his butt chewed” for his sin, which was making his employer look bad.

State v. Clark, Case No. 74934-0-I (Ct.App. Washington, Sept. 25, 2017) 2017 Wash. App. LEXIS 2196, 2017 WL 4232607. Frank and Rebecca Scott owned two dogs, Ellie and Zalo. The Scotts hired Linda Clark, who owned a dog-walking business, to walk the dogs once a day.

But within a month or two, Linda began walking the dogs several times a day of her own accord, sometimes late at night or in heavy rain. Linda let herself into the garage at all hours to check on the dogs and leave notes regarding what she believed was proper care for them. She even replaced the dogs’ collars with collars that had her own name and phone number instead of the Scotts’.

The Scotts were a little creeped out, and Frank told her that her services were no longer required. Linda did not take it well, telling Frank that he would regret firing her. The Scotts told the sheriff, and a deputy went to Linda’s place to tell her to stay away.

One day the dogs disappeared. The crime hardly required Sherlock Holmes. After receiving a report that a local citizen had seen Linda with Ellie and Zalo that morning, a deputy went to her house. Linda denied everything, but when he told Linda that Zalo had not had his medication that day, Clark admitted she had the dogs.

The State charged Linda with second degree burglary. Linda wanted to raise a necessity defense, on the grounds that she took the dogs because she believed the Scotts were not taking good care of them. The trial court ruled that she could request a necessity instruction if the evidence supported it.

At the end of the trial, Linda’s lawyer did not ask for the instruction because he believed “would be a frivolous motion, frankly, at this point.” A jury convicted her.

Linda filed a motion complaining that her lawyer rendered ineffective assistance during the trial for not asking for a necessity defense instruction.

Held: Linda’s lawyer was right. The court observed that “necessity” is a common law defense with limited application, a defense “available to a defendant when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law.”

A defendant, however, has to produce some evidence to support the defense before a court will give the instruction to the jury. In order to sustain a necessity defense, the defendant must show by a preponderance of the evidence that (1) he or she reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, and (3) no legal alternative existed.

All Linda had was her own opinion that the Scotts did not take proper care of Ellie and Zalo the way she would have preferred. Because she did not testify in her own defense – probably a good idea, given how rickety her case was – nothing in the record supported a necessity defense.

– Tom Root

TNLBGray140407

Case of the Day – Friday, July 19, 2019

WATERWORLD

shortage160803In a little shot of neighbor law today, we’re going to talk about Waterworld.

No, Kevin Costner, it’s not that kind of Waterworld. Instead of a $200 million turkey, this waterworld’s a place where water is precious because there’s not that much of it, a semi-arid climate in Nebraska, a state once considered to be part of the Great American Desert but is now an agricultural powerhouse. Water’s scarce here, and water rights have been litigated ever since settlers put down their six-guns and hired the first local frontier lawyer.

In this case, a greedy downstreamer in the Lower Platte River basin had used an unnamed tributary to build his pond — his own fine little fishing pond — and he wanted his upstream neighbor to be prohibited from doing the same until his pond was full to his satisfaction. The trial court agreed with him, but the Nebraska Supreme Court found that Koch’s claim to a superior appropriative right to the water was as fictional as most of the cowboy-and-Indian stories of the old West.

As a riparian owner, Koch’s rights to the water turned out to be no better than that of his upstream neighbor.

waterfight160803It’s just a case about a little water, you say. What do you know? Water has been declared to be the oil of the 21st century, and it probably is. Having the right amount of water of the right degree of purity at the right place at the right time is right important. Those who have it – think of those of us in the Great Lakes watershed, for example – guard it jealously. Having some sense of how water law is applied, the world of riparian rights, is a pretty good idea.

Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (Sup.Ct. Neb. 2007). The Aupperles built a small dam to create a farm pond along the banks of an unnamed tributary of Weeping Water Creek. Loren Koch, a downstream user of tributary’s waters, sued. He complained that in 1989, he dammed the waters of the tributary and built a 3-acre pond on his property next to his house. Koch alleged the Aupperle dam would prevent his pond from filling and deprive him of stream water for livestock watering.

Koch said he bought his property in 1981 and that, aside from two brief times in the past two years, he had observed a constant flow of water in the tributary. His dam, built in 1989, impounded approximately 40 to 50 acre-feet of water. In 1990, he stocked the pond with largemouth bass, bluegill, and catfish, and, by the time of trial, the pond had become “one of the best little fishing ponds around.”

This is what the mighty Colorado used to look like when it met the Sea of Cortez, a victim of too many riparian rights holders taking too much water, A recent agreement between the U.S. and Mexico has improved matters, but not a lot.

This is what the mighty Colorado used to look like when it met the Sea of Cortez, a victim of too many riparian rights holders taking too much water, A recent agreement between the U.S. and Mexico has improved matters, but not a lot.

Although Koch said he used his pond to water his livestock, he had no livestock from 1997 until shortly before trial. He said he intended to have a small number of cattle on his property again and that he had recently obtained seven head of cattle; he anticipated having a maximum of 45 head.

Koch admitted that he had other water sources for cattle on his property, but he testified that he preferred to use the running water from the tributary. He also used the pond for recreational boating. Koch was concerned that if the drought continued and the Aupperles were allowed to build their pond, no water would pass through to his pond and it would dry up and kill his fish. He asked the court require a “six-inch draw down” in the Aupperle dam so that water could be passed through the Aupperle structure until Koch’s pond was full.

Koch conceded he had no appropriative right to use the water in the tributary. He said he wanted all the water in the tributary until his pond was full. At that time, the court could authorize upstream impoundment by the Aupperles.

Koch admitted that he had other sources of water that he could use for his livestock, including several other ponds, a well, rural water spigots, and stock tanks. Paul Zillig, the assistant manager of the Lower Platte Natural Resources District, testified that based on data compiled by the Natural Resources Conservation Service, the entity that designed the Aupperle farm pond, there was sufficient water in the tributary to support both ponds.

The trial court found that while both parties intended to use the water for the same purpose, Koch “has priority of appropriation due to the fact that his dam was constructed back in 1989 and has existed since that time.” On this basis, the court concluded that “Koch’s use of the water from the stream is superior to [the] Aupperles.” The district court permanently enjoined the Aupperles from constructing their farm pond “until such time as the dam structure contains a draw-down or similar device which will allow for the passage of water through the dam structure.” The Aupperles appealed.

Held: The injunction was reversed. The basic concept of riparian rights is that an owner of land abutting a water body has the right to have the water continue to flow across or stand on the land, subject to the equal rights of each owner to make proper use of the water. Riparian rights extend only to the use of the water, not to its ownership. One of the most significant maxims of riparianism is that, unlike the rule of the prior appropriation system, there is no priority among riparian proprietors utilizing the supply. All riparian proprietors have an equal and correlative right to use the waters of an abutting stream.

dam160803Of equal importance with this maxim is that use of the water does not create the riparian right and disuse neither destroys nor qualifies the right. While a riparian right will not permit any one man to monopolize all the water of a running stream when there are other riparian owners who need and may use it also, neither does it grant to any riparian owner an absolute right to insist that every drop of the water flow past his land exactly as it would in a state of nature.

Applying these principles, the Court concluded as a matter of law that Koch could not have acquired any “senior” riparian right by constructing his dam in 1989. Any riparian right he may have to use water in the tributary would be equal and correlative to the rights of other riparian proprietors. The rights of one riparian landowner versus another is determined by examining the reasonableness of each landowner’s respective use of the water.

The record in this case did not establish that either Koch or the Aupperles held riparian rights. The Court found the parties were simply owners of adjoining tracts of land through which the tributary flows, with Koch’s land situated downstream of that of the Aupperles. Koch, as the party seeking injunctive relief, had the burden to show that the proposed Aupperle dam would infringe on his rights. Because he could not demonstrate the existence of a common-law riparian right, the Court held, he clearly was not entitled to injunctive relief.

Accordingly, the Court said, it did not need to analyze the reasonableness of the use by each party of the water flowing in the tributary. If it had, it said, it noted that both parties intended to use water in the tributary “primarily for aesthetic and recreational purposes with grade stabilization, erosion control, and domestic use (watering cattle) being secondary in nature.”

– Tom Root

TNLBGray140407

Case of the Day – Thursday, July 18, 2019

I CAN SEE FOR MILES AND MILES…

It may be a great car wash ... but we can't see the road.

It may be a great car wash … but we can’t see the road.

Every morning, we look to the left and right as we pull onto the main street, only to stare into an ill-placed car wash sign. The First Armored Division could be rolling into town, and we couldn’t see it the M1A1s coming before they flattened our Yugo.

So every morning we wonder whether the sightline obstruction might not make someone liable to our next of kin when the inevitable happens. As it did one rainy night in Georgia.

A car had a chance encounter with a dump truck at a Georgia intersection. The pickup driver perished. Investigators suspected that untrimmed shrubs on vacant property at one corner of the crossroads, as well as a “curvature” in the road, made the intersection dangerous. The intersection had experienced several other accidents due to visibility.

Truck-carIn the aftermath of the tragic auto accident, the victim’s survivors sued the Georgia Department of Transportation, claiming it had a duty to keep trees and shrubs from a vacant lot trimmed back to protect the sight lines at the intersection in question. The trial court disagreed.

On appeal, the Court agreed that as a matter of law, DOT had no duty to maintain the intersection. But it did have a duty to inspect. It seemed that an issue of fact existed as to whether the vegetation had encroached on the highway right-of-way. But the Court discounted the plaintiff’s expert opinion that encroachment had occurred, because DOT contended it didn’t know where the right-of-way began, so who knew?

The result seems to turn summary judgment on its head, letting DOT off the hook without a trial when a real fact issue ­– the location of the highway right of way – remained. We were left as confused about liability afterwards as we were beforehand. And we still can’t see down the street.

Welch v. Georgia Dept. of Transp., 642 S.E.2d 913 (Ct.App. Ga., 2007). Addie D. Welch was killed when her vehicle hit a dump truck at an intersection. A policeman said the overgrown bushes on the northwest corner of the intersection contributed to the accident. A sheriff’s department investigator said overgrown shrubs on the vacant property and a “curvature” in the road combined to make the intersection dangerous. Several other accidents due to visibility had occurred previously at the intersection.

Welch’s expert witness said that a driver’s line of sight was obstructed by overgrown shrubs and trees on the northwest corner of the intersection. The expert said that the overgrowth extended two feet into the Georgia DOT right-of-way, and that DOT was responsible for maintaining the line of sight. The expert also said American Association of State Highway and Transportation Officials’ (AASHTO) guidelines for that intersection require a line of sight of 430 feet. Because of the overgrown vegetation, Welch’s line of sight was between 143 and 277 feet.

line_of_sight2After the accident, DOT employees cut the overgrowth. Claiming that trees and shrubs on the property adjacent to the intersection were negligently maintained and obstructed her line of sight, Welch’s estate and surviving children and grandchildren sued the Georgia DOT. DOT moved for summary judgment, arguing that state law precluded plaintiffs’ claim, or in the alternative, that plaintiffs presented no evidence that Welch’s line of sight was obstructed. The trial court granted DOT’s motion, and Welch appealed.

Held: DOT was not liable. The Court ruled that DOT was immune under OCGA § 32-2-2. That statute gives DOT has the general responsibility to design, manage and improve the state highway system. But, where state highways are within city limits, the DOT is required to provide only substantial maintenance and operation, such as reconstruction and resurfacing, reconstruction of bridges, erection and maintenance of official department signs, painting of striping and pavement delineators and other major maintenance activities.

Although the road Welch was on was a state highway, the intersection lay within the corporate limits of Quitman. Accordingly, DOT was required only to provide substantial maintenance activities and operations. Those activities, the Court said, did not include the maintenance of shrubbery and vegetation. Thus, the statute did not impose a duty on DOT to maintain the shrubbery. But Welch also argued that another statute, OCGA §50-21-24(8), made DOT liable for failing to inspect its right-of-way. In order to prevail on this claim, the Court said, Welch had to show that the vegetation extended into DOT’s right-of-way. DOT argues that the overgrowth was on private property.

Although Welch’s expert believed the vegetation encroached on the DOT right-of-way, the Court agreed with DOT’s view that the extent of the right-of-way couldn’t be ascertained without using courthouse records and surveyors. Because Welch’s expert had not relied on DOT testimony to opine that vegetation extended into the right-of-way, and the Court found that the evidence was uncertain as to the location of the right-of-way, Welch’s expert’s opinion that vegetation extended into the right-of-way was disregarded, and plaintiff was found not to have established DOT’s liability.

-Tom Root
TNLBGray140407

Case of the Day – Wednesday, July 17, 2019

SKIN OF HER TEETH

skin150629I’ve seen several mutual acquiescence cases recently, for no apparent reason. “Mutual acquiescence” is the term for a mistake agreed to by the affected parties: a driveway wanders over a property line, a fence gets built a few feet over from where it should be, the parties agree that a couple trees mark the boundary line when they really don’t, but it’s more convenient then looking for buried iron rods or PK nail. Over the years, memories fade… and what usually began as a mistake or a matter of convenience — such as when two parties build a fence that’s not right on the proper boundary line, but decide to let it go — becomes the de facto boundary line.

In today’s case, Ms. Shoemake (she seems to be missing an “r”, doesn’t she?) established that a broken-down fence had become her property’s boundary by mutual acquiescence, but only by the skin of her teeth. The evidence that one of the former neighbors had agreed to the fence as the boundary was remembered only by Ms. Shoemake. The former neighbor remembered the conversation, but not the crucial concession.

The Court of Appeals wasn’t all that sure, but under the relaxed standard of review appellate courts give the fact-finding by trial courts, decided by a 2-1 margin that Mrs. Shoemake had shown then fence line to be a boundary by acquiescence. But a plaintiff shouldn’t try too many times to win on such a tissue-thin showing.

There’s always the chance that someone else might remember it differently. And then, the trial devolves into a “swearing contest.”

gvtwork150629Boyster v. Shoemake, 272 S.W.3d 139, 101 Ark.App. 148 (Ark.App. 2008). Teresa Shoemake owned land next to James Boyster. A boundary-line dispute arose in summer 2005 when several of Teresa’s hunting dogs went missing on her property. When she went to the disputed area on her four-wheeler to find the dogs, Ms. Shoemake saw that an old fence that had stood there for about 65 yesars had been cut, rocks had been picked up, and trees had been cut down.

Mrs. Boyster told Teresa that the Boysters had surveyed the property and discovered that the fence line was not on the boundary. Shoemake described the fence as an old, rusty strucgture that had grown into the trees. She said the fence had been on the property her entire life. Her grandmother acquired the property in 1942.

Ms. Shoemake recalled visiting the property often, and she said that in the 1960s, the property on the other side of the fence was used as pasture land. She never saw anyone other than her family use the property south of the fence. Her family’s side of the fence contained trees, which had not been used for anything other than Christmas trees and recreation.

This would have been good advice for Ms.Shoemake and her neighbor ...

This would have been good advice for Ms.Shoemake and her neighbor …

Ms. Shoemake said that Bryan Tatum, the Boysters’ immediate predecessor in interest, acknowledged the fence line as the boundary line in a conversation with her, and asked if he could dig across her property and install a water line. Others testified that they had always believed the fence line was the boundary. The trial court found that Ms. Shoemake established a boundary line by acquiescence and quieted title to the disputed tract in her name. Boyster appealed.

Held: Ms. Shoemake had proven that the fence line was a boundary by mutual acquiescence. The Court said that mere existence of a fence or some other line, without evidence of mutual recognition, cannot sustain a finding of boundary by acquiescence. However, silent acquiescence is sufficient, as the boundary line is usually inferred from the parties’ conduct over so many years. A boundary by acquiescence may be established without the necessity of a prior dispute or adverse use up to the line. For a party to prove that a boundary line has been established by acquiescence, that party must show that both parties at least tacitly accepted the non-surveyed line as the true boundary line. The mere subjective belief that a fence is the boundary line is insufficient to establish a boundary between two properties.

Not the kind of "self-serving" the court had in mind ...

Not the kind of “self-serving” the court had in mind …

Here, Boyster complained that Shoemake failed to present any evidence that Boyster or any of his predecessors in interest considered the fence line to be the boundary. But the Court observed that Shoemake said that Tatum acknowledged the fence as the boundary line. While this was rather “self-serving” testimony, it was within the province of the trial court to find whether Teresa’s evidence was credible. Besides, other testimony from Shoemake and her witnesses established that no one north of the fence used the property south of the fence and that property north of the fence was pasture, while property south of the fence was woods. The Court concluded that Ms. Shoemake had presented sufficient evidence – just barely enough –to establish that Boyster and his predecessors in interest recognized the fence line as the boundary between the two properties.

Tom Root

TNLBGray140407

Case of the Day – Tuesday, July 16, 2019

A LEG TO STAND ON

Did that plaintiff ever have gall ... or gull ... or cojones or something...

      Did that plaintiff ever have gall … or gull … or cojones or something!  What he didn’t have was any proof.

The plaintiff in today’s case had his foot broken when a branch from his neighbor’s tree fell. So how was he different from this rather odd-looking seagull sitting on a seawall to our left?

Easy – the gull has a leg to stand on.

Our hapless litigant – Rick Meyers by name – lived next to a man named Delaney, who owned a catalpa tree. The catalpa is a pretty good-looking deciduous tree that drops bean pods and leaves in the fall, but little else. It’s a solid Anglo-American tree, flowering in the spring and with large leaves and deep shade in the summer. In fact, it’s the sole food source for the catalpa sphinx moth, a creature favored by southern anglers as bait. Birds love it, caterpillars love it, fishermen love it … and so do most people.

That list would exclude our hobbling protagonist, Rick Meyers. The Delaneys’ catalpa tree provided shade to Mr. Meyers’ driveway with its overhanging branches. But one day, Rick had run barefooted outside to put up the car windows (we suspect a thunderstorm was about to hit, which would have been accompanied by gusty winds, but the record didn’t say as much). While he was doing so, a branch broke free from the tree and fell on his foot.

A catalpa -beloved by fisherman and fowl - but not by Rick Meyers.

A catalpa -beloved by fisherman and fowl – but not by Rick Meyers.

Rick didn’t have a shred of proof that anyone – including the Delaneys – had reason to know that the branch was going to break. But lack of evidence would not inconvenience our Rick. He sued anyway, claiming that as owners of a tree in a residential area, the Delaneys had a duty to know the branch was going to fall, and never mind how they were supposed to have figured that out. You see, Rick’s foot hurt, and someone had to pay.

The trial court took a more sanguine view. It believed that if the Delaneys couldn’t clearly see that the tree was dangerous, they couldn’t be found to be negligent because they had not sleuthed it out. The Iowa Supreme Court agreed. The risk has to be seeable before it can be found to be foreseeable.

A landowner has no affirmative duty to inspect trees where no defect is "readily observable."

A landowner has no affirmative duty to inspect trees where no defect is “readily observable.”

Meyers v. Delaney, 529 N.W.2d 288 (Iowa Sup.Ct. 1995). Meyers and Delaney owned adjoining properties. Standing between their homes, but on the Delaney homestead, was a large catalpa tree. The tree limbs hung over the Meyers driveway. The Meyers family parked cars under the branch each day, and the Meyers kids played around it when outside.

One evening in mid-July, 1990, Rick Meyers ran barefoot out to his car to roll up the windows. He heard a large crack, and then a large catalpa limb fell from the tree, striking and severely injuring his foot. He sued the Delaneys for negligence, claiming they failed to maintain the tree properly, failed to warn him of the dangerous condition of the tree, and failed to protect him from a danger that in the exercise of reasonable care the Delaneys knew or should have known existed.

The trial court found that the Delaneys neither knew nor should they have reasonably known the tree was dangerous, so they were not negligent. Rick Meyers appealed.

Held: The Iowa Supreme Court agreed that the Delaneys were not liable.

The Meyers v. Delaney rule - it's not foreseeable unless its seeable.

The Meyers v. Delaney rule – a tree’s defects are not foreseeable unless they’re seeable.

The Court noted that the general rule is that one who maintains trees owes a duty to avoid injuring persons on adjoining premises by permitting a tree to become so defective and decayed it will fall on them. However, the Court held, there is no duty to consistently and constantly check all trees for non-visible decay. Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. If the decay or infirmity is readily observable, the tree owner may be liable for injuries caused by a defective condition of the tree if he or she had actual or constructive notice of the trees defective condition.

In this case, the catalpa tree had had a dead limb removed by a friend of the Delaneys the summer before. The friend, who had some experience working in trees, testified he observed nothing in the tree to cause him concern about his safety. Furthermore, while Meyer’s expert tree trimmer testified that the tree was dangerous, he conceded on the stand that there was nothing that Delaneys could have observed about the tree before the accident that would have alerted them to be concerned over its safety.

Thus, there was no negligence.

Tom Root
TNLBGray140407

Case of the Day – Monday, July 15, 2019

THE BOUNDARY TREES OF WALTER PRIDDY


mitty140808You know how free association goes. It’s summer, hot and humid, and we face a string 90-degree days in our future, so we’ve been groovin’ (a 60s term, kiddies) on an old Lovin’ Spoonful hit, “Summer in the City.

Although operating without a lot of the mental stimulants that were so freely available during the Summer of Love, we nonetheless started pondering the line “Back of my neck gettin’ dirty and gritty.” “Gritty” rhymes with “pretty,” which rhymes with “Priddy.” And there you have it. Thinking a lot about tree law (as we do), we recalled Walter Priddy.

“Oh, yeah,” you say, “that guy James Thurber wrote about. The secret life and all … The Ben Stiller movie …” No, not ‘Mitty.’ We’re talking ‘Walter Priddy.’ No “secret life” that we know of, but something just as fascinating – a line of boundary trees, an unhappy neighbor, a homeowner’s association, counterclaims. Our meat and potatoes, you know.

It ought to be rather obvious — a court can only decide issues that have been placed before it, and can only order remedies which address the causes of action that it has found to have merit. Courts sometimes lose their way, though, as did the California trial court in today’s case. The Boussiacoses (pronounced “them”) complained that the Priddys’ line of shade trees along their common boundary were a nuisance, messed up the Boussiacoses’ deck, and violated the homeowner’s associations’ rules. The Priddys argued that the trees did no such things, and anyway, the Boussiacoses’ deck had been built without homeowner’s association permission, constituted a nuisance itself, and violated the rules.

The trial court decided that neither side was right. Now your average observer would conclude that the decision meant that the Boussiacoses kept their deck and the Priddys kept their trees. But the trial court decided that the Boussiacoses must have reached an oral “understanding” (and we don’t know how an “understanding” surrounded by quotation marks differs one that isn’t in quotes) with the owners before the Priddys that the trees would be kept trimmed. Now, mind you, the Boussiacoses hadn’t argued that there was such an “understanding,” or that if there was it should be treated like some kind of enforceable agreement. But the trial judge – quite proud of his “solution” – decided that the phantom “understanding” should bind the Priddys anyway. He crafted a decision that let the Boussiacoses keep their deck provided the Priddys got to keep their trees, but the trees had to be hacked off at the height of some wrought-iron fence that was apparently part of the landscape.

Solomonic, you say? Not really. Remember that King Solomon never really intended to cut the baby in half. Plus, that decision at least directly addressed the issue the two warring women had placed before the King and no more – that questions being exactly whose baby the subject infant was. Here, the trial court found that there was nothing wrong with the trees and nothing wrong with the deck, but he ordered the trees trimmed anyway. It’s kind of like being charged with bank robbery, being found not guilty by the jury, but being sentenced to 5-10 years in the pen anyway because the judge thinks you probably cheated on your taxes.

In this dramatic re-enactment, King Solomon faces a tough decision.

In this dramatic and plastic re-enactment, King Solomon faces a tough decision – how to divide the bambino.

The Court of Appeals thought as little of the trial court’s decision as we do. It made short work of the trial court’s order. Because no one had raised the issue of whether there had been an understanding (or “understanding”) about the trees between the plaintiffs and the prior owners of defendants’ place, the trial court couldn’t find there had been one and enter an order accordingly.

Boussiacos v. Priddy, 2007 Cal. App. Unpub. LEXIS 9979, 2007 WL 4306835 (Cal.App., Dec. 11, 2007). The Boussiacoses sued their next-door neighbors, the Priddys, for statutory nuisance and violation of their mutual homeowners association’s covenants and rules. They alleged the Priddys maintained trees which blocked the Boussiacoses’ view along the parties’ shared property line. The Priddys counter-sued, alleging nuisance and violation of the covenants and rules , because the Boussiacoses had apparently built their deck without the homeowners association’s approval.

Following a bench trial, the trial court found that neither party had proved any of the claims raised in the pleadings. However, the trial court entered judgment anyway, requiring the Priddys to maintain the trees at specified heights in accordance with an “understanding” allegedly entered into by the Boussiacoses and the previous owners of the Priddys’ property. He also ruled that the Boussiacoses could keep their deck. The Priddys appealed, arguing that the trial court couldn’t enter a judgment where it hadn’t found the Boussiacoses’ underlying claims to have any merit.

No pruning for the Priddys

No pruning for the Priddys

Held: The trial court’s “judgment” was thrown out. The Boussiacoses had asserted only two claims against the Priddys, statutory nuisance and violation of the homeowners’ association’s covenants and rules. Because the trial court concluded on the record that the Boussiacoses failed to prove either claim, the Court of Appeals said, the judge was without any legal authority to make findings regarding an “understanding” between the Boussiacoses and the previous owners of the Priddys’ property. Such an “understanding” wasn’t alleged in the pleadings. The judge could not conclude that this understanding was enforceable against the Priddys, and could not enter a judgment which imposed tree-trimming maintenance obligations on the Priddys.

The Court of Appeals held that a trial court’s award of relief must be based on a pleaded cause of action. Trial courts are more arbiters than gods. Here, the trial court transcended the limits of its authority. Because the record did not show that the enforcement of any agreement between the Boussiacoses and the previous owners of the Priddys’ property was before the court, the trial court erred by awarding the Boussiacoses relief on that basis.

Groovy appellate decision, we must say.

– Tom Root

TNLBGray140407