Case of the Day – Thursday, May 7, 2020


The common-law rules governing rules on matters like encroachment can, of course, be modified by meddling legislatures. For example, we all know that if your neighbor’s tree encroaches above or below the soil onto your yard, you have the right of self-help and no more. You do not have the right to force your neighbor to correct things unless the encroachment causes “sensible harm,” and indeed becomes a nuisance.

As we learned yesterday, however, the law recognizes negligence per se, which is essentially presumed negligence because you broke the law. Likewise, the law can declare that some things constitute nuisances for no better reason than the law says they are.

In Connecticut, a land where the state has yet to meet a tax or a regulation it doesn’t like, there is a statute that declares running bamboo to be a nuisance. It falls on the homeowner to prevent his or her running bamboo from running into someone else’s yard, whether the encroachment causes harm or not. If you fail to control your running bamboo according to statute, you are negligent per se, and the bamboo is a statutory nuisance.

Who ever imagined that running bamboo was such a problem in temperate Connecticut? Well, the legislature for one. Generally, it seems to be a common enough problem, with running bamboo making kudzu propagation look like a bonsai tree by comparison.

Whatever the reason Connecticut may have had for enacting a law directed specifically at running bamboo, it seemed to come in handy for Jean Walden, when a neighbor’s running bamboo ran into her backyard. She sued, wanting an order that her neighbor remove it.

The neighbor Nationstar, a mortgage company, filed a motion that the amount of damages be apportioned between it and Jean. Jean was not much interested in talking about whether she was negligent: as far as the statute and Jean were concerned, Nationstar let the bamboo encroach, and it was solely liable. Apportionment is premised on the notion that it takes two to tango, an approach Jean – who considered herself blameless – was not interested in at all.

What ensued was an “angels-on-the-head-of-a-pin” kind of thing, where the court wrestled with whether a negligence action could be found anywhere within Jean’s complex complaint. A negligence claim would justify apportionment. A claim that did not sound in negligence would not.

Walden v. Nationstar Mortgage, LLC, Case No. KNLCV176030465S (Super.Ct. Connecticut, November 27, 2017) 2017 Conn. Super. LEXIS 4963. Nationstar controlled property which contained a colony of running bamboo that had grown beyond the property line into the Walden Property. Jean Waldon had warned Nationstar on a number of occasions to control the bamboo colony so that it does not invade her yard. Nevertheless, Nationstar’s uncontrolled colony of bamboo has crossed onto the Walden Property and started to take over the yard.

Jean hired a lawyer who knew how to plead a complaint. Her suit claimed Nationstar was negligent because it had a duty not to allow the bamboo to encroach onto Jean’s land, but failed to control the bamboo. She also claimed the bamboo colony physically invaded her property without her permission, she had asked Nationstar to do something, but it had not. She complained its failure to act was intentional. Jean also included two counts claiming Nationstar violated Connecticut General Statutes § 22a-16 and § 22a-381e (part of the “Connecticut Environmental Policy Act,” or “CEPA”), creating “an unreasonable harm and future threat of harm to the public trust in the natural resources of the state.” Finally, she alleged that the migration of the bamboo colony unreasonably interfered with her peaceable use and enjoyment of her property.

Nationstar filed a complaint for apportionment, asking that responsibility for the negligence be apportioned between itself and Jean. as the parties responsible for negligence, under General Statutes § 52-572h. Jean quickly amended any mention of “negligence” out of the complaint, and then opposed the apportionment request on the grounds that Nationstar was maintaining a nuisance, she should not share in any blame for it, and apportionment was improper.

Held: Nationstar is entitled to its claim for apportionment, to have responsibility for the damage apportioned between itself and Jean.

Jean argued that General Statutes § 52-572h – the apportionment statute – does not apply to a violation of the CEPA because such a violation is not based on negligence, and the apportionment complaint cannot rest on any basis other than negligence. The statutory cause of action of the running bamboo, Jean said, is based on nuisance and not negligence. Nationstar retorted that a defendant found liable under CEPA will be deemed to have been negligent by virtue of violating the statute, because such a violation is negligence per se.

General Statutes § 22a-16 provides that “any person… may maintain an action in the superior court… for declaratory and equitable relief against… any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction…”

That is what Jean is doing, the Court said. She was enforcing General Statute § 22a-381e(b), which provides in relevant part that “[n]o person who… allows running bamboo to be planted on his or her property shall permit such bamboo to grow beyond the boundaries of his or her property.” General Statutes § 22a-381e(c) provides in relevant part that “no person shall… allow running bamboo to be planted on his or her property at a location that is forty feet or less from any abutting property…”

Negligence per se, the Court said, “serves to superimpose a legislatively prescribed standard of care on the general standard of care… A violation of the statute or regulation thus establishes a breach of duty when (1) the plaintiff is within the class of persons intended to be protected by the statute, and (2) the injury is the type of harm that the statute was intended to prevent.” Connecticut courts treat a statutory violation as negligence per se in situations in which the statutes… at issue have been enacted for the purpose of ensuring the health and safety of members of the general public.”

The CEPA was enacted to enable people to seek redress in the court when someone is polluting the environment, the Court said. Plus, the Appellate Court has held that “§ 22a-16 imposes on the defendants a standard of care, the violation of which constitutes negligence per se.” The two-pronged test applied to establish negligence per se is: (1) that the plaintiff was within the class of persons protected by the statute; and (2) that the injury suffered is of the type that the statute was intended to prevent.”

Here, Jean alleges damage to her property caused by bamboo. She is within the class of persons protected by the anti-bamboo statute. Furthermore, the Court said, the alleged injury suffered by the plaintiff is of the type that CEPA intended to prevent – in this case, the continued violations of the running bamboo going beyond Nationstar’s property and onto Jean’s abutting property.

Jean also argued that the apportionment statute, General Statutes § 52-572h, applies exclusively in negligence cases. Her claim, she said, for nuisance, alleging common-law nuisance and statutory nuisance under General Statutes § 22a-318e(f). Nationstar said that a cause of action for nuisance may be based upon a defendant’s negligent misconduct, and thus, apportionment was permissible.

The Court disagreed that Jean alleged statutory nuisance. General Statutes § 22a-318e(f) provides that allowing running bamboo to grow beyond the boundaries of a parcel of properly “shall be deemed to be a nuisance,” but Jean just argued in the complaint that the bamboo colony “unreasonably interferes with the peaceable use and enjoyment by the plaintiff of the Walden Property.” That, the Court said, sounds like common-law nuisance.

A common-law nuisance claim has four elements: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff’s] injuries and damages. While there are some similarities between a public and a private nuisance, the two causes of action are distinct. Public nuisance law relates to the interference with a public right such as public health and safety. Private nuisance law, on the other hand, concerns conduct that interferes with an individual’s private right to the use and enjoyment of his or her land.

Jean was alleging that the bamboo colony unreasonably interfered with the peaceable use and enjoyment of her land; she does not allege interference with a public right. Therefore, the Court said, the nuisance she alleged is a common-law private nuisance. A common-law private nuisance cause of action must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The interference may be either intentional or the result of the defendant’s negligence.

Thus, a common-law private nuisance can be based on negligence, and Nationstar’s complaint to apportion the liability can go forward.

– Tom Root


Case of the Day – Wednesday, May 6, 2020


Here at Tree and Neighbor Law blog, we get mail… like this letter:

Dear Blogger on All Things Tree and Neighbor Law:

My neighbor walks his dog past my house several times a day. He never has his dog on a leash, and it sometimes runs through my front yard chasing squirrels. The dog has never paid any attention to me or anything else that is not a squirrel, and the owner cleans up after her, so it’s not that. It is just that I think dogs belong on leashes. The other day, I leaned out of my front door and yelled at him that his dog was supposed to be on a leash. He explained that I was mistaken, and that the law only required that he keep his dog under reasonable control.

I have to admit that the dog always comes when her owner calls her, and she stops and sits on command. Still, it offends me that a dog should be unleashed, allowed to chase squirrels, and permitted to be so free. Isn’t my neighbor breaking the law?

Signed, A Grumpy Neighbor

Hey, Grumpy Neighbor, we understand your complaint. Maybe that’s because we know who you are, inasmuch as you’re writing about our 40 lbs. of border collie mix, Winnie. Winnie cares not a whit about people, bicycles or baby strollers. If you’re not a varmint – coyote, raccoon, squirrel or especially a woodchuck – she will ignore you.

Notwithstanding that, Winnie inherited a lot of the typical border collie temperament and intelligence, being very attentive to commands (even to the extent of sitting on the tree lawn waiting for your signal that she may cross the street) and quite obedient. We and Winnie walk several miles every morning, exploring the fields, woodlands and streams behind the nearby hospital, and usually hit country trails later in the afternoon for another search for small game.

Come to think about it, Winnie’s better behaved than a lot of neighborhood kids. But no matter, Grumpy Neighbor, because watching her trot by while not being on a leash offends your sensibilities.

Still, we’re reasonable, so when you yelled through your screen door the other day that dogs are supposed to be on leashes, we researched the law to be sure that our recall was right. And it is. There is no law (at least where we live, your results may vary) specifying that dogs are to be kept on a leash. Instead, our local ordinance – like many – only prohibits dogs from running at large (and owners not cleaning up after them, but that’s another story).

But is Winnie “running at large” when she trots by with us right behind her, simply because she is not leashed? A very good question, deserving a look at what “running at large” is all about… which brings us to a mother suing her daughter over the misadventures of a three-legged goat. And, no, we did not make this up.

Moore v. Spencer, Case No. 06 CA 830 (Ct.App. Carroll Co., Sept. 12, 2007), 2007 Ohio App. LEXIS 4272. Susan and Wayne Moore were Floridians on a Christmas visit to their daughter and son-in-law in Ohio. Susan brought her puppy, a Cairn terrier (whom we’ll refer to as “Fido,” his actual name not being recorded in the decision). One morning, Susan and her daughter, Laura, went outside with the dog. Laura decided to let Marrif, her three-legged pet goat, out of its enclosure to play with the puppy. The goat and Fido had not previously met, but Laura assured her mother that her goat played well with her friends’ dogs.

It was not to be. Instead of being friendly, Fido began to bark aggressively at Marrif the goat, and in response, the goat postured as though she intended to butt the plucky pup half way back to the Sunshine State. Susan swooped in to pick up the dog before it learned a sorry lesson from a three-legged goat, but as she bent down to grab her hound, Marrif rammed Susan’s right eye with her horn. Susan suffered significant injuries as a result.

This being America and all, Susan and Wayne promptly sued their own daughter and son-in-law. The kids subsequently won summary judgment after the trial court found that Susan had assumed the risk of her injury. Susan and Wayne appealed.

Held: Susan had no claim against her kids or the kid. She argued that her daughter and son-in-law were responsible because they were in violation of O.R.C. § 951.02. She also claimed that the evidence did not establish that she had assumed the risk.

Section 951.02 of the Ohio Revised Code provides that “no person, who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, or geese, shall permit them to run at large in the public road, highway, street, lane, or alley, or upon unenclosed land…” Susan complained that that was exactly what Laura’s goat had been doing at the time of Susan’s injury, running at large. Because of this statutory violation, Susan contended, Laura was negligent per se, that is, negligent as a matter of law with no further showing of duty or breach necessary. For good measure, Susan alleged regular negligence as well, arguing that because the goat was loose and not penned or tied, Laura had violated the duty of care she owed to Susan when she released Marrif.

Marrif, however, was not “running at large” for purposes of the statute by its own terms, the Court ruled. The goat was on Laura’s property, not public property, at the time of the incident. The Court had previously defined “running at large” in a case concerning a dog, holding that “a dog is at large when a vagrant, when it runs at will, when it is absolutely beyond control or call and is acting on its own initiative, and under circumstances where there is no connection, physical or sympathetic, between the dog and the master…” A dog on its master’s premises is not a vagrant and is not running at large.

The Court said that O.R.C. 951.02 was “designed to prevent trespass by animals and was not to be for the benefit of highway travelers.” Negligence per se is only applicable in trespassing cases. Accordingly, if trespass is not at issue, a plaintiff must plead and establish negligence as it may otherwise arise from the ownership of a domestic animal. Susan admitted that the goat was on Laura’s own property at the time of the incident. Based on Susan’s own testimony, her reliance on O.R.C. 951.02 was misplaced.

Because she could not establish that her daughter violated a statute, and thus was negligent per se, Susan had to prove the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. To be sure, Laura owed her mother, who was her social guest, the duty to “exercise ordinary care not to cause injury by any act of the host or by any activities carried on by the host while the guest is on the premises… and to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.” However, Laura was not an insurer her guest’s safety.

In negligence cases raised against the owners of animals, liability is customarily determined by assessing whether the owner could have reasonably anticipated the event that resulted in injury. Here, nothing in the record established that Laura knew the tree-legged Marrif to be “a dangerous, aggressive or otherwise mischievous domestic animal.” Here, the Court observed, it appeared that the puppy Fido’s aggressive bark led to the escalation that resulted in the accident, not any depraved nature on the part of the goat.

Susan had visited her daughter’s property about once a year for about six years before the incident, and she admitted she never saw the goat act in an aggressive manner before. While she never saw the goat running loose unless Laura took it out, on a prior occasion they took Marrif for a walk up the road on a leash.

Based on the undisputed evidence, the Court said, it found that while Laura had a duty to exercise ordinary care and to warn of any known dangers on the premises, not a single fact tended to show that she could have reasonably anticipated this incident and her mother’s injury. Thus, she was not negligent.

– Tom Root


Case of the Day – Tuesday, May 5, 2020


Either the aftermath of battle ... or the morning after a U.S. celebration of Cinco de Mayo.

Either the aftermath of battle … or the morning after a North American celebration of Cinco de Mayo. The Mexicans, having more sense than we do, make little fuss over May 5th.

On this most blessed Cinco de Mayo – this day of days commemorated in the U.S. to celebrate a surprising but utterly insignificant victory of Mexican forces over the French Army – we hoist a virtual cerveza to Kelly Rush. Mr. Rush, like the Mexican military, won an meaningless trial court victory on the way to getting routed.

The French invaded Mexico because our neighbor to the south owed reparations to the Second Empire but decided that a siesta was more salubrious than settling up.  By contrast, Mr. Rush was looking to be paid for the work he had done for JoAnn Goodwin. Kelly is undoubtedly an arborist and landscaping specialist of the first water, but as a businessman … well, that’s another story.

Mr. Rush bid a job for JoAnn Goodwin. And like Gaul, it was divided into three parts. One part was tree removal, one was landscaping, and one was installation of a drain system. Of course, as soon as the job began, there was mission creep. More trees were to be cut down, and then more, and extra branches were to be hauled away. Rush diligently completed the extra work, but he wasn’t nearly so diligent in getting change orders signed by his customer, leading to inevitable confusion.

Alas, hilarity did not ensue. Instead, JoAnn denied asking for any more trees to be cut down, and alleged Rush was overcharging her. Rush said more money was owed. At that point, Kelly “Who Needs a Lawyer?” Rush sued Ms. Goodwin in Justice of the Peace Court, a very informal court in Texas for small issues. He won $4,500. It was his moment, his own victory at Puebla. But recall that after getting his Gallic butt kicked on May 5, 1862, French General Charles de Lorencez responded a year later with a second Battle of Puebla. No one talks much about that one, because the cheese eaters routed the Mexican forces and headed for Mexico City. Like Monsieur General, Ms. Goodwin regrouped, reprovisioned, and came after Mr. Rush again.

In her own second battle, Goodwin appealed to the regular trial court, which was obliged under Texas law to hold a whole new trial. At that trial, Rush’s damages fell from $4,500 to $200, despite the fact he showed the court the contract, two change orders Ms. Goodwin had initialed but not signed and one which he had prepared but she hadn’t even initialed.

The stubborn Mr. Rush appealed the $200 verdict. At the Court of Appeals, Kelly Rush found himself really swimming upstream. His only argument was that the trial court’s decision was contrary to the weight of the evidence, and those cases are hard to win on appeal. To make matters worse, in his zeal to save money, Mr. Rush forgot that sometimes lawyers are good for something. That “something” here would have been to get the documents he was relying actually admitted into the trial record so the court of appeals had something to look at. Without the missing documents – which Kelly Rush hadn’t introduced into the record – the Court of Appeals said it really had nothing to look at, and the $200 award stood.

Pozole - the national dish of Mexico.

Pozole – the national dish of Mexico.

Parenthetically, one would think that the trial court would have helped out layman Kelly Rush on coaching him to introduce the documents into evidence. But it wasn’t required to. We bet Kelly Rush was glad he saved so much money by not hiring one of those overpriced lawyers to help him out! Lesson: Document your work. Get signatures from the customer. Hire a lawyer when you need one. After all, lawyers hire arborists when they need them. OK, end of lesson … and the pozole’s on!

Rush v. Goodwin, 2007 Tex.App.LEXIS 9035, 2007 WL 3380025 (Tex.App.-Waco 2007). JoAnn Goodwin requested a landscaping bid from Kelly Rush involving three parts: tree removal, landscaping, and construction of a French drain system. After completing the work, Rush complained that he was not paid in full.

Rush complained that he ended up cutting down many more trees than originally agreed to. Both Rush and Goodwin walked the property, and they agreed to have 26 trees cut down. But Rush said that after the initial agreement, the number of trees to be cut down kept changing. He claimed that the final agreement called for removal of 36 large trees, 14 small trees, and 1 large limb from Goodwin’s property, at an agreed-upon price of $200 for each large tree, $100 for each small tree, and $100 for removal of the large limb. The total was $8,700.

At trial, Rush presented an original contract which he had signed and Goodwin had initialed stating that 26 trees were to be cut down at $200 each and a large limb removed for $100, for a total of $5,300. As well, he presented a document only he had signed – a request for removal of 36 large trees at $200 each, 14 small trees at $100 each, and removal of a large oak branch at $100 – and another he had signed and Goodwin had initialed in part by Goodwin, reflecting an agreement to cut and remove 33 trees at $6,600.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Conco de Mayo celebrant in a period costume. Think of him as a Mexican version of a Civil War re-enactor.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Cinco de Mayo celebrant in a period costume, a Mexican version of a U.S. Civil War re-enactor.

Goodwin contended she only agreed to have 26 large trees removed from her property at $200 per tree. She said that after counting the stumps, only 26 trees had been removed, and that even if more than 26 trees had been removed, she never agreed to their removal. She maintained that Rush overcharged her $1,400 to remove trees that were not cut down. In addition to tree removal, the agreement called for removal of vegetation and growth, spreading of dirt, and removal of fences. Rush and Goodwin agreed that the cost of that project would be $3,600. Goodwin paid Rush $1,000 on the landscape agreement and still owed $1,600. She argued that because she overpaid $1,400 on the tree removal and other projects, she did not owe the $1,600 balance.

Rush also argued that after starting the project, Ms. Goodwin asked that extra side projects be performed, and the cost of these projects came to total of $749.94, none of which Goodwin paid. He filed suit without an attorney against Goodwin, seeking relief of only $1,600 but being awarded $4,500 plus court costs. A glorious and unexpected windfall! But Ms. Goodwin appealed to county court, where in a bench trial the court returned Rush to reality, awarding Rush a symbolic $200 with interest.

Far be it from us to plug our book, but if Kelly had "Rushed" out to buy a copy, he would have spared himself some grief.

      Far be it from us to plug our book, but if Kelly had “Rushed” out to buy a copy, he would have spared himself some grief.

Rush appealed.

Held: Rush got only his $200 award.

In his appeal, Rush claimed he was underpaid for his work and essentially argued that the $200 damage award was against the great weight and preponderance of the evidence. When seeking review of the factual sufficiency of the evidence supporting an adverse finding on which the appealing party had the burden of proof, the appellant must show that the adverse finding is against the great weight of the evidence. The appellate court must weigh all the evidence, and may set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. The appellate court isn’t permitted to pass on the credibility of witnesses or substitute its judgment for that of the trial court.

The Court found that Rush had completely bollixed up the trial. During that proceeding, Rush referred to the various documents he said established the terms of the tree removal and landscape agreement, but he failed to ask the court admit any of them into evidence. The Court of Appeals said that in order for it to consider the documents, those papers had to have been introduced and admitted at trial. Without them, the Court could only examine the parties’ testimony. That testimony was largely in conflict, and it was the role of the trial court, not the Court of Appeals, to determine which party’s testimony was more believable.

The trial court’s award of only $200 in damages, the Court of Appeal said, was not overwhelmingly against the great weight of the evidence, especially when the alleged contracts were not in evidence.

Oops. Or as the Mexicans say, “¡Ay!”

– Tom Root


Case of the Day – Monday, May 4, 2020


lawsuit151105The Walls never imagined that when they bought the overgrown half-acre next to the old church that they were buying boundary trouble. But as soon as Mr. Wall started clearing the trees and brush, the parishioners next door at the Springfield Missionary Baptist Church starting complaining that he was trespassing against them.

Being a careful kind of guy, Mr. Wall stopped until he could have an expert check it out. It turned out he wasn’t on the Church’s land, so he kept clearing the land. The Church was unwilling to forgive him his trespasses. It sued, arguing that while maybe it was the Walls’ land (which would mean he was not trespassing), the Church had acquired it over the years by adverse possession (which meant that he was).

The Walls moved for summary judgment, arguing that there was no way the Church’s claim could bear fruit, and asking the trial court to throw the case into the proverbial fire. There were simply no facts, Mr. Wall claimed, supporting the congregants’ claims. Part of the Walls’ claim was that the area was so overgrown – sort of a micro-wilderness – it would have been impossible for the faithful to have wandered in it enough to possess the disputed land within the meaning of adverse possession law.

When a party files for summary judgment, it is incumbent on the other side to show with affidavits and other documentary evidence that genuine questions of fact exist. Here, the Church opposed the Walls’ motion with three affidavits of long-time members that seemed to be pretty much “cookie-cutter” claims that the Church had openly, continuously and hostilely possessed the disputed land for years.

The trial court wasn’t impressed: it threw out the affidavits because the witnesses didn’t adequately describe a boundary fence on the disputed property or even claim that they were familiar with the boundaries. The Court of Appeals, however, reversed – it found that the affidavits were detailed enough to show that a real question existed whether the Church had possessed some of the Walls’ property.

But then on rehearing, the Court reversed its own reversal, concluding that the affidavits permitted two equally reasonable inferences as to whether the fence was located on the neighboring landowners’ property. That being the case, the Court said, the affidavits did not create a genuine issue of material fact warranting submission of the case to the jury. Someone could only speculate or guess whether the fence was located on the neighboring landowners’ property or on the church property, and the court would not let the Church continue to assault Mr. Wall’s title to the property over such tottering facts.

cutter151105The moral to the story: it’s never a good idea to file conclusory affidavits. Detail is good, and the more facts you can aver, the better. Here, the Church’s lawyer wrote some mirror-image affidavits that were short enough on fact and long enough on conclusion (and confusion) that the Church got its case tossed.

Springfield Missionary Baptist Church v. Wall, 993 So.2d 469 (Ala.Civ.App. 2008). Springfield Missionary Baptist Church owned land next to a half-acre parcel owned by Robert and Melissa Wall. Robert began clearing the land when the Church contacted him, contending that he had torn down a boundary-line fence and some trees on Church property. Concerned about the allegation, he double-checked the boundary line and determined that he had not crossed it. He then continued with his clearing.

The Church sued the Walls to quiet title to a portion of the Walls’ property. The Walls moved for a summary judgment, arguing that the Church’s deed did not give it title to the disputed strip of land, as the Church had alleged in its complaint, and that, even if the Church was arguing that the fence it claimed had since been destroyed once encroached onto the Walls’ property such that it could claim adverse possession of a portion of the Walls’ property up to that fence, neither of the surveyors who had surveyed the properties and determined the boundary line had indicated an encroachment of any kind on either survey.

The Walls also argued that their property had been “overgrown” and heavily wooded at the time it was purchased in November 2005 and that, because it was in such a condition, no part of it had been susceptible to being used in a manner that could establish adverse possession of any part of the property. The Church countered that the fence that the Walls had destroyed had served as a boundary line between the two properties. It said it had used the property up to the fence as a parking lot and that it had used the area up to the fence for more than 60 years, thus establishing adverse possession of the disputed “strip.”

The Church submitted the affidavits of three long-time church members. In nearly identical affidavits, two of them said they had been parishioners since 1928 and 1934, respectively. Both said that the Church has claimed ownership the property encompassed by the legal description set out in the 1995 survey, and the Church had in continuous, actual, open, notorious, and peaceful possession of said land from at least the year 1928 to the present time. Regarding the fence, they both said it had been located on the property as long as they could remember. A second affidavit executed in opposition to the Walls’ motion for a summary judgment said the Church had been in its present location for over 20 years and that she has been a member of the church for over 20 years. The third member’s affidavit said the old fence that was removed by [the Walls] had been in place as long as [I] can remember and served as the boundary line.” According to her, “the church parking lot went all the way to the fence line,” and that she had walked the boundary line marked by the fence many times.

The trial court struck the affidavits submitted by the Church on the grounds that the affidavits only stated conclusions regarding adverse possession instead of making statements of fact that would support a conclusion that the Church had adversely possessed the disputed property. It held that the affidavits failed to adequately describe the fence and because the affiants failed to testify that they were familiar with the legal boundary line of the property. The trial court’s judgment, in addition to striking the affidavits, determined that the church had failed to provide substantial evidence of an encroachment on the Walls’ property.

The trial court granted summary judgment in favor of the Walls.

The Church appealed, arguing that it presented substantial evidence creating a genuine issue of material fact and thus presented sufficient evidence to preclude the entry of the summary judgment.

Answer: The part where you claimed to the neighbors' property.

Answer: The part where the Church said to the Walls “thou shall not clear your property because it really belongs to us.”

Held: The Court of Civil Appeals reversed the trial court in a decision in September 2007, but then, in January 2008, reversed its reversal, upholding the trial court. The Court of Appeals ultimately held that the summary judgment affidavits submitted by church members did not present solely conclusory statements so as to warrant striking the affidavits in their entirety. However, the affidavits didn’t create a controversy that required the case to go to the jury. The affidavits permitted two equally reasonable inferences as to whether the fence was located on the neighboring landowners’ property, leaving a fact finder to only speculate or guess whether the fence was located on the neighboring landowners’ property.

The Court observed that it was only where evidence points equally to inferences both favorable and unfavorable to the party moving for summary judgment that it lacks probative value, and its use to support one inference more than another, when in fact it will support both with equal plausibility, becomes mere conjecture and speculation.

– Tom Root


Case of the Day – Friday, May 1, 2020


Our apologies to Bill Shakespeare, despite the fact he and the three witches of MacBeth probably are not regular readers of this blog. Today we meet Aynne Doil, a hapless landowner who gets slapped with double damages under an unusual Maine law requiring the marking of property boundaries, but who dodges much greater liability for the misfeasance of her independent contractor, Matt McCourt.

Aynne is the Doil. And, pretty clearly, Matt is the trouble.

This is not the first time, and it won’t be the last, that we emphasize the importance of written agreements, and (for you homeowners especially), the importance of ensuring that your timber harvesters, tree trimmers and arborists are and remain independent contractors. We’ll even sell you a book about it.

At trial (where Aynne’s timber harvester and co-defendant, Matt McCourt, proved himself to be “Matt SkipCourt” and did not bother to show up), the court bonked Aynne over the head with about $120,000 in damages for the mess Matt had made in denuding the Stocklys’ 20 acres of woodland. Lucky for Aynne she had signed a written agreement with Matt that was sufficient under Maines’ Bonk v. McPherson factors to make him an independent contractor.

The Maine Supreme Court unbonked Aynne, because – as we all know – a landowner is only responsible for the intentional or negligent acts of his or her independent contractor if the landowner reserved the right to control the manner of the contractor’s performance. Aynne knew from nothing about timber, a fact pretty evident from her rather simple negotiation of the agreement. But for its failings, the contract was good enough in the end to make Matt an independent contractor, Aynne was not responsible for the $119,000 in damages, but rather only for about $14,000 for failing to mark her property, which was doubled by statute to $28,000.

Matt promised in the contract to indemnify Aynne from any liability, which should have protected her from even the $28,000 in damages, but we’ll leave it to you to imagine how reliable a promised indemnity might be from a guy who did not even show up in court to defend himself.

Some time we’ll talk about performance bonds, people. For now, we’ll call Aynne “Double Doil,” but concede that she nevertheless may have avoided $119,000 worth of real trouble.

Stockly v. Doil, 870 A.2d 1208 (Me. 2005). The Stocklys owned 20 acres of undeveloped land in Falmouth. Aynne Doil’s 30 acres of land abutted the Stockly property. Neither Aynne nor the Stocklys cleared their properties, which were naturally forested with a mix of mature hardwoods and softwoods, prior to spring of 2001.

It was then that Aynne hired Matt McCourt to selectively harvest timber on her property. Matt did the paperwork with the State, and helped Aynne get a copy of the tax map of her property. Aynne, who was not especially cartographically inclined, understood that Matt would determine the boundary of the property from the tax map, an impossible task.

No matter, because Matt told Aynne he would indemnify her in the event that he trespassed on any land she did not own. The indemnification provision in the agreement was to Aynne, who didn’t want to liable for “anything that might … happen.”

Stone walls marked the boundary between the western and southern edge of the Stockly property and the eastern edge of Aynne’s land. The eastern, northern, and southern edges of the Stockly property, which abutted the Doil property, had previously been surveyed and flagged, but no other markers indicated the boundary between the two properties. Aynne knew Matt had identified the stone wall boundaries on at least one edge of the property, and she thought he had all the information he needed to determine the boundary of her property. Unfortunately for Aynne, she didn’t know Maine law required her to mark her boundaries, something that Matt – being the pro here – should have told her. At trial, she conceded liability under 14 MRSA § 7552-A, which requires the owner of 10 acres or more being cut to mark the property lines, or pay double damages for any resulting injury to another property.

Pretty complete clearcut: Matt did a complete job, but it wasn’t pretty.

During the spring and summer of 2001, Matt “selectively” cut trees on 30 acres of Aynne’s property and on all 20 acres of the Stockly property, much the same way the locusts “selectively” descended on Egypt. The Stocklys lost about 725 trees to Matt’s saw, mostly large hardwoods and softwoods (the good stuff). The Stocklys obviously did not authorize the cutting and were not aware of it until after it occurred. Matt paid Aynne $18,000 for the trees he cut.

The trees cut on the Stockly property had a fair market or “stumpage value” of $14,127.00. The forfeiture value of the trees, pursuant to Maine’s unlawful cutting statute, 17 MRSA § 2510(2), was $59,525.00. The cost to clean up the debris and slash left behind from the timber harvesting was $35,750. To restore the property would have cost about $370,000. The cutting, however, did not have a significant impact on the fair market value of the Stockly property, but the Stocklys understandably contended that their property was 95% clear-cut and was of little or no value to them, as they could no longer use it for recreational purposes.

The Stocklys sued Aynne and Matt, seeking damages for (1) breach of statutory duties pursuant to 14 MRSA §§ 7552 and 7552-A; (2) negligence; (3) nuisance; and (4) negligent infliction of emotional distress. Aynne filed a cross-claim seeking indemnification from Matt. Matt failed to appear, and a default judgment was entered against him. The Superior Court found Aynne responsible for damages of $28,254.60 (double the stumpage value) under § 7552-A, for failing to mark her property line; and (2) finding Aynne and Matt responsible for damages of $119,050 (double the forfeiture value of the trees), pursuant to 14 MRSA § 7552, for negligently cutting, destroying, damaging, and carrying away trees from land without the property owner’s permission, but reduced Aynne’s share to $35,750 pursuant to 14 MRSA § 7552(3)(B). To add insult to injury, the Stocklys got $45,000 in attorney fees and $1,537.00 in other costs pursuant to § 7552(5).

Aynne and the Stocklys both appealed.

Held: Aynne was not liable for Matt’s trespass. The Maine Supreme Court examined 14 MRSA 7552, and found that it “simply provides that “a person” may not “cut down” someone else’s trees and that “a person” who violates this prohibition is liable to the owner of those trees. “Nothing in this statute indicates that the language ‘a person’ and ‘cut down’ was intended to also include one who engages an independent contractor to cut down someone’s trees,” the Court held, “especially because 14 MRSA § 7552-A already creates such liability.”

The Court said the statute’s history supported its interpretation. In legislative history accompanying a 1977 amendment, the legislature said that the “new draft clarifies the purpose of the original bill. It increases the damages for which the trespasser himself is liable, in section 1 of the new draft. Section 2 of the new draft clarifies the law with regard to the landowner who authorizes cutting, but fails to mark his property lines, with the result that timber is cut on the abutting owner’s land.”

In 1992, the Supreme Court considered a case, Bonk v. McPherson, 605 A.2d 74, 79 (Me.1992), that applied 14 MRSA § 7552 in a case where a landowner hired an independent contractor. There, the Court held that the statute was ordinarily applicable only to the actual trespasser and that liability may extend back to an employer for the trespass of his independent contractor only under very narrow circumstances:

a party can be held liable for the trespass of an otherwise independent contractor if the trespass was [1] authorized as part of the contract, [2] or was the natural result of the work contracted to be done, [3] or the trespass was somehow directed or part of a common purpose, or [4] the trespass was ratified.

Here, Aynne’s contract with Matt provided that Matt would “assume all responsibility for the cutting of wood on adjacent properties and shall indemnify and hold the Seller harmless from all claims of trespass and damage and further shall be responsible for complying with all applicable governmental regulations.”

The Court noted that the trespass was not authorized under the contract and was not the natural result of the riskiness of the work contracted to be done. Aynne did not direct Matt to enter the Stocklys’ property and cut down their trees, and she did not subsequently rarify the trespass. Aynne’s acceptance of Matt’s payment could ratify his acts only if she was aware of all the material facts relating to the trespass. Here, there was no evidence in the record that suggests Aynne knew at the time she accepted payment that Matt had cut Stockly trees. “Common sense,” the Court said, “suggests the opposite.”

Aynne was liable for the damages caused by her own failure to mark her boundaries. “However,” the Court ruled, “it only makes sense to hold her responsible for the intentional or negligent act of Matt if she reserved the right to control the manner of his performance somehow. Because Matt was an independent contractor, the only opportunity Aynne had to exert control over the manner of his performance was during the formation of the contract when she was deciding what exactly it was that she wanted him to perform. Consequently, that is the point in time that we look to.” An independent contractor’s employer has a say-so only about whether the end product is acceptable, not about the exact manner or means used to achieve it.

Meanwhile, the Stocklys complained that the trial court erred by awarding them damages pursuant to 14 MRSA § 7552-A based only on the value of the severed trees, or the “stumpage value.” In Maine, an owner can claim the diminution in value of the land or treat the timber as personal property and claim the value of the severed trees as his damage. However, nothing prevented the trial court from considering the cleanup costs, which Aynne and the Stocklys agreed totaled $35,750, “to remove the debris left by” the cutting. “Those cleanup costs,” the Court said, “which may be necessary to reduce risks of fire, erosion and sedimentation of streams, and to restore use of trails and roads on the property, are recoverable as an element of damages pursuant to section 7552-A.” The issue was sent back to the trial court.

Because Aynne is no longer liable for the $119,050 in trespass to tree damages, the attorneys’ fees awarded to the Stocklys were mooted.

– Tom Root



Far be it from us to plug our book, but if Aynne had had a copy of it, she might have avoided those pesky double damages (and some litigation expense). It makes our low, low price seem like a bargain, doesn’t it?

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Case of the Day – Thursday, April 30, 2020


oopsMr. Harper accidentally cut down 70 trees on Ms. Dumas’ property, thus markedly improving his view. Oops! 

The more skeptical among us think that cutting one Dumas tree would have been an accident, and cutting down a few would be tragedy. But cutting down 70 of ‘em, and coincidentally achieving the better view Mr. Harper coveted… well, that sounds like enemy action.

The Connecticut court is considerably more credulous than are we. The judge bought the notion that Mr. Harper and his woodsmen goofed, but pondered long and hard about how to figure the damages. In a weird inversion of schadenfreude, Ms. Dumas argued her damages should be measured by the value that Mr. Harper derived from his better view. The Court rejected that.

Instead, it held, the measure of damages is either the value of the timber or the diminution in value of Ms. Dumas’ place. Harper said that the trees he accidently lopped weren’t ornamental, so the only damage is about $1,000 worth of debris (thus proving that while he couldn’t identify a property line, old Mr. Harper didn’t lack for chutzpah).

schaden141031The Court disagreed. The trees weren’t strictly ornamental, but that was their purpose, regardless of Mr. Harper’s sad attempt at speciesism. The damages should be measured by the cost of repair, the Court said, and the repair will cost $16,000.

Careful testimony by Ms. Dumas’ expert was crucial to establishing her damages, and arborists and landscape professionals should consider how plenty of detail can persuade a court to side with an expert’s report. For the same reason play-by-play people keep a color commentator near at hand, an expert should tell a story that’s not only accurate and complete, but interesting as well.

Dumas v. Harper, 2008 Conn. Super. LEXIS 264, 2008 WL 496558 (Conn. Super.Ct., Feb. 6, 2008). Yvon Dumas claims that Emery Harper and his agents entered on her land without permission and cut down about seventy trees. Dumas claimed trespass, and sought damages and treble damages pursuant to Connecticut law, and other equitable relief. The matter was tried to the court.

Based on the evidence, including a site inspection, the court found that Harper and his minions cut down about 70 trees, resulting in the area looking unsightly, with tree stumps and branches and debris strewn about. The Court found that Harper’s trespass was the result of a mistake.

Nothing left but a stump field ...

Nothing left but a stump field …

Dumas introduced evidence of the value of the “view” to Harper with the trees on her property cut down. But the Court ruled that the value of any view to Harper was not the measure of damages, but rather the damages were either the market value of the tree once cut down, or the diminution in the market value of Dumas’ property caused by the cutting. Harper argued that the only measure of damages the court can award pursuant to Connecticut General Statute § 52-560 was the market value of the 70 trees as severed from the soil, because the trees in question were neither ornamental nor shade trees. The Court disagreed, holding that while the trees were not ornamental trees as such, the evidence was that they had ornamental value insofar as their removal rendered that portion of Dumas’ property unsightly. It would make no sense, the Court said, for the damages to be limited to the value of the trees as severed from the realty. The damages to be awarded to Dumas should be based on the reduction in the pecuniary value of the land because of the cutting.

The Court found that the diminution in value to the Dumas property should be measured by the cost of cleanup and screening the area with new trees. The Court accepted the expert opinion of Dumas’ landscape consultant, who testified that the work would take a week or more and would cost $9,180 for labor and $6,000 for new trees.

– Tom Root


Case of the Day – Wednesday, April 29, 2020


Teyve the milkman has nothing on the law when it comes to the reverence afforded tradition. That’s chiefly because development of the common law is based on the doctrine of stare decisis, shorthand for stare decisis et non quieta movere, meaning “to stand by decisions and not disturb the undisturbed.”

In common law legal systems, precedent – prior authority – is a principle established in one or more prior cases that is either binding on or persuasive authority for a court when deciding subsequent cases with similar issues or facts. Common law legal systems value deciding cases according to consistent rules, so that similar facts will yield similar and predictable outcomes, and people can fairly be said to understand what the law requires of them. Observance of precedent is the mechanism by which those goals are attained.

As Justice Brandeis famously wrote, however, “The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible… Stare decisis is usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than that it be settled right.”

When courts are seen to be messing with stare decisis, a lot of people can get their knickers in a bunch. Look at the kerfuffle last week over the Supreme Court’s decision that the Sixth Amendment requires unanimous juries in felony case. As a concept, that’s hardly shocking. But sometime being right becomes more important than being consistent. Were that not so, Plessy v. Ferguson and “separate but equal” would still be the law of the land, and laws limiting the number of hours in a work web would still be unconstitutional. Sometimes, rules with roots that are ancient and run deep get overturned. Times change, and with them, rules change, too.

Such was the case in California, which was among the first to completely and soundly reject the quaint common law notion that a landowner was responsible for artificial conditions of his property, but not the natural conditions. As the country became more settled, early tree liability cases began to nibble at the doctrine, perhaps because courts were offended that a property owner could let a tree rot and decay until it fell on a neighbor’s house (or worse yet, the neighbor), and yet not be liable because the tree was a “natural condition.” As the nation became less rural, the rule made less and less sense, until a California landslide swept it away.

Sprecher v. Adamson Companies, 30 Cal. 3d 358, 636 P.2d 1121 (1981). South Winter Mesa Associates, a joint venture between Adamson Companies and Century-Malibu, owns a 90-acre parcel of land in Malibu, California. The parcel is bounded on the north by the Pacific Coast Highway and on the south by Malibu Road.  Across Malibu Road and opposite the parcel are a number of beach front homes, including one owned by Peter Sprecher.

South Winter’s land contained part of an active landslide which extends seaward from the parcel for 1,700 feet along Malibu Road and beyond the boundaries of the property. Pete’s house sat within the toe of this slide. The landslide, which has been evident since the area was first developed in the early 1900’s, was a natural condition of the land which has not been affected by any of South Winter’s activities on the 90-acre parcel.

In March 1978, heavy spring rains triggered a major movement of the slide which caused Pete’s home to spin up against the home of his neighbor, Gwendolyn Sexton.  As a result, Gwen sued Pete, seeking to enjoin the encroachment of his home upon hers. Pete then sued Gwen, the County of Los Angeles and South Winter, seeking damages for the harm done to his house by the landslide. He complained that South Winter had not done anything to correct or to control the landslide condition.

South Winter moved for summary judgment, arguing primarily that a possessor of land has no duty to remedy a natural condition in order to prevent harm to property outside his premises. Pete countered that the common law rule of nonliability for a natural condition should be jettisoned, because the rule is neither premised upon sound public policy nor in accord with modern principles of tort liability.

The trial court held that South Winter was not liable, and Pete appealed. Eventually, the issue made it to the California Supreme Court.

Held: Rejecting the distinction between artificial and natural conditions, the California Supreme Court held that a possessor of land is liable to others when he is negligent in preventing a natural condition of his land from causing harm.

Under the common law, the major important limitation upon the responsibility of a possessor of land to those outside his premises concerned the natural condition of the land.  While the possessor’s liability for harm caused by artificial conditions was determined in accord with ordinary principles of negligence, the common law gave the landowner an absolute immunity from liability for harm caused by conditions considered natural in origin. No matter how great the harm threatened to his neighbor, or to one passing by, and no matter how small the effort needed to eliminate it, a possessor of land had no duty to remedy conditions that were natural in origin.

The Court observed that over the 20th century, a progression of the law mirrored a general trend toward rejecting the common law distinction between natural and artificial conditions.  Instead, the courts increasingly used ordinary negligence principles to determine a possessor’s liability for harm caused by a condition of the land.  The earliest case to do so was a tree case in 1896, in which a New York court held a possessor of land was liable for damage caused when a decayed tree on her premises fell on her neighbor’s house during a storm.  After observing that the defendant clearly would be liable for the fall of a dilapidated building, the court observed that it could “see no good reason why she should not be responsible for the fall of a decayed tree, which she allowed to remain on her premises… The tree was on her lot, and was her property. It was as much under her control as a pole or building in the same position would have been… A defendant had no more right to keep, maintain, or suffer to remain on her premises an unsound tree… than she would have had to keep a dilapidated and unsafe building in the same position.”

In more recent years, the California Supreme Court noted, thirteen states and the District of Columbia have begun applying ordinary negligence principles in determining a possessor’s liability for harm caused by a natural condition. All of the cases involved injury caused by fallen trees. However, the California Supreme Court said, the principle is not limited to trees: a possessor of land has a “duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor’s property.”

The California Supreme Court concluded that the national trend was moving toward jettisoning the common law rule in its entirety and replacing it with a single duty of reasonable care in the maintenance of property.  Even the Restatement Second of Torts recognizes that a possessor of land may be subject to liability for harm caused not just by trees but by any natural condition of the land, drawing no distinction between landowners located in urban areas and the rural countryside. While some cases have held rural landowners have a lesser duty of inspection than do urban dwellers, others do not, while a compromise position taken by a few states holds that the rural or urban nature of the land is only one of several factors to be considered.

Historically, the consideration most frequently invoked to support the rule of nonliability for natural conditions simply embodied the principle that one should not be obligated to undertake affirmative conduct to aid or protect others. A natural condition of the land was by definition, some argued, one which no human being had played a part in creating. Therefore, no basis for liability existed because a duty to exercise reasonable care could not arise out of possession alone.

Whatever the rule may once have been, the California Supremes said, it is now clear that a duty to exercise due care can arise out of possession alone.  The duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage the premises.

The historical justification for the rule of nonliability for natural conditions, the Court concluded,

has lost whatever validity it may once have had. In addition, adherence to the rule in California would produce an anomalous result. A possessor of land would owe a duty of care to protect trespassers, invitees and licensees, but not his neighbor, from harms threatened by a natural condition of the land… It is difficult to see why this court should support a rule which would allow a trespasser to bring an action in negligence that would be denied a neighbor, where both were standing on either side of the possessor’s boundary line and were both struck by a dead limb from his tree.

The distinction between artificial and natural conditions and the immunity from liability predicated on that distinction, the Court concluded, bore scant relationship to the factors that should determine whether immunity should be given a landowner for harm done by a natural condition of the land. “The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant and the consequence to the community of imposing a duty to exercise care have little, if any, relationship to the natural, as opposed to artificial, origin of the condition causing harm.”

– Tom Root