Case of the Day – Thursday, March 30, 2023


Even Fred Rogers could have problems with this.

Follow along, because there will be a quiz: The Does lived next to the Roes for years and years. Then, the Does moved, and the Smiths move in. The Roes move and the Joneses move in. The Smiths sell to the Johnsons, and the Joneses sell to the Browns.

And all this time, there was a nice old hedgerow between the two houses, and the neighbors jointly and lovingly maintained it. A couple of stately elms stood on the Roes’ side of the hedge, and they raked under them, had them trimmed, and mulched around their bases.

After 30 or 40 years passed, the Johnsons sold to Alice Avarice. The first thing she did was have the property surveyed. Lo and behold, the hedgerow was not the boundary between the properties. Instead, the line was 10 yards to the other side, meaning that the two elm trees had never belonged to the Roes and their successors, but always to the Does and their successors.

Something just doesn’t seem, well, seem very fair about the whole thing. “The law’s the law,” Alice cackled as she erected the chain-link fence along the new property line.

Of course, it is, which is the whole point of this blog. But exactly what does the law say about Alice’s claim?

Welcome, Alice, to the doctrine of “acquiescence.” The Does acquiesced to the Roes caring for everything on the other side of the hedgerow, and the Roes acquiesced to doing so. The subsequent owners did as well, for 50-plus years, until Alice came along and riled everyone up. Under the doctrine of acquiescence, the boundary line became what the parties had always considered it to be.

Where’s Fred Rogers when you need him?

Guthrie v. Jones, 780 N.W.2d 248 (Court of Appeals, Iowa, 2010). The Guthries’ property abutted land owned by Jones. A line of shrubs and trees ran along one side of the adjacent properties, and the Guthries had always believed that the tree line marked the property boundary.

It didn’t. Instead, a 2007 survey by neighbor Jones showed the property line to be 10 feet to the west of the line of shrubs and trees.

The Guthries had gotten used to thinking they had 10 feet more room in the side yard than they really did, so they brought suit, arguing that under Chapter 650 of the Iowa Code, the shrub and tree line – not the surveyed line – should establish the actual boundary. The Guthries argued that the Joneses had agreed to the property line being marked by the trees, an argument known as “acquiescence.”

The trial court found that the boundary line between the two properties was established by the survey, because the Guthries did not prove the Joneses’ acquiescence.

Held: The appellate court affirmed the trial court. Iowa law governing boundaries by acquiescence holds that “a boundary line may be established by a showing that the two adjoining landowners or their predecessors in title have recognized and acquiesced in a boundary line for a period of ten years.” The owners’ recognition may be evidenced by conduct or by claims asserted by the parties, but it must be by both parties. The acquiescence by both parties is a condition precedent for proving the existence of a boundary by acquiescence.

The party seeking to establish a boundary line that deviates from the surveyed boundary line must prove acquiescence by clear evidence. This is a higher standard than the usual civil standard of proof, which is “preponderance of the evidence” (which means, essentially, by a majority of the evidence).

In this case, the appellate court agreed with the trial court that Jones did not consent to the shrub and tree boundary line for the required 10-year period. The Guthries purchased their lot in 1979. At that time, the seller placed metal pins in the ground to mark the boundary line. Subsequently, the Guthries used the pins as a guide for mowing. Jones did not object to the use of the land “close to, if not over the surveyed boundary line.” However, the court reasoned that this failure to object constituted nothing more than a neighborly gesture, and fell far short of showing Mr. Jones’ consent to a new boundary line.

At trial, Mr. Jones asserted that he maintained the area in question since 1989, and did not recognize the shrub and tree line as the true boundary. The Guthries didn’t have sufficient evidence to disprove this. Thus, the Guthries failed to prove their claim for acquiescence.

– Tom Root


Case of the Day – Wednesday, March 29, 2023


The grass is greening up, the neighbor boys are ramming around on their new electric scooters, cutting across very soft lawns and leaving furrows.  Now I understand why my father – who would have turned 100 next week (happy birthday, Dad… I miss you) – yelled at the neighbor boy when his Schwinn strayed off the lawn.

I try not to complain. Kids being kids everywhere is the point of today’s case. They are not great respecters of property lines, they tend toward recklessness, and they’re doggone fast. It’s a prescription for disaster. What duties do property owners owe the little ankle-biters?

The Cotes were nice neighbors. They let little Chuckie Herrington cut across their yard on his bike because there was no sidewalk. They did not extend their invitation to the kid to ride his bike in their driveway, but he was a kid, and we know how kids are. He did anyway. Racing down the drive into the street, the reckless rugrat ran into the side of the Cotes’ car, being driven by Jennifer Cotes at the time.

Ouch. The boy was hurt. His parents responded in the usual American fashion: they sued the Cotes for not trimming their shrubs so that Chuckie could see where he was going.

Herrington v. Cote, 2007 Tex. App. LEXIS 2501, 2007 WL 926622 (Court of Appeals, Texas, Mar. 29, 2007). Charles Herrington, a minor child, was riding his bicycle on the Cotes’ property. As he rode out of the driveway and into the street, he hit the side of a car driven by Jennifer Morgan and was badly injured. His mother sued the Cotes, claiming that shrubs planted along their driveway from the garage to the edge of the street created a dangerous condition that obstructed her son’s ability to see oncoming traffic. The Cotes asked the trial court for summary judgment, claiming they did not owe a duty to Charles, did not breach any duty, or proximately cause the youth’s injuries. The trial court granted summary judgment in favor of the Cotes.

Held: The summary judgment was upheld. Herrington argued that her son Charles should have been considered a licensee on the Cotes’ property, and thus that the Cotes had a duty to warn of, or to make safe, the dangerous condition that they were aware that they had created by planting shrubs along their driveway. But the Court of Appeals held that in a premises liability case, the duty owed is determined by the status of the complaining party at the time and place of the injury.

A licensee is a person who is privileged to enter or to remain on land only by virtue of the possessor’s consent, thus entering with the permission of the landowner, but doing so for his own convenience or on business for someone other than the owner. The duty owed a licensee is not to injure him willfully, wantonly, or through gross negligence and, in cases in which the owner or occupier has actual knowledge of a dangerous condition unknown to the licensee, to warn of or to make safe the dangerous condition. The issue, the Court said, was whether Herrington presented summary judgment proof sufficient to raise a fact issue as to whether the Cotes knew of a dangerous condition that Charles did not know of, but failed to warn him of it or to make the condition safe. A dangerous condition is one that creates a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

Here, Herrington was obligated to provide some evidence showing that it was reasonably foreseeable that the Cotes’ driveway would be used by a child riding a bicycle, so that the shrubs on the side of their driveway would become a dangerous condition. Herrington showed the Cotes had given Charles permission to walk across their yard because of the absence of sidewalks, but the Court ruled that this evidence did not suggest that the Cotes should have reasonably foreseen that Charles would ride his bicycle in their driveway.

Herrington argued that the Cotes should have known that planting the shrubs created an unreasonable risk of danger because an owner or occupant of premises abutting a highway has a duty to exercise reasonable care not to jeopardize or to endanger the safety of persons using the highway as a means of passage or travel, but the Court observed that Charles was not a traveler on the highway and the Cotes did not know or have reason to know that the shrubs created a dangerous condition for a child riding a bicycle on their driveway.

Thus, Herrington had failed to show that the Cotes owed a duty to her son, and no premises liability could attach.

– Tom Root


Case of the Day – Tuesday, March 28, 2023


bikecrash141015Young Michael Rivera and his buddies were riding their bicycles around when one of them decided to cut off the sidewalk onto what could charitably be called a “beaten path” through some woods in the large Glen Oaks Village residential cooperative. Young Mike was said to be an experienced rider, but this young BMX’er was no match for the big hole in the trail. He fell and was injured. Then, like any true American, he sued.

That’s when the extreme lawyering commenced. The co-op argued that it was protected by the New York recreational user statute, because bicycling was one of the activities specifically mentioned in the law, and the trial was suitable as a bike trail. Not so, young Mikey’s mouthpiece claimed. The trail was just a path in the middle of a large residential community not designed for cycling.

The trial court, perhaps sympathetic to the young man’s crash found New York’s recreational user statute didn’t apply. But in an impressive piece of circular reasoning, the Appellate Division said that the trail was suitable for bicycling chiefly because Mike and his buds were biking on it and other people had, too.

This reminds me somewhat of my mother asking me whether I’d jump off a cliff just because the ornery neighbor kid, Rick, did, too. (The real answer, of course, was “probably,” but I knew better than to interrupt Mom when she was on a roll). Anyway, shaky reasoning or not, the Appellate Division did justice to the intent of the recreational use statute: to protect landowners from liability when they make unimproved land available for the use of, as the Court put it, “recreationists.” The dictionary says it’s a good word, and the outcome in this case is probably a good result.

Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.3d 817, 839 N.Y.S.2d 183, 2007 N.Y. Slip Op. 05718 (N.Y.A.D., 2007). Mike Rivera and two of his friends went bicycling on a dirt trail located in a two-acre wooded area, which was part of a large residential cooperative community. The trail was 500 feet long and 10 feet wide, and “bumpy.” After traveling about 30 to 40 feet on the trail, Mike came upon a 2′ x 3’ hole in the ground. He was unable to avoid the obstacle, and his front wheel went into the hole, causing him to be thrown over the bicycle’s handlebars. He only saw the hole “maybe a second” before he fell into it. As a result of his fall, Mike was injured.

His family sued the owner of Glen Oaks Village Owners, Inc., the residential cooperative community, to recover damages. The trial court denied Glen Oaks’ motion for summary judgment, which it argued on the basis that the New York recreational use statute applied and that the youth had assumed the risk of injury. Glen Oaks appealed.

bikecrashb141015Held: The case was reversed. The appellate court found that New York’s General Obligations Law §9-103, commonly known as the recreational use statute, applied to this case. The Court said that the sole purpose of the statute was to induce property owners – who might otherwise be reluctant to do so for fear of liability – to permit persons to come on their property to pursue specified activities. In return for opening up their lands for public use, property owners are provided immunity from liability. The statute applies whenever a user engaged in one of the activities identified in the statute, and he or she is recreating on land suitable for that activity. The requirement that property be physically conducive to a particular recreational activity — for purposes of determining whether a landowner is protected by the statute against claims of ordinary negligence — is satisfied when the property is the type which is not only physically conducive to a particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation.

The Court ruled that this so-called suitability test was a question of statutory interpretation and, therefore, a question of law for the court. The Court said that a substantial indicator that the property is physically conducive to a particular recreational activity is whether recreationists have used the property for that activity in the past. Such past use by participants in the sport manifests the fact that the property is physically conducive to it. Here, the recreational use statute applied to Mikey’s bicycle riding on a dirt trail in a large residential cooperative community because bicycling was an activity included in the statute, and the trail was physically conducive to bicycling.

Young Michael’s use of the dirt trail — as well as the use of it by his friends — and the physical characteristics of the trial, established that it was physically conducive for bicycling, the Court said. In other words, its suitability for use was judged by the use to which it was put (as circular as that reasoning may seem).

The Court rejected Mike’s claim that the fact that the trail was in the middle of a large private residential cooperative community rendered it unsuitable for bicycling. It held instead that the recreational use statute should be applied liberally to public and private land, to rural or urban property, whether developed or undeveloped.

– Tom Root

Case of the Day – Monday, March 27, 2023


There aren’t any winners in today’s neighbor-aggravating-neighbor case, one that had its genesis in one neighbor deciding that encroaching tree branches meant he could hack the trees – which stood on his neighbor’s land – back to mere stumps.

Things fell apart from there. The neighbors alleged two more atrocities in the ensuing year, and they blamed the tree hacker, because… well, why not? The Court, I think, was all too credulous, partly because the tree-cutter was not a native English speaker and was too easily dismissed for that reason.

I suspect that because the all-too-clear video of one altercation has Craig, who portrayed himself as the victim to the court, calling Mr. Cheung things – such as “f—face” – that would have gotten Craig’s teeth relocated to his intestines in any midwestern bar. And he told Mr. Cheung that he was under arrest, a claim that I would have found amusing. But then, I have three years of law school and many more of law practice behind. Mr. Cheung is an immigrant, and may well come from a place where arbitrary arrest is the rule rather than the exception.

Old Craig did not seem terribly rattled by Mr. Cheung’s alleged threat to kill him, and as a threat – if that’s what it was – it was dishwater weak.

The wily Confederate raider (whose conduct in other quarters, I hasten to add, was abhorrent) General Nathan Bedford Forest is widely credited with saying that his guiding tactical principle is “getting there firstest with the mostest.” That’s what Craig and his wife did here, it seems, got to court first with a double-barreled assault that the neophyte Hogan Cheung was helpless to fend off.

Still, had Hogan only been a faithful treeandneighborlawblog reader, he would have been well aware of the Massachusetts Rule, and only cut the offending branches to the fence line. And all of the ensuing unpleasantness could have been avoided.

Stolarczyk v. Cheung, 2019 Cal. App. Unpub. LEXIS 2271 (Ct.App. 1st Dist., March 28, 2019). Craig and Shana Stolarczyk and their two young children live on a property that adjoins the parcel on which Hogan Cheung, his wife, two small children, and mother-in-law live in San Mateo. A fence that runs between the Stolarczyks’ backyard and Cheung’s side yard.

The Stolarczyks complained that Hogan Cheung had cut down two trees on their side of the fence a few years ago. Matters escalated from there into general ugliness. At one point, Craig and Shana said, someone dumped gasoline on their backyard, with a dribble that seemed to run from the dump location to the fence. Hogan denied having done so.

Craig’s and Shana’s landlord lived next door. Being aware of the problems, he installed a security camera on his own property that took in the Stolarczyks’ and Cheungs’ backyards. The camera recorded, among other things, a verbal altercation between Craig and Hogan over the camera installation. Craig taunted Hogan with obscenities. Hogan asked Craig to take the camera down. When Craig refused, Hogan covered the camera lens. Craig then told Hogan he was under arrest followed by the same vile epithet first used to address him. Hogan asked Craig if he was threatening him. Craig again told Hogan that he was under arrest, and Hogan responded, “That’s fine, thank you. And I will always come back for you.”

Craig asked Hogan if he ‘want[ed] to do something?” Hogan said, “I already did something.” Craig accused Hogan of pouring gasoline on his yard, to which Hogan replied, “No one put gas, you put your gas and you[‘re] blaming it on people.” Craig asked Hogan if he “want[ed] to settle it,” to which Hogan responded, “You don’t need to settle it, you’re dead.” Laughing, Craig told Hogan he was going to call the police because he was just threatened.

Hogan admitted he cut down overgrown trees planted in the Stolarczyks’ backyard in March 2016. Prior to cutting the trees, Hogan twice requested the Stolarczyks’ landlord manage the trees to no avail. According to Hogan, the trees grew fast, crossed the fence by three feet to four feet, and left limbs over his house and satellite dish. In addition, noise from the trees swaying in the wind and scraping and rubbing against the walls of his house made it difficult to sleep. Hogan stated he did not cut down the trees completely, only the portions rubbing against his house that were overgrown.

Hogan denied pouring gasoline in the Stolarczyks’ yard, and he said he placed tape over the camera lens because his wife was afraid, seeing the camera as “a really bad invasion looking into my house in the bathroom[], whatever [his wife] was doing.” He acknowledged he called the police about the camera before he taped over it and that an officer told him not to touch it. Prior to covering it, he also asked the Stolarczyks to take it down but they threatened and cursed him. Addressing the “you’re dead” statement he made to Craig, Hogan explained that Craig and his companion were cursing and provoking him, that his English was not “too good,” and he did not know what to say. He said his comment was not a threat but his way to end the conversation and signal he no longer wanted to talk. Hogan denied ever threatening to kill Craig.

In 2016, the Stolarczyks suspected herbicide was dumped over the fence into their yard, and in July 2017, Craig was overwhelmed by the smell of gasoline in his backyard. He said he smelled gas in the soil all along the fence line and observed discolored and foul-smelling mulch. The fire department confirmed the presence of a gasoline odor and doused the area with water.

The Stolarczyks filed a petition for a civil harassment restraining order against Hogan Cheung the next month.

The trial court acknowledged Hogan’s right to reasonably trim a neighbor’s trees that cross into his property but held he was not entitled to simply cut off the foliage to a point below the fence line. The court also noted the ongoing and escalating nature of the dispute and found Hogan Cheung to be “not the most believable witness” ever to appear in court. The court found his explanation that he did not understand what he was saying on the video to be “ludicrous” and did not see him as a victim in any way. Based on the video, the court found Hogan was self-confident and assertive when he taped over the camera, which the court said the property owner had every right to place on his property. Nothing suggested the camera was positioned to film the interior of Hogan Cheung’s home. With respect to the chemicals on their property, the court found it was “a reasonable inference to draw that someone else is responsible for that and I think that [the Stolarczyks’] concerns are legitimate that [Hogan Cheung was] responsible for that… I think without question, it has been sufficiently proven that Mr. Cheung damaged their property. He vandalized their property. There is a reasonable inference to be drawn, and it’s for that issue I am still going to issue a restraining order.”

The order required Hogan Cheung to stay five yards away from the Stolarczyks and to refrain from harassing or contacting them, or destroying their personal property. Mr. Cheung appeals.

Held: The restraining order was upheld.

Under Section 527.6 of the California Code of Civil Practice, a person who has suffered harassment… may seek a temporary restraining order and an order after hearing prohibiting harassment.” Harassment is “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.”

Hogan Cheung argued the court erred in granting the restraining order because the Stolarczyks failed to establish several of the required elements of Section 527.6 by clear and convincing evidence. In particular, he contends that the Stolarczyks failed to prove his conduct served no legitimate purposes, caused them substantial emotional distress, or posed any risk of future harm.

The Court of Appeals rejected his argument. “We find no merit to Cheung’s broad contention that his version of what happened was ‘equally likely’ as the Stolarczyks’ and did not amount to harassment.” Hogan claimed the Stolarczyks failed to prove his acts served no legitimate purpose: he said his trimming trees encroaching on his property and covering a surveillance camera directed towards his house were lawful acts with legitimate purposes. But Hogan Cheung cut the trees below the fence line, and not just those portions extending into his property. Also, the video camera was neither located on the Cheung property “nor trained on the inner sanctum of Cheung’s house.” It hardly help Hogan’s case that he admitted that he was told by police not to touch the camera but did so anyway. “All of this evidence,” the Court said, “supports an implied finding that Cheung’s acts served no legitimate purpose.”

Hogan also claimed his conduct did not cause the Stolarczyks substantial emotional distress. In fact, the trial court rebuked Craig for behaving badly, describing his behavior in the video as “antagonistic and sarcastic and profane.” Nonetheless, the appellate court said, the petition for a restraining order was not filed solely based upon the camera incident nor was Craig the sole petitioner. Despite Craig’s laughter and the potty-mouthed taunting that he displayed that evening, the Court ruled, the “trial court could reasonably infer that both Craig and Shana suffered substantial emotional distress from having their trees chopped down and the debris left in their yard, and from having chemicals poured into their backyard where their small children play.”

The record likewise permitted the finding of likely future harm, supporting “the conclusion that a restraining order was necessary to prevent bad acts from continuing into the future. Cheung initially chopped down the Stolarczyks’ trees in March 2016; the Stolarczyks smelled gasoline along their fence line in July 2017; the altercation over the camera occurred in August 2017; and by the time of the hearing in September 2017, the trees had regrown to twice the height of the fence.” The dispute had not resolved itself in over a year, and the trees were growing large again. “Because we’re talking about trees that were cut in 2016, and Mr. Cheung still, it would appear, has issues with the fact that these trees are on his neighbor’s property and continue to grow and grow tall,” the Court said, the record supported a finding of threat of future harm.

– Tom Root


Case of the Day – Friday, March 24, 2023


I don’t know how, but somehow I managed to stay awake in Constitutional Law, despite the fact that the first-year law class was right after lunch in a too-warm lecture hall. My alertness undoubtedly is why I so well Justice Potter Stewart’s concurring opinion in the otherwise unremarkable obscenity case Jacobellis v. Ohio.

The Justices were wrestling with how best to craft a working definition of obscenity against which to judge a triple-X movie reel confiscated from alleged porn purveyor Nico Jacobellis. Justice Potter Stewart knew better than to waste time conjuring up limitations on the meaning of “obscenity.” In his now-famous concurrence, he declared that

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Justice Stewart’s verbal frustration with an evanescent standard came to mind last night when I got a call from long-time reader Wendy Whist, who was being driven to distraction by the neighbor’s dogs. Wendy lives on a quiet residential street in the sleepy little Ohio town of Snoreburg. Well, it was quiet and sleepy, until neighbor Bertha Barkley acquired a pair of noisy little yapmeisters.

It may just be my perception (driven no doubt by the pair of mini-noisemakers my neighbor Ann leads past my house several times a day), but it seems to me that the smaller the dog, the more annoying the bark. That is certainly the case for Bertha’s little snack dogs: she leaves the pint-sized yappers outside all day in her fenced-in back yard. Wendy reports that the dogs bark at intruders, clouds, insects, leaves, grass, trees, the air, the moon, the sun, light, dark… you get the idea. Wendy says the cacophony is incessant.

When Wendy complained to her neighbor, Bertha – whose disdain for others makes her much more cat-like than dog-like – retorted that the dogs were in a fenced-in yard, so there was not a thing Wendy could do about the noise. When the neighbor on the other side of Bertha’s place called the police, the responding officer said that because the dogs were fenced in behind Bertha’s place, there was nothing law enforcement could do.

Wendy called me because I write about tree law. Trees have bark. Dogs bark. It’s a logical connection.

The police officer was mistaken. Like many towns, Snoreburg has an ordinance that prohibits people from “keep[ing] or harbor[ing] any animal or fowl in the Municipality which frequently create unreasonably loud and disturbing noises of such character, intensity, and duration as to disturb the peace, quiet and good order of the Municipality.” The ordinance makes the first offense a minor misdemeanor. For a second offense within two years, jail time and an order to get rid of the barking dogs (or chickens, as the case may be) may be imposed.

I suggested that the next time the nice policeman is called, point out the ordinance to him and demand politely that he go and do his best endeavor (which in this case would be to cite Bertha and her dogs).

But the whole episode set me to wondering. This blog’s approach to tree and neighbor law is much more civil and less criminal than just getting your neighbor locked up. Could Bertha’s continual and continuous barking (OK, it’s really her dogs making the noise, but it’s hard to keep Bertha’s uncivil attitude separate from her canines’ caterwauling) constitute a nuisance? Could the long-suffering Wendy sue Bertha, seeking an order to that she abate the nuisance, which is legalese for “shut the dogs up?” Those musings reminded me of Potty Stewart wrestling with the definition of obscenity in Jacobellis. At what point does the barking cross that fuzzy line between mere irritation and legally-actionable annoyance?

The court in today’s case grappled with that question. Like Justice Stewart, the panel of appellate judges eschewed drawing a bright line. Instead, they delivered the usual nuisance-law mush that “the amount of annoyance or inconvenience will constitute a legal injury resulting in actual damage, being a question of degree, is dependent on varying circumstances, cannot be precisely defined, and must be left to the good sense and sound discretion of the tribunal called upon to act.”

But that being said, the appellate judges held, here the defendants’ four dogs had clearly barked themselves well over that line, indistinct though it may be. The Court of Appeals said of nuisance that ‘they know it when they hear it, and the dogs’ barking was clearly it.’

Zang v. Engle, Case No. 00AP-290 (Ct.App. Franklin Co., Sept. 19, 2000) 2000 Ohio App. LEXIS 4222, 2000 WL 1341326. Charles Zang and his family lived next door to the Engles, who owned four dogs. Charlie testified that since they moved into their house in 1997, the dogs were outside and barked continuously. He could hear the dogs barking from inside his house, both with the windows open and closed. He described the barking in the two years prior to trial as extreme, excessive, and loud, barking that at times affected his ability to sleep, interrupted meals, interfered with phone calls, television watching, and entertaining. Charlie, who worked from home, had to move his office from the back of his home to the front, yet he still at times heard the barking.

Ms. Zang said that it affected her ability to concentrate, it caused her to become “more stressed out” when the dogs were out and barking excessively, and it affected her mood when she entertained guests. Id. at 150-151. She has not been able to relax, and the barking has interrupted her sleep. She said, “We find that there are times when we are trying to have a normal dinner conversation and the dogs come out barking and we become so frustrated and so upset because we can’t do anything about that that we have to go and shut the windows, or we have felt on many occasions that we don’t want to necessarily be at home and that we will just leave, just to get away.”

The barking had gone on regularly over the past couple of years. Charlie kept a log of the dog barking. Entries were made almost every day from mid-December, 1997, to mid-March 1999. Most days, the dogs were described as barking continuously for at least fifteen minutes up to over one hour. The remaining time the dogs were out, they barked periodically. Some of the barking occurred around 11 p.m. and 12 a.m. A lot of the barking was during the evening hours of 5 to 6 p.m. However, the logs as whole show that the dogs were outside and barking at various times.

Charlie sued the Engles, claiming that barking dogs constituted a nuisance. The trial court agreed and ordered the Engles to abate the nuisance. The Engles appealed.

Held: The barking dogs constituted an absolute nuisance.

An absolute nuisance, for which strict liability (or liability without fault) is imposed by law, is a civil wrong arising or resulting from the invasion of a legally protected interest, and consisting of unreasonable interference with the use and enjoyment of the property of another. It is the doing of anything or the permitting of anything under one’s control or direction to be done without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his legal rights which results in injury to another.

A private nuisance, on the other hand, involves the invasion of the private interest in the use and enjoyment of land. The law of private nuisance is a law of degree, and it generally turns on the factual question of whether the use to which the property is put is a reasonable use under the circumstances and whether there is an appreciable, substantial, tangible injury resulting in actual material and physical discomfort. What amount of annoyance or inconvenience will constitute a legal injury resulting in actual damage, being a question of degree, is dependent on varying circumstances, cannot be precisely defined, and must be left to the good sense and sound discretion of the tribunal called upon to act.

To entitle the Zangs to recover damages for a nuisance, it is not necessary that they be driven from their home or that the Engles create a positive unhealthy condition. Instead, it is enough that the Zangs’ enjoyment of life and property is rendered uncomfortable. In so determining, a trial court must look at what persons of ordinary tastes and sensibilities would regard as an inconvenience or interference materially affecting their physical comfort.

Given all of the facts, the Court held, “there was sufficient competent, credible evidence to support a finding of a private nuisance.”

The permanent injunction issued by the trial court directed in part that the Engles are “permanently enjoined and restrained from permitting any of the dogs they own or harbor, to bark in the manner described in the following paragraph, while said dogs are outside their residence… All parties understand that an infrequent bark is not what this permanent injunction is enjoining; rather, the intent of this Permanent Injunction is to restrain and enjoin the Engles’ dogs from creating an unreasonable amount of noise so as to interfere with the peace, quiet and normal enjoyment to which the Zangs are entitled in the use of their residence… The Engles are to obtain an anti-barking device for the dogs.”

The Court of Appeals held that the injunction was enforceable and proper. “The law of nuisance,” the Court held, “is a law of degree and reasonableness. It does not follow then that an injunction cannot issue which addresses the exact nuisance found to exist. Here, the nuisance is dog barking. While the amount of barking that may be found excessive cannot be measured exactly, there is sufficient evidence in the record as to dog barking that can be looked to if enforcement of the injunction is necessary.”

– Tom Root


Case of the Day – Thursday, March 23, 2023


My first brush with the law of trespass came at the age of 5 or so, when I learned from a Bear of Little Brain that a sign in the Hundred-Acre Wood that said, “Trespassers Will-“ was really shorthand for “Trespassers William,” who had once lived there. Of course, as I now know, “Trespassers William” is/was an indie rock band. Growing up is no fun.

Since the time I was compelled to grow up, I have seen countless “no trespassing” signs on fencerows, on gates, freestanding by driveways, and tacked to front doors. The signs always sort of troubled me. As everyone knows, a trespass is an unauthorized entry upon the land of another even if no damage is done or injury is slight. To me, a sign prohibiting trespassing implied that absent the sign, trespassing was fine.

If I cut across my neighbor’s yard to get to the new Dunkin’ Donuts before all the crullers are gone, I have trespassed whether there’s a sign or not, or whether I buy him some crullers or not. If he posts a sign along my increasingly well-worn path, does it gain him anything?

The law, as always, provides us with an answer: maybe.

Jimmy Bob Christensen, sadly enough, came up on the wrong side of that “maybe.” Being a man who liked his privacy, Jimmy Bob posted “No Trespassing” signs at the far end of the 40-foot gravel driveway leading to his rather dilapidated mobile home. He liked being alone, for reasons that will become clear.

One day, a couple of local police officers knocked on the door of Jimmy Bob’s neighbor, asking why she had bought out the local Kroger of pseudoephedrine. She said it was for Jimmy Bob, who was busy cooking it into methamphetamine. The police headed down Jimmy Bob’s driveway, past the “No Trespassing” signs, and knocked on his door.

Apparently, manufacturing meth is an odiferous business, and the smell was distinctive. Although Jimmy Bob told them to vamoose and despite lacking a search warrant, the cops entered the mobile home and they found meth and guns.

Generally, a driveway, a front sidewalk, even a door knocker or front doorbell, is enough to give any person with a legitimate reason your implied consent to walk up to the door and seek admission. If it’s someone you don’t want – an encyclopedia salesman or religious proselytizer, perhaps – you can withdraw the implied consent by telling them to leave.

Sometimes, posting a sufficient warning is enough to withdraw your implied consent ahead of time. That’s the purpose of a “No Trespassing” sign. And that was surely what Jimmy Bob intended.

If the police had heeded the sign, they never would have smelled the cooking meth. Jimmy Bob’s lawyer argued that they had trespassed, and that therefore the search was illegal (and nothing they found could be used as evidence).

The issue got to the Tennessee Supreme Court, which held that in this case, “no” really did not mean “no.”

State v. Christensen, 517 S.W.3d 60 (Supreme Court of Tennessee, April 7, 2017): In August 2013, two law enforcement officers drove down James Christensen’s unobstructed driveway, past a “No Trespassing” sign, parked near his residence, and walked up to the front porch. After Christensen opened his door, the officers smelled the odor of methamphetamine being manufactured. They asked Christensen for consent to enter his residence, but he refused and closed the door. They forced the door, and inside the residence found an active methamphetamine lab and several guns.

Prior to trial, the Defendant filed a motion to suppress evidence, claiming that the evidence had been seized as the result of an unlawful search because he had posted “No Trespassing” signs near his driveway. He asserted that the officers’ entry onto his property without a warrant violated the Constitution. After a hearing, the trial court denied the motion.

Held: A “No Trespassing” sign, in and of itself, is not enough to withdraw the implied invitation to anyone with a legitimate purpose to walk up to the front door and knock. The Court said “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers, and peddlers of all kinds. This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave… “

Of course, the Court said, a homeowner may take actions to revoke or otherwise limit that invitation or license. The implicit license enjoyed by police and citizens alike to approach the front doors of homes may be limited or rescinded by clear demonstrations by the homeowners that are “unambiguous and obvious to the casual visitor.”

Unfortunately for Mr. Christensen, a “No Trespassing” sign is not such an “unambiguous and obvious” revocation. The Court said, “in light of the strong social presumption that a visitor to a residential neighborhood can enter the front porch curtilage to knock, we doubt a reasonable, lawful visitor would believe that ‘No Trespassing’ eliminated that presumption in every instance. Every reasonable person knows – even without seeing a “No Trespassing” sign – that one cannot trespass on private property. But that knowledge coexists with knowledge of the equally well-established principle that one may generally enter the curtilage to knock. A reasonable observer could also understand a “No Trespassing” sign as restating the “no-trespassing” principle without thinking it had any bearing on the implicit license to enter the curtilage for social reasons. In a residential context, the intention of the homeowner who posts signs, without more, seems inadequate to revoke the license.”

Of course, the right kind of sign could do the trick, the Court said. “For example, a “No Trespassing” sign posted on a fence encircling a property imparts a different message than the same sign standing alone. And a closed or locked gate, especially in the residential context, imparts more information to the reasonable observer… But nothing aside from their numerosity makes the “No Trespassing” signs in this case particularly distinctive. And numerosity alone does not eliminate the ambiguity noted above. No special facts – like a fence or other physical obstacle-clarified to the reasonable visitor that these signs revoked the license.”

The Court said, “the plain meaning of ‘No Trespassing’ is that it prohibits what people ordinarily think of as trespassing, and does not alter the character of an entry that one would not otherwise think to be a trespass, such as the implied license to approach the homeowner’s door to knock and talk.”

– Tom Root


Case of the Day – Wednesday, March 22, 2023


bearontom141013We saw a notice at church the other day reminding the kids that it was time to start signing up for summer camp, now only a scant several months away. We remember camp fondly – dirt, mosquitoes, busy days leaving us hungry enough to eat a bear. If we could find a bear.

Of course, finding a bear might have been a tall order in the wilds of eastern Ohio several decades ago. There are a lot more roaming the woods these days. But even if we had found an Ursus americanus, locating our prey would have only been half the task. It is a profound truth of life that sometimes you eat the bear, and sometimes the bear eats you. You might ask poor Tim Hilston (although the answer to your question will have to wait until the next life) …

Mr. Hilston understood the bipolar nature of life, or maybe just the literal truth of the expression. Back about the turn of the century (this century), Mr. Hilston was field-dressing an elk carcass when he became a carcass himself at the hands — the paws, maybe — of a couple of grizzly bears.

Kind of a gory way to go… but the story doesn’t end there. After all, this is America. Nothing happens anymore, even in the wild, without someone being blamed for it, and this was no exception. The late Mr. Hilston’s estate promptly sued the State of Montana for letting the bears kill poor Mr. Hilston. The State defended under the Montana Recreational Use Act, saying that wild and hungry bears were a “condition of the land” for which it was not responsible. Mr. Hilston’s survivors argued that the State’s allegedly lousy bear management was a problem having nothing to do with the land.

Popular media attribute the "sometimes you eat the bear ..." line to the 1998 movie, "The Big Lebowski ..."

Popular media attribute the “sometimes you eat the bear …” line to the 1998 movie, “The Big Lebowski …”

The Court said ferae naturae — judges love to use Latin words, these meaning “wild animals” — were as much a condition of the land as a tree or a rock or a stump. Mr. Hilston’s tragic demise was not the State’s fault.

Estate of Hilston ex rel. Hilston v. State, 337 Mont. 302, 160 P.3d 507 (S.Ct. Mont., 2007). Mr. Hilston was hunting elk in the Blackfoot-Clearwater Wildlife Management Area (“BCW”). Mr. Hilston shot an elk, and while he was field dressing the carcass, he was attacked and killed by grizzly bears. State and federal wildlife investigators captured the two grizzly bears responsible for the attack, a 12-year-old female and one cub, and killed them.

The BCW is located in the Blackfoot Valley about 45 miles east of Missoula on state and private land and is open to public access free of charge. Mr. Hilston’s estate sued the State of Montana for negligent grizzly management. The State filed a motion for summary judgment, and the trial court held it was entitled to judgment as a matter of law under the Recreational Use Immunity Act. Hilston appealed.

... but "Preacher Roe," who pitched for 16 years in the major leagues until 1954, said it first.

… but “Preacher Roe,” who pitched for 16 years in the major leagues in the 40s and 50s, said it first.

Held: Grizzly bears are a “condition of the property” under the Recreational Use Immunity Act (§70-16-302, MCA). Hilston contended that the Act applied only to defects in property and that grizzly bear management in the BCW is not a “condition of the property” for which the Act grants immunity. The Court disagreed.

The Act provides that a landowner otherwise qualified under the terms of the Recreational Use Immunity Act owes no duty of care to a user “with respect to the condition of the property, except that the landowner is liable to the person for any injury to person or property for an act or omission that constitutes willful or wanton misconduct …” In this case, there was no dispute that the late Mr. Hilston was using state-owned land for recreational purposes, that his use of the property was gratuitous, and that the alleged mismanagement by the State was not willful or wanton. The only question was whether the statute provides immunity for an attack by an indigenous wild animal on the property, and, derivatively, whether wild animals are a “condition of the property” for which a landowner owes no duty of care.

The rule of law is a landowner cannot be held liable for the acts of indigenous wild animals occurring on his or her property unless the landowner has actually reduced the wild animals to possession or control, or introduced a non-indigenous animal into the area. Grizzly bears are wild animals existing upon the property, and, as such, are a “condition of the property” for purposes of Montana’s Recreational Use Immunity Act.

Thus, the State of Montana owed no duty to protect Mr. Hilston from the grizzly bear attack that led to his unfortunate death, and the District Court correctly granted summary judgment for the State.

– Tom Root