Case of the Day – Tuesday, December 3, 2019


Have you ever wondered why this blog is named “tree AND neighbor law?” Primarily, it’s because when I set it up, someone had already taken “Google” and “Amazon.” I had to settle for what was left.

All right, not really. But you may have noticed by now that there are many tree cases that never would have been brought but for the fact that neighbors were involved, or maybe just N-I-N-Os, “neighbors in name only.”

Today’s case is one of those cases. Reading between the lines, the Fleeces and Kankeys appeared to be congenial next-door neighbors. They had agreed on their property boundary, marked as it was by a common fence. When the fence deteriorated, they agreed to share the cost of replacement.

But when the Kankeys bulldozed the old fence and put in a sparkling new edifice, everything went south. It seems that some scrubby trees along the old fence were destroyed in the process. Suddenly, the Fleeces became the aggrieved parties, and not only did not want to contribute to the fence project, but demanded $17,500 to replace trees that lacked any market value. They apparently were anxious to try out Arkansas’s double and treble damage statutes as well.

The trial court made short work of the Fleeces’ attempted fleece, but the court of appeals grudgingly admitted that yes, replacement value counted (even for trees that lacked any market value). The appeals judges seemed to suggest that it would be (or should be) pretty hard to prove the intent needed for application of the multiple damage statutes.

Nevertheless, the court seemed to say, no matter what Bill Kankey’s good intentions in moving the project along, some of those trees – we don’t know how many – appear to have been boundary trees. Thus, the Fleeces and the Kankeys owned those trees as tenants in common. Neither owner had the right to destroy the tree without the consent of the other.

Fleece v. Kankey, 77 Ark. App. 88, 72 S.W.3d 879 (Ct. App. Ark. 2002). Harlan and Nancy Fleece were Bill and Charlotte Kankey’s neighbors. For some time, they had agreed an old fence was the boundary line between them, and when the fence began falling apart, they agreed to share in the cost of replacing the fence. Bill and Char bulldozed the old fence that separated the properties, as well as some trees that stood alongside of the fence.

That’s when the deal fell apart. Harlan and Nancy sued Bill and Char for trespass and for destruction of the trees. The trial court found that, except for two posts that needed to be moved south two feet, the new fence was located in the same position as the old fence. The court held that Harlan and Nancy suffered no loss over the destroyed trees, because they had no market value.

Harlan and Nancy appealed, arguing that they should have been awarded damages for the replacement value of the destroyed trees. Bill and Char replied that because they had no market value and because the removal of the trees and installation of the new fence actually improved the area, Harlan and Nancy had nothing coming.

Held: The case was reversed, and sent back to the trial court for consideration of Harlan and Nancy’s damages due to the trees’ loss.

Arkansas Code Annotated § 18-60-102(a) provides, in part, that “if any person shall cut down, injure, destroy, or carry away any tree placed or growing for use or shade… on the land of another person… the person so trespassing shall pay the party injured treble the value of the thing so damaged, broken, destroyed, or carried away, with costs.” The treble-damages remedy requires a showing of intentional wrongdoing, although intent may be inferred from the carelessness, recklessness, or negligence of the offending party. Less-than-intentional conduct may support double damages under Ark. Code Ann. § 20-22-304, but must be pleaded in order to give a defendant adequate notice of the remedy he would be confronting.

Harlan and Nancy argued that the statute did not require that a tree have a market value in order for a landowner to be entitled to replacement value damages. Larry Morris, a registered forester, gave expert testimony that 35 trees had been bulldozed on the east/west side and 25 more on the north/south side. He explained that the destroyed trees included Post Oak, Black Oak, and Black Jack Oak. He calculated that the replacement value of the trees was $ 17,531.00.

The trial court dismissed Morris’s testimony because it focused on replacement value, not market value. The trial court held that “in view of the rural nature of this area, and the location of the lane over which the Fleeces travel, it seems absurd to award damages on a replacement estimate, because the removal of the old fence and the installation of the new fence has actually improved the area.”

The appellate court found this ruling clearly erroneous, one that suggested that the trial judge failed to consider the number of trees cut down and their replacement value. The appellate court said that the Arkansas rule is that when ornamental or shade trees are injured, the use made of the land should be considered, and the owner compensated by the damages representing the cost of replacement of the trees.

Damages awarded for loss of a shade tree cannot include both replacement costs and consequential damages, but clearly replacement costs are a proper measure of damages.

“Because the trial court appears to have relied entirely on the question of market value,” the appeals court said, “we are unable to determine whether the court considered other factors besides the market value in assessing appellants’ damages, including replacement value and the number of trees lost. Therefore, we reverse and remand.”

The appeals court included a final observation, “that it appears uncontroverted that many of the trees were located in the boundary line. Other jurisdictions have held that owners of boundary line trees are considered tenants in common, and neither tenant possesses the right to destroy the commonly held property without consent of the other.”

– Tom Root


Case of the Day – Monday, December 2, 2019


apple_tree140217Seems like not so long ago, a class of sharp-witted grade school students at Western Reserve Elementary School asked us a question, one which seemed simple but is deceptively complex. Inquisitive kids that they are, they wanted to know whether it would be an act of theft for the owner of an apple tree to go onto neighboring property to retrieve apples fallen from the owner’s tree.

Turns out it’s a darn good question. Not much has been decided on this, requiring us to read an 1870 New York case for an answer. In that decision, a logger lost his logs in a flood. They came to rest on the riverbank, making a mess of the riverbank owner’s land. A fast talker convinced the log owner to let him negotiate with the landowner, pay the guy’s damages and retrieve the logs. He made a deal with the landowner and hauled the logs away, but he never made the promised payment. The Court ordered the logger to pay the damages, holding that the owner of property that ends up on the lands of another has a choice: abandon the property and have no liability to the landowner, or retrieve the property and pay for any damages caused by the property’s coming to rest.

Of interest to our intrepid 6th graders (after whether someone is going to help pay for their lunches) was this: the Court noted in passing that it was settled law that one whose fruit falls or is blown upon his neighbor’s ground doesn’t lose ownership, but instead “may lawfully enter upon the premises to recapture his property.”

There you go, sixth grade! Who says adults don’t listen to you? And as for the rest of us, isn’t it curious how contrary the holding is to the Massachusetts Rule of self-help, that was handed down some 55 years later? And at the same time, isn’t it interesting how consistent the New York court’s decision is with the North Dakota Supreme Court opinion in Herring v. Lisbon, that the portion of the tree overhanging a neighbor’s land still belongs to the tree’s owner, thus imposing on the owner a duty to ensure that the tree does not cause harm.

Sheldon v. Sherman, 3 Hand 484, 42 N.Y. 484, 1870 WL 7733 (Ct.App.N.Y. 1870), 1 Am.Rep. 569. Sherman’s logs were swept away in a spring flood on the Hudson River, coming to rest on Sheldon’s property where — Sheldon complained — they caused great damage. A third party, Mayo Pond, told Sherman he’d pay Sheldon’s damages, have the logs cut into lumber and deliver the boards to Sherman for a set fee. But then the double-dealing Pond told Sheldon he was agent for Sherman in settling the damages, and that Sherman would pay the damages agreed upon. This was news to Sherman, who refused to pay the damages because he already had a deal with Pond that Pond would pay. Landowner Sheldon sued log owner Sherman for the agreed-upon damages, and the trial court found for Sheldon. Sherman appealed.

upcreek140217Held: Sherman was up a creek without a paddle. The Court of Appeals — New York’s highest court — held that Sherman had a choice. One whose property ends up on the lands of another by an inevitable accident (such as a flood), without the owner’s fault or negligence, may elect either (1) to abandon the property, in which case he is not liable to the landowner for any injury caused by the property; or (2) to reclaim it, in which case he is obligated to make good to the landowner the damages caused by the property. Here, once Pond agreed with Sherman that he’d settle with the landowner and retrieve the logs. Pond’s authority from Sherman to remove the logs was clear, whatever his right to promise payment might have been. Thus, the law implied the existence of a promise by the log owner to pay damages.

The waters receded, but the logs were everywhere ...

The waters receded, but the logs were everywhere …

Of interest in the decision is the Court’s discussion of what it called “a large class of cases” in which injury is suffered by a party, but the law gives no redress. The Court said, “If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew. If one builds a dam of such strength that it will give protection against all ordinary floods, the occurrence of an extraordinary flood by which it is carried away, and its remains are lodged upon the premises of the owner below, or by means whereof the dam below is carried away, or the mill building is destroyed, gives no claim against the builder of the dam.” In this case, the Court said, the logs were carried down the river and deposited on Sheldon’s land without fault on the part of the defendant. Thus, Sherman was not responsible for damages, and a promise by him to Sheldon to make it good would be unenforceable.

If Sherman chose to abandon his property, he had the right so to do and no one could call him to account. He was not compelled, however, to abandon it, but had the right to reclaim it. The Court said the case was “like one whose fruit falls or is blown upon his neighbor’s ground, the ownership is not thereby lost, but the owner may lawfully enter upon the premises to recapture his property. When he does so reclaim or recapture, his liability to make good the damage done by his property arises. He then becomes responsible. Before he can reclaim or recapture the property thus astray, justice and equity demand that he should make good the injury caused by its deposit and its continuance.”

– Tom Root


Case of the Day – Friday, November 29, 2019


Potatotruck140220Nothing light today, boys and girls. We have work ahead of us. Sure, Thanksgiving is a memory (except for all of the leftovers stacked in the refrigerator), but Black Friday is here, and we have a few more days of the long weekend (and Ohio State v. Michigan) ahead of us. But as that great educator M.C. Hammer once said, “Yo, sound the bell, school is in, sucker …

So listen up. When land is conveyed from one party to another without any limitations whatsoever, the conveyance is done in “fee simple absolute,” or just “fee simple” for short. The conveyance usually says that the land is conveyed “unto the said party of the second part and its successors and assigns forever,” or words to that effect.

At the time the railroad came through a part of Idaho (think “Famous Potatoes”) in the late 19th century, a lot of landowners thought they were conveying their land to the railroad in fee simple. But their deeds had not just the magic “fee simple” language, but also a “habendum clause.” A “habendum clause” is a clause in a deed that defines the extent of the interest being granted and any conditions affecting the grant.

Legal mumbo-jumbo? Not when the facts changed.

Legal mumbo-jumbo? Not when the facts changed.

In the case of the Idaho deeds, the conveyance language transferred title to the railroad “to have and to hold all and singular the tenements, hereditaments and appurtenances as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever.” Yeah… yadda, yadda, yadda, how lawyers like to natter on and on… None of this gibberish seemed important for a century, during which time the trains puffed up and down the track. But when the rail line was torn up, suddenly the old documents became very interesting.

Under the National Trails System Act, the government can convert an old railroad right-of-way into a recreational trail without the rail line being deemed to be abandoned. That’s what happened in Idaho. But some of the landowners whose properties were transected by the abaondoned right-of-way, talked to a smart lawyer. She said, “these old documents aren’t deeds, they’re just easements for a railroad.” That was an important distinction: the easements weren’t for the benefit of some granola-munching hikers, but rather for rolling stock.

The Federal Court of Claims had a tough task. The Idaho Federal District Court had already ruled that such deeds were conveyances in fee simple, which meant that the owners who abutted the railroad had no means of reclaiming the land. The problem was that the interpretation of the deeds was a matter of Idaho law, and the Idaho Supreme Court had never reached the precise issue. The Court of Claims carefully parsed other Idaho decisions and decided that, based on its treatment of other cases, the Idaho Supreme Court would rule — if it had been asked to  — that the references in the deeds to the “perpetual right of Way for said second party’s Rail Way Line” limited the purpose of the conveyance, and therefore made the deed a grant of a mere easement, not perpetual ownership.

With two federal courts disagreeing on what Idaho jurists would say if asked, it’s likely that the state courts themselves ultimately will have to resolve the issue by ruling definitively on the question.  They have not done so yet.

Abandoned right-of-way

Abandoned right-of-way

Blendu v. United States, 79 Fed.Cl. 500 (2007). Owners of land abutting or traversing an abandoned railroad right-of-way contested the government’s using the right-of-way as a recreational trail pursuant to the National Trails System Act, claiming that the government’s action effected a taking of their property without just compensation in violation of the Fifth Amendment.

The predecessor landowners had deeded land to the railroad about a hundred years before, with deeds that contained language in the granting clauses that convey all estate, right, title and interest in the property to the railroad, but also contained habendum clauses “to have and to hold all and singular the tenements, hereditaments and appurtenances as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever.” Under the Act, the government could convert abandoned railroad rights-of-way to trails without the use constituting an abandonment of the right of way. However, Blendu and the plaintiff property owners argued that under their deeds, they had really just given easements – not a deed in fee simple – and the cessation of rail service did not permit the government to use the easement of a trail. They moved for summary judgment in the U.S. Court of Claims, and the government cross-moved for summary judgment, arguing that the deeds were a conveyance of the property in fee.

Held: Under Idaho law, a deed which contained a granting clause which quitclaimed certain real estate to the railroad and a habendum clause stating that railroad held the real estate “as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever,” the deed only conveyed an easement and not fee simple title.

The easement was for rolling stock, not for Birkenstocks.

The easement was for rolling stock …

... not for Birkenstocks.

… not for Birkenstocks.

The Court said that the use of the term “right of way” in the habendum clause unambiguously reflected an intention to convey an easement, overcoming Idaho’s statutory presumption in favor of a fee simple interest. The Court of Claims concluded the distinction between the granting clause and the habendum clause had not been made by the Supreme Court of Idaho, but the Court of Claims believed that the Idaho Supreme Court cases found the presence of the term “right of way” in any substantive part of the deed to be determinative. The deeds in this case contained the term “right of way” in the habendum clause, thus unambiguously reflecting an intention to convey an easement and overcoming Idaho’s statutory presumption in favor of a fee simple interest.

As further evidence of the conveyance of an easement, the Court said, the deeds contained a designation for use of the right of way for the Railroad’s “railway line.”

The easement was for rails, not trails.

Oh, and Go, Bucks!

– Tom Root