Case of the Day – Monday, January 27, 2020


You would think that a church could get along with its neighbors. Maybe it was the Methodist elders. Maybe the neighbor was a minion of hell. Who can tell from the abbreviated decision in today’s case, handed down by the New York Supreme Court, Appellate Division.

A word of caution here: New York is not like the rest of the world. In New York State, the Supreme Court is a trial court, the Supreme Court Appellate Division is the court of appeals, and the Court of Appeals is the supreme court. There – isn’t that easy? So the next time someone claims to be on the New York Supreme Court, just say, “yeah, you and a thousand other judges.”

Today’s decision involved a party wall, hardly a matter of importance to most folks. But the principle is an important one. Trespass is one of those common law torts (consider a tort to be a “wrong”) that can be committed all to easily. You don’t have to intend to commit a trespass. All you have to do is intend to step where you step. So if you trip on the sidewalk and fall onto someone’s front lawn, it’s not a trespass, but if you step off the sidewalk to avoid a puddle, it is.

What’s more, in every trespass, damages are presumed. There have been cases where people trespassed, thinking they were on their own property, and actually left the place better off than before they arrived. No matter. The law presumes they damaged it.

Obviously, this can cause all sorts of nonsensical results. For that reason, while the law will always assume damages, it won’t always order the trespass to end. Sometimes, the trespass causes so little inconvenience to the property owner and – if it were ordered to cease – would cause such injury to the trespasser, that an injunction would not make sense. The law will generally avoid ordering a result that is wasteful.

In today’s case, Mr. Kimball installed drip edge and cladding on the party wall, with a small portion of it (we’re talking inches) protruding over the Church’s vacant property. Drip edge prevents rainwater and ice melt from running under the shingles and into the wall. Cladding is a finish such as vinyl siding, covering the rather ugly concrete block wall. It protruded onto church property probably 2” beyond where the wall stood.

What would have been the point, other than sheer orneriness, of making Mr. Kimball rip the siding and drip edge off the wall? After all, those additions were needed only because the Church tore down its building, leaving a bare wall exposed to the elements. The court of appeals was not going to demand such a wasteful and damaging result.

The law is not always an ass.

Kimball v. Bay Ridge United Methodist Church, Case No. 2017-03575 (Sup.Ct. New York, Appellate Div., Jan. 24, 2028), 2018 N.Y. App. Div. LEXIS 443. Mr. Kimball and the Bay Ridge UMC owned buildings with a party wall, that is, a common wall along the property boundary that supported and was integral to both buildings.

Lord only knows what went on between the Church and the Kimballs, but things seemed to start when the Methodists tore down their building a decade ago (leaving the party wall, of course, because it was part of Mr. Kimball’s building, too. About seven years after the church building was razed, Mr. Kimball installed cladding and a drip edge along the church side of the wall.

For reasons not clear in the opinion, Mr. Kimball sued the Church for a declaratory judgment and injunction. The Church rendered unto Caesar itself, and its lawyers counterclaimed for trespass, because Mr. Kimball’s cladding and drip edge extended however so slightly into Church airspace, on the holy side of the party wall. In addition to damages, the Church wanted an injunction requiring Mr. Kimball to tear out the cladding and drip edge.

The trial court granted the Church’s trespass complaint, awarding it damages and ordering Mr. Kimball to remove the offending installation. Mr. Kimball appealed.

Held: The appellate court agreed that there was undoubtedly a trespass, but drew the line at an injunction. New York law provided that an “action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land [but n]othing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify.”

In order to obtain injunctive relief under the statute, the appellate court said, the Church was “required to demonstrate not only the existence of [an] encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to [the encroaching party] from granting such relief.” Here, the Methodists did not show that the “balance of equities weighed in its favor.” In other words, what it gained by having Mr. Kimball rip out the cladding and drip edge was bupkis, maybe an inch of space eight feet or so off the ground. But by tearing out the cladding and drip edge, Mr. Kimball would lose the ability to keep water from rotting his roof and joists.

So Mr. Kimball had to pay some damages (and they probably amounted to $1.98 or so), but the law would not make him rip out the cladding and drip edge to satisfy the Church elders.

– Thomas L. Root


Case of the Day – Friday, January 24, 2020


The Super Bowl® brand football game (which, as my old friend David Oxenford has made clear, is a registered trademark of the beleaguered NFL) will be upon us before we know it. Everyone I know is already excited beyond all reason that the Kansas City Chiefs, who haven’t played in the Super Bowl since footballs were made of triceratops skin, are going to face the San Francisco 49ers, who are from… well, San Jose, I guess, or maybe Santa Clara, or at least somewhere 35-plus miles from San Francisco. But the big game wouldn’t be the big game without my annual shameless attempt to capitalize on the media event of the year (President Trump’s impeachment trial notwithstanding).

Today, I review the old 15-yard standby, clipping. The clipping in today’s case was done not by a offensive player, but rather by an electric utility.

Tree trimming along and under an easement to protect power lines is typically done according to standards set by the North American Electric Reliability Corporation, known as NERC. Standards for tree trimming sound dry to you? Maybe a little looting, people trapped in elevators, and a power outage affecting 50 million people will get your attention. The great blackout of August 2003 had many contributing causes, but it all started when power lines – sagging in the heat of the day and under the load put on the system – became entangled in poorly-trimmed trees.

blackout140131OK, tree trimming is important work. And so it was in Louisiana. It seems that a road was widened, and power lines were relocated as a result. The electric utility came along to clip vegetation along the route, but ran into Mr. James, who objected to the vigorous removal of trees and brush. He kept running the crews off, until the utility sued for a ruling that it had an agreement with the city that superseded Mr. James’ complaints.

That’s where things got interesting. Mr. James and the utility signed an agreement that permitted the utility to trim back to the historical trim limits or to an established limit according to the kind of tree. No sooner was the ink dry but Mr. James argued that the utility had violated the deal. He sought all sorts of damages — even emotional distress — for the alleged violations.

The utility of course loaded up at trial with three of four experts, who carefully showed that the trees were cut back to their historical trim point and no more. The trial court found for the utility. On appeal, the Court agreed that despite all of the tort theories and general complaints alleged by Mr. James, because he had signed the deal with the utility, the only question was whether the deal had been kept. And as for that, the utility’s thundering herd of experts trumped Mr. James’ speculation.

With the new NERC reliability standards requiring more aggressive vegetation management, it is likely that clashes as to the extent to which utilities may trim will be more frequent and substantial. Thus, there are likely to be more Mr. James v. Entergy battles throughout the country.

Entergy Louisiana, Inc. v. James, 974 So.2d 838 (La.App. 2 Cir. 2008). In 1991, Highway 143 — located next to Tupaw Manor Apartments — was widened. Entergy’s distribution lines ran along Highway 143 and, with the widening of the highway, several poles were relocated. Three poles were placed so that the lines crossed the highway diagonally to the southeast corner of the apartment complex. The distribution lines at issue were contained within what Mr. James, the owner of the apartments, characterized as a “green zone” that buffers the apartment complex from the highway traffic, adding to the aesthetic value of the complex.

Tree trimming - boring. Mass panic - not so boring.

Tree trimming – boring. Mass panic – not so boring.

Entergy hired West Tree Service to trim vegetation encroaching on electrical distribution lines, the work to be done in compliance with Entergy’s “Distribution Vegetation Management Line Clearance Specifications” (“Clearance Specifications”) on file with the Louisiana Public Service Commission. During August 2004, another subcontractor sprayed the area with herbicide. Then, West cleared vegetation that had been sprayed and performed additional trimming on Mr. James’ property as per Entergy’s contract. Mr. James objected, but the West crews made several additional attempts to trim vegetation on the property. Unable to obtain consent from Mr. James, Entergy filed a petition asserting that it had an agreement with the city of West Monroe to operate electric facilities within the city and had a right-of-way easement onto Mr. James’ property for maintenance purposes. Mr. James answered and demanded damages in excess of $410,000. He claimed that Entergy engaged in the clear-cutting of trees, harvesting and removing over 200 trees, far in excess of the allowed or agreed upon width of trimming.

Prior to trial, the parties entered into a stipulated declaratory judgment in which they agreed that Entergy has the right to maintain all of its electric distribution lines and poles by trimming any encroaching trees, limbs, shrubs and other vegetation within 10 feet of Entergy’s lines in accordance with modern arboretum standards and as specifically outlined in Entergy’s Clearance Specifications, and as long as Entergy complied in good faith with the vegetation maintenance standards, Mr. James would have no right to prohibit with Entergy’s reasonable and necessary trimming of encroaching trees, limbs, shrubs and other vegetation along its distribution lines.

The Clearance Specifications provided that all trees at a minimum would be trimmed back to the previous trim point or according to a table, whichever was greater. The table provided that slow growth trees in rural settings would be trimmed to 10 feet and fast growth trees in rural settings would be trimmed to 15 feet. An exception would be made where there was a customer refusal where procedures outlined in the Clearance Specifications have been followed, provided that the exception would not result in unsafe conditions or jeopardize reliability.

Mr. James argued Entergy could only trim to an indefinite width depending on the extent to which it had actually claimed and used a right-of-way in the past or 10 feet under the Clearance Specifications. Mr. James alleged that Entergy exceeded the allowable width, causing damage to the aesthetic value of the “green zone” around the apartment complex. Mr. James filled out a Tree Cutting Refusal Form expressing his objection to having any trees removed, which he contended requires Entergy to then seek a court order to continue trimming. Entergy’s letter to Mr. James noted that the trimming was necessary to ensure safe, reliable electrical service to the area, including the apartment complex.

Entergy sued to get the court order. At trial, Entergy provided detailed testimony regarding the existence of a prior trim point, and that all trimming was within that point. Mr. James provided testimony that there were log trucks being loaded with cut trees coming and going from the property, which was contradicted by West employees. The trial court framed the issue as whether Entergy had complied with its Clearance Specifications in performing the trimming, and found that Mr. James failed to carry his burden of proof and was, therefore, entitled to no damages. He appealed.

Held: Entergy had the right to trim the vegetation. The Court concluded that the stipulated declaratory judgment signed by the parties prior to trial controlled the allowable trimming width of the vegetation on the James property. Thus, the issue was whether Entergy complied with its Clearance Specifications. Entergy produced several qualified witnesses, whose testimony was thoroughly outlined by the trial judge, who found strong evidence of re-sprouts and prior trim points. The Court found no abuse of discretion. Although the Court noted that the Clearance Specifications might, in certain circumstances, lead to unauthorized, increased and unchecked trimming on private property, it concluded that under the specific facts of the case, Mr. James was bound by the stipulated declaratory judgment.

– Tom Root


Case of the Day – Thursday, January 23, 2020


Who knows how neighbor feuds that simmer for years and years suddenly explode? Maybe Tom Schwendeman knows.

Tom lives next to the Roaches (who are people, not insects). About 14 years ago, the Roaches surrounded their property with a chain link fence, which was clearly on their land. They even had a surveyor lay down pins before the fence went up. Since that time, the Roaches have engaged in such loathsome activities as building campfires in their back yard on as many as five, yes, FIVE occasions, and for spraying herbicide on poison ivy growing along the fence.

Oh, the humanity!

We get a sense of how things were going with the Roaches, given that grumpy neighbor Tom called the EPA to complain about the campfires (which occurred at a frequency of about one every two years, if our math skills remain sharp). The EPA, being busy creating environmental disasters of its own, apparently declined to intervene. Also, Tom liked to pick berries that grew along the fence. The herbicide on there poison ivy was the last straw for Tom. Convinced that his next blueberry smoothie would be his last, Tom tried to kick the fence down.

You of course have heard on countless police shows the Miranda warning, you know, “you have the right to remain silent…” Heed it well. Tom should have. As we like to tell clients, remaining silent is not just your right: usually, it’s a damn good idea, too.

Tom did not remain silent, but rather vented his spleen at the deputies who responded to the call. He admitted the fence belonged to the Roaches and was on their land, but… well… the campfires! And the berries! How much is a man supposed to endure?

When it came time for Tom’s misdemeanor trial, his lawyer did not have a lot to work with, other than Tom’s fanciful argument that the fence was already in bad shape, and his tirade did not make it materially worse. For good measure, Tom threw in the woof story that he was only trying to get the fence off his land. The last defense might have worked… if Tom had kept his mouth shut when the cops had first shown up.

State v. Schwendeman, Case No. 17CA7 (Ct.App. Athens Co., Jan. 17, 2018) 2018 Ohio App. LEXIS 242. The state charged Tom Schwendeman with criminal damaging, a misdemeanor, because he damaged a chain-link fence between his property and that of his neighbors, Dawn and Gordon Roach.

The Roaches installed the fence about 13 years ago. One day last summer, Tom – apparently furious because the Roaches had sprayed herbicide along the fence to kill poison ivy – began yelling and kicking and showing “a lot of anger towards the fence,” as a witness put it. Someone called the sheriff, and Tom admitted to a deputy that he knew it was not his fence, but that the Roaches liked to have campfires in their back yard that bothered him, and that they had sprayed herbicides for poison ivy along the fence line. Tom said he picked berries along the fence.

By the time he got to trial, Tom had an explanation that was a little more congruent. He complained about his problems with the five or six fires the Roaches had built in their backyard, and argued that because the fence was 12 years old, the only damage he saw to it was “wear and tear that’s happened over the period of twelve years. More than twelve years it’s been there.” He claimed that he witnessed tree branches falling on the fence and the Roaches’ children climbing the fence, causing the fence to come apart, and that one more than one occasion, the kids made “the fence pull loose and collapse on the children when they were climbing it.” He said he disconnected the cyclone fence from the posts carefully, because it was on his property and he wanted to move it. Tom claimed the Roaches knew it was on Tom’s land, but refused to move unless Tom had the property surveyed and took him to court.

But on cross-examination Tom admitted he was angry when he began dismantling the fence, “I had been poisoned. My berries had been poisoned… my food had been poisoned and my next smoothie would make me very ill.” Tom admitted he did not “own” the fence, but continued his claim that “it was on my property.”

Tom’s lawyer argued that children, dogs, and trees caused the damage to the Roaches’ fence. However, defense counsel did not seek a jury instruction that Tom was exercising a privilege to remove an obstruction on his own land and did not object to the court’s jury instructions.

The jury found Tom guilty. He was ordered to pay restitution and a fine. Tom appealed.

Held: The conviction was upheld. Tom claimed on appeal he had the right to remove obstructions from his land, but he never asked the court to instruct the jury on that defense.

When a party fails to object in the trial court, generally he or she cannot make the claim on appeal that was not raised below unless he can show “plain error” that affects substantial rights. It’s a tough standard to meet.

Ohio law does indeed hold that a landowner has the right to use self-help to remove encroachments on his property, provided the landowner acts with reasonable care. That is what is called an “affirmative defense” to the criminal damaging charges that were brought against Tom. But a defendant is not entitled to have the court instruct the jury that unless he has come forward with at least some evidence that, if believed, raises the affirmative defense. Otherwise, the court is not permitted to give a jury instruction on the affirmative defense.

Tom testified the fence was on his land, but he didn’t offer any evidence that that was so. He could have shown a deed, or a survey, or even a plat map. But he had to show something. What’s more, not only did he offer nothing at trial, his testimony that the fence was on his land directly contradicted his statements to two sheriff’s deputies. Without providing a rationale for the inconsistency with his prior admissions to the deputies, the Court said, Tom’s trial testimony was not credible. Because there was no credible evidence supporting his contention that he owned the land, the trial court as a matter of law could not properly give a jury instruction on the affirmative defense.

Tom also argued to the court of appeals that his defense attorney was a putz. The 6th Amendment to the constitution guarantees all criminal defendants effective assistance of counsel. Here, Tom fumed, his attorney was ineffective because he failed to request the jury instruction on Tom’s privilege to remove an encroachment from his land. The appellate court said no dice: based there was no evidence supporting the claim, a request for an instruction would have been meritless. Tom’s trial counsel cannot be deficient for failing to request an unwarranted jury instruction. Anyway, the Court of Appeals observed, Tom’s lawyer was pursuing a “wear and tear” defense at trial, making a decision not to argue that Tom also had the right to move it off his property fairly sound trial strategy.

Trial counsel cannot be found deficient, the Court of Appeals said, for failing to request an unwarranted jury instruction or for exercising sound trial strategy.

– Tom Root


Case of the Day – Wednesday, January 22, 2020


It happens more often that you’d think. Over a period of years and successive owners, everyone starts thinking that the old hawthorne tree, or a big old rock, or even a crack in the curb marks the boundaries between the old homestead and the Smith house next door.

But it isn’t.

These kinds of problems could be avoided if people only hired surveyors regularly, or reread their deeds and paced off all of those metes and bounds regularly. Of course, people are by and large normal, so they don’t usually do such things.

Most states have statutes that address what happens when owners jointly misunderstand their boundaries. The thinking is that if enough time elapses, there’s little to be gained by trying to unwind what everything thought was a fact. Or, given enough time, perception become reality.

Of course, claiming that a new boundary has been agreed to by acquiescence if fraught with peril, because the other party – whose acquiescence must be shown – probably disagrees with the claimant (or they would not be in court to begin with). That’s what happened to the Guthries in today’s case.

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 that 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 that 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 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 – Tuesday, January 21, 2020


I’m still bleary-eyed from watching the NFC and AFC Championships, and almost relieved to take next Sunday off. After all, no one – including me – watches the Pro Bowl, which, I believe, is a football term meaning “boredom.”

It's a trick play! Interesting in football, less so in the courtroom.

It’s a trick play! Interesting in football, less so in the courtroom.

But I have to be on my game for the Super Bowl, so let’s start brushing up now on the finer points. Such as illegal substitution. Trials aren’t supposed to be conducted by trickeration. Parties have a full chance to engage in discovery — seeing the other party’s documents, taking depositions of witnesses under oath, that sort of thing — well before trial.

In today’s case, a woman was killed when a tree branch broke free in a storm and struck her. Her husband sued, and he named the owner of the tree and the power company that had an easement where the tree stood, among others. He claimed that the tree hadn’t been trimmed properly, and that negligence had led to his wife’s death.

At trial, the defendant called a witness to authenticate the location of the tree relative to the road. The plaintiff threw the red flag because the witness hadn’t been listed on the defendant’s expert witness list. An illegal substitution, he complained. The trial court didn’t think so, but offered to adjourn the trial so that the plaintiff could take the witness’s deposition. A solution neater than Pete Carroll’s hair, you say? One might think, but the plaintiff wasn’t interested.

During the witness’s testimony, it developed that he hadn’t done the survey himself, but instead was only vouching for someone else’s survey. The defendant announced it would call the two men who had taken the survey, and the plaintiff cried foul again. The trial court noted that the location of the tree was critical, and let them testify anyway. The defendant won by a touchdown.

steelers150128Was it a blown call? The plaintiff decried it as uglier than a Pittsburgh Steelers retro uniform. The Court of Appeals — sitting up in the review booth — typically gives substantial deference to trial procedure decisions made by the trial court. It held that letting the witnesses testify was well within the trial court’s discretion. It noted that Slater could have taken the adjournment offered, and inasmuch as he didn’t, he was hard pressed to argue he was hurt by the trial court’s decision.

Go San Francisco! Go KC! Keep us interested between the commercials.

Slater v. Charter Communications, Inc., 2007 Mich. App. LEXIS 2821, 2007 WL 4462396 (Mich.App., Dec. 20, 2007). The Slaters were driving on West Torch Lake Drive in Rapid City when they came upon tree branches that had fallen from a tree and were obstructing the roadway. The weather was rainy and windy. After clearing the roadway and while returning to their vehicle, a large limb from the same tree broke off, fell onto a power line and then struck Mrs. Slater in the head. She died the following day as a result of her injuries.

Her husband sued everyone, including bringing a negligence action against Consumers Power Company and a premises liability claim against defendant Charter Communications. Mr. Slater alleged that the tree was in Consumers’ easement and that Consumers breached its duty by failing to remove the dangerous limb from the tree. He also alleged that the tree was on Charter’s property and that Charter breached its duty to maintain the property in a safe condition by failing to remove the dangerous limb from the tree.


The identity of the expert witness became a shell game …

Consumers moved for the case to be thrown out, asserting that the facts showed that it wasn’t responsible for trimming the tree from which the limb fell. Slater admitted that he lacked any evidence that Consumers was responsible for the tree, and in light of this, the trial court granted Consumer’s motion. At trial, Charter announced that it would call John Korr, the survey department development manager for Gosling Czubak Engineering Sciences, Inc., to authenticate a tree location survey that had been submitted to the court about one year earlier. Charter argued that the tree was not on its property but rather within the road right-of-way. Slater moved to strike Korr as a witness because Korr was not listed on the expert witness list. After the trial court indicated that it would allow Korr to testify, the court offered an adjournment to allow plaintiff to obtain an independent survey and depose Korr, but he declined.

After interviewing Korr on the third day of trial, Slater informed the trial court that he had just learned that Korr did not conduct the measurements or prepare the survey, but rather had verified the survey. The trial court then allowed Charter to call Simmerson and Anderson, the individuals who had taken the measurements and prepared the survey, to testify. Following the trial, the jury found that the tree was located in the road right of way and, therefore, judgment was entered in favor of Charter. Slater appealed.

Held: Judgment for Charter was upheld. The Court of Appeals held that the trial court properly dismissed Consumers Power from the suit, because with Slater’s admission that he had no evidence that Consumers had trimmed the tree, there was no genuine issue of fact.

The Court also ruled that the trial court had not abused its discretion by allowing Korr, Simmerson, and Anderson to testify. The decision whether to allow the late endorsement of an expert witness is reviewed for an abuse of discretion, and the rule generally is that justice is best served where an unlisted witness can be permitted to testify while the interests of the opposing party are adequately protected. Here, the trial court acknowledged that Slater had not gotten to take Korr’s deposition, but noted that whether the tree was located on plaintiff’s property or in the road right-of-way were critical factual disputes, and existence of the survey had been known to Slater for about a year before trial commenced. The court offered Slater an adjournment to obtain an independent survey and to depose Korr, which he declined.

That was enough, the Court of Appeals said, and, consequently, no abuse of discretion occurred.

– Tom Root


Case of the Day – Martin Luther King, Jr., Day 2020


The majestic courage shown by the Selma marchers 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today's plaintiff.

The courage shown by the Selma marchers over 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today’s plaintiff.

For a country that was supposed to be sailing into a post-racial world after the election of President Obama in 2008, we’ve had a rough time of it in th last 12 years.  In race relations, 21st century-style, there is the deadly serious (such as Ferguson, Chicago, Cleveland and Charleston) – the merely reprehensible (a busload of drunk, rich white kids being stupid, callow and mean, all at the same time) – the head-scratching (trees can be racist?), and a President who is or is not racist, depending on your political viewpoint. That last issue, and exactly how he may have referred to the governance and economics of Haiti, El Salvador and some countries in Africa, are a suitable launching point for a trip into the absurd. The absurd is something we’ll look at today, on Dr. Martin Luther King’s birthday commemoration.

Sigmund Freud was famously but questionably credited with having said “sometimes a cigar is just a cigar.” In today’s case, a matter of trespass to trees was somehow recast into a federal civil rights action by the plaintiff, who was a man with a litany of offenses committed against his ancestors which he wanted to redress.

Mr. Brewer apparently trespassed on Mr. Lance’s property and removed three trees. Rather than an appropriate trespass to trees action (with a request for treble damages) in South Carolina courts, Mr. Lance went for broke, suing Mr. Brewer for violation of his civil rights under 42 U.S.C. § 1983.

A § 1983 action is a powerful one, authorizing a federal court action to be brought against persons who, under color of state law, deprive another of his civil rights. It has been used against those who discriminate in housing, police officers who wrongly beat suspects, employment discrimination, and even in zoning decisions.

But § 1983 doesn’t do everything. Here, Mr. Lance argued that not only had Mr. Brewer falsely claimed to have the County’s permission to cut down the trees, but Mr. Brewer’s grandfather had defrauded Mr. Lance’s cousin in a land deal about 40 years before. When the Federal magistrate judge recommended dismissal of the § 1983 action, Mr. Lance objected, arguing rather ineloquently that ““GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction.”

cartoon150313Destruction was something the federal court was willing to risk, holding that no matter how it tried to construe Mr. Lance’s complaint, there just wasn’t a civil rights violation alleged. Of course, he was free to pursue his complaint in state court, and we assume he did so.

Lance v. Brewer, Slip Copy, 2007 U.S. Dist. LEXIS 30247, 2007 WL 1219636 (D.S.C., Apr. 24, 2007). In late 2005 Defendant Brewer cut down three large trees and other tree limbs on Plaintiff Lance’s property without permission. Lance asserted that Brewer, who ran a business named Don’s Scrap Metal and Iron, sold these trees for profit but that he and his relatives did not receive any profit. Lance alleged that Brewer told him the county gave him permission to cut down the trees, but according to Lance, a county employee told him that the Brewer did not have permission to cut down the trees. In addition to these claims, Lance argued that Brewer’s grandfather purchased the property adjoining his property forty to fifty years ago by “fooling” Lance’s cousin into selling 20 acres of river-front property for $200.00.

Lance alleges Brewer’s actions constitute racism and discrimination under 42 U.S.C § 1983, and he seeks $85,000.00 on behalf of the heirs of his cousin, Willie Lance. A U.S. Magistrate Judge recommended that Lance’s claim be dismissed. Lance disagreed, and sought rejection of the Report & Recommendation.

Dr. King stood for equality and justice… not nonsense.

Held: Lance’s tree-cutting-as-civil-rights case was dismissed. The Court observed that the Plaintiff had objected to Report and Recommendation, because “GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction. The United States Court has Federal Jurisdiction, because this is a Civil Rights Violation.” The Court said, “[t]he Plaintiff’s unsubstantiated statement that the Court has federal jurisdiction because this is a civil rights violation does not change the fact that even liberally construing the Plaintiff’s complaint, it fails to state a claim for a federal civil rights violation.” Here, Brewer is a private individual.

What’s more, Lance tried to state a claim pursuant to § 1981. The Court held that Lance has failed to allege an essential element of a § 1981 claim, that there is a contract or property law right enjoyed by white citizens but not by the Plaintiff, who is black. The Court concluded that, tree or no tree, no federal question was raised by Lance’s claim, and thus jurisdiction did not exist.

– Tom Root


Case of the Day – Friday, January 17, 2020


We like to deal in broad pronouncements of property law here, but the sad fact is that a lot of litigation about property rights is pretty small minded. The parties today, Steve and Maggie, had a fairly common arrangement. Steve’s house was landlocked, but he owned an easement to cross Maggie’s place on a driveway.

The easement was 50 feet wide, but the drive itself was only 12 feet wide. We cannot tell who started the sniping. Maybe it was Steve, who piggishly demanded dominion over all 50 feet of the easement, whether he used it or not, banning Maggie from landscaping even where it did not interfere with the driveway. Maybe Maggie set out to harass Steve by installing fences, placing ornamental boulders and planting trees to crowd the driveway.

Clearly, however, things devolved to the point that both Steve and Maggie felt it was worth it to pay lawyers to slug it out in court. Not that we think that’s all bad: lawyers have to eat, too. But the law was pretty settled, and it seems that the lawyers should have dragged their respective clients by the ear into a conference room, where the facts of life (and litigation) could be explained.

Still, there’s a worthwhile principle here for the many homeowners who complain to us every year about various utilities coming through their yards, trimming or removing trees, tearing up bushes and laying waste to landscaping. The utilities invariably wave their easements at the homeowners and say, “read it and weep.” The homeowners angrily ask, “Can they do that?”

Then, we have to explain that the homeowner holds what is called a “servient estate,” which is as subordinate and groveling to the easement holder, the “dominant estate,” as the names imply. The utilities and their maraudering contractors can do what is reasonable to permit they to get the benefit of the easement for which they bargained.

As well, there’s a second worthwhile principle in today’s case. If you get into a kerfluffle as a property owner or an easement holder, try to work it out. The old legal aphorism is true: a bad settlement is better than a good lawsuit.

Campbell v. Sullivan, Case No. FSTCV166028793S (Superior Ct. of Connecticut, Dec. 11, 2017) 2017 Conn. Super. LEXIS 5104: Maggie Sullivan is the homeowner at 1 Lennon Lane in Wilton. Steve Campbell owns the abutting property at 2 Lennon Lane. Steve has an easement for a 50-foot wide strip across Maggie’s property to be used as “a right of way for all lawful purposes of ingress and egress, including public utilities.” The easement is the only way Steve has to get from the street to his property.

The fifty-foot-wide right of way described by this easement contains a paved driveway about 12-foot wide known as Lennon Lane.

Steve sued Maggie, claiming that over time, she had placed rocks and erected fencing within the 50-foot right of way, as well as “allowing” trees and other overgrowth to impede ingress and egress through the easement. Maggie argued that that any actions she has taken to encroach into the easement are minimal, reasonable, and do not impede Steve’s access to 2 Lennon Lane. For her part, Maggie complained that Steve had trimmed trees and other plants within the 50-foot right of way, which are actually located on her property, without her consent. Steve responds that he is entitled to the entire 50-foot right of way as granted by the easement, and anything Maggie places within the 50 feet violates his rights.

Held: Steve and Maggie couldn’t work things out for themselves, so the court did it for them, giving each a little and taking from each a little.

To figure out the nature of Steve’s rights, the court started with the deed itself, and then looked to the situation of the property and the surrounding circumstances, all in order to “ascertain the intention of the parties…” The language of the grant is given its ordinary meaning in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent.

The principle is that the “holder of an easement… is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude.” This means that the easement holder can use the easement in any way reasonably necessary to fulfill the intent of the parties. The court held that the “right of way is for ingress and egress. This is broad enough to include the ability to turn around, reverse, and enter and exit safely. It does not include the right to park on the right of way. On the other hand, merely because the defendant owns the fee in the right of way, she does not have the right to obstruct the plaintiffs right for all lawful purposes of ingress and egress.”

The court said it was Steve’s job to maintain the easement, but his maintenance had to be reasonable. “The holder of an easement,” the court said, “is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment. The law is settled that the obligation of the owner of the servient estate, as regards an easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it.

Under these circumstances, the court said, Steve has no right to compel Maggie to maintain it for his benefit. He had to do it, and do it “in a reasonable fashion.”

Steve spun a tale about expecting “prefabricated modules” that would be used as additions to his house. He said he would need at least 30 feet of the 50-foot easement for the trucks. It turned out, however, that Steve had not exactly ordered the prefabs yet, did not know when he would order them, and when he would pay for them. The court was unimpressed, saying, “As of the time of this decision, the plaintiffs plans to remodel his home are not definitive reasons as to why… he would need access to the entire fifty-foot right of way .

The court ordered some of the rocks, fencing and bushes removed. It prohibited Steve from parking in the easement, and limited tree trimming to one area where the branches interfered with ingress.

– Tom Root