Cases from February 2014

TNLBGray

Case of the Day – Monday, February 3, 2014

INCORPOREAL HEREDITAMENTS

Hey, man, check out that set of incorporeal hereditaments!  Hubba hubba!

A hereditament is nothing more than a right that can inherited.  A corporeal one is that may be seen and handled, like a piece of real estate.  Back in the day, conveyance of land was done by livery of seisin, the actual passing of a twig or clump of dirt.  An incorporeal hereditament, on the other hand, is something intangible, like an easement.

Sound boring?  Some North Carolinians found out that boring or not, it’s important.  A couple of landowners had, over the past 11 years or so, planted trees, built fences and otherwise taken actions inside a 30-foot driveway easement that encroached on the use of the passage by its owners.  The easement owner, stymied in his use of the drive, sued.  The defendants argued “too little, too late:” the plaintiffs were way beyond the 6-year statute of limitations for suing on incorporeal hereditaments.  The plaintiffs said “poppycock!”  The statute didn’t start running until the invasion of the easement had passed the 20-year period for adverse possession of land or prescriptive easements.  In other words, the plaintiff argued, he had 26 years from the time the trees were planted and fences were built to bring a lawsuit.

The Court of Appeals disagreed, siding with the defendants.  This wasn’t a case of someone trespassing, taking land by adverse possession or a right by prescriptive easementThis was someone trying to undo an express easement.  The lawsuit simply related to an incorporeal hereditament, and it was subject to the 6-year statute.

The incorporeal hereditament not taken ... as Robert Frost might have said.

The incorporeal hereditament not taken … as Robert Frost might have said.

The result is curious.  It means that an owner of an easement, a right that is often as valuable as the property itself, can lose that right by interference by the servient estate owner in a relatively brief period of time.  To use a legal term, “you snooze, you lose.”

Pottle v. Link, 654 S.E.2d 64 (N.C.App., 2007)The Pottles owned Tract 6 on Cedar Island, and Snug Harbor South, LLC, owned Tract 4.  Both of these owners held 30-foot wide easements allowing ingress to and egress from the public road to Tracts 6 and 4 and other lots. Mr. Link owned Tract 3 and Mr. Willets owned Tract 5, adjacent lots which were the servient estates over which the easements ran.  About 11 years before the lawsuit was filed, Link planted several oak, cypress, holly, and cedar trees on Tract 3, joined several years later by two more oak trees to replacing two that had been destroyed by hurricanes.

He maintained the trees by installing an irrigation drip line and planting other vegetation on the tract In the summer of 2004, Willets installed a post and rope fence on Tract 5, and in 2005, Link built a fence.  The Pottles and the LLC sued, arguing that Link’s trees and impeded traffic on the easement, and that Willets’ post and rope fence encroached on the easement as well.   Plaintiffs filed a motion for summary judgment, arguing that Link and Willets had refused to clear the easements to provide access to property that had no other routes of access.  Link and Willets moved for summary judgment, too, arguing that the 6-year statute of limitations for injuries to incorporeal hereditaments had expired, and that the plaintiffs’ actions constituted an abandonment of the easement. The trial court granted summary judgment to the plaintiffs, and defendants appealed.

snoozeHeld: Summary judgment for the plaintiffs was reversed, and the defendants won on many of the issues.   The Court of Appeals noted that the parties agreed that all encroachments, except the fences installed in 2004 and 2005, were planted or installed approximately nine to eleven years before the lawsuit. The only question, the Court said, was which statute of limitations applied. An affirmative easement is a right to make some use of land owned by another without taking a part thereof, while a negative easement prohibits the owner of a servient estate from doing something otherwise lawful upon his estate, because it will affect the dominant estate.  Easements are incorporeal hereditaments, which is defined as “[a]n intangible right in land, such as an easement.”  N.C. Gen.Stat. §1-50(3) requires that an action for injury to any incorporeal hereditament be brought within six years.  The plaintiffs argued that the injury in this case was similar to an adverse possession, having a limitation period of twenty years, but the Court disagreed, holding that the cases relied on by the plaintiffs related to a defendant’s continuous trespass onto the plaintiffs’ property, not on plaintiffs’ incorporeal hereditament.

Because an injury to an incorporeal hereditament was at issue in this case, rather than a continuous trespass or a prescriptive easement to property held in fee, the Court held that conclude that N.C. Gen.Stat. §1-50(3) applied, and that plaintiffs’ case was barred where the six-year statute of limitations had been satisfied.  All but two encroachments onto the plaintiffs’ easement began 9 to 11 years before the lawsuit.  The defendants were therefore entitled to partial summary judgment as a matter of law.  The fences had not been in place more than six years, but because the defendants argued that the fences did not encroach on the easement, an issue of fact existed, and summary judgment in favor of the plaintiffs had to be reversed.

The case was sent back to go to trial on the question of whether the fences encroached on the easement.

Case of the Day – Tuesday, February 4, 2014

PEOPLE BEHAVING VERY BADLY

Remember the California Dahlquists, the neighbors from hell we reported on in our January 24th case? Well, they have Doppelgängers in Connecticut.  But unlike the real thing, these are even more evil than the first.

Welcome to the neighborhood ...

Welcome to the neighborhood …

Meet the Cooleys, neighbors who were so bad as to drive the Court to write a plaintive plea that everyone try to get along. How bad, you ask? Well, Mrs. Cooley tried to run down her neighbor with her car. Her son threatened to beat up his elderly neighbor (who had just had a heart transplant). Yeah, that bad …

This case is one of those rare fact-driven trial court decisions worth reading just to get the flavor of the Court’s incredulity that people could carry on like this. At one point, the judge observes that “[o]ne could almost use that well worn lawyer’s expression ‘I rest my case’ after merely viewing Mrs. Cooley’s Exhibit 12, which in gruesome detail sets out the ‘this is my property’ syndrome.” The court finally issues a 15-point injunction ordering the Cooleys to stop doing 12 acts of malice, and the Quarantas to refrain from three others. It found application for a seldom-used Connecticut statute prohibiting structures built out of malice, banning a chicken-wire monstrosity erected by the Cooleys as a “spite fence.” Finally, it found that the often-alleged by seldom-proven “intentional infliction of emotional distress” tort to have been shown here, and ordered the Cooleys pay the Quarantas legal fees.

And at the end of the opinion, the Court ordered each party to read his final words out loud, a plea by the Court for these people to rewind the clock to the beginning and try to get along. The Court’s frustration and sense that no matter what the law said, nothing would stop the bickering, comes through. Not great moments in the development of the law … just a neighbor law tale worth reading.

There was even a "spite fence" in the story ...

There was even a “spite fence” in the story …

Quaranta_v_Cooley_2007_140204″>Quaranta v. Cooley, Not Reported in A.2d, 2007 WL 4577942 (Conn.Super. 2007). People behaving very badly. You know how the opinion’s going to go when the Court begins by quoting an old Supreme Court opinion that “… it is the bickerings, spite, and hatred arising from neighborhood quarrels; it is difficult for any legislation to remedy such evil.”

The Quarantas were senior citizens who had lived in the same home for 26 years. Mr. Quaranta was on life support system and eventually had a heart transplant. The Cooleys were younger than the Quarantas, but had a 25-year-old son and health considerations of their own. When the original landowner subdivided his property into the lots which became the homes of the Cooleys and Quarantas, there was an existing paved driveway to the Quarantas’ home from the street, bordered with a split rail fence and a grassy area on each side. The landowner created by deed two 25’ easement roads (for a total width of 50 feet) over the same area on which his driveway existed. Each lot owned 25’ of the road, and each owner had the right to pass over the 25 feet owned by the other. The practical effect of these easements is to allow all three parcels of land to share access to the public street with one common driveway. Although the neighbors couldn’t see each others’ homes, they ended up in a continuing vitriolic spat in which each side accused the other of using the “F” word, raising the middle finger on numerous occasions, and other immature and harassing behavior, such as the noisy racing of vehicles, the blowing of car horns and trash placement fights.

The Court held that the Cooleys, who were New York City dwellers unused to the suburban life, utterly lacked credibility on the stand. It found that the battle began with Mrs. Cooley delivering a letter to the Quarantas within 30 days of her having moved in, in which she told them their lampposts and driveway sat on the Cooley property. Then, the Cooley son began throwing keg parties at the Cooley home, with noisy partygoers parking all along the right-of-way. The parties were noisy and annoying, and afterwards, the Quarantas found themselves cleaning up empty bottles and cigarette butts. The parties were held about four times a month. The Quarantas complained without effect. The grand finale was the Cooley Halloween Party in 2005. When Mrs. Quaranta went out in her nightgown to ask for peace and quiet, the partygoers cursed her – one exposing himself to her – and urinated toward her. After this, Mrs. Cooley and her daughter, took to riding at high speed over the grassy area, even leaving deep tire tracks. Although the Cooley’s trash pickup was on Friday, they would put their trash out all week long, at a spot where it was viewable only from the Quarantas property. Animals got to the trash during the week and the plaintiffs did the clean up. Mrs. Cooley would to drive fast down the mutual passage raising dust and her middle finger while blowing her horn the entire distance. She overdosed her own lawn with weedkiller, killing all of the grass ostensibly so she wouldn’t have to mow. Her lawn, of course, fronted on the Quarantas’ lush and meticulous.

badneighbora140204There were countless verbal confrontations as well. The Cooley son yelled at Mr. Quaranta, a man past 65 with a heart transplant, “Hit me! I’ll wipe the ground up with you.” Previously, another judge had ordered the parties to refrain from intimidating, threatening, harassing, stalking, assaulting, or attacking each other, and to refrain from entering the property of the other, until the dispute was tried and resolved on the merits. After that, the Cooleys built an ugly chicken wire f ence on the side of the passage that fronts the Quarantas’ house only. The trial court was called upon to mediate the dispute.

Held: The Court found for the plaintiffs, the Quarantas. It held that Mrs. Cooley’s testimony was so bad that it noted that “[o]ne could almost use that well worn lawyer’s expression ‘I rest my case’ after merely viewing Mrs. Cooley’s Exhibit 12, which in gruesome detail sets out the “this is my property” syndrome. The court found it unsurprising that she took an axe to, and threatened to destroy, anything – even things of beauty – found on her property. These items included a lamppost, (that provided her light with the Quarantas paying for the electricity), fences (that enhanced the entrance to both their properties), a beautiful birch tree (with no professional evidence that it had to be cut down), a ceramic nameplate, (which her son admitted smashing) and even shrubbery. “Such warmth!” the Court said. “And it shows in the fifty plus exhibits.”

The Court held that the chicken wire fence was maliciously erected, based on its character, its location, and the obvious state of mind and motive of the defendant. It ordered the fence removal pursuant to §52-480 of the Connecticut Statutes. It found that the Cooleys had exceeded the use of the right of way in a vindictive and malicious manner so as to harm the Quarantas, rather than just for ingress and egress. It held that number of the Cooleys’ activities on this simple right-of-way were, “in layman’s terms, ludicrous, and in legal terms harmful, unnecessary, illegal and unreasonable.” It issued a detailed injunction spelling out 12 acts in which the Cooleys were not to engage, and 3 acts in which the Quarantas were not to engage.

A happy ending?  Not with these folks ...

A happy ending? Not with these folks …

Based upon the totality of the evidence, the Court held that the Cooleys directly and indirectly negligently and intentionally caused severe emotional distress to the Quarantas, and knew or should have known that their acts would result in severe emotional distress to the plaintiffs. In the case of Mr. Quaranta, the distress was found to be life threatening. The Cooleys evidenced a reckless indifference to the Quarantas’ rights and showed an intentional and wanton violation of these rights. The injury was inflicted maliciously, with evil motive and violence. The Court awarded the Quarantas their legal fees as damages.

The Court took the unusual step of ordering a final statement to be personally read by the parties. It begged both parties to “go back to the day the Cooleys moved in and put everything back the way it was. Let us dig a hole and bury all of the ill feelings and hatreds that are all consuming.” The Court, writing this on Thanksgiving Eve, ended by noting that “[t]he person whom many people honor in this Holiday Season forgave everyone. Isn’t it time that the Quarantas and the Cooleys caught the spirit of the Season?”

Postscript: They did not. Rather, they were back in court repeatedly between 2007 and 2012, arguing over contempt motions filed against each other. Oh, the humanity …

Case of the Day – Wednesday, February 5, 2014

FINDERS WEEPERS

The objet d'art that started it all

The objet d’art that started it all

Now, ripped from the headlines … and based on a true story, the tale of poor driving instructor Martha Fuqua, whose purported avocation of haunting flea markets and garage sales brought her a brief shining moment of wealth and fame.

Martha is the woman who dropped $7.00 on a dusty and faded old painting in a dilapidated frame.  Or so her story goes.  She says it sat around her place for a few years before she decided to get it appraised at her late mother’s urging.  Lo and behold, the painting turned out to be by the French impressionist Pierre Auguste Renoir.   And it seemed to be worth somewhere north of what Martha had paid for it,  about 15,000 times her initial investment.

Everyone loves a story like this, an everyday Joe or Jane unexpectedly becoming rich because of serendipity.  And Martha, who had lost her teaching position and was training to be a casino blackjack dealer, could use the windfall.  But, nothing ruins a good story like an eyewitnessOr two.

When Martha sought to auction the piece of art in 2012, the word that the piece was Renoir’s On the Shore of the Seine, a 5½ x 9-inch landscape, was out.  Martha, who began calling herself “Renoir Girl,” was basking in the publicity.  No one could establish the provenance of the work, and when someone tracked it back to the Baltimore Museum of Art, museum officials denied ever having had it on the walls.  But shortly before the auction – which was expected to bring over $100,000 – the Washington Post found documents showing that the May family, a prominent patron of the BMA, had loaned the work to the museum in 1937.  Museum officials checked again, and found records showing the landscape had been reported stolen in 1951.

Enter Renoir Girl’s brother, Matt, who said that he had seen the painting among his late mother’s possessions several years before his sister said she had bought it for the price of a Subway foot-long and a medium drink.  A mother who had been an art student in Baltimore in the early 1950s, right when the diminutive painting was plucked from the wall of the museum.   Other family acquaintances recalled seeing the

No impressionist paintings were harmed during this raid.

No impressionist paintings were harmed during this raid.

painting at the Fuqua family’s home in Virginia in the 80s and 90s.  Those pesky eyewitnesses!

The BMA complained that it didn’t really care how Martha Fuqua came to possess the work, it belonged to the museum.  The FBI bravely swept in and took possession of the work , and the courts took over.

The government filed what is known as an interpleader action in Federal court.  An interpleader action states in essence that the filer is in possession of some property to which there are competing claims for ownership.  It asks the Court to separate the wheat from the chaff, and sort out the claims.  Ms. Fuqua said that she found the Renoir fair and square, and that anyway, she possessed it and possession is nine-tenths of the lawThe BMA said that the law doesn’t let anyone, even an innocent purchaser, take title to stolen goods.

In re “Paysage Bords De Seine,” Case No. 1:13-CV-347 (E.D.Va., Jan. 14, 2014)Only two parties remained of the four claimants named by the plaintiff United States of America, Martha Fuqua – who claimed she bought the artwork at a flea market – and the Baltimore Museum of Art.  The BMA claimed the Renoir landscape had been reported stolen from its walls 60 years before.

Surprisingly enough to people who follow this kind of thing, the Court actually observed that “the Fourth Circuit has endorsed the truism ‘[t]hat possession is none-tenths of the law’.”  Virginia common law presumes that the person in possession of a piece of property has a superior claim to it, although the presumption can be rebutted by sufficient evidence.  The Court noted that one way of rebutting the presumption was by proving the property was stolen, because the law was clear that “even a good-faith purchaser for value cannot acquire title to stolen goods.”

Interestingly enough, Pierre "Pete" Renoir, pictured here, did not make a claim in the case for the landscape at issue.

Interestingly enough, Pierre “Pete” Renoir, pictured here, did not make a claim in the case for the landscape at issue.

BMA essentially was bringing a detinue action, a common law action to obtain an order from the court that its property be returned to it from another person – not necessarily a wrongdoer – who for whatever reason is in possession of it.  In order to prevail, BMA had to prove (1) a property interest in the item; (2) the right to immediate possession; (3) that the property is capable of identification; (4) that the property is of some value; and (5) that it possessed the property at some time in the past.

The parties didn’t dispute that the property could be identified and that it had considerable value.  Ms. Fuqua, however, claimed that the museum couldn’t prove it had ever possessed the painting.  The BMA produced copies of the 1951 police report, copies of its records showing that the painting had been loaned to it, and copies of board minutes from the early 1950s citing the theft and an insurance claim.  (In case anyone wonders, the May family descendents had been named in the suit as potential claimants, but they waived any claim to the Renoir).

Martha Fuqua - the "Renoir Girl" herself - argued that possession was nine-tenths of the law.  It's that other 10% that'll get you, however ...

Martha Fuqua – the “Renoir Girl” herself – argued that possession was nine-tenths of the law. It’s that other 10% that’ll get you, however, as it did in this case …

Martha Fuqua argued that the BMA records weren’t reliable evidence, but the District Court found the internal records showing the painting was loaned to it, that it catalogued it and exhibited it in due course, were convincing.  Even more persuasive was the official copy of the police report, proving that the BMA had reported the painting had been purloined.  Ms. Fuqua complained that the police report was hearsay, but the Court correctly pointed out that the report wasn’t intended to prove that the painting had been stolen, but rather to prove that it had been reported stolen.  Too fine a point for you?  Such is the nature of the law of evidence.

The Court concluded that Ms. Fuqua hadn’t offered any evidence that the painting had not been stolen, and the BMA had provided plenty of proof that it had been.  As a final “hail Mary,” the Renoir Girl speculated that maybe Saidie May ­– who had loaned the painting to the museum – hadn’t had her husband’s permission to do so.  The Court dismissed this canard as rank speculation.

The painting was ordered back to the museum.  And by her reckoning, Martha Fuqua is out the price of a 12” meatball marinara and Coke.

Case of the Day – Thursday, February 6, 2014

TAKING A MULLIGAN

This is not the pine tree in question, but it's a reasonable facsimile of the same.

This is not the pine tree in question, but it’s a reasonable facsimile of the same.

There was trouble in Randolph County, Alabama, up near the Georgia line.  The Ledfords had purchased a nice vacation home on a lake, next to a place owned by the Youngs.  The Youngs appear to have loved the natural setting.  The Ledfords were more concerned that nature’s bounty – specifically one large pine tree on the boundary between the Ledford’s land and the Young property – was going to fall on their house.  They wanted the tree cut down.  The Youngs refused.  The matter ended up in court.

Of course, regular treeandneighborlawblog readers know how that should have turned out: if the tree really sits on the boundary line, both landowners have to agree before it can be cut down.  The trial court reasoned otherwise.  Under the Massachusetts Rule, a landowner can trim parts of a tree that overhang or grow under his or her property, all the way from the center of the earth to the sky.  So that meant the Ledfords could cut out half of the tree, the court mused.  That would kill the tree, but it only meant that under the Massachusetts Rule, if you could hack at the roots and branches of a tree without regard to the damage you cause, then you can take down the whole boundary tree if you like.  The trial court gave the Ledfords the go-ahead to take down the tree.

The Youngs appealed, and common sense prevailed.  The Court of Appeals explained the proper boundary tree rule, and reversed the trial court’s errant ruling.  But in so doing, a few judges on the appeal panel wondered aloud (or at least, in the written opinion) why the Ledfords hadn’t argued that they had the right to cut down the pine tree because it was a nuisance.  Remember Fancher v. FagellaOne judge went so far as to say that if the record held evidence of nuisance, he would have upheld the trial court, wrong though its reasoning was.

Do we have to spell it out?  The trial court was just plain wrong.

Do we have to spell it out? The trial court was plain wrong.

Well, the Ledfords could take a hint.  When the case went back to the trial court “for proceedings consistent with this opinion,” as the court of appeals decisions like to say, they asked for a do-over, a second hearing, this one on nuisance.  ‘Hold the phone!’ the Youngs cried.  ‘The Court of Appeals said the Ledfords lost.  The tree stays standing.  Game over.’

The trial court gave the Ledfords their Mulligan.  It ordered a second hearing, and afterwards found the pine tree to be a nuisance.  The Ledfords were told they could cut it down.  Again.

The Youngs went back the court of appeals for a writ of mandamus, essentially a request that the court of appeals issue an order telling the trial court it couldn’t hold the second hearing.  The court of appeals refused to do so.  Applying an obscure rule called the “law of the case” doctrine, the appellate court held that while the trial court was required to apply the ruling the court of appeals had issued, that ruling was just that the Ledfords could not cut down a boundary tree without the agreement of their neighbors.  The court of appeals did not say the tree had to remain – just that if it was to be cut down, it couldn’t be on the basis originally articulated by the trial court.

The lessons here?   The Ledfords’ attorney should have argued nuisance to begin with.  It should have been clear that arguing that his clients could cut down a boundary tree was a loser.  Besides, in civil litigation, you argue as many alternative theories as possible to get your clients where they want to end up.  Who knows which one will be a winner?

Of course, the Ledfords ended up winning, and the pine tree lost.  But as an old judge once cautioned, you should never dig up more snakes than you can kill.  Why buy a second trip to the court of appeals by leaving out an argument, and asking for a Mulligan later?

A few too many snakes?  The Ledford's lawyer courted procedural trouble.

A few too many snakes? The Ledfords’ lawyer courted procedural trouble.

Ex parte Young, 79 So.3d 656 (Ala.Civ.App. 2011):    The Ledfords owned a vacation house with a pine tree located slightly over 10 feet from Ledford’s house, on the boundary between their property and that of the Youngs.  Fearing that  [a] strong wind against the tree could cause it to fall on the home and could cause damage to the [house] as well as serious injury to any occupants,’ the Ledfords wanted a court order that they could cut it down.

The Youngs argued that the pine tree was ‘a true boundary line tree’ and contended that it could not cut down by either property owner without permission of the other.  After a hearing in which the Ledfords, the Youngs, and a forester hired by the Youngs all gave testimony, the trial court held that Ledford and her husband could remove the tree at their convenience, taking steps to minimize damage to the Youngs’ lot.  The trial court held that because Alabama law let a landowner remove any trees on his or her property up to the property line, and this right extended to the center of the earth and into the sky, the Ledfords were free to hack into the pine tree up to the property line and then cut from that point to the center of the earth and into the sky. The Court said that “[s]ince [the Ledfords] unquestionably has the right to remove any portion of the tree that is located on [their] side of the property line and since doing so would likely kill the tree, the Court is of the opinion that [they] should be allowed to completely remove the tree to ensure” that the property and the health of anyone there are protected.

When the case got to the Court of Appeals the first time, it was promptly reversed.  Rejecting the trial court’s tortured “center of the earth to the sky” analysis, the appellate court ruled that “[i]n the special case of a boundary-line tree, … each adjacent landowner has ownership rights that cannot be trumped by the other’s desires in the manner suggested by the trial court’s judgment” and that the Ledfords – contrary to the trial court’s judgment – could not properly “‘cut into the tree to the property line and then cut from that point to the center of the earth and into the sky'” without incurring liability to the Youngs.

But the appellate court went a little further.  In a concurring opinion, two of the judges on the appellate panel observed that the action had been argued on the basis of the Ledfords’ contention that they were entitled to remove the boundary-line tree at issue merely because its trunk was located in part on their property.  The judges noted that whether the “boundary-line tree at issue in this case constituted a nuisance for which an exception to the general rule set forth in the main opinion might apply” had not been litigated. A third judge on the panel said that had the record contained evidence indicating that the tree at issue posed a danger to the Ledfords’ house,” he would have voted to affirm the judgment instead of reverse it.

After the appellate judgment issued, the Ledfords asked the trial court for another hearing to consider whether the pine tree was a nuisance.  The Youngs argued that the appeals court had decided in their favor, and the case should be closed.  But the trial court had another hearing, and afterwards decided that the tree was a nuisance, and that the Ledfords could remove it on that basis.

The Youngs filed a petition for a writ of mandamus, asking the appeals court to order the trial court to enter judgment for them, and end the hearing.

Held:  The Ledfords could cut down the tree.   A court will issue a writ of mandamus only when the petitioner has a clear legal right to the order sought; the respondent has an imperative duty to perform, accompanied by a refusal to do so; there is no other adequate remedy at law; and the court has jurisdiction of the court.

Mulligan140206Here, the Court of Appeals said, the only real question was whether the trial court had the right to hold a second trial in this matter.  The Youngs contended that the prior appellate court’s decision was final as to all matters before it and that the trial court, after that initial appeal, was not allowed to hold another hearing and take additional testimony without permission of the appellate court to do so.  The court of appeals agreed with that statement of the law, but said that only the particular issue that had formed the basis of the trial court’s judgment – whether Ledfords could unilaterally remove the boundary-line tree simply because the majority of it was located on their side of the common boundary – was addressed. Based upon that conclusion, the court of appeals had reversed the trial court’s judgment letting the Ledfords unilaterally remove the tree,” and remanded the cause “for further proceedings consistent with [that] opinion.”

Because of the limited scope of the trial court’s previous judgment, no one had ruled on whether the boundary-line tree posed a danger to Ledford’s home or amounted to a nuisance.  While the prior decision was thelaw of the case,” nothing in the prior opinion limited the trial court from ruling on the nuisance question, which the court of appeals admitted remained open for decision.  Deciding to examine the nuisance question did not put the trial court in the position of doing something contrary to what the court of appeals had ordered.

Case of the Day – Friday, February 7, 2014

THE RISK WAS OBVIOUS TO A CHILD

The McDonald's coffee lawsuit - easy to deride, but conventional wisdom is probably wrong.

The McDonald’s coffee lawsuit – easy to deride, but conventional wisdom is probably wrong.

Tort law has long been a popular target for those lamenting the demise of the Republic.  You know, the folklore about the McDonald’s coffee case (which in reality, wasn’t so outrageous after all) and the phony “view with alarm” e-mails that circulate about absolutely fictitious decisions.

But truth be told, most of tort law isn’t nearly as outrageous as its would-be reformers would have us believe.  Take today’s case.  Some boys were playing at a school playground, and decided to raid oranges from a neighbor’s tree.  After they had gotten all the low-hanging fruit, one of them stuck his bicycle handlebars in the chain link fence, climbed up his makeshift ladder, and reached across the fence.  Naturally, the bike came loose from the fence and he fell, cutting himself on the sharp tines on top of the fence.

The boy sued the school district for maintaining a dangerous fence.  The only outrage was that his lawyer decided to sue at all.  The fact that no one had ever been hurt on the fence in 16 years didn’t matter.  The boy’s attorney argued that it was reasonably foreseeable that young boys would be attracted to oranges adjacent to the fence and would use the fence (whether by climbing or using a bicycle or other means to fashion a ladder) to enable them to reach the fruit.  The Court said ‘nonsense’.

Kids really do some pretty foolhardy things.

Kids really do some pretty foolhardy things.

Chain link fences are ubiquitous, the Court said, but not even kids — who are held to lower standards than adults — would think that it was a reasonable use of the property to thread bicycle handlebars through the links to make an impromptu ladder. The dangerous condition of property should be defined in terms of the manner in which it is foreseeable that the property will be used by persons exercising due care.  After all, the Court said, any property can be dangerous if used in a sufficiently abnormal manner.

This decision would be refreshing were it not so commonplace.  Less than 5 percent of all civil cases are torts, and only about 4 percent of those go to trial.  Recent statistics show that plaintiffs only win about half of the trials, and only half of those winners get more than $24,000 in damages.  Most tort lawsuits are losers.  Contrary to conventional wisdom, tort law does not always include a leprechaun and a pot of gold.

Biscotti v. Yuba City Unified School Dist., 158 Cal.App.4th 554 ( 2007).  Nine-year-old Christian Biscotti and his friends were riding bicycles on the grounds of a public school. The boys decided to pick oranges from a tree located in a neighbor’s yard, which was separated from the school’s grounds by a metal chain link fence. The fence, installed when the school was built in 1959, had metal prongs across its top edge.  After the boys had picked all the oranges they could reach from the ground, Christian placed a bicycle next to the chain link fence, poking one handlebar through an opening in the fence to help stabilize the bicycle. He then climbed up and stood on the bicycle, balancing himself with one foot on its seat and his other foot on the bar. While Christian reached over the fence and yanked on an orange, the bicycle slipped and he fell onto the fence. His left arm struck the metal tines and was cut.

For at least 16 years prior to the accident, there had been no reported complaints about the safety of the fence and no reported accidents or injuries related to it.  That didn’t keep Christian from suing Yuba City Unified School District, which promptly won on summary judgment.  Christian appealed.

Standing on the seat and handlebars of a bike leaning against a chain-link fence ... who could imagine that could go so wrong?

Standing on the seat and handlebars of a bike leaning against a chain-link fence. in order to pick an orange … who could imagine that such a reasonable activity could go so wrong?

Held:  The school district was not liable.  In California, public entity liability for personal injury — governed by statute — is imposed for injuries caused by a dangerous condition of public property where a plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.  A “dangerous condition” of public property is a condition of property 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.  The intent of these statutes, the Court said, is to impose liability only when there is a substantial danger which is not apparent to those using the property in a reasonably foreseeable manner with due care.

The Court held that Christian failed to raise an issue of material fact as to whether the school district maintained a dangerous condition on its property.  The Court said that the risk of falling and being seriously injured would be obvious even to a nine-year-old boy at the time Christian poked the handlebar of his bicycle into an opening in the chain link fence, climbed onto the bicycle, balanced himself with one foot on the seat and his other foot on the bar, and reached over the fence to pick an orange from a tree on the adjacent property. While unfortunate, the injury that resulted when the readily apparent risk of falling became a reality is not compensable.  The undisputed facts established that Christian was not using the fence with due care in a manner in which it is reasonably foreseeable that it will be used. 

The lesson the boy learned, the Court observed, is that tort law did not protect him from the consequence of his careless decision. 

Case of the Day – Monday, February 10, 2014

ACQUIESCENCE

One big happy family ... until part of the homestead gets sold.

One big happy family … until part of the homestead gets sold.

Lawyers and surveyors are the first to tell you that you should always carefully survey and protect the boundaries of your property.  Ri-ight.  Like we think that way, especially when we’re all family.

In today’s case, a family farm — handed down from father to son to son — had adjacent farmland parcels.  The brothers owning them agreed that a barbed-wire fence they laid — measured off the centerline of a county road — was the boundary between their lands.  They measured carefully and marked the fence with fed flags and pennies crimped around the barbed wire, but they didn’t use a surveyor.  After all, it’s all family, so who needs to waste money on a third-party?

The problem was that the county road centerline wasn’t accurate.  As a result the 60-acre parcel and the 18-acre parcel were off by about a quarter-acre in favor of the bigger piece of land.  But no one knew it, and the agreed-upon boundary survived the decay of the fence, the installation of a mobile home and the digging of a well to replace one end of the fence.

It wasn’t until the 18-acre parcel passed out of the family that the buyer discovered — four years after he took possession — that the presumed boundary was off a bit.  What’s a quarter acre out in Nebraska farm country?  For the buyer, Aaron Sila, it was a lawsuit.

A long-standing rule provides that mutual acquiescence between owners can establish a boundary line where the actual location of the line is unknown.  The Nebraska trial court held, however, that the doctrine wouldn’t work in this case, because the line could easily have been calculated by a surveyor using the legal descriptions in the deed.  The ruling, of course, begged the question: when exactly would a boundary be unknown if the owners hired a surveyor?  Shades of the “known unknowns” and the “unknown unknowns,” back in the golden days of the Iraq invasion!

EasementsThe Nebraska Supreme Court recognized that the trial court’s impossible standard effectively gutted the mutual acquiescence doctrine, and it reversed the decision.  It didn’t matter, the Court said, that owners might be able to fix the actual boundary by hiring lawyers and surveyors.  They in fact didn’t know where the line was for sure, and they agreed to what each knew was an approximation.  It worked for longer than the 10-year statutory period, the Court found, and that was good enough to establish a new boundary by acquiescence.

Sila v. Saunders, 743 N.W.2d 641, 274 Neb. 809 (2008).   This case arose as a boundary dispute between two adjoining farm property owners, Kirk and Aaron.  The properties were once part of a single farm owned by Kirk’s grandfather, but the land was divided into three parcels and given to his three sons: Vern, George, and Kirk’s father, Eugene.  George got an 18 acre parcel east of a county road. Vern and Eugene were each given adjacent 30-acre parcels to the east of George’s 18 acres.

A year later, Vern died, and his 30 acres were acquired by Eugene. Kirk eventually inherited a 20-acre segment of Eugene’s 60 acres. That segment abutted the disputed 18-acre parcel originally given to George.  In the early 60s, George and Eugene established the shared boundary of their properties, “[t]o split the farm up to get a boundary line so [George] knew what he owned and what my dad owned,” according to Kirk’s brother, Elloite.  George and Eugene decided not to hire a professional surveyor to mark the boundary, and they mistakenly believed that the middle of the county road represented a section line marking the west boundary of George’s 18 acres. George and Eugene took a 100-foot tape measure and some flags and measured 594 feet east from the middle of the county road. They crimped a penny over the barbed wire and tied red flags on the fence at the 594-foot line of both the north and the south ends of the properties.  After this, George’s crops were farmed on the west side of the boundary, and Eugene planted his crops on the east side of the boundary.  An aerial photograph from the time showed a clear demarcation between the two parcels that appeared to be parallel to the county road from which the boundary had been measured.

In 1965, Kirk removed the barbed wire fence on the south end of the property, but placed a water well next to the property line designated by the crimped penny. After the removal of the fence in 1965, the well was understood by George and Eugene to be the south visual marker for the boundary between their properties. George and Eugene farmed their respective lands with the well on the south end and the crimped penny on the north end of the boundary for 21 years. When George died in 1986, Eugene and Elliotte continued to farm Eugene’s 60-acre parcel, and they also farmed George’s land for his widow, but they maintained the crop boundary line according to the well/stump boundary.  When Eugene died three years later, Elliotte continued to farm George’s land and the 20 abutting acres inherited  by Kirk, and he still considered the well and the tree stump as boundary markers.

Aaron Sila bought the 18 acres from George’s widow in 2001. Four years later, he hired a surveyor, who found that the centerline of the county road along the west side of Aaron’s property did not — as George and Eugene had believed — correspond to the section line. Aaron’s surveyor didn’t notice either a stump or a well as visual markers of a boundary line.

Remember Donald Rumsfeld's "unknown unknows?"  The Court said that doctrine didn't limit mutual acquiescence


Remember Donald Rumsfeld’s “unknown unknowns?” The Court said that doctrine didn’t limit mutual acquiescence.

Elliotte hired a surveyor, whose survey showed the disputed area as a trapezoid of about .264 of an acre in issue.  The trial court found that Aaron owned the disputed parcel, because mutual acquiescence can only fix a boundary that is otherwise unknown. Since the true location of the boundary was set forth in the legal description and was readily ascertainable through conventional surveying techniques, the court concluded it was “known.” The court also rejected Kirk’s adverse possession claim. Kirk appealed.

Held:   The trial court’s decision was reversed.  The Nebraska Supreme Court held that under the doctrine of mutual recognition and acquiescence, while a boundary may be fixed in accordance with a survey, when a different boundary is shown to have existed between the parties for the 10-year statutory period, it is that boundary line which is determinative and not that of the original survey.  The fact that the true boundary might be “knowable” because the deed contains a metes and bounds description that a registered surveyor could have properly marked on the land — but did not — does not preclude the property owners from acquiescing in a boundary that they believe corresponds with the deed’s description.

Here, the two owners knew that the boundary line was merely an approximation of the real boundary.  Nevertheless, that fact did not preclude a finding of mutual recognition and acquiescence, so long as the acquiescing parties recognized this approximation as their actual boundary.  In order for mutual recognition and acquiescence to operate, there had to be an assent, by words, conduct, or silence, in a line as the boundary.

Case of the Day – Tuesday, February 11, 2014

A PRÉCIS ON ENCROACHMENT

North Dakota - you can see the gas flares from outer space.

North Dakota – you can see the gas flares from outer space.

It seems like it’s all happening in North Dakota these days. It’s the No. 2 oil producer in the country, unemployment there is at a measly 2.6%, 18,000 more people moved there in 2013 than left … and the state’s got so much natural gas that it’s flaring $100 million in natural gas a month that it can’t use.

The natural resources we care about around here, however, are only underground to the extent of their root systems. Root systems that – along with branches – can occasionally encroach on the neighbors. And that can be a real pain in the neck.

Dr. Richard Herring knows something about pains in the neck. They’re his livelihood as long as they’re found in his patients. But this chiropractor had to deal with another pain the neck, too. The property next door, on which sat an apartment building, had a large tree with branches that were overhanging Dr. Herring’s bone-crunching office. He fought back with self-help, trimming branches, cleaning up the debris that clogged his gutters, and raking up the mess the tree made every fall. But he couldn’t keep ahead. Finally, the branches damaged his building, and the debris created an ice dam on his roof that flooded the place.

pain-neck140211The absentee owners and hired managers at the apartment house next refused his entreaties to care for the tree. So he sued, claiming that they had a duty to manage the tree so it didn’t mess up his place. The trial court threw the suit out, telling the good doctor that he could trim the parts of the tree that were overhanging his place, but that was his only remedy.

“Wait,” you say, “that’s the Massachusetts Rule.” Right you are. But, as the North Dakota Supreme Court decided, there are other rules out there as well, including some that it thinks are a whole lot better than the doddering relic from Michalson v. Nutting. It reversed the trial court, holding that a tree owner does indeed have a duty to care for his or her trees so as to avoid damage to others.

In its thoughtful opinion, the Court wrote perhaps as fine a roundup on tree encroachment rules as has yet been written.

Herring v. Lisbon Partners Credit Fund, Ltd., 2012 N.D. 226, 823 N.W.2d 493 (Sup.Ct. N.D., 2012). Dr. Herring owned a commercial building in Lisbon housing his chiropractic practice. The apartment building next door is owned by Lisbon Partners and managed by Five Star. Branches from a large tree located on Lisbon Partners’ property overhang Herring’s property and brush against his building. For many years, Dr. Herring trimmed back the branches and cleaned out the leaves, twigs, and debris that would fall from the branches and clog his downspouts and gutters. He claimed that the encroaching branches caused water and ice dams to build up on his roof, and eventually caused water damage to the roof, walls, and fascia of his building. Herring contends that, after he had the damages repaired, he requested compensation from Lisbon Partners and Five Star but they denied responsibility for the damages.

Encroaching tree roots and branches can sometimes be unsightly

Encroaching tree roots and branches can sometimes be unsightly

Dr. Herring sued Lisbon Partners and Five Star for the cost to repair his building, claiming the companies had committed civil trespass and negligence, and maintained a nuisance by breaching their duty to maintain and trim the tree so that it did not cause damage to his property. The district court granted Lisbon Partners and Five Star’s motion for summary judgment, dismissing Herring’s claims. The court held Lisbon Partners and Five Star had no duty to trim or maintain the tree, and Herring’s remedy was limited to self-help. He could trim the branches back to the property line at his own expense, but that was it.

Held: The trial court’s dismissal was reversed, and Dr. Herring was given his day in court.

The North Dakota Supreme Court began its analysis by observing that the Massachusetts Rule was the original common law on tree law in the United States, holding that a landowner has no liability to neighboring landowners for damages caused by encroachment of branches or roots from his trees, and the neighboring landowner’s sole remedy is self-help: the injured neighbor may cut the intruding branches or roots back to the property line at his own expense. The basis for the Massachusetts Rule is that it is “wiser to leave the individual to protect himself, if harm results to him from the exercise of another’s right to use his own property in a reasonable way, than to subject that other to the annoyance and burden of lawsuits, which would likely be both countless and, in many instances, purely vexatious.

The Hawaii Rule, on the other hand, rejected the Massachusetts approach as overly simplistic. Instead, it held that the owner of a tree may be liable when encroaching branches or roots cause harm, or create imminent danger of causing harm, beyond merely casting shade or dropping leaves, flowers, or fruit. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.

The Restatement Rule, based upon the Restatement (Second) of Torts §§ 839-840 (1979), distinguishes between natural and artificial conditions on the land. Under the Restatement Rule, if the tree was planted or artificially maintained it may be considered a nuisance and its owner may be liable for resulting damages, but there is no liability for a naturally growing tree that encroaches upon neighboring property.

The Virginia Rule, adopted in 1939, makes a distinction between noxious and non-noxious trees. Under the old Virginia rule, a tree encroaching upon neighboring property will be considered a nuisance, and an action for damages can be brought, if it is a “noxious” tree and has inflicted a “sensible injury.”

The district court concluded that under N.D.C.C. § 47-01-12, Herring had a “right” to do as he wished with the overhanging branches and underlying roots of the tree, and therefore this portion of the tree was “just as much the responsibility of the adjacent landowner as it is the owner of the trunk.” In effect, the district court concluded that because Herring had the “right” to the branches above his property, he therefore had the responsibility to maintain them as well.

The state Supreme Court complained that the district court had essentially nullified N.D.C.C. § 47-01-17. That statute expressly provides that when the trunk of the tree is wholly upon the land of one owner, the tree “belong[s] exclusively to that owner.” The district court’s holding that Herring in effect owned the branches above his property was thus contrary to statute. Statutes must be construed as a whole and harmonized to give meaning to related statutes, and are to be interpreted in context to give meaning and effect to every word, phrase, and sentence. The interpretation adopted by the district court did not give meaning and effect to that portion of N.D.C.C. § 47-01-17 which provides that the owner of the tree’s trunk “exclusively” owns the entire tree.

Contrary to the district court’s conclusion that the Massachusetts Rule was more consistent with North Dakota statutory law, the Supreme Court held that the Hawaii Rule more fully gives effect to both statutory provisions. The Hawaii Rule is expressly based upon the concept, embodied in N.D.C.C. § 47-01-17, that the owner of the trunk of a tree which is encroaching on neighboring property owns the entire tree, including the intruding branches and roots. And because the owner of the tree’s trunk is the owner of the tree, the Supreme Court thought he or she should bear some responsibility for the rest of the tree. The Court said “we think he is duty bound to take action to remove the danger before damage or further damage occurs.”

The Supreme Court also observed that “the Hawaii Rule is the most well-reasoned, fair, and practical of the four generally recognized rules. We first note that the Restatement and Virginia rules have each been adopted in very few jurisdictions, and have been widely criticized as being based upon arbitrary distinctions which are unworkable, vague, and difficult to apply … In fact, the Supreme Court of Virginia has … abandoned the [old] Virginia rule in favor of the Hawaii Rule [in] Fancher …”

The Court said the Massachusetts Rule fostered a "'law of the jungle' mentality" among landowners.

The Court said the Massachusetts Rule fostered a “‘law of the jungle’ mentality” among landowners.

The Court also complained that the Massachusetts Rule has been widely criticized as being “unsuited to modern urban and suburban life.” The Massachusetts Rule fosters a “law of the jungle” mentality, the Court said, because self-help effectively replaces the law of orderly judicial process as the only way to adjust the rights and responsibilities of disputing neighbors. The Court observed that while self-help may be sufficient “when a few branches have crossed the property line and can be easily pruned by the neighboring landowner himself, it is a woefully inadequate remedy when overhanging branches break windows, damage siding, or knock holes in a roof, or when invading roots clog sewer systems, damage retaining walls, or crumble a home’s foundation.”

Accordingly, the North Dakota Supreme Court held that “encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.” The rule does not prevent a landowner, at his or her own expense, from cutting away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.

Case of the Day – Wednesday, February 12, 2014

THAT EQUITY MAY PREVAIL

A barricuda in one of its habitats - the other is a courtroom.

A barracuda in one of its habitats – the other is a courtroom.

Sometimes you really wish you knew the back story on a lawsuit.  To merely read the recitation of facts and the application of the law in some cases leaves an explanation for a motive lacking.

Today’s case is a perfect example.  The Mannings lived in a housing development.  Behind their well-manicured lawn was some scrubby, undeveloped woods.  Their neighbors had a back lawn that was about 30 feet deeper, and the Manning family mistakenly thought that their lawn must be that long, too.  So they cleaned and chopped weeds and took down some saplings, and installed a park bench and baseball batting cage.

 But it turned out that the land wasn’t theirs.  Presently, they got a letter from some limited liability company’s lawyer, telling them to cease and desist, govern their actions accordingly, and all of that legal mumbo-jumbo.  Chastened, the Mannings withdrew to their own boundary.

 End of story?  Nope.  The owner of the land, CUDA Associates, LLC — “CUDA” undoubtedly being short for “barracuda” — sued the Mannings for the grievous harm they obviously had done to its rather decrepit piece of real estate.  It sued for trespass, intentional and wrongful cutting of timber in violation of Connecticut law, and “unjust enrichment.”

OK, fo technically, the Mannings did commit a trespass ... but they left the land in better shape than they found it.

OK, so technically, the Mannings did commit a trespass … but they left the land in better shape than they found it.

You have to wonder why CUDA would have sued.  After all, there was no damage to the CUDA land (in fact, the Court suggested the Mannings had improved it), the trespass was an honest mistake, and the trespassers stopped as soon as their attention was called to the error.  We’ll never know.  But the trial court pretty clearly agreed with us that the whole thing was a tempest in a teapot: the judge dryly observed that “[t]he equities in this claim clearly rest with the defendants, and as such must be balanced with the nominal losses that the plaintiff has suffered.” In other words, the Mannings’ trespass was pretty minor and done honestly enough, and CUDA didn’t really suffer for it.  It seemed like a waste of the court’s time.

The court recognized that Connecticut law dictated that damages had to be awarded, even where the trespass was trifling.  So it awarded CUDA $1,500, probably less than its lawyer’s fee.  So there is some justice, even if it’s only found in lining a lawyer’s pocket.

CUDA Associates, LLC v. Manning, Not Reported in A.2d, 2008 WL 249974 (Conn.Super., Jan. 8, 2008).   CUDA Associates owned 3,000 square feet from which the Mannings cleared trees, removed underbrush and in effect extended the back boundary of their property line by approximately 30 feet along the entire easterly line of their backyard.  All of the surrounding land owned by CUDA or its successor was undeveloped. The Mannings’ house was located in a developed residential area with housing on both sides of White Avenue, and abutting the plaintiff’s property to the east and south. The Mannings installed a park bench, a baseball practice apparatus and the cutting of certain trees and undergrowth, an intrusion into the CUDA’s property that ended when CUDA wrote to them.  The Mannings were operating under a mistaken belief that the property that they had encroached upon was theirs and roughly matched the back property line of their neighbor. This mistaken belief led them to do certain clearing and cutting of trees and underbrush and to use the property for their own benefit.  CUDA sued for trespass, removal of timber in violation of statute and unjust enrichment.

An accidental trespass is still a trespass.

An accidental trespass is still a trespass.

Held: The Court found that the Mannings commited a trespass upon a portion of CUDA’s property for their own use and benefit, but any loss of use for CUDA was not measurable. The trespass was negligent and not intentional and, therefore, only minimal damages were awarded.  As for the cutting of trees, timber or shrubbery in violation of Connecticut General Statute §52-560, while the Mannings did cut trees, CUDA failed to establish the quantity or the value of any of the trees that had been removed. In fact, the Court said, the cutting may have actually improved the overall site appearance for CUDA’s benefit. Nothing more than reasonable and ascertainable value under the statute can be awarded.

As for unjust enrichment, the Court held that the non-permanent intrusion by the Mannings was unintentional and any benefit derived by them was coincidental to the use of their own backyard property, was of a de minimis nature.  The Court said that equities in this claim clearly rested with the Mannings, and had to be balanced with the nominal losses that the CUDA suffered.  The Court awarded CUDA $400 for the common-law trespass, $600 for the timber statute violation, and $599 for unjust enrichment.

Case of the Day – Thursday, February 13, 2014

DOING IT ON THE CHEAP

No, not this Quimby  – Leslie Quimby ...

No, not this Quimby – Leslie Quimby …

 

Today, we’re looking at a real cheapskate, and how his tightfistedness nearly killed a teenage girl.  Penny-pincher Sulcer had a tenant named Quimby.   No, not the Mayor of Springfield, but instead a long-haul trucker.  The landlord ignored his tenant’s pleas to trim a dangerous tree, until the tree got in the way of the landlord’s plans.  Then he told his tenant — a tree-trimming tyro — to trim it for him, for free, of course. 

For some unfathomable reason, Quimby did, dropping a limb in a freak accident that struck his high school senior daughter Leslie’s chest, requiring emergency open heart surgery to fix.   She survived (even marrying lucky young Mr. Allen during the pendency of the litigation).  Sulcer argued that he wasn’t at fault, because Quimby was really just an independent contractor, and it was Leslie’s and Quimby’s fault that she stood too close to the tree while Quimby was cutting limbs. 

tightwad-1-140213The trial court bought it, but the Court of Appeals — offended, we hope, that the landlord was getting off scot-free— looked at the issue differently.  The question, it properly held, was what Sulcer owed Leslie as a tenant, not as a volunteer worker for her volunteer worker tenant Dad.  And clearly, he had breached his duty to keep young Leslie safe from the perils of an unskilled tree-cutter.  Of course, the Court couldn’t help but notice the report of Leslie’s arborist: he said a professional trimming job would have cost  ol’ tightwad Sulcer $300 to $500.  The Court didn’t say it, but we think it was a bit disgusted that the landlord was willing to jeopardize the life and health of his tenants for $500.00.

 Allen v. Sulcer, 255 S.W.3d 51 (Tenn.Ct.App., 2007).  A landlord told his tenant, Mr. Quimby, to prune large limbs from a tree on the rental property with a chainsaw. The tenant’s 18-year old daughter, Leslie Quimby (now Leslie Allen), was assisting by clearing the limb debris, and suffered an aortic valve rupture and other internal injuries that required emergency open-heart surgery, resulting from the impact of a tree limb that had fallen and ricocheted off the ground, striking her in the chest and chin. At the time of the incident, her father was in an ash tree (about 15 to 20 feet off the ground) in front of his rental house, pruning overgrown limbs with a chainsaw. Ms. Allen was standing in front of the house and assisting her father by clearing the limb debris.

The tenant had previously requested more than once that William E. Sulcer, his landlord who lived 100 yards from the rental house, have the tree pruned.   Quimby had voiced his concern that the overgrown limbs, hanging over the house and driveway, would hurt someone. Even though Sulcer had used professional tree services on his farm in the past, he asked Quimby agreed to perform the work because he was tired of the limbs hanging over the house and driveway. Sulcer did not offer to compensate Quimby for his services. Quimby had no training or expertise in pruning or felling trees, or with operating chainsaws, even though he owned one and used it on the limb in question.   Sulcer knew Quimby didn’t have experience pruning trees but relied on the fact that Quimby had cut limbs on the property before with no problems. Even so, Quimby had never before trimmed large limbs or climbed into a tree to do so. Other than selecting the limbs, Sulcer provided no other instruction, provided no equipment, and was not present at the time of the injury.

Ms. Allen sued Sulcer, alleging he was negligent as landlord and as the principal of the negligent agent Quimby.  She asserted that Sulcer was negligent in instructing her father to undertake such a task, in failing to supervise his activities, and in failing to maintain the leased premises in a safe condition. She argued the negligence of her father should be imputed to Mr. Sulcer under the principles of vicarious liability. Sulcer responded that if there were any relationship between Quimby and himself, it was that of employer and independent contractor.  He contended he did not create the alleged dangerous condition and that, if it existed, he had no duty to Ms. Allen because the dangerous condition was known (or should have been known) to her. He argued that, as an employer of an independent contractor, he was not liable for the negligent acts of the contractor, or for injury to the contractor’s helpers. 

The trial court found Quimby to be an independent contractor, and it was a well settled principle of law that employers of an independent contractor owe no duty to the employees or “helper” of the independent contractor engaged in an inherently dangerous activity.  The trial court granted judgment for the defendant, and Ms. Allen appealed.

Held:   The summary judgment for Sulcer was reversed.  The Court observed that a successful negligence claim requires the plaintiff to establish a duty of care owed by the defendant to the plaintiff; conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty; an injury or loss; causation in fact; and proximate cause.  The Court said that although the parties agreed that Quimby acted as an independent contractor on behalf of Sulcer, the facts of the case more directly implicated landlord/tenant law. The trial court had overlooked the fact that Ms. Allen was a tenant of Sulcer and failed to account for the possibility of Sulcer’s negligence as a landlord. Thus, the Court held, the dispositive question was whether Ms. Allen encountered a harm whose foreseeability gave rise to a duty of reasonable care on the part of Mr. Sulcer, the landlord, to protect her from the danger of falling limbs.

This is not amateur hour ... as the penny-pinching landlord found out.

This is not amateur hour … as the penny-pinching landlord found out.

In general, landlords owe a duty of reasonable care to their tenants. When a landlord undertakes to repair or maintain some part of the premises, he owes his tenants a duty to exercise ordinary and reasonable care in seeing the repairs are properly made. In other cases, landlords were held liable for injuries to tenants where they sent unskilled employees to repair units.  Here, Sulcer knew that Quimby was unskilled in tree trimming, that he did not want to perform this work, and was afraid of heights.  Sulcer didn’t even offer to pay Quimby.  He didn’t inquire into safety precautions or any other methods Quimby might use. Sulcer argued he had no duty to Ms. Allen because the danger of falling limbs was open and obvious, and, because the danger was so open and obvious, it was not foreseeable that Quimby would allow her to collect the limbs or be anywhere near the work site. But Tennessee courts have concluded that an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability. As in any negligence action, a risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by a defendant’s conduct outweigh the burden upon the defendant to engage in alternative conduct that would prevent the harm.

Here, limbs falling from a tree are not so obvious a danger as to relieve Sulcer of his duty to hire a competent tree trimmer.  Sulcer created an unreasonable risk of harm when he asked an unskilled tenant to conduct work that is dangerous. While the force of a falling limb is predictable, its trajectory while falling and after striking the ground is not. This unpredictability makes the risk of injury from a falling limb more salient when unskilled hands attempt the task.  The alternatives available to Sulcer, the Court said, ranged from discussing pruning methods to offering assistance to hiring a professional tree trimmer, all of which, to varying degrees, would have materially lowered or eliminated the probability of such harm with very little burden to the defendant.  The Court found that Sulcer had a duty to select someone who would know how to minimize the risk of trimming such large branches.

Case of the Day – Friday, February 14, 2014

SHUT MY MOUTH!

When the Harrises moved in back about 1956, they thought their land extended back well beyond where it actually did.  They tended to their land – including the part they thought was theirs but wasn’t ­– planting flowers, mowing the lawn and finally putting in and nurturing a beautiful break of pine trees along what they thought was the property line.

The pines trees marked what everyone thought was the property boundary.

The pines trees marked what everyone thought was the property boundary.

The Harrises eventually sold the land to their granddaughter, Melissa Watts-Sanders.  She likewise believed that the land went back to the trees, and she maintained it as her own.  Finally, she installed a dog pen on the disputed property. 

Or perhaps we should we say “soon-to-be disputed property.”  Because it seems she had a new neighbor, Mindy Chambliss.  Ms. Chambliss did things right.  She hired a surveyor who, sure enough, found that the land with the dog pen on it belonged to his client.

Ms. Chambliss was not a lawyer (or much of a speller, which is a rapidly-dying art in this day and age).  However, she knew some cool-sounding legal terms – “cease and desist” being among them – so she wrote Ms. Watts-Sanders a missive demanding that she “cease and desist” with the dog pen, and claiming what she believed to be rightfully hers.  In the letter, Ms. Chambliss famously explained that her survey “does superscede [sic] the fact that the property was maintained for 49 years.”

Like these folks, Ms. Chambliss was committed to excellense ... but in property lines, not spelling ...

Like these folks, Ms. Chambliss was committed to ‘excellense’ … but in property lines, not spelling …

Maybe it was the spelling.  Whatever the reason, Ms. Watts-Sanders was not suitably cowed by the letter, so Ms. Chambliss sued.  When she did, Ms. Watts-Sanders defended by arguing that a new boundary line had been established over the years by acquiescence.  Nonsense, said Ms. Chambliss.  Pine trees did not a boundary make, and none of Ms. Watts-Sanders’ predecessors had ever expressed an intention to occupy the land.  And, Ms. Chambliss said, proudly showing her “cease and desist” letter to the Court, she had told Ms. Watts-Sanders about the surveyor’s findings.

‘Say what?’ the court asked, looking at the letter.  ‘You mean Ms. Watts-Sander’s people had maintained the property for 49 years?’  Well, the Court said, that was something.  In fact, given that the Watts-Sanders people maintained and used the land for half a decade without any complaint from Chambliss’s predecessors, the case was pretty compelling that someone had acquiesced to the pine tree boundary.

The lesson here?  Clients, let your lawyers be your mouthpiece.  Ms. Chambliss’s smug “explanation” of what trumped what turned out to be an admission against her own interests, and ended up being a pretty costly law lecture.

There's a reason lawyers are called 'mouthpieces' ...

There’s a reason lawyers are called ‘mouthpieces’ …

Chambliss v. Watts-Sanders, Not Reported in S.W.3d, 2008-AR-0131.003, 2008 WL 241288 (Ark.App., Jan. 30, 2008).   Ms. Chambliss and Ms. Watts-Sanders share a common backyard boundary. The dispute began after Ms. Chambliss ordered a survey which showed that Ms. Watts-Sanders had built a dog pen on Ms. Chambliss’s land. Ms. Watts-Sanders claimed property up to a row of pine trees planted on the disputed tract, but those trees were 23 feet east of the surveyed boundary line.   Ms. Chambliss demanded that Ms. Watts-Sanders remove the dog pen, claiming to Ms. Watts-Sanders in writing that her survey superseded the fact that Watts-Sanders maintained the property for 49 years. 

The property formerly belonged to Watts-Sanders’ grandparents, Vivian and Loren Harris. The Harrises bought the property in 1956 and built a house there.  They later planted the pine trees and developed the flower bed toward the rear of the property. Mr. Harris cut the grass between the flower bed and the pine trees and that he treated the pine trees as the boundary between the two properties. No one except the Harrises used the disputed area since 1956. Ms. Watts-Sanders received the deed to the property from her grandmother in 2004.  She noted that the pine trees were planted as close to in a line as possible and that the trees marked the boundary line between the properties.

Ms. Chambliss purchased her property in 2003, and thought her land went to the concrete edging of the flowerbed. She was unaware that Ms. Watts-Sanders claimed possession of the disputed property until she placed the dog pen.  Ms. Chambliss claimed that she had maintained the disputed property since purchasing it in 2003 and that she never saw Watts-Sanders on the property.   The trial court found that Watts-Sanders had established the row of trees as the boundary by acquiescence and quieted title to the disputed property in her name. It also awarded her $250 in damages for the cost of rebuilding the dog pen. Ms. Chambliss appealed.

Held: The decision in favor of Ms. Watts-Sanders was upheld.  Ms. Chambliss argued that the tree line was not a physical and permanent boundary, there was no evidence that Watts-Sanders’ predecessors occupied the disputed property, and there was no proof that any of Watts-Sanders’s predecessors-in-interest took any actions to indicate that the disputed land belonged to them. 

The Court noted that the mere existence of a fence or some other line, without evidence of mutual recognition, cannot sustain a finding of boundary by acquiescence.  However, silent acquiescence is sufficient, and the boundary line usually can inferred from the parties’ conduct over so many years.  A party trying to prove that a boundary line has been established by acquiescence need only show that both parties at least tacitly accepted the non-surveyed line as the true boundary line.

The takeaway for today?  Remember this ...

The takeaway for today is this …

Here, the Court said, the law merely required the boundary line to be some monument tacitly accepted as visible evidence of a dividing line, and the row of pine trees sufficed.  The evidence was sufficient to show that Ms. Watts-Sanders and the Harrises occupied the disputed area, including evidence that Mr. Harris planted the pine trees and Ms. Chambliss’s own ill-advised admission that Ms. Watts-Sanders and the Harrises had maintained the disputed tract for forty-nine years.

Finally, evidence showed that only Ms. Watts-Sanders and her predecessors used the disputed tract. A boundary by acquiescence exists in cases where one party has used land belonging to another and the true landowner did nothing to assert his interest.  Here, Ms. Watts-Sanders’ family’s use of the property remained undisturbed for almost 50 years. No one objected when her mother had one of the trees removed. Acquiescence can result from the silent conduct of the parties, and the fact that none of appellant’s predecessors used the property east of the tree line could be seen as tacit acceptance of the tree line as the boundary between the two properties.

Case of the Day – Monday, February 17, 2014

A NICE DAY FOR A FROLIC

apple_tree140217Today and tomorrow, we’re going to look at an issue that’s over 140 years old. That’s because a class of sharp-witted grade school students at Western Reserve Elementary School asked us a question the other day, 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.  Very little 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 was this: the Court observed 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.” 

Case of the Day – Tuesday, February 18, 2014

BAD BLOOD

Go, Roughriders!

Go, Roughriders!

            Yesterday, we addressed the first half of the question asked by alert sixth-graders at Western Reserve Elementary School (home of the Roughriders).  Today, we look at another decision from the days of yore to gain a better understanding of the issue they raised: if your apple tree drops its apples in the neighbors’ yard, do you have the right to go on to their land to pick them up?

Remember these guys?  They apparently had 19th century doppelgangers.

Remember these guys? They apparently had 19th century doppelgangers.

            Neil Sedaka warned us about this kind of thing, although about 120 years too late for Newkirk and Sabler, the two actors in this little drama. It’s pretty clear from reading between the lines of this antebellum case that these neighbors loathed each other.  Sabler told Newkirk to stay off his land, so Newkirk of course couldn’t resist having his guy cut across Sabler’s back 40 with a team of horses.  Not to be outdone — sort of like a 19th century version of “Spy vs. Spy” — Sabler rebuilt the fence Newkirk’s man had taken down, but he nailed it in place.  The hired hand couldn’t get the horses and wagon out of the field, so he left them on Sabler’s land and retrieved his boss.  The boss returned and started tearing down the fence when Sadler arrived.  Words flew, tempers flared, and fisticuffs ensued. 

            After Newkirk apparently won the fight and got his horses back, he sued Sadler for assault, intending to add insult to injury.  But the court threw the last punch, holding that Newkirk had no right to enter onto Sadler’s land to get property he wrongfully put there to begin with, and Sadler had every right to bean Newkirk with a club (which he had done) to keep him off. 

            Relevant to the question we considered yesterday, the court differentiated between this case and other situations — including an apple tree owner’s apples falling on a neighbor’s land.  When a fruit tree drops its bounty on the neighbor’s land, the tree’s owner cannot prevent it.  The owner continues to own the fruit, the court observed, and he or she may enter the neighbor’s land without being deemed a trespasser to collect the fallen fruit.

            Unfortunately, this much of the opinion is obiter dictum,  unnecessary to the decision, and thus is of limited value as precedent.  Nevertheless, kids, it’s the best we have.  Sometimes the answers just aren’t all that clear.

horsewagon140218            Newkirk v. Sabler, 9 Barb. 652 (Sup.Ct. N.Y. 1850).  Newkirk had sent his servant with a team and wagon across the farm of the defendant — upon which he entered by taking down the bars — to a neighbor’s house, despite the fact that Sabler had forbidden Newkirk from crossing his lands. On his return of the team to the place where it had entered, the servant found the fence bars had been refastened by boards nailed over them.  The servant couldn’t break through, so he left the team and wagon on the Sabler’s property, and returned to Newkirk’s to tell him what had happened.  Newkirk went with his servant to the fencerow, and started tearing down the fence to get his team and wagon out.  Sabler arrived on the scene and forbade Newkirk from taking down the fence, and when Newkirk continued, Sabler beat on him with a pole and a fight ensued between the parties.  Newkirk finally got the fence down removed his team, and then — to add insult to injury — sued landowner Sabler for assault.  At trial, the judge instructed the jury that although Newkirk’s team and wagon were wrongfully on Sabler’s land, it was Newkirk’s duty and right to get them off with the least possible injury to the premises, and that Sabler was not justified in using violence to prevent him from removing his team from the premises. The jury found for Newkirk.  Sabler appealed.

               Held:             Newkirk had no right to enter onto Sabler’s land to reclaim his horses, and Sabler had a right to defend his possession against Newkirk’s tearing down the fence, and to use as much force as was necessary to prevent Newkirk from entering the property.  The court held that an owner of personal property that is being detained on the land of another — if he cannot obtain peaceable possession of it — may only bring suit in court to regain his property.  Of interest, however, is the recognition in this early decision of a number of circumstances where the owner of a chattel — that is, personal property — may enter on the land of another without being found to be a trespasser.              

appletree140217                A landlord’s right to inspect the premises to ensure the tenant is not engaged in waste is one example.  Others include a sale of land with a reservation of the timber rights, or if one enters the land of another to prevent the landowner’s livestock from dying, or because the public highway is blocked and he must get around the blockage.   And the court held “If my tree be blown down and fall on the land of my neighbor, I may go on and take it away. And the same rule prevails where fruit falls on the land of another.  But if the owner of a tree cut the loppings so that they fall on another’s land, he cannot be excused for entering to take them away, on the ground of necessity, because he might have prevented it.” 

                 In this case, the court held, Newkirk’s horses and wagon were on Sabler’s lands where they had been left by Newkirk’s servant.  They were not there with Sabler’s permission.  Instead, Newkirk had been guilty of a trespass in sending his team across Sabler’s lands after he had been forbidden to do so.  And Sabler had the right to detain them before they left the premises, and it was not necessary to decide, whether the defendant detained the property rightfully or wrongfully. If Newkirk could not regain the possession of his property peaceably, his only choice was to sue.

Case of the Day – Wednesday, February 19, 2014

RECREATIONAL USE STATUTE AND NATURAL DEFECTS

It's hard to enjoy an idyllic sunset when you can't get to the lakeshore.

It’s hard to enjoy an idyllic sunset when you can’t get to the lakeshore.  Recreational use statutes make it easier.

A landowner really has no incentive to let people freely enjoy his or her land. You have a nice pond and woods, and, being as you’re a nice person, you let the birdwatchers’ society wander around looking for the white-throated needletail. Next thing you know, one of them steps into a prairie dog hole, and you’re being sued.

But public policy is strongly in favor of getting people out to enjoy nature’s bounty. For that reason, virtually all states have passed some version of a recreational use statute. These statutes generally that a landowner only has a duty not to be grossly negligent to people using his or her unimproved land without charge for recreational activities. They are intended to encourage the opening of private land – unspoiled natural areas – for free recreational use by shielding landowners from liability for the most common forms of negligence.
Today’s case raises an interesting question under the Texas recreational use statute. In this case, the City of Waco had a park that included limestone cliffs. A boy was sitting on the cliffs when a portion collapsed, causing him to fall to his death.

A user might anticipate he could fall off a cliff – but not that it would give way.

A user might anticipate he could fall off a cliff – but not that it would give way.

The City argued it couldn’t be held liable under the statute, because it did nothing to cause the defect in the cliffs. The Court of Appeals agreed with the boy’s mother, however, that it wasn’t necessary for the landowner to cause the defect, if the defect was so latent, that is, hidden, that the recreational user would not reasonably be aware of it. That one might accidentally fall off a cliff was foreseeable, the court admitted. But it wasn’t open and obvious that the cliff one was sitting on would suddenly give way.

Because the defect wasn’t obvious, all the boy’s mother had to do was advance in her pleading some allegation of gross negligence. In her complaint, she argued that the City was aware others had been hurt by falling rocks, and it had reports warning of the danger of collapsing cliffs. Those reports recommended the City post warning signs, but it didn’t do so. The court said that those allegations were good enough to make out a claim under the recreational use statute.

Kirwan v. City of Waco, 249 S.W.3d 544 (Tex.App 2008). Debra Kirwan’s son, Brad McGehee, was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the City of Waco, when the ground beneath him gave way and he fell about 60 feet to his death. Kirwan brought a wrongful death suit against the City, alleging a premises defect.

A firefighter who responded to the scene of Brad’s fall testified that an average person would “probably not” “understand that the ground could give way underneath them.” The trial court threw out the suit, holding that Kirwan had not: (1) “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or (2) “raised a genuine issue of material fact. Kirwan appealed.

Held: The suit was reinstated and sent back for trial. Kirwan challenged whether Texas Civil Practice & Remedies Code § 75.002(c)the state recreational use statute –requires that all premises defect claims be based on a condition created by the defendant, thus barring any claim based on the existence of a natural condition that the defendant happened to know about. Under the recreational use statute – intended to encourage landowners to open their property to the public for recreational purposes – a landowner’s duty to a user is no greater than that owed to a trespasser, the very limited duty to not injure anyone willfully, wantonly, or through gross negligence.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy's life.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy’s life.

The law is clear that a landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, an owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But the appeals court held that the recreational use statute permits claims based on natural conditions as long as the condition is not open and obvious, and the plaintiff furnishes evidence of the defendant’s alleged gross negligence. Here, the court said, the crumbling rocks and cracks on the cliff that gave way did not conclusively prove that the danger of the unstable cliff rock was open and obvious. Crumbling rock may alert the average person to the risk of slipping and falling, but certainly not that the ground will simply fall apart beneath him. The court ruled that unstable cliff rock is not necessarily an open and obvious condition that a person might reasonably expect to encounter.

To state a claim under the Texas recreational use statute, Kirwan had to allege sufficient facts to show that the City of Waco was grossly negligent. The pleadings need only provide a plain and concise statement of the cause of action sufficient to give the defendant fair notice of the claim involved. In her pleading, Kirwan alleged that the City was actually aware of the dangerous condition on the cliff, that other park patrons had died or been seriously injured by the condition of the cliffs, that the City received a report from its own expert warning of dangerous rock falls and advising the City to post signs warning of potentially fatal rock falls, and the City’s failure to do so, in fact, to warn or guard against this danger at all amounted to gross negligence.

The court agreed that Kirwan plainly alleged the City’s conduct amounted to gross negligence. The City’s complaint that the pleading didn’t allege that the City had created the condition was meritless: where a claim is based on hidden natural conditions, such as the structurally unstable cliff rock in this case, a plaintiff need not plead that the City was grossly negligent in creating a condition.

Case of the Day – Thursday, February 20, 2014

WHEN IS FEE SIMPLE NOT FEE SIMPLE?

Potatotruck140220When 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 – 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 do so — 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.

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.

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 Court noted that its conclusion disagreed with the United States District Court for the District of Idaho in a prior case.

Case of the Day – Friday, February 21, 2014

ANNOYING NEIGHBORS

drivethru140221            There are annoying neighbors and then there are annoying neighbors: but what to do about them?  The house next to the Rileys was owned by a landlord who rented it to some dopers.  But not just any dopers.  This wasn’t the occasional boom box blasting the Grateful Dead at 2 a.m., or even the wafting smell of medical marijuana.  Nope, the neighbors here were good capitalists, appearing to run a brisk retail operation, with traffic at all hours of the night and unsavory customers.  Imagine a McDonald’s drive-thru window, but handing out nickel bags instead of Big Macs.

The traffic was accompanied by the screeching of tires, the occasional and casual vandalism toward the Rileys’ property, cursing and shouting, and the discharge of firearms. Someone even shot the Rileys’ dog.

Shooting the Rileys dog was just plain wrong.

Shooting the Rileys dog was just plain wrong.

Now we’ll put up with a lot, but we won’t put up with that.  You shouldn’t shoot a dog.  The Rileys felt the same.  They complained in winter 1999, but nothing changed.  The police raided the place, but all they found was some personal-use marijuana.  The Rileys complained to landlord Richard Whybrew again.  The Attorney General complained to Mr. Whybrew.  Nothing happened.  Mr. Whybrew said the tenants were paying their rent, so he wasn’t going to do anything.  Apparently, he believed that money talks, and neighbors walk.

            So the Rileys sued.  The trial court threw out their claims that the landlord had maintained a nuisance and that the Rileys had suffered emotional distress.   But the Court of Appeals reversed, holding that negligent infliction of emotional distress was part and parcel of a nuisance claim — getting around a Tennessee rule that the claim had to be supported by expert medical testimony — and that the Rileys had clearly made out a claim that Whybrew was maintaining a nuisance, with enough evidence in conflict with his denials to get to trial.  As for the dope-peddling neighbors?  They moved out when they were served with the Rileys’ lawsuit.  After all, protecting your stash is what’s it all about.

          Riley v. Whybrew, 185 S.W.3d 393 (Ct.App.Tenn. 2005).   The Rileys lived in a house in a subdivision next to a house Richard Whybrew leased to the Parkers.  Problems ensued.

nuisance140221           Shortly after the Parkers moved in, the Rileys began experiencing problems with their tenant neighbors.  A high number of unknown persons would come to the Parkers’ house at all hours of the day and night, with horns honking, tires squealing and loud voices. They would drive up, engage in a brief conversation or transaction with a resident at the Parkers’ home, and leave after a few minutes. The Rileys overheard many conversations about the sale of drugs, as well as frequent profane and abusive language. On several occasions, firearms were discharged at the Parkers’ residence at various times during day and night. Some activities were directed toward the Rileys: chemicals were put in their gas tanks, a laser pointer was aimed at Timothy Riley, personal property was stolen from the Rileys’ home, and when the Rileys were seen by the Parkers or their visitors, they were taunted, cursed at or stared at menacingly.  The Rileys’ dog was even shot by a visitor to the Parkers’ home.

A month later, the police conducted a raid on the Parkers’ residence, and Marina Parker was arrested for possession of marijuana. Despite the arrest, the disturbing activities at the Parkers’ home continued.  As a result, the Rileys employed an attorney to notify Whybrew of the problems. In February 2000, the attorney sent Whybrew a letter informing him that his rental property was “being used for illegal activities, in violation of the housing and zoning codes, and probably in violation of the terms of [the] lease.”  Later that month, Whybrew received a letter from the director of the Narcotics Prosecution Unit of the Office of the Shelby County Attorney General about the drug trafficking.  The letter noted that the amount of controlled substance found at the Parkers’ home was not enough to compel Whybrew to evict the Parkers, but stated that Carter wanted Whybrew to be aware of the situation.   A year later, the Rileys again complained to Whybrew, who said the Parkers had a lease and paid their rent on time, and he did not plan to take action against them.

The Rileys sued Whybrew, the Parkers, and ten “John or Jane Doe” defendants, seeking damages for infliction of emotional distress and asking for abatement of the nuisance.  Whybrew asserted that the other defendants were the sole cause of any injuries suffered by the Rileys. Whybrew maintained that the Rileys failed to state a claim upon which relief could be granted and asked the trial court to dismiss the complaint.  The trial court granted summary judgment to Whybrew.

Held:   The case was reinstated, and the Rileys were entitled to a trial.  The Court of Appeals found that a material question of fact existed as to whether Whybrew negligently allowed the tenants’ illegal behavior to continue, and that issue precluded summary judgment against the Rileys on their nuisance claim.  The Court agreed that even if Whybrew had had knowledge of his tenants’ illegal activities – including drug use, discharging firearms and harassment – his failure to stop the Parkers’ activities could only be characterized as negligence.  Thus, as a matter of law, it could not constitute the intentional infliction of emotional distress.

The Rileys could have used this sign ...

The Rileys could have used this sign …

However, the claim of negligent infliction of emotional distress was related to the claim of negligence for landlord’s failure to abate the nuisance caused by the Parkers’ illegal activities, and as such, the Rileys’ claim for damages for emotional distress was not a stand-alone claim, and could be heard even absent expert medical testimony as to their damages.  Most importantly, the Court ruled, while Whybrew argued that there was no breach of any duty to the Rileys because there was no proof that he was aware of the Parkers’ illegal activities until February 2000 (and the Parkers moved from the residence after being served with this lawsuit two months later), it disagreed and held that the Rileys had established a genuine issue of material fact on the claims of maintaining a nuisance and negligent infliction of emotional distress, sufficient to withstand a motion for summary judgment.

The case went back to trial.

Case of the Day – Monday, February 24, 2014

A NUISANCE OAK IN LONE PINE

A lone pine ... but not in Lone Pine, California.

A lone pine … but not in Lone Pine, California.

Alert reader Sylvan Glade of Lone Pine, California, wrote us over the weekend with a very good question.  His inquiry is deceptively simple: “I have a 50 year old pine tree and it is now overhanging on the neighbor’s property,” Sylvan said.  “He wants it trimmed back.  I have refused. Can he legally trim my tree back?”

“Well, sure he can!” the rest of you readers say.  After all, you’re fairly expert at the Massachusetts Rule.  Normally we would agree.  But this is California we’re talking about, so nothing’s simple.

We’ll answer Sylvan’s question over the next three days, looking at how common-law notions of self-help enshrined in Michalson v. Nutting, the grand-daddy of encroachment cases that gave use the Massachusetts Rule, are applied in California.

In today’s case, Bonde v. Bishop, Mr. Bishop had a big old white oak tree he loved as much as our reader is attached to his pine.  But the oak was overhanging his neighbor’s place, and his neighbor wanted it trimmed back.  Sound familiar?  But Mr. Bishop’s oak had some problems.  It shed branches like the Team USA speed skating team shucks uniforms.  It had already taken out Mr Bonde’s fence, his garage and (very nearly) his head.   Cleaning up after the tree was a daily chore, and the old tree was so dangerous that the Bondes wouldn’t leave their baby on the patio (probably generally a good idea, anyway).

The Bondes asked Mr. Bishop for permission to trim the tree, but he refused and threatened to sue if they so much as touched a single bough.  So they sued Mr. Bishop first, asking the Court to declare the tree a nuisance and force him to remove it.

The Court agreed.  California does indeed follow the Massachusetts Rule, which meant that the Bondes had the right to trim the tree’s branches overhanging their property.  But here, the problem went beyond that.  Mr. Bishop’s white oak was a nuisance under California law, the Court held, because of the pervasive damage it caused.  The Court, perhaps reacting to the extent of the mess as well as Mr. Bishop’s intransigence, ruled that a tree owner is liable for damage — even insignificant damage — is caused to his neighbor.

So it would appear that our reader’s neighbor would have the right to trim the tree back to the property line.  In fact, if the 50-year old pine is a persistent branch-shedder, it might be a nuisance, and our reader’s refusal to let the neighbor trim it could leave him in Mr. Bishop’s position: having to remove the offending branches himself.

But — and this is California, so there’s always an “on the other hand” — as we will see tomorrow, there are limits on what the neighbor can do, even on his own property.

The Bondes could no longer park their kid on the back patio, out of fear that a falling branch would bean him.  The infant was not amused ...

The Bondes could no longer park their kid on the back patio, out of fear that a falling branch would bean him. The infant was not amused …

Bonde v. Bishop, 112 Cal.App.2d 1, 245 P.2d 617 (Ct.App. Div. 1, 1952).   Some of the branches of Bishop’s white oak tree were overhanging Bonde’s property by 25 feet, about 40 feet off the ground.  Early one September morning, a large limb broke loose from the tree, smashed through Bonde’s garage and destroyed a section of fence.  Bishop said it was not his responsibility, and Bonde’s insurance paid for repair. The tree continually dropped smaller branches on Bonde’s roof, driveway and patio. One small branch almost hit Bondes while he was standing in the middle of his driveway.  During the rainy season it became a two-hour job every Sunday to clear tree debris from the gutters and the drainspouts.  The Bondes were afraid of the overhanging limbs, and stopped leaving their baby out in the patio.

The debris required the Bondes to sweep the patio and driveway daily and rake the lawn before mowing.  They put screens on the gutters so they would not be required to clean them. When Mrs. Bonde told Mr. Bishop that the Bondes desired the tree cut back to their line, he not only refused but warned her that if they had it cut back and damaged the tree in any way, he would sue them.  Nevertheless, after the limb fell Bishop had the foliage thinned out.  Finally, Bonde sued Bishop, asking the trial court to declare that Bishop’s tree was a nuisance.

The court agreed, and ordered Bishop to abate the nuisance and awarded damages.

Held:          The Court agreed the tree was a nuisance, and ordered Bishop to abate the nuisance.  The Court explained the rule in California generally is that to the extent that limbs or roots of a tree extend upon adjoining landowner’s property, the adjoining owner may remove them, but only to the property boundary line.  Nevertheless, the remedy isn’t exclusive.  An owner of a tree, the branches of which overhang adjoining property, is liable for damages caused by overhanging branches.  The Court said that even insignificant damage is enough for the statute — might this include falling leaves in the fall, one wonders — because the significance of the damages goes to the amount the plaintiff can recover, not to whether the plaintiff has a case on which to sue to begin with.

Mr. Bishop's white oak dropped branches with regularity.

Mr. Bishop’s white oak dropped branches with regularity.

But, the Court said, absent the tree being a nuisance, no landowner has a cause of action from the mere fact that branches overhang his premises.  Instead, the adjoining landowner’s right to cut off the overhanging branches is a sufficient remedy, indeed, the only remedy.  In order to obtain a court owner that the tree’s owner do something, an adjoining landowner must show that the tree is a nuisance under the nuisance statutes.

The Court observed sadly that “apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do.”

<span style=”color:#000000;Case of the Day – Tuesday, February 25, 2014

LIMITS OF SELF-HELP

             Yesterday, we tackled a question sent to us by our California correspondent, Sylvan Glade of Lone Pine.  His neighbor has demanded that he trim back his 50-year old pine tree, the branches of which hang over the neighbor’s place, and he wondered whether the neighbor might be able to start chopping himself.

            We determined that California generally recognizes the Massachusetts Rule, which permits a neighbor to use “self-help,” trimming the branches back to the property line.   Of course, California seems also to permit use of the private nuisance laws — something that seems like the Hawaii Rule or Virginia Rule — to let a neighbor force someone like Sylvan to remove the tree himself if it is a nuisance.

Chainsawb&w140225            But Sylvan was focused on whether his neighbor could fire up his chainsaw.  While yesterday’s case said perhaps he can, today’s case should be a caution to him.

            Mr. Patel was unhappy that the roots from Mr. Booska’s pine tree had heaved some of Mr. Patel’s sidewalk.  He excavated along the edge of his yard down to three feet, severing the roots of the pine tree that had encroached under his sidewalk.  The root cutting so weakened the tree that it started dying and was in danger of falling.  Mr. Booska had to take the tree down, and he promptly sued.

            The lower courts said that Patel had an absolute right to cut the roots on his property, citing the holding in yesterday’s case of Bonde v. Bishop.  Not so, said the appeals court.  Instead, Mr. Patel had an obligation to cut the roots in a reasonable manner that would achieve his aims — to stop sidewalk heaving — without undue harm to the tree.  The Court held that “no person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.”

            Unfortunately, this isn’t the final answer.  The Booska court was swayed by testimony that Mr. Patel could have protected his sidewalks with a much less aggressive method.  We don’t yet know what the result would be if the only means of protecting Mr. Patel’s sidewalk would have required root cutting that would necessarily be fatal.

            In the situation Sylvan presented to us, he didn’t report why his neighbor wanted the pine tree trimmed back.   In discussions with his local lawyer, Sylvan will have to consider whether the tree could be found to be a nuisance (as in yesterday’s case), a finding that Bonde suggests can be easily made in Cailfornia.  Even if it is not a nuisance, Sylvan’s neighbor can probably start hacking away on his side of the property line, but the hacking has to be done in a way that weighs the neighbor’s legitimate aims — whatever they are — against the health and safety of the tree.

            Oh, the complexity!  And to make it worse, tomorrow we’ll look at a Kafkaesque result where a neighbor’s right to cut back a tree can’t be exercised without approval of the property owner, resulting in an old-fashioned California SLAPP-down.

Fool            Booska v. Patel, 24 Cal.App.4th 1786, 30 Cal.Rptr.2d 241 (Ct.App. Div.1, 1994).  Attorney Booska, representing himself in this action, sued his neighbor Mr. Patel.   The roots of a 40-year-old Monterey pine tree owned by Mr. Booska extended into Mr. Patel’s yard.  Mr. Patel hired a contractor to excavate along the length of his yard and sever the roots of the tree down to a level of about 3 feet.   Mr. Booska complained that Mr. Patel’s actions were negligently performed, and the tree became unsafe, a nuisance, unable to support life, and had to be cut down at Mr. Booska’s expense.   The complaint alleged causes of action for negligence, destruction of timber and nuisance.  The trial court granted summary judgment for Mr. Patel, holding that under Bonde v. Bishop, Mr. Patel had an absolute right to sever the roots without regard to the effect on Mr. Booska. Mr. Booska appealed.

            Held: The Court of Appeals reversed.  It held that adjoining landowners do not have absolute privilege to sever encroaching tree roots without regard to reasonableness of their action or consequences to neighbors.  Instead, neighbors act reasonably, and failure to do so could be basis for recovery of damages.   The Court distinguished the rulings in Bonde v. Bishop and Grandona v. Lovdal, noting that neither of those cases discussed the limits on what an adjoining property owner could do.  The Court observes that “[i]n the instant case, Patel has not addressed the issue of negligence in his summary judgment motion but contends that he has an unlimited right to do anything he desires on his property regardless of the consequences to others.   No authority so holds. ‘No person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.’”

The Patels and Booskas apparently hadn't gotten this word ...

The Patels and Booskas apparently hadn’t gotten this word …

            The appeals court was apparently disturbed that these neighbors hadn’t found the time or inclination to be neighborly about the dispute.  It cites language from Bonde v. Bishop:  “‘Apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do’.” 

            The Court then pointedly said, “It seems, in the instant case, that neither party has considered what would be the neighborly thing to do to resolve this problem.   While we express no opinion on the appropriate outcome of this case, we find that there are disputed factual issues to be resolved.” 

            The Court reversed the decision, and sent the case back to the trial court to resolve the issue of negligence.

 

Case of the Day – Wednesday, February 26, 2014

SOMEBODY HERE OWES ME MONEY

Today we consider another very interesting problem, this one submitted by alert reader Tracy of Pinebark, New York.   Tracy reports that “our neighbor’s old dead tree came down across our parking area, totaling both our cars.  Their insurance company denied the claim saying no one notified them and that it was a live tree.  My landlady’s insurance company denied the claim saying it’s not her tree, she’s not responsible.  She knew about the problem trees on their property and didn’t notify them. I need to get some sound legal advice and the NY state statutes to show first that the neighbor should have done something and that my landlady should have notified them that they should do something.  Help!!  Thanks so much.”

Now this guy played a New York lawyer on TV - but Tracy needs to get one who, while not so photogenic, has a real New York license hanging on the wall.

Now this guy played a New York lawyer on TV – but Tracy needs to get one who, while not so photogenic, has a real New York license hanging on the wall.

First, our obligatory disclaimer, Tracy.  We’re not New York lawyers, and for that matter, we don’t even play them on TV For sound New York legal advice, you should consult a local attorney.  But right now, get out your yellow pad and take down a few concepts to pass on to your solicitor.

There are two problems to contemplate here.  First, what responsibility do the neighbors have?  And second, what liability does your landlady have?

First, the neighbors:  You reported that in the past year, a branch from the tree crushed your gazebo tent and another took out part of your landlady’s shed.  You also said your landlady’s insurance company adjuster said it wasn’t her responsibility because the neighbors’ tree was dead.  You told us that you agree with the dead tree analysis, because you had an arborist inspect the tree and come to the same conclusion.  In fact, you reported, the neighbors have had work done on the tree before, so they had certainly had constructive notice of its precarious condition, you report.   But, you report, the neighbors’ insurance company asserts the tree was alive, so the neighbors aren’t liable.  But you think the insurers may be dissembling.

An insurance adjuster lie?  Horrors!

An insurance adjuster lie? Horrors!

We are shocked, shocked we say, by the suggestion that insurance companies would prevaricate!  Let’s consider New York law with respect to the neighbors.  In Ivancic v. Olmstead, the Ivancic boy was hurt when a branch fell from the Olmsteads’ tree.  The Court held that a property owner has no duty to consistently and constantly check all trees for nonvisible decay.   Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.  If visible evidence of decay is present, the failure to inspect won’t be a defense.

We don’t think you’re quite correct on your mention of “constructive notice.”  “Constructive notice” means the neighbors reasonably should have known.  It’s much like if your sitting in your windowless cube at the office, and you see 10 co-workers get off the elevator, shaking water off umbrellas and removing water-spotted raincoats.  You don’t have actual notice that it’s raining, but any reasonable person should be aware its probably raining just based on what you’ve observed.  That’s constructive notice.

She's walking down the hall carrying a wet umbrella.  Might it be raining outside?

She’s walking down the hall carrying a wet umbrella. Might it be raining outside?

Your neighbors, on the other hand, probably had actual notice, which you would have if you wandered into the corner office and saw the rain falling outside the window.  Because the neighbors’ tree experts had removed one side of a “y” prior to the tree falling, they undoubtedly saw the decay and heard the arborists’ report.  They didn’t have to know that the tree has to be dead — just decaying in a manner so as to create a foreseeable risk.

If we were cynical, we’d suggest the neighbors’ insurance company is “gaming” you.  Perhaps the adjusters figure that if it denies every claim presented, a few of the claimants – say four or so – will give up.  Six will press on.  By denying everything initially, the insurance company has cut its exposure from 10 claims to, say, six claims.  No claims examiner gets promoted for paying claims, we might suggest.  If we were cynics.  Which we’re not.

Your local lawyer might want to collect a good, written report with photos from your certified arborist, add to it observations that the neighbors were on notice of the tree’s condition, and write to the neighbors’ insurance company.  It would be good not to feed your lawyer before he or she contacts the carrier, so he or she is especially grumpy.  If that doesn’t work, your avenue for relief is going to court.  We would strongly urge you to use legal counsel rather than trying to represent yourself in small claims court.  It’s not that we get a commission from referring you to counsel.  If we did, we’d send you to our Uncle Fred (who’s a pretty good mouthpiece).   But you already know the value of hiring people who know what they’re doing.  You shouldn’t stop now.

You also asked about going after your landlady for not telling the neighbors they had a problem.  That’s a fascinating question, one we’ll take up tomorrow.

Ivancic v. Olmstead, 66 N.Y.2d 349, 488 N.E.2d 72 (1985).  Ivancic was working on his truck in the driveway of his parents’ home in Fultonville.   Since 1970, Olmstead had owned and lived next door.   A large maple tree stood near the border of the two properties, and its branches extended over the Ivancic land.   During a heavy windstorm, an overhanging limb from the tree fell and struck Ivancic, causing him serious injuries.   He sued, maintaining that the branches hanging over his parents’ property constituted trespass, and that the Olmsteads were negligent.  The trial court refused to instruct on the trespass claim, but the jury found against the Olmsteads on negligence.  The Olmsteads appealed.

Held:  The verdict against the Olmsteads was reversed.  The Court held that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition of the tree.  Ivancic made no claim that the Olmsteads had actual knowledge of the defective nature of the tree, and presented no evidence that the Olmsteads had constructive notice of the alleged defective condition of the tree.   None of the witnesses who had observed the tree prior to the fall of the limb saw so much as a withering or dead leaf, barren branch, discoloration, or any of the other indicia of disease which would alert an observer to the possibility that the tree or one of its branches was decayed or defective.

Tracy - watch the insurance adjuster's nose carefully while he or she explains that the tree was healthy.

Tracy – watch the insurance adjuster’s nose carefully while he or she explains that the tree was healthy.

The Court held that as to adjoining landowners, a property owner has no duty to consistently and constantly check all trees for nonvisible decay.   Rather, the decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.  Ivancic’s expert surmised that water invaded the tree through a “limb hole” in the tree, thus causing decay and a crack occurring below.   But he admitted that the limb hole was about 8 feet high and located in the crotch of the tree which would have made it difficult, if not impossible, to see upon reasonable inspection.   Although, the Court said, there may have been evidence that would have alerted an expert that the tree was diseased, there was no evidence that would put a reasonable landowner on notice of any defective condition of the tree.

Thus, the fact that Mrs. Olmstead testified that she did not inspect the tree for over 10 years was irrelevant.   On the evidence presented, even if she were to have inspected the tree, there was no indication of decay or disease to put her on notice of a defective condition so as to trigger her duty as a landowner to take reasonable steps to prevent the potential harm.

As for the trespass, the Court held that the Olmsteads didn’t plant the tree, and the mere fact that they allowed what appeared to be a healthy tree to grow naturally and cross over into the Ivancic parents’ property airspace, could not be viewed as an intentional act so as to constitute trespass.

Case of the Day – Thursday, February 27, 2014

LIMITS OF SELF-HELP

             Yesterday, we tackled a question sent to us by our California correspondent, Sylvan Glade of Lone Pine.  His neighbor has demanded that he trim back his 50-year old pine tree, the branches of which hang over the neighbor’s place, and he wondered whether the neighbor might be able to start chopping himself.

            We determined that California generally recognizes the Massachusetts Rule, which permits a neighbor to use “self-help,” trimming the branches back to the property line.   Of course, California seems also to permit use of the private nuisance laws — something that seems like the Hawaii Rule or Virginia Rule — to let a neighbor force someone like Sylvan to remove the tree himself if it is a nuisance.

Chainsawb&w140225            But Sylvan was focused on whether his neighbor could fire up his chainsaw.  While yesterday’s case said perhaps he can, today’s case should be a caution to him.

            Mr. Patel was unhappy that the roots from Mr. Booska’s pine tree had heaved some of Mr. Patel’s sidewalk.  He excavated along the edge of his yard down to three feet, severing the roots of the pine tree that had encroached under his sidewalk.  The root cutting so weakened the tree that it started dying and was in danger of falling.  Mr. Booska had to take the tree down, and he promptly sued.

            The lower courts said that Patel had an absolute right to cut the roots on his property, citing the holding in yesterday’s case of Bonde v. Bishop.  Not so, said the appeals court.  Instead, Mr. Patel had an obligation to cut the roots in a reasonable manner that would achieve his aims — to stop sidewalk heaving — without undue harm to the tree.  The Court held that “no person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.”

            Unfortunately, this isn’t the final answer.  The Booska court was swayed by testimony that Mr. Patel could have protected his sidewalks with a much less aggressive method.  We don’t yet know what the result would be if the only means of protecting Mr. Patel’s sidewalk would have required root cutting that would necessarily be fatal.

            In the situation Sylvan presented to us, he didn’t report why his neighbor wanted the pine tree trimmed back.   In discussions with his local lawyer, Sylvan will have to consider whether the tree could be found to be a nuisance (as in yesterday’s case), a finding that Bonde suggests can be easily made in Cailfornia.  Even if it is not a nuisance, Sylvan’s neighbor can probably start hacking away on his side of the property line, but the hacking has to be done in a way that weighs the neighbor’s legitimate aims — whatever they are — against the health and safety of the tree.

            Oh, the complexity!  And to make it worse, tomorrow we’ll look at a Kafkaesque result where a neighbor’s right to cut back a tree can’t be exercised without approval of the property owner, resulting in an old-fashioned California SLAPP-down.

Fool            Booska v. Patel, 24 Cal.App.4th 1786, 30 Cal.Rptr.2d 241 (Ct.App. Div.1, 1994).  Attorney Booska, representing himself in this action, sued his neighbor Mr. Patel.   The roots of a 40-year-old Monterey pine tree owned by Mr. Booska extended into Mr. Patel’s yard.  Mr. Patel hired a contractor to excavate along the length of his yard and sever the roots of the tree down to a level of about 3 feet.   Mr. Booska complained that Mr. Patel’s actions were negligently performed, and the tree became unsafe, a nuisance, unable to support life, and had to be cut down at Mr. Booska’s expense.   The complaint alleged causes of action for negligence, destruction of timber and nuisance.  The trial court granted summary judgment for Mr. Patel, holding that under Bonde v. Bishop, Mr. Patel had an absolute right to sever the roots without regard to the effect on Mr. Booska. Mr. Booska appealed.

            Held: The Court of Appeals reversed.  It held that adjoining landowners do not have absolute privilege to sever encroaching tree roots without regard to reasonableness of their action or consequences to neighbors.  Instead, neighbors act reasonably, and failure to do so could be basis for recovery of damages.   The Court distinguished the rulings in Bonde v. Bishop and Grandona v. Lovdal, noting that neither of those cases discussed the limits on what an adjoining property owner could do.  The Court observes that “[i]n the instant case, Patel has not addressed the issue of negligence in his summary judgment motion but contends that he has an unlimited right to do anything he desires on his property regardless of the consequences to others.   No authority so holds. ‘No person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.’”

The Patels and Booskas apparently hadn't gotten this word ...

The Patels and Booskas apparently hadn’t gotten this word …

            The appeals court was apparently disturbed that these neighbors hadn’t found the time or inclination to be neighborly about the dispute.  It cites language from Bonde v. Bishop:  “‘Apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do’.” 

            The Court then pointedly said, “It seems, in the instant case, that neither party has considered what would be the neighborly thing to do to resolve this problem.   While we express no opinion on the appropriate outcome of this case, we find that there are disputed factual issues to be resolved.” 

            The Court reversed the decision, and sent the case back to the trial court to resolve the issue of negligence.

 

Case of the Day – Friday, February 28, 2014

LIMITS OF SELF-HELP

             Yesterday, we tackled a question sent to us by our California correspondent, Sylvan Glade of Lone Pine.  His neighbor has demanded that he trim back his 50-year old pine tree, the branches of which hang over the neighbor’s place, and he wondered whether the neighbor might be able to start chopping himself.

            We determined that California generally recognizes the Massachusetts Rule, which permits a neighbor to use “self-help,” trimming the branches back to the property line.   Of course, California seems also to permit use of the private nuisance laws — something that seems like the Hawaii Rule or Virginia Rule — to let a neighbor force someone like Sylvan to remove the tree himself if it is a nuisance.

Chainsawb&w140225            But Sylvan was focused on whether his neighbor could fire up his chainsaw.  While yesterday’s case said perhaps he can, today’s case should be a caution to him.

            Mr. Patel was unhappy that the roots from Mr. Booska’s pine tree had heaved some of Mr. Patel’s sidewalk.  He excavated along the edge of his yard down to three feet, severing the roots of the pine tree that had encroached under his sidewalk.  The root cutting so weakened the tree that it started dying and was in danger of falling.  Mr. Booska had to take the tree down, and he promptly sued.

            The lower courts said that Patel had an absolute right to cut the roots on his property, citing the holding in yesterday’s case of Bonde v. Bishop.  Not so, said the appeals court.  Instead, Mr. Patel had an obligation to cut the roots in a reasonable manner that would achieve his aims — to stop sidewalk heaving — without undue harm to the tree.  The Court held that “no person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.”

            Unfortunately, this isn’t the final answer.  The Booska court was swayed by testimony that Mr. Patel could have protected his sidewalks with a much less aggressive method.  We don’t yet know what the result would be if the only means of protecting Mr. Patel’s sidewalk would have required root cutting that would necessarily be fatal.

            In the situation Sylvan presented to us, he didn’t report why his neighbor wanted the pine tree trimmed back.   In discussions with his local lawyer, Sylvan will have to consider whether the tree could be found to be a nuisance (as in yesterday’s case), a finding that Bonde suggests can be easily made in Cailfornia.  Even if it is not a nuisance, Sylvan’s neighbor can probably start hacking away on his side of the property line, but the hacking has to be done in a way that weighs the neighbor’s legitimate aims — whatever they are — against the health and safety of the tree.

            Oh, the complexity!  And to make it worse, tomorrow we’ll look at a Kafkaesque result where a neighbor’s right to cut back a tree can’t be exercised without approval of the property owner, resulting in an old-fashioned California SLAPP-down.

Fool            Booska v. Patel, 24 Cal.App.4th 1786, 30 Cal.Rptr.2d 241 (Ct.App. Div.1, 1994).  Attorney Booska, representing himself in this action, sued his neighbor Mr. Patel.   The roots of a 40-year-old Monterey pine tree owned by Mr. Booska extended into Mr. Patel’s yard.  Mr. Patel hired a contractor to excavate along the length of his yard and sever the roots of the tree down to a level of about 3 feet.   Mr. Booska complained that Mr. Patel’s actions were negligently performed, and the tree became unsafe, a nuisance, unable to support life, and had to be cut down at Mr. Booska’s expense.   The complaint alleged causes of action for negligence, destruction of timber and nuisance.  The trial court granted summary judgment for Mr. Patel, holding that under Bonde v. Bishop, Mr. Patel had an absolute right to sever the roots without regard to the effect on Mr. Booska. Mr. Booska appealed.

            Held: The Court of Appeals reversed.  It held that adjoining landowners do not have absolute privilege to sever encroaching tree roots without regard to reasonableness of their action or consequences to neighbors.  Instead, neighbors act reasonably, and failure to do so could be basis for recovery of damages.   The Court distinguished the rulings in Bonde v. Bishop and Grandona v. Lovdal, noting that neither of those cases discussed the limits on what an adjoining property owner could do.  The Court observes that “[i]n the instant case, Patel has not addressed the issue of negligence in his summary judgment motion but contends that he has an unlimited right to do anything he desires on his property regardless of the consequences to others.   No authority so holds. ‘No person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.’”

The Patels and Booskas apparently hadn't gotten this word ...

The Patels and Booskas apparently hadn’t gotten this word …

            The appeals court was apparently disturbed that these neighbors hadn’t found the time or inclination to be neighborly about the dispute.  It cites language from Bonde v. Bishop:  “‘Apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do’.” 

            The Court then pointedly said, “It seems, in the instant case, that neither party has considered what would be the neighborly thing to do to resolve this problem.   While we express no opinion on the appropriate outcome of this case, we find that there are disputed factual issues to be resolved.” 

            The Court reversed the decision, and sent the case back to the trial court to resolve the issue of negligence.

 

TNLBGray

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