Cases from February 2015

Case of the Day – Monday, February 2, 2015

WHEN YOU CAN’T SEE THE FOREST FOR THE GOODS

We’re always looking for ideas, and we’re rather shameless about appropriating them. So when an Ohio lawyer friend of ours, himself from a timber-harvesting family, mentioned an case to us that delineated when trees were attached to the real estate and when they were “goods,” we chased the decision down.

Speaking of “appropriating,” that was exactly the context in which the case was decided. It seems that Dudley DeBolt had a pretty nice place in Hocking County, beautiful Appalachian foothill country. In fact, Dudley’s place was so nice the government wanted it for a park. Governments being what they are, the appropriate agency – an entity called the Board of Park Commissioners of the Columbus and Franklin County Metropolitan Park District – sued Dudley to take 40 acres of his wooded land for its purposes.

Under the laws governing eminent domain, not to mention the 5th Amendment, when the government takes private property for public purposes, it must pay just compensation. But it seems that the Park Board didn’t want to pay Dudley for the timber contract he had already signed with a local timber merchant, one for the select cutting of about 150,000 board feet of hardwood. The land itself was worth $58,000, Dudley claimed, but there was also the timber contract that he now would be unable to fulfill, for an additional $14,000.

Nope, the Park Board argued, the trees are attached to the land and had no value separate from the land. That had been Ohio law prior to the adoption of the Uniform Commercial Code. The trial court agreed with the Park Board.

The Court of Appeals did not. Rather, it held that the UCC had changed everything, and as a result, Dudley was given a chance to prove to the jury the existence and value of the timber contract. The Ohio Supreme Court agreed, and the case went back to the trial court.

Board of Park Comm’rs v DeBolt, Not Reported in N.E.2d, 1984 WL 4248 (Ct.App. Ohio, 1984). The Board of Park Commissioners of the Columbus and Franklin County Metropolitan Park District sued landowner Dudley DeBolt, Jr., appropriate 40 acres of his land. Mr. DeBolt believed the fair market value for the land to be $73,970, including $32,000 for the land at $800 an acre, $26,000 for the home and $14,000 for his profit from the removal of certain timber on the property. The trial court agreed with the Park Board that Mr. DeBolt was not allowed to calculate the value of his standing timber separately from the land, and it refused to allow Mr. DeBolt to put in any further evidence of the value of his timber. The jury returned a verdict of $58,000 as compensation for the land and improvements taken. Mr. DeBolt appealed.

Held: Mr. DeBolt was allowed to value the timber separately. Although the Board argued that Ohio law prohibited setting market value for trees upon land to be appropriated separate and apart from the value of the land, the Court pointed out that the decision which included that holding was made well prior to the adoption by Ohio of the Uniform Commercial Code. The U.C.C. provides that a “contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without material harm thereto … or of timber to be cut is a contract for the sale of goods within sections 1302.01 to 1302.98 of the Revised Code, whether the subject matter is to be severed by the buyer or by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.” Thus, the Court ruled, the U.C.C. had abrogated prior Ohio law by making a contract for the sale of timber into a contract for the sale of goods.

Here the evidence showed that in the summer of 1981, a timber merchant and DeBolt had a contract for cutting timber and had agreed on a price. Therefore, the Court said, DeBolt ought to have had the right to prove the existence and value of the timber contract. It was a contract for the sale of goods, and Debolt thus had a vested contractual right which was frustrated by the Park Board’s appropriation. The Court said that “the enactment of the U.C.C. has in our opinion changed the character of standing timber from realty to personalty when there is a contract under R.C. 1302.03.” Once the contract was made, the trees were “goods” under the U.C.C. and no longer a part of the land.

People who have to pay attention to the bottom line make careful decisions whether appealing an adverse decision is worth the time and legal costs. Not so governments, which hire lawyers by the gross and pay them with taxpayer dollars. Unhappy at having to part with an additional $14,000, the Board of Park Commissioners appealed to the Ohio Supreme Court. Even in 1984, a for-profit entity would have easily seen that legal fees and wasted time would easily exceed that.

Board of Park Comm’rs v DeBolt, 15 Ohio St.3d 376 (1984). The Ohio Supreme Court agreed with the Court of Appeals that the record supported a finding that a contract may have existed for the sale of the timber. The Supreme Court found some evidence that Dudley DeBolt was to receive $14,000 for the sale of some 150,000 board feet of lumber, and that such lumber was to be obtained in a select cutting, which was permitted under the terms of his mother’s will. The timber cutter said 150,000 board feet of lumber could be obtained in a select cutting, and stated that he had first surveyed the property some eighteen months prior to the trial.

The Supreme Court ruled that a contract for the sale of timber is a contract for the sale of goods, not realty. O.R.C. § 1302.03(B). Such a contract is protected against a governmental taking without just compensation, as it was part of the property taken by the Board of Park Commissioners. Because such a contract is an asset separate and apart from the land, it is subject to separate valuation. The case was sent back to the trial court to give Dudley a chance to prove his case.

Case of the Day – Tuesday, February 3, 2015

WOODMAN, SPARE THAT TREE!

“… touch not a single bough …” the plaintiff cried in this California case on wrongful tree cutting.

The plaintiff, Mrs. Chinn, agreed with her neighbor, Ms. Hess, to build a common fence. The worker hired to construct it found he had to trim the branches of one of Mrs. Chinn’s plum trees to make the fence fit. And that’s where the problems arose. Mrs. Chinn’s tenants, the Schmidts, told the worker to go ahead and cut down the tree. Of course, they denied this, but the trial court found the testimony of the worker and four neighbors who watched the timber harvest unfold. Mrs. Chinn sued Forrest and Hess for trespass and for treble damages for wrongful tree cutting under California statute.

The issue was whether Forrest and Hess reasonably believed the Schmidts had the authority to speak for Mrs. Chinn. The trial court found that the authority Mrs. Chinn had given them, coupled with her own ignoring of the goings-on in the fence and tree project, gave the defendants a reasonable basis to believe that the Schmidts could give Forrest the right to cut down the tree.

Thus, there was no trespass. And, of course, no trees left standing, either.

Chinn v. Hess, Not Reported in Cal.Rptr.3d, 2007 WL 1430192 (Cal.App. 1 Dist., May 16, 2007). Chinn and Hess owned adjoining properties. Chinn rented her place to the Schmidts. Chinn and Hess had agreed to build a new fence, which they had hired Forrest to complete. While he was building it, he cut down a plum tree on Chinn’s land which obstructed the planned fence. Chinn sued Hess and Forrest for trespass and wrongful tree cutting under California Code of Civil Procedure §733. Forrest claimed he had begun merely by trimming the tree, but the Schmidts came outside and agreed with him the tree should come down. The Schmidts denied this, but the weight of the evidence caused the trial court to believe Mr. Forrest.

The trial court found for Hess and Forrest, and Chinn appealed.

Held:   The plum tree remained cut down (of course, it would have at any rate), but Mrs. Chinn was not entitled to treble damages under California Code of Civil Procedure 733. The trial court had found that Mrs. Chinn hadn’t proved that Forrest had proceeded without consent, but Mrs. Chinn complained that it wasn’t her obligation to prove lack of consent, it was Forrest’s and Hess’s duty to prove they had consent.

The Court of Appeals held that lack of consent is an element of the tort of trespass, meaning that it was one of the issues Mrs. Chinn had to prove in order to establish a trespass. Still, whether she carried her burden of proof wasn’t important here, the Court said, because the trial court had concluded that Forrest and Hess had proven that the defendants reasonably believed the Schmidts were Mrs. Chinn’s agents. Mrs. Chinn had given the Schmidts authority to speak to Ms. Hess about the tree and the fence. Once the Schmidts were empowered to speak for Plaintiff, Plaintiff chose not to communicate with Defendant Marilyn Hess, and when the issue of the plum tree arose, Mrs. Chinn did not respond to messages and did not drive two miles to see the fence. Rather, Mrs. Chinn relied solely on the Schmidts to represent her regarding the fence and tree issue, just as she relied upon them to take care of the garden on the property they were renting.

The combination of her intentional conduct and her want of ordinary care, Mrs. Chinn caused Forrest and Hess to believe reasonably that the Schmidts had authority to consent to removal of the tree. Ostensible authority in an agent is established by showing that the principal, intentionally or by want of ordinary care has caused or allowed a third person to believe the agent possesses such authority. It authority must be established through the acts or declarations of the principal and not the acts or declarations of the agent. Where the principal, like Mrs. Chinn, knows that the agent holds himself out as clothed with certain authority, and remains silent, such conduct on the part of the principal may give rise to liability.

Case of the Day – Wednesday, February 4, 2015

LIAR, LIAR, PANTS ON FIRE

Remember prescriptive easements? Those are easements and other rights over property which can be taken because they are exercised adversely to the owner for a number of years (the number varies from state to state).

For example, the electric company strings wires across the corner of your homestead. You didn’t give anyone permission to do that. The wires hang there for 21 years, providing a perch for the pigeons and a trellis for the kudzu. You don’t like them, but you don’t do anything about them. Then you sell the place to Sherman Shyster, an angry lawyer with a word processor. He immediately sues the power company for trespass. But because the wires have been hanging there for a sufficient number of years, the court that the electric company has gained the right to the air rights over that corner of property by a “prescriptive easement.”

The exercise of adverse rights – the wires hanging there – must be done openly, notoriously and continuously. Anything less, and there’s no easement. In today’s case from California, Gabriele wanted a nice driveway on a sloping hill, but he couldn’t fit it onto his fairly vertical land. So he made a deal with his neighbor, Mrs. Hoehne. She gave him a non-exclusive easement to build a drive on a described bit of land, and in return he agreed to build a nice road for her to use to come down to and across a retention pond and dam she had.

Before the drive was built, Mrs. Hoehne sold her land to Ms. Cobb. Ms. Cobb didn’t much want Gabrielle’s driveway cutting across her place, but she was stuck with her predecessor’s easement. Still, she asked Gabriele about his intentions before construction began, and he showed her a sketch of the proposed drive.

Oops. The driveway didn’t get built according to plan, instead wandering onto Mrs. Cobb’s non-easement property. When Ms. Cobb finally had her own engineer study the layout of the driveway eight years later, he found the encroachment. California’s time period for a prescriptive easement is only five years, but Ms. Cobb claimed that Gabriele lied to her with the misleading driveway sketch. Therefore, she argued, his possession during the five-year period was neither open nor notorious.

Ah, the Court said, there’s a real difference between predicting today how the project will turn out, and describing tomorrow how it did really turn out. A prediction that doesn’t come true is not the same as a subsequent lie swearing that something that didn’t happen really did.

Gabriele thought the driveway would lie completely within the easement. No lie. The driveway turned out not to lie completely within the easement. While the error was lamentable, it was not a lie. That is, predicting a future lie isn’t a lie. Got that?

The court ruled that the driveway could stay where it was, having acquired the right by prescriptive easement.

Cobb v. Gabriele, Not Reported in Cal.Rptr.3d, 2007 WL 1247308 (Cal.App. 6 Dist., Apr. 30, 2007). In 1989, the Gabrieles bought a parcel of unimproved land along Salinas Road. Their engineer prepared plans for a driveway directly onto their land from Salinas Road, but the county wouldn’t permit it because the land was too steep. The Gabrieles discussed an easement with their neighbor, Phyllis Hoehne, who ultimately executed a non-exclusive easement for ingress, egress and public utilities over a piece of her land. The easement provided that the Gabrieles would build a driveway, drainage facilities, and erosion improvements on the easement land, and would allow Hoehne to use the driveway portion to access a retention dam located on her property. The Gabrieles also agreed to build an access road across the dam.

Hoehne then sold her land to Cobb, who didn’t much like the easement. Gabrielle built the driveway without notice to Cobb two years later, and when she demanded to know what he was doing, showed her a sketch which depicted the proposed driveway completely within the easement boundaries.

Somehow, the driveway wasn’t built according to the plan, but instead went outside the easement and encroached on between 100 and 120 feet on Cobb’s property. The Gabrieles have used the driveway continuously since its construction, having paved it in 1997. But the Gabrieles didn’t build what they had promised Hoehne. When Cobb asked about the access road, the Gabrieles explained that the road was just going to be a roughed in dirt road the width of a bulldozer blade, to be used only for a fire exit. Gabriele said Cobb had changed her mind, and didn’t want the roughed-in road. But in March 2000, Cobb’s attorney wrote to the Gabrieles about the easement. He asserted that some of the improvements that were supposed to have been constructed in connection with the driveway had not been completed, and that the driveway had been construed in a location outside of that designated by the easement. However, Cobb testified that at that time she did not have “absolute knowledge” that the driveway was outside the easement. She said her attorney had made that accusation to cover all possibilities should there be litigation.

In 2003, Cobb received a survey showing the encroachment. Cobb sued that year to quiet title and prayed for declaratory and injunctive relief. She wanted an order that the driveway must be moved. She asserted causes of action for trespass, nuisance, breach of contract, negligence, waste, failure to maintain, unreasonable use, fraud, diversion and diminution of water, and damages to trees, and she sought compensatory and punitive damages.

The trial court granted the Gabrieles’ motion for summary adjudication on the claims for trespass, nuisance, negligence, waste, fraud, diversion/diminution, and damage to trees and the request for punitive damages, finding them barred by the three-year statute of limitations, but found in Cobb’s favor on her claim for failure to maintain. The trial court also found that the Gabrieles had a prescriptive easement over the property where the driveway went outside of the written easement.

Cobb appealed.

Held:  The judgment was affirmed. The Court of Appeals found that Gabrieles had shown the elements necessary to establish a prescriptive easement, that the use of the property has been open, notorious, continuous and adverse for an uninterrupted period of five years.

The Court said that the requirement that the use be hostile and adverse and under claim of right means that the property owner has not expressly consented to or permitted, allowed, or authorized the use of his or her land; and the user does not recognize or acknowledge the owner’s rights, not necessarily that one must know that the use constitutes an encroachment or trespass. In short, where one openly and continuously — even mistakenly — uses another’s property for the 5-year period without the owner’s interference, it is presumed that the use was adverse, hostile, and by claim of right.

Here, the record showed that the driveway encroached on Cobb’s property. Cobb knew about the recorded easement and had constructive knowledge of its boundaries. As well, she knew exactly where the driveway was constructed and saw the Gabrieles continuously use it for more than the prescriptive period. Finally, there was no evidence that Cobb expressly permitted the Gabrieles to use any area outside the easement, nor was there evidence that the Gabrieles intended to stop using the entire driveway or remove part of it if they had known that part of it was outside the easement.

Cobb claimed the Gabrieles failed to establish the open-and-notorious element because Gabriele concealed the fact that the driveway encroached on her property. She noted that Gabriele assured her that the driveway would be inside the easement and gave her a diagram to that effect. Given the concealment, Cobb argued, she did not have knowledge or constructive notice that the driveway constituted an encroachment.

The Court, however, said that before the driveway was actually constructed, Gabriele gave Cobb a sketch showing that it would be within the easement. Thus, it only represented his understanding of where the driveway would be located, not where it had been located. There was no evidence that when Gabriele gave Cobb the sketch, he knew the driveway would be constructed outside the easement; nor is there evidence that after it was built, the Gabrieles knew it encroached on Cobb’s property. And at trial, Cobb conceded that the Gabrieles did not know about the encroachment until her engineer conducted his survey in 2003.

Mrs. Cobb simply couldn’t have it both ways.

Case of the Day – Thursday, February 5, 2015

MEAN WHAT YOU SAY

Back when George Stephanopoulos was a mere flack for President Bill Clinton, and not yet a respected television commentator for ABC, he defended his boss to a skeptical Larry King as having “kept all of the promises he intended to keep.”  The malefactors in today’s case apparently intended the same.

In order to get a zoning variance to add on to their newly-purchased estate in the tres chic village of Centre Island, New York (once home to Billy Joel and his $32.5 million shanty), the Comacks promised not to let the shrubs and trees obstruct anyone’s view of Oyster Bay. Believing their sincere pledge, the Village OK’d the proposal.

A few years later, the bushes were high and the trees were leafy, and the Comacks said something to the effect of, “Promise? What promise? Oh, that promise … It’s … uh … kind of unclear what we really intended to promise. Let’s just forget the whole thing.” Or something like that.

The Village elders didn’t forget it, soreheads that they apparently were, and sued the Comacks. The trial court found for the Comacks, but the court of appeals reversed and required the Comacks to keep their word. The appellate judges apparently could figure out what the meaning of “is” was.

Incorporated Village of Centre Island v. Comack, 39 A.D.3d 712, 834 N.Y.S.2d 288 (N.Y.A.D. 2 Dept., 2007). In 1999 the Comacks purchased property in the village of Centre Island and sought a variance to maintain and enlarge the pre-existing, nonconforming home on the lot. Specifically, they sought to build a second story addition over the existing garage and to change the roof line. The proposed expansion and changes would have necessarily affected the neighboring properties’ existing views of the waters of Oyster Bay.  And, Centre Island being a ghetto of the fabulously well-to-do, unobstructed views of all that their wealth had enabled them to accumulate were rather important to the residents.

In consideration for the granting of the variance, the Comacks signed a “Declaration” that provided “[a]ll open views from points off the premises to Oyster Bay shall remain in their present unobstructed state … [n]o trees or major shrubs shall be planted on lots 85 and 86 with the exception of minor shrubs and bushes which if allowed to grow to full height would not impede the aforesaid open views. Any shrubs or plants which if allowed to grow to maturity would exceed three feet in height will require the approval of the village building inspector for compliance with the intent of the declaration …” 

The variance was granted, but a few years later, shrubs and trees planted by the Comacks began obstructing neighbors’ views of the Bay. The Village sued. The trial court agreed with the Comacks that the “Declaration” was vague, and the case should be dismissed. The Village appealed.

Held: The trial court was wrong. It was the Village’s complaint that should be granted, not the Comack’s request that it be dismissed. Contrary to the trial court’s determination, the language of the “Declaration” and, in particular, the first provision thereof, was not “imprecise and vague” so as to render it unenforceable. Instead, the “Declaration” — read as a whole to determine its purpose and intent — is clear that the Comacks made a deal. In consideration for the granting of the variance, the Comacks agreed to maintain “[a]ll open views from points off the premises to Oyster Bay … in their present unobstructed state.”

Because there is no ambiguity, the “Declaration” must be enforced according to the plain meaning of its terms. The Court held that to the extent that certain shrubs and trees planted by the Comacks obstructed “open views from points off the premises to Oyster Bay,” these violate the “Declaration.” The Court sent the case back to the trial court to determine whether the Village was entitled to damages, and whether the Comacks should be ordered to cut down certain shrubs and trees from the subject property that obstructed “open views from points off the premises to Oyster Bay.”

Case of the Day – Friday, February 6, 2015

PINKY SWEAR

Hey, kids! Remember “cross my heart and hope to die?” How “swear on a stack of Bibles?” Even you’re too young for those old chestnuts, you all know what a “pinky swear” is.

Sadly, Robert Grey Johnson, Jr., does not. Mr. Grey Johnson lived in tony Monarch Bay Terrace, on the Pacific Ocean between Long Beach and San Diego. The community is governed by the Monarch Bay Terrace Property Owners Association, a type of local quasi-gove rnmental regulatory body that gives despotism a bad name. A few years ago, Monarch Bay POA and Grey Johnson became embroiled in a dispute concerning his alleged installation of various “unapproved” trees on his property, and his failure to properly trim and maintain all of his trees so they didn’t impede either use of the sidewalks adjacent to his property or – more important when the “starter houses” in your neighborhood sell for over a million bucks – the ocean views of his neighbors.

To settle that earlier case, Grey Johnson promised to abide by a settlement that spanned more than 20 pages. He said he abide by Monarch Bay’s “Covenants, Conditions and Restrictions” and seek prior approval of any trees planted on his property. He conceded that Monarch Bay POA’s board of directors would have “sole discretion” to determine the proper height of any tree, or whether any new or existing planting constitutes a view impediment or a nuisance – and that its decisions would be “final.” Finally, Grey Johnson promised to remove certain trees, trim or top other trees, as necessary, to maintain them at rooftop level; and pay a fine of $250.00, plus $500.00 in attorney fees to Monarch Bay.

No one looked behind Grey Johnson’s back while he signed off on the deal, or they might have seen his crossed fingers. A few years later, after Grey Johnson had failed to trim his trees as he promised, the parties were back in court.  The POA wanted the trial judge to enforce the deal. Grey Johnson, who channeled Joyce Kilmer, argued that he should not be required to “top” the tree that some of his neighbors characterize as an impediment to their ocean views, even though he earlier agreed to do that very thing.

The court was unimpressed. Kilmer, the judge pointed out, didn’t say that trees were lovelier than ocean views – just poems. Grey Johnson offered fifty shades of justification for not honoring the deal, but the court saw through them. After the trial court upheld the deal, he took his plea to the Court of Appeals, which wisely observed that “this case is not about whether Johnson should be required to top his tree – or whether Kilmer would have approved of his doing so. It’s about whether Johnson’s voluntary agreement to do it is legally enforceable, even though he doesn’t want to do it anymore. It is.”

Our hats are off in homage to the salesmanship of the lawyer who convinced Grey Johnson that he ought to bankroll this turkey.  Had Grey Johnson come to us, we probably would have uncreatively told him to “keep your word … you signed the deal, now live with it.” Which, come to think of it, is exactly what the Court of Appeals told him.

The moral? Lawyers often say that a “bad settlement is better than a good lawsuit.” True, but that settlement is more than a technicality on the road to ending some pesky litigation. Courts presume the parties understand what they’re signing, and won’t later entertain deviceful arguments for ignoring the plain terms of the deal.

Monarch Bay Property Owners Ass’n v. Johnson, Case No. G043518 (Ct.App. 4th Div. Cal., Oct. 19, 2011). Johnson, a homeowner in Monarch Bay, became embroiled in a dispute with the Monarch Bay Property Owners Association over his installation of various “unapproved” trees on his property, and his failure to properly trim and maintain other trees to ensure they were not impeding use of the sidewalks adjacent to his property, or the ocean views of his neighbors. In 2008, the parties settled the dispute with a lengthy settlement agreement, in which Johnson promised abide by the community’s Covenants, Conditions and Restrictions, and would seek prior approval of any plantings on his property. He also agreed that the POA’s board of directors would have sole discretion to determine the proper height of any trees, or whether new or existing trees constitutes a view impediment or a nuisance. Johnson promised to remove some trees and trim others as necessary to maintain them at roof level, and to pay a modest fine. The parties agreed that a particular Canary pine “will be inspected” nine months after the date of settlement to determine whether it creates any view impediments. If it does, it would be further trimmed – but only if a “neutral arborist” (paid by Monarch Bay) determines that doing so would not permanently injure the tree.  The settlement specified that the POA could enter a judgment against Johnson if he didn’t comply.

Right after signing the settlement agreement, Johnson removed and trimmed trees as he had promised to do. However, when Monarch Bay inspected his property nine months after the settlement, it determined that he had failed to properly maintain the trimming of his existing trees, and also that the Canary pine appeared to be impeding the views of his neighbors. The POA concluded that Johnson was in breach of the settlement agreement, and sought entry of judgment against him.

Monarch Bay’s motion for entry of judgment was filed just over one year after the settlement date. Johnson opposed the motion, arguing that he was in compliance with the terms of the settlement agreement, but that Monarch Bay had breached it by “fail[ing] to inspect the Canary pine within the nine month period of the agreement.” Johnson also argued that Monarch Bay had provided no evidence that further trimming of the Canary pine would not endanger it, and that the stipulated judgment was too “vague” and lacking in objective standards to be enforceable.

The court denied the POA’s motion, without prejudice, because it lacked sufficient supporting evidence to establish Johnson’s breach of the agreement. The POA refiled its motion for entry of judgment five months later, supported by additional evidence, including the declaration of a neutral arborist, and declarations of neighbors attesting to view impairment. Also included with the moving papers was a copy of the stipulated judgment which the court was being asked to enter. Johnson again filed opposition. The trial court entered judgment for the POA on December 29, 2009.

Johnson appealed.

Held:   The POA was entitled to its judgment. Johnson asserted two primary bases for challenging the stipulated judgment which arose out the prior settlement. First, he claims the court was without jurisdiction to enter an order enforcing the parties’ settlement pursuant to Code of Civil Procedure section 664, because Monarch Bay’s motion was brought more than one year after the date of the settlement, in violation of a provision requiring that the case be dismissed no later than one year after the settlement date. And second, Johnson claimed that the terms of the judgment as entered are materially different from those he stipulated to. Neither argument is persuasive.

The Court ruled that the settlement agreement did not actually require that the case be dismissed within a year after the settlement date – or at all. Instead, what the provision Johnson relies upon does is prohibit dismissal of the case for a period of time. But even if settlement had imposed a deadline or dismissal of the case, Johnson would have waived any right to rely upon it by failing to enforce it prior to entry of judgment. Until the case was actually dismissed – which this one never was – the court retained jurisdiction to enter judgment.

The Court also held that Johnson’s argument concerning the specific terms of the judgment ignored the plain fact that, as part of the settlement agreement, Johnson expressly stipulated to the exact terms of the judgment to be entered against him if he failed to comply with his obligations under the settlement agreement. While Johnson may be unhappy with its terms, the Court held, it is too late for him to raise that issue now.

Finally, Johnson also challenged the trial court’s award of about $60,000 in attorney fees incurred by the POA in enforcing the settlement agreement. The Court of Appeals agreed, holding that “the parties specifically provided in their stipulated judgment for an additional award of attorney fees incurred by Monarch Bay ‘in enforcement of the stipulation,’ which would equate to the fees expended to obtain entry of the stipulated judgment. Nor did the court err by including in its award the fees Monarch Bay incurred in its first motion to obtain entry of judgment. The court explicitly denied the first motion “without prejudice, ” thus signaling that the issue of whether Monarch Bay was entitled to such a judgment was yet to be determined – in other words, that neither party had yet won nor lost the fight. The court’s fee award, entered after Monarch Bay ultimately prevailed, was consistent with that approach: One fight, one victor – and to the victor went the spoils.

Case of the Day – Monday, February 9, 2015

THE CAMEL’S NOSE

Prescriptive easements – easements across someone’s land acquired, usually by public utilities, because of a lapse of time – are fairly common. That’s usually because no one thinks twice about utility poles and overhead lines, or buried gas lines, until an issue arises and the landowner discovers to his or her chagrin that the utility never obtained an easement for the overhead or underground facilities, but too much time has passed to do anything about it.

In today’s case, a prickly landowner with the unlikely name of Lindburgh Jackson didn’t much like the overhead power lines and the utility pole on the land he bought in 1978. But somehow, for all of his complaining, he never bothered to check to see that Alabama Power had an easement to be there. It didn’t.

Unfortunately, for Unlucky Lindy, it took him nearly 25 years to challenge APCo, and only then because – as is increasingly common in our wired world – some new fiber optic system named Lightwave wanted to use the APCo poles and easement for its cable.

APCo easily proved that it had a prescriptive easement over Jackson’s land. After all, it had been trespassing with its poles for over 21 years. But the Alabama Supreme Court held that just because APCo had snagged an easement from Jackson for free to maintain electric lines didn’t mean Lightwave could cross the land with impunity, even on the APCo poles. The camel’s nose might be in the tent, but that didn’t mean that the whole camel could necessarily follow. APCo could use the easement for electricity transmission, but not for anything else it cared to.

The Supreme Court’s ruling suggests that Alabama at least takes a very strict view of how much a landowner has given up when he or she loses an easement by prescription — and that’s probably a good thing.

Ex parte Lightwave Technologies, L.L.C., 971 So.2d 712 (Sup.Ct. Ala. Apr. 27, 2007). Lindburgh Jackson owned property in Auburn, Alabama. Alabama Power Company has maintained power lines across his land and a utility pole on the property since he bought the place in 1978. Mr. Jackson never much cared for APCo, and has complained continually about APCo’s use and maintenance of the lines and the pole, but he did nothing about them.

Sometime in 2001, Lightwave Technologies – pursuant to a “pole-sharing” agreement with APCo – installed fiber-optic cable on the utility pole on the Jackson property. The City of Auburn had authorized Lightwave to install its cable and had established the route for such placement. Jackson sued everyone, APCo, Lightwave, and the City of Auburn, alleging among other claims that APCo had conspired with Lightwave to commit trespass on his property. The trial court entered a summary judgment in favor of all the defendants.

The Court of Civil Appeals concluded that because APCo had maintained the power lines in opposition to Jackson’s objections from April 1983 until September 2003, it had obtained an easement by prescription over his the portion of his land it used. The Court of Civil Appeals upheld judgment for APCo with respect to the trespass claim against it, and found for APCo and Lightwave on the conspiracy claim.

Undaunted, Jackson appealed to the Supreme Court of Alabama.

Held:   APCo could not give Lightwave the right to use its prescriptive easement over Jackson’s land.

In order to determine whether APCo had the right to permit Lightwave to use the easement, the Court considered first whether APCo has the right to apportion its prescriptive easement and whether its apportionment to Lightwave was within the scope of the prescriptive easement. The Court said that the term “apportionability” in reference to easements refers to the easement owner’s right to divide the easement to produce independent uses or operations.

In general, the Court observed, an exclusive easement in gross is apportionable to the extent the additional use is authorized by the manner or terms of the easement’s creation. An easement in gross is an easement that benefits an easement holder personally whether rather than the benefit of the easement accruing to another piece of land. An exclusive easement grants unfettered rights to the owner of the easement to use the easement for purposes specified in the grant to the exclusion of all others, including the servient owner. Here, the Court held, APCo’s prescriptive easement was an exclusive easement in gross because it permits APCo to use the easement for the construction and maintenance of power lines and precludes, by its nature, Jackson and Matthews from using the easement for that purpose.

Prior decisions held that easements and easements acquired by condemnation may be apportioned, when the language in the document or condemnation order creating the easement indicates an intention to convey or to grant the right to apportion and when the apportionment does not constitute an additional servitude. But, the Court said, the decisions cannot stand for the proposition that a prescriptive easement – like the one in this case – is apportionable as a matter of law. Although the Court agreed that APCo’s prescriptive easement could be apportioned, the question to be resolved is exactly what rights APCo possessed that it could apportion.

In Alabama, the scope of an easement established by prescription is determined by the extent of the use. An easement holder is not entitled to materially alter the scope of its easement. Here, Jackson allowed APCo to gain a prescriptive easement over the disputed property. However, while Lightwave may have affixed its line to the power pole nearly 3 years before Jackson filed this action, one can hardly conclude that a relatively short 3-year delay amounts to acquiescence by Jackson of the apportionment. The Supreme Court ruled that APCo acquired the right to string power lines across the disputed property, but it did not acquire a right to string any line or cable providing something other than, or related to, electrical power over the easement.

Because APCo’s prescriptive easement is limited in scope to the extent of the use that created it, APCo’s apportionment of the prescriptive easement does not serve to insulate it from the conspiracy claim, nor does APCo’s attempt to apportion its prescriptive easement insulate Lightwave from either the trespass claim or the conspiracy claim against Lightwave.

Case of the Day – Tuesday, February 10, 2015

MEAN WHAT YOU SAY

Back when George Stephanopoulos was a mere flack for President Bill Clinton, and not yet a respected television commentator for ABC, he defended his boss to a skeptical Larry King as having “kept all of the promises he intended to keep.” The malefactors in today’s case apparently intended the same.

In order to get a zoning variance to add on to their newly-purchased estate in the tres chic village of Centre Island, New York (once home to Billy Joel and his $32.5 million shanty), the Comacks promised not to let the shrubs and trees obstruct anyone’s view of Oyster Bay. Believing their sincere pledge, the Village OK’d the proposal.

A few years later, the bushes were high and the trees were leafy, and the Comacks said something to the effect of, “Promise? What promise? Oh, that promise … It’s … uh … kind of unclear what we really intended to promise. Let’s just forget the whole thing.” Or something like that.

The Village elders didn’t forget it, soreheads that they apparently were, and sued the Comacks. The trial court found for the Comacks, but the court of appeals reversed and required the Comacks to keep their word. The appellate judges apparently could figure out what the meaning of “is” was.

Incorporated Village of Centre Island v. Comack, 39 A.D.3d 712, 834 N.Y.S.2d 288 (N.Y.A.D. 2 Dept., 2007). In 1999 the Comacks purchased property in the village of Centre Island and sought a variance to maintain and enlarge the pre-existing, nonconforming home on the lot. Specifically, they sought to build a second story addition over the existing garage and to change the roof line. The proposed expansion and changes would have necessarily affected the neighboring properties’ existing views of the waters of Oyster Bay. And, Centre Island being a ghetto of the fabulously well-to-do, unobstructed views of all that their wealth had enabled them to accumulate were rather important to the residents.

In consideration for the granting of the variance, the Comacks signed a “Declaration” that provided “[a]ll open views from points off the premises to Oyster Bay shall remain in their present unobstructed state … [n]o trees or major shrubs shall be planted on lots 85 and 86 with the exception of minor shrubs and bushes which if allowed to grow to full height would not impede the aforesaid open views. Any shrubs or plants which if allowed to grow to maturity would exceed three feet in height will require the approval of the village building inspector for compliance with the intent of the declaration …”

The variance was granted, but a few years later, shrubs and trees planted by the Comacks began obstructing neighbors’ views of the Bay. The Village sued. The trial court agreed with the Comacks that the “Declaration” was vague, and the case should be dismissed. The Village appealed.

Held: The trial court was wrong. It was the Village’s complaint that should be granted, not the Comack’s request that it be dismissed. Contrary to the trial court’s determination, the language of the “Declaration” and, in particular, the first provision thereof, was not “imprecise and vague” so as to render it unenforceable. Instead, the “Declaration” — read as a whole to determine its purpose and intent — is clear that the Comacks made a deal. In consideration for the granting of the variance, the Comacks agreed to maintain “[a]ll open views from points off the premises to Oyster Bay … in their present unobstructed state.”

Because there is no ambiguity, the “Declaration” must be enforced according to the plain meaning of its terms. The Court held that to the extent that certain shrubs and trees planted by the Comacks obstructed “open views from points off the premises to Oyster Bay,” these violate the “Declaration.” The Court sent the case back to the trial court to determine whether the Village was entitled to damages, and whether the Comacks should be ordered to cut down certain shrubs and trees from the subject property that obstructed “open views from points off the premises to Oyster Bay.”

Case of the Day – Wednesday, February 11, 2015

YOUR RESPONSE STINKS 

Today’s case is the septic equivalent to the old doctor’s advice of “take two aspirin and call me in the morning.”

Mrs. Hubbell was a resident of Xenia, a small city in southeastern Ohio (Motto: One of America’s only cities to start with ‘x’”). One unfortunate day, Mrs. Hubbell discovered that ‘x’ didn’t just stand for “Xenia.” It stood for ‘x’crement, too.

When Mrs. Hubbell’s basement, bathroom and kitchen all started filling up with some pretty nasty effluent from the sewer line, she called the emergency help line the City of Xenia maintained for homeowners with such smelly problems. But it was the weekend, and the sewer department worker on duty wasn’t too keen on going out in the rain to check out her problem. He figured that it was just the rain backing things up, and if it were really bad, Mrs. Hubbell would call again.

Well, it was really bad, and Mrs. Hubbell did call again an hour later, to catalog all of the types of malodorous waste bubbling into rooms all over her house. That time, the worker did come. When he and his assistants pulled a manhole cover off the sewer main around the corner, a fountain of filth erupted and the liquid waste in the Hubbell home started draining away. It turned out that tree roots had jammed up the sewer main, and the City’s maintenance program hadn’t gotten around to clearing them away.

Mrs. Hubbell was unhappy at the Sewer Department’s lackadaisical response to her problem, so she sued. The City claimed it was immune under Ohio’s governmental immunity statute, because its inspection program was an exercise in discretion. True, the Court agreed, but there was nothing requiring any special expertise in the lazy worker’s refusal to respond when Mrs. Hubbell reported a problem. The problem, the Court said, is that almost everything required some discretion, and to accept the City’s argument meant that everything a governmental entity did would be immune.

Here, the City had a kind of a contract with its residents. The City offered an emergency number, and the implied deal was that if a local taxpayer called, the City would respond. The worker’s decision to let the stink build — and to be sure, it was a real problem worthy of his attention on a Sunday afternoon — could easily be negligence. The Court said Mrs. Hubbell was entitled to her chance to prove that to a jury.

Hubbell v. Xenia, 175 Ohio App.3d 99, 885 N.E.2d 290 (Ct.App. Ohio 2008). Water and sewage began flowing into Mrs. Hubbell’s home through drains in a shower, a toilet, and a bathroom sink. Believing that the stinking problem was likely caused by a malfunction in the sewer system maintained by the City of Xenia. She called the City’s emergency services, and the call automatically transferred to the Xenia Police Department. The police paged an on-call sewer and waste maintenance worker, but he refused to do anything, suspecting that the problem was likely the result of heavy rainfall that day.

The sewage and dirty water continued to flow into Mrs. Hubbell’s home, and she desperately placed a second call for help several hours later. This time, the on-call worker decided to respond and investigate the problem, and a service crew was brought in.

Hubbell’s home is located at the intersection of Monroe and Home Avenues. The house is connected to the sewer main on Home Avenue, which in turn connects to the main on Monroe Avenue. The service crew examined the Home Avenue main line and found it was flowing freely, but when they removed the Monroe Avenue manhole cover, the back-up into Hubbell’s house promptly subsided. The crew removed tree roots that had invaded the main. Sewer Department officials conceded that the roots may have contributed to the blockage.

Hubbell sued, alleging that Xenia was negligent in maintaining and operating its sewer line because it failed to inspect the Monroe Street main, allowing the line to become obstructed and clogged by tree roots and collected refuse, causing the back-up into her home. She also said the sewer condition constituted a nuisance for which Xenia was liable. Xenia claimed it was immune from liability under the Political Subdivision and Tort Liability Act.

The trial court refused to throw the case out, and Xenia appealed.

Held:  The City was not entitled to have the case dismissed without trial. Generally, the Court said, where a municipal corporation assumes the management and control of a sewer, it is required to exercise reasonable diligence and care to keep the system in repair and free from conditions which will cause damage to private property. The municipality’s failure to do so may make it liable for damages caused by its negligence.

However, a municipal corporation’s liability is nevertheless subject to the defense of governmental immunity provided by §2744.01 of the Ohio Revised Code, if any of the five exceptions or one of the defenses to immunity set out in the statute apply.

Here, the Court ruled, Xenia’s ongoing inspection and cleaning of its sewer lines was entitled to governmental immunity because the execution of the program involved judgment and discretion as to how extensive and in what manner the program would be executed. However, routine decisions requiring little judgment or discretion and which, instead, portray inadvertence, inattention, or neglect, are not covered by the statute’s grant of immunity.

The City maintenance worker’s decision not to respond to Mrs. Hubbell’s call regarding sewer back-up incident, due to his belief that her problem resulted from excess rainfall, wasn’t an act of judgment or discretion for which city was entitled to governmental immunity. Instead, the City’s contractual agreement with its residents to provide emergency services to those to whom it provided sewer services gave rise to duty to perform such emergency services with ordinary care.

When one undertakes a duty to perform an act, and another reasonably relies on that undertaking, the act must generally be performed with ordinary care. A genuine issue of material fact existed, the Court said, as to whether the City was negligent in its performance of its duty to provide emergency services to Mrs. Hubbell, and that matter could only be settled at trial.

Case of the Day – Thursday, February 12, 2015

THOU SHALT NOT COVET THY NEIGHBOR’S TREES

Kee Nee Moo Sha, Inc., had a tract of wooded land on a lake, next to a Bible camp owned by the Baptist Church. What could be wrong with that? No loud music, no dancing all hours of the night, no boozing or riotous living … right?

The minister in charge of the Bible camp knew where the boundaries between the Baptists’ and the company’s lands lay. But he had a problem. How could he build more cabins for the pittance that had appeared in his collection plate? The Lord turned seven small loaves and a few fishes into a feast for 4,000 people. But the preacher, a lesser mortal, couldn’t stretch what little he had into more lodging.

And verily, he began to covet his neighbor’s trees.

The minister had a logger cut down about a hundred of Kee Nee Moo Sha’s pine trees. Surely this was manna from heaven — free timber! Except it wasn’t free, as the soon Baptists found out.

Kee Nee Moo Sha reacted much like a modern, more restrained version of the angry vineyard owner.  It sued.  The Baptists failed to heed the Lord’s admonition to make peace with the plaintiff before you get to court.  Too bad, too.  The court found that the minister’s trespass was willful, and in fact, it appeared to be rather irked with the fact that – once on the witness stand – the man of the cloth wasn’t very familiar with the 9th Commandment, you know, the one about bearing false witness and all.

Kee Nee Moo Sha wanted the Baptists to pay for the enhanced value of the timber — that is, the value of the timber after being milled — and the court agreed that measure of damages is acceptable where the trespass is willful. But the court can’t guess at what that value might be, and where Kee Nee Moo Sha failed to introduce any evidence on the enhanced value, it missed its opportunity.

The Baptists introduced evidence of the stumpage value of the timber, that is, the value at the point it had been cut down, but before it was hauled and milled. Stumpage value is always lower, because the owner of the timber has to deliver it to the sawmill and pay for the milling before having a product to sell. Because the stumpage value was the best evidence of value in the record, the Baptists were charged for the lower figure.

The trial court assessed punitive damages against the church camp instead of the treble damages for wrongful cutting which statute permits. The Court of Appeals noted that this was entirely permissible, because sometimes trebling the damages just isn’t good enough to deter such conduct. Where the trespass is wanton but the damage only amounts to $100, $300 might just not get an errant preacher’s attention nearly so effectively as a whopping punitive award. The Court said that either trebling or punitive damages may be applied, at the trial court’s discretion.

And thus, the Baptists rendered unto Kee Nee Moo Sha …

Kee Nee Moo Sha, Inc., v. Baptist Missions of Minnesota-Plymouth Point Bible Camp, Not Reported in N.W.2d, 1990 WL 212222 (Minn.App. 1990). Kee Nee Moo Sha, Inc., is a family-owned corporation organized for the purpose of holding more than 100 acres of forested land near Hackensack, with a resort on the southern end of the property. The resort belongs to the Baptist Church.

In late 1976, in connection with the transfer of the Baptist’s church property to another church unit, a surveyor was hired to survey and mark the boundary between the Baptists’ land and the Kee Nee Moo Sha property. Shortly after the survey was completed, and while the brush was all cleared and orange flags marked the line, the surveyor walked the boundary line with one of the church’s pastors, pointing out in detail the location of the boundary.

About four years later, the pastor wanted to build more camp buildings as cheaply as possible. Looking for some do-it-yourself financing, he arranged for a local logger to cut about 100 pine trees in and near the main camp buildings. While most of the timber was cut on church property, 26 pines were cut on Kee Nee Moo Sha land. In addition, the pastor had the logger clear cut nearly 100 birch and aspen from the same area of the Kee Nee Moo Sha property, along with 1,600 cubic yards of sand which was used in a drain field near the Baptist building project. Kee Nee Moo Sha was unamused.

A lawsuit inevitably followed. The trial court granted Kee Nee Moo Sha damages for trespass and an injunction against further trespass by the Baptists. Unhappy with the paltry damages awarded, Kee Nee Moo Sha appealed, seeking higher measure of compensation, a more extensive permanent injunction, and costs, disbursements and attorney fees.

Held: The appellate court upheld the trial court decision.

The Court observed that there were several possible measures of damages which could be used when trespass to property involves the taking of timber. One of the oldest is the “enhanced value” of the timber after being sawed and transported to the place of sale or transfer, to be used when the trespass is willful. The presumption in trespass cases where timber is cut is that the trespass is willful, and the burden of proof falls to the trespasser to show otherwise.

Here, the trial court found it couldn’t use the “enhanced value” measure, because no evidence was introduced to permit the Court to determine the value of the processed lumber. Consequently, the trial court used the stumpage value presented by the Baptists to set compensatory damages, and awarded punitive damages in addition to arrive at a fair number. The trial court, passing up treble damages that were authorized but not required by statute, awarded punitive damages instead. The trial court found that “even an award of treble damages for that taking would not adequately punish [the Baptists] or compensate [Kee Nee Moo Sha] for the willful trespass which has occurred.”

The Court agreed that the trial judge’s approach was justifiable under Rector v. C.S. McCrossan, Inc., and the treble damage statute. It observed that Rector, while referring to various measures of damages, does not refer directly to punitive damages. Punitive damages may be awarded, however, when “the acts of the defendant show a willful indifference to the rights or safety of others.” The trial court found that the Baptists’ behavior was willful, and the evidence supported it.

Minnesota law provides that any award of punitive damages will be “measured by those factors which justly bear upon the purpose of punitive damages, including … the profitability of the misconduct to the defendant, … the attitude and conduct of the defendant upon discovery of the misconduct … and the total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct, including compensatory and punitive damage awards.” In this case, the Court didn’t think much of the Baptists’ attitude. First, the defendant cut the timber and removed the sand in order to line its own pocket, that is, to obtain cheap building materials for the camp. Second, the pastor continued to deny any willful misconduct throughout the trial, a denial that flew in the face of proof to the contrary and his own admission that he had been shown a clearly marked boundary prior to these takings. The appellate court dryly called the jury’s awarding compensatory and punitive damages a “just” result.

Kee Nee Moo Sha argued for use of the “replacement value” measure of damages also authorized by Rector, but the Court noted that in instances where the cost of replacement is unreasonable or excessive in relation to the damage to the land itself, the trial court may, in its discretion, allow the jury to consider more than one measure of damages in order to permit flexibility and achieve a just and reasonable result.

Case of the Day – Friday, February 13, 2015

LINES OF AUTHORITY

A county park had a contract with Green View — a nonprofit company with the laudable goal of putting our shiftless senior citizens to useful work like, say, cleaning up parks — to maintain the grounds. This is a good thing. Otherwise, retirees with their pants drooping to show their underwear and their “tatts” and funny flat-brimmed baseball caps worn sideways on their heads, just hang around and sride their little electric carts up and down streets and … you know what trouble they can be.

Green View’s people were busy staying out of trouble when a tree branch broke off a tree and struck a park patron during a summer storm. Being aware that branches never break off in storms unless someone is negligent, the injured woman sued the county and, for good measure, went after the old people, too. She argued that the elderly working for Green Tree had a duty to inspect the park for branches that might fall off in storms, and they had been too preoccupied with talking about their regularity to carry out their obligations.

In depositions, the Green View people admitted that they had looked for dead trees, but they explained that the county employees were responsible for removal of hazards like that. At least one deponent as well may have called the plaintiff a “young whippersnapper,” we suspect.

The young whippersnapper was, to use a legal term, whippersnapped. The court ruled that neither Green View’s contract with the county nor the job descriptions for its workers included any duty to inspect the trees or warn of their dangers. The county employees — who were immune from suit (if you’re wondering why the old folks at Green View were being picked on to begin with) — all agreed that it was the county’s duty to inspect trees and warn of dangers.

The injured plaintiff couldn’t find any duty that Green View or its senior-citizen workers owed her. Without the duty, there could be no negligence.

Senior citizens humor aside, it is this kind of litigation — and the legal fees Green View undoubtedly had to shoulder to defend an action for which there was no factual basis — that drives beneficial programs like this one (intended to provide meaningful work and activity for seniors) out of business). While an injury like the one the plaintiff suffered was lamentable, the reason branches fall in summer storms is fairly well understood.

Sometimes stuff happens, and suing anyone who happened to be nearby seldom makes it better.

Rolfhus v. County of Wright, Not Reported in N.W.2d, 2001 WL 290525 (Minn.App. 2001). Dawn Rolfhus was seriously injured at a Wright County park in 1997 after a tree branch broke and struck her head during a summer storm. She and her husband sued the county and respondent Green View, Inc., a non-profit organization that provides senior citizens with maintenance and custodial work at state and county parks. Green View had a contract with the county to maintain the park at which Rolfhus was injured.

The county park manager testified that the Green View employees, without discussion, undertook to remove the tree that had fallen on Ms. Rolfhus. Harold Johnson, a Green View employee, admitted to looking for dead trees in the park, but stated that it “isn’t our job to chop down trees or anything like that.” Another employee, Frank Duncan, conceded that he never saw any county employees in the park inspect trees, but that he “knew they did it.” The county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. The district court granted summary judgment to the county based on immunity, and to Green View based on a determination that Green View had no duty to inspect trees or warn park patrons of dangerous trees. Rolfhus appealed the grant of summary judgment to Green View.

Held:   The grant of summary judgment was upheld. The elements of a negligence claim include a duty, a breach of that duty, proximate cause, and injury in fact. Even where no duty otherwise exists, a person who voluntarily assumes a duty may be liable for failing to exercise reasonable care in performing the duty. One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.

The Court ruled that neither the language of the contract between the county and Green View nor the pertinent job descriptions created a duty for Green View employees to inspect trees or warn of their dangers. Furthermore, the county employees all testified that it was the county’s duty to inspect trees and warn of dangers, and the Green View employees all testified that it was not their duty to inspect trees or warn of their dangers. There was no issue of fact remaining, and judgment was appropriately entered for Green View.

Case of the Day – Tuesday, February 17, 2015

WHOSE TREES ARE THEY?

No issue of property ownership may be more misunderstood than the question of who owns the tree lawn, sometimes called the boulevard lawn, that strip of land between your front sidewalk and the street.

The confusion was illustrated recently by our reader Joel, who wanted the city to remove a dead tree on his tree lawn. He had always just understood that the tree lawn wasn’t his, and that he couldn’t cut or trim the trees growing there. We straightened him out, but a lot of uncertainty remains.

In today’s case, some homeowners knew the tree lawn was theirs, but their failure to appreciate the limits of their rights led to a suit against the city. It seems that the city was improving the street, and its plan included the removal of four trees from the Foote’s tree lawn. The homeowners demanded compensation, arguing that the city’s removal of the beautiful trees amounts to a “taking” of property under the 5th Amendment, a “taking” for which they must be paid. A trial court agreed with them.

The Minnesota Supreme Court reversed the decision. It explained that the Footes, like any owner, was entitled to use all of his or her property right to the centerline of the street. However, the property was owned subject to a public easement (that’s why a deed always says “subject to all legal highways, easements and other restrictions of record”). In other words, the owner’s use of the land had to yield to the public easement of the highway.

Here, the city was merely using more of its highway right-of-way by expanding the street. As long as it remained within the bounds of its easement — which usually extends beyond pavement for a distance — the city could remove trees and other of the owner’s property to the extent needed for the public’s enjoyment of the easement. The removal of the trees let the public enjoy the easement, and no money was due the property owner because of it.

How wide is the right-of-way? It depends on the state you live in and size of the street. If you have questions, you could check with your local government’s engineering department.  Or your lawyer.  Lawyers love to answer questions.  Usually for a fee.

Foote v. City of Crosby, 306 N.W.2d 883 (Sup.Ct. Minn. 1981). Gene and Joan Foote owned a home in the City of Crosby. The platted right-of-way of the street in front of the home, Cross Avenue, was 80 feet wide and extended to approximately 6 inches from the front steps of the house.

The center 32 feet of the right-of-way was paved. Next to the pavement is a 10-foot wide grassy boulevard, and then a 4-foot sidewalk. On the boulevard were four large healthy elm trees which had been maintained by the Footes. Although the trees had cracked and heaved the sidewalk, there had been no complaints that the trees impeded foot travel, nor had the trees interfered with motorized travel.

The city began an extensive municipal improvement project prompted by the need for storm sewers, including a new lateral line under Cross Avenue. To provide proper grade for drainage, Cross Avenue would be torn up entirely, a plan which called for removal of the four trees, because root cutting necessary to accommodate them to the change in grade and repositioning of the curb and sidewalk would likely kill them. The Footes sued for an injunction, arguing the city couldn’t cut the trees without paying them compensation. The district court granted the injunction, and the city appealed.

Held:  The injunction was dissolved. The Court observed that the owner of property abutting a right-of-way for public travel had the right to use his one half of roadway in any manner compatible with use by public of its easement. Any encroachment on the public right-of-way must be clearly obstruction to public easement before municipality may remove it without an adjudication that it was in fact an obstruction.

The Footes were not entitled to compensation for removal of trees within public right-of-way, the Court ruled, although they had a property right in the trees, because the taking was pursuant to a project which was a proper exercise of police power and encompassed a public purpose, and removal of trees was necessary to implementation of the project. After all, the Court said, the removal of the boulevard trees within the platted right-of-way was necessary to the street improvement project, and if not removed, the trees would clearly obstruct the public’s easement of travel.

Case of the Day – Wednesday, February 18, 2015

MORE FUN WITH TREE LAWNS

Confusion continues to reign over who owns and controls the tree lawn, that strip between your front sidewalk and the street. Yesterday, we looked at the city butchering the trees to widen the road. Today, we look at another case on the subject.

Good timing, too. Today’s Ash Wednesday, and we all know that means that parade season is almost upon us. Or at least, it will be as soon as the snow melts (which ought to be about the week of Memorial Day, given how much of the frozen white stuff is piled in front of our place). Sooner or later, the snow will melt, the bands will line up, and we’ll hear the same question again: can I, Harry or Harriet Homeowner, keep parade watchers off my beautiful tree lawn (or, in the alternative, can I reserve the best seats for my family and friends)?

We can’t answer that, but we can again remind you that generally speaking, it’s your treelawn (subject to the rights of the city to maintain it’s right-of-way). That’s what the Miller-Lagros established in today’s case. It seems that they arrived home one day to find that the electric utility and its tree trimming subcontractor had butchered the trees on their treelawn. This being America and all, they sued, citing a Minnesota statute giving them the right to treble damages for wrongful cutting on their property.

The trial court sided with the utility, holding that because the treelawn was land dedicated to the road right-of-way, the Miller-Lagros could not recover. The Court of Appeals reversed.

The Minnesota Supreme Court sided with the Miller-Lagros. It held that they had standing under common law and the statute. Sure, the Court said, their interest in the trees was subordinate to the right of the city, as exercised by the electrical utility in its utility line maintenance function. But the utility’s rights to trim, derived from the city’s right-of-way maintenance rights, existed only to the extent that the trimming was reasonable and necessary.

The Miller-Lagros had the right to their day in court to prove that the trimming was unreasonable.

Miller-Lagro v. Northern States Power Co., 582 N.W.2d 550 (Sup.Ct. Minn. 1998). When Heidi Miller-Lagro and Kent Lagro returned to their home in Medicine Lake on the afternoon on October 21, 1992, they were shocked to discover that Northern States Power Company and Asplundh Tree Company had cut down several trees that were located on the city right-of-way between their lot and the paved roadway. The Lagros sued NSP and Asplundh, who promptly submitted surveys showing the trees were on land that was dedicated as public roadway in 1887 and property of the City of Medicine Lake, not property of the Lagros’. The trial court denied the Lagros’ claim.

They appealed, citing Minn.Stat. §561.04, that stated “[w]hoever without lawful authority cuts down or carries off any … tree .. on the land of another person, or in the street or highway in front of any person’s house, … is liable ….” The district court granted NSP’s and Asplundh’s motion for summary judgment, concluding that the Lagros lacked standing and could not recover because the trees were not located on their property. The Court of Appeals reversed, holding that the statute did apply, remanding the case for further proceedings on the issue of whether NSP had lawful authority to cut down the trees.

Held:  The Miller-Lagros win. The Supreme Court held that homeowners had standing, under both common law and wrongful tree removal statute, to bring claim for removal of trees located on city property in front of their residence by a utility company’s contractor.

It is true that the homeowner’s interest in the trees is subordinate to the right of city, as exercised by electrical utility, in its utility line maintenance function, to trim or cut trees in performance of its public works, but the broad grant of authority provided by statute governing utility’s maintenance of its lines, and corresponding city ordinance, gives utility companies the lawful right to trim or remove trees that stood on city land in front of homeowners’ property only to the extent that the trimming is reasonable and necessary for purpose of constructing, using, operating, and maintaining lines.

Case of the Day – Thursday, February 19, 2015

SLAPP-HAPPY

Only in California could a tree-trimming case end up as a free speech issue.

Our regular readers know that good old-fashioned Massachusetts Rule self-help is available to any homeowner seeking to protect life and property from encroaching trees.    Today, we look at what happens when good old-fashioned common law self help runs into bureaucracy.

The Dilbecks wanted to add a second story to their house, but their neighbors’ oak tree had extended its branches so close to the Dilbecks’ place that they had to be trimmed back in order to make room. No problem, right? We all know that self-help is available to the Dilbecks anywhere in California. Sure, but it turns out the Los Angeles isn’t just anywhere. In LA, oak trees are “protected,” and before trimming the oak, the Dilbecks had to get a permit from the County. And the County wouldn’t issue a permit unless the tree’s owner signed on to it.

So much for self-help. The Dilbecks sued, asking that the County be ordered to issue the permit and that their neighbors be found liable in trespass for the tree (the theory being that the neighbors let the branches intrude over the Dilbecks’ lawn). And here’s where it got even more complicated. California has a statute addressing litigation known as “strategic lawsuits against public participation,” the so-called anti-SLAPP statute. This mouthful with the catchy name is intended to stop oppressive lawsuits intended to keep people from exercising their rights to free speech. There’s a whole cottage industry in the Golden State surrounding SLAPP actions. And as with a lot of other good ideas (such as RICO), the anti-SLAPP statute is another tool in the canny lawyer’s arsenal, something else with which to bludgeon a plaintiff.

Here, the neighbors complained that the Dilbecks were trying to force them to petition the County to let the tree get trimmed, and the suit should be thrown out as violating the anti-SLAPP statute. The trial court refused dismiss the action. The Court of Appeals agreed, holding that the Dilbecks weren’t demanding that the neighbors do anything. They were asking the County to do something, and they were suing the neighbors for trespass because of the tree. California law would let them collect money damages if the encroaching tree was a nuisance (Bonde v. Bishop held as much). So whether the Dilbecks win on the merits or not, the action was not a SLAPP suit, and it wouldn’t be dismissed.

Whew! Makes you long for the simple, ol’ Massachusetts Rule … no permits, no lawsuits, just an aggrieved landowner with a chainsaw.

Dilbeck v. Van Schaick, Not Reported in Cal.Rptr.3d, 2007 WL 2773986 (Cal.App. 2 Dist., Sept. 25, 2007).  The Dilbecks owned a place in Altadena, next door to the Van Schaicks. The Dilbecks planned to remodel their home by adding a second story. However, the branches of an oak tree located on the Van Schaicks’ property have grown over the Dilbecks’ home, rendering the Dilbecks’ plans unworkable unless the tree was pruned.

Oak trees are protected by California state law. The County of Los Angeles had adopted regulations to preserve and protect oak trees, requiring a permit to cut down mature oak trees or to prune their larger branches. The Dilbecks applied to the County for a permit, but the County had not approved it because it took the position that only the owner of the tree may obtain a pruning permit, and the Van Schaicks had not acquiesced. So the Dilbecks brought suit against the Van Schaicks and the County for declaratory relief and trespass. They alleged the oak tree growing on the Van Schaicks’ property had encroached onto the their land and interfered with their ability to add a second story to their home. The suit said the County refused to grant the permit because the Dilbecks were not the owners of the tree. The trespass cause of action alleged the oak tree branches were encroaching on the Dilbercks’ land, and asked for an order permitting the Dilbecks or an independent contractor to prune the tree.

The Van Schaicks filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, asserting that the complaint was based on their refusal to support the Dilbecks’ oak tree permit application and therefore attacked their right to free speech. They further argued that the trespass claim lacked merit because the law forbade the Van Schaicks to prune or cut the offending oak tree branches.

The Dilbecks contended that their action did not fit within the definition of a SLAPP suit and that, in any event, their complaint had merit. They denied that the complaint sought to compel the Van Schaicks to support or sign the oak tree permit. The trial court denied the Van Schaicks’ motion to strike, finding that they had not demonstrated that they were being sued for engaging in protected activity. Instead, the trial court held, they were just being sued for trespass. The Van Schaicks appealed the court’s denial of their motion to strike.

Held:  The Dilbecks’ complaint did not arise from acts undertaken in furtherance of the Van Schaicks’ rights of free speech or petition, and the Van Schaicks’ attempt to get it dismissed was rejected. The California Legislature enacted the anti-SLAPP statute in response to its perception that there has been an increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition for the redress of grievances. The anti-SLAPP statute provides a procedure for the court to dismiss at an early stage non-meritorious litigation meant to chill the exercise of free speech rights. The statute requires the trial court to engage in a two-step process when determining whether a motion to strike should be granted, first, whether the defendant has made a threshold prima facie showing that the acts of which it complains were ones taken in furtherance of its constitutional rights of petition or free speech in connection with a public issue, and two, whether there is a probability that the plaintiff will prevail on the claim.

The issue here, the Court said, was whether the complaint arose from conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. The Van Schaicks contended the suit sought to compel them to petition the County for discretionary relief from the oak tree statutes. The Court disagreed, holding that their characterization of the complaint was wrong. In fact, the Court said, the suit merely sought to compel the County to review the merits of the permit application submitted by the Dilbecks, and requested an order permitting the Dilbecks or their arborist to prune the tree. The complaint did not seek to compel the Van Schaicks to become personally involved in the permit application process in any way, and thus did not violate the anti-SLAPP statute.

The Van Schaicks contended that the complaint would indirectly force them to speak because a judgment in favor of the Dilbecks on the trespass action would necessarily require the Van Schaicks to petition the County of Los Angeles for discretionary relief from the Oak Tree statute. The Court rejected that argumnt, finding that the Van Schaicks’ position was based on the incorrect assumption that the only remedy available for trespass was injunctive relief. However, California law held a party over whose land overhanging branches extend may either cut them off or maintain an action for damages and abatement, as long as he or she can prove the branches constitute a nuisance.

The prospect that the Van Schaicks could eventually be faced with an order to abate the nuisance and could do so only by seeking a permit from the County did not transform the Dilbecks’ lawsuit into a SLAPP action. The Court ruled that the thrust of the Dilbecks’ complaint was the injury caused to their property by the encroaching tree, not the Van Schaicks’ decision to refrain from involvement in the permitting process. The permit, although obtainable only by petitioning a governmental entity, principally concerned and affected the remodeling of a private home by private individuals.

Case of the Day – Friday, February 20, 2015

MAKIN’ BACON

Running a swine farm is an odiferous but serious business. When a tree fell onto a power line on his neighbor’s land and interrupted his electricity, farmer Timmerman was glad that Northern States Power came out to his neighbor’s place and promptly trimmed the tree and fixed the lines.

But his relief turned to dismay when 10 minutes after the trimmer left, the remainder of the tree collapsed onto the power line. It turned out the tree that had caused the first outage was completely rotten. The second power failure cut off the ventilation to Timmerman’s hog barn, and 160 pigs met an untimely demise.

Timmerman sued both his neighbor for not having inspected the tree — which had been rotten for at least five years — and the power company for being grossly negligent in trimming the tree. He claimed gross negligence because Northern States Power’s tariffs excluded it from liability except for gross negligence. The trial court turned him down.

The Court of Appeals agreed. It noted that gross negligence is a pretty serious derelection of duty, and that Timmerman’s saying didn’t make it so. The neighbors didn’t have a duty to Timmerman, it held, because he wasn’t an invitee (or even a trespasser) onto its land. It noted that NSP had trimmed the tree to the national code, and meeting a national standard was performance enough.

The decision is a little puzzling, because it’s fairly well established that an owner has a duty to inspect trees (with a degree of care that varies according whether the land is urban or rural). If Timmerman had been driving by and the tree had fallen onto his truck, there might have been liability. Why not for 160 hogs’ worth of bacon?

Timmerman v. Manguson, Not Reported in N.W.2d, 1996 WL 266404 (Minn.App. 1996). Timmerman owned and operated a hog farm, to which Northern States Power provides electrical power. The power lines run north across the Mangusons’ farmland and continue onto Timmerman’s land. One afternoon, limbs on a willow tree located on the Mangusons’ land broke, striking the power line and causing a power outage on Timmerman’s farm.

NSP investigated the site, found the burned tree limb that had struck the power line, and trimmed some branches back. The tree trimmer investigated the trunk of the tree from his position on the power pole, but he did not see any signs of cracking or damage to the tree trunk. Ten minutes after he left the area, the power went out a second time. The trimmer returned to the site and trimmed back the tree sufficiently so that, if it continued to topple over, the tree would not hit the power lines again. The next morning, he called another NSP representative to report the outages and suggest that they send in the tree trimming crew to clean up the area.

The second power outage left about 160 pigs in Timmerman’s barn without ventilation, and despite Timmerman’s efforts, nearly all of the pigs in two of the five rooms in the barn died. The tree turned out to be rotten and, according to Timmerman’s expert witness, “undergrown … or there was a lot of trees in that area.” The expert determined that the tree had been rotting for at least the past five years and posed a significant hazard to the power lines.

Timmerman sued NSP for gross negligence and the Mangusons for negligent maintenance and inspection. Both NSP and the Mangusons moved for summary judgment. The district court granted both motions, finding, as a matter of law, that NSP had not been grossly negligent and that the Mangusons owed Timmerman no legal duty.

Timmerman appealed.

Held:   The decision in favor of the Mangusons and NSP was upheld. The Court held that gross negligence was substantially and appreciably higher in magnitude than ordinary negligence. It was materially more want of care than constitutes simple inadvertence, an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.

Timmerman presented evidence that the tree and power lines at issue could not be viewed properly from the road, but required an on-site, on-foot inspection. He also presented evidence that NSP failed to trim the tree near the lines and allowed them to become overgrown with vines and vegetation.- But the Court said that this evidence did not rise to the level of gross negligence. NSP did not demonstrate an “indifference to present legal duty” nor did it act without “scant care” or “slight diligence.”

NSP had most recently trimmed this tree within NSP’s policy of trimming every four years. Since 1990, NSP had routinely checked the power lines at issue here in accord with the National Electric Safety Code (NESC). NSP representatives have viewed the power lines and trees from the road when driving through the area. NSP also trimmed portions of the tree after the first power outage to restore service. Although, the Court found, the evidence suggests that NSP could have more diligently exercised its duties, that evidence only raises the question of ordinary negligence, for which NSP is not liable under its own tariffs.

As for the Mangusons, the Court held that they had no legal duty to protect Timmerman because they did not have a “special relationship” in which Timmerman had entrusted his safety to the Mangusons. The parties’ relationship as neighboring farmers does not fall into any of the limited number of “special relationships” that the Minnesota supreme court has recognized. Although Timmerman contended the Mangusons had a duty to inspect and repair the tree or else warn him of the dangers on their land, the Court held that the theories of duty and liability don’t apply here because Timmerman was not an “invitee” or “licensee” on the Mangusons’ property. Furthermore, the Court said, even if the Mangusons knew the old tree was near the power lines, knowledge of a dangerous condition, by itself, without a duty to protect, was not sufficient to establish liability for negligence.

Given that no legal duty existed, Timmerman’s negligence claim against the Mangusons could not stand.

Case of the Day – Monday, February 23, 2015

DON’T SIT ON YOUR RIGHTS

Today’s case appears at first blush to be nothing more than a titanic conflict between a fast food purveyor and a strip mall, hardly the material that will get a tree or neighbor law fan’s blood pumping. But it illustrates a few worthwhile points.

A Burger King and a Long John Silver’s sat next to each other in Bay City, Michigan. The owners of the lots agreed to mutual easements so that patrons of each could use a common driveway while their arteries clanged shut from the cholesterol and trans fat.  The easements were written without benefit of a legal description of the land subject to the easement (perhaps to save the $300 or so a surveyor would have cost). Sometime after that, the Burger King was dethroned, and the restaurant was torn down. The buyer of the land, the strip mall next door, tore down the BK and expanded the mall. In so doing, the developer built over where one of the access drive easements lay (although the actual common driveway had never been constructed).

The Long John Silver’s crew observed the construction, but the company didn’t complain until the construction was completed. Then, the fish folks sought an injunction in federal court to get the offending building torn down. The Court agreed that the mall developer had violated the easement, but the facts that the remedy was so drastic (tearing down the building) and the fact that Long John Silver’s sat on its complaint during the construction, and said nothing when the mall developer could have remedied the problem easily. That is called “laches,” and the law doesn’t think much of people who engage in it.

The case wasn’t resolved at that point, but Long John Silver’s was more likely to just win the difference in value of the real estate (about $35,000, or 1,591 8-piece family meals). But the lesson is that if you sit on your rights and permit the other party to really damage you, you may be severely limited in your remedies.

BR Associates, Inc. v. LaFramboise, Slip Copy, 2007 WL 1840031 (E.D.Mich., June 26, 2007). BR operated a Long John Silver’s restaurant just west of a busy intersection in Bay City, Michigan. LR owned a commercial plaza east of the Long John Silver’s at the intersection itself. In 2004, a Burger King operated on the LR site, but it closed and the site was sold to LR. LR demolished the Burger King and added on to its existing plaza, making space for five new tenants. BR’s fish fryers were aware of the construction, and they informed BR’s corporate offices of the activity.

BR never complained during the construction. But after LR was done, BR claimed that the plaza blocked an easement arising out of a written agreement entered into by BR and the old Burger King owner, in which BR and the prior owner gave a mutual “perpetual, non-exclusive easement” for the customers of each other to use two driveways (the “North Access Drive” and the “South Access Drive”) on the easement areas, which were the boundaries of the two properties. Under the easement, the parties had the right “to relocate from time to time and in each party’s own discretion, those driving aisles and ingress and egress points located on their own Parcels … provided that such relocation does not adversely effect the other party’s right to use the Easement Area … [and] upon the mutual written agreement of the parties hereto.” Apparently, the contemplated South Access Drive was never constructed when the Burger King still operated. The easement agreement did not specify the width or the length of the access drives nor did it have a legal description of the areas. LR did not get BR’s permission to move the North Access Drive, nor did it have permission to completely block the South Access Drive, which it did as a result of the construction.

BR sued LR for trespass during the construction, but mostly for breach of the easement agreement, seeking an injunction to compel LR to honor the easement. BR contended that LR’s conduct violated the easement agreement and placed an increased burden on the easement. LR’s actions constituted a trespass, in BR’s view, and created additional wear and tear on BR’s parking lots. Finally, LR’s activities interfered with BR’s business. BR claimed that the easement agreement simply did not contemplate loading and unloading of vendor vehicles as well as parking or that LR would use BR’s property for uses beyond simple customer ingress and egress contemplated by the easement agreement.

LR argued that any recovery for breach of the easement agreement should be limited to $35,000, because BR’s appraiser valued its property with the easement at $650,000 and without the easement at $615,000. BR and LR both moved for summary judgment on all issues.

Held: BR was entitled to summary judgment on some claims, and others would go to trial. The District Court noted that Michigan law defined an easement as the right to use the land of another for a specific purpose. In order to create an express easement, there must be language in the writing manifesting a clear intent to create a servitude. Any ambiguities are resolved in favor of use of the land free of easements. The plain unambiguous language of an agreement controls the determination of whether breach has occurred.

Here, the Court said, there could be no dispute the LR breached the express terms of the easement when it constructed the addition to the plaza. The easement agreement provided that an “access drive” could only be relocated upon the mutual written agreement of the parties. LR didn’t contend that it got BR’s consent. Instead, it claimed that the South Access Drive never came into existence at all. No curb cut was made, and the electrical installations otherwise blocking the south access drive preventing its use were never removed. The parties’ course of performance, LR argued, demonstrated that there never an intent to open the south access drive.

But the Court found that the parties’ mutual intent was clearly expressed in the plain language of the easement agreement, which granted BR a “perpetual, non-exclusive easement.” The fact that one of the access drives hadn’t been built, the Court said, provided no basis for the Court to depart from the language of the agreement. However, the Court said, requiring LR to remove the building blocking the south access drive was unjustified, because BR waited until construction was complete to seek any type of relief and it couldn’t identify the specific dimensions of the South Access Drive, because neither party required that level of precision in the easement agreement. It would be difficult if not impossible, the Court said, to fashion such injunctive relief to the extent of the breach. Finally, destroying the structure would necessarily be economic waste.

The Court refused summary judgment on BR’s remaining issues, denied summary judgment on all of LR’s issues, and set trial dates.

 

Case of the Day – Tuesday, February 24, 2015

ZOOM, ZOOM, DING

An alert reader sent us a link to a sports car forum, in which the proud owner of a Mazda RX-8 bemoaned the fact that his car had been hit by a limb that fell from his landlord’s tree. The owner wondered whether his landlord was liable for the deductable on his insurance.

Good question!  Because the RX-8 and the tree both are South Carolina, we looked first at Staples v. Duell. In that case, Ms. Staples was driving down a rural road when she came upon one of Mr. Duell’s trees, which had fallen across the road. She came upon it rather suddenly, because she collided with it. She sued Mr. Duell, who was a landowner of some magnitude (about two miles worth of real estate along each side of the road).

Mr. Duell had an employee who was assigned the task of checking the security of the estate, including looking for dead trees, on a daily basis. Somehow, he must have missed this 100-foot pine’s condition. Ms. Staples sued Mr. Duell for negligence.

The Court found for Mr. Duell. It held that in South Carolina, rural landowners have no duty to others to inspect and improve their land. The fact that Mr. Duell voluntarily did so by sending an employee around didn’t create a duty where none existed. And that makes sense: if voluntarily performing a good deed created a legal duty to perform such deeds, no one would ever perform a good deed, that is, to go beyond the minimum the law requires for fear they would become liable for a good deed.

This doesn’t exactly answer our driver’s lament. After all, the landlord may be an urban landowner, and the Court suggests that an urban owner’s duty is different. Also, as a landlord, the tree owner’s duty may be greater. We’ll consider that tomorrow.

Meanwhile, good news from the Mazda front … our hapless sports car owner reported that his landlord’s insurance will cover his deductable.

Staples v. Duell, 329 S.C. 503, 494 S.E.2d 639 (S.Ct. S.C. 1997). Ms. Staples was driving from Charleston toward Summerville on Highway 61 when she encountered a dead pine tree in the road. She swerved but collided with the tree, a 100-foot long dead pine.

The tree fell about sixty feet from the roadway and was located on Mr. Duell’s land, a plantation that stretched for about two mile along both sides of the road. In this area, only one residence – a cabin – stood. About 13,500 vehicles a day passed by Duell’s two-mile stretch of land on Highway 61. Duell owned Middleton Place National Historic Landmark, a tourist attraction which received about 100,000 admission-paying visitors a year. The only public entrance or exit to Middleton Place is on Highway 61. Duell maintained a 250-foot buffer zone of trees on both sides of the highway to protect the scenic beauty of the road. Duell’s employee, James Woddle, took care of the woodlands at Middleton Place. Woddle’s job duties included twice a day driving around the perimeter of Middleton Place to inspect the premises. During his inspections, he looked for trespassers, abandoned vehicles, and dead trees.

Staples sued Duell for negligence in permitting the tree to become a hazard. The trial court directed a verdict for Duell, holding that because the land from which the tree fell was rural, he had no common-law duty to discover and prevent the dangerous condition caused by the dead pine tree. Even if Duell had a policy of searching for dead trees along the roadway, his voluntary practice did not create a duty. Duell could have abandoned it at any time and it did not increase the risk.
Staples appealed.

Held:  The Court found for Mr. Duell. To prevail on her theory of negligence, Ms. Staples had to establish that (1) Duell owed her a duty of care, (2) that by some act or omission, he had breached that duty, and (3) that as proximate result of his breach, she had been injured. The Court ruled that as an owner of rural property adjacent to a highway, Duell did not owe duty of care to motorists on highway to inspect and improve his land. Rural landowners have different duties and responsibilities from city dwellers, the Court said, based on the different level of risk posed by defects on rural land and the burden of maintaining larger tracts of real estate. Thus, unlike urban landowners, rural landowners do not have a duty to inspect and improve land.

Mr. Duell’s policy of searching for dead trees on his property was good stewardship, but it did not result in his assuming a duty to motorists for injuries resulting from trees falling onto the road. His policy of examining his trees didn’t increase risk of harm to motorists. The people driving by had no prior knowledge of the policy and thus did not detrimentally rely on it. This of course makes one wonder – if people did rely on Mr. Duell’s perspicacity and gumption, would the Court have turned his voluntary good deed into a duty? A scary thought …

Case of the Day – Wednesday, February 25, 2015

AT THE ZOO

Simon and Garfunkel told us that the monkeys stood for honesty, the giraffes were insincere, and the elephants were kindly but dumb. We don’t know about that, but they were right when they sang that “it’s all happening at the zoo.”

Just ask Ms. Cherney. She’d tell you that one thing Simon and Garfunkel didn’t mention were the ficus trees. One ficus at the Zoo — the North Carolina Zoological Park — fell on poor Ms. Cherney, injuring her. That began an eight-year legal odyssey through the North Carolina legal system, through the Industrial Commission (which hears tort claims made against the state), the Court of Appeal, the Supreme Court, back to the Commission, and again to the courts.

In the penultimate chapter, the North Carolina Court of Appeals ruled that Cherney had no evidence that the Zoo personnel had any basis to believe the ficus was about to fall. Of course, the evidence also suggested that the whole idea of having a ficus growing too large in an indoor setting and not being properly maintained was rather daft. And whose fault was that? The beavers, perhaps?

A dissenting judge vigorously disputed this, pointing out that the tree had been cabled to a wall to help support it. The very fact that the Zoo believed that cables were needed was evidence that they knew the tree was a hazard, the dissenter argued.

Usually, dissenting opinions are curiosities, but little more. On three-judge appellate panels, 2-1 majorities carry the day. Despite the fact the dissenter probably thought he was talking to himself, he nonetheless explained in detail how the record supported finding the Zoo liable. This time, however, the dissenting judge found that he had some fans – the justices on the North Carolina Supreme Court.

The Supremes reversed the Court of Appeals in a terse per curiam opinion (that means “by the court,” agreeing with Judge Wynn’s analysis.

This kind of thinking does raise a conundrum. Bracing or cabling a tree is a well-established practice in arboriculture. There’s even an ANSI standard for it. Could it be that cabling a tree may be prudent from an arboriculture standpoint but legally dangerous? A careful tree professional would probably take from this decision the notion that he or she would be well advised to tell any client for whom a tree is cabled or braced that the very fact the tree was braced means it should be considered to be a hazard tree. That of course would bring with it responsibilities for regular inspection and – just ask Ms. Cherney – notice to people who could be affected if the tree falls.

Cherney v. North Carolina Zoological Park, 648 S.E.2d 242 (N.C.App., Aug. 7, 2007), reversed, 362 N.C. 223, 657 S.E.2d 352 (N.C. Supreme Court, 2008). Tinya Cherney was in the enclosed African Pavilion at the North Carolina Zoological Park near the center when a large ficus tree fell hitting a palm tree. Both trees then fell on her, pinning her to the floor of the walkway in the African Pavilion. The impact caused vertigo, broke her right femur, cracked three ribs, broke her back and wrenched her knee.

The injury occurred because the ficus tree — which was indoors – had been permitted to grow too large for its roots, or alternatively, had not been properly maintained to prevent it from becoming unsafe. The ficus tree was under the exclusive control of the Zoo’s personnel and not subject to wind or any other natural force. A hearing examiner at the North Carolina Industrial Commission awarded Cherney $500,000 in damages. Unhappy at the result, the Zoo appealed.

The full Commission reversed the award and found for the Zoo. Cherney appealed to the North Carolina Court of Appeals, which affirmed the Commission’s claim. She took it the North Carolina Supreme Court, which reversed and remanded. The Commission then entered a second decision denying Cherney’s claim. She again appealed.

The Court of Appeals held that the Commission’s second decision denying Cherney’s claim was proper, even though the Supreme Court had ruled in her favor on her appeal from first decision of the Commission denying her claim. The Court of Appeals agreed with the Commission’s finding that the evidence showed that neither the zoo’s curator of horticulture nor her staff knew or should have known that the ficus tree that fell in the zoo exhibit was likely to fall, and that there was no showing that any member of the curator’s staff violated any applicable standard of care.

In a carefully-crafted dissent, Judge Wynn observed that the evidence showed that when the ficus tree was replanted, “six, seven-strand 3/8 ” cables going in four directions were looped around the tree and attached to the planter walls” in order “to aid the tree in keeping it upright and to assist in monitoring the tree.” The cables were inspected monthly by the Zoo staff. Two of the four cables had snapped when the tree fell on Ms. Cherney. The judge argued that the “very fact that the tree was cabled to the planter walls illustrates that the Zoo and its employees had “express or implied knowledge” that the tree might fall; if there had been no danger, then the tree would not have needed to be cabled in such a fashion, nor would the Zoo employees have needed to monitor it so closely.”

The dissent argued that the question was not whether the tree was likely to fall, as the Commission thought it was. Rather, the issue was whether a Zoo visitor such as Ms. Cherney or one of the tens of thousands of kids who passed through each year – was unnecessarily exposed to danger and was not warned of a hidden hazard. The dissent believed that they were, and the Zoo had a duty to warn visitors of the possibility that the tree might fall.

The North Carolina Supreme Court reversed the appellate panel, and specifically adopted Judge Wynn’s reasoning as its basis for doing so.

 

Case of the Day – Thursday, February 26, 2015

WHATCHA GONNA DO WHEN THEY COME FOR YOU?

Many people find it hard to believe that until 30 years ago or so, a citizen was largely without remedy when federal employees violated his or her Constitutional rights. Oh, sure, if the feds beat a confession out of you or took your stash of B.C. Bud without a warrant, you might get the confession suppressed or the fruits of the illegal search excluded from your trial. But this pretty much meant that only the guilty could get their Constitutional rights vindicated. What if you were like Mr. Bivens, whose door was kicked in by drug agents who had the wrong house? In 1971, the Supreme Court said that for violation as important as the breach of one’s Constitutional rights, a remedy must be found.

Since that time, Bivens actions have been employed, mostly without success, by citizens whose rights have been allegedly trampled by federal agents and employees. Which brings us to rancher Robbins. He bought a ranch whose predecessor had given the federal Bureau of Land Management an easement. But the BLM knuckleheads never recorded it, so when Robbins bought the place, he took the ranch free of the easement. BLM demanded he sign another one. He refused.

What followed was a disgraceful reign of harassment which caused one BLM official to resign, saying “[i]t has been my experience that people given authority and not being held in check and not having solid convictions will run amuck [sic] and that [is] what I saw happening.” But the BLM’s war of attrition was one of a thousand petty slights — trespasses, spurious administrative sanctions, even videotaping of his guests — and Mr. Robbins didn’t have the money or energy to litigate every one of them.

Too bad for him. The Supreme Court held that there was no Constitutional remedy for the non-stop harassment by government employees. Instead, the victim must bankrupt himself or herself by litigating the slights as they occur. It’s like suggesting that the best remedy for a death by a thousand cuts is a thousand Band-aids. And to add insult to injury, the Court held that what would be extortion if inflicted on an East Side shopkeeper by the Mob is perfectly lawful is practiced by a government employee to gain an advantage for the government.

Wilkie v. Robbins, 551 U.S. 537 (2007). Robbins’s Wyoming guest ranch was a patchwork of land parcels intermingled with tracts belonging to other private owners, the State of Wyoming, and the federal government. The previous owner granted the United States an easement to use and maintain a road running through the ranch to federal land in return for a right-of-way to maintain a section of road running across federal land to otherwise isolated parts of the ranch. When Robbins bought the ranch, he took title free of the easement, which the Bureau had not recorded.

Robbins continued to graze cattle and run guest cattle drives under grazing permits and a Special Recreation Use Permit (SRUP) issued by the Bureau of Land Management. Upon learning that the easement was never recorded, a BLM official demanded that Robbins re-grant it, but Robbins declined. Robbins claims that after negotiations broke down, BLM employees began years of low-level harassment of him in order to force him to re-grant the BLM easement. This harassment included an unauthorized survey of the desired easement’s terrain and an illegal entry into Robbins’s lodge. In each instance, Robbins had a civil damages remedy for trespass, but he did not pursue it because the isolated trespass had caused inconsequential damages. BLM at the same time began vigorous — perhaps unduly vigorous — enforcement actions against Robbins, including administrative claims for trespass and other land-use violations, a fine for an unauthorized road repair, and two criminal charges.

Robbins had the opportunity to contest all of the administrative charges. He fought some of the land-use and trespass citations, and challenged the road repair fine as far as the Interior Board of Land Appeals, but did not seek judicial review after losing there. He exercised his right to jury trial on the criminal complaints, and the jury acquitted him after only 30 minutes deliberation. Although the quick verdict tended to support Robbins’ baseless-prosecution charge, the federal trial judge did not find the Government’s case thin enough to justify attorney’s fees, and Robbins appealed that ruling too late.

BLM also cancelled a right-of-way given to Robbins’s predecessor in return for the Government’s unrecorded easement, a 1995 decision to reduce the Robbins’ special recreational use permit duration from five years to one, and termination of the SRUP and a grazing permit in 1999. Robbins also alleged BLM employees videotaped his ranch guests during a cattle drive, and they attempted unsuccessfully to pressure a Bureau of Indian Affairs employee to impound Robbins’s cattle. Robbins has an administrative, and ultimately a judicial, process for vindicating virtually all of these complaints. Instead, he filed a claim against the BLM employees he alleged had orchestrated and carried out the low-intensity warfare against him to pressure him into granting BLM an easement, claiming that they had violated his due process rights under color of their office, relying on Bivens v Six Unnamed Agents of the BNDD, a Supreme Court case from the 1970s that permitted citizens to sue federal employees who had violated their constitutional rights. Robbins also claimed the employees had engaged in RICO (Racketeer-Influenced and Corrupt Organizations Act) conduct by blackmail and extortion (a so-called Hobbs Act violation) in order to obtain a new easement. The trial court threw out the suit, but the 9th Circuit Court of Appeals reinstated it. The BLM sought review from the U.S. Supreme Court.

Held: The Supreme Court dismissed the case against the BLM employees. The Court held that a landowner did not have a private action against BLM’s employees for damages of the sort recognized under Bivens, and the alleged violations of the Hobbs Act and state blackmail statutes by BLM employees in their efforts to obtain an easement over landowner’s property for the exclusive benefit of the Government did not qualify as a predicate RICO offense.

The Court said that trying to induce someone to grant an easement for public use was a perfectly legitimate purpose, and, as a landowner, the Government had a valid interest in getting access to neighboring lands. To permit a lawsuit to redress retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing OSHA regulations. The Court observed that Congress is in a far better position than a court to evaluate the impact of a new species of litigation against those who act on the public’s behalf. At any rate, the Court said, the Hobbs Act does not apply when the federal government is the intended beneficiary of extortionate acts by government employees. given that the alleged conduct did not fit the traditional definition of extortion

The Court found it noteworthy that Robbins had had judicial and administrative remedies for all of the minor annoyances, harassments and inconveniences which he, in the aggregate, claimed merited a Constitutional rights lawsuit. He did not pursue many of these remedies, and those he did pursue he often did not pursue to the end. Given that the wrongs he complained of were not without remedy, the Court was uncomfortable with trying to create a new one, especially one which it feared would spawn so much litigation.

Two justices dissented in part to the decision.

Case of the Day – Friday, February 27, 2015

EVERYONE KNOWS IT’S WINDY

Yesterday, we saw a tractor-trailer blown off the highway into a snow drift by a bitter north wind. And here we were under the impression that this Sunday is the first meteorological day of spring, too.   Br-r-r-r.

The wind reminded us of the case we’re writing about today. We’re not suggesting that the case has an Association to the 1960’s hit. But it was windy one night near the musical instrument capital of the world, and many trees in Elkhart County were blown over. The county crews worked diligently through the night cleaning up the mess, but Marvin Hochstetler rode his motorcycle down a dark county road in the predawn hours, he found a tree the county hadn’t gotten to — and he found it the hard way.

As he recuperated from his injuries, Mr. Hochstetler hired a canny personal injury attorney. The problem was that that the Indiana Tort Claims Act had an exemption carved out for conditions arising from inclement weather. Our intrepid cyclist’s response was two-fold: (1) this was so long after the storm (a whopping four hours) that it no longer qualified as storm damages; and (2) if the County hadn’t been negligent in maintain roads and trees prior to the storm, the limb he hit wouldn’t have been there. He lost in the trial court, but the Court of Appeals agreed with Hochstetler.

The Indiana Supreme Court wasn’t buying, however. It upheld the trial court, finding that the unrebutted evidence told of widespread damage and hard-working repair crews through the nighttime hours. To agree with Mr. Hochstetler that the limb with which he had become intimately familiar should have been removed prior to 5 a.m. was to hold the County to too high a standard.

Hochstetler v. Elkhart County Highway Dept., 868 N.E.2d 425 (Sup.Ct. Ind., June 20, 2007). At around 1 a.m. on June 12, 2001, Elkhart County was hit by a strong storm that produced many fallen trees and limb. The county started dispatching crews about 1:30 as calls began coming in to the highway garage. There were eventually 56 reports of fallen trees on county roads as a result of the storm.

Among these reports, received about 2 a.m., was a call about a tree down on County Road Four, north of State Road 120. It turns out that County Road Four is some seven miles long, and State Road 120 does not intersect with it. Riding his motorcycle sometime very early that morning, Marvin Hochstetler struck a tree that had fallen across County Road 4.

Hochstetler contended the erroneous report was about the tree he hit. Hochstetler sued the highway department, the county commissioners, and the county sheriff, alleging that they were negligent and careless in maintaining the county road. The county defendants moved for summary judgment on the basis of immunity under the Indiana Tort Claims Act. The trial court granted them judgment.

The Court of Appeals reversed.

The Indiana Supreme Court then heard the case.

Held:  The county defendants prevailed. A provision of the Indiana Tort Claims Act provides immunity for losses resulting from temporary conditions of public thoroughfare that result from weather. The Supreme Court held that the provision applied to county highway, sheriff’s departments and county commissioners insofar as the personal injuries went that Mr. Hochstetler claimed to have sustained when he hit a tree that had fallen on a county road.

The unrebutted evidence showed that the storm produced scores of trees and limbs down on roads, county highway crews were on the job almost immediately, and highway crews were still at work hours after storm had passed in middle of the night. The Court agreed that state and local governments may have tort responsibility for damages flowing from negligence, but the Tort Claims Act grants immunity for that negligence under certain specified circumstances. This was one such circumstance, the majority held.

The plaintiff tried to get around the weather exception by arguing that the weather-related hazard went on too long after the storm, and that there was an issue of fact whether poor design and maintenance — not the storm — was responsible. One judge thought the plaintiff had enough of a point so as to survive summary judgment, but the majority of five judges prevailed.