Cases from February 2016

Case of the Day for Monday, February 1, 2016


The Sanders were promised this ...

The Sanders were promised this …

Don and Susan Sanders loved the beautiful wooded subdivision in Grapevine, Texas, where they had bought their new house. The helpful salesperson had assured them that developer Weekley Homes intended for the subdivision to have a wooded, country atmosphere and “would take ordinary care” to preserve existing trees. After all, the sales flack with treacly sincerity, Weekley planned that the amenities for the subdivision would include wooded home sites. Not to worry, the syrupy agent smarmed them, because even if this weren’t so, everyone knew that the City of Grapevine, Texas, had a very tough tree ordinance which would be enforced strongly against Weekley.

Well, apparently not. The ordinance had teeth like a crocodile, but that’s not much solace unless the city enforces its terms. Here, as soon as the Sanders moved in, the trees started moving out. They complained that Weekley apparently had no intention of complying with the promises to keep the trees standing – they were tipped off by the shriek of the chainsaws – and the City seemed to have no intention of enforcing the tree ordinance. The Sanders tried to resolve the problem by writing a few letters and attending City Council meetings, but all that bought them was harassment by the City and the developer.

... but they ended up with this.

… but they ended up with this.

So they sued, going after the developer for misrepresentation and after the city and a gaggle of city officials for not enforcing the tough tree preservation law they had heard so much about. There’s nothing that’ll wake up a developer and city officials like the robust aroma of a freshly filed lawsuit.

Weekley apparently responded rather weakly, but the City took strong expection to the suit. Grapevine claimed it was immune from liability to its citizens for the City’s failure to enforce its tree laws. In other words, if city officials chose to look the other way when Weekley cut trees down daily, the Sanders had just better get used to the unfiltered Texas sun.

The Court of Appeals agreed, insofar as money damages were concerned. The Texas Tort Claims Act protected Grapevine officials. But the Sanders had asked for a declaratory judgment, too. Although their filings were not all that clear, the Court surmised that the Sanders wanted a judicial finding as to what rights they had, if any, under the City’s tree law.

Grapevine was not immune from a declaratory judgment action, the Court held. And while there are no money damages awarded for a declaratory judgment, a clear judicial finding that that the City fell down on the job of enforcing its ordinances could have substantial political effects. What mayor wants a judicial finding that he or she hasn’t enforced a law that most citizens fully support?

killer150116Sanders v. City of Grapevine, 218 S.W.3d 772 (Ct.App. Tex., 2007). Don and Susan Sanders sued the City of Grapevine, Texas, and a number of individuals over the City’s alleged failure to enforce its tree preservation ordinance. They had bought a home constructed by David Weekley Homes in the Silverlake Estates Subdivision, primarily due to its “wooded” and “country atmosphere.” The Sanders claimed that a sales consultant for Weekley Homes had assured them that Weekley Homes intended for the subdivision to have a wooded, country atmosphere, that Weekley Homes “would take ordinary care” to preserve existing trees, that the City of Grapevine had “an extremely tough tree ordinance,” and that the amenities for the subdivision would include wooded home sites.

But after they moved into their new home, it became clear to them that Weekley Homes had no intention of complying with, and the City had no intention of enforcing, the tree ordinance, after Weekly Homes cut down numerous trees within the subdivision. The Sanders brought claims for breach of contract and local tree preservation act violations against Weekley Homes — and for fraud, negligence, and negligent misrepresentation against all of the defendants — due to Weekley Homes’s failure to comply with, and the City’s failure to enforce, the City’s tree ordinance. They alleged the City was liable under §101.0215 of the civil practice and remedies code for damages arising from its governmental function of enforcing the tree ordinance. The Sanders also asked for a declaratory judgment.

The City argued that the Sanders’ claims against it should be dismissed because the City is entitled to governmental immunity. The individual defendants filed a motion to dismiss the claims against them with prejudice under the election of remedies section of the Texas Tort Claims Act. The trial court agreed, and the Sanders appealed.

Held: The Court of Appeals held that the city was immune from liability to the Sanders for negligence and fraud claims under the Texas Tort Claims Act, but it was not immune to a declaratory judgment action.

lawsuit150116The Court observed that in determining whether a city is subject to suit and liability under the Texas Tort Claims Act, the Court of Appeals must first determine whether the alleged conduct falls within the list of governmental functions listed in the Act, and if it does, the Court must then look to see whether the conduct falls within one of the other provisions of the Act that waives immunity. Here, the Court said, the City’s alleged conduct in failing to enforce a tree preservation ordinance clearly did not fall within the area of conduct for which governmental immunity was waived under the Texas Tort Claims Act. Waivers of immunity for negligence referred to conduct involving property damage, personal injury, or death, not alleged negligence in enforcing a statute on tree preservation. What’s more, the Act did not waive immunity for intentional torts, precluding an immunity waiver as to the fraud claim.

The Sanders also sued for a declaratory judgment determining what rights they had as homeowners under the City’s tree preservation statute. The Court agreed with them that the City was not immune from such an action, holding that a party does not need legislative permission to sue a governmental entity to determine its rights under a statute or ordinance, because the declaratory judgments action did not seek to impose damages or other liability on the city.


Case of the Day for Tuesday, February 2, 2016


RefIt’s Super Bowl week, and we celebrate by considering one of the cardinal rules of trespass. Today we’re discussing illegal contact.

Usually illegal contact, that is, trespass to trees — where someone enters someone else’s land and cuts down trees without any right to do so — are pretty cut and dried. But not all trespasses are clear-cut (to turn a pun).

In today’s case from Louisiana, a party bought a piece of land from the tree owner’s sister, but conditioned the purchase on being able to get rid of some trees on the boundary line with the tree owner. The owner – no doubt a Patriot – signed a contract entitling the buyer to cut down trees on the boundary. The problem was that the contract was imprecise as to how many, or where exactly the trees were. The only thing that was clear was that the parties agreed that wild Broncos couldn’t pull him

over to cut down the tree owner’s prize old live oak.

Too bad the owner didn’t watch the tree-cutting crew like a Seahawk. The buyer’s contractor was kind of a Buccaneer. He cut down 12 trees and, although he was told not to, he trimmed the live oak pretty aggressively. The owner cried “Deciduous foul!” and lawsuits flew like yellow hankies. He sued the buyer, Raven that he hadn’t given permission to do anything like that. He wanted treble damages for the wrongful cutting.

The Carolina Panthers - that is, the Franklin, North Carolina, High School Panthers. They were WNCAC champs in 2015, but they won't be playing this Sunday.

     The Carolina Panthers – that is, the Franklin, North Carolina, High School Panthers. They were WNCAC champs in 2015, but they won’t be playing this Sunday.

The court awarded about $5,000 in damage for the cut branches on the live oak, but it disagreed on the treble damages. The Court said that the ambiguous contract seemed to contemplate that the 12 trees would be cut down, and there was no basis for any recovery on those. As for the injured live oak, it was damaged but still standing. The statute awarded treble damages for cutting down trees, and the trimming — although a violation of the contract — wasn’t something for which treble damages could be awarded.

The plaintiff felt deflated over the whole episode.

Distefano v. Berrytown Produce, LLC, 973 So.2d 182 (La.App. 1 Cir., 2007). Distefano owned a 2-acre vacant tract of land along Church Street. Berrytown Produce, LLC sought to buy a piece of land next to the Distefano tract to operate a produce business. That land was owned by Rose Millican, DiStefano’s sister.

A line of trees on Distefano’s land blocked the view of the Millican tract approaching it from the highway. Berrytown conditioned its purchase on obtaining Mr. Distefano’s permission to remove trees from his property. So Distefano authorized Berrytown in a written agreement to remove all trees on the property line dividing the Distefano and Millican tracts, except for a live oak tree. Berrytown hired Kemp Richardson to perform the clearing work. Richardson cut and removed 12 trees from the Distefano and Millican tracts, and he cut a significant number of branches from the live oak tree on Mr. Distefano’s tract.

Eisfeld should have gotten this sign with special wording, "And don't cut down my trees, Martin!"

     This means you, Berrytown!  Trespassing – kind of like the real property version of off sides.

Distefano filed a timber trespass action against Berrytown and Richardson, saying the defendants cut and removed five trees from his property and cut branches off the live oak tree without his permission. Distefano tried to recover damages under Louisiana Revised Statute 3:4278.1, commonly referred to as the “timber trespass” statute, that imposes a penalty of three times the fair market value of trees on people who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property. Distefano also claimed restoration damages and damages due to the decrease in the value of his land, and further urged that defendants’ cutting activities caused him to suffer non-pecuniary damages.

At the conclusion of a bench trial, the court found that the agreement between Distefano and Berrytown contemplated the cutting and removal of all trees on the Distefano property that had been actually cut down. The court found that the parties clearly understood that the live oak tree was not to be cut, and awarded Distefano $6,045.00 for the unlawful removal of branches from his live oak tree, accepting expert testimony setting the fair market value of the live oak tree at that amount. The court declined to award treble damages, finding the treble damage provision inapplicable because the tree itself had not been cut down and removed, and because there was insufficient evidence of the fair market value of the limbs removed from the tree.

Distefano appealed, challenging the court’s finding that he consented to the cutting down of five trees from his property and the denial of his treble damage claim.

The Northgate Broncos of Walnut Creek, California - a rough bunch - will be sidelined this Sunday, too.

     The Northgate Broncos of Walnut Creek, California – a rough bunch – will be sidelined this Sunday, too.

Held: The trial court’s decision was upheld. The Court found that the contract called for the cutting of “all trees on the dividing property line” between the Distefano and Millican tracts, “with the exception of the live oak tree located on or near the property line.” A witness attested there were no trees on the property line itself, but there were trees close to the property line that hung over the property line, and those were the trees Berrytown wished to have removed. Distefano contended that the parties never contemplated the removal of any trees not located exactly on the common property line, but other witnesses disagreed, and the trial court’s findings of fact were found to be reasonable.

Distefano contended that the trial court should have ordered the defendants to pay treble damages. Louisiana Revised Statute 3:4278.1 imposes a penalty of three times the fair market value of the trees on those persons who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property without the landowner’s consent. But, the Court said, no tree was cut down without permission. Instead, the oak tree was trimmed without permission, and the cut trees were taken pursuant to the agreement. Although contrary to the contract, the Court ruled, because the oak tree was not cut down, the statute did not authorize treble damages under the facts of this case.


Case of the Day for Wednesday, February 3, 2016


In keeping with our Super Bowl theme, let’s look at the problem of illegal substitution. Here, the substitution had to do with expert witnesses.

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

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

Trials aren’t supposed to be conducted by trickeration. Parties have a full chance to engage in discovery — seeing the other party’s documents, taking depositions of witnesses under oath, that sort of thing — well before trial. In today’s case, a woman was killed when a tree branch broke free in a storm and struck her. Her husband sued, and he named the owner of the tree and the power company that had an easement where the tree stood, among others. He claimed that the tree hadn’t been trimmed properly, and that negligence had led to his wife’s death.

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

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

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

Go Denver! Go Carolina! Keep us interested between the commercials.

Slater v. Charter Communications, Inc., Not Reported in N.W.2d, 2007 WL 4462396 (Mich.App., Dec. 20, 2007). The Slaters were driving on West Torch Lake Drive in Rapid City when they came upon tree branches that had fallen from a tree and were obstructing the roadway. The weather was rainy and windy. After clearing the roadway and while returning to their vehicle, a large limb from the same tree broke off, fell onto a power line and then struck Mrs. Slater in the head. She died the following day as a result of her injuries.

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


The identity of the expert witness became a shell game …

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

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

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

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

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


Case of the Day for Thursday, February 4, 2016


Clipping - not the "block in the back kind"

Clipping – not the “block in the back kind”

The penultimate installment in our Super Bowl runup is the old 15-yard standby, clipping. The clipping in today’s case was done not by a offensive player, but rather by an electric utility.

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

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

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

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

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

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

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

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

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

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

The Sam Houston Broncos - fearsome (especially with the smoke), but they won't be playing Sunday, either.

     The Sam Houston Broncos – fearsome (especially with the smoke), but they won’t be playing Sunday, either.

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

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

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

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


Case of the Day for Friday, February 5, 2016


intent160205Intentional grounding? You can bet that was the call after Mr. and Mrs. Peters bought a lot next to the Kriegs.

The Peters didn’t know where the lot lines were. Their real estate agent didn’t, either. Ah, details, details … That didn’t stop them from hacking down trees on the property as soon as the ink was dry on the deed, in order to build their dream house. You probably know where this is going. Harry Peters, acting as his own tree service, goofed, and cut down 29 trees on the Kriegs’ land.

The Peters admitted their honest error. OK, they intended to ground the trees. They just didn’t know that the trees they grounded were the Kriegs’. They were willing to pay for the mistake. But what they were not willing to do was pay the treble damages authorized in the law for wrongful timber cutting.

It was sort of like the intentional grounding foul in football. It’s one thing to get assessed a 10-yard penalty. But on top of that, the team loses the down. Sort of like the double whammy (or triple, if you like) of the statutory multiplier for wrongfully cutting trees.

BMarker140130 C’mon, the Peterses said, there wasn’t any evidence they knew they were cutting Kriegs’ trees. The Court pointed out that the state of the evidence was precisely the problem. It was up to the Peterses to provethat they thought the land was theirs. The wife’s testimony was all they had offered, and it didn’t help: she explained they didn’t really know where the boundaries were, and never bothered to find out. But the biggest problem was what Mr. Peters testified to: nothing. He was the one who cut the trees down, and the Court seemed to expect that he would have material testimony to offer. But he didn’t testify.

Ch 1 Art.xlsThere’s a well-known principle in evidence known generally as the “missing witness instruction.” It holds, as the legendary Professor Wigmore put it, that “the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” In other words, if you have particular control of evidence, and you do not bring it forward, a court is allowed to assume it would have been harmful to your cause if you had done so.

The Court didn’t say it here, but it strongly implied that the absence of testimony from Harry Peters led it to conclude that if he had taken the stand, he wouldn’t have helped his cause any.

Krieg v. Peters, 46 A.D.3d 1190, 850 N.Y.S.2d 211 (N.Y.A.D. 3 Dept., 2007). In May 2004, the parties became adjoining property owners when the Peters family purchased the vacant lot next to the Kriegs. The Peterses intended to construct a house on their property, so Mr. Peters began clearing land without consulting the map referenced in their deed or having a survey conducted. He removed 29 trees from Krieg’s property. Following a jury trial, the Kriegs were awarded damages, including treble damages under New York statute for the removal of this timber. On appeal, the Peterses only contest the treble damages award.

The Daviess County High School (Owensboro, Kentucky) Panthers - a hardy bunch, but they're idle this Sunday, too ...

    The Daviess County High School (Owensboro, Kentucky) Panthers – a hardy bunch, but they’re idle this Sunday, too

Held: The treble damages were upheld. Under RPAPL §861[2], the New York treble damage statute, in order to avoid treble damages, the Peterses had the burden of proving by clear and convincing evidence that when they removed the trees from the Kriegs’ property, they “had cause to believe the land was [their] own.” Their proof in this regard was woefully inadequate. Mrs. Peters was the only defense witness to testify on this critical issue, and the appellate court found that her testimony had been more damning than helpful in sustaining their burden. She said that, before she and her husband purchased the property, she walked it on one occasion with their realtor. At that time, she specifically asked about the boundary lines but the realtor couldn’t answer her question with any certainty. She said she told her husband of the realtor’s uncertainty when they later walked the property together. She also candidly admitted that no steps were taken to obtain a survey or consult the map referenced in their deed before clearing the land. The Court found it significant that, although he had logged the property, Mr. Peters never testified. It found plenty of evidence that the defendants had no cause to know whether the land Mr. Peters was logging belonged to them or not.

The Peterses also argued that the legislature never intended for RPAPL §861 to apply to individuals such as themselves who make “honest” mistakes about boundary lines. The Court disagreed, holding that on its face, the statutory scheme clearly applied to the facts and circumstances of the case and, in the absence of sufficient proof on defendants’ part to avoid treble damages, it didn’t find the treble damage award to be inconsistent with the law’s purpose or intent.



Case of the Day for Monday, February 8, 2016


clinton140912Back 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.

Sometimes, as nice as the trees may be, the view without them is even better.

Sometimes, as nice as the trees may be, the view without them is even better. (Editor’s note: this photo was not taken at the Comack’s – it is illustrative only)

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.

word160208In 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 …”

Remember Johnny Nash? Are you really that old? Johnny obviously didn't live near the Comacks, or he would never have written the song.

Remember Johnny Nash? Are you really that old? Johnny obviously didn’t live near the Comacks, or he would never have written the song.

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 for Tuesday, February 9, 2016


aspirin140917Today’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.

Erupting effluvient ...

Erupting effluvient … what a stinking’ mess.

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.

digging140917Here, 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 for Wednesday, February 10, 2016


"100% Expert" Cachet (bleu)Mark Twain is reputed to have once said that an expert is just some guy from out of town.

There are a lot of guys like that in the legal system, as cases rely more and more on esoteric problems that a jury just can’t understand on its own. It is axiomatic in legal circles that witnesses can’t give their opinions, but instead must confine themselves to the facts. Legend incorrectly has it that Sgt. Friday said as much: just the facts, ma’am. And the rules of evidence, both state and federal, largely confine witnesses to “just the facts.”

But those same rules of evidence let certain witnesses known as “experts” give their opinions. Naturally, as soon as a good idea like expert witnesses was rolled out, lawyers started to abuse it. Remember the “Twinkies defense?” It relied on an expert to explain to the jury the junk science behind the notion that crème filling was a foreseeable cause of death, murder and mayhem.

Notwithstanding the occasional black eye lawyers and their experts can give the legal system, expert witnesses are crucial as case get more and more complex. That’s as true in tree law as in most other tort (and many contract) cases. Whether a witness can be qualified as an expert is for the court to determine, and depends on the witness’s education, experience and qualifications. Once qualified as an expert, the witness can give opinions based on a written report provided to the other party. Those opinions must be based on sufficient data, and be the product of reliable principles and methods applied reliably to the facts of the case.

expertcar160210The rules of evidence have effectively moved decisions that control the outcome of a case to a time well prior to the seating of the jury. Today’s case is a good example. Hiram Hyde’s family sued the maker of a stump grinder, after the late Mr. Hyde fell in and … well, we’ll leave it to your imagination. The Hyde’s expert witness wanted to testify that putting a clutch mechanism — kind of a cut-off handle like one finds on a rotary mower — on the grinder was easy, economical and logical. The maker’s expert wanted to argue just the opposite.

Both parties went at the other’s experts, questioning their qualifications and opinions. The federal district court referred the matter to a magistrate judge, kind of an assistant judge intended to handle pre-trial and other tedious matters, who ground through the competing claims without being stumped. He concluded that the experts were qualified, but the stump grinder’s guy couldn’t testify to some of his conclusions because they were based on unreliable data.

Hyde v. Vermeer Mfg. Co., 2007 WL 2329688 (W.D.Tex. Aug. 7, 2007). Hiram B. Hyde died when, while attempting to grind a tree stump using a stump cutter, he became entangled in the cutting and grinding wheel of the stump cutter. His wife and adult kids sued under the Texas Wrongful Death and Survival Statute, arguing that the stump cutter — a Vermeer model SC252 designed, manufactured and distributed by Vermeer Manufacturing Company — was defective.

They sued Vermeer for money damages under the doctrine of strict products liability for alleged defects in the stump cutter; negligence in the design, manufacture, sale, and marketing of the stump cutter, negligence in failing to give adequate or proper warnings or instructions for the stump cutter, negligence based on failure to recall the stump cutter, breach of warranty that the stump cutter was fit for the purposes for which it was intended, and for punitive damages based on gross negligence.

ask160210Because no one witnessed the accident, the trial of this case was going to depend on the jury’s consideration of expert opinions about the design of the stump cutter. Each side moved to exclude the other party’s expert witnesses. The trial court referred the matter to a magistrate judge for a recommended decision.

Held: Some of the proposed testimony from one of Vermeer’s experts should be excluded, but none of the expert witnesses should be thrown out.

The Magistrate Judge noted that Federal Rule of Evidence 702 provided for the admissibility of expert testimony if it will assist the trier of fact to understand the evidence or to determine a fact in issue, and if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Rule 703 provides that an expert’s opinion is generally admissible so long as the facts and data underlying that opinion are of a type reasonably relied on by experts in the field.

The Hydes offered Russ Rasnic as an expert to testify about feasible alternative designs that Vermeer could have incorporated into the SC252 stump cutter to reduce the risk of an operator contacting a rotating cutter wheel. Vermeer moved to exclude Rasnic’s testimony on the grounds that Rasnic was not qualified to render his proposed opinions, and his proposed opinions were unreliable. Vermeer complained that prior to this litigation, Rasnic’s experience with stump cutters was limited to using a handlebar stump cutter to cut less than 10 stumps and observing a worker operate a hydraulic stump cutter. Vermeer also complained that since the litigation Rasnic’s experience with the SC252 consists of only 2.8 hours of operating a stump cutter. Finally, Vermeer argued that Rasnic has never worked for a manufacturer of stump cutters.

The Magistrate Judge observed, however, that a witness can qualify under Rule 702 as an expert even though he lacks practical experience, provided that he has received suitable training or education or has otherwise gained the requisite knowledge or skill. The absence of hands-on experience with the particular equipment is relevant to the determination whether to accept a witness as an expert, but it is not determinative. Here, Mr. Rasnic was a qualified mechanical engineer with expertise in industrial equipment, machine design, hydraulics, guarding, and safety engineering. He has designed machinery using clutch brakes, the safety device on which he would testify. He has numerous professional memberships, and has evaluated a number of machines in his forensic engineering practice for both plaintiffs and defendants. He had used a handlebar stump cutter to cut stumps on his property and observed a hydraulic stump cutter in operation before using one that he modified for purposes of testing the safety feature he was recommending in this case. While Mr. Rasnic may have limited experience with hydraulically-controlled stump cutters, the Magistrate Judge said, that was most likely a characteristic shared by most mechanical engineers. His credentials, training, and experience were sufficient to qualify him as an expert on guarding systems for the Vermeer SC252 stump cutter.

Vermeer designated Michael Gililland as an expert to rebut the Hydes’ argument about the need for a cut-out switch and to testify about the adequacy of the warnings on the SC252. In his expert’s report, Gililland argued that the addition of the cut-out switch will cause operators to defeat the switch, and that the SC252 is not unreasonably dangerous and the warnings on the machine are adequate. Since preparing his report, Gilliland interviewed five people who had participated in a Vermeer test of a SC252 stump cutter modified with Rasnic’s proposal. Gililland stated that his interviews confirmed the opinions expressed in his expert report. The Hydes have moved to exclude Gililland’s testimony about the 5-user test because he failed to supplement his report and that the plaintiffs did not learn about the 5-user test until after the discovery period had closed, leaving them unfairly surprised by the new information.

badge160210The Magistrate Judge agreed that the 5-user test report should be excluded. Rule 703 holds that experts may rely on three sources of information to form their opinions: (1) first-hand observation by the witness, (2) presentation at trial, and (3) presentation of data to the expert outside of court and other than by his own perception. Here, Gililland did not participate in, or observe, the 5-user test. Instead, his knowledge of the 5-user test was presented by Vermeer outside of court and was obtained by interviewing the five operators. That testimony was hearsay, the Magistrate Judge said, because Vermeer sought to use statements by the five operators to support Gililland’s opinion of the Rasnic proposal to add a cut-out switch to the SC252.

Under 703, an expert can discuss as the basis for an opinion facts or data which are otherwise inadmissible hearsay if the basis is of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. In this case, Vermeer has not shown that Gililland’s testimony about his interviews with the five operators are of a type reasonably relied upon by experts in his field. First, Gililland had no control over the test. He did not modify the SC252 stump cutters used in the 5-user test, he did not observe the modification of the stump cutters, he did not know who modified the stump cutters, and he did not know who took his photos of the modified machines. He did not record the interviews with the five operators, but instead he recorded the interviewees’ answers to his questions on a checklist form. In at least two cases, the checklist suggested the desired answer. Finally, his testimony was based on information about a test developed and conducted by his client in anticipation of litigation.

In his report, Gililland advanced several opinions about why Mr. Hyde’s actions constituted negligence and why Vermeer was not negligent. The Magistrate Judge said his opinions were legal conclusions that Gililland was not qualified to advance. The jury would determine the negligence of the parties in the trial of this case. Gililland would not be permitted to testify about his conclusions about the respective negligence of the parties.


Case of the Day for Thursday, February 11, 2016


truck160211“Haste makes waste,” the old saw goes, and did it ever for the Warrens of Iron County, Missouri.

They finally realized their dream, buying land they had rented for years as cattle pasture for their dream home. First, logically enough, they wanted to mark the boundaries of the land. The Warrens asked their neighbors, the Hales, to pay for half of the survey, but the Hales declined. Why should they pay? They knew where their boundaries lay.

So the Warrens went ahead. Their surveyor couldn’t find the section corner marker, which had been described in some 19th century surveys as laying certain distances on certain radials from streams and trees that weren’t there anymore. So he made his best guess, but didn’t use the technique provided for in Missouri law.

Hard to believe, but the surveyor blew it big time, marking a boundary that was way off the traditional boundaries used by the parties. In fact, his boundary included big chunks of the Hales’ land, such as their entire driveway, landscaping and front lawn and nearly their house. The day after the surveyor placed his little pink flags, Mrs. Hale complained to the Warrens that their surveyor was nuts, and she’d get another surveyor to straighten it all out. She even showed them some old 19th century abstracts, which clearly showed her ancestors had owned some of the land the Warrens now thought was theirs.

Even cousin Pug on the bulldozer had to wonder whether the surveyor's lines weren't just a little too optimistic ...

      Even cousin Pug on the bulldozer had to wonder whether the surveyor’s lines weren’t just a little too optimistic …

Here’s where the Warrens blundered. Mrs. Hale might have been wrong, but her complaints, her intent to get another surveyor, and the Hales’ historical use and occupancy of the land the Warrens now thought was theirs was enough information to give a reasonable person some pause — at least for a few days while the issues were sorted out. But the Warrens weren’t the waitin’ type. They had a family member show up the next day with his bulldozer and start tearing up the Hales’ front yard and landscaping.

The Hales got an injunction, litigation ensued and another surveyor took a whack at the boundary. Oops. The Warrens’ surveyor screwed it up, the court said, failing to use the  prescribed method for finding a corner where the original corner was lost. The disputed land really was the Hales, and the Warrens — who had torn up things too quickly — were socked with treble damages under a Missouri statute applying where one destroyed trees or landscaping of another without probable cause to believe the land was his. The unseemly haste of the Warrens to bulldoze the disputed tract, where there seemed to be no need for such fast-track excavation, evidently played a role in the Court’s determination.

Err in haste, repent in leisure.

hurry160211Hale v. Warren, 236 S.W.3d 687 (Mo.App. 2007). The Warrens bought 64 acres in Iron County, Missouri, they had rented for the previous nine years, intending to build a home on the land and to continue to graze their cattle there. The Hales owned 80 acres or so next to the Warrens, land that had been in their family for over 150 years.

After buying the property, the Warrens wanted to have their property surveyed before beginning on the house, so they asked the Hales to share the cost of a survey. When the Hales refused, the Warrens went ahead on their own. Their surveyor determined that part of the Hales’ yard and their entire driveway lay on the Warrens’ property, as well as other areas. The surveyor marked the boundary with pink flags.

The next day, Mrs. Hale contacted Mrs. Warren about the pink flags, telling her that she disagreed with the survey, especially with one of the section corners from which measurements were taken. Nevertheless, the Warrens began bulldozing and clearing the land the next day, including right in front of the Hales’ home and along the western border of their property, within the area set out by the pink flags. By the next day, the Hales had obtained a temporary retraining order against the Warrens barring them from “further bulldozing or other acts of destruction and possession …” The Hales then hired their own surveyor, who found that a section corner used in old surveys had been lost, and — applying Missouri law — calculated a starting point by a procedure known as “double proportional measurement.” At the same time, they sued the Warrens to quiet title and for trespass.

The trial court found the Hales owned Tracts 1, 2, and 3 by adverse possession, that the Warrens’ survey “is not accurate and correct” but that the Hales’ survey was correct. The trial court entered a permanent injunction against the Warrens prohibiting them from entering on the land in question, and assessing treble damages in favor of Hales under V.M.S.A. § 537.340 for $6,300.00. The Warrens appealed.

Held: The trial court was upheld. Much of the decision related to the appropriate use of the “double proportional measurement” system under Missouri law, an interesting if technical discussion. However, the Court’s treatment of the treble damages award in favor of Hales is relevant to arboriculture law. The Court agreed with the trial court that the Warrens lacked probable cause to believe that the property being bulldozed was their own.

Section 537.340 of the Missouri Code imposes treble damages for the wrongful cutting down of trees, without any showing of negligence or intent required. The Court observed that §537.340 “is a penal statute which must be strictly construed.” It is tempered by § 537.360, which holds that if defendant had probable cause to believe land was his own, plaintiff shall receive only single damages, with costs.”

Too bad the Warrens hadn't read a lot of Moliere. He makes a good point.

Too bad the Warrens hadn’t read a lot of Moliere. He makes a good point.

A party would have ‘probable cause’ under the statute if there was such cause as would induce a reasonable person to believe he had the right to remove trees from another’s land. Here, the evidence showed the Hales’ driveway had always been at its present location, that the Hales had maintained the area since 1966 as part of their yard, planting trees and shrubbery in that area as well. The tracts had been owned by the Hales and their predecessors since 1855, and fencing had marked the boundary until the Warrens wrongfully removed it. The Hales had harvested timber and cut firewood on the disputed land since they purchased the property from their family in 1966. After the pink flags were placed by the Warrens’ surveyor, Mrs. Hale had showed Mr. Warren a land abstract in which her grandfather had deeded off a portion of the disputed land for a school building. She showed him the abstract to “show them that obviously this had been in our possession since the 1880’s. This particular tract of land that’s in dispute.” She told the Warrens that she disputed their survey and that she would speak to a surveyor herself.

The Court found there was sufficient evidence to rebut the Warrens’ assertions they removed the trees and landscaping at issue because they had probable cause to believe they owned the property. First, for all the years the Warrens had possessed the land as owners or renters, the Court said, it was only reasonable to conclude they should have became familiar with Hales’ general use of their property. Richard Warren admitted that when he purchased his property he was aware that the Hales stored cars and maintained a large scrap metal pile on the land. Further, when they purchased the property, the Warrens were aware of the location of Hales’ driveway and yard and their generalized use of the land. Second, the Hales disputed the Warrens’ survey as soon as it was surveyed. Mrs. Hale informed the Warrens that she was contacting Smith & Company about the survey because she believed it was incorrect, and she showed them an old abstract relating to the prior use of the property. When the Warrens began bulldozing right away after their survey was done, it was clear that the Warrens knew of the Hales’ open and actual possession and use of the property, and knew that the Hales had issues with the survey lines at the time the bulldozing began.

The Court said it was “difficult … to believe that ‘a reasonable person’ would ‘believe he had the right to remove trees from another’s land,’ where he was faced with: a mowed yard and maintained driveway; areas that were clearly used by the landowner for storing scrap metal and other items; open protests and disputes by the landowner; and a survey which obviously did not comport with historically used property lines.” The Warrens did not meet their burden of proving they had probable cause to believe they owned the land in question at the time they bulldozed the trees and shrubs at issue.


Case of the Day for Friday, February 12, 2016


trespassers-w150120Trespass … the concept has been around for a long time. The Israelites trespassed in the Promised Land.  Just ask the residents of Jericho. The Romans trespassed throughout the known world.  The Pilgrims trespassed on some prime real estate, as the descendants of the Wampanoag tribe will attest.  Piglet – Winnie the Pooh’s sidekick – explained to the befuddled bear that his ancestor, “Trespassers William,”  was remembered in the Hundred Acre Wood by a memorial sign emblazoned with “Trespasser W.”

Most famously, Jesus advised us to forgive those who trespassed against us. Alas, as today’s case illustrates, that advice – like much of His teachings – are honored in the breach.

Trespass is most readily defined as unauthorized personal intrusion on land in possession of another by a wrongdoer, or by his failure to leave such land, or by throwing or placing something on such land, or by causing the entry of some other person onto such land. Because the law of trespass pops up time and again in tree cases – where some canny lawyer tries to turn the intrusion of branches over or roots under the property of another person into a trespass – it’s a good idea to brush up on the doctrine every now and then.

sodarockwine150120So pour yourself a glass of Soda Rock cabernet sauvignon, vintage 2010, and consider a recent case involving boundary dispute between Napa Valley vineyard and adjacent winery operators. About 15 years ago, Ken and Diane Wilson bought a decrepit century-old winery building north of San Francisco. Over a decade, they restored it into a thriving winery, complete with tasting rooms and amusements for oenophiles.

The rear of the winery building backs up to a vineyard belonging to Belle Terre Ranch, with a pathway or “avenue” between. A line of oak trees runs behind the winery within about four feet of the building. Thanks to the ubiquity of satellites (look up and smile!), we are able to easily understand the layout, and thus the nature of the Wilsons’ problem with the neighbors.

sodacreek150121During the reconstruction, the Wilsons regularly used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment involved in the reconstruction. Belle Terre also used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain, because it was just trying to be neighborly. Belle Terre’s permission to use the avenue was not intended to be perpetual, but rather just “to repair the winery.”

When the Wilsons applied for permits to complete the winery renovation, Belle Terre raised concerns with the county about trespass by wine-tasting patrons. One of its concerns was that a “survey should be done before a permit is issued.”

Knowing they would need a survey to plan the reconstruction, in January 2003 the Wilsons commissioned a surveyor. His survey showed the Belle Terre-Soda Rock boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

Five years later, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, which was settling on the grapevines, damaging the crops. Wilson replied that the property line was about nine feet out from the winery, saying he had had it surveyed. After this confrontation, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, and it closely corresponded to the line of oak trees.

Belle Terre had an attorney write a letter to the Wilsons in August 2008, telling them to stop trespassing on Belle Terre’s property. When the Wilsons continued to use the avenue, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages.

The Wilsons claimed they owned the nine-foot strip of land, and denying they were claiming any interest in Belle Terre’s property. At trial, however, the Wilsons claimed in the alternative a prescriptive easement over the disputed strip of land.
The trial was a battle of the surveyors. When the dust settled (on the grape leaves, no doubt), the trial court found in favor of Belle Terre, and issued judgment quieting title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees in the amount of nearly $117,000 under Code of Civil Procedure § 1021.9.

sodacreek2-150121On appeal, the Wilsons argued vociferously against the propriety of the $1.00 in damages, for the very good reason that if there were no damages awarded, there could be no attorney’s fees awarded.

The California Court of Appeals upheld the judgment in favor of Belle Terre Ranch, ruling that the Wilsons were permanently enjoined from trespassing in Belle Terre’s vineyard. Likewise, the Court said, where there’s a trespass, there are always damages, even if they’re not proven. Property owners possess a “dignitary interest in the inviolability” of their property rights, the Court said. Thus, “every trespass is an invasion of a legal right of another and carries with it the right to nominal damages,” even if actual damages weren’t proven.

Such damages were not proven, in this case, probably because damages were an afterthought to Belle Terre – it started out the case just wanting a court to tell Wilsons to swill their wine somewhere besides on the “avenue.” We suspect that only when their lawyers’ bills started skyrocketing past $10,000 to $50,000 to north of $100,000, did the notion of getting someone else to pay the mouthpiece take hold.

About then, we surmise, someone in the offices of Belle Terre’s lawyers found a provision in California law that held that in “any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.” The law was intended to give farmers and ranchers a meaningful remedy for damage caused by trespassers breaking through fences to take motor vehicles onto private property. The statute was designed “to enhance the ability of ranchers to sue trespassers for damages, particularly in those cases where the rancher must now either compromise a significant portion of a valid claim by suing in small claims court … or by spending a major share of the recovery to pay his or her attorney.” Sweet! Suddenly, money became a driver in the case, at least enough money to pay learned counsel.

Because Belle Terre did not focus on damages, the trial court just found nominal damages of a buck. That was enough, the judge said, to assess the $117,000 in legal fees against the Wilsons.

Not so, the Court of Appeals held. After a lengthy opinion that appeared to be thoroughly crushing the Wilsons’ grapes, the Court reversed the legal fees holding, thus turning a Mad Dog 20/20 opinion into a Clos Des Papes Chateauneuf-du-Pape 2012. The Court concluded that Cal. CCP § 1021.9 permitted the award of attorney fees only where there had been real damages, not just nominal or assumed damages.

Here, the Court said, the parties were primarily litigating a boundary dispute upon which a trespass claim depended, not the classic trespass case that an aggrieved rancher on a budget might need Cal. CCP § 1021.9 in order to pursue. There was no evidence of actual damage to the Belle Terre vineyards, and thus, while the $1.00 nominal damages stood, the attorney fees did not.

The lesson here – never overlook the benefit of proving actual damages. No doubt Belle Terre started out disclaiming any interest in proving damages. Had it proved even a dollar’s worth of damage from dust on the vines, ruts in the avenue, or anything else, its legal fees would have been covered.

Belle Terre Ranch, Inc. v. Wilson, Case No. A137217 (Ct.App.Cal. 1st Appel. Div., Jan. 13, 2015): Ken and Diane Wilson bought a rundown century-old winery building near Healdsburg, California, in 2001. Over a 10-year period, they restored it and opened a winery and retail operation.

The winery building backs up to a vineyard belonging to Belle Terre Ranch, with an unpaved “avenue” between them. A line of oak trees stands behind the winery within about four feet of the building. During the reconstruction, the Wilsons used the “avenue” behind the winery building for deliveries and to allow access for heavy equipment. At the same time, Belle Terre used the avenue for maneuvering its equipment in tending to the vineyard. Belle Terre didn’t complain about the Wilsons’ usage for construction, but the permission was not intended to be perpetual.

The Wilsons commissioned a survey in order to plan the reconstruction of the winery. The survey showed the boundary was approximately 12 to 13 feet behind the rear wall of the winery building.

In about 2008, Belle Terre complained to the Wilsons that a cement truck involved in the winery renovation was trespassing, kicking up too much dust on the avenue, which was settling on the grapevines, damaging the crops. At this time, Belle Terre hired a different surveyor to find the boundary. The new survey concluded the property line was approximately 9.4 feet closer to the back of the Wilsons’ winery than the 2003 Story survey had shown, and it closely corresponded to the line of oak trees.

After Belle Terre’s demands that the Wilsons stop using the avenue went unheeded, Belle Terre filed suit to quiet title to the disputed strip of land and for trespass. Belle Terre sought a permanent injunction barring the Wilsons from trespassing, as well as attorney fees and costs. The complaint did not request damages. The trial court found for Belle Terre, rejecting the Wilsons’ survey as flawed. It quieted title and granting permanent injunctive relief against further trespass by the vintners. The court also awarded $1.00 in nominal damages for past trespass, and upon that basis awarded Belle Terre its attorney fees of about $117,000.

Napa Valley - idyllic, except when litigation rears its ugly head.

Napa Valley – idyllic, except when litigation rears its ugly head.

The Court of Appeals upheld the judgment in favor of Belle Terre Ranch, enjoining the Wilsons from trespassing in Belle Terre’s vineyard. It held that Belle Terre met its burden of proving the Wilsons intentionally, recklessly or negligently entered Belle Terre’s property or caused another to do so. There was evidence the Wilsons continued to trespass on Belle Terre’s property even after Belle Terre’s lawyer sent them a letter demanding that they cease. Trucks engaged in the Wilson remodel were photographed trespassing on Belle Terre’s property even past the nine-foot disputed area, and a dumpster used for the Wilson construction was placed over the nine-foot line. Belle Terre testified that the Wilsons discharged what appeared to be “gray water” onto Belle Terre’s property and also destroyed a wildlife habitat. A construction worker from Soda Rock also was seen trespassing into Belle Terre’s vineyard. The Wilsons argued there was “no evidence” linking the work performed by “unidentified construction workers” with the Wilsons’ land or improvements, but the court called this argument “patently absurd.”

The Court held that every trespass upon real property the law presumed nominal damages where actual damages are not shown. “Because property owners possess a ‘dignitary interest in the inviolability’ of their property rights. The Court said that damages, even though nominal, are considered necessary to support a judgment in a trespass tort action since it is essentially an action for damages.

However, the nominal damages will not support an award of legal fees. Here, nominal damages were awarded without proof of actual injury to real or personal property. Based on the plain language of the statute, the Court concluded an award of attorney fees is not available on the facts before us.

trespassers-w2-150120Nominal damages have been described as “symbolic” and are often awarded “[w]here there is no loss or injury to be compensated but where the law still recognizes a technical invasion of a plaintiff’s rights or a breach of a defendant’s duty.” In this case, Belle Terre did not present any evidence of damages to personal or real property nor were compensatory damages claimed in the prayer for relief. The Court said that award of nominal damages in the trespass action was intended to redress intangible harm to the “dignitary interests” of the landowner personally, and not injury to the land or to his personal property. In this case, the parties were primarily litigating a boundary dispute upon which the trespass claim depended. Although the Wilsons’ acts of trespass onto Belle Terre’s land arguably supported an award of nominal damages, the Court said, there is no evidence of any actual damage to Belle Terre’s property that would trigger the provisions of section 1021.9.

In cases falling within the intent of the statute, there must be some tangible harm done to real or personal property as a result of the trespass.

Case of the Day for Monday, February 15, 2016


Case of the Day for Tuesday, February 16, 2016


Not Bullwinkle -- Moose River is named for a generic moose, we understand.

  Not Bullwinkle — Moose River is named for a generic moose, we understand.

Drive up U.S. Route 201 a pretty good way, up past Jackman and Wood Pond, and you’ll eventually happen on beautiful little Moose River, Maine, population 219. Located about 10 miles as the crow flies from the Canadian border, the little town is everything simple and natural that a harried city dweller could imagine about such a bucolic place.

Being a little backwater has some disadvantages. Too small for municipal buildings, the town officials are expected to greet the public and transact the town’s business from their homes. That’s what Elizabeth Bell, the town clerk, did. One January day in 2004, Linda Rodriguez – who had just moved there from Arizona and perhaps was unfamiliar with the concept of winter – was leaving Ms. Bell’s home cum office when she slipped on the steps. Unfortunately, the handrail was missing. Ms. Bell had noticed it was wobbly, and her hubby removed it for repair. Being a spouse of the male persuasion, he hadn’t quite gotten around to fix it yet. The playoffs were on the weekend before, you know.

Ms. Bell didn’t have homeowners’ insurance against claims for personal injury because she believed “neighbors don’t sue … neighbors.” Sadly, it turned out that some of them – the ones from Arizona – do. Ms. Bell defended by claiming that she was protected by governmental employee immunity. The Town, on the other hand, argued it was her house, and the Town had no control over it, so it had no liability. We guess it’s “every dog for himself” when the subpoenas start flying.

Ms. Rodriguez - having just moved in from sunny and hot Arizona - apparently was surprised to find the white stuff was slippery.

        Ms. Rodriguez – having just moved in from sunny and hot Arizona – apparently was surprised to find the white stuff was slippery.

The trial court found that Bell was not immune from liability but the Town was. On appeal, the Maine Supreme Court agreed that Ms. Bell’s failure to replace the handrail had nothing to do with her government function. As for the Town, the Court said, like it or not, Ms. Bell’s place was a public building and the Town could be liable for negligence. And judging from the comments on the news report, some Maine residents see it as another case of “flatlanders” messing things up in Maine.

Rodriguez v. Town of Moose River, 922 A.2d 484 (Sup.Ct. Me., 2007). The Town of Moose River has a population of about 230 residents. Like other small towns in Maine, the Town does not own an office building suitable for conducting Town business. As a condition for holding office, the Town required the town clerk to conduct official duties at her personal residence. The Town conducts its selectmen’s meetings at a selectman’s home.

In March 2000, Bell was elected town clerk and tax collector. Accordingly, she opened her home to the public to conduct Town business. The Town brought its computer, file cabinets, desk, and office supplies to Bell’s home. She placed a sign on the side of her house, which read, “Moose River Town Clerk and Tax Collector.” Bell received about $300 per month as compensation for her work for the Town. During an average year, approximately 200 people would enter Bell’s home to conduct Town business.

Moose River isused to different day-to-day hazards than steps without handrails.

      Moose River is used to different day-to-day hazards than steps without handrails.

On January 23, 2004, Rodriguez went to Bell’s home with her husband and two children to register two motor vehicles. Rodriguez had called Bell beforehand to schedule the appointment. There was some snow and ice on the sides of the steps leading into Bell’s home, but the middle of the steps was clear. During the registration process, Rodriguez had to leave Bell’s home to retrieve her checkbook. After conducting her business, Rodriguez exited the home carrying one of her children in a car seat. She fell when she stepped down to the middle cement step outside of Bell’s home. Rodriguez injured her leg as a result of the fall.

Prior to Rodriguez’s fall, there had been a handrail on Bell’s front steps. Bell’s husband had removed the handrail when he noticed that it was wiggling. Bell did not check with the Town before removing the handrail. Rodriguez sued Moose River and Bell, claiming they had been negligent in failing to properly maintain Bell’s property. Rodriguez argued that had there been a handrail in place, it could have assisted her in walking down the steps or she could have grabbed it to prevent her fall. The trial court denied Bell’s motion for summary judgment, holding that she was entitled to discretionary function immunity. The trial court granted the Town’s motion for summary judgment, finding that Bell’s residence was not a “public building” pursuant to the immunity exception of the Maine Tort Claims Act, 14 M.R.S. § 8104-A(2). Bell and Rodriguez both appealed.

Held: Bell was denied immunity, and the dismissal of the Town as a defendant was reversed. The Maine Supreme Court said that whether discretionary function immunity applies depends on whether the challenged act, omission, or decision (1) necessarily involves a basic governmental policy, program or objective; (2) is essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of them; and (3) requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. Of course, the governmental agency involved possesses the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision.

The question with respect to Bell’s entitlement to discretionary function immunity, the Court said, was whether Bell’s failure to install or replace the handrail on her front steps constituted a discretionary act “reasonably encompassed” by her duties as the town clerk and tax collector. Generally, operational decisions, such as those regarding the safety or maintenance of premises, fall outside the scope of discretionary function immunity, unless those decisions serve some other government policy or purpose. Here, Bell’s decision on the handrail did not involve a basic governmental policy related to performing duties as the town clerk, was not an act essential to the realization or accomplishment of such a policy, and did not require her to exercise a policy evaluation, judgment, or expertise. Rather, Bell’s choice not to replace the handrail resembles a decision ordinarily made by the general population, relating to the duty of care a landowner owes to the people who enter upon his or her property. Thus, she was not entitled to discretionary function immunity.

steps150121However, Bell was entitled to limited liability as a government employee. Pursuant to 14 M.R.S. §8104-D, the personal liability of an employee of a governmental entity for negligent acts or omissions within the course and scope of employment are subject to a limit of $10,000 for any claims arising out of a single occurrence. Because Bell was required to open her home to the public as part of her duties as town clerk and tax collector, the Court found, her failure to replace the handrail on her stairs was an act within the scope of her employment.

As for the Town, the Maine Tort Claim Act holds that governmental entities are liable for negligent acts or omissions in the construction, operation or maintenance of any public building or the appurtenances to any public building. For all intents and purposes, Bell’s home functioned as a public building as well as her private residence. By its plain meaning, a “public building” is “[a] building that is accessible to the public; esp[ecially] one owned by the government.” Black’s Law Dictionary 1243 (7th ed.1999). The function a building performs and its character in relation to the public are important factors in determining whether a building is “public.” Here, the residents of Moose River had no choice but to go to Bell’s home to perform legally necessary Town business, such as registering motor vehicles and paying taxes. Bell put a sign on her home, allowed residents to come into her home to conduct official Town business, and did not restrict her hours of service. The Court concluded that on the specific facts of this case, Bell’s home was a “public building” within the meaning of the Tort Claims Act.


Case of the Day for Wednesday, February 17, 2016


We don't know ... in fact, we're not sure who he is. But the Rhode Island Supreme remained firmly in control - although with teeth gritted - in today's decision.

     We don’t know … in fact, we’re not sure who he is. But the Rhode Island Supreme Court remained firmly in control – although with teeth gritted – in today’s decision.

Robert E. Lee, a man torn between duty to country and to his home state, once saidDuty is the most sublime word in our language. Do your duty in all things. You cannot do more. You should never wish to do less.”

Judges must remind themselves of that often, as they are called upon to apply laws they believe are ill-conceived in cases where the outcome seems less than just to them. The Rhode Island Supreme Court faced that unpleasant task recently, being required to send an injured citizen home empty-handed after an accident at a state facility. The Rhode Island statute in question, the State’s Recreational Use Statute, gives unusually broad immunity to governmental units, classifying the people who use parks and other facilities as little more than trespassers.

Agree or not with the Court’s discomfiture at treating a user of a state recreational facility as a trespasser, one must nevertheless admire the Court’s careful application of the law, coupled with its repeated solicitation of the legislature to correct what a majority of the state’s high court sees as short-sighted policy. Clearly, the judges didn’t like what the law compelled them to do … but they saw the only remedy for that as laying with the legislature.

Labedz v. State, 919 A.2d 415 (Sup.Ct. R.I. 2007). Antonina Labedz was walking along a concrete path at Scarborough Beach, a state-owned beach located in Narragansett, Rhode Island. She tripped on an uneven surface and fell to the ground, breaking her wrist. She sued, alleging the State was negligent in “permitting a dangerous uneven condition to exist on a portion of walkway and failing to warn invitees … of the dangerous condition on the premises.” The trial court found that the State was shielded from liability by virtue of the Recreational Use Statute. Labedz appealed.

How did Ms. Labedz miss that hole? Or was the City negligent? We'll never know, because sovereign immunity stopped this lawsuit in its tracks.

How did Ms. Labedz miss that hole? Or was the City negligent? We’ll never know, because sovereign immunity stopped this lawsuit in its tracks.

Held: The State was not liable. Labedz argued that the Supreme Court should reverse prior cases which gave the State broad exemption from liability. But the Court rejected her position, noting that it had been unequivocal in its view that the unambiguous language of the 1996 amendment to the Recreational Use Statute clearly reflects the General Assembly’s intent to extend to the State and municipalities the limitations on liability afforded by that statute, most recently in Lacey v. Reitsma. The Court took the opportunity again to note its “concern about the troubling result that we felt obliged to reach by virtue of our reading of the Recreational Use Statute, and we urged the General Assembly to revisit the provisions of that statute concerning state and municipal immunity.” The Court felt uncomfortable with a statute that classified users of state and municipal recreational sites “as though they were trespassers.”

judge151022Labedz also argued that the trial court was wrong to grant summary judgment where the State could have been found liable if its conduct had been willful or malicious. She had alleged as much in her complaint, but she advanced no evidence to support her claim. But Labedz argued that it was the jury’s duty to find whether the conduct had been willful or malicious, and the trial court shouldn’t have taken away that duty by granting summary judgment without a trial. The Court ruled that if the facts were not genuinely disputed, as in this case, the law is pretty settled that a trial court may proceed to determine the existence of any legal duty without assistance from the jury.

Here, Labedz couldn’t point to any evidence that suggested the State acted willfully or maliciously, as those terms are used in the Recreational Use Statute. Summary judgment for the State was appropriate, albeit not cheerfully granted.


Case of the Day for Thursday, February 18, 2016


Hawkins v. McGee - the case of the hairy hand

Hawkins v. McGee – the case of the hairy hand

There’s always a tension between the value that a lover of the land places on his or her trees and the price tag affixed to those same trees by the green-eyeshade crowd of financial experts testifying in some cold courtroom.

The general rule is that the measure of damages when trees are wrongfully cut should be the difference between the value of the property before the trees were removed and the value after the trees are taken down. Fans of the ol’ case of the hairy hand (Hawkins v. McGee) from law school remember the general diminution of value concept. Notwithstanding this staple of first-year contracts class, courts in many states have carved out exceptions to the rule for situations just like today’s case.

The problem usually arises when only a relatively few trees of limited commercial value are removed or destroyed. In today’s case, an Episcopal Church lost 22 small trees when a contractor dumped too much fill dirt – taken from a road construction project – around their bases. The Church proved in court that replacing the trees — a couple cherry trees and a score of red oaks — would cost just over $17,000. But the trial court threw the case out, because it believed that the replacement costs weren’t relevant. Rather, the trial court said, the Church was obligated to prove how much less its land was worth with the trees gone.

The "tree volcano" ... pile dirt around the base, and suffocate the sapling.

The “tree volcano” … pile dirt around the base, and suffocate the sapling. The Church lost 22 trees this way.

Holy birch bark! The problem was that the worth of the property hadn’t fallen much, it being close to a road and of limited use (there’s not that much of a market for church properties). But the Church didn’t want the diminution in property’s value for its collection plate: it wanted its trees back. The Minnesota Supreme Court had mercy on the Church, holding that where the trees served a function that was primarily aesthetic, replacement cost was a fair calculation.

Sometimes justice can’t be done by using the cold, analytical diminution-of-value approach. Occasionally, the wronged owner just plain likes the trees that had been taken, and who’s to say that because the loss may be measured psychologically rather than economically, the damaged party shouldn’t be compensated. We always thought that in such cases, the wrongdoer should be held to lose much of his or her moral standing to complain about how injured the injured party is. In this case, the Court said, that the owner’s enjoyment of the trees might not be quantifiable in a real-estate-value analysis just didn’t matter. (The second case we studied in law school, Peevyhouse v. Garland Coal & Mining Co., has always illustrated the mischief that can be done when a court ignores the aesthetic expectations of the wronged party).

The decision is necessary in the world of tree law, because otherwise, too many cases would founder on the rocks of damages: too many malefactors could cut down too many trees, and the likely penalties, even with treble damages available, would not deter the conduct.

Rector, Wardens & Vestry of St. Christopher’s Episcopal Church v. C.S. McCrossan, Inc., 306 Minn. 143, 235 N.W.2d 609 (Sup.Ct. Minn. 1975). When the Minnesota Department of Highways took about 8/10ths of an acre from St. Christopher’s to enlarge the intersection, the church lost its existing access and part of its parking area. The Rector hired C.S. McCrossan to construct a new parking space and access road.

irrelevant150123A grove of trees was located at the north end of the lot. In the process of grading, McCrossan dumped fill around the base of the trees, which the church argued caused the trees — two black cherry trees and twenty red oaks — to suffocate and die. The church’s expert testified that because of the variety, size, and condition of the trees, they had a total value of $17,267.
The church asserted that the grove of trees not only acted to screen the area from heavy traffic on two sides, but also gave the area a natural, pleasing, aesthetic, wooded atmosphere. The trial court directed a verdict for C.S. McCrossan on ground that church failed to prove damage based on diminution in value of real estate.

The church appealed.

Held: The decision was reversed. The Minnesota Supreme Court ruled that the proper measure of damages for negligence in suffocating the trees was the replacement cost of trees rather than merely the loss of value of the real estate, notwithstanding the inability of the church to prove that destruction of trees diminished the value of the property as a whole. The replacement cost of trees that have an aesthetic value to the owner as ornamental and shade trees or for purposes of screening sound and providing privacy may be considered in determining damage incurred from the destruction of the trees, to extent that the cost is reasonable and practical.

Although evidence may be presented in rebuttal that the effect on the value of land as a whole is minimal, it is for the jury to balance elements of damage in arriving at a just and reasonable award.


Case of the Day for Friday, February 19, 2016



Actually, Buzz, this time it is personal.

Actually, Buzz, this time it is personal.

When most people think about lawsuits, they focus on who won and who lost. But as important about issues of liability – who owes whom and why – can be question of how much the who owes the whom.

The win-loss is important, but ask the Ohio State Buckeyes : even if you win, if the final score isn’t decisive enough, it can cost you style points.  Woody Hayes once was asked why he went for a 2-point conversion when he was leading Michigan 48-14 late in the 4th quarter.  His terse answer:  “‘Cause I couldn’t go for three.”

So often, we don’t just talk about liability – we talk about how the damages are figured, too. A case we worked on a few years ago shows us why that’s important.

A tree service company sent a crew to an address to remove a maple on the front lawn. Instead of going to 1553 Main Street, the crew mistakenly went to 1533 Main Street. That house, coincidentally, also had a maple tree in its front lawn, a magnificent and healthy specimen that the homeowner loved very much.

You can guess what happened. While the homeowner was obliviously toiling in his of-fice 10 miles away, the tree cutting crew made short work of the beautiful maple. When the owner arrived home that evening, his arboreal pride and joy was nothing but a stump and some sawdust.

There was no question about liability: the tree service company goofed. But how much to pay for the tree? Stumpage value makes no sense. The homeowner wasn’t raising the tree to sell the timber. Replacement cost for the tree might be a fairer measure. However, the largest tree that could be planted for the homeowner – with costs of a few thousand dollars – will not begin to replace the lost tree.

In our homeowner’s case, the measure of damages we finally settled on was a real estate appraisal that concluded that the value of the home had been lessened by about $17,000 by the removal of the mature tree.

Today’s case considers what might happen if the removal of the trees does not diminish the value of the property. A man named Chung bought a parcel of land for a home. When he had a tree cutting service clear the land for construction, the cutters crossed the line onto Rora Park’s land, and removed about 560 trees. The decision only implies this, but it appears that the “accident” might not have been accidental at all. Rather, Chung may have steered the cutters in the wrong direction in order to improve the view from his land.

Whatever the reason, the liability was certain. The problem arose because removing 560 trees didn’t really decrease the value of Rora Park’s land at all. Hard to believe, but then, Alaska is a pretty big place. So Ms. Park demanded restoration damages, payment of the cost of restor-ing the property by planting new trees. That would have been about $400,000. The trial court granted damages equal to the cost of replanting 50 trees, but the Alaskan Supreme Court reversed.

Chief Justice Oliver Wendell Holmes, Jr.

       Chief Justice Oliver Wendell Holmes, Jr.

It seems that if the wronged property owner doesn’t have a “reason personal to the land-owner for restoring the trees,” an Alaskan court won’t use that measure of damages. In this case, Ms. Park waxed eloquent about how that she had once had cancer, and “this natural beauty of my yard is [a] healing spot for me, and . . . after work I come by, see my property and see the natural beauty and the trees and all that[. W]hen I [saw] that all cut out it just [made] me very – [it] just [broke] my heart, and then very angry . . .” Unfortunately for her, she later tried to downplay how often she visited the property.

The trial court wouldn’t let her have it both ways, and found that she hadn’t justified restoration damages. But, apparently troubled by Ms. Parks’ neighbor getting away with a fast one, the trial court nevertheless awarded her restoration damages anyway. It may have seemed like justice, but it wasn’t the law.

The Alaskan Supreme Court said that restoration damages could be awarded only if Park had a “reason personal” for restoring her property. Because she failed to prove she had such a reason, she ended up being entitled to pretty much nothing.

There’s something not right about letting a slippery character like Chung pull a fast one, cut down 50 of the neighbor’s trees for a better view, and not have to pay damages for it. It reminds one of a quotation attributed to Oliver Wendell Holmes, Jr: This is a court of law, young man, not a court of justice.

Chung v. Park, 339 P.3d (Sup.Ct. Alaska, 2014). Landowner Rora Park sued her neighbor Christopher Chung for trespass, alleging that he cleared about 50 trees from her property without permission. The trial court found that the tree cutting did not diminish the property value and that there was no reason personal to the landowner for restoring the trees. But the trial judge nevertheless awarded damages equal to the cost of restoring 50 trees on the property.

Ordinarily, a landowner damaged by a trespass may recover either the loss in property value or reasonable restoration costs. But restoration costs are inappropriate if they are disproportionate to the loss in property value, unless there is a reason personal to the landowner for restoring the land. We thus conclude that we must vacate this award.

Chung hired a company to build the foundation of his new house. As part of that project, the contractor agreed to clear trees and other vegetation from the lot. Aerial photographs indicate that some trees were removed from Park’s property near the border of Chung’s lot between August 2008 and the end of September 2008, and more trees were removed between 2008 and 2009. The trees appear to have been removed more or less directly behind the house built on Chung’s property. Timber debris, presumably from the cleared trees, was also discovered buried on Park’s property. An expert witness hired by Park estimated that 562 trees were cleared from about a third of an acre of Park’s property. He calculated that it would cost over $400,000 to restore the property to its former condition. But Chung’s expert witness testified that the market value of Park’s property was likely not affected by the removal of trees.

trespasstimber150126The trial court found Chung liable for the trees removed from Park’s property. Although the court acknowledged that Park had not proved that the tree cutting reduced the value of her property and found that Park had no reason personal for replacing the trees, it nevertheless concluded that “it would be reasonable both aesthetically and legally to award damages that would permit replacement of trees on that first portion of the lot that can be clearly shown to have been scraped clean as of September 27th, 2008.” The court therefore awarded Park the cost of replacing 50 trees, $23,500. Because the court found that Chung’s trespass was intentional, it awarded treble damages under AS 09.45.730.

Chung appealed.

Held: The Alaska Supreme Court vacated the damage award. It held that a party who is injured by an invasion of his property not totally destroying its value may choose as damages either the loss in value or reasonable restoration costs. But reasonable restoration costs are an inappropriate measure of damages when those costs are disproportionately larger than the diminution in the value of the land and there is no reason personal to the owner for restoring the land to its original condition. A reason personal is one that is “peculiar or special to the owner.” The Court said “We require the landowner to demonstrate a reason personal because we believe it indicates circumstances where the owner holds property primarily for use rather than for sale and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and enjoy a windfall.”


     Ms. Park tried to sell the court that the trees were her “personal healing spot.” New wave … or just trying to pump up her damages?

During trial in this case, Park tried to establish a reason personal  for replacing the trees that Chung had allegedly removed. She talked about having had cancer, and relying on her property as a “healing spot for me.” But later in the trial, she downplayed her visits to the property. As a result, the court found that Park had not established a reason personal for restoring her property.

According to the unrebutted testimony of Chung’s expert witness, the removal of trees from Park’s property did not appreciably affect the value of her property. The trial court accepted that testimony in its findings of fact. Therefore, the Supreme Court concluded, the damages the trial court awarded – $23,500 before trebling – were disproportionate to the diminution of the property value. The Court said that the trial court could award restoration damages only if it found that Park had a reason personal for restoring her property. Because it did not, the trial court’s award of compensatory damages that exceeded the diminution in the market value of Park’s property was not appropriate.


Case of the Day for Monday, February 22, 2016


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

bureaucracy140923Our 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.

Oaktree140923Whew! 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.

Freespeech140923Held: 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 for Tuesday, February 23, 2016


You can see why Hocking Hills is a good place for a park.

You can see why Hocking Hills is a good place for a park.

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.

woodpile150202Nope, 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.

selectivecutting150202Held: 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 UCC 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 UCC 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 UCC 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 UCC and no longer a part of the land.

BOR150202People 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. ORC § 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 for Wednesday, February 24, 2016


woodman150203“… touch not a single bough …”, Mrs. Chinn, 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.

A common fence

A common fence

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.  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 plum tree was very severely pruned.

The plum tree was very severely pruned.

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 for Thursday, February 25, 2016


liar150204Remember 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.

oops150204Oops. 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.

Gabriele's driveway was this long ... but not this nice.

Gabriele’s driveway was this long … but not this nice.

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.

human150204Here, 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 for Friday, February 26, 2016


camelnose150209Prescriptive 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.

powerlines150209Ex 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.

Just because a utility pole on a prescriptive carries one wire doesn't mean that it may carry more than one ...

Just because a utility pole on a prescriptive carries one wire doesn’t mean that it may carry more than one …

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 for Monday, February 29, 2016


theft150212Kee 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.

covet150212And 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.

ba150212Minnesota 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.