Case of the Day – Friday, January 3, 2025

Posted on January 3, 2025 by TLRoot tagged.

SELF-HELP WEEK

Quite unintentionally, 2024 (slogan “At Least It’s Not 2020”) – as it slunk out the door in well-deserved shame – is ending with an orgy of self-reliance versus resorting to the courts. On New Year’s Eve, we reviewed a Florida case, Balzer v. Maxwell, in which the court held that the fact that an aggrieved landowner has no remedy but self-help means that when he or she exercises that right, the tree owner has no claim for what might become of the tree. Yesterday, we read a Massachusetts court holding that, on the other hand, when a city takes over an abandoned property for taxes, it assumes liability for hazard trees on the property.

In today’s case, Pennsylvania applies the Massachusetts Rule principles of self-reliance to encroaching tree roots.

Keiper v. Yenser, 1967 Pa. Dist. & Cnty. Dec. LEXIS 171 (Common Pleas Ct, Carbon County, Pa., January 23, 1967). Bill and Becky Keiper complained that for more than five years, the roots of Yensers’ willow tree have been extending into their land and penetrating their sewer line, which has cost the Keipers $166.07. They seek reimbursement for the money they have spent and a court order for the permanent abatement of the root encroachment (that is, an order that the Yensers remove the roots at their expense).

The Yensers filed a demurrer; in the alternative, they argued that laches prevented the Keipers from winning, and contended that abatement should not be ordered because the Keipers had an adequate remedy at law.

Held: The Keipers claim had to be dismissed.

Pennsylvania has no statute that would permit the Keipers to claim that the Yensers’ tree was a nuisance. Nor was there any case precedent.

However, looking at other states, the Court noted that in Gostina v. Ryland, a Washington state case, the court held that “were it not for our statute of nuisances, the respondents herein would not be accorded any judicial relief”. And Michalson v. Nutting, the Court said, held in very similar circumstances that “the neighbor, though without right of appeal to the courts if harm results to him, is nevertheless, not without remedy. His right to cut off the intruding boughs and roots is well recognized. His remedy is in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

Thus, the Court held that while the Keipers could cut the offending roots themselves, they had no cause of action to compel the Yensers to do so. “It is a principle well settled by many adjudicated cases, that an action does not lie for a reasonable use of one’s right, though it be to the injury of another. For the lawful use of his own property, a party is not answerable in damages, unless on proof of negligence…”

– Tom Root

Case of the Day – Tuesday, December 3, 2024

Posted on December 3, 2024 by TLRoot tagged.

BLAMING THE VICTIM

Just when I think I have seen all of the chutzpah that it is humanly possible to muster, someone impresses me with an Olympian performance.

Take Henry and Angela D’Andrea, for example. When the roots of their maple tree, after 14 years of impressive growth, began to eat a lightweight concrete-block fence – made with Waylite Superock® blocks, something new to me but apparently a material of note a generation or two ago – Hank and Angie did not offer to fix their neighbor’s wall. They did not even keep their mouths shut, which you might expect the tree’s owners to do under the circumstances.

Not these brawlers. The D’Andreas sued their neighbors, the Gugliettas, demanding that they remove the cracked and decayed fence because… well, because the D’Andreas’ tree had caused the fence to become cracked and decayed. It was a sort of “because I made the mess, you need to clean it up” argument.

Cosmic justice has a way of getting done. The neighbors did the only thing they could do (lawfully, that is), and counterclaimed against the D’Andreas. The trial court agreed that the fact that the Guglietta fence was unsightly was not enough to make it a nuisance. (Good thing, too… imagine the precedent that would be set for all of the unsightly people in this world if their unsightliness made them a per se nuisance). The court did, however, award damages to the Gugliettas for the damage that the D’Andrea maple roots had done to the fence.

The appellate court strained to justify the award, but justify it the court did. The Superior Court held that while the Massachusetts Rule addressed both branches and roots in dictating that self-help was the only remedy available to an afflicted neighbor, it could not possibly mean it. Really, the Court ruled, roots were quite different from branches. For instance, roots grow differently than branches, vertically, horizontally, every which way. Plus, the roots are underground: you can see branches and can trim them when needed, the Court opined. But you never see a root until it has caused damage.

Does any of this make sense? That hardly matters… cosmic justice requires that sometimes logic and precedent yield to its demands.

D’Andrea v. Guglietta, 208 N.J. Super. 31, 504 A.2d 1196 (Superior Ct. N.J. 1986). Henry and Angela D’Andrea’s maple tree had been planted about three feet from the boundary about 14 years before. As healthy trees are wont to do, it grew, extending both branches above ground and roots below, until it cracked a Waylite block boundary fence owned by John and Pat Guglietta. The D’Andreas sued the Gugliettas on the grounds that the fence was cracked and falling down – an unsightly mess – and a nuisance, asking that the trial court order that it be removed.

The Gugliettas counterclaimed, arguing that the fence was fine, but the D’Andreas’ maple tree was the true nuisance.

The trial court dismissed the D’Andreas’ action because their only proof was that the boundary fence was aesthetically displeasing to them. Mere homeliness, the Court ruled, is not enough to support a finding of a nuisance. As for the Gugliettas’ claim, however, the trial court held that the D’Andreas were liable for the unforeseen damage to their neighbors’ wall arising out of root growth from the maple tree.

The maple tree was planted around 1970, about the same time the Gugliettas installed a chain link boundary fence. Three years later, they removed the chain link fence, and replaced it with their Waylite block fence; the maple tree roots were nowhere near the wall when the Gugliettas dug down to put in foundation footings.

Eleven years later, things had changed. The Gugliettas noticed a crack in the wall. Or several cracks. They dug along the wall’s foundation and discovered “gigantic” maple roots up to 30 feet long coming through the wall. A masonry contractor estimated repair would cost about $ 3,000.

The D’Andreas never argued the obvious defense, that the Gugliettas could have avoided the injury to their masonry wall by self-help, that is, by digging down, severing and removing the maple tree roots on their side of the common boundary. The trial court awarded judgment for the Gugliettas on their counterclaim and gave them damages but no specific relief (like an order that the D’Andreas do something about their tree.

The D’Andreas appealed.

Held: The maple tree was a nuisance and had to go.

Under common law principles, the Gugliettas were entitled to cut off invading tree roots by exercising self-help, under the Massachusetts Rule. In fact, the trial court held that overhanging tree branches may constitute a nuisance for which an action for damages lies, and that a landowner may exercise the common law right of self-help to lop off overhanging branches to the property line but no further. “As a matter of logic,” the trial court ruled, “no distinction can be made between roots and branches.” It nevertheless awarded damages to the Gugliettas.

The Superior Court, needing to bolster the damage award it obviously agreed with, disagreed. The approach that roots and branches are the same “overlooks real distinctions between the two,” the Court held. “Unlike tree branches, tree roots are largely underground and evident only upon digging down; their extent and girth may be uncertain and unpredictable; they are not commonly pruned or otherwise tended; their severance may endanger the tree’s stability in high winds and rainstorms. A tree root system may extend vertically downward or may spread laterally close to the surface. The relatively uncomplicated law governing invasion of adjoining property by tree branches may not be fairly applicable under all circumstances to tree roots.”

There is general agreement, the Superior Court said, that tree roots extending under a neighbor’s land are owned by the owner of the land on which the tree trunk stands; that the owner of a tree has no right to its sustenance from adjoining land; and that a neighbor may resort to self-help to remove invading tree roots. The Court acknowledged that the Massachusetts Rule is that damage caused by tree roots spreading from an adjoining property is damnum absque injuria and that the only redress is self-help.

Other reported decisions, however, have recognized a cause of action for damages for injury caused by tree roots from a tree or trees planted by the owner of the adjoining property or his predecessor. As well, they have barred recovery of damages for tree root injury by applying the defense of avoidable consequences. In fact, the Court observed that the Hasapopoulos court in Missouri viewed as decisive the evidence that the tree involved was “healthy and undecayed” and that the plaintiff had failed to resort to self-help.

The Superior Court noted that the Restatement of Torts draws a distinction between nuisances resulting from artificial and natural conditions of the land. The former set is actionable, while the latter set is not.

Here, the Superior Court ruled that the trial court was right to hold that injury to an adjoining property caused by the roots of a planted tree was actionable as a nuisance, irrespective of the absence of proof of prior notice of the nuisance to D’Andreas. Damages were recoverable, even in the absence of any proof that the damages were avoidable or that defendants had “come to the nuisance.”

When the Gugliettas dug down for foundation footings for their masonry wall in 1973, roots from the D’Andreas’ maple tree planted three years before were nowhere about. Nothing in the record, the Superior Court said, suggests that the maple tree’s roots heaved up or were in any way evident in the vicinity of the masonry wall between 1973 and 1984, when the wall cracked, or that the Gugliettas should have foreseen the direction and extent of the tree roots’ growth.

– Tom Root

Case of the Day – Wednesday, November 27, 2024

Posted on November 27, 2024 by TLRoot tagged.

TRIFLES

There is a wonderful doctrine in the law – and the law is a place where we do not really expect to find anything wonderful – that is known as the rule of de minimis.

Mentioning de minimis gives me an excuse for another shout-out to my sainted Latin teacher from days of yore, Emily Bernges (who instilled in me a love of, if not fluency in, that grand Mother of Languages). But more to the point, the de minimis rule is a necessity: if it didn’t exist, we would have to invent it. Simply put, the rule of de minimis holds that some wrongs we suffer are so slight to be unworthy of recompense.

De minimis is the shortened form of “de minimis non curat lex,” which Emily would have told us means that “the law does not concern itself with trifles.” Queen Christina of Sweden, who occupied the throne in the mid-17th century – and who may have studied under Emily, too, for all we know – favored the more colorful adage, “aquila non captat muscas,” that is, “the eagle does not catch flies.”

We sometimes think too many plaintiffs want to sue over trifles. The plaintiffs in today’s case, the Bandys, sure did. The neighbors’ trees dropped sap and leaves on their property, and their roots clogged a sewer line. The Bandys did not find that dandy, and so they sued.

The court was aghast. A tree dropping leaves and sap! Who had ever heard of such a thing?

Besides everyone, that is. Trees drip sap and drop leaves and grow roots all the time. It’s just what trees do. Once the law starts making tree owners pay for that, there will be no end to the litigation.

The neighbor’s leaves fell in your yard? Here’s a rake. Deal with it.

Bandy v. Bosie (1985), 132 Ill. App. 3d 832, 477 N.E.2d 840. Edith and Chuck Bandy sued their neighbors, Jim and Becky Bosie, complaining that the Bosies’ maple and elm trees dropped sap and leaves on the Bandy’s property, and roots from the trees had damaged the Bosies’ sewer line, causing water to back up in their basement.

The Bosies moved for dismissal, arguing that the Bandys had no cause of action. The court agreed and dismissed the complaint.

The Bandys appealed.

Held: The Bandy complaint failed to allege a nuisance. The court found the Bosies were entitled to grow trees on any or all of their land and their natural growth reasonably resulted in the extension of roots and branches into the adjoining property.

The Bandys argued first that the Bosies should be made to cut down the trees because there was no adequate remedy at law, and the trees were a nuisance. Bosies rejoined that the trees did not constitute a nuisance and that, in any event, the Bandys were not entitled to equitable relief.

Illinois courts have previously held in Merriam v. McConnell (1961), 31 Ill. App. 2d 241, 175 N.E.2d 293, that equity could not be used to control or abate natural forces as if they were a nuisance. Illinois follows the Massachusetts Rule, and holds that an owner is entitled to grow trees on any or all of the land, and their natural growth reasonably will result in the extension of roots and branches into adjoining property. The effects of nature such as the growth of tree roots cannot be held within boundaries; the risk of damage from roots on other lots is inherent in suburban living, and to allow such lawsuits as this one would create litigation over matters that should be worked out between the lot owners.

But in another Illinois decision, Mahurin v. Lockhart (1979), 71 Ill. App. 3d 691, 390 N.E.2d 523, the plaintiff sued an adjoining lot owner for damages resulting from a dead limb falling from the defendant’s tree onto the plaintiff’s property, injuring the plaintiff. The defendant contended she had no liability for damages occurring off of her land resulting from the existence of natural conditions on her land. The appellate court rejected that view, holding that defendant’s theory arose in an era when most land was heavily wooded and sparsely settled, and when the burden of inspecting those larger properties for natural defects would have been unreasonable. In a more modern urban setting, the court considered the burden of inspecting for unsound trees which might injure persons off of the owners’ property to be reasonable.

Here, the complaint is silent as to when and how the trees gained life. That is one reason, the Court said, why the complaint failed to allege a nuisance.

In addition, the Court said, even if counts I and II had stated that the defendant had planted the trees, the counts would still have failed to state a cause of action for injunctive relief. The Court said, “We do not consider trees that drop leaves on neighboring lands or trees that send out roots that migrate to neighboring lands and obstruct drainage to necessarily constitute a nuisance. We recognize that some decisions in other States are to the contrary. We agree with the Merriam court that, under the circumstances here, to permit the falling of leaves or the migration of the roots to give rise to injunctive relief would unduly promote litigation over relatively minor matters. Usually, the damage from the offending leaves would be minimal, and the accurate locating of the source of the offending roots would be difficult and expensive.”

– Tom Root

Case of the Day – Tuesday, November 26, 2024

Posted on November 26, 2024 by TLRoot tagged.

WHEN LIFE GIVES YOU LEMONS …

Lemon and Curington were neighbors. Things were neighborly when Curington planted a pair of poplar trees — fairly fast-growing and tall things — near the property line.

Over the years, things became less so, as several legally significant events occurred. First, the trees got big. As they did, the trunks ended up crossing the boundary line so that the trees were growing on both Curington’s and Lemon’s land. Second, the root systems expanded and began putting the squeeze on Lemon’s foundation. Third, Lemon discovered that if he used self-help, trimming back the roots and topping off the trees, he would make them unstable, turning the poplars into topplers. So Lemon — who was completely soured on the trees by this point — sued Curington, asking that the trees be declared nuisances and that Curington be made to remove them.

Life had given Curington a Lemon, but he tried to make lemonade. He argued that the Massachusetts Rule gave Lemon no aid and that he was limited to self-help. However, the court relied on the Idaho nuisance statute (noting in passing that the Massachusetts Rule didn’t really apply to a tree growing in both properties at once, a fascinating observation we wish it had explained a bit better), ruling that the trees were nuisances for having damaged Lemon’s foundation. It also seemed important to the Court that Lemon couldn’t trim the tree and roots himself without making the poplar a “danger” tree that was likely to fall.

This case is a gallimaufry of issues — the interplay of nuisance statutes with common law and the interplay of boundary trees with encroachment — as well a rather poorly-thought out dismissal of the Massachusetts Rule for reasons that were unnecessary. After all, the Massachusetts Rule was specific in its limitation to non-nuisance encroachment, twigs and leaves and that sort of thing. The Lemon decision, remarkably similar to the Hawaii Rule (but decided 14 years before the Hawaii Rule was adopted), is also quite similar in its fact pattern to Fancher v. Fagella, a 2007 Virginia Supreme Court decision. In fact, a real argument can be made that this Idaho case was entirely unnecessary in its treatment of the venerable Massachusetts Rule. Michalson v. Nutting, in our view, is a “big tent” with enough room for all of the poplars, sweet gums and banyan trees that followed.

Lemon v. Curington, 78 Idaho 522, 306 P.2d 1091 (1957). Lemon and Curington owned adjoining land with a common boundary, on which two poplar trees had been planted over 50 years ago. The trees had grown to approximately four to five feet in diameter at the base, and the trunks and branches extended across the boundary line. The roots were surface feeders and, in one case, extended from the boundary line to and against the foundation of Lemon’s house, cracking the house’s foundation. pushing the wall of the plaintiffs’ house inward.

If Lemon topped the trees and cut the roots extending onto his land, the trees are likely to fall over. Lemon sued, alleging the trees to be a nuisance, and asked for the authority to remove the offending trees.

The trial court authorized the destruction of the tree damaging the foundation but held the other tree was healthy and mature, and thus not a nuisance. Curington appealed, arguing that the Massachusetts Rule limited Lemon’s remedies to self-help, that is, to Lemon’s trimming the tree and roots himself.

Held: The tree is a nuisance, and the Court may order Curington to remove it. The Supreme Court held that the Massachusetts Rule was not dispositive where a nuisance had been shown to exist.

The Court said, “[w]e think the condition here shown to exist constitutes a nuisance under the provisions of Idaho Code § 52-101.” That statute defined a nuisance to be “[a]nything which is injurious to health … or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” Here, not only had the tree made a mess of Lemon’s foundation, but the evidence showed that if Lemon cut the roots and topped the tree, the whole thing was likely to fall over. The Court said that the statute authorized an action by any person “whose property is injuriously affected or whose personal enjoyment is lessened by the maintaining of a nuisance to have it abated.”

Without explaining its reasoning very far, the Court also said that the fact the tree was a boundary tree, on the properties of both parties, made the Massachusetts Rule inapplicable. So while Lemon reserved the right of self-help, the courts were also available to him to abate the nuisance tree.

– Tom Root

Case of the Day – Wednesday, November 20, 2024

Posted on November 20, 2024 by TLRoot tagged.

LIAR, LIAR, PANTS ON FIRE

Remember prescriptive easements? Those are easements and other rights over property that 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 laptop and printer. 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 air rights over that corner of the property by a “prescriptive easement.”

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

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

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

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

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

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

Cobb v. Gabriele, 2007 Cal. App. Unpub. LEXIS 3448, 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.

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

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

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

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

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

– Tom Root

Case of the Day – Monday, October 21, 2024

Posted on October 21, 2024 by TLRoot tagged.

WE ALWAYS MEANT IT

An entire e-cottage industry has grown up around the notion that there are some areas of the law – incorporation, wills, real estate transactions, contracts, divorce – where all you need to do is download some PDF fillable forms, answer a few simple questions, and save yourself a ton of money by representing yourself. When we complain about it, our admonitions are written off as self-interest.

But we always meant it. So, using an argument you might correctly characterize as reductio ad absurdum, we give you Nellie Francis.

Nellie believed she was suffering from some encroaching trees belonging to her neighbor. So she did what any red-blooded American would do: she sued.

After all, how hard can this be? Nellie filed a complaint, sent off a few motions, and called some witnesses. That’s all that a real lawyer would do, after all, and he or she would charge you $10,000 to do it.

Whoa, Nellie! She filed all sorts of motions, kept trying to amend her complaint, and even added damages for which she had been paid, which never happened, or – in one case – which happened to someone else, but she claimed it anyway.

The trial court sanctioned Nellie, requiring her to pay the defendant’s legal fees for a particularly egregious and frivolous filing. Undaunted, Nellie filed a demand that he pay her legal fees as well, not the least inconvenienced by the fact that she was representing herself, that is, she was pro se, and so she had no fees.

For that matter, at trial, she could not even prove that the fallen branches came from defendant Joshua’s trees. That seems kind of basic, the notion that you don’t sue unless you have some proof that the defendant is the one who caused you harm.

Those are the kind of technicalities that lawyers worry about. That’s why, Legal Zoom or not, they continue to be a necessary evil. Just ask Nellie…

Francis v. Brown, 836 A.2d 206 (R.I. 2003). A simple dispute between two abutting landowners and allegations of negligence in maintaining trees running along the property line between them brought Nellie S. Francis, representing herself (never a good idea) and Joshua Brown into court.

Nellie S. Francis lives at 16 Miller Avenue in Providence. The rear of her property is bordered by a 100’ fence, part of which abuts Joshua Brown’s place at 21-23 Verndale Avenue. A row of mature maple trees stands along the boundary between Nellie’s and Josh’s.

Nellie sued Josh, contending he was negligent for failing to maintain the trees or to prune rotted limbs that constantly fell into her backyard, causing injury to herself, her children, her dog and her elderly mother, as well as damages to her fence, two cars, a concrete floor of a torn-down garage, a swing set, and a doghouse. Josh denied all of Nellie’s allegations.

In February 2000, Josh moved to enter on to Nellie’s land to remove any trees belonging to him. She objected to his entry unless he assumed the liability for any damage done by work crews. Nell filed her own motion to compel Josh to cut down the trees on his property. As a result, Josh filed a motion for sanctions based on Nellie having proposed orders inconsistent with prior court rulings, and having filed frivolous motions to compel Josh to do that which she simultaneously had opposed. The hearing justice agreed and further found that Nell had caused unnecessary delay and increased Josh’s cost of litigation. She was ordered to pay $350 to defense counsel by June 9, 2000.

Along with her blizzard of pretrial motions, Nellie found time to move to amend her complaint on more than one occasion to add further damages. She also appealed to try to review an order denying her motion for reconsideration of an order granting Joshua’s motion for assessment of legal fees against Nellie. Undaunted by the prospect of the trial court sanctioning her for her vigorous and unschooled courtroom antics, Nellie sought leave to amend her complaint for a second time, this time incorporating diverse and sundry damages not included in her first amended complaint. The trial court turned her motion down, finding it was “too late [and] inappropriate,” and prohibiting her from bringing forth any incidents not referred to in her first amended complaint. What’s more, the trial justice ruled that Nellie would be precluded from presenting any medical evidence relating to animals or persons not named as complainants. Finally, he ruled that no information regarding insurance coverage would be given to the jury so that the jury would decide the matter on the merits and not on the defendant’s ability to pay.

Neophyte Nellie fared little better at trial. She presented several witnesses, including herself and her daughters, but conceded that she did not know what caused the branches to fall, nor could she state with certainty whether branches shown to her in photo exhibits had come from Joshua’s property or that of the vacant property next door. She admitted that she did not own the two vehicles damaged by trees for which she sought compensation. Neither of her daughters could pinpoint from whose property the fallen branches originated and neither offered testimony as to what caused the branches to fall. Louis Bobola, the director of forestry for the City of Providence testified that the trees were not on city property. He also said that the trees needed pruning, but that he did not see any decay on the trees.

Joshua’s lawyer introduced evidence that six years before, Nellie’s insurance carrier had already paid her for some of the tree damage she had now claimed. At the end of the trial, the judge granted Joshua judgment as a matter of law, holding that Nellie had utterly failed to prove her claim:

“The problem with the entire case is there is no evidence before the jury with regard to any damages sustained in this case by the plaintiff or her property… [T]here is not a scintilla of evidence before this court as to what tree or trees occasioned the alleged injury, on whose property they were located, were they on the defendant’s property or were they on the abutting property on the boarded-up house. And throughout the case, while there are certain inferences that can be drawn that branches do not fall on their own from trees, it simply in this [c]ourt’s view is not sufficient to be able to predicate a finding of negligence on the part of the defendant simply because this event has occurred… Mere ownership of trees that may or may not have caused damages does not impute negligence to the owner.”

The unsinkable Nellie filed for reconsideration, which the judge treated as a motion for a new trial. The court, charitably noting that Nellie had undertaken a difficult task by representing herself in the matter, found that the record was devoid of any objective damage for the jury to consider even if she had satisfied the first two requirements of negligence and proximate cause.

Nellie appealed to the Supreme Court.

Held: The trial court was upheld in every regard.

After reciting a litany of Nellie’s failings, the Court upheld the trial court’s evidentiary rulings, refusal of Nellie’s repeated amendments and judgment for Joshua. As for Nellie’s amendments, the Court agreed with the trial judge that she had been allowed to amend once, the trial date was upon the parties, and the amendment was flawed, with “many of the proposed incidents that plaintiff sought to add occurred several years previously. We believe that plaintiff was aware of their occurrence well before she filed her original complaint.”

After all of that, the trial court’s modest $350.00 sanction of Nellie seemed restrained. Noting that Joshua “was awarded $350 in fees as a sanction against plaintiff for filing motions and making pretrial objections for inappropriate purposes,” the Supreme Court held that “the trial justice awarded a reasonable fee, well below the amount requested by defendant, for the purpose of giving “a warning” to the plaintiff. We believe the sanction was justified and well within the trial justice’s discretion.”

Nellie had made her own demand that Joshua pay her a “pro se” fee for the work she had done on her own case. The Court drily said, “We decline to address the plaintiff’s appeal from the denial of her motion for an award of pro se fees. The plaintiff has not supplied this Court with an adequate record on which to review the issue, and therefore, we deny and dismiss her appeal on this issue.”

– Tom Root

Case of the Day – Tuesday, October 15, 2024

Posted on October 15, 2024 by TLRoot tagged.

I CAN’T SEE FOR MILES AND MILES…

Here’s a strange little case from Big Sky Country. Landowner Wilber (who, if we read between the lines correctly, was an impatient man who preferred to reap that which he did not sow, if you get our meaning) was unhappy that his downhill neighbor had a tree that had grown tall, and thus interfered with his view.

Wilbur found a lawyer, to whom he complained, “I can’t see for miles.” The lawyer, Who was happy enough to take Wilbur’s money, whispered delusions of legal grandeur in Wilbur’s ear. “If the neighbors’ tree kept you from seeing the July 4th fireworks,” the attorney whispered, “then the tree is a nuisance. And if the neighbors did not remove the tree to suit you, then they’re malicious! If the tree is overhanging your yard, your neighbors are trespassers!”

Believing his highly paid but under-informed counsel, Wilbur sued. The trial court bounced the suit, because (1) Wilbur had no common-law right to a view; (2) a naturally growing tree cannot be a nuisance; and (3) the neighbors are not trespassers because their tree’s roots and branches have encroached.

Wilbur appealed, and at last, the Montana Supreme Court heard the case. And that’s where the strangeness arose. The Supreme Court agreed that Wilbur had no right to a view and that the healthy, naturally growing tree was no nuisance. But it held that Wilbur’s trespass claim because the tree was encroaching, had been adequately pled and would survive early dismissal.

We tend to think that the Court agreed only that Wilbur’s claim that the neighbors had caused the tree to encroach was, if true, a good claim. If Montana suggests that a tree’s encroachment itself constitutes a trespass if an owner does not take active steps to stop the encroachment, the holding goes far beyond even the Hawaii Rule or Fancher v. Fagella.

If, on the other hand, Montana suggests that such encroachment, if not halted by an owner with knowledge of the encroachment and damage to the property of another, is trespass, this may be not a lot different than the Hawaii Rule, just worded differently. After all, an encroaching tree that damages the neighbor’s property may well be a nuisance. Trespass or nuisance, the responsible landowner is liable for the damage. That is how the Hawaii Rule operates.

Martin v. Artis, 366 Mont. 513 (Mont. 2012). Wilbur Martin resides in the South Hills subdivision in Missoula. Keith and Gloria Artis’s property lies immediately below and abuts Wilbur’s property, with a boundary fence separating the properties.

The Artises had a tree, a nice large tree that had grown over the years so that it blocked a substantial portion of Wilbur’s view of the city, valley and mountains. In fact, horror of horrors, on Independence Day 2010, for example, Wilbur and his guest could see virtually none of the South Gate Mall fireworks display solely because of the Artis tree blocking the view. Wilbur said the tree’s obstruction of his views was “offensive to his senses, was an infringement upon the free use of his property, interfered with his comfortable enjoyment of his property, and diminished the aesthetic and monetary value of his property.” He said the tree was a nuisance, and in fact, the Artises intended that it be a nuisance.

If that were not enough, Wilbur alleged that the tree’s roots were encroaching onto his property and were starting to buckle the boundary fence. What’s more, he claimed, branches from the tree encroached onto his property, overhanging the common boundary fence. He declared the encroachment to be a trespass.

The Artises had tried to accommodate. Wilbur admitted that after he contacted them about the tree, they had “cut a few branches from the tree,” but he nonetheless asserted that Artises “know their tree is growing over the fence onto Wilbur’s property and is buckling his fence, but refuse to do anything to stop it; that such trespass is continuing.”

Finally, alleging that Artises had notice and knowledge of the alleged facts, Wilbur accuses them of actual malice and demands punitive damages.

Artises filed a motion to dismiss the complaint, arguing that a naturally growing tree is not a nuisance or trespass as a matter of law. The district court agreed and dismissed Wilbur’s feverish litany of abuse.

Wilbur appealed, ending up in Montana’s Supreme Court.

Held: Wilbur had no right to an unobstructed view, and a naturally growing tree cannot constitute a nuisance. However, Wilbur had adequately pled a trespass because he claimed the tree was encroaching and the Artises knew it.

The statutory definition of nuisance provides that anything which is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance.” Section 27-30-101(1), MCA (2009). While it is possible under § 27-30-101(1), MCA, for anything to constitute a nuisance, a nuisance claim must nonetheless plead a factual foundation that satisfies governing legal standards. “A nuisance action may be based upon conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous,” the Court said. A nuisance may either be a nuisance per se or a nuisance per accidens. A nuisance per se or at law is an inherently injurious act, occupation, or structure that is a nuisance at all times and under any circumstances, without regard to location or surroundings. A nuisance per accidens or in fact “is one which becomes a nuisance by virtue of circumstances and surroundings.”

Likewise, the Court said, a nuisance may also be classified as either absolute or qualified. An absolute nuisance is ” a nuisance, the substance… of which is not negligence, which obviously exposes another to probable injury.” A qualified nuisance, on the other hand, is a nuisance dependent on negligence that consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm, which, in due course, results in injury to another.

Montana law has never held that a nuisance claim would lie for any obstruction of view whatsoever. Here, Wilbur alleges that a tree, in the course of its natural growth, has risen tall enough to obstruct his view. Although the complaint broadly claims that Artises’ tree has reduced the aesthetic and monetary value of Wilbur’s property, interfered with his comfortable enjoyment of his property, and offended his senses, the entire factual basis of the claim is that a tree has obstructed his view because of natural growth. The assertion that Artises’ naturally growing tree has obstructed Wilbur’s view does not constitute, as a matter of law, “conduct of a defendant that is either intentional, negligent, reckless, or ultrahazardous,” the Court said, or “an inherently injurious act or a condition which “obviously exposes another to probable injury.” The District Court properly granted the Artises’ motion to dismiss Martin’s nuisance claim.

The trespass is another matter, the Court held. Trespass is “the entry of another person or thing that obstructs a property owner’s exclusive possession. A party need not establish actual harm or damages in a traditional trespass action.” One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in possession of the other, or causes a thing or third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

The “intent” element of trespass is fulfilled when an actor desires to cause the consequence of his act, or when he believes that the consequences are substantially certain to result from his act. Here, the Court said, Wilbur’s complaint alleges a trespass because the Artises’ tree extends over the shared fence and the roots grow onto his property. The complaint alleges that the roots of the tree have damaged Wilbur’s property. Regarding intent, Wilbur claims alleges that the Artises “know their tree is growing over the fence onto the property and is buckling his fence but refuse to do anything to stop it,” that Artises’ conduct is motivated by malice or is in willful, wanton and reckless disregard of Wilburs’ rights,” and that Artises are guilty of actual malice “because they had notice and knowledge of the alleged facts.”

Although the Artises argue that Wilbur’s complaint fails to plead an intention to trespass by way of their tree, the Supreme Court concluded that “for purposes of an M.R.Civ.P. 12(b)(6) motion to dismiss, intent was adequately pled.”

– Tom Root