Case of the Day – Wednesday, May 14, 2025

Posted on May 14, 2025 by TLRoot tagged.

JUDGE JUDY HAS HER LIMITS, YOU KNOW

Ah, Cleveland! Renowned for the Rock and Roll Hall of Fame, a world leader in the manufacture of duct tape, the home to some really good beer and some really bad teams. Sure, the Best Location in the Nation has former Indians and the Cavs and the Browns. And maybe this is the year…

Cleveland’s gift to the world.

Add to that impressive string of achievements one more jewel: Cleveland gave the United States its first small claims court in 1913. The People’s Court was not far behind.

Small claims courts exist in every state of the country, informal courts of very limited jurisdiction (awards of a few hundred or few thousand dollars), places where lawyers and formality are rare indeed. It was to just such a place that Mr. Iny dragged Mr. Collom. It seems the roots of Mr. Collom’s tree were breaking up the walls of his neighbor’s garage. Now, any fan of the Massachusetts Rule would have told the neighbor to get out there with a shovel and ax and cut the offending roots at the property line. Self-help is, after all, as American as … well, as the Massachusetts Rule.

Of course, self-help doesn’t mean you can go onto your neighbor’s property, and it seems the homes and garages in this Long Island town were packed together like sardines. Mr. Iny couldn’t dig up the attacking roots without going on to Mr. Collom’s place, and we’re suspecting from the decision that these two guys were not the best of friends. So Mr. Iny took him to court.

The small claims court awarded him $2,100 for damages. Being of limited jurisdiction, the court couldn’t order Mr. Collom to cut down the tree or dig up the roots, so money was all that was available. Mr. Collom appealed (something you never see happening on TV).

Great Lakes’ American pale ale, named for that embarrassing episode in 1969 when the Cuyahoga River burned – not for the first time – and ended up as an icon for the nascent environ-mental movement. Incidentally, the river’s quite clean these days, and the brew’s a pretty fine pale ale.

The Supreme Court (which in New York State is not the state’s high court, but rather in this case just a court of appeals) reversed. The remedy here, the court said, shouldn’t have been money. It should have been to cut down the tree. But the small claims court lacked jurisdiction to do that. The Supreme Court itself didn’t have such constraints, so it reversed the money damages and instead ordered Mr. Collom to get rid of the tree.

The most interesting part of the decision is the lengthy and well-written dissent arguing that Mr. Iny’s tree claim was in fact a nuisance claim and that money damages should have been awarded as well. The dissenting judge argued that New York has adopted its own tree encroachment rule, a hybrid of the Massachusetts Rule and Virginia Rule (which itself has since this case been abandoned by Virginia). In New York, the judge concluded, a complainant has to resort to self-help first. If that fails, the courts will intervene if the tree can be shown to be a nuisance — that is, if the tree “is causing substantial interference with the use and enjoyment of plaintiff’s land, that defendant’s conduct is intentional or negligent.”

Of course, the discussion is found in a dissent to a fairly low-level, unreported decision, but it’s a thoughtful analysis of the encroachment rule in a state where precedent on the subject is sparse. Good reading on a cold winter night … unless, of course, another episode of Judge Judy is on.

Iny v. Collom, 827 N.Y.S.2d 416, 13 Misc.3d 75 (Sup.Ct. N.Y., 2006). The roots of a tree situated on Robert Collom’s property damaged the wall of a garage on Sol Iny’s property. Sol lacked the room to cut the roots out himself without trespassing on Bob’s land. He sought to get Bob to remove the objectionable tree, which he felt would have been the best way to fix the problem, but Bob refused. Sol sued in small claims to recover $2,100. The trial court awarded him this sum. Bob appealed.

Held: The decision was reversed. The Supreme Court noted that a New York small claims court is a court of limited jurisdiction and lacks the authority to grant any equitable remedy, such as directing the removal of a tree. Under the circumstances presented, the Court ruled, “substantial justice would have been most completely rendered had the court awarded judgment in favor of defendant dismissing the action on condition that he remove the subject tree within a specified period of time”. But the trial court couldn’t do that. The Supreme Court could, however, and it ordered the case dismissed, conditioned on Bob removing the tree within 60 days.

One justice dissented. He believed that the trial court’s judgment awarding Sol $2,100 in damages was based on a nuisance claim, and should have been affirmed. The dissent said the issue faced in the case was whether, under New York law, a property owner whose property is being encroached upon and damaged by the roots of a neighboring property owner’s tree may successfully assert a cause of action sounding in private nuisance if the property owner’s resort to self-help is unworkable, and the property owner’s attempts at obtaining assistance from the neighboring property owner to abate the roots’ encroachment have been unsuccessful.

The dissent argued that to establish a cause of action for private nuisance, the plaintiff must show that the defendant’s conduct causes substantial interference with the use and enjoyment of the plaintiff’s land and that the defendant’s conduct is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the laws governing liability for abnormally dangerous conditions or activities. The interference can be caused by an individual’s actions or failure to act. Where a defendant has been put on notice that his activity is interfering with the plaintiff’s use and enjoyment of his land and the defendant fails to remedy the situation, the defendant ought to be found to have acted intentionally and unreasonably.

Remember - the dissent is the opinion of the losers

Remember – the dissent is only the opinion of the losers, amusing but inconsequential.

Furthermore, the dissent argued, “[u]nder New York law, a party is liable for failing to abate a nuisance [under a theory of negligence] upon learning of it and having a reasonable opportunity to abate it.” The question of whether there has been a substantial interference with the plaintiff’s use and enjoyment of his/her property is one to be resolved by the trier of fact and involves a review of the totality of the circumstances based upon a balancing of the rights of the defendant to use his or her property against the rights of the plaintiff to enjoy his or her property. The balancing amounts to a risk-utility analysis weighing the social value of the conduct involved against the harm to private interests.

The dissent admitted that while the elements of a nuisance action appear straightforward, in New York there is a paucity of case law addressing nuisances arising from trees or other plant life. Nevertheless, the justice argued, there is substantial case law from jurisdictions outside New York, and he describes in detail the Massachusetts Rule, the Virginia Rule, and the Hawaii Rule. The dissent concludes New York has “in large measure, adopted a hybrid approach somewhere between the Hawaii and Virginia Rules in determining the issue of nuisance liability. To sustain a cause of action for nuisance, a plaintiff must resort to self-help in the first instance, which does not appear to be a prerequisite under the Hawaii Rule. Once a plaintiff establishes that self-help failed or self-help was impracticable, he or she must (1) show sensible damage (this kind of “sensible” has nothing to do with common sense, but rather is an injury that can be perceived by the senses), (2) that defendant’s conduct is causing substantial interference with the use and enjoyment of plaintiff’s land, (3) that defendant’s conduct is intentional or negligent, and (4) that the continued interference with the use and enjoyment of plaintiff’s property is unreasonable.

Where a defendant has been notified that a tree was causing damage to the plaintiff’s property and refuses to assist the plaintiff in taking measures designed to abate the nuisance, the defendant should be found to have acted intentionally or negligently regarding the nuisance. The unreasonableness of the interference will depend upon an overall balancing of the equities: the injuries to the plaintiff and to the defendant, the character of the neighborhood, the ongoing nature of the injury, and the nature of the defendant’s actions.

Remember, the foregoing – while it may be eminently “sensible” in the meaning of the term – was the opinion of a lone judge, one who was outvoted. It makes for thoughtful reading. But don’t mistake it for the law.

– Tom Root

Case of the Day – Friday, April 4, 2025

Posted on April 4, 2025 by TLRoot tagged.

VIRTUAL TRESPASS

More today from the annals of good neighboring. Out in Washington State, where some mighty big trees grow, the Herrings shared a boundary tree with their next-door neighbors, Jose and Blanca Pelayo.

What do we know about boundary trees, trees that grow with part of the base in each of two or more properties? First and most important, states generally hold that the trees are owned by all of the property owners as a tenancy in common. For the purpose of tree ownership, “tenancy in common” is a fancy way of saying that no one owner may do anything to the tree without the permission of all of the owners.

In 2011, the Herrings trimmed some of the branches from the boundary tree, branches that were overhanging their property. They did not ask permission of the Pelayos before they did so.

That, of course, was so wrong. But rather than suing the Herrings – the Pelayos may have considered their response restrained on this point – Jose and Blanca decided to go tit for tat. They called their own arborist to look at the tree. He told them the tree seemed unbalanced and dangerous with the branches on the Herring side removed. He suggested a few options, including cutting all of the remaining branches off. Amazingly, the Pelayos thought that sounded like a good idea.

Just as had the Herrings, the Pelayos did not discuss their plans with the neighbors. After the arborist left what was essentially a very dead telephone pole standing on the boundary line, the Herrings (with no sense of irony) sued the Pelayos for trespass to trees, asking for treble damages under state law for wrongful cutting. The trial court found the Pelayos liable, awarding $10,475 to the Herrings.

On appeal, the Pelayos argued that they could not have possibly trespassed in cutting the tree, because they had never stepped off their own property when they butchered the tree, and anyway, under the Massachusetts Rule, they had every right to trim branches that were overhanging the property. They also argued they could not be liable for treble damages, because the trial court had not made a finding that the cutting was willful.

The appeals court made short work of the Pelayos’ arguments. Yes, the court said, you can trespass on timber without necessarily trespassing on the underlying land (I guess that’s virtual trespassing). No, the Massachusetts Rule does not let you cut overhanging branches from a boundary tree in which you have an ownership interest. And no, the trial court does not have to make a willfulness finding unless you have argued that the cutting was casual and involuntary. No one contended the cutting had not been willful.

There is a certain irony that the Herrings had done exactly what the Pelayos had done, except for merely mauling the tree rather than killing it. But the Pelayos apparently figured they could get even simply by replicating the Herrings’ bad conduct. The law does not work that way.

Herring v. Pelayo, 198 Wn. App. 828, 397 P.3d 125 (Ct. App. Washington, May 2, 2017). The Herrings and Pelayos are neighbors who share a common property line. In early December 2011, the Herrings hired a tree trimmer to remove some branches from a tree located on the common property line. The Herrings did not discuss their plan to remove branches from the tree with the Pelayos. The Pelayos thought the trimming done by the Herrings unbalanced the tree, constituting a danger to their home. So four weeks later, the Pelayos’ own tree trimmer removed all of the remaining branches, without first discussing their plan with the Herrings. The tree obligingly died.

The Herrings sued the Pelayos, claiming timber trespass in violation of RCW 64.12.030 or RCW 4.24.630. At trial, Jose Pelayo admitted he knew the tree was on the common property line, he told his tree trimmer to remove all of the remaining branches from the tree, he did not discuss his plan with the Herrings, the tree was alive prior to the removal of the remaining branches, and he figured that removing the remaining branches would kill the tree.

The trial court found the Pelayos liable for timber trespass under RCW 64.12.030 and awarded treble damages.

The Pelayos appealed.

Held: The Pelayos committed timber trespass. Although the Pelayos argued the trial court never specifically found their conduct to be willful, the court noted that Jose’s testimony “was tantamount to a concession that his conduct in removing the branches was willful, and there was no other evidence presented at trial from which the trial court could infer that this conduct was casual or involuntary. Therefore, no specific finding as to willfulness was required to conclude that the Pelayos were liable under RCW 64.12.030.”

The Pelayos also argued they couldn’t be liable for trespass “because they were lawfully authorized to remove branches from the boundary tree that were overhanging their property.” The Court agreed a landowner has the authority to “engage in self-help and trim the branches and roots of a neighbor’s tree that encroach onto his or her property.” A landowner does not, however, have the right to cut down an encroaching tree.

The Court held that the right of self-help, derived from the Massachusetts Rule, does not apply where the landowner using self-help owns an interest in the tree because the portions of the tree overhanging his or her property cannot be said to be “encroaching.” You simply cannot encroach upon yourself.

What’s more, the Court said, as tenants in common, the Pelayos and Herrings were each entitled to use, maintain, and possess the boundary tree, but not in a manner that “interfered with the coequal rights of the other cotenants.” Unlike a landowner engaging in self-help to trim branches overhanging his or her property from a tree situated entirely on the property of another, a cotenant to a boundary tree has a duty not to destroy the common property and thereby interfere with the rights of the other cotenants.

The Court said, “We discern no meaningful distinction between cutting down a tree and trimming a tree in a manner intended to kill the tree.”

The Pelayos argued that because they cut the tree branches while standing on their property, they had probable cause to believe that they owned the land where such conduct took place. Their argument was based on the mistaken belief that the trebling provisions of RCW 64.12.030 don’t apply when the defendant’s conduct resulting in the destruction of a tree occurs while the defendant is on his or her own property. The Court held that even if the conduct resulting in the tree’s death occurred solely on the Pelayos’ own property, the trial court would not be required to conclude that mitigating circumstances applied to reduce the damages award. Instead, when determining whether mitigating circumstances applied, the relevant inquiry for the trial court was whether the Pelayos proved that their trespass on the common property tree was casual or involuntary.

At trial, the Pelayos did not claim, let alone prove, that the trespass upon the tree was casual or involuntary. Thus, they were liable for treble damages.

– Tom Root

Case of the Day – Monday, March 31, 2025

Posted on March 31, 2025 by TLRoot tagged.

NEIGHBORS BEHAVING BADLY

There aren’t any winners in today’s neighbor-aggravating-neighbor case, one that had its genesis in one neighbor deciding that encroaching tree branches meant he could hack the trees – which stood on his neighbor’s land – back to mere stumps.

Things fell apart from there. The neighbors alleged two more atrocities in the ensuing year, and they blamed the tree hacker, because… well, why not? The Court, I think, was all too credulous, partly because the tree-cutter was not a native English speaker and was too easily dismissed for that reason.

I suspect that because the all-too-clear video of one altercation has Craig, who portrayed himself as the victim to the court, calling Mr. Cheung things – such as “f—face” – that would have gotten Craig’s teeth relocated in any midwestern bar. And he told Mr. Cheung that he was under arrest, a claim that I would have found amusing. But then, I have three years of law school and many more of law practice behind me. Mr. Cheung is an immigrant, and may well come from a place where arbitrary arrest is the rule rather than the exception.

Old Craig did not seem terribly rattled by Mr. Cheung’s alleged threat to kill him, and as a threat – if that’s what it was – it was dishwater-weak.

The wily Confederate raider (whose conduct in other quarters, I hasten to add, was abhorrent and who has not yet been rehabilitated by the current Administration), General Nathan Bedford Forest, is widely credited with saying that his guiding tactical principle is “getting there firstest with the mostest.” That’s what Craig and his wife did here, it seems, got to court first with a double-barreled assault that the neophyte Hogan Cheung was helpless to fend off.

Still, had Hogan only been a faithful treeandneighborlawblog reader, he would have been well aware of the Massachusetts Rule, and only cut the offending branches to the fence line. And all of the ensuing unpleasantness could have been avoided.

Stolarczyk v. Cheung, 2019 Cal. App. Unpub. LEXIS 2271 (Ct.App. 1st Dist., March 28, 2019). Craig and Shana Stolarczyk and their two young children live on a property that adjoins the parcel on which Hogan Cheung, his wife, two small children, and mother-in-law live in San Mateo. A fence that runs between the Stolarczyks’ backyard and Cheung’s side yard.

The Stolarczyks complained that Hogan Cheung had cut down two trees on their side of the fence a few years ago. Matters escalated from there into general ugliness. At one point, Craig and Shana said, someone dumped gasoline on their backyard, with a dribble that seemed to run from the dump location to the fence. Hogan denied having done so.

Craig’s and Shana’s landlord lived next door. Being aware of the problems, he installed a security camera on his own property that took in the Stolarczyks’ and Cheungs’ backyards. The camera recorded, among other things, a verbal altercation between Craig and Hogan over the camera installation. Craig taunted Hogan with obscenities. Hogan asked Craig to take the camera down. When Craig refused, Hogan covered the camera lens. Craig then told Hogan he was under arrest followed by the same vile epithet first used to address him. Hogan asked Craig if he was threatening him. Craig again told Hogan that he was under arrest, and Hogan responded, “That’s fine, thank you. And I will always come back for you.”

Craig asked Hogan if he ‘want[ed] to do something?” Hogan said, “I already did something.” Craig accused Hogan of pouring gasoline on his yard, to which Hogan replied, “No one put gas, you put your gas and you[‘re] blaming it on people.” Craig asked Hogan if he “want[ed] to settle it,” to which Hogan responded, “You don’t need to settle it, you’re dead.” Laughing, Craig told Hogan he was going to call the police because he was just threatened.

Hogan admitted he cut down overgrown trees planted in the Stolarczyks’ backyard in March 2016. Prior to cutting the trees, Hogan twice requested the Stolarczyks’ landlord manage the trees to no avail. According to Hogan, the trees grew fast, crossed the fence by three feet to four feet, and left limbs over his house and satellite dish. In addition, noise from the trees swaying in the wind and scraping and rubbing against the walls of his house made it difficult to sleep. Hogan stated he did not cut down the trees completely, only the portions rubbing against his house that were overgrown.

Hogan denied pouring gasoline in the Stolarczyks’ yard, and he said he placed tape over the camera lens because his wife was afraid, seeing the camera as “a really bad invasion looking into my house in the bathroom[], whatever [his wife] was doing.” He acknowledged he called the police about the camera before he taped over it and that an officer told him not to touch it. Prior to covering it, he also asked the Stolarczyks to take it down but they threatened and cursed him. Addressing the “you’re dead” statement he made to Craig, Hogan explained that Craig and his companion were cursing and provoking him, that his English was not “too good,” and he did not know what to say. He said his comment was not a threat but his way to end the conversation and signal he no longer wanted to talk. Hogan denied ever threatening to kill Craig.

In 2016, the Stolarczyks suspected herbicide was dumped over the fence into their yard, and in July 2017, Craig was overwhelmed by the smell of gasoline in his backyard. He said he smelled gas in the soil all along the fence line and observed discolored and foul-smelling mulch. The fire department confirmed the presence of a gasoline odor and doused the area with water.

The Stolarczyks filed a petition for a civil harassment restraining order against Hogan Cheung the next month.

The trial court acknowledged Hogan’s right to reasonably trim a neighbor’s trees that cross into his property but held he was not entitled to simply cut off the foliage to a point below the fence line. The court also noted the ongoing and escalating nature of the dispute and found Hogan Cheung to be “not the most believable witness” ever to appear in court. The court found his explanation that he did not understand what he was saying on the video to be “ludicrous” and did not see him as a victim in any way. Based on the video, the court found Hogan was self-confident and assertive when he taped over the camera, which the court said the property owner had every right to place on his property. Nothing suggested the camera was positioned to film the interior of Hogan Cheung’s home. With respect to the chemicals on their property, the court found it was “a reasonable inference to draw that someone else is responsible for that and I think that [the Stolarczyks’] concerns are legitimate that [Hogan Cheung was] responsible for that… I think without question, it has been sufficiently proven that Mr. Cheung damaged their property. He vandalized their property. There is a reasonable inference to be drawn, and it’s for that issue I am still going to issue a restraining order.”

The order required Hogan Cheung to stay five yards away from the Stolarczyks and to refrain from harassing or contacting them, or destroying their personal property. Mr. Cheung appeals.

Held: The restraining order was upheld.

Under Section 527.6 of the California Code of Civil Practice, a person who has suffered harassment… may seek a temporary restraining order and an order after hearing prohibiting harassment.” Harassment is “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.”

Hogan Cheung argued the court erred in granting the restraining order because the Stolarczyks failed to establish several of the required elements of Section 527.6 by clear and convincing evidence. In particular, he contends that the Stolarczyks failed to prove his conduct served no legitimate purposes, caused them substantial emotional distress, or posed any risk of future harm.

The Court of Appeals rejected his argument. “We find no merit to Cheung’s broad contention that his version of what happened was ‘equally likely’ as the Stolarczyks’ and did not amount to harassment.” Hogan claimed the Stolarczyks failed to prove his acts served no legitimate purpose: he said his trimming trees encroaching on his property and covering a surveillance camera directed towards his house were lawful acts with legitimate purposes. But Hogan Cheung cut the trees below the fence line, and not just those portions extending into his property. Also, the video camera was neither located on the Cheung property “nor trained on the inner sanctum of Cheung’s house.” It hardly helped Hogan’s case that he admitted that he was told by police not to touch the camera but did so anyway. “All of this evidence,” the Court said, “supports an implied finding that Cheung’s acts served no legitimate purpose.”

Hogan also claimed his conduct did not cause the Stolarczyks substantial emotional distress. In fact, the trial court rebuked Craig for behaving badly, describing his behavior in the video as “antagonistic and sarcastic and profane.” Nonetheless, the appellate court said, the petition for a restraining order was not filed solely based upon the camera incident nor was Craig the sole petitioner. Despite Craig’s laughter and the potty-mouthed taunting that he displayed that evening, the Court ruled that the “trial court could reasonably infer that both Craig and Shana suffered substantial emotional distress from having their trees chopped down and the debris left in their yard, and from having chemicals poured into their backyard where their small children play.”

The record likewise permitted the finding of likely future harm, supporting “the conclusion that a restraining order was necessary to prevent bad acts from continuing into the future. Cheung initially chopped down the Stolarczyks’ trees in March 2016; the Stolarczyks smelled gasoline along their fence line in July 2017; the altercation over the camera occurred in August 2017; and by the time of the hearing in September 2017, the trees had regrown to twice the height of the fence.” The dispute had not resolved itself in over a year, and the trees were growing large again. “Because we’re talking about trees that were cut in 2016, and Mr. Cheung still, it would appear, has issues with the fact that these trees are on his neighbor’s property and continue to grow and grow tall,” the Court said, the record supported a finding of threat of future harm.

– Tom Root

Case of the Day – Friday, March 21, 2025

Posted on March 21, 2025 by TLRoot tagged.

BRANCHING OUT

Crunch. And after the tree falls, the insurance company adds insult to injury.

Crunch. After the tree falls, the insurance company adds insult to injury.

An unhappy homeowner from urban Cincinnati, Ohio – we’ll call her Sylvia Glade – wrote to us about her neighbor’s oak tree. It seems that one of the oak’s branches was overhanging Sylvia’s home. The branch constantly dropped sticks, and the tree itself has been shedding branches regularly. As far back as the late 1990s, Sylvia thought the tree was dangerous and began asking her neighbor, whom we’ll call Elouise, to do something about it. A tree expert whom Sylvia hired five years ago to inspect her own trees agreed, saying the big oak should go.

The elderly Elouise was unmoved. She gave Sylvia permission to cut down the tree (as long as Sylvia paid for it), but then denied her the right to enter the property to do so. With the property line hard up against Sylvia’s house, Sylvia couldn’t even get a ladder under the branch to cut it away without Elouise’s cooperation (which, it is obvious by now, was not to be forthcoming).

But there’s good news: Sylvia doesn’t have to worry about that branch anymore. Sadly, there’s bad news, too: the branch is no longer a hazard because it fell on a windy day, crushing two floors of Sylvia’s house. Her neighbor’s insurance carrier said, “Oops, looks like an act of God! Not our responsibility.” Sylvia thinks God should be left out of things because the branch — which broke right at the trunk — looked very decayed.

Elouise’s insurance company says Elouise had no idea the tree wasn’t healthy. “She didn’t know, so we don’t owe,” the company’s mantra seems to be. Sylvia complains she told the neighbor on many occasions, and even the neighbor admits she saw decayed branches that had fallen from the tree. Once, Elouise even hired Sylvia’s son to haul away some large branches that the old oak shed in a windstorm. Sylvia asked us what duty of care Elouise owed her under Ohio law.

We start with the evolution of the Massachusetts Rule. Originally, the Rule held that a homeowner usually had no remedy against overhanging branches, other than his or her right to trim the branch back to the boundary line. That Rule has been limited in the last score of years or so, notably in the Virginia Supreme Court case of Fancher v. Faglia (2007) and the North Dakota Supreme Court holding in Herring v. Lisbon Partners Credit Fund, Ltd. (2012). Both of those courts ruled that while a property owner might be limited to self-help where an encroaching tree was only doing what trees do – that is, dropping leaves, nuts, berries, seedpods and twigs – where a tree becomes a nuisance, the owner of the tree is liable for removing it.

The relevant Ohio case is Nationwide Insurance Co. v. Jordan. In that case, Mrs. Jordan’s big maple tree fell, damaging the neighbors’ place. They sued Mrs. Jordan, claiming the tree trespassed.

No dice, the Court said. The trespass claim would only work if the tree were an absolute nuisance, and that isn’t the case. Mrs. Jordan would be liable, the Court held, if she actually knew the tree was dangerous or if she reasonably should have known the tree was dangerous. The Court decided Mrs. Jordan had neither kind of knowledge. The neighbor, although vociferous in her condemnation of the tree to anyone else in earshot, admitted that she never complained to Mrs. Jordan about it.

In Sylvia’s case, the insurance company is wrong. It’s not enough that the neighbor says she didn’t know the branch was dangerous. The other half of the question is this “should have known” business. Was Elouise on constructive notice that the tree was dangerous, that is, should she reasonably have known the decay was making the tree unsafe? If Sylvia is right, the evidence will show the neighbor was told many times the tree was a hazard. Elouise had witnessed the tree drop a number of large branches in the previous years. She had to hire Sylvia’s brawny son to clean up the mess. And Sylvia told her about the danger, even agreeing to pay for the removal of the tree herself.

Several Ohio cases (such as Wertz v. Cooper) suggest that neighbor Elouise – being an urban dweller – has a greater duty to inspect her trees than would a country squire. The evidence suggests Elouise had every reason to be concerned about the tree, and thus had a duty to inspect it to be sure it wasn’t about to collapse Sylvia’s house.

Elouise’s insurance company may want to rethink its position… and start looking for its checkbook.

Nationwide Insurance Company, et al. v. Jordan, 639 N.E.2d 536 (1994). This action arose between adjoining landowners as a result of the falling of a mammoth maple tree. The insurance company, which had paid the damages to its insured’s place, sued for trespass and negligence. The defendant tree owner testified that she had no notice the tree was susceptible to falling. Her tenant likewise testified that she had no notice of the tree’s danger. The defendant’s tree service manager testified that he worked on the property’s trees every two years and that the tree in question was not unsafe less than two years before it fell. The only person to testify to notice that the tree was rotten and likely to fall was the plaintiff’s insured.

The trespass claim arose because the plaintiff maintained that the falling tree trespassed on the insured’s property. The trial court made short work of this, holding that the only way liability could be imposed on Mrs. Jordan without proof of fault would be if the tree were an absolute nuisance. Healthy trees growing on real property, even urban real property, are not absolute nuisances, the trial judge said. Thus, the insurance company had to prove that Mrs. Jordan either knew or had constructive knowledge that the tree was likely to fall. The insurance company couldn’t prove that, so the trial court found for Mrs. Jordan. The insurance company appealed.

A diagram of one modern method of measuring a tree’s decay. Elouise had any number of options – some cheap, some costly, some old school, some high-tech – for verifying the health of her big old oak.

Held: Mrs. Jordan was not liable. The Court said that there was no evidence that Mrs. Jordan actually knew or had any reason to know that the maple tree was in danger of falling. The neighbor complained that the tree’s propensity to fall was obvious to her, but she admitted he never told Mrs. Jordan. The Court observed that “[h]ad the plaintiff conveyed this knowledge to her neighboring landowner, the danger might well have been obviated, or, alternatively, the plaintiff’s hands would be clean and the defendant would have been on notice and resultantly liable for the fall.”

The Court further held that a tree on an owner’s property was not an “absolute nuisance,” and thus the adjoining landowner could not proceed merely upon strict liability against the owner. Instead, the neighbor was required to prove negligence. To recover on a theory of negligence arising out of a falling tree, a plaintiff’s evidence must establish that the defendant had actual or constructive notice of patent danger that the tree would fall. Here, Mrs. Jordan had neither actual notice nor constructive notice of the tree’s dangerous condition. Both Mrs. Jordan and her tenant testified that they had no notice of the tree’s danger, Mrs. Jordan’s regular tree trimming contractor worked on the property’s trees every two years and found that the tree in question was not unsafe not more than 24 months before it fell.

The Court ruled in favor of Mrs. Jordan.

– Tom Root

Case of the Day – Tuesday, February 25, 2025

Posted on February 25, 2025 by TLRoot tagged.

THIS ONE IS FOR MY WONDERFUL WIFE

Years ago, our neighbor Olwen – who, if she had not passed away (meaning, of course, that we cannot speak ill of her), we would have described as a battleaxe – surrounded two sides of her property with 2-3’ arborvitae. It didn’t really look that bad, but… well, they grew.

And grew, and grew and grew. Our neighbor never trimmed them before she departed this mortal coil. And the two families who lived there subsequently never trimmed the trees/shrubs/whatever-the-hell-they-are, either.

Consequently, the arborvitae are 25 feet tall and still growing. We finally had to move our vegetable garden about 20 yards to the west because of the shade they were throwing. Exercising our Massachusetts Rule rights last fall, we hacked about ten of them back to the property line in order to install a new shed. We then built a fence to try to keep the monsters in check.

My wife mutters about the arborvitae daily. I have no problem understanding Nancy – the protagonist in today’s case – who must have loved neighbor Pnita’s arborvitae as much as my wife loves Olwen’s. But while my wife just glowers at the arborvitae, Nancy – a woman of action – did something. She brought in a trimming crew and topped the neighbor’s trees.

She didn’t kill them, just sort of knee-capped them. Who knew that so much visceral pleasure could end up being so expensive?

So this post is for my wife, a cautionary tale lest she decides to take matters into her own hands on the next-door arborvitae. Take a deep breath, honey…

Joseph v. Nathanson, 87 Mass. App. Ct. 1102, 23 N.E.3d 151, 2015 Mass. App. Unpub. LEXIS 37 (Ct.App. Mass. Jan. 16, 2015). Pnina Joseph and Nancy Ellen Nathanson owned abutting properties and shared a property line. Pnina planted thirty-five arborvitae trees on her property close to the property line to serve as a privacy screen. In October 2012, Nancy directed her landscaper to go onto Pnina’s property and “prune” the trees. The landscaper “topped” the trees by cutting about five to six feet from the tops.

Pnina sued under Massachusett’s tree-cutting statute, G. L. c. 242, § 7, and a jury returned a verdict in Pnina’s favor, awarding her $35,000. The award was trebled under the statute. Nancy appealed, arguing that her actions did not violate the tree statute because the trees were not “cut down” or “destroyed” as required by the statute.

Held: “Topping” the trees so that they would no longer grow any higher justified application of the Massachusetts wrongful-cutting statute.

General Law c. 242, § 7 provides for liability on the part of anyone who “without license willfully cuts down, carries away, girdles or otherwise destroys trees.” Nancy asserts that under the tree statute, Pnina’s trees had to be completely destroyed or cut down in order for the plaintiff to recover. She argues that the evidence showed that the trees were alive, growing, and healthy after the topping of the trees and, therefore, could not possibly have been “destroyed.”

The Court said it would interpret a statute to give effect “to all its provisions, so that no part will be inoperative or superfluous.” The statute here requires that the trees be “cut down, carried away, girdled or otherwise destroyed.” G. L. c. 242, § 7. “The phrase “otherwise destroyed” includes,” the Court said, “but is not limited to, the preceding phrases including ‘cut down’.” In other words, “cut down, carried away,” and “girdled” are examples of how a tree may be destroyed; they are not exclusive.

The judge instructed the jury that the word “destroy” has a commonly understood meaning, which includes “to ruin completely, to ruin the structure, organic existence or condition of a thing, to demolish, to injure or mutilate beyond the possibility of use.” The Court held that this definition given to the jury correctly provided a broader meaning to the term destroy than the examples in the statute.

Pnina’s expert testified that the “topping” of the trees meant that they would never grow vertically again and were no longer functional as a privacy screen. The jury was entitled to credit that testimony, to agree with Pnina that the trees were “mutilated beyond the possibility of use” as a privacy screen, and therefore to find in Pnina’s favor.

– Tom Root

Case of the Day – Monday, February 24, 2025

Posted on February 24, 2025 by TLRoot tagged.

DOING NOTHING IS NOT AN OPTION

“A stitch in time saves nine” is an idiom that’s been around for three hundred years or so. It also is an everyday explanation of the equitable doctrine of laches.

It always seemed a little ironic that English common law needed an entire branch of jurisprudence known as “equity.” Oliver Wendell Holmes, Jr., famously lectured a litigant once that his courtroom was “a court of law, young man, not a court of justice.” It was precisely because there was so much law and so little justice that medieval England developed a parallel judicial system known as courts of equity, where litigants could get just results that were precluded in the courts of law by hidebound rules of pleading and damages.

The basis of equity is contained in the maxim “Equity will not suffer an injustice.” Other maxims present reasons for not granting equitable relief. Laches is one such defense.

Laches is based on the legal maxim “Equity aids the vigilant, not those who slumber on their rights.” In other words, “you snooze, you lose.” Laches recognizes that a party to a lawsuit can misplace evidence, lose witnesses, and thus forfeit a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. If the defendant can show disadvantages because, for a long time, he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice.

Ms. Garcia suffered encroachment from a copse of boundary-tree elms for a long time, perhaps too long a time, without doing anything about it. She could have trimmed roots and branches that intruded into her alfalfa fields years before – New Mexico law let her do that – but she fretted and stewed in silence. When she finally wanted to take action, the elms were so big that the trunks themselves had crossed the property line. Her “self-help” would have killed the trees.

The lesson? As Ed McMahon used to adjure us, “You must act now.”

Garcia v. Sanchez, 108 N.M. 388, 772 P.2d 1311 (Ct.App. N.M. 1989). This dispute between neighboring landowners involves trees originally planted on the defendant’s property which have overgrown and now encroach upon the plaintiff’s property. By the time Garcia bought her land in 1974, ten elm trees planted some years before near the common property line were well established. Although originally planted inside the defendant’s property line, over the years, the trees had reached full size and had grown so that nine of them were directly on the boundary, with the trunks encroaching onto the plaintiff’s property from one to fourteen inches.

Garcia used her land for growing field crops. Sanchez’s side had a driveway and residence. Garcia didn’t complain about the trees until 8 years after buying her property. Two years after her first complaint, she sued.

The trial court found Garcia’s actions in providing water and nutrients to her crops had caused the trees to grow toward her property, but it concluded that Sanchez negligently maintained the elm trees, allowing the roots and branches to damage the crops on Garcia’s property. The court also found that she had not suffered enough damage to warrant the removal of the trees and that cutting any substantial portion of the trunks of the trees would seriously harm them. The court found that yearly trenching of the roots and trimming of branches on Garcia’s side of the property line would essentially resolve any problems resulting from the encroachment of tree roots and overhanging branches on her property, so it ordered Sanchez to pay $420.80 for damage to Garcia’s alfalfa, to yearly trench the roots and trim the branches of the trees, and to provide water and nutrients to the trees in order to restrict their growth toward plaintiff’s property.

The parties appealed.

Elms make good boundary trees

Held: The Court of Appeals reversed and remanded. It held that the trees originally planted inside a property line, which had grown to encroach onto adjoining property along the boundary, were not jointly owned under the common boundary line test absent an oral or written agreement to have the trees form the boundary line between the parties’ property. It agreed that the trial court’s refusal to order that Sanchez remove the encroaching trees was not an abuse of discretion, observing that the trial court had tried to balance equities by weighing the value of trees against the agricultural character of the property involved and the nature of the harm suffered by Garcia.

But the Court of Appeals went further: it ruled that the harm caused to Garcia’s crops by the elms’ overhanging branches and tree roots is not actionable. Instead, following Abbinett v. Fox, the Court held that a plaintiff’s remedies are normally limited to self-help to protect against the encroaching branches and roots. But here, Garcia waited too long: her plan now, after years of suffering in silence, to remove a substantial portion of the root system or trunk of the encroaching trees (her Massachusetts Rule right) may endanger lives or injure Sanchez’s property, and that laches gives a court the right to limit the exercise of her self-help plan under its equitable authority.

The Court sent the case back to the trial court to determine whether Garcia’s failure to exercise self-help to control encroaching roots, branches and tree trunks over an extended period should preclude injunctive relief now.

– Tom Root

Case of the Day – Tuesday, February 18, 2025

Posted on February 18, 2025 by TLRoot tagged.

TAKE A LITTLE OFF THE SIDES

The Massachusetts Rule is the original dose of self-reliance, holding that a landowner has an absolute right to trim back overhanging branches and encroaching roots of his or her neighbor’s tree. But even in Massachusetts, sometimes people may get carried away.

There’s a lot of bad trimming going on out there ...

The O’Malleys had planted and nurtured nine rather rare (for Massachusetts) false cypress trees on their land, using them to form a natural screen between their home and Ruhan’s place next door. The trees were about 15 to 20 feet tall. Along came Ruhan’s landscaper, who apparently knew about the Massachusetts Rule in a crude sort of way. He trimmed the false cypress trees back to the property line and then some, sawing them right down to the trunks on Ruhan’s side of the trees. The court said that the trees continued to survive and even to serve as a screen, but that their “aesthetic integrity” had been compromised by the negligence of Ruhan’s agent. That’s legalese for “the trees looked like hell.”

In the battle of the experts, the O’Malleys leapt to an early lead. Their arborist expert witness testified that replacement of the trees would cost about $14,000. Ruhan’s expert didn’t testify as to the cost of cleaning up the damage but instead suggested that the trees were still growing and still screening the O’Malleys, so the shaving of one side of the trees didn’t really harm anything. The Court disagreed with Ruhan, finding that loss of aesthetic integrity was indeed damage, regardless of whether the trees still grew or not. And because Ruhan’s expert hadn’t put in any evidence challenging the O’Malleys’ estimate of $14,000 to replace the trees, that number was the best evidence the Court had to go on.

The lesson is that the expert should have covered all the bases: he or she should testify that there was no loss, but if there was, it would only cost an amount certain to repair. If you don’t give the court your own evidence, you can hardly blame the judge for using the other side’s. And a curious note: the Court of Appeals suggested that the whole notion of whether Ruhan was entitled under the Massachusetts Rule to trim all the way to the trunk wasn’t necessarily settled, but because he didn’t raise the question on appeal, the Court couldn’t consider it.

O’Malley v. Ruhan, 2006 Mass.App.Div. 174, 2006 Mass. App. Div. LEXIS 65, 2006 WL 3501553 (Mass.App.Div. 2006). The O’Malleys sued Ruhan after his landscaper pruned the branches of their nine false cypress trees — 15 to 20 feet tall each — back to the trunks of the trees, rendering the trees permanently lopsided. The trial court held that the value of the trees, although they survived, was equal to their replacement cost, and awarded the O’Malleys $14,007. Ruhan appealed.

Held: The O’Malleys were entitled to recover the replacement costs for the false cypress trees. O’Malley’s arborist expert opined that replacement costs totaled $14,007.00. Ruhan did not object to that expert’s testimony, including his opinion as to replacement cost. In the absence of objection, the Court said, the expert’s testimony was to be accorded appropriate evidentiary weight. Ruhan’s expert, on the other hand, apparently testified in essence that the mutilation of the trees did not diminish the value of O’Malley’s property at all, that is, that Ruhan’s negligence caused no harm of any kind to O’Malley.

When trimmed too vigorously, trees can become less aesthetically pleasing.

Because the trial court found that harm had been caused, the Court said, that issue was decided. The only issue was the amount of damages. The Court held that it would be appropriate to award damages based on the value of the timber, on diminution in the value of the property, or for the reasonable costs for restoring the property to its original condition. Observing that courts throughout the country have placed a greater emphasis on the rights of a property owner to enjoy the aesthetic value of trees and shrubbery, notwithstanding the fact they may have little commercial value, the Court held that when trees are destroyed by a trespasser, “sound principle and persuasive authority support the allowance to an aggrieved landowner of the fair costs of restoring his land to a reasonable approximation of its former condition, without necessary limitation to the diminution in the market value of the land.” Because the amount awarded by the trial court was based on the only damages figure in evidence, it was reasonable.

Interestingly enough, the appeals court made reference to the Massachusetts Rule first enunciated in Michalson v. Nutting. The Court observed that while it is the law in Massachusetts that a neighbor has the right to remove so much of a neighbor’s tree as overhangs his property, “[e]xplication of the parameters of this right, though, is as scarce as palmetto palms on Cape Cod. Presumably, the right is one that must be exercised in a reasonable manner.” But, the Court noted, whether Ruhan was within his rights or not under the Massachusetts Rule was not raised on appeal, so the Court didn’t decide it.

– Tom Root