Case of the Day – Monday, February 10, 2025

Posted on February 10, 2025 by TLRoot tagged.

HERE WE CUT DOWN THE MULBERRY BUSH…

When Mamie’s lights went out, she called the electric company to fix them. The linemen tracked down the problem and fixed it while Mamie was off at Wal-Mart. But while they were there and Mamie wasn’t, the electric workers saw an excellent opportunity to saw… and to get rid of some trees in the utility’s easement across Mamie’s yard that they thought were in the way of the distribution line to Mamie’s house.

Mamie returned, shopping bags in hand, to find her mulberry tree had been cut down and cherry tree topped. Naturally, she sued. After all, her trees had not caused the power outage. Nevertheless, the electric company said the tree could have caused the power loss, but for the grace of God, and it relied on its easement to support its right to remove the one tree and permanently stunt the other out of concern that someday they might pose a hazard.

I would have bet a new chainsaw that the electric company was going to win this one, and I can only conclude that it may have been “homered” by the local judge. After all, Mamie was a neighbor, and the big, bad electric co-op was just some faceless out-of-towner. I know of no other way (than possibly an inability to read precedent and engage in reasoned thought) to justify a holding that while the utility had an easement, as well as the duty to maintain the reliability of its lines, it nonetheless could not merely be liable for overzealous trimming but even be socked with treble damages.

Treble damages are only appropriate in Missouri if the malefactor lacks probable cause to believe it owned the land the tree stood on. That test should have been modified to comport with the facts. Consolidated had an easement for the electric lines to cross Mamie’s property, and whether its decision to trim or remove the trees near its lines was correct or not, the decision should have been accorded deference.

Tomorrow, we’ll look at a subsequent Missouri electric company case, where we will see the utility get clobbered despite its desperate reliance on today’s holding.

Segraves v. Consolidated Elec. Coop., 891 S.W.2d 168 (Ct.App. Missouri, 1995). Mamie Segraves sued Consolidated Electric Co-op – her electricity provider – after one of its linemen cut down her mulberry tree and “topped off” her cherry tree.

One summer day, Mamie awoke to find that her electricity was off. She left to go shopping at 9 a.m., and when she returned two hours later, the lights were back on. However, the mulberry and cherry trees in her front yard had been cut down and one branch of her elm tree had been cut off.

Mamie testified these trees had never interfered with her electrical service before. In the past, Consolidated had asked to trim the trees around her electric lines, and she had always agreed, but it had not done so in the past six years. Mamie estimated the value of the mulberry tree was $2,000.00, and the value of the cherry tree was $500.00.

Mitch Hurt, a senior lineman with Consolidated, testified he was called to handle an electrical outage. He tracked the outage to a problem with one of the lines near Mamie’s home, but he could not pinpoint the problem. He had to drive down the road and look at the individual lines to try to find the problem. When he passed the line leading up to her house, he could not see the transformer pole. He stopped and went to inspect her service. He noticed her mulberry tree was very close to the transformer, and so he cut it down “to get it away from the transformer pole.” He also cut off the entire top of a nearby cherry tree because its branches had all grown towards the line. He felt these branches presented a safety hazard because children could easily climb them and reach the power lines. Mitch admitted it may not have been necessary to cut down either of these trees to reinstate electrical service.

Bob Pogue, Jr., Mitch’s boss, testified he told Mitch to trim as much of the trees as he thought was necessary. Bob Jahn, Consolidated’s general manager, testified Mamie knew about the location of the electric lines when she bought the place.

The trial court found in Mamie’s favor and assessed treble damages. Consolidated appealed.

Held: The Co-op had no right to cut the trees, and treble damages were proper.

The trial court did not find Consolidated to be a trespasser because it had the right to enter onto Mamie’s premises to maintain the electric lines. The right to remove limbs that have fallen onto the lines, however, “does not extend to cutting down trees or ‘topping’ trees that are not presently interfering with electrical service without prior consultation with the property owner.” While the mulberry and the cherry trees probably needed to be trimmed, the trial court said, there was no evidence that the mulberry “needed to be cut to a stump and that the cherry needed to be cut back to its major trunks, eliminating all of the fruit-bearing branches.”

Section 537.340 of the Revised Statutes of Missouri allowing for treble damages for the destruction of trees, does not require that a party wrongfully enter upon the property. In fact, the Court of Appeals said, Mamie can recover for wrongfully cutting down trees if she can establish either that Consolidated wrongfully entered her land and cut down the trees, or Consolidated entered her land with consent but exceeded the scope of the consent by cutting down the trees without permission.

While it is true, as Consolidated argued, that a license may be converted into an easement by estoppel if the license holder can establish it spends a great deal of time and money to secure enjoyment of its use, the scope of such an easement nevertheless will be determined by the meaning and intent that the parties give to it. The Court found no history between the parties of cutting down trees, and nothing from which such a right to cut down trees can be implied. Thus, even if Consolidated did acquire an easement by estoppel, it exceeded the scope of the easement by cutting down Mamie’s mulberry and cherry trees.

The utility also argued it was required by law to trim or remove the trees to ensure safety. Under the National Electrical Safety Code, Consolidated argued, it was required to trim or remove trees that may interfere with ungrounded supply conductors should be trimmed or removed, and where that was not practical, the conductor should be separated from the tree with proper materials to avoid damage by abrasion and grounding of the circuit through the tree. Consolidated maintained it had the authority to remove Mamie’s trees according to the Code because there was substantial evidence showing limbs of both trees had been burned by electricity, the mulberry tree was blocking the transformer pole, and the children living nearby could have easily climbed either tree and reached the live electric wires.

The Court rejected that, holding that Consolidated failed to show that the Code applied here because it failed to present evidence that the electrical wires leading to Mamie’s home were “ungrounded supply conductors.” Further, even if the Code applied, it gives electric companies two options, to trim or to remove the trees. The trial court found it was unnecessary to remove the trees in this case.

Not to be deterred, Consolidated also argued it was obligated to remove the trees because it had a non-delegable duty to maintain a safe clearance around its electrical lines. “Although Consolidated was required to exercise the highest degree of care in maintaining its electrical wires,” the Court said, “it was not required to remove the trees surrounding them, and it exceeded its authority by doing so.”

Section 537.340 of Missouri Revised Statutes holds that if any person shall cut down, injure, or destroy or carry away any tree placed or growing for use, shade, or ornament, or any timber, rails, or wood standing, being or growing on the land of any other person, the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed, or carried away, with costs.

The Court noted that a person can only fell trees wrongfully in one of two ways: he can enter the land wrongfully and fell the trees, or he can enter with the landowner’s consent and then exceed the scope of that consent by felling trees without permission. While the statute limits damages recoverable to single damages in certain cases, such as where it appears the defendant has probable cause to believe that the land on which the trespass is alleged to be committed, or that the thing so taken, carried away, injured, or destroyed, is his own. It was up to Consolidated to prove it had such probable cause.

The determination of whether the defendant proved probable cause existed rests with the trial judge. Here, the Court said, “the trial judge did not abuse his discretion in finding Consolidated did not have probable cause” to believe it had the right to cut down Mamie’s trees.

– Tom Root

Case of the Day – Monday, November 4, 2024

Posted on November 4, 2024 by TLRoot tagged.

ERR IN HASTE …

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

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

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

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

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

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

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

Act in haste, repent in leisure.

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

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

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

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

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

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

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

A party would have ‘probable cause’ under the statute if there was such cause as would induce a reasonable person to believe he had the right to remove trees from another’s land. Here, the evidence showed the Hales’ driveway had always been at its present location and that the Hales had maintained the area since 1966 as part of their yard, planting trees and shrubbery in that area as well. The tracts had been owned by the Hales and their predecessors since 1855, and fencing had marked the boundary until the Warrens wrongfully removed it. The Hales had harvested timber and cut firewood on the disputed land since they purchased the property from their family in 1966.

After the pink flags were placed by the Warrens’ surveyor, Mrs. Hale showed Mr. Warren a land abstract in which her grandfather had deeded off a portion of the disputed land for a school building. She showed him the abstract to “show them that obviously this had been in our possession since the 1880’s. This particular tract of land that’s in dispute.” She told the Warrens that she disputed their survey and that she would speak to a surveyor herself.

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

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

– Tom Root

Case of the Day – Tuesday, October 8, 2024

Posted on October 8, 2024 by TLRoot tagged.

I’M FROM MISSOURI

All right, I’m not from Missouri, but I have passed through the “Show Me State” a few times, and it’s a pretty nice place. But, given their reputation for being hard to convince, how would Missourians treat encroachments to their properties from trees not their own?

On one hand, there’s the state nickname. The most well-known and widespread story features Missouri’s United States Congressman, Willard Duncan Vandiver, who gave a speech in 1899 to some Philadelphians in which he said:

 ”I come from a state that raises corn and cotton and cockleburs and Democrats, and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You have got to show me.”

 His statement may be interpreted as a claim that Missourians are not naïve: If you want someone to believe you, you better have convincing evidence.

On the other hand, Missouri’s official motto is “Salus populi suprema lex esto,” which my sainted Latin teacher, the late Emily Bernges, would have told us translates to “the welfare of the people shall be the supreme law.”

All right, let’s run with that.

When Pete Hasapopoulos’s driveway started crumbling from neighbor Joyce Murphy’s Chinese elms, was his good the supreme law? Or, because Missourians are not naïve, should he have known that Joyce’s Chinese elms were going to grow? After all, a natural tree largely does what it wants to do. It may sit on one owner’s property, but above ground, the branches may spread over the neighbor’s property, and leaves or fruit or even deadfall may make a mess of the neighbor’s house, outbuildings or yard. Underground, the root systems may spread until they meet retaining walls, basements, septic systems and underground utilities.

This phenomenon is called “encroachment.”

Traditionally, the rule has been that any property owner has the right to trim back branches and root systems to the property line, at his or her own expense. This “self-help” doctrine is known as the Massachusetts Rule, so called because it was first articulated in a Massachusetts case known as Michalson v. Nutting. The dark side of the Massachusetts Rule was that no matter how destructive the neighbor’s tree was to your property, you had no right to sue your neighbor to force him or her to trim the tree or roots or to get any financial help from your neighbor for costs you incurred in doing it.

As American society became more urbanized, other courts took a more liberal view. When a neighbor’s banyan tree – a monstrosity of a tree – began overgrowing Mr. Whitesell’s property in Honolulu, he sued his neighbor to get a court order to force the neighbor to take care of the problem. Impressed by the sheer magnitude of the nuisance caused by the tree, the Hawaii court held that in Whitesell v. Houlton that while anyone had the right of self-help as described in the Massachusetts Rule, when a tree caused sensible harm to a neighbor, the owner of the offending tree could be ordered to trim the tree or roots at his or her own expense. This is called the Hawaii Rule.

The Hawaii Rule has gained traction in a number of states over the past 20 years. Tennessee, New Mexico, North Dakota, Arizona and New York follow it. Several other states follow the rule with variations.

But not in Missouri. What’s that? “Show me,” you demand? All right, you’re from Missouri. We will.

Hasapopoulos v. Murphy, 689 S.W.2d 118 (Court of Appeals of Missouri, Eastern District, 1985). Pete Hasapopoulos experienced problems from overhanging branches and cracking of his driveway caused by the roots of two Chinese elm trees owned by the next-door neighbor, Joyce Murphy. The trial court held that Joyce was not liable, and Pete appealed.

Held: Joyce prevailed.

The Court of Appeals, agreeing with other jurisdictions “which find no cause of action for damages to neighboring property caused by encroachment of the roots or branches of healthy trees,” found that Joyce was not liable. At the same time, it held that Pete retained a right of self-protection by cutting off the offending roots or branches at the property line.”

The Court observed that Missouri is “squarely among those jurisdictions which find no cause of action for damages to neighboring property caused by encroachment of the roots or branches of healthy trees, but leaves the plaintiff to his right of self-protection by cutting off the offending roots or branches at the property line.” And here, Pete had no proof the chinese elms were defective.

Application of the Massachusetts Rule, the Court, results in no injustice in this case. “Neither plaintiffs nor defendant committed a wrongful act. We are not inclined to find defendant acted unreasonably in permitting perfectly healthy trees to grow, and certainly defendant intended no harm thereby. The trees and their proximity to plaintiffs’ land existed when plaintiffs purchased their residence. They must be charged with awareness of the potential effects of growing trees. Recourse to self-help to protect from damage and to eliminate annoyance from overhanging branches was available to plaintiffs for 15 years before they had the branches cut off at the property line. Imposition of liability upon the tree owner under such circumstances would create the potential for continuous controversy between neighbors and could promote harassment and vexatious litigation, disruptive of neighborhood serenity. Possible exposure to liability would warrant the uprooting of trees and shrubbery in proximity to boundary lines resulting in non-aesthetic barrenness.”

– Tom Root

Case of the Day – Monday, April 8, 2024

Posted on April 8, 2024 by TLRoot tagged.

WORKERS COMP TRUMPS CREATIVITY

Whenever an accident results in permanent disability, it is understandable that the injured party and his family looks for as many deep pockets as they can find.

A million bucks sounds like a lot of money (unless you’re Congress), at least until you deduct a third for the lawyers, and spend the rest on a lifetime of care and support for a paraplegic. The facts of today’s case are rather prosaic: workers from a landscaping service were trimming a tree. Something may have slipped — or maybe it was just one of those things — but a tree limb fell and struck José Garza, who was on the ladder, knocking him off and causing spinal cord injury.

Missouri workers’ comp awarded José $1 million. But he nevertheless sued his employer and the other workers who present that day, alleging negligence. The Missouri trial court quickly threw out the claim against the employer — after all, this kind of litigation was just what workers’ comp was supposed to avoid. But the Court struggled with the claims against his jobsite supervisor and two fellow landscapers.

The move was creative. After all, José argued, the statute just protected the employer from liability, not anyone else who happened to be there (like co-workers, who – face it – can sometimes be dim bulbs). Why shouldn’t other employees, especially supervisors, be liable for negligence?

The Court of Appeals said, “No way, José.” In order to take the co-workers outside the protection of the statute, José would have to show some they had engaged in some sort of purposeful, affirmatively dangerous conduct, much more than the garden-variety negligence he alleged had occurred that day. To rule otherwise would completely undermine the policies underlying workers’ comp, and at the same time make it just about impossible to recruit and afford to keep employees (who would demand insurance coverage as a condition of employment).

Thus, the courts never reached the question of whether anyone had been negligent that day, because even if everything José alleged were true, it would just not be enough.

Garza v. Valley Crest Landscape Maintenance, Inc., 224 S.W.3d 61 (Ct.App.Mo. 2007). José Garza worked for Valley Crest Landscape Maintenance, Inc., as a landscaper. One day, he was told to report to a home to provide landscaping services. Brad Mason, a supervisor, directed which trees to trim. Garza’s crew leader, Rafael Moya, instructed Garza to climb a ladder and cut a specified limb. Moya placed the ladder against the tree, held the ladder, and rigged ropes to the limb to be cut. Javier González held the rope which Moya had rigged, while Garza climbed the ladder. While Garza was on the ladder, the limb knocked him to the ground, causing a permanent spinal cord injury.

Garza filed a worker’s compensation claim and collected over $1 million on the claim. He then filed a complaint in state court against Valley Crest, Mason, Moya and González, alleging negligence. The Defendants moved to dismiss on lack of subject matter jurisdiction, claiming that worker’s compensation was the sole remedy available to Garza.

The trial court agreed. Garza appealed.

Held: The dismissals were affirmed. Normally, workers compensation is intended to be a worker’s only remedy for injuries on the job, even where those injuries are the result of the negligence of the employer. Generally, co-employees enjoy the same protection under the exclusive remedy provision of the workers compensation statute as the employer, absent a showing of something more. That “something more” is a determined on a case-by-case basis and includes any affirmative act, taken while the supervisor is acting outside the scope of the employer’s duty to provide a reasonably safe environment, that breaches a personal duty of care the supervisor owes to a fellow employee.

Allegations by Garza against his co-workers that they failed to securely hold a ladder, failed to properly rig ropes to the branch being cut, failed to create a proper support with the rope, and failed to use reasonable care in holding the rope did not amount to the purposeful, affirmatively dangerous conduct that was required to move the co-workers outside the protection of the statute’s exclusive remedy provisions.

The Court held that mere allegations of negligence are “not the kind of purposeful, affirmatively dangerous conduct that Missouri courts have recognized as moving a fellow employee outside the protection of the Workers’ Compensation Law’s exclusive remedy provisions.

– Tom Root