Case of the Day – Thursday, October 24, 2024

Posted on October 24, 2024 by TLRoot tagged.

YOU’RE BREATHING MY AIR

I recently undertook a home construction project (imagined and ramrodded by my wife of 45 years, of course). I found myself trimming back some gargantuan arborvitae belonging to my neighbor, whom I will call “John” because that’s his name. The arborvitae were just puny little bushes when planted by Andy and Allwyn, next-door residents two neighboring homeowners ago, but in the 25 years since they were mere shrubs planted a foot or so on John’s side of the property line, the arborvitae have grown into towering, misshapen monsters.

On my side of the property line, they have swollen well into my airspace.

My airspace? Sounds a bit pretentious, doesn’t it? But that’s what we’re really talking about when we discuss overhanging branches and limbs. We all know about adverse possession – in which a sufficiently brazen squatter can gain title to your property if he or she waits you out – and even prescriptive easements, where the same trespasser can acquire rights to use your property.

What if my neighbor had stalked out his back door last weekend and claimed his branches had been overhanging my property (and messing up the roof of my shed) for more than 21 years, giving him a prescriptive easement to my airspace? So while it’s still my air, he gets to use it. And breathe it. And there is nothing I can do about it? Whither the Massachusetts Rule?

A prescriptive easement over your neighbor’s airspace is a novel argument, indeed. Fortunately for me, if my neighbor stalks out of his backdoor, he is much more likely to confront me with a basket of zucchini or a big butternut squash than he is with a wacky airspace easement argument. He is a pretty fine neighbor.

But not everyone is blessed with a neighbor as congenial as mine. That’s lucky for me in a sense because – as the Kansas Court of Appeals observed – when neighbors cannot get along, the courts protect property rights. And when courts do that, I have something to write about. Neighbor disputes that end up in court happen frequently enough to keep me going five days a week. And there are plenty of cases I never get to.

But how about that airspace argument? In today’s case, the owner of a tree that leaned over his neighbor’s yard claimed his 75-year-old pecan tree had acquired a prescriptive easement over his neighbor’s airspace. Take that, Massachusetts Rule!

Cuius est solum, eius est usque ad coelum et ad inferos (Latin for “whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell”), a principle of property law, holds that property holders have rights to not only to the plot of land itself, but also the air above and (in the broader formulation) the ground below. (Note to self: insert here a nod of thanks to my sainted Latin teacher of yore, Emily Bernges, or else I couldn’t translate that). The principle is often referred to in its abbreviated form as the ad coelum doctrine. So was the airspace claim clever lawyering, or just a lot of hot air? Let’s see whether the Court abrogated the ad coelum doctrine or instead brought the defendant back down to earth.

Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (Kansas Ct.App. 1985). Jim Pierce and Paul Casady are adjoining landowners with a 75-year-old pecan tree between them. The pecan trunk and root flare are on Paul’s land – but only a foot from the property line – and the tree leans toward Jim’s place. In fact, according to Jim, about three-quarters of the tree overhangs his land, rather ominously, given the substantial split in the tree’s fork (which also overhangs Jim’s property).

The length of the split on one limb is four feet and on the other about two feet. If the tree fell due to the split, it would fall on Jim’s house, garage, and any cars in the driveway. Trimming the tree at the property line is not practical – unless one does not mind killing the tree in the process – because of the tree’s location and the angle at which it leans.

Jim sued for a declaratory judgment that he had the right to cut the overhanging branches back to their property line or, in the alternative, to declare the tree a nuisance to be abated by removal. Paul claimed he had acquired a prescriptive easement to Jim’s airspace. The trial court disagreed, ruling that Paul had no prescriptive right to the airspace the tree occupied and that the tree constituted a nuisance that rightly caused Jim to fear for his safety. Paul was ordered to abate the nuisance by removing the tree either at its base or at the point where it crosses plaintiffs’ property line.

Paul appealed.

Held: An easement by prescription cannot be acquired by overhanging tree branches. Furthermore, a landowner has a right to trim branches that overhang the landowner’s property even though the trunk of the tree is on a neighbor’s land, although the landowner may not go on a neighbor’s land and remove any part of a tree without the neighbor’s permission.

Trees constitute a nuisance if overhanging branches do substantial harm or the overhanging branches create an imminent danger. If a tree is a nuisance, a landowner may compel a neighbor to abate the nuisance or, if an injury occurs, look to the neighbor to pay any damages allowable by law.

The court of appeals rejected Paul’s argument that he had acquired an easement through Jim’s airspace, because such cannot be gotten by prescription, that is, by simply occupying the airspace without permission for a long enough period of time.

Jim argued that the tree could not be a nuisance. That did not affect Paul’s right to trim branches that were overhanging his property even though the trunk of the tree was on Paul’s land. The landowner may not, the Court said, go on the neighbor’s land and remove the tree or any part thereof absent his neighbor’s permission.

If the tree is a nuisance, the landowner may compel the neighbor to abate the nuisance or, if an injury occurs, look to the neighbor to pay any damages allowable by law. In this case, the Court observed, it appeared that if the tree is trimmed at the property line it would be killed. The trial court recognized this and gave Paul the option to trim back to the property line or simply remove the whole tree.

The Court held that whether the tree constituted a nuisance was a question of fact. Generally, a tree is a nuisance when it constantly drops branches and requires constant maintenance. Or, a tree is a nuisance when there is a statute so defining it. Finally, a tree becomes a nuisance when it does substantial harm or creates an immediate danger of causing harm, the Court held, relying on Whitesell v. Houlton, the case that defined the Hawaii Rule.

Kansas recognizes that trees constitute a nuisance if the overhanging branches do substantial harm or the overhanging branches create an imminent danger.

Here, the Court said, the tree was a danger to Jim, reasonably causing him to fear for his safety. The evidence supported the reasonableness of his apprehension: the split in the fork of the tree located above his property, the squeaking sound when the wind blows, the angle at which the tree leans toward Jim’s property, and the testimony of the experts.

Paul argued that the tree could be made safe by cables and bolts. The Court was unimpressed, holding that even that work would have to be done in Jim’s airspace. Paul had no right to go on Jim’s property to do that work for the same reasons Jim had no right to go on Paul’s property to trim or cut down the tree.

Paul was thus ordered to cut the tree off at the property line or remove it altogether.

The Court admitted that “the result reached here will be distasteful to all who treasure trees. The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each property owner’s rights insofar as that is possible. Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.”

– 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

Case of the Day – Thursday, September 19, 2024

Posted on September 19, 2024 by TLRoot tagged.

RIGHT THING, WRONG REASON

The right things usually get done for the wrong reasons. The Internet, which knows all (or soon will) attributes the aphorism to James Carville, but I remember the exact line being penned by Washington columnist Drew Pearson in a political potboiler of his, The President, which I read as a lad in the summer of 1971.

Sorry, James, When it comes to credit for this particular witticism, you didn’t build that.

Today’s case is a reminder to all the states that claim the Massachusetts Rule, the Hawaii Rule, the Virginia Rule and so on that there is nothing new under the sun. Well before those rules came into being, the Washington State Supreme Court grappled with the encroachment issue and reluctantly decided an early version of the Hawaii Rule: where there is encroachment that causes “sensible harm,” the adjoining landowner may either trim back the offending growth or sue to force the tree’s owner to do it.

Ironically, settling the law (the right thing to do) probably got done for the wrong reason (bad blood between neighbors). We have seen how the Massachusetts Rule began in Michigan. Now, it seems the Hawaii Rule may have started in Washington. Sorry, Hawaii, you didn’t build that.

Truly, there’s nothing new under the sun.

Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (Supreme Ct. Wash. 1921). A.L. Ryland had owned his place for many years when new neighbors, the Gostinas, moved in next door. A.L. had a Lombardy poplar tree growing about two feet from the Gostina property and a fir tree in the rear of the property, also about two feet from the division fence. On top of that, A.L. maintained a creeping vine, growing in a rustic box on top of a large stump, a few feet from the division fence, and some raspberry bushes and a rosebush growing near the property line.

About a year after they moved in, the Gostinas had their lawyer write to A.L. to tell him the branches of his fir tree were overhanging the Gostina property and dropping needles and that A.L.’s ivy was running under the fence and onto the Gostinas’ lawn. The lawyer demanded that A.L. cut off the fir tree branches at the point where they crossed the boundary line, remove the ivy from the Gostinas’ property, and keep the tree and ivy from encroaching ever again.

A.L. was unimpressed, so the Gostinas brought a suit for abatement of a nuisance. (And we thought frivolous litigation was a recent phenomenon!) A.L. argued that the lawsuit was merely for spite and vexation, and that the Gostinas knew the tree and ivy were there when they moved in. Only after a neighborly disagreement, A.L. claimed, did the Gostinas sue.

The trial court did not care about such nonsense, holding that where branches of trees overlap adjoining property, the owner of the adjoining property has an absolute legal right to have the overhanging branches removed by a suit of this character.

The Gostinas appealed.

Held: A.L.’s tree and ivy were a nuisance, and the Gostinas’ claimed damages, although ridiculously minor, were enough to permit them to maintain a nuisance action against A.L. Ryland.

The Court agreed that under Washington law, trees and plants growing into the yard of another constituted a nuisance, “to the extent to which the branches overhang the adjoining land. To that extent they are technical nuisances, and the person over whose land they extend may cut them off, or have his action for damages, if any have been sustained therefrom, and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

From ancient times, the Court said, it has been a principle of law that the landowner has the exclusive right to the space above the surface of his or her property: “To whomsoever the soil belongs, he also owns to the sky and to the depths. The owner of a piece of land owns everything above it and below it to an indefinite extent.” On the same principle, the Court held that the branches of trees extending over adjoining land constitute a nuisance, at least in the sense that the owner of the land encroached upon may himself cut off the offending growth.

A property owner may not “maintain an action against another for the intrusion of roots or branches of a tree which is not poisonous or noxious in its nature. His remedy in such cases is to clip or lop off the branches or cut the roots at the line.” What it came down to, the Court held, was that “the powerful aid of a court of equity by injunction can be successfully invoked only in a strong and mischievous case of pressing necessity” and there must be “satisfactory proof of real substantial damage.”

Here, the Court said, what the Gostinas complained of was “so insignificant that respondents did not even claim them or prove any amount in damages–but simply proved that the leaves falling from the overhanging branches of the poplar tree caused them some additional work in caring for their lawn; and that the needles from the overhanging branches of the fir tree caused them some additional work in keeping their premises neat and clean, and fell upon their roof and caused some stoppage of gutters; and that sometimes, when the wind blew in the right directions, the needles blew into the house and annoyed the occupants. We cannot avoid holding, therefore, that these are actual, sensible damages, and not merely nominal, and, although insignificant, the insignificance of the injury goes to the extent of recovery, and not to the right of action.”

Since the Gostinas had the statutory right to bring an action for abatement of a nuisance and had shown some “actual and sensible damages, although insignificant,” they are entitled to go forward with the suit. “The remainder of the trees will doubtless shed their leaves and needles upon the respondents’ premises,” the Court prophesied, “but this they must endure positively without remedy.”

The Court was not really that fooled: this was a spite suit, but that alone was not disqualifying. While the Gostinas’ action against A.L. “has some appearance of being merely a vexatious suit,” the Court said, A.L. did “admit that the tree boughs do overhang respondent’s lot to some extent. There is sufficient foundation in fact to sustain a case…”

– Tom Root

Case of the Day – Wednesday, September 18, 2024

Posted on September 18, 2024 by TLRoot tagged.

BLINDED BY THE LIGHT

None of us really knew what the lyrics were to that great piece of mid-’70s music by Manfred Mann’s Earth Band (written and first recorded by Bruce Springsteen). You know, Springsteen wrote the second line as “cut up like a deuce.” Not until Manfred Mann rewrote the line to be “revved up like a deuce,” did the mondegreen of the line famously become a reference to a feminine hygiene product.

But we digress. We’re really talking light and soybeans here. Recently, the vigilant treeandneighborlawblog editors read a book review for a new tome on light pollution called “The End of Night.” It reminded us how soybeans like the dark, and about the plight of Farmer Smalley.

Farmer Smalley raises soybeans in Wyandot County, Ohio. When the Ohio Department of Transportation installed high mast lighting at the US 30/US 23 interchange, Mr. Smalley’s soybeans would not flower and flourish under the bright nighttime lights. This is apparently not an unknown effect. He sued the DOT in the Ohio Court of Claims, seeking damages in a self-written complaint.

The Clerk heard the matter administratively and concluded that the lights were not a nuisance, apparently because of the benefit such lights had for the motoring public. However, the loss of two acres of beans did constitute a constitutional “taking of property” for which he should be compensated. The damages were pretty meager for 2007: $512 plus his $25 filing fee.

Still, the Clerk did not dismiss out of hand the notion that light pollution could constitute a nuisance in some circumstances, those where the social benefit of the light was insignificant next to the interference caused the neighbor.

A few months later, the full Court of Claims reversed the judgment. It held that the Ohio constitution did not permit compensation for consequential damages to property, only for the actual taking of property. Because of that. Farmer Smalley’s loss was not compensable.

Even so, both the Court and the Clerk apparently accepted the notion that the light pollution damaged Smalley’s property. It was just that the damage, however real, could not be compensated.

Smalley v. Ohio Dept. of Transportation, 142 Ohio Misc.2d 27, 869 N.E.2d 777, 2007 -Ohio- 1932 (Ohio Ct.Cl., Mar. 15, 2007). Farmer Smalley has a soybean field next to a four-lane highway intersection. The Ohio Department of Transportation constructed high-mast lighting at the intersection in 2005, and since then, Farmer Smalley’s soybeans failed to mature during the growing season. Smalley was forced to mow down two acres of failed crop, a failure he attributes to the lighting. He lost about 120 bushels of beans, which — at $6.00 a bushel — were worth $720.

Farmer Smalley sued the DOT in the Ohio Court of Claims. DOT admitted it had installed the mast lighting, which it said was intended to “safely illuminate the expressway.” DOT argued the installed lights “are the safest and most efficient lighting source given the traffic flow and lighting required at interchanges.” It admitted that light did “occasionally bleed onto adjacent property [and] there is little doubt that defendant’s light encroaches upon plaintiff’s property.” It argued, however, that it could not be held liable for any damage to the plaintiff’s bean crop caused by its light encroachment. It also argued that Farmer Smalley’s cost of raising the beans was $256.47 an acre, reducing his net loss to $512.94.

Held: The Clerk of the Court held that the light pollution was not a nuisance. However, he found that the actual harm suffered by the farmer was different in kind from harm suffered by the general public, as required to establish a taking under the “Takings Clause” of the Ohio Constitution.

It appears that farmer Smalley filed his complaint himself, because DOT flailed about in its defense as if it wasn’t sure where the farmer was going. It argued at length that its lighting was not a nuisance, because Smalley had offered no proof that DOT was negligent in erecting the lighting. It asked the Court to weigh the benefit that the high mast lighting gave to thousands of motorists against the harm the lights caused the plaintiff in destroying two acres of his bean crop.

The Clerk sagely noted that DOT “… essentially proposed that plaintiff should have to bear a financial burden for his crop loss in a situation where he was legally using his land for a specific valuable purpose and the harm caused was attributable to the acts of DOT.”

He defined an absolute nuisance as a distinct civil wrong arising or resulting from the invasion of a legally protected interest, one consisting of unreasonable interference with the use and enjoyment of the property of another. Such a nuisance was the doing of anything without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his or her legal rights, or the collecting and keeping on one’s premises of anything inherently dangerous or likely to do mischief, if it escapes, which, escaping, injures another in the enjoyment of his legal rights. A qualified nuisance, on the other hand, was distinguished from absolute nuisance as being dependent upon negligence 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.

Considering the utility of the high mast lighting to the motoring public, the Clerk correctly concluded that the lighting was neither an absolute nor qualified nuisance. But that didn’t mean that Mr. Smalley was out of luck. Under the “Takings Clause,” any taking — whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises — entitles the owner to compensation. In order to establish a taking, a landowner must demonstrate a substantial or unreasonable interference with a property right, and such interference may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises. Something more than the loss of market value or loss of comfortable enjoyment of the property is needed, to constitute a taking under the “Takings Clause:” governmental activity must physically displace a person from space in which he was entitled to exercise dominion consistent with the rights of ownership. To constitute a taking, an actual harm suffered by the plaintiff must differ in kind rather than in degree from the general public.

Later, the full court reversed on different grounds, holding that the Ohio Constitution did not permit compensation for less than a full loss of land.

Nevertheless, the notion that light can constitute a nuisance and that a property owner suffering from light shining onto his or her land from another location appears to be accepted.

– Thomas L. Root

Case of the Day – Monday, September 9, 2024

Posted on September 9, 2024 by TLRoot tagged.

FOOTBALL IS (NOT SO) BACK!

It’s supposed to be the most wonderful time of the year… high school games every Friday night, our beloved Ohio State Buckeyes (and how those Wolverines?) on Saturday, and the Super Bowl-bound Cleveland Browns on Sundays.

In honor of the gridiron season, we resort to cheap metaphors today while considering an unusual and (to us) troubling tree law case. Change the fact pattern by about three feet, and the outcome would have been the opposite of what the court ruled. That is, if Jennifer’s trees had been growing a yard or so south of where they were rooted, they would have been boundary trees. Neighbors Tony and Xiaoye couldn’t have touched them. But because the trunks and root flares of the conifers were all on Jennifer’s land, Tony got away with whacking away so much root support that Jennifer had to take the three trees down.

“Can they do that?” you ask, because you seem to remember a California case that said otherwise. Good recall, tree law fan. Unfortunately, the answer is pretty much, “Yeah, in Washington, they can do that.” But somehow it seems that the answer ought to be otherwise, that your right to Massachusetts Rule-style hacking at your neighbor’s tree should be informed by some kind of a duty not to kill the tree in the process.

Trigger warning: the outcome of this case is tragic for the trees involved, and those sensitive readers among us who cower at the sound of chainsaws might be needlessly upset.

Mustoe v. Ma, 371 P.3d 544 (Wash.App. 2016). Jennifer Mustoe had two large Douglas fir trees located entirely on her property, about three feet from the property line. Her neighbors were Anthony Jordan and Xiaoye Ma. In October 2013, Tony dug an 18-to-20-inch deep ditch on his property along the border of Jennifer’s lot. In the process, he exposed and removed the trees’ roots, leaving them to extend only 3-4 feet from the trunks, a loss of nearly half of the trees’ roots, all from the south side of the trees. The trees were thus exposed to southerly winds with no support, making the damaged trees likely to fall on Jennifer’s home.

The landscape value of the trees was estimated to be $16,418; the cost of their removal was estimated to be $3,913.

Jennifer filed suit against Xiaoye and Tony, asserting that Tony had negligently, recklessly, and intentionally excavated and damaged her trees. The trial court dismissed Jennifer’s claims, holding that Tony was entitled to remove those portions of roots that had encroached onto his and Xiaoye’s property and that in so doing, he did not owe Jennifer a duty of due care to prevent damage to the trees.

Jennifer appealed.

Held: The Court rejected Jennifer’s claims.

Jennifer started out a field goal behind, because she was compelled to acknowledge that Washington law lets an adjoining landowner engage in self-help and trim the branches and roots of a neighbor’s tree that encroach onto his or her property. Yet, Jennifer argued, the right to self-help does not extend to removing the tree itself, and the State’s common “does not immunize a landowner against liability for damage to the trimmed trees” and argues that the Court should hold that in exercising self-help, a landowner owes a duty of care to prevent damage to the trees themselves.

Jennifer thought she’d put one through the uprights and tie the score, but the Court played Lucy to her Charlie Brown. The law was clear, the Court said, that an adjoining landowner may trim only those branches or roots that encroach on his own property, but it did not hold that a landowner owes a duty to act in good faith or reasonably to prevent damage to the trees.

Jennifer also claimed that under state law, all members of society owe a broader legal duty to their fellow citizens and must not use their own property in such a way as to cause injury to others. She cited an exception to the common enemy doctrine in water trespass cases as an example of this duty. The common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to their neighbors, but a “due care” exception requires that a landowner change surface water flow in good faith and in such a way as not to cause unnecessary damage.

The Court rejected Jenn’s comparison, observing that no court had ever extended the “due care” exception beyond surface water. The Court said, “Surface water is a common enemy precisely because it is a force of nature which may indiscriminately affect any landowner. As such, each landowner may defend against it so long as he or she does not do so in a manner that unnecessarily redirects the wrath of the common enemy upon a neighbor. Unlike surface water, tree roots and branches are not a force of nature that indiscriminately wreak havoc among adjoining landowners. Instead, they are an encroachment upon the land of one’s neighbor.

Jennifer, facing second and long, argued that Booska v. Patel, a California case, found that adjoining landowners had a duty to act reasonably in trimming encroachments where neighbors’ trees were concerned. Citing a decision from the other end of the country, Jennifer argued that in Fliegman v. Rubin, a New York court – relying on Booksa – reversed the trial court’s summary dismissal of a plaintiff’s claims for damages to his trees allegedly resulting from the defendant’s severance of roots that had encroached on to his property. The Fliegman court held there was an issue as to whether severance of the trees’ roots damaged the plaintiff’s trees because “the right to self-help is limited, in that an adjoining landowner’s right to engage in self-help ‘does not extend to the destruction or injury to the main support system of the tree… .'”

Jennifer’s court was unswayed, holding that Booska and Fliegman appeared to be “outliers.” In Alvarez v. Katz, the Vermont Supreme Court rejected the holdings in Booska and Fliegman, finding that the “right to cut encroaching trees where they enter the land of another, without regard to the impact on the encroaching tree by such cutting, is well established under Vermont law.”

Here, the Court was likewise persuaded that the law in Washington was consistent with the general rule as applied in Vermont.

Pinned deep in her own territory on third down, Jennifer aired it out. She contended that her nuisance action against Tony and Xiaoye should go forward because Tony’s excavation and removal of tree roots was unreasonable in relation to the harm it caused to her trees. A nuisance is an unreasonable interference with another’s use and enjoyment of property. RCW 7.48.010 defines an actionable nuisance as “whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property.

The fundamental question in a nuisance issue is whether the use to which land is put can be considered reasonable in relation to all the facts and circumstances. Tony argued that Jennifer had no action for nuisance because she had no legally recognized right. The Court agreed that Jennifer had not established that she had any legal cause for complaint or interference with the lawful removal of the roots on Ma’s property.

A nuisance claim will fail if it is nothing more than a negligence claim “in the garb of nuisance” unless the negligence claim has merit. Where the alleged nuisance is a result of the alleged negligent conduct, the rules of negligence are applied.

Here, Jennifer’s nuisance claim arose from Tony’s actions that damaged the trees; the nuisance is the result of his alleged breach of duty. But there was no breach of duty: because Jennifer’s negligence claim failed, her nuisance claim did, too.

On fourth down and a mile, with only a few seconds left, Jennifer threw the Hail Mary. She complained that she was entitled to damages under the timber trespass statute, RCW 64.12.030. The statute reads, “Whenever any person shall cut down, girdle, or otherwise injure, or carry off any tree… timber, or shrub on the land of another person, … without lawful authority, in an action by the person, city, or town, against the person committing the trespasses or any of them, any judgment for the plaintiff shall be for treble the amount of damages claimed or assessed.”

Alas, the ball fell short. By its own terms, the Court said, the timber trespass statute applied only to persons acting without lawful authority. Because Tony did not act unlawfully when he removed roots that encroached onto his property, the claim fails.

– Tom Root

Case of the Day – Wednesday, August 21, 2024

Posted on August 21, 2024 by TLRoot tagged.

THIS IS WHY YOU SHOULD COME IN OUT OF THE RAIN

Sad to say, stupidity abounds.

Most of us know – thanks to our mothers – that we should come in out of the rain. One dark and stormy night, Katherine Grigg forgot that life lesson.

Kate was driving on Mount Pleasant Road, in rolling farmland at the foot of the California Sierra Madres. Normally an enjoyable drive, Mount Pleasant Road had become anything but pleasant in the driving rain. She encountered a large tree that had fallen from Dennis Taylor’s yard across the road. Naturally, she got out of her car. Who wouldn’t? Standing in the wind and sheets of rain, she and another weather-challenged motorist, David Eggert, determined the tree was too big for them to move.

As their two-party Mensa meeting continued, a second tree fell, hitting both Grigg and Eggert. This is where you perform a face-slap and say, “D’oh!” You might think these two were Darwin Award contenders, but this was California. So they became plaintiffs instead.

At least Grigg did. The court reports that when she asked Eggert whether they should sue Taylor. Eggert replied, “Why? … this was what I call an act of God.”

Maybe the tree knocked a little sense into him. It had no salubrious effect on Kate Grigg, however. She sued, claiming that Dennis Taylor should have removed the danger trees, and his “conscious choice… to neglect his duties which are prescribed to protect the public, is despicable conduct which is the basis for punitive damages.”

It turned out that Eggert was right. It was an act of God. What’s more, despite the fact that Dennis Taylor had reason to know that this act of God was likely to happen, he nevertheless was found to have done enough – not much, but enough – to discharge his duty to the public. Dennis was found not to be liable.

D’oh, Kate.

Grigg v. Taylor, Case No. C050070 (Superior Ct. Cal. June 28, 2006) 2006 Cal. App. Unpub. LEXIS 5661, 2006 WL 1756843. Plaintiff Katherine Grigg encountered a large tree blocking her way one stormy night on Mount Pleasant Road in Lincoln. The tree had fallen from Dennis Taylor’s property, which was adjacent to the road. Another motorist traveling on the road, David Eggert, parked behind Grigg’s car. Grigg and Eggert got out of their vehicles and determined the tree was too big for them to move. As Eggert was thinking of an alternate route they could take, a second tree fell, striking both Grigg and Eggert.

The tree that had fallen on Grigg and Eggert was one-half of a “V” shaped double-trunk tree. The tree’s other trunk had fallen a few weeks before the accident. When the first trunk fell, Taylor inspected the tree and believed it was not going to fall because several other double-trunk trees on his property were still standing after one trunk had fallen. He decided not to take care of the remaining trunk right away “[b]ecause there w[ere] a series of storms” and he “didn’t feel like getting wet.” Nevertheless, once a week, Dennis checked his property for danger trees. Placer County, California, had no law, ordinance, or regulation requiring landowners to prune their trees.

Grigg sued Taylor for negligence and for maintaining a nuisance by failing to maintain the trees on his property. She wanted compensatory and punitive damages.

The court granted Taylor’s motion for nonsuit regarding punitive damages, and the jury found for Taylor on the remaining claims. Grigg appealed.

Held: Dennis Taylor was not liable to Kate. On appeal, she complained there was insufficient evidence to support the jury’s verdict that Taylor was not negligent and had not created a nuisance. The Court of Appeals disagreed, citing evidence Taylor had inspected his trees weekly, that he had several double-trunked trees on his property that had lost one trunk but remained safe, and that his neighbor — who had lost a tree in the storm himself — hadn’t seen any hazardous-looking trees on Taylor’s property.

Grigg’s complaint that Taylor had created a nuisance failed on the same evidence. Without Taylor having any liability to Grigg, the complaint that he should have been ordered to pay punitive damages was moot. The Court said, “The jury found Taylor was not negligent in maintaining his property and did not create a nuisance. There was substantial evidence to support those verdicts. Given the jury’s verdicts, any error in granting the nonsuit on Grigg’s theory that Taylor’s conduct was ‘despicable’ was harmless.”

– Tom Root

Case of the Day – Tuesday, July 30, 2024

Posted on July 30, 2024 by TLRoot tagged.

TREE GONNA DO WHAT A TREE GONNA DO

When I was a kid, we had a cottonwood in the far backyard that my father christened “The Mess Tree.” It was not a sobriquet of affection.

The Mess Tree seemed to shed leaves and twigs all 12 months of the year. It was stubbornly marcescent, slow rolling its autumnal leaf drop from late August through February. Its twig production was prodigious: we all knew never to walk barefooted anywhere near the drip line. And when it released its seeds in June, the backyard looked as though it had been dusted with an early November snow.

Until I became responsible for my own yard, I could not understand my father’s disgust at The Mess Tree. But I am now responsible for a pair of cottonwoods in my own side yard, and I have empathy – a little late in coming, I admit – for Dad’s frustration.

For that matter, like many people, I understand Helena and Joe Ponte’s vexation at Silverio DaSilva’s weeping willow. As unhappy as Dad was at his cottonwood, it was his cottonwood: he could remedy the problem with a single call to our neighborhood tree service. But when Silverio’s tree rained its ration of sap, twigs and other debris onto the Pontes’ lawn and driveway, all they could do is demand that Silverio cut it down.

He would not.

Finally, when Helena slipped on some wet leaves and twigs, breaking her ankle, the Pontes brought in their lawyer.

Satisfaction did not follow. Silverio’s weeping willow was a fine, healthy tree. It was just doing what trees do. And that, the Court said, was fine. A tree gonna do what a tree gonna do, and the law won’t get in its way.

Ponte v. DaSilva, 1982 Mass.App.Div. 6 (1982). Helena Ponte lived next to Silverio DaSilva and his magnificent weeping willow tree. The tree, standing about four feet from Silverio’s boundary with Helena, overhung the picket fence and Helena’s driveway.

Helena began noticing all of the leaves, sap and branches that fell from the tree onto her driveway about two years before the accident. She complained to Silverio, demanding he cut down the tree. Leaves and debris were clogging Helena’s gutters and swimming pool filter. Sap and tree debris (leaves and twigs, no doubt, inasmuch as willows don’t have much fruit) fell on Helena’s Studebaker. And of course, Helena darkly foretold, there was the ever-present slip-and-fall risk.

Helena’s attorney then wrote to Silverio, complaining that Helen’s husband had already fallen on the leaves and debris. The letter portended similar incidents unless the tree was removed.

Sure enough, about 10 days later, Helena fell due to the leaves and sap, breaking her ankle. She sued.

The trial court found that the tree was not diseased and that the leaves, sap and debris which fell were due to the natural characteristics of weeping willow trees. They do, after all, “weep.” Nevertheless, the trial court awarded Helena $15,000 and her husband another $3,000 for loss of consortium (which we will not endeavor to describe here).

Silverio appealed.

Held: Helena and Joseph got nothing, and the tree kept on being a tree.

The crucial issue, the Court of Appeals said, was whether under the circumstances Silverio owed a legal duty to Helena and Joseph to remove the tree. If so, then he would be liable for the damages caused by a breach of that duty.

The Pontes claimed essentially that the weeping willow was a nuisance because it bothered them. But the test for nuisance, the Court held, was not whether the conduct or activity would be objectionable to a hypersensitive person, but rather whether a normal person in the community would find the conduct at issue clearly offensive and annoying.

The Court observed that the tree had been there for some time, and it was obviously quite alive. No evidence in the record showed the tree to be a hazard (beyond Helena’s ankle, of course) to life or property. Trees “whose roots or branches extend beyond the boundary line,” the Court said, “have been held not to constitute a nuisance in themselves.” In fact, the Court noted, “the Restatement of Torts suggests that where the tree is a part of the natural condition of the land, there is no liability for private nuisance.”

The Court characterized Michalson v. Nutting (the case that was the origin of the Massachusetts Rule) as addressing the notion, albeit obliquely, of a tree as a nuisance. There, the Court said, “the Supreme Judicial Court held that the natural and reasonable extension of the roots and boughs of trees into adjoining property was damnum absque injuria.” The rationale given for this approach “is that to allow recovery in such situations would inundate the courts with frivolous and vexatious suits.”

But Helena argued that the underpinnings of the Michalson case had eroded to the point that a new theory of liability would and should make the defendant legally responsible in a case such as this. The Court dismissed her argument for a change in the law, noting that the line of cases she relied on to make her point all involved trees that were diseased, decayed or dead. Silverio’s weeping willow, on the other hand, was very healthy.

The right of a landowner to use and enjoy it for lawful purposes, the Court said, must be weighed against the likelihood of substantial harm to a neighboring landowner in cases of private nuisance. A dead, diseased or decayed tree has little or no utility to its owner and poses a foreseeable threat to adjoining landowners from falling limbs. A live tree, on the other hand, provides shade and will generally enhance the landowners’ property. The fact that leaves or other debris will naturally fall from live and healthy trees that are harmless in and of themselves and that such falling leaves and twigs might cause some inconvenience or annoyance to neighbors does not render the tree’s owner liable for damages.

– Tom Root