Pennsylvania

Case of the Day – Friday, December 30, 2022

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SELF-HELP WEEK

Quite unintentionally, the execrable 2022 (slogan “At Least It’s Not 2020”) – as it slinks out the door in well-deserved shame – is ending with an orgy of self-reliance versus resort to the courts. On Wednesday, we reviewed a Florida case, Balzer v. Maxwell, in which the court held that the fact that an aggrieved landowner has no remedy but self-help means that when he or she exercises that right, the tree owner has no claim for what might become of the tree. Yesterday, we read a Massachusetts court holding that, on the other hand, when a city takes over an abandoned property for taxes, it assumes liability for hazard trees on the property.

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

Keiper v. Yenser, 1967 Pa. Dist. & Cnty. Dec. LEXIS 171 (Common Pleas Ct, Carbon County, Pa., January 23, 1967). Bill and Becky Keiper complained that for more than five years, the roots of Yensers’ willow tree have been extending into their land and penetrating their sewer line, which has cost the Keipershttps://treeandneighborlawblog.com/?p=13281 $166.07. They seek reimbursement for the money they have spent and a court order for the permanent abatement of the root encroachment (that is, an order that the Yensers remove the roots at their expense).

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

Held: The Keipers claim had to be dismissed.

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

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

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

– Tom Root

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Case of the Day – Thursday, September 22, 2022

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A GAME OF INCHES

Baseball, they say, is a game of inches. So are boundary trees, called “line trees” in the State of Pennsylvania (which, by the way, also calls itself a “Commonwealth” instead of a “State”).

Life imitates art, I guess. Last weekend, I hauled away our 25-year old shed. I am replacing it with a newer, larger shed – complete with electricity, windows, and (if I have anything to do with it) a beer refrigerator. Replacing it will come with a set of problems, specifically a line of arborvitae trees, standing behind the shed along the property line.

The arborvitae were tiny little shrubs when our next-door neighbor (two owners ago) planted them in the late 1990s. Now, they’re monsters.

I need to trim back a few of the arborvitae before the concrete pad for the new shed gets poured. Having read some of what I have written about boundary trees over the past few weeks, I figured I had better be sure I was dealing with some good old-fashioned Massachusetts Rule trimming of branches overhanging my property, and not with some oversize arborvitae that had grown across the property line to become boundary trees.

I found the iron pin on one end of the property line and the post on the other, and ran a line through the trees. Sure enough, two of them have grown across the property line. Lucky for me, the ones I need to trim are still solidly anchored completely on my neighbor’s land. Those I can trim back, exercising both my Massachusetts Rule rights and my ratcheting loppers.

It seems strange that a matter of inches differentiates the trees I can trim with abandon and the trees that I cannot touch without my neighbor’s permission. (I have a great neighbor, by the way, so it is probably not a problem).  Nevertheless, the perverseness of the interplay between boundary trees and encroaching trees that stand completely on land other than one’s own is puzzling and irritating to me in an academic and legal way.

My situation is similar to the one in today’s case, which pits a car wash against a restaurant over a row of pine trees that may or may not be on the boundary. Because of the vagaries of how the pine trees at the root of the lawsuit grew along the property line, no one really won: the restauranteur wanted the trees gone, and the car wash owner wanted the trees to remain.

In the end, some of the trees stayed, some did not. And it was all a game of inches…

Wolfinger v. Moates, 7 Pa. D. & C.4th 220 (Pa.Com.Pl. 1990). A line of pine trees separated the Wolfinger Car Wash property from the Moats Restaurant property. Bill Moats received complaints from his patrons about the pine trees, that encroached on his parking lot, scratched diners’ cars and dropped pine cones everywhere (even damaging his lawnmower).

Bill decided to cut down the trees. He told his neighbor, “Suds” Wolfinger, what he planned. Suds was shocked. He liked the trees, partly because they served as a barrier between his business and the restaurant. Plus, his customers preferred parking under them, using the shade while they wiped down their cars. Suds asked Bill not to cut them down.

Bill cut them down anyway, taking out four of the 13 trees on his first day wielding his chainsaw. Suds raced to his lawyer, and together they raced to the courthouse for a temporary injunction. After Bill was forced to stop, Suds tried to make the injunction permanent.

The court found that the two tracts of real estate shared a common boundary line, and 13 trees stood on or near the line. A survey showed that the first five trees, including the four Bill had cut down, were all on his property. Lucky Bill. The next three, however, straddled the boundary. The  Court referred to them as “line trees.” Tree No. 9 was on Bill’s land, but some bark on the flare touched the boundary line. The last four trees were all on Bill’s land.

Held: Bill was not allowed to cut the three trees that straddled the boundary.

Pennsylvania law made it unlawful “for any owner or owners of any undivided interest in timber land within this Commonwealth to cut or to remove, or to cause to be cut or removed, from the said land, any timber trees, without first obtaining the written consent of all co-tenants in said premises.”

The Court held that the statute dictated its holding that the owners of adjacent tracts of real estate own all trees growing on their common boundary line as tenants in common. Tenants in common are prohibited from unilaterally cutting down or removing such commonly owned line trees.

Applying the general rules of law governing tenancy in common, the Court held, “we conclude neither adjoining real estate owner may remove a tree growing on a common boundary line. Consequently, in the case at bar, notwithstanding the fact that only inches of the trunks of trees 6, 7 and 8 are on the boundary line between the properties of the plaintiffs and defendants, those trees are jointly owned by plaintiffs and defendants. Therefore, defendants may not remove them.”

Suds was not satisfied. He argued that Tree No. 9 was commonly owned as well because the bark of the tree’s trunk touched the boundary line. Citing the Illinois case Ridge v. Blaha, the Court held that the critical question was “whether any portion of the trunk of the elm tree grows on plaintiff’s property… The law… is determined by the exact location of the trunk of the tree at the point it emerges from the ground.” The fact that the bark of Tree No. 9 touched the line, the Court said, was insufficient to create a tenancy in common.

Trees 1 through 5 and 9 through 13, therefore, were Bill’s sole property. He could cut them down as he wished. But the injunction would become permanent on Trees No. 6 through 8, leaving them to provide both shade and pine cones.

– Tom Root

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Case of the Day – Friday, May 13, 2022

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A PRESCRIPTION FOR TROUBLE

We all know about adverse possession, that peculiar legal doctrine that holds in essence that if you’re brazen enough to trespass on someone else’s land continuously for a period prescribed by statute, the property becomes yours. In most places, such as Pennsylvania, the period is 21 years long. So for 20 years, 11 months and 31 days, you’re a squatter. The next day, you’re landed gentry.

It seemed to me like judicially-sanctioned theft when I learned about adverse possession in law school (so long ago that over twice the statutory period has passed since I walked those hallowed halls). The theory, my property professor droned, was that public policy favored productive use of the land, and taking over a piece of land from an owner careless enough to let you take it over put it to more productive use,\ and thus should reward the taker. So if I like my piece of country property as a preserve for the birdies and little critters, and you want to bulldoze it for a new Starbucks, you win. The whole notion seems as cockeyed to me now as it did when I was a well-scrubbed and wide-eyed first-year law student back in the halcyon days of the 1970s.

To claim adverse possession, you have to show that your occupation of the land was open, notorious, hostile and adverse to the interest of the owner a continuous period of whatever the statute prescribes, say 21 years as an example. Some might say that if you built your Starbucks on my forest plot, and I did nothing about it for that long, I deserve to lose my land. To which I might reply that the law does not seem to offer much protection to someone when his or her property can be lost to another person simply because the thief gets away with it for long enough.

But if I thought adverse possession was screwy, I was hardly prepared for its little brother, a  prescriptive easement. Adverse possession is occupation of the land. A prescriptive easement is a mere use of someone else’s land without exclusive occupation. My kids cut through the neighbor’s side yard for years as a shortcut to the church. I still do it when I’m running late. If now, 28 years after the neighbor’s house was built, he put up a fence to stop us, should we be able to claim a right to have the fence removed so that we can continue to save five minutes getting to worship? What we would have, we could argue, was a prescriptive easement.

I once had a client who was about to build a garage on a piece of his land. The power company sued, because lines that went behind his property for years had been slightly rerouted so that they crossed a corner of his place. The electric company said it had moved the lines a convenient 23 years before, and now it had a prescriptive easement, which limited my client’s use of a quarter of his property to a vegetable garden.

We stared down Reddy Kilowatt in that case, because we located an aerial photo of the town from 20 years before that showed the electric company was bluffing, and the lines had not been moved as of that date. My client sold the electric company an easement over 50 feet of backyard for about $30,000. Happy ending.

As much as I dislike the whole notion of prescriptive easements, I admire creativity. I always thought of such easements as being created by the deliberate actions of humans. My kids cut across the neighbor’s lawn. The power company restrung its lines. But the plaintiffs in today’s case showed creativity I lack. Here, they claim a prescriptive easement not because of what they did, but because of what their tree did. Because the limbs and roots of a tree they owned grew into a neighboring property and remained there for more than 21 years, they argued, they had thus obtained a prescriptive easement that would prevent the neighbor from doing anything to the tree.

It’s as if the Massachusetts Rule had an expiration date.

At first blush, it seems to ring all the prescriptive easement bells, and seemed pretty doggone clever. But after thinking about the whole notion for long enough, the appeals court wisely said it simply did not make sense.

Koresko v. Farley, 844 A.2d 607 (Pa.Cmwlth. 2004). The Koreskos bought property with a line of trees on one boundary, all of which had been there more than 21 years, which hang over the boundary with the neighboring property containing a house, owned by M.J. Farley Development Co. Inc. Farley had submitted a subdivision plan seeking to divide the property into two plots, and to build a second residence on the newly-formed plot. 

The subdivision plan proposed to place a water line and driveway near the boundary trees. Upon learning of the proposal, the Koreskos sued in equity seeking injunctive relief and, of course, money damages. In their complaint, the Koreskos claimed the driveway and trench would damage the root systems of the boundary trees. Among their claims, the Koreskos alleged unreasonable interference with their prescriptive easement. They claimed that because their trees’ roots and branches encroached on the subdivided property for over 21 years, a prescriptive easement existed for the tree roots and branches, and that development of the property would unreasonably interfere with that easement; and

After the trial court held that “Pennsylvania does not and will not recognize an easement for tree roots or overhanging branches,” the Koreskos appealed.

Held: Pennsylvania will not recognize a prescriptive easement created by the growth of a tree.

A prescriptive easement is a right to use another’s property that is not inconsistent with the owner’s rights and which is acquired by a use that is open, notorious, and uninterrupted for a period of 21 years. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

The law holds that overhanging tree branches are a trespass. In Pennsylvania, a landowner has the right either to compel the removal of overhanging branches or to engage in self-help. However, the Restatement notes that a continuing trespass is not a trespass at all if the actor causing the trespass has obtained an easement by adverse possession, and ponders openly whether the continued presence of encroaching tree branches, held openly, notoriously, hostilely, and continually for 21 years would create a prescriptive easement in the airspace which they hang.

If this were the case, the Court said – noting it could find no Pennsylvania law which would indicate that a prescriptive easement was not available in this situation – a landowner who suffers actual harm for the first time during the tree owner’s 22nd year of hostile ownership would be precluded from seeking any remedy whatsoever, even self-help. However, the Court said, if an action is available without a showing of damage – and a trespass action assumes damages, so it can be brought whether the trespasser has actually injured the victim’s property or not – the landowner has no reason to complain if a neighbor’s tree causes damage after the prescriptive period has run because he or she could have sued at any time during the 21-year period.

The Court held the Koreskos failed to state a claim for prescriptive easement as a matter of law. No Pennsylvania case has held such easements are cognizable, the Court said, and other jurisdictions have reasoned that such should not be recognized. Finally, the potential of widespread uncertainty occasioned by such easements convinced the Court that they should not be recognized as a matter of public policy.

The Restatement holds that to be adverse, a use must be open and notorious, for the protection of those against whom it is claimed to be adverse. It enables them to protect themselves against the effect of the use by preventing its continuance. This requirement may be satisfied by a showing that either the landowner against whom the use is claimed has actual knowledge of the use or has had a reasonable opportunity to learn of its existence.

Encroaching tree parts, the Court held, by themselves do not establish “open and notorious” use of the land. Neither roots below the ground nor branches above the ground fairly notify an owner of a neighbor’s claim for use at the surface. In the absence of additional circumstances, roots and branches alone do not alert an owner that his or her exclusive dominion of the ground is challenged. This is no different from prior legal decisions that already held that the known presence of windows near a lot line does not create a prescriptive easement for light and air.

In a Kansas decision, an appeals court in the Sunflower State held that an easement by prescription cannot be acquired by overhanging tree branches, said:

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 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.

The Koresko Court said, “We agree with this reasoning and holding… and we expressly adopt it in Pennsylvania.”

Finally, the Court considered the consequences of the holding urged by Koreskos. Trees growing over property boundaries and streets, around utility lines, and under sidewalks are common in Pennsylvania. “A decision suggesting that the prolonged presence of these tree parts assures their unreduced continuation could cause uncertainty,” the Court held. “Both the extent of the prescriptive easement and its effect on public and private use are problematic. As a matter of sound public policy, we decline to recognize a new estate which offers uncertainty and invites clarification through litigation.”

– Tom Root

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Case of the Day – Wednesday, May 11, 2022

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BATTLING INSURERS


flo161221It’s an awful thing to see two insurance companies, toe to toe, fighting each other to the death. Imagine Flo stomping on the GEICO Gecko…

Well, maybe “awful” is a slight overstatement, but today’s case does pit two insurance companies against each other. One insured an engineering firm against professional negligence (malpractice), while the other one that insured the company against everything else. And you can bet that they were arguing over who would get the honor of picking up the check.

Compare it to a doctor’s office: if you doctor cuts off your ear when he or she was supposed to be curing your eczema, that would be covered by the professional insurer (assuming a jury thought it might be malpractice). If after you get the ear cut off, you slip and fall on a wet floor while paying, the doctor’s general insurer would cover your sore tush (financially, of course).

The engineering firm, an outfit named Czop/Specter, Inc. (pronounced “czop-specter”), had a contract with the Commonwealth of Pennsylvania to inspect its highways, and — when it found a dangerous condition — to schedule crews to fix it. Czop/Specter had an employee whose credentials were approved by PennDOT, who took special training in highway standards and then performed the inspections. When poor Mr. Cuthbertson (just your average motorist) was hurt by some driver who blew through a stop sign, his lawyer — who had no interest in committing legal malpractice — sued everybody. Claiming that the driver who hit his client couldn’t see a stop sign obscured by trees and foliage, Cuthbertson included the engineering firm Czop/Specter as a defendant in the suit, claiming that Czop/Specter should have identified the obscured sign and had the trees trimmed. Czop/Specter’s insurance companies were fighting over whether the negligence that the plaintiff alleged was covered by the professional liability policy (the cut-off ear) or the general policy (a slip on the wet floor).

The insurers sued in federal court, asking it for a declaratory judgment – simply an order from the court determining whether any damages that might be awarded because of any negligence should be paid by the professional liability insurer or general insurer. The professional liability insurance company claimed that the allegedly negligent inspection wasn’t a professional service, but instead could have been performed by anyone. The general insurer argued the liability wouldn’t belong to it, because its policy specifically excluded inspections from covered acts. The court said that the employee who performed the inspections had to be approved beforehand by PennDOT, had to complete special training and — although not an engineer himself — had other specialized education in herbicide application which was necessary for the position. The court’s conclusion: you don’t have to be a doctor or lawyer to provide professional services.

obscure151106Is there a lessons here? The court seemed to suggest that because the claimed negligence didn’t fall under one policy, it necessarily had to fall under the other. But that ain’t necessarily so. It’s entirely possible that Czop/Specter could have found itself being sued for negligence on a matter that no one ever contemplated — a passenger in a car hit because of an obscured sign because of an untrimmed tree because of a negligent inspection — one that was covered by neither policy. A lesson for arborists and tree specialists. You’d be wise to carefully read those boring, tedious, incomprehensible policies.

Lumbermens Mut. Cas. Co. v. Erie Ins. Co., 2007 WL 2916172 (E.D.Pa., Oct. 21, 2007). Donald Cuthbertson, Jr. was injured in an auto accident when another driver drove through a stop sign and collided with the car in which Cuthbertson was riding. Cuthbertson sued in state court, alleged among other things that the accident occurred because the driver did not see “an obscured and otherwise difficult to observe stop sign … due to a combination of factors, including tree branches, vegetation, bushes, brush and grass which obstructed visibility of eastbound drivers west of the stop sign.”

Czop/Specter, Inc., held a contract with the Pennsylvania Department of Transportation to perform inspections on the highway and to schedule any work required as a result of the discovery of hazardous road conditions resulting from overgrown vegetation. The inspection and scheduling services were performed by Czop’s employee, David Riley. In his complaint, Cuthbertson asserted that Czop was negligent in the performance of the contract.

Lumbermens Insurance provided a defense to Czop under the terms of an Architects and Engineers Professional Liability Policy that covered claims “arising out of a wrongful act in the performance of ‘professional services’.” Professional services were defined as “those services that the insured is legally qualified to perform for others in the insured’s capacity as an architect, engineer, land surveyor, landscape architect, construction manager or as defined by endorsement to the policy.” Lumbermens claimed that Erie Insurance Exchange — which insured Czop against general claims — had the obligation to defend, because the inspection services weren’t “professional services.” Erie’s policy contains an endorsement excluding from coverage “damages due to any services of a professional nature, including but not limited to: … supervisory, inspection, or engineering services.” Erie argued that the services performed by Czop through Riley constituted supervisory and inspection services and, therefore, the claim is excluded from coverage under the Erie policy. The battling insurers asked a federal district court to settle the dispute between them.

The plaintiff argued that the engineering firm inspector had ignored the risk ...

The plaintiff argued that the engineering firm inspector had ignored the risk …

Held: Lumbermens must defend Czop from the lawsuit, because the services were professional in nature. Under the law, a ‘professional’ act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.

In determining whether a particular act is of a professional nature or a ‘professional service’ a court must look not to the title or character of the party performing the act, but to the act itself. Riley’s services under the Engineering Agreement were “services of a professional nature” because the job entailed Riley’s inspection and supervisory services, which could not have been performed by just “anyone” and which were expressly excluded from coverage under the Erie policy. The Engineering Agreement required Czop to submit Riley’s credentials for approval by PennDOT for the position of “Roadside Development Consultant.” Riley was then trained by a PennDOT employee, and he attended mandatory seminars that prioritized needed work and roadside vegetation control. Upon completing his training, Riley conducted inspections in order to identify hazards, scheduled roadside work to be performed by others in accordance with PennDOT’s standards, and supervised the contractors performing the work.

The Court found that Riley could not have performed the job without the specialized training he received from PennDoT. Riley did not hold an engineering degree, although Czop is an engineering firm. Riley did, however, have specialized herbicide training which he used in connection with his inspection responsibilities under the Engineering Agreement. One need not be a doctor or a lawyer to render professional services. The job that Czop was paid for was the inspection and supervisory services performed by Riley. His failure to inspect and supervise the trimming of the vegetation that obscured the stop sign — if it happened — would constitute a “wrongful act in the performance of professional services” as that term was defined in the Lumbermens policy.

– Tom Root

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Case of the Day – Thursday, March 24, 2022

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THOSE OLDIES BUT GOODIES

Anglo-American jurisprudence is built on stare decisis, the notion that a decision, once rendered, may be relied upon by future generations to be a correct and reliable explanation of the law.

It does not always work this way. Some decisions are sufficiently wrong-headed (take, for example, Plessy v. Ferguson) that reversal is both legally and morally right. But as the current row over Roe v. Wade illustrates, reversal of precedent is never undertaken lightly.

That’s what a Pennsylvania decision that’s almost 80 years old can make its way into our lineup. Dare v. City of Harrisburg is old, but it’s still good law. As an application of the law of nuisance, as well as an explanation of the police power of a municipality to regulate nuisances for the commonweal, this case is fresh enough to have been tweeted just yesterday. It’s an old case, but a good one.

Mr. Dare clearly was a guy who loved his Carolina poplar. The tree is vigorous and rapidly growing, and – at least by the account in the case – can sniff out a water source like a bloodhound working a spoor. When it finds a water source – especially one as nutrient-rich as a sewer, it pries the source open like a squirrel cracking a nut.

Great for the tree. Not so great for the sewer. Or the city that has to maintain it, or the poor homeowner who watches unspeakable things backflow into his or her basement.

Carolina poplar – a cottonwood-family tree

Dare v. City of Harrisburg, 16 Pa. D. & C. 22 (Pa. Common Pleas 1930). In August 1925, the City of Harrisburg established a Shade Tree Commission under an Act providing for the planting and care of shade trees. A few short years later, the Commission ran headlong into Mr. Dare, who had a healthy, full-grown 35-year-old Carolina poplar shade tree in front of his property, one of nine such trees along the street.

In fall 1929, the Shade Tree Commission order the Carolina poplar removed, to be replaced with a Norway maple tree.

The Norway maple was well suited to the Harrisburg climate and soil. The Carolina poplar, on the other hand, grows rapidly, is short-lived and has fibrous roots which can extend up to 100 feet in search of water. The roots have a tendency to penetrate the smallest crevices, and particularly enter sewers seeking moisture and food.

The City had a sewer about 38 feet from the tree, which was clogged twice, backing up into nearby homes, during the summer of 1929. Each time, crews pulled bushels of small matted Carolina poplar roots from the sewer. The Shade Tree Commission found that Mr. Dare’s Carolina poplar tree was likely to continue to clog the sewer, costing the City money and causing sewer backups that damaged other homes.

Mr. Dare argued that Commission’s proposal to remove the tree was arbitrary, unreasonable and an abuse of any discretion which the statute may have vested in the Commission. He said the problem was a shoddily-built sewer, and that removing the tree constituted an unconstitutional taking of his property without compensation.

Held: The tree was a nuisance, and the Shade Tree Commission could order its removal without paying compensation to Mr. Dare. The evidence showed that the tree grew out to the sewer and stopped it, different from a case where the growth of the city around the tree was what created the condition now being called a nuisance.

The Court admitted that “it is a serious matter to destroy a beautiful shade tree and thus somewhat diminish both the market value and the advantages of one’s home. But when the tree has become a nuisance and the municipal authorities have upon proper evidence so determined, the court cannot say that a determination to remove such tree is either arbitrary or unreasonable.”

The Shade Tree Commission Act of 1907 gave the Commission the “exclusive and absolute custody and control of and power to plant, set out, remove, maintain, protect and care for shade trees.” This language, the Court said, gives the commission the exclusive power to remove. A municipality has a right to control trees and to remove them, and that courts will not interfere unless there is an abuse of discretion or the power is exercised willfully, wantonly and unnecessarily. Where trees become a nuisance, the municipality does not act in the exercise of eminent domain but under the police power and needs no permissive statute.

Nor must the City pay compensation to the tree’s owner. The Court agreed with the principle from a Municipal Corporations treatise that “without regard to who owns trees in the street, the municipality has the right to control them, and it may in proper cases in the interest of public safety, convenience or health, cut them down. It is well settled that a municipality, even in the absence of a permissive statute, may remove trees, when necessary as against the objection of the abutting owner, without compensation, in connection with making improvements on the street, or where they are an obstruction to travel. For example, to improve and render a highway safe and convenient for travelers, to carry out a plan or system of street improvements, or to prevent the roots of trees from clogging a city sewer.”

Mr. Dare cited Bushong v. Wyomissing Borough, a prior case, in which municipal authorities were denied the right to remove a private landowner’s tree. But there, the Court said the City attempted to remove Norway maple trees (which is the species intended to be substituted in the instant case), which were well adapted to the conditions in the borough, and to plant in its place a Crimean linden, which had not been planted in the borough before and was not an established shade tree. In that case, the Court said, “it was very properly held that shade trees were not nuisances per se, and that the removal of beautiful and ornamental trees which add to the desirability and the value of properties, merely for the sake of uniformity, would be exercising an unreasonable and arbitrary power. But in the case of Mr. Dare’s Carolina poplar, there was “no question of the removal of the tree for the purpose of making municipal improvements, thus exercising the power of eminent domain or merely removing the tree to plant a tree of another kind, which may not be any better adapted to the soil and environment. The question is whether the city has the right, in the exercise of its police power, to direct the removal of a tree which has become a nuisance. We base our decision on that proposition alone.”

– Tom Root

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Case of the Day – Thursday, January 6, 2022

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THE PENNSYLVANIA CHAINSAW MASSACRE

We write a lot about trespass and the wrongful cutting of trees as a civil matter, where courts award money damages and occasionally injunctive relief. So much so, perhaps, that it’s easy sometimes to forget that trespass is also an offense against the public peace that is punishable in every state as a criminal offense.

Darlene Gall’s nickname could have been “Unmitigated.” There is pretty clearly a backstory of neighbor animosity here, but all we get are the facts of the offense: one summer day, while her neighbor Gloria was at work, Darlene drove onto Gloria’s yard and lopped a 20-foot long branch off an apple tree. She then dragged it back to her place behind her pickup truck.

Darlene already had a driveway, meaning that the easement was not essential to get from her house to the road. But rather than use her Massachusetts Rule rights to trim the tree limb back to the edge of her easement, Darlene went next door and took a bough – the whole bough. Darlene said she did this because the branch scratched her truck cab when she drove by on her easement. And because someday an ambulance might have to get to her house by means other than her driveway. And because Gloria’s people dumped dirt in the easement once. And so on.

When another neighbor saw Darlene cut the branch and tow it away, he reported it, and Darlene got charged with criminal trespass, a misdemeanor. She admitted to cutting the branch but tried to convince the judge she thought she had the right to walk onto Gloria’s land with her chainsaw whirring. Her lawyer argued that it is “a well-settled principle in the civil law that a non-owner of vegetative property, like a tree, is privileged to physically damage the property when it is intruding onto her property.”

Well, not exactly. The Massachusetts Rule lets a landowner cut off boughs and roots of neighbor’s trees which intrude into his or her land when the tree causes “sensible harm.” Darlene could have cut the apple tree branch back to the edge of the easement. But the branch’s encroachments were not a license for her to enter her neighbor’s yard and cut the encroaching limbs all the way back to the trunk.

Commonwealth v. Gall, 2017 Pa. Super. Unpub. LEXIS 1709 (Pa. Superior Ct. 2017). Darlene Gall drove onto her land owned by her neighbor, Gloria Hieter, and used an electric chain saw to cut down a 20-foot limb from an apple tree. She then threw a rope around it and dragged it behind her truck back to her own property. She did so without ever asking Gloria’s permission, claiming the limb was blocking her use of an easement, making it impossible for her to drive past without scratching the roof of her vehicle. She also rather disingenuously claimed she was concerned about the possibility of an ambulance being able to reach her property by means other than her driveway.

Darlene was charged with the crime of simple trespass, which makes it a misdemeanor for a person, knowing that he or she is not licensed or privileged to do so, to enter or remain in any place for the purpose of, among other things, defacing or damaging the premises. She was found guilty, and sentenced to pay a $50.00 fine and costs of prosecution.

Darlene appealed.

Uh… but then, it’s not trespassing.

Held: Darlene was guilty of criminal trespass. She complained there was no evidence to show she knew she was not allowed to go on to Gloria’s land to cut the branch that was interfering with the use of her easement. But the Superior Court agreed with the trial judge that Darlene knew that the base of the apple tree was on her neighbor’s property, that she knew she was entering Gloria’s property, and that she intended to enter the property in order to cut the tree branch.

The trial court found from circumstantial evidence that Darlene knew she was not privileged to be on her neighbors’ property to cut down the apple tree branch. But she argued on appeal that the evidence was insufficient, and anyway, the law permitted her to be on the property for the purpose of removing a personal hazard to her health, and that she did not have the specific intent of defacing or damaging the premises.

The Superior Court, however, observed that intent can be proven by circumstantial evidence and  inferred from timing. Here, Gloria testified that she drives past the easement, which is on her left, to go to work. A neighbor, Mr. Goldman, heard the chainsaw and the large cracking sound and saw Darlene’s truck going by, towing this huge branch around 11:30 am on a Tuesday. The Superior Court said it was permissible to infer from Darlene’s choosing to cut down the branch at a time Gloria would not be at home that Darlene knew she was not privileged to enter Gloria’s land to cut down the branch. Gloria confirmed that Darlene never asked her about the tree branch.

Darlene took a bough… but not like this.

Mostly, Darlene was heisted by her own petard. She whined that “there was nothing there to say I couldn’t go up there. There was nothing there, no signs or nothing. They posted, actually, their signs into my easement, in other words, with the — may I say something? There was time when they encroached on my easement there, trying to take it on me, and it cost me thousands of dollars in court to establish that I had the right to that road. They were pushing dirt on my — they built a shed a foot over their property line without a permit, and I have no… other way to explain the need to go on there and just take care of it myself.”

The trial court said Darlene “seems all too aware of where the easement line is and where her property is and where her property isn’t. She acknowledges that she went four steps onto her neighbor’s property.” The Superior Court concluded that Darlene “knew that she was not licensed or privileged to enter onto her neighbor’s property to cut down the apple tree branch. Furthermore, as has already been stated above, [Darlene] has been quite forthright about her entry onto [Gloria’s] land having the sole destructive purpose of removing the apple tree branch that was hanging in the easement.” What’s more, the fact that Gloria’s property was not posted with “No Trespassing” signs was irrelevant for the crime of simple trespass. It was enough that Darlene knew she was trespassing.

Darlene tried to raise necessity as a defense of justification, but the trial court held that “the necessity would be as to why she had to go onto the property as opposed to cutting the limb at the edge of the easement, and that’s not what’s in front of us today.” In other words, for necessity to work, Darlene had to show why exercising her rights under the Massachusetts Rule – that is, to trim the apple tree branch to the edge of her easement – was not good enough.

On appeal, Darlene argued that cutting the limb “was to avoid a ‘harm or evil,’ namely the harm of not being able to receive emergency services at her home,” and therefore, she “was privileged to enter upon [Gloria’s] property to cut the potentially harmful branch.” But before the trial court, all she said was that her “entry upon the alleged victim’s premises was for the sole purpose of maintaining the right-of-way, and not to intentionally deface or damage the alleged victim’s property.” When the issue is not raised in front of the trial court, the appellate court will not entertain it.

Darlene’s conviction was upheld.

– Tom Root

TNLBGray140407

Case of the Day – Monday, September 27, 2021

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THE LAW OF UNINTENDED CONSEQUENCES – PART 2

I had a secretary once, a delightful country girl who careered from being sharp as a tack to dumb as a stump. One of her expressions, when she would be nattering on about something for what seemed to be hours on end, was, “Never mind me. I’m just talking out loud.”

Courts are constantly getting trouble for “talking out loud,” saying more than is necessary in a decision. When an opinion, aside, observation or frolic unnecessary to the decision are included in an opinion, it is known as obiter dictum, Latin for “by the way.” Obiter dictum is a concept derived from English common law, wherein a judgment is comprised of only two elements: ratio decidendi and obiter dicta.

One of the early lessons law students learn in their first year is that for the purposes of judicial precedent, ratio decidendi (which means the rule of law on which a decision is based) is the only part of the decision that is binding. Any statement that is obiter dictum is persuasive only.

By the way, lawyers usually call obiter dictum “dictum” for short. If there is more than one piece of dictum in a case, they are pluralized as “dicta.” (That previous “by the way” – in itself a perfect example of dictum – comes to you courtesy of my late and beloved Latin instructor, the incomparable Emily Bernges of Sturgis, MIchigan. I had her a half century ago, but in the firmament of unforgettable teachers, she is the brightest star).

Now to brush up on a little law: if I trespass on your land, you can sue to have me ejected. If you do nothing, and suffer my trespass and bad manners for long enough (usually 21 continuous years, but this can vary by state), I can sue you to quiet title, and the land becomes mine by adverse possession.

Now instead of squatting on your place, I string a power line across a corner of it. You don’t give me permission, but again you suffer in silence. It is not adverse possession, because you could continue to use the land under the power line. It’s just that I have taken the right to use your property without your permission, but in a way which is not inconsistent with your rights. If I keep my power line there for 21 continuous years (at least in Pennsylvania, but different states specify different terms of years), I have not acquired ownership of the land, but I have acquired a prescriptive easement. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

So that’s the progression. If I use your real estate without permission, I am a trespasser. If I remain a trespasser openly and continuously for long enough, I either wrest ownership of the land from you or at least obtain the right to an easement that you cannot take back.

As we saw in Friday’s case, Jones v. Wagner, a Pennsylvania court addressed encroaching tree branches and roots. This is unsurprising. Forty-nine other states have done the same. But where everyone else is content with the Massachusetts Rule or the Hawaii Rule, the Virginia Rule or some amalgam of the three, the Pennsylvania court boldly went where no court had gone before. It decided that the owner of the encroaching trees became a trespasser when the branches overhung or the roots entered the subsurface. Such a holding was as contrary to common sense as it was unnecessary: trees grow, their owner does not control the growth, and simple rules allocating cost and responsibility work for everyone else with the need to resort to pounding the round peg of trespass into the square hole of encroachment.

But the Pennsylvania court did just that. And the holding begs the question: if a tree can trespass (or more to the point, if the owner of a tree is a trespasser because of how the tree grows), might the owner also acquire a prescriptive easement if the encroachment goes on long enough?

And here came the dictum. After foolishly applying trespass to tree encroachment, the Jones v. Wagner court decided to speculate in the opinion whether prescriptive easements could be acquired by tree trespass. That was not an issue in the case. It was pure dictum, talking out loud. But it did not take too long for another party to take the Jones v. Wagner idle musings, and run with them.

Koresko v. Farley, 844 A.2d 607 (Commonwealth Ct. Pa. 2004). John and Bonnie Koresko bought a piece of property in Tredyffrin Township in 1986. Several trees over 21 years in age (which is important) grew on their property very near one property line. Branches hang over the boundary with the neighboring property.

That land was owned by Ollie Bower, who sold it to a developer in 1999. The developer wanted to subdivide the property into two lots, and build two houses. The subdivision plan proposed the installation of a water line and the construction of a driveway near the boundary trees. Upon learning of the proposal, the Koreskos sued, seeking injunctive relief and money damages. The Koreskos claimed unreasonable interference with an easement. Specifically, they alleged that because their trees’ roots and branches encroached on the subdivided property for over 21 years, a prescriptive easement existed for the tree roots and branches. They assert development of the property would unreasonably interfere with that easement.

The trial court turned the Koreskos down, holding that “Pennsylvania does not and will not recognize an easement for tree roots or overhanging branches.”

The Koreskos appealed.

Held: Encroaching branches and roots cannot create a prescriptive easement.

A prescriptive easement is a right to use another person’s property which is not inconsistent with the owner’s rights and which is acquired by a use that is open, notorious, and uninterrupted for at least 21 years. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

In Jones v. Wagner, a Pennsylvania Superior Court held that overhanging tree branches constitute a trespass. A landowner has the right to compel his or her neighbor to remove of overhanging branches, or the landowner may use self-help to cut the branches back himself or herself.

In discussing the appropriateness of self-help, the Wagner Court mused in a note:

An adverse possession action can often devolve into a pissing contest …

The Restatement notes that a continuing trespass is not a trespass at all if the actor causing the trespass has obtained an easement by adverse possession. Restatement (Second) of Torts § 161, comment d. We cannot help but wonder whether the continued presence of encroaching tree branches, held openly, notoriously, hostilely, and continually for 21 years would create a prescriptive easement in the airspace which they hang. If this would be the case, and we can find no Pennsylvania law which would indicate that a prescriptive easement is not available in this situation, a landowner who suffers actual harm for the first time during the tree owner’s twenty-second year of hostile ownership, might very well be precluded from seeking a judicial, or even self-help, remedy. This result, while not entirely unforeseeable, is anomalous. However, if an action is available without a showing of damage, the landowner has no reason to complain if a neighbor’s tree causes damage after the prescriptive period has run.

Citing this language, the Koreskis argued that their amended complaint sufficiently pleads a cause of action for unreasonable interference with a prescriptive easement. In contrast, the developer argued he Koreskis had not shown that such an easement existed. Specifically, the developer claimed. the encroachment of the tree roots and branches is not “open and notorious” conduct sufficient to create an easement.

The Commonwealth Court ruled that the Koreskis had failed to state a claim for prescriptive easement as a matter of law, for several reasons. First, encroaching tree roots and limbs by themselves cannot notify a landowner of a claim to use the ground. Second, Pennsylvania has never recognized the existence of such an easement. Third, the Court said, “well-reasoned authority from another jurisdiction persuades us that such easements should not be recognized.” Finally, the potential of widespread uncertainty such easements would cause “convinces us that they should not be recognized as a matter of public policy.”

“The requirement that, to be adverse, a use must be open and notorious is for the protection of those against whom it is claimed to be adverse,” according to Restatement of Property, Servitudes § 458, comment h. The requirement enables owners to protect themselves against the effect of the use by preventing its continuance.” To prove an adverse use is “open and notorious,” a claimant may show that either the landowner against whom the use is claimed has actual knowledge of the use or has had a reasonable opportunity to learn of its existence.

But encroaching tree parts, by themselves, do not establish “open and notorious” use of the land. Neither roots below ground nor branches above ground fairly notify an owner of a claim for use at the surface, the Court said. In the absence of additional circumstances, such as use of the ground for maintenance or collection of leaves or fruit, roots and branches alone do not alert an owner that his exclusive dominion of the ground is challenged.

The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each 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.

Finally, the Court said, “we consider the consequences of the holding urged by the Koreskis here. Judicial notice can be taken that trees growing over property boundaries and streets, around utility lines, and under [sidewalks are common in Pennsylvania]. A decision suggesting that the prolonged presence of these tree parts assures their unreduced continuation could cause uncertainty. Both the extent of the prescriptive easement and its effect on public and private use are problematic. As a matter of sound public policy, we decline to recognize a new estate which offers uncertainty and invites clarification through litigation.

– Tom Root

TNLBGray