Case of the Day – Wednesday, February 4, 2026

Posted on February 4, 2026 by TLRoot tagged.

INTENTIONAL GROUNDING

Intentional grounding? You can bet that was the call after Mr. and Mrs. Peters bought a lot next to the Kriegs.

The Peters didn’t know where the lot lines were. Their real estate agent didn’t, either. Ah, details, details … That didn’t stop them from hacking down trees on the property as soon as the ink was dry on the deed, in order to build their dream house. You probably know where this is going. Harry Peters, acting as his own tree service, goofed and cut down 29 trees on the Kriegs’ land.

The Peters admitted their honest error. OK, they intended to ground the trees. They just didn’t know that the trees they grounded were the Kriegs’. They were willing to pay for the mistake. But what they were not willing to do was pay the treble damages authorized in the law for wrongful timber cutting.

It was sort of like the intentional grounding foul in football. It’s one thing to get assessed a 10-yard penalty. But on top of that, the team loses the down. Sort of like the double whammy (or triple, if you like) of the statutory multiplier for wrongfully cutting trees.

C’mon, the Peterses said, there wasn’t any evidence they knew they were cutting Kriegs’ trees. The Court pointed out that the state of the evidence was precisely the problem. It was up to the Peterses to prove that they thought the land was theirs. The wife’s testimony was all they had offered, and it didn’t help: she explained they didn’t really know where the boundaries were, and never bothered to find out. But the biggest problem was what Mr. Peters testified to: nothing. He was the one who cut the trees down, and the Court seemed to expect that he would have material testimony to offer. But he didn’t testify.

There’s a well-known principle in evidence known generally as the “missing witness instruction.” As the legendary Professor Wigmore put it, the principle holds that “the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” In other words, if you have particular control of evidence, and you do not bring it forward, a court is allowed to assume it would have been harmful to your cause if you had done so.

The Court didn’t say it here, but it strongly implied that the absence of testimony from Harry Peters led it to conclude that if he had taken the stand, he wouldn’t have helped his cause any.

Krieg v. Peters, 46 A.D.3d 1190, 850 N.Y.S.2d 211 (N.Y.A.D. 3 Dept., 2007). In May 2004, the parties became adjoining property owners when the Peters family purchased the vacant lot next to the Kriegs. The Peterses intended to construct a house on their property, so Mr. Peters began clearing land without consulting the map referenced in their deed or having a survey conducted. He removed 29 trees from Krieg’s property. Following a jury trial, the Kriegs were awarded damages, including treble damages under New York statute for the removal of this timber. On appeal, the Peterses only contest the treble damages award.

Held: The treble damages were upheld. Under RPAPL §861[2], the New York treble damage statute, in order to avoid treble damages, the Peterses had the burden of proving by clear and convincing evidence that when they removed the trees from the Kriegs’ property, they “had cause to believe the land was [their] own.” Their proof in this regard was woefully inadequate. Mrs. Peters was the only defense witness to testify on this critical issue, and the appellate court found that her testimony had been more damning than helpful in sustaining their burden. She said that, before she and her husband purchased the property, she walked it on one occasion with their realtor. At that time, she specifically asked about the boundary lines but the realtor couldn’t answer her question with any certainty. She said she told her husband of the realtor’s uncertainty when they later walked the property together. She also candidly admitted that no steps were taken to obtain a survey or consult the map referenced in their deed before clearing the land. The Court found it significant that, although he had logged the property, Mr. Peters never testified. It found plenty of evidence that the defendants had no cause to know whether the land Mr. Peters was logging belonged to them or not.

The Peterses also argued that the legislature never intended for RPAPL §861 to apply to individuals such as themselves who make “honest” mistakes about boundary lines. The Court disagreed, holding that on its face, the statutory scheme clearly applied to the facts and circumstances of the case and, in the absence of sufficient proof on the defendants’ part to avoid treble damages, it didn’t find the treble damage award to be inconsistent with the law’s purpose or intent.

– Tom Root

Case of the Day – Monday, December 15, 2025

Posted on December 15, 2025 by TLRoot tagged.

GOOD FENCES MAKE GOOD NEIGHBORS…

Don’t you believe it …

… or so one of my favorite poets, Bobby Frost, said. The flinty old New Englander wrote a lot of good, straightforward stuff (my favorite being The Pasture), but you need to know that this particular line about fences was written as a wry observation. Frost didn’t believe it, and he intended for his readers to question it, too.

Today’s neighbors are living proof of that. Lyle and Kate Batton had lived next to Dan and Kathy Bylander for 13 years, and the factual recitation in the case makes it pretty clear that they were good neighbors. There was a property line between their homes. Of course. There always is. But it wasn’t very important to them.

Instead, the friendly neighbors freely used each other’s properties, even giving each further permission to plant trees on the other’s properties. In fact, they did not really know for sure where one property ended and the other began. It seems that the Bylanders and the Battons had differing ideas about who owned what, but they were good neighbors. The technicalities of ownership were not that important.

But at last, the Bylanders moved out, and the Hawks moved in. The Hawks felt the need for a fence to separate themselves from the Battons, and that’s when the neighbors ceased to be good.

As Frost observed, “Something there is that doesn’t love a wall.” That something apparently was Lyle Batton. And who can blame him? For 13 years, Lyle and Kathy lived in unfenced harmony with Dan and Kate. At any rate, at some point after the fence was installed, tempers frayed, and Lyle exchanged sharp words with new neighbor Terry Hawk. And that’s when everything changed.

The Hawks demanded every inch of the land their surveyor said was theirs. The Battons demanded damages and asked the court to declare that their occupation of some of the disputed land over the years made it theirs.

The lawyers profited, and the neighbors – both sets – lost.

Batton v. Hawk, 2019 Minn. App. Unpub. LEXIS 1133 (Ct. App. Minn. Dec. 9, 2019). Lyle and Katherine Batton bought land in Thief River Falls 19 years ago. At the time, they shared their southern boundary line with Daniel and Kathy Bylander.

During the time that the Battons and Bylanders were neighbors, neither knew where the exact boundary line fell between their properties, but they did not much care – they were friends as well as neighbors. The Bylanders planted evergreen trees on what they believed was their property on the western side of their northern boundary line, which they thought was about eight to ten feet north of the line of evergreen trees. They mowed the area like it was theirs… because they figured it was.

At the same time, the Battons planted various trees along what they believed was their southern boundary line in the eastern part of the land, up to the edge of the Thief River. A second tree line, made up of about 12 spruce trees, sat north of the Bylanders’ home on the west side of the adjoining properties and acted as a windbreaker for their house. The Battons gave the Bylanders permission to plant more trees along the line.

Then disaster struck. After 13 years, the Bylanders sold their property to Terry and Dawn Hawk. The next year, the Hawks wanted to build a fence along the northern line of their property. The Hawks talked to the Battons about the property line, and the Battons explained that they believed it was along the tree line.

Trust but verify. The Hawks hired Houston Engineering to survey the boundary line. Houston found the Battons’ understanding of the boundary line was wrong, as the boundary line went through, or was very close to, the southeast corner of the Battons’ house.

Lyle Batton and Terry Hawk then met with a Houston Engineering surveyor to discuss establishing a new boundary line. The new boundary line ran 13½ feet north of the original boundary line, increasing the size of the Hawks’ property. The surveyor labeled this “Tract A.” Tract A included the wind-breaking tree line that sat north of the Hawks’ home. On the east end of the properties, the new boundary line was 25 feet south of the original boundary line and would become the Battons’ property. The surveyor labeled this “Tract B,” which included an area south of the Battons’ home. Tract A is .021 acres, and Tract B is .326 acres. The parties agreed that Tract A would become the Hawks’ land and Tract B would become the Battons’ land. After the meeting, surveyors from Houston Engineering placed markers along the new boundary line.

So the Hawks began to build a fence near the markers placed bysurveyors’ markes’ request, the Hawks built the fence directly on the new boundary line and gave the Hawks permission to enter their land to maintain the fence. According to the Battons, when Terry was finishing the eastern part of the fence, they realized that the markers placed by the surveyors were not in the correct spots and that the Hawks’ fence was “maybe a few inches up to many feet” north of what the Battons believed was the new boundary line.

The Battons also complained that the Hawks cut down four of their spruce trees on the western side of their property in order to build the fence. The Hawks countered that when they were bu, while building the fence, several trees fell duringlowing a hostile confrontation between Lyle and Terry in July 2016, the Battons sued the Hawks, asking the district court to order the parties to exchange deeds to Tract A and Tract B, to determine the practical boundary line of the property, and to rule that the Battons had adversely possessed some of the Hawks’ property, and therefore owned it. But the Battons’ complaint had a typographical error and, instead of requesting that the district court determine they had adversely possessed Tract B, they requested Tract A, which was already part of their property by deed.

The Hawks answered that the parties had discussed exchanging deeds to the tracts of land, but that they had never come to an agreement to exchange the deeds. The Hawks counterclaimed that the Battons had trespassed on their land and had damaged their property by removing the survey markers, and also that had relied on the B attons’ promise to grant them an easement.

The district court held a bench trial. At the end of the trial, the Battons amended their complaint to indicate that they adversely possessed Tract B, not Tract A, and they also moved to amend further to state that they adversely possessed the land that extended from Tract B to the middle of the tree line.

The district court held that the Battons failed to establish their claim for adverse possession because they did not show that they openly and continuously possessed the rest of the land that they claimed north of the tree line, failed to establish a claim for boundary by practical location, and did not show that the four removed trees belonged to the Battons.

The Battons appealed.

Held: The Battons did not acquire any land by adverse possession, nor did they obtain a declaration that the old supposed boundaries governed.

A party can become the titleholder of land by adverse possession. To show adverse possession, plaintiffs must show, by clear and convincing evidence, that their possession was actual, open, continuous, exclusive, and hostile for 15 years. Evidence presented in support of adverse possession must be strictly construed, with every presumption or inference to be taken against the party claiming adverse possession.

The district court found that the Battons had not established open, hostile, and continuous use of all of the land. Such use must give “unequivocal notice to the true owner that someone is in possession in hostility to his title.” There is sufficient evidence when “visible and notorious acts of ownership have been continuously exercised over the land for the time limited by the statute.”

The Battons and the Hawks had different understandings of where the boundary line fell. The Battons treated the tree line as the boundary, while the Hawks (and the Bylanders before them) treated the boundary line as 8-10 feet north of the tree line. Before the Hawks moved in, the Bylanders mowed up to that line, and, when the Hawks moved in, the Bylanders instructed them to continue to mow up to that line. While the Battons and the Hawks testified that they used the land for other purposes, there is no dispute that the Bylanders and the Hawks mowed part of the disputed land. “For that reason alone,” the Court ruled, “we cannot conclude that the Battons gave the Hawks unequivocal notice of their hostile possession of all of the disputed land.”

The Battons also testified that they used the disputed land for fishing, playing Frisbee and soccer with their kids, planting a garden and trees, and placing birdhouses and bird feeders. They said that they treated the disputed land as their own because they planted a garden, but neither of them could remember how long it had been there. Lyle testified that he placed birdhouses and bird feeders on the disputed land, but all had been removed several years before the trial. Because the evidence supporting adverse possession must be strictly construed, the Court said, “The district court’s finding that the Battons’ use of the land was simply occasional is not clearly erroneous.”

The Battons also argued that they had proven a boundary line by practical location. A boundary by practical location may be established in one of three ways: (1) by acquiescing in the boundary for a sufficient period of time to bar a right of entry under the statute of limitations; (2) by expressly agreeing with the other party on the boundary and then by acquiescing to that agreement; or (3) by estoppel.

The Battons argued that they established a boundary by practical location by acquiescence. If a party acquiesces to a boundary for a sufficient length of time to bar a right of entry under the statute of limitations (15 years in Minnesota), a court may establish the boundary by practical location.

The district court did not expressly address whether they had established a boundary by acquiescence. But the judge did note that there must be acquiescence to a boundary line for the statutorily required 15 years to be established by practical location. Because the Hawks had not lived in the home long enough to meet the 15-year requirement, the Court looked to their predecessors, the Bylanders.

But the Battons and Bylanders treated the boundary line differently. While the Bylanders believed the boundary was eight to ten feet north of the tree line, the Battons believed the boundary was along the tree line. The disputed 8-10 feet showed that the parties did not acquiesce to a boundary line. Instead, they apparently agreed to disagree, maintaining the peace despite their disagreement.

Thus, the Court said, the Battons failed to establish a boundary by acquiescence.

Finally, the Court observed that the district court had concluded that it could not determine if the four trees were on the Battons’ land. Based on this inability, the district court did not award them treble damages for trespassing and felling under Minn. Stat. § 561.04. Lyle testified that the Hawks cut down four trees that were on the Battons’ land in order to erect their fence. The Hawks, on the other hand, said that during the summer of 2015, a storm downed some trees, and the Hawks removed them from the property. Terry denied cutting down any trees north of the fence line.

Because the district court sits in the best position to weigh the credibility of witnesses, the Court of Appeals ruled, “we are not left with the firm conviction that, based on the conflicting testimony, the district court made a clear error.”

– Tom Root

Case of the Day – Monday, December 8, 2025

Posted on December 8, 2025 by TLRoot tagged.

THE LAW, SIR, IS AN ASS

In the 1970s (and undoubtedly even more so now), parking around The Ohio State University College of Law was awful. Everything was either reserved for faculty and staff (the parking lots) or metered with devices that would have made Einstein proud: while time crawled as we sat in property law, it was accelerated by the meter so that the hours (and the quarters) flew by.

The result, predictably, was that as a law student, I collected more than my fair share of parking tickets. When I didn’t pay them (chiefly because my student budget did not include a big chunk for the City of Columbus), dunning notices would be sent to my legal residence, which, of course, was my ancestral home. My mother would see them, shake her head in deep disappointment at her eldest son, and say, “I would think that law school would teach you to respect the law.”

Well, it did not, Ma, I am sorry to say. Or maybe not so sorry. After all, today’s case is Exhibit A in my argument that while Aretha may be entitled to a little respect, the law is not.

Ken and Sally Eyer were senior citizens who were forced to sell off timber to pay Sally’s chemotherapy bills. They owned the land: a big timber company contracted to cut the trees. Ken Eyer showed the company the boundary line, but the timber company – which, being in the business, should have known better – crossed onto neighboring land and committed a trespass to timber. The neighbors sued the Eyers, the Eyers brought in the timber company, and then what appears to have been a straightforward case went to hell.

Chief Justice Jim Jones, since retired, concurred in the judgment very reluctantly:

“I concur in the judgment because it correctly applies the law, even though the outcome is most unfortunate for the Eyers. It appears to me that the legal system catastrophically failed Kenneth and Sally Eyer.

This case started out as a $1,600 timber trespass. Under Idaho Code section 6-202, the Eyers were obligated to their neighbors, Russell and Laura Stevens, for treble damages. The Stevens filed suit, seeking a whopping $268,770 in damages. Eventually the case was settled upon the Eyers’ agreement to pay $50,000, plus interest, out of the estate of the last of them to die (they were octogenarians). Trial testimony indicated that $15,000 of the settlement was for damages and $35,000 for the Stevens’ attorney fees incurred in the suit. The Eyers had incurred their own attorney fees and costs in the sum of $37,934 by the time of the settlement. The Eyers’ third-party claim against Idaho Forest Group then went to trial and the Eyers lost. The district court granted Idaho Forest Group attorney fees and costs in the amount of $97,821.30. Thus, excluding attorney fees incurred by the Eyers in pursuing their third-party complaint and this Court’s award to Idaho Forest Group of its fees on appeal, the Eyers are out a minimum of $185,755.30 on a $1,600 timber trespass…

It is not clear from the record how the Eyers ended up in this position but it is a tragedy and does not speak well for the legal system. It is imperative that court procedures be reformed to expedite the process and reduce the cost of litigation to avert a repeat of this unfortunate story.”

So no, Ma, in the ensuing 49-odd years since law school, I have not learned to respect the law. If anything, I’m headed the other way.

I do, however, respect Ken and Sally Eyer. Sadly, Sally died of cancer shortly after the Idaho Supreme Court stripped her of her life savings. Ken passed away in April 2020. After all of that miserable litigation, his obituary nonetheless said, “his life was adventurous, full of humor and endless learning.”

He and Sally are worthy of all of the respect I have failed to give the law. (Chief Justice Jim Jones, too… he retired from the Idaho Supreme Court in 2017, and is now “actively educating and recruiting community to help refugees to establish in Idaho“).

Stevens v. Eyer, 161 Idaho 407, 387 P.3d 75 (Supreme Ct. Idaho, 2016). Ken and Sally Eyer entered into a log purchase agreement with Idaho Forest Group, Inc., because the couple – both in their 80s – needed money to pay medical bills. IFG sent an agent to the Eyers’ property before logging to assist them in locating property lines. “I told them not to cut anything I could see from my deck,” Ken told the Spokane, Washington, Spokesman-Review.

But when the logging occurred, IFG mistakenly cut timber located on neighboring land belonging to Russ and Laura Stevens. The Stevenses promptly sued the Eyers for timber trespass. The Eyers brought a third-party action against IFG, which essentially said that if the Eyers were liable to the Stevenses, then IFG was liable to the Eyers for the same amount. The Eyers claimed IFG breached its duty to properly mark the property lines.

The Stevenses, who sued for over $250,000 for $1,600 worth of mistakenly-cut trees, settled with the Eyers for $50,000, to be paid from the estate of the latter Eyer spouse to die.

At trial, the Eyers alleged that IFG assumed a duty to locate the property boundary between the Eyers and Stevenses’ properties. The jury found that IFG had not assumed this duty.

Afterward, IFG moved for an award of $95,600 in attorney fees under Idaho Code section 12-120(3), which permits the award of such fees in a commercial transaction. The Eyers argued that there was no commercial transaction because they were going to pay medical bills with the proceeds of the timber sale. The district court nevertheless awarded IFG the full amount of the company’s requested attorney fees.

On appeal, the Eyers contended Idaho Code section 12-120(3 ) does not apply.

Held: The Eyers owed the legal fees.

The commercial transaction ground in Idaho Code Ann. § 12-120(3) neither prohibits a fee award for a commercial transaction involving tortious conduct nor requires a contract. Instead, the rule is based upon the second paragraph of § 12-120(3), which mandates an award of reasonable attorney fees to the prevailing party in any commercial transaction.

The Court said that whether a party can recover attorney fees under the statute depends on whether the “gravamen of a claim” is a commercial transaction. A “gravamen” is the material or significant part of a grievance or complaint. Courts analyze the gravamen claim by claim. To determine whether the significant part of a claim is a commercial transaction, the court must examine whether a commercial transaction (1) is integral to the claim and (2) constitutes the basis of the party’s theory of recovery on that claim. For a transaction to be commercial, each party to the transaction must enter the transaction for a commercial purpose.

The Court noted it had previously characterized transactions as commercial when the purpose for entering into the transaction was to generate income. Earning income, the Court said, is the quintessential act of engaging in commerce.

To be sure, the Eyers had purely personal purposes in mind for the revenue they would realize from the sale of timber to IFP. Most employed people use their income for “personal or household purposes,” such as paying for lodging, food, utilities, and entertainment. Nevertheless, the Court said, by virtue of their employment, they are engaged in commerce. For that reason, actions brought for breach of an employment contract are considered commercial transactions under Idaho Code Ann. § 12-120(3).

– Tom Root

Case of the day – Monday, November 10, 2025

Posted on November 10, 2025 by TLRoot tagged.

GOOD DRAFTING DOESN’T ALWAYS PREVENT LITIGATION

A little more today on independent contractors: I have often noted that inexact lawyering can lead to needless litigation. That’s not to say that good draftsmanship will necessarily avoid litigation, but — as we see in today’s case — it always helps.

Dogger got the logs - Worley was left with the stumps

Dugger got the logs – Worley was left with the stumps

Mrs. Dugger hired a Kentucky-certified master logger, Tommy Thomas, to log her land. She signed a contract with him which specified, among other things, that ol’ Tom-Tom was an independent contractor. Well, master logger or not, Tommy Boy wasn’t a master listener. Although Mrs. Dugger told him she didn’t own the land across the crick and he shouldn’t log it.

Of course, he logged it anyway. Predictably, the woman who owned the land on the other side of the watercourse sued, naming both Tommy T. and Mrs. Dugger as defendants.

Mrs. Dugger’s lawyer had her dismissed from the lawsuit on summary judgment, because Kentucky law was clear that an owner wasn’t liable for the errors of an independent contractor, and Tommy Thomas was clearly an independent contractor. The written agreement between the two of them was a great help in establishing this, as well as proving that Mrs. Dugger had told her contractor where her property boundaries lay.

The appeals court agreed, holding that Thomas’s master logger certification meant he should have known better. The contract helped demonstrate that the parties consistently intended for him to be an independent contractor, and he, in fact, controlled the manner of the work and how it was accomplished. Mrs. Dugger might have been liable anyway if the cutting was “work involving a special danger.” But in Kentucky, the Court said, it’s not.

She had a good lawyer – but it didn’t keep her out of the courtroom

Worley v. Dugger, Not Reported in S.W.3d, 2007 WL 4373120 (Ky.App., Dec. 14, 2007). Mrs. Dugger entered into a logging contract in May 2003 with Tommy Thomas to cut timber from part of her property. During Thomas’ cutting, he crossed onto Worley’s land and took trees valued at over $1,300. Worley sued Thomas and Dugger, seeking damages for the wrongful taking of timber pursuant to KRS § 364.130.

Just prior to trial, Mrs. Dugger won summary judgment on the basis that Thomas was acting as an independent contractor at the time he wrongfully took timber from Worley’s property. Later, a default judgment was entered against Thomas on the issue of liability. Worley moved to vacate the summary judgment and reinstate Mrs. Dugger in the lawsuit. When the court refused to vacate, Worley appealed.

Held: Summary judgment in favor of Mrs. Dugger was appropriate. The trial court found Thomas was acting as an independent contractor at the time when he wrongfully took timber from the plaintiff. Thomas was told not to log beyond the borders of Dugger’s property, something he admitted under oath. What’s more, Mrs. Dugger was not vicariously liable for Thomas’s wrongful timber harvest because she failed to adequately instruct him. Although landowners had been found liable in other cases where independent contractors had cut trees from neighboring land, that was because the landowners had allowed their contractors to cut trees without knowing the exact location of the boundary lines.

Here, the Court said, Mrs. Dugger explicitly instructed Thomas to not exceed the boundaries of her property beyond the creek. Thomas, on his own initiative and contrary to Mrs. Dugger’s instructions, crossed the creek onto Worley’s land. Thomas was a “Kentucky Certified Master Logger,” and the Court held that this certification meant that Thomas should have been familiar with his duty to observe boundary lines to avoid the possibility of liability.

Lucky thing Mrs. Dugger had it in writing …

Plus, Thomas’s contract with Mrs. Dugger clearly identified him as a “contractor.” In Kentucky, as a general rule, employers are not vicariously liable for the acts of independent contractors. The right to control the work and the methods of its performance is determinative on the question of whether one is a servant or an independent contractor. If the employer retains the right to control the work and the manner in which it is done, those doing the work are servants. On the other hand, if an employee has the right to control the manner of work and the right to determine the means by which results are accomplished, he is deemed an independent contractor and the employer is not responsible for his negligence.

The exception to the general rule is that if the work to be performed is either a nuisance or is inherently dangerous, the employer will not be absolved from liability. The Court ruled that tree cutting is not “work involving a special danger” as contemplated by the law. Here, the Court held, Thomas was an independent contractor because he controlled the manner of the timber cutting as well as the means he would use to complete the job.

Under the facts of this case, the work of cutting timber upon Mrs. Dugger’s land was neither a nuisance nor inherently dangerous. Thus, Mrs. Dugger could not be held liable for Thomas’s negligent work.

– Tom Root

Case of the Day – Tuesday, October 28, 2025

Posted on October 28, 2025 by TLRoot tagged.

HE’S A CAD, NOT A TRESPASSER

It does not take very many years in the general practice of law for an attorney to see people at their worst. There’s nothing like watching a loving family, united in grief over the death of a loved one, get torn apart by greed and jealousy when the time comes to probate the will. A close second, however, has to be divorce.

Early on in my career, I witnessed a wife who threw her husband’s expensive shotgun collection into a swamp and refused – even on pain of jail for contempt of court – to tell anyone where she had bogged the prized Purdeys. Then there was the husband who hid all the money over a three-month period before announcing, “Surprise, I’m divorcing you!” His wife had been diagnosed with inoperable cancer, and he could not understand why he should spend all of their money on her healthcare when she was just going to die anyway.

One of my favorites was the couple who had agreed to an amicable divorce. They owed about $10,000 on credit cards, so they agreed to jointly borrow the money from the bank to pay off the high-interest debt with a loan that they would share in paying down. The day before the final divorce hearing, the husband called the bank and convinced the loan officer that his soon-to-be ex had asked him to pick up the check. He did, and then forged his wife’s name on the back, took the $10,000, and fled for Florida.

Shortly after he got to the Sunshine State, his mother died and left him $500,000. Using some of the money to get drunk and high, the still-the-husband ran his Harley into a bridge abutment at 95 mph. Since he had never gone through with the divorce, he was still married. Of course, the knucklehead had no will, so his brother – next in line for the money – got nothing, while my client, the wife (who had been furious at being stuck with the $10,000 loan obligation), got it all. She went to Florida, picked up his new $40,000 truck, all sorts of expensive tools, and the remainder of the money he had inherited (about $420,000). It took two cops to go with her to dead hubby’s family compound to pick up the property from the enraged family.

Karma is a bitch, sayeth… someone, I’m sure.

So why the family law lesson? Because, as we will see in today’s case, trying to screw your ex is never a very good idea. A moment’s visceral pleasure, followed by years (or a lifetime) of regret. Still, the ex-husband, whose in-your-face ripoff of the ex-wife even went to the extent of having her share paid to the new girlfriend, got off easy. When he sold 400,000 board feet of jointly-owned timber – cheating the ex out of $52,600, the former wife originally got her share plus treble damages under Louisiana’s timber trespass statute (and another $63,000 in legal fees). But the Cajunland Supreme Court ruled that whatever the ex-husband might otherwise be, he was not a trespasser to whom the treble damage statute applied.

Sullivan v. Wallace, 51 So.3d 702 (Supreme Ct. Louisiana, 2010). During their marriage, defendant Bruce Sullivan and plaintiff Janice Sullivan bought a 120-acre tract of land in Claiborne Parish. The couple divorced in 1990, but they retained the community tract in co-ownership and listed it as an asset in the divorce proceeding. The divorce judgment prohibited the parties from doing anything to sell or diminish the value of community property.

In 1994 and 1995, however, Bruce cut, stacked and sold some of the timber on the property. The checks for the 1994 timber he sold were payable to Priscilla Wallace, the defendant’s girlfriend at the time (now his wife). The checks for the 1995 timber were made payable to Bruce. In all, Bruce sold over 254,000 board feet, worth over $105,000.

In 1995, Janice learned that Bruce had been cutting and selling timber from their jointly-owned tract. She advised the timber buyer that the property was in litigation, and the buyer immediately ceased removing timber from the property. When Bruce told the buyer there was another 40,000 board feet of timber awaiting pickup, the buyer declined to have anything to do with it.

Janice sued Bruce, his girlfriend Priscilla and the timber buyer, claiming trespass, negligence, and conversion, and seeking treble damages and attorney fees under La. Rev. Stats. 3:4278.1 and 3:4278.2. At trial, Bruce argued the timber had come from his separately owned but adjoining tract, and that the timber had been damaged by an ice storm and had to be cut. The trial court, noting that the sale receipts predated the ice storm, didn’t believe him. Imagine that.

Instead, the Court ruled for Janice, finding that her share of the cut timber was about $52,600.00. To that figure trial court applied La. Rev. Stat. 3:4278.1 to award treble damages, or about $157,800.00, and to award attorney fees in the amount of 40% of the treble damage award, about $63,000.00.

The court of appeal affirmed that Janice was entitled to damages, but it reversed as to the treble damages and attorney fees. The appellate court agreed with Bruce that the timber trespass statute does not apply to co-owners of property, holding that the co-ownership articles of the Louisiana Civil Code provide adequate recourse among co-owners of real property. The appellate court cut Janice’s award to $52,600.00, representing one-half of the value of the lost timber, and vacated the portion of the judgment awarding attorney fees.

Janice petitioned the Louisiana Supreme Court for review.

Held: The treble damage statute for trespass to timber does not apply to co-owners who cut timber without the consent of the other owners.

The Court observed that the fundamental question in cases of statutory interpretation such as this one is legislative intent and determining the reasons that prompted the legislature to enact the law. The starting point in statutory interpretation is the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the Court said, the law is to be applied as written.

When the language is susceptible to more than one meaning, however, the Court held, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words of the law must be given their generally prevailing meaning. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other.

La.Rev.Stat. 3:4278.1, commonly referred to as the “timber trespass” or “timber piracy” statute, provides that it “shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.” Although the statute is directed to “any person” who cuts, fells, destroys, removes, or diverts for sale or use any trees, the Court said, the statute is facially ambiguous with regard to co-owners of the timberland, neither expressly including nor excluding these persons from its provisions.

When viewed strictly, the statute is violated only when “any person” acts with respect to trees growing or lying “on the land of another” and when this action is taken without “the consent of … the owner or legal possessor.” The timber trespasser owes the penalty to “the owner or legal possessor of the trees,” a phrase the Court said more logically describes a person other than the wrongdoer as described in the statute. What’s more, the timber trespass statute is found within the title of the Revised Statutes entitled “Agriculture and Forestry,” the chapter entitled “Forests and Forestry” and the part entitled “Protection and Reforestation.” Given this context, the Court held that the legislative purpose behind La. Rev. Stat. 3:4278.1 is to protect those with an interest in trees from loggers who enter their property without permission to harvest timber illegally. Thus, with the proper construction in mind, the Court said, “The focus of the statute is on an actor other than an owner.”

The Court said the fact that La.Rev.Stat. 3:4278.1 is not directed to co-owners who act without the permission of their co-owners was further supported by considering it in context with La. Rev. Stat. 3:4278.2, the 80% rule, which allows a timber buyer to cut standing timber when the buyer has the consent of co-owners holding 80% or more of the ownership interest. If 3:4278.1 applies to co-owners, then one co-owner who holds more than 80% of the ownership interest and permits timber to be cut in accordance with La. Rev. Stat. 3:4278.2 would nevertheless be liable to the other co-owners for treble damages under 3:4278.1 despite the fact the timber “buyer” would escape the penalty because of La. Rev. Stat. 3:4278.2(B). “Such a contradiction.” The Court reasoned, “cannot be what the legislature intended in enacting these statutes.”

Therefore, Janice was entitled only to her share of the cut timber.

– Tom Root

Case of the Day – Friday, October 24, 2025

Posted on October 24, 2025 by TLRoot tagged.

TRESPASS

Remember that kid when you were small, the neighborhood schemer who would convince everyone else to do something fun (which quickly became something stupid)? In our small Ohio town, the local instigator-in-chief was a jug-eared kid named Rick.

Rick’d talk us into going into the Smiths’ strawberry patch and make off with a quart or more of the biggest, reddest, juiciest berries… At least, until grumpy old Mr. Smith would catch us. Like he always did.

Everyone knows that trespass is an intentional invasion of a property owner’s interest in the exclusive possession of property. Pretty simple, huh? We were all trespassers, but back then, the penalty was meted out by our parents after they got an earful from Mr. Smith.

Rick? He was no trespasser. He never stepped foot in the strawberries, although he had every intention of sharing in the berry spoils we brought back. We were liable. He was not.

Does that seem right? It did not seem so to us at the time. It does not seem that way to the Washington Supreme Court, either.

Porter v. Kirkendoll, 2019 Wash. LEXIS 588, 2019 WL 4683940 (Supreme Ct. Wash. Sept. 26, 2019). Pepper and Clarice Kirkendoll hired loggers to harvest their trees. They owned a parcel of timberland abutting the western edge of a 60-foot-wide easement. The easement was located on land owned by Jerry Porter and Karen Zimmer.

A private access road, Madison Drive, ran within the easement. A strip of land west of the access road but east of the Kirkendolls’ land belonged to Jerry and Karen. Nevertheless, when Pepper hired G & J Logging Inc. to harvest timber, he told the loggers that he and Clarice owned all the land west of Madison Drive. G & J Logging and Boone’s Mechanical Cutting, Inc., harvested 51 Douglas firs located on Jerry’s and Karen’s land.

Jerry and Sharon sued the Kirkendolls and the loggers for waste under RCW § 4.24.630 and for timber trespass under RCW § 64.12.030. The loggers settled with Jerry and Karen, paying $125,000 and assigning their indemnity and contribution claims against the Kirkendolls as part of that settlement. The settlement was pretty slick. Jerry and Karen figured they would score another one-third of $125,000 by taking the loggers’ right to get contribution from the Kirkendolls ($41,666.67).

The Kirkendolls replied with their own slickness. They argued that the settlement with the loggers effectively released them from liability under the principles of vicarious liability. The trial court agreed with the Kirkendolls and dismissed the case.

The Court of Appeals reversed, holding that the settlement did not release the Kirkendolls from potential liability for directing the timber trespass. And it held that Jerry and Karen were precluded from recovering under the waste statute because relief is available under the timber trespass statute.

The Kirkendolls appealed to the Washington Supreme Court, renewing their argument that the settlement agreement released them from liability under principles of vicarious liability. They also argued that they are not liable for indemnity as a matter of law. In their answer, Jerry and Karen sought review of whether the timber trespass statute precludes them from recovering under the waste statute.

Held: The settlement did not release the Kirkendolls from liability, but Jerry and Karen are precluded from recovering under the waste statute.

In contrast to direct liability, which is liability for the breach of one’s own duty of care, vicarious liability is liability for the breach of someone else’s duty of care. A principal – like the Kirkendolls – may be vicariously liable as a matter of public policy to ensure that the plaintiffs have the maximum opportunity to be fully compensated. That public policy does not apply when a plaintiff has accepted a release from the primarily liable party who committed the tort and who was financially capable of making the plaintiffs whole. When a plaintiff settles with a solvent agent from whom he or she could have received full compensation, the very foundation of the principal’s liability is undermined. In at least some situations, then, a plaintiff releases a vicariously liable principal by settling with a solvent agent.

But, the Court said, that was not the case here. Pepper Kirkendoll misrepresented his boundaries and thus directed G & J Logging and Boone’s to commit a timber trespass. Therefore, it did not matter that the loggers separately settled with Jerry and Karen for their trespass. Pepper and Clarice were independently liable for their “culpable misfeasance” in directing the loggers to cut the wrong trees.

Under RCW § 4.24.630, the waste statute, more expansive remedies are available to a party. In addition to treble damages, the injured party may recover reasonable costs, including but not limited to investigative costs, reasonable attorneys’ fees, and other litigation-related costs. However, the waste statute explicitly states that it does not apply in any case where liability for damages is provided under § 64.12.030, the timber trespass statute.

– Tom Root

Case of the Day – Thursday, October 9, 2025

Posted on October 9, 2025 by TLRoot tagged.

ONE CROWDED HOUR

A British army officer and poet, Thomas Osbert Mordaunt, wrote in his poem, “The Call,” a line now misattributed to Sir Walter Scott: “One crowded hour of glorious life is worth an age without a name.”

It’s so much fun to be nasty. Even for just one glorious, crowded hour. It’s just not so much fun when the age without a name knocks on the door, seeking payment. Just ask John and Anne Estes.

Everything started when John and Anne tried to extend the Massachusetts Rule to cut some branches from their neighbors’ trees. The problem was that the trees and branches were both on the neighbors’ properties.

Then they built a fence. So far, so good, at least until the fence they built was on their neighbors’ property, too. The neighbors, Matt and Rachel Milcic, objected. After mediation, the Estes fence was removed.

Obviously, John and Anne were sore at having been upbraided for their brazen trespasses. So they rebuilt the fence, and on the Milcics’ side, painted in large block letters, “PULL YOUR WEEDS.”

“Hah!” You can imagine John and Anne giving each other high-fives at their in-your-face cattiness. They sure showed those jerk neighbors, who thought they were so cool that they could stop John and Anne from trespassing. Their snickers and winks lasted for one crowded hour of glorious fun.

Maybe the neighbors really did need to weed. It’s hard to say. Certainly, Matt Milcic did some landscaping in response to the fence. After he had done so, and after he asked John to remove the sign, John said he might. But petulantly, he did not.

Cute, John… at least until the Milcics sued. Then, John offered to paint out the words if the Milcics would drop the suit. But that horse had left the barn…

The Esteses’ conduct was brazen enough that the trial court granted the Milcics summary judgment. But then, the battle continued over damages. By the time the court was done, the Esteses’ cruel prank had cost them northward of $10,000.00. Not nearly what the Milcics wanted, the award nevertheless undoubtedly deterred the juvenile conduct.

You’d better find your checkbook, John. You and Anne enjoyed your crowded, glorious hour. The age without a name (but with a dollar sign) has now arrived.

Milcic v. Estes, 2018 Wash. App. LEXIS 1798 (Ct. App. Wash., Aug. 6, 2018). The Milcics and Estes are next-door neighbors. In 2013, the Estes cut branches off trees located on the Milcics’ property and began to build a fence along the parties’ common boundary.

When a dispute regarding fence encroachments arose, the parties submitted it to mediation. In April 2014, the parties executed a settlement agreement in which the Estes agreed, among other things, to remove both the excess dirt from the Milcics’ property and portions of fence footings that were visible above ground.

In July 2014, the Estes painted the words “PULL YOUR WEEDS!” in white, 10-inch block letters on the Milcics’ side of the Estes’ fence. The Milcics threatened a lawsuit unless the Esteses removed the sign. The words remained, and the Milcics sued.

The Milcics’ complaint alleged private nuisance, trespass, timber trespass, spite fence, quiet title and damages to land and property. Shortly after the Milcics filed, the Estes offered to remove the painted message if the Milcics dismissed their complaint. The Milcics rejected the offer, telling the Estes, “If you were willing to do so voluntarily… you could have removed the sign at any time for the past nine months.”

The Milcics moved for partial summary judgment, alleging there were no issues about the Estes’ branch cutting, fence encroachments, and dumping of fill dirt on the Milcics’ property. The trial court granted relief, including ordering the Estes to the fence encroachments. The court awarded the Milcics some but not all, of their requested damages, but denied them reimbursement of their legal fees.

The Milcics appealed the adverse ruling on damages and fees.

Held: The appeals court upheld the damage award, and sent the case back to the trial court for a legal fee award.

In January 2017, the matter proceeded to trial solely on the issues of damages and attorney fees and costs. Rachel Milcic testified that the Estes cut branches off their trees and put fill dirt on their property without their permission. She said the branch removal ruined the beauty and privacy of the Milcics’ property. The loss of the branches upset her and she did not sleep well. She also testified that the Milcics were not sure where the property line was when the branches were cut.

She also testified that she was “shocked,” “horrified,” and “scared” when the Estes painted the “PULL YOUR WEEDS!” message on the fence facing the Milcics’ property. She had trouble sleeping and no longer felt that she and her children were safe. She testified that before the painted message appeared, her family spent around 12 hours per week in her yard. After the message appeared, they spent less than an hour a week in the yard. She valued her use of the yard at $40 per day. She testified that the message was visible for 922 days.

Matt Milcic testified that after the painted sign on the fence, the Milcics installed a surveillance system to “protect our property” and to “capture any trespasses by the Esteses on our land.” Matt also testified that the fence message could be seen from roughly a quarter of their property and prevented the Milcics from enjoying their yard. Their dreams and aspirations for landscaping the yard “got instantly crushed into a reminder of, you don’t get to enjoy this part of your property that you had hopes and dreams for.” He estimated that the affected portion of his property had a market value of $152,500.

Matthew conceded that he had not seen a doctor or any medical professional for his emotional distress and had no medical bills related to that distress. Matthew also conceded that he did not accept the Estes’ April 2015 offer to remove the fence message.

John Estes testified that he painted the “PULL YOUR WEEDS!” message to protest the “weeds and invasive vegetation coming onto my property.” He conceded that Matt told him in August 2014 that he had pulled the weeds and that he wanted the message removed, but he did nothing for nine months, at which time John offered to remove the message if the Milcics dismissed the lawsuit.

The court ruled that the Milcics were entitled to some, but not all, of their alleged damages. It awarded them $3,557, which it trebled to $10,673. However, it denied damages for the installation of the surveillance system, for lost enjoyment of property, for emotional distress, and for legal fees.

On appeal, the Milcics argued the court erred in awarding no damages for their alleged lost enjoyment of their property on their trespass and private nuisance claims. They claim they were entitled to such damages due to the significant length of time — 922 days — that the fence message remained in place. But the Court of Appeals held that the trial court was free to discount or reject the Milcics’ testimony regarding their alleged lost enjoyment. “On this record, and in light of our deference to the trial court’s view of the weight and credibility of the evidence,” the Court held, “we cannot say the court abused its discretion in declining to award damages for the Milcics’ claimed lost enjoyment of their property.”

The Milcics also contended that the trial court abused its discretion in failing to award them damages for emotional distress caused by the Esteses’ fence message and branch cutting. A plaintiff who proves liability for intentional wrongful conduct is entitled to damages for emotional distress upon a showing of actual anguish or emotional distress. The distress need not be severe and a plaintiff “need not demonstrate objective symptomology, medical bills, or a medical diagnosis.”

Here, the trial court found the Esteses engaged in intentional wrongful conduct, including nuisance, timber trespass, and a spite fence. The trial court also found, however, that the Milcics “have not provided sufficient evidence to establish that they have suffered emotional distress.” The Milcics pointed to their testimony that they suffered initial shock and distress, trouble sleeping for a week, and ongoing feelings of insecurity and fear of further invasions. “But,” the Court of Appeals held, “the trial judge’s evaluation of the sufficiency of the evidence includes determinations as to the weight and credibility of the evidence – matters that require our deference.”

The Milcics also contended the trial court erred in concluding that the Estes’ conduct was not the legal cause of their purchase and installation of a surveillance system. To determine if legal causation exists, a court considers whether “‘as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability.” The Court said that the judge’s determination rests on ”mixed considerations of logic, common sense, justice, policy, and precedent.”

Here, the Court of Appeals ruled, “the Milcics offer no relevant precedent supporting their argument regarding legal causation. Nor do they advance any persuasive arguments supporting their claim that logic, common sense, justice, and policy favor the imposition of liability for the surveillance system. There was never any doubt as to who had trespassed onto the Milcics’ property. The Estes readily admitted cutting the branches, painting the message, and installing the fence. There was therefore no need for a surveillance system to catch the perpetrators, and no reason to believe that a surveillance system would act as a deterrent to future incursions. In addition, except for the branch cutting, the trespasses were de minimis incursions. Thus, the trial court did not err in concluding that the Estes’ conduct was not a legal cause of the Milcics’ surveillance system expenses.”

– Tom Root