1 John Keeling Baker, Esquire Mitchell Williams Little Rock, ArkansasTree Law John Keeling Baker, Esquire Mitchell Williams Little Rock, Arkansas

2 Sources of Law Codified or Statutory lawFederal law from U.S. Congress State law from State Legislature County law from Quorum Courts Municipal law from City Boards of Directors Common Law Federal common law from federal courts State common law from state courts John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

3 Intruding Branches & RootsNo reported Arkansas case where either intruding tree branches or tree roots have been discussed John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

4 Property Damage from Trees * Intruding Branches & Roots *Many related doctrines involved: Right of exclusion – “One of the main rights attaching to property is the right to exclude others ” Rakas v. Illinois, 439 U.S. 128, 143 n. 12 (1978) Ad coelum doctrine - The common-law rule that a landowner holds everything above and below the land, up to the sky and down to the earth's core, including all minerals. Sic utere tuo ut alienum non laedas doctrine - So use your own as not to injure another's property. Right of Exclusion - State v. Hamzy, 288 Ark. 561, 565, 709 S.W.2d 397, 399 (1986) (citing Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978): State v. Hamzy, 288 Ark. 561, 564, 709 S.W.2d 397, 398 (1986) AD COELUM DOCTRINE, Black's Law Dictionary (10th ed. 2014); approved of use of concept in Medlock v. Galbreath, 208 Ark. 681 (1945). Sic utere recognized by Court in Eddy v. Thornton, 205 Ark. 843, 170 S.W.2d 995, 996 (1943). John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

5 Property Damage from Trees. Intruding Branches & RootsProperty Damage from Trees * Intruding Branches & Roots * Four Nuisance Principles Nuisance – another’s unreasonable use of his land that interferes with a neighbor’s use and enjoyment of his own land. 1. The Virginia Rule 2. The Massachusetts Rule 3. The Restatement Rule 4. The Hawaii Rule John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

6 Property Damage from Trees. Intruding Branches & Roots. AProperty Damage from Trees * Intruding Branches & Roots * A. Four Nuisance Principles The Virginia Rule Allows Court to order the removal of offending vegetation, but only if it is “noxious” and causes actual damage to neighboring property. Even Virginia has abandoned it. Noxiousness is in eye of beholder and leads to an unworkable standard. Only used by Arizona. John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

7 Property Damage from Trees. Intruding Branches & Roots. AProperty Damage from Trees * Intruding Branches & Roots * A. Four Nuisance Principles 2. The Massachusetts Rule Only remedy afforded to the injured homeowner was self-help in the form of cutting back the offending roots or branches. Rationale: Allowing damages to injured property owner creates incentive for bringing of vexatious law suits considering how common vegetation grows across property lines. Viewed as harsh rule because affords no monetary relief and puts burden on injured owner. Second most popular rule John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

8 Property Damage from Trees. Intruding Branches & Roots. AProperty Damage from Trees * Intruding Branches & Roots * A. Four Nuisance Principles 3. The Restatement Rule An obligation is imposed on a landowner to control vegetation that encroaches upon adjoining land, but only if the vegetation is artificial (e.g., planted or maintained by a person), and not if the encroaching vegetation is natural. - Not always easy to determine origin of plant’s growth. Restatement (Second) Torts 839, 840 (1979) John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

9 Property Damage from Trees. Intruding Branches & Roots. AProperty Damage from Trees * Intruding Branches & Roots * A. Four Nuisance Principles 4. The Hawaii Rule A landowner can sue for the removal of offending vegetation and for monetary recovery of damages, but only when the vegetation causes actual damage or poses imminent harm to landowner’s property. Shade and small falling objects from tree are not actual harm. John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

10 5. Closest Arkansas case – a 1950 hedge case out of Luxora, ArkansasJohn Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

11 Property Damage from Trees. Intruding Branches & Roots. AProperty Damage from Trees * Intruding Branches & Roots * A. Four Nuisance Principles Along Main Street in Luxora, Arkansas, in 1926, Jones planted a hedge along 75 feet of what he thought was his lot’s northern boundary. The hedge apparently grew and grew and grew and spread such that it “covered up several feet” of the adjoining property to the north. In 1943, a fellow named Gathings purchased that property to the north of Jones and the next year, in 1944, Gathings “cut down the hedge.” A disagreement arose as to the true location of property line. Jones sued Gathings to enjoin him from trespassing and Jones won. Supreme Court affirmed Jones’ victory. But, at the very end of the case, the Arkansas Supreme Court believed that “it should be pointed out” that Jones had “no right to maintain a spreading hedge extending over and onto [Gathing’s] adjoining land. “[Jones’] boundary stops sharply at the [property] line fixed by the [trial court’s] decree.” Orbiter Dicta. Gathings v. Johns, 216 Ark. 668, 670, 226 S.W.2d 978, 980 (1950) John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

12 Personal Injuries from Trees * Falling or Obstructing Branches *John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

13 Personal Injuries from Trees Falling/obstructing trees – off propertyYou be the Judge – Abe owns a home on a 6-acre tract on a heavily traveled highway in a moderately settled area. A tree next to the highway is struck by lightning and killed. Abe does nothing to remove the tree though he sees it every day in going to work. Over a year later, the tree falls on Bo's car out on the highway, severely damaging it. Is Abe subject to liability to Bo? John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

14 Personal Injuries from Trees Falling/obstructing trees – off propertyYou be the Judge – Landowner’s huge pine trees have never been trimmed or pruned. Their big roots have, over the years, grown under the adjacent street and made bumps protrude up in asphalt. Lulu is driving along and the bumps cause her to lose control of her car and to crash, of all things, into a tree several hundred feet away. Is Landowner subject to liability to Lulu? Silver Palm Properties, Inc. v Sullivan, 541 So. 3d 624 (Fla. Ct. App. 1989) No liability. County, not landowner, owned and maintained the roadway surface. Landowner had no right to repair or alter the surface of the roadway. However, if branch had hung off property and obstructed a traffic control device, landowner could be held liable for not trimming overhanging vegetation. “To impose upon a landowner a duty to undertake root trenching or tree topping purely in anticipation that subterranean growth may alter the surface of a public right-of-way at some indeterminate time in the future is both burdensome and unreasonable.” John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

15 Personal Injuries from Trees Falling/obstructing trees – off propertyYou be the Judge – Driver is hit by dump truck and killed at intersection. Driver’s estate sues landowner and alleges that tree branches from landowner’s land grew off of the property such that they obstructed a safe view of intersection. Is landowner subject to liability to estate? Williams v. Davis, 974 So.2d 1052 (Fla. 2007) (liability can flow but, in this case, there was no evidence that branches had grown outside of the landowner’s property) John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

16 Personal Injuries from Trees Falling/obstructing trees – off propertyKey inquiry is whether tree was in a rural or urban setting and whether injury occurred along a highway or road. Restatement (Second) of Torts § 363, 840 (1979) General Rule - Neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land. Exception to General Rule - A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway. Restatement (Second) Torts 363 was acknowledged in Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269, 273 (1996) but found not to be applicable because vegetation involved ornamental shrubs not trees. Dissent argued that 364 was applicable. John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

17 Personal Injuries from Trees Falling trees/branches – on propertyYou be the Judge -- A seven year old, who was a licensee or guest with permission on Smith’s property, fell when an assertedly rotten limb broke and fell from under him on the apple tree on which he was climbing while on Smith’s property. Derby v. Connecticut Light and Power Co., 167 Conn. 136, 355 A.2d 244, 246. The lower court found for the plaintiff. On appeal, the court reversed, saying that no recovery should be permitted where, as here, there is neither actual knowledge on the part of the licensor of a condition which he should realize involves an unreasonable risk of harm to the licensee, nor circumstances under which such knowledge could be imputed to the licensor. John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

18 Personal Injuries from Trees Falling trees/branches – on propertyA possessor of land is subject to liability for physical harm caused to guests by a condition on the land if, but only if, the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such guests, and should expect that they will not discover or realize the danger, and he fails to exercise reasonable care to make the condition safe, or to warn the guests of the condition and the risk involved, and the guests do not know or have reason to know of the condition and the risk involved. Restatement (Second) of Torts § 342 (1965) John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

19 Liability for Cut or Damaged Trees$$$ Damages depend on type of bad guy: Private party Utility Governmental body Private contractor for governmental body John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

20 Tree Damages – Scenario 1 Trees v. Private PartyMany options: - Fair market value (FMV) of timber cut - Difference in FMV of land before and after occurrence - Cost of replacement of the trees, if ornamental or shade - Value of the wood in a manufactured state Plus, the reasonable expense of necessary repairs to any property damaged. AMI 2226A Comment John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

21 Tree Damages – Scenario 1 Trees v. Private PartyDouble Damages – Ark. Code Ann Any person who shall knowingly cut down, destroy, or carry away any tree, timber, lumber, staves, or shingles made therefrom, contrary to this subchapter, any person who shall aid and abet or assist any other person in so doing, and any person who shall purchase or receive any trees, timber, lumber, staves, or shingles knowing them to have been cut contrary to the provisions of this subchapter shall be jointly and severally liable to the owner in double the value thereof. A.C.A (double) A.C.A (triple) John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

22 Tree Damages – Scenario 1 Trees v. Private PartyTriple Damages – Ark. Code Ann (a) A person trespassing as follows shall pay a person injured treble the value of a thing damaged, broken, destroyed, or carried away, with costs, if the person shall: Cut down, injure, destroy, or carry away any tree placed or growing for use or shade or any timber, rails, or wood, standing, being, or growing on the land of another person. * * * (c) If on the trial of any action brought under the provisions of this section it shall appear that the defendant had probable cause to believe that the land on which the trespass is alleged to have been committed, or that the thing so taken, carried away, injured, or destroyed, was his or her own, the plaintiff in the action shall recover single damages only, with costs. A.C.A (triple) John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

23 Tree Damages – Scenario 2 Trees v. Governmental bodyGovernment can take private property for public purpose so long as landowner is paid “just compensation.” A jury of 12 decides $$$. If trees are destroyed as part of the “taking” of the property, the value of the trees destroyed is not a compensable item of damage. DAMAGES depend on extent of taking: 1. A complete taking (fee): FMV of property taken 2. A partial taking (easement): Difference between FMV of whole property pre-taking & FMV of remaining property post-taking. AMI 2002 (partial taking), 2005 (complete taking) John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

24 Tree Damages – Scenario 3 Trees vTree Damages – Scenario 3 Trees v. Entity Exercising Power of Eminent Domain (utility, RR, pipeline) Certain statutorily recognized private entities can take private property for stated public purposes so long as landowner is paid “just compensation.” A jury of 12 decides $$$. Entity can cut down trees and make injured property owner sue in an inverse condemnation proceeding. A.C.A Beaverfork Lake case from 2003 AMI 2003 (partial taking); AMI 2005 (complete taking)l DeBoer, 82 Ark. App. 400 John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

25 Tree Damages – Scenario 3 Trees vTree Damages – Scenario 3 Trees v. Entity Exercising Power of Eminent Domain (utility, RR, pipeline) 5 6 7 John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

26 Tree Damages – Scenario 3 Trees vTree Damages – Scenario 3 Trees v. Entity Exercising Power of Eminent Domain (utility, RR, pipeline) 5 6 7 16 feet wide by 127 feet long = area of cut. John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

27 Tree Damages – Scenario 3 Trees vTree Damages – Scenario 3 Trees v. Entity Exercising Power of Eminent Domain (utility, RR, pipeline) John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

28 Tree Damages – Scenario 3 Trees vTree Damages – Scenario 3 Trees v. Entity Exercising Power of Eminent Domain (utility, RR, pipeline) You be the Judge -- Plaintiff’s arborist expert’s opinion: $12,655 for replacement value of trees Utility’s expert appraiser: $1,200 for the difference in the value of Lot 6 before the cutting and value of lot after cutting ($24,750 - $23,550 = $1,200) AMI 2003 (partial taking); AMI 2005 (complete taking)l DeBoer, 82 Ark. App. 400 John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

29 Tree Damages – Scenario 3 Trees vTree Damages – Scenario 3 Trees v. Entity Exercising Power of Eminent Domain (utility, RR, pipeline) Arkansas Supreme Court’s Holding: $1,200 If trees are destroyed as part of the “taking” of the property, the value of the trees destroyed is not a compensable item of damage. DAMAGES depend on extent of taking: 1. A complete taking (fee): Fair market value (FMV) of property taken 2. A partial taking (easement): FMV of portion of property taken + any loss in FMV suffered by the remaining property (severance damages) AMI 2003 (partial taking); AMI 2005 (complete taking); DeBoer, 82 Ark. App. 400 John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

30 Tree Damages – Scenario 4 Trees v. Government ContractorYou be the Judge – Boy Toys, Inc. trenches along a road to install a water line for City and cuts roots of a huge tree located 30 feet away on landowner’s property. Two years after Boy Toys, Inc. is paid for its work by the City, the big tree falls and renders woman paralyzed. Is Boy Toys, Inc. subject to liability to woman? Rogers v. Frank Mitchell Co., 908 S.W.2d 387 (Mo. Ct. App. 1995) (questions of fact reversed summary judgment dismissal of contractor under “Acceptance Doctrine” because John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

31 Tree Damages – Scenario 4 Trees v. Government ContractorLots of legal issues involved: 1. Is contractor protected under the acquired-immunity doctrine? 2. Is claim barred by the “acceptance doctrine” or “accepted-work” doctrine? Abolished in Arkansas in Did a recorded easement exist that gave the contractor a legal right to do the work it did in the easement? 1. Smith v. Rogers Group, Inc., 348 Ark. 241 (2002) Under the acquired-immunity doctrine, a contractor for a public agency shares the sovereign immunity of the public body from liability for incidental damages necessarily involved in the performance of the contract. However, it does not protect a contractor who performs the public contract in a negligent manner. 2. Suneson v. Holloway Const. Co., 337 Ark. 571, 992 S.W.2d 79 (1999) 3. Brown v. ConocoPhillips Pipeline Co., 47 Kan. App. 2d 26 (2012) Recorded pipeline easement gave pipeline company the right to “lay, maintain, operate, inspect, and remove” its pipeline. Seventy foot tall pin oak two feet from buried pipeline and having 90% of its roots in the top three feet of ground substantially interferes with company’s easement, principally because the evidence was undisputed that the tree roots could significantly harm the pipeline which was believed to be buried at a depth of three feet. John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

32 Don’t forget about local lawsE.g., Little Rock Code Sec It shall be unlawful for any person or business to plant, prune, remove, spray, or otherwise treat public trees without evidence of applicable certification, license or permit. Sec – Definitions Public tree means any tree located on city-managed property. City-managed property includes medians, street rights-of-way, alleys, parks, building grounds, parking areas, trails, greenways, easements, and other properties owned, managed or controlled by the City of Little Rock. John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

33 Local Laws Eureka Springs City Code Sec. 7.56.02John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock

34 Local Laws Little Rock City Code Sec. 15-53 - Tree pruning(a) Required pruning. The owners of all trees adjacent to public roadways shall be required to maintain a minimum clearance of fourteen (14) feet above the public street and eight (8) feet above sidewalks. Owners shall also prune and maintain trees so that they do not interfere with traffic signals or signs, street lighting, or roadway line of sight requirements. Owners shall remove all dead, diseased or dangerous trees, and broken or decayed limbs. John Keeling Baker, Esquire Mitchell Williams Law Offices - Little Rock