Premises Liability and Trees- An Age Old Problem?

Hamilton County, Indiana

… when they came to the first rise above high-water mark. They went into camp and decided that in that vicinity they

build their cabins and there make their future homes. Before they had had time to build a cabin a severe storm of wind and rain came upon them. A large limb from a tree nearby was broken off and fell upon a tub of dishes belonging to Mrs. Solomon Finch, breaking most of them. This was a great loss, as they were all the dishes they had in the camp, and none could be had nearer than Connersville, sixty miles from this point.[i]

These events are a reminder that while we are not using wagons and dishes are more plentiful, we still need to inspect surrounding trees when, camping,  parking equipment and storing materials.

[i] Reference: A History of the Formation, Settlement and Development of Hamilton County, Augustus Finch Shirts

Tree Appraisal- Perhaps America’s First Amenity Tree Appraisal

One of America’s First Amenity Tree Appraisals

 Tree disputes have existed in America from the beginning of European settlement. In 1683 Francis Nurse sued Zerubabell Endicott for trespass. He claimed in his suit that “Mr. Endicott’s agents had trespassed onto his property and cut forty seven trees as they gathered firewood for Mr. Endicott for the winter”.

According to the Salem Quarterly Court Records and Files on March 20, 1682-3 agents John How and John Dale “appraised the damages to Nurse at 47s., there having been forty seven trees felled and carted away…”

Testimony for the defense laid out that in fact the trees belonged to Mr. Endicott because the property line was “upon the county road below the hemlock tree…which tree was attested to be the bounds between the property owners”…  Further testimony showed that the “hemlock tree had fallen upon the sawmill frame” but that the line was indeed at that point. The court ruled in Mr. Endicott’s favor because the trees were in fact on his property. Nurse appealed and lost a second time.

What we see from this court record is that many things have not changed. In America and across the world; trees are still cut and hauled away, property owners still do not know their property lines, people still appraise trees, courts still rule and plaintiff’s still appeal.

It is my speculation that John How and John Dale were perhaps the first Amenity Tree Appraisers in America?

Tree Appraisal in Utility Easements and Rights of Way

Utility Line Clearance is an often misunderstood procedure. Lines often need to be cleared of vegetation so that the utility can provide “safe and reliable service”. Safety should be considered for the general public, for utility workers and for the utilities facilities. When determining “damages” to trees in easements and rights-of-way an appraiser should take into consideration the following directive from the Guide for Plant Appraisal.

An appraiser would be thought unreasonable to use plant valuation methods to assess pruning or removal practices when utility clearance or routine maintenance is performed in a way that is consistent with easement rights. In cases where it is alleged that the utility has injured a party, outside the scope of its normal rights and responsibilities, the appraiser should distinguish and quantify the injury that was outside the scope of the rights and responsibilities of the utility. A substantially qualified working familiarity with right-of-way vegetation management and legal documents (for example deeds and surveys) within which that work is conducted is imperative (see chapter 11).

 

Reference: Guide for Plant Appraisal, 9^th Edition, Council of Tree & Landscape Appraisers, International Society of , Champaign IL, 2000.

Tree Stand Safety- Pick a Safe Tree!

 

 

 

 

 

 

 

 

 

 

 

 

Tree Stand Safety-

It is fall and you are gunning for a twelve point buck! You have scouted the woods and found a deer trail that looks like a highway. You are excited and prepare to put your stand in a tree in close proximity to the trail. But wait, did you think about that tree? Is it strong enough to hold you and your stand?  What should you look for?

Before installing your stand give the tree a good inspection. Use what arborists call Visual Tree Assessment (VTA) to make sure the tree will support  you and your stand. In your excitement don’t take chances which might lead to you getting hurt and your deer getting away!

When inspecting the tree look:

At the ground around the tree. Are there exposed roots? Does the tree lean with roots exposed on the side away from the lean? Are animals burrowing under roots?

At the root flare (area where the tree comes out of the ground). Is it decayed? Are there hollows or mushrooms? Have animals caused damage to the flare or lower trunk?

Over the trunk of the tree. Is bark missing? Are there fungal growths exuding from the side? Are there cracks that go deep into the wood or horizontally across the grain?

At the limb junctions. Are they split or do they have fungus growing from them. Is there bark missing? Do the junctions look swollen with a crease going parallel down from the junction? Do they look like they could split apart?

Finally at the upper limbs of the tree. Are there big dead limbs (look for missing bark on the limbs and/or missing smaller twigs and buds)? Are there loose limbs in the tree that could fall and hit you? Also make sure there are no utility lines running through the tree.

If your tree exhibits any of these symptoms you should pick another tree. I know you are excited and want to bag that big buck. But remember ‘There’s Always Time for Safety!™”

Tree Disputes- A problem older then Indiana!

Tree Disputes in Indiana- An Age Old Problem

From the time the treaties were closed in 1805 until 1810, the Indians complained bitterly against the encroachments of the white men on ground which belonged to themselves, and of the unjustifiable killing of many of their number.

In laying the matter before Governor Harrison an old chief used these words: “You call us your children; why do you not make us happy as our fathers, the French, did? They never took from us our lands; indeed, they were in common between us. They planted where they please; they cut wood where they pleased, so did we.  But now if a poor Indian attempts to take a little bark from a tree to cover him from the rain, up comes a white man and threatens to shoot him, claiming the tree as his own.”

Reference: Quoted from History of Posey County, Indiana, Leffel, John C., b. 1850