OK WAKE UP! this place has been quiet long enough.

Of the many trespass cases lately (and southern folks are reputed to be polite--hah!), two involve roots and earth, a topic not covered in the guide. Closest reference I see is on page 80; anyone know of another? ok here goes:

Man owns 27" Liriodendron on edge of property. Builder developing next lot grades a 45 degree slope down from the trunk, taking man's earth and roots and mycorhiza etc. from an area 60'long x 0-3' wide x 0-1.5' deep along lot line. whoops. Consultant estimates 90 sq ft of earth, roots etc. taken, which takes odds of tree surviving down from fair to poor.

A 5" dia root is cut 5' from trunk, greatly increasing hazard potential to man's house. Consultant C looks at ease with which builder could have built retaining wall and graded much less of tree's support roots away and still had a reasonable use of the property.

C appraises tree w TFM, man presses builder's insurance company for a bond in that amount plus estimated removal cost to be held for five years while the tree grows new roots, seals wounds, and possibly recovers.
Builder is asked to immediately replace earth with comparable mtl, inoculated with mycohiza, slope stabilized and tended to optimize root growth, also prune tree to lessen lean and hazard.

Does this sound like a reasonable way to replace lost roots and deal with this case?
(Case #2 w roots more complex, so I'll wait and see if anyone cares to opine on this one.)
Comments?

Reply to post by Guy Meilleur, on August 19, 2002 at 13:39:31:

A few things come to mind, in no particular order...

It sounds like the "damage" is the reduction in value from before (fair) to after (poor). So I assume C used TFM in one of the two ways the Guide describes. If Man gets that I'm not entirely sure he's entitled to remediation in addition, unless he is also entitled to land restoration separte from tree and doing that is what C wants for tree anyway.

Can we assume that the 0-3 ft of damage was all on Man's property and was trespass? What was the undisturbed distance to tree. What % of root system was destroyed in total. What % did Builder have a right to destroy with no trespass. Is damage really equal only to the incremental damage from the trespass area, not the entire reduction from fair to poor?

What % of anchorage was lost. How much from the 5" root. How does the remaining root radius compare to Mattheck's "critial root plate" (given all it's limitations)? Were all roots on that side severed within 1m of trunk which is Wessolly's risk criterium? What is trunk h/d ratio and how does that fit Mattheck's new risk index?

What was total value before damage? Cost of redmediation (assumimg Man is entitled to it in addition to TFM or Cost of Cure is used)should not be more than total value before.

If structural stability is gone maybe the tree is a total loss. If structural stabilty is not gone is the reduction in stability really a $ loss? It's either stable or it's not, Man can't have it both ways. Is five years going to replace the structural contribution of everything that was distal to the 5" root cut.

Insurance companies may not like contingent liabilities. If they pay Man and tree subsequently fails, allegedly as a result of trespass, will they be additionally liable for the damage to man's house or his personal injuries? Does man want to hope they will cover? Is builder's policy on an occurrence or claim's made basis? Alternatively will new neighbor's (builder sold the lot) homeowner policy cover for the builder's trespass? Or will Man's homeowner policy cover if he elected to keep tree. Was C hired as an apprasier, a hazard assessor or both?

There are probably more questions but that's all I can think of right now.

Reply to post by Scott Cullen, on August 19, 2002 at 13:39:31:

Scott, you asked "what % did Builder have a right to destroy without trespass?" My answer: That right is NOT absolute! Not enough to make the tree a definite hazard and its survival doubtful when Builder had simple options to pursue REASONABLE USE of his property! the option here: a 4' high, 12' long retaining wall would have saved critical roots.

Man's first assignment to C was to 1. determine present condition of tree, 2. to demonstrate that there were alternatives to root removal and 3. to prescribe remedial steps. I haven't read the risk criterium and index etc., but I'm sure this case is near or within a danger point.

what % anchorage lost? how to find that out without whipping out the old airspade and blowing yet more soil away from graded area to see how many more roots were cut? Any exploratory work diminishes stability so if tree fails in future what's to keep C from liability? Can only guess at original grade so can only guess at soil volume lost.
C said if steps taken tree may regain in 5 yrs. sufficient stability to withstand a moderate weather event, but no guarantee ever against a severe weather event. C will ponder issues for a few days and take a 2nd look at tree. Don't see risk index in body language book and never heard of Wossolly. (Why is all this new stuff on risk and decay coming from Germany? never mind) If you can fwd references C will have a greater preponderance of ponderables to ponder upon. thanks.
Anyone else?

Reply to post by guy, on August 19, 2002 at 19:29:47:

"That right is NOT absolute...Builder had simple options to pursue REASONABLE USE of his property!"

OK, is that the legal doctrine in Man's state or C's sense of equity. Some states impose a reasonableness test on "self-help" and use of property (as in CA see Booska v Patel). Other states do not.

"but I'm sure this case is near or within a danger point."

Assuming for the moment this intuitive judgment is valid, do we then think the risk of failure is "unreasonable," that is, what the literature and culture of risk assessement consider unacceptable and requiring abatement? Then would the tree be a total loss?

"...what % anchorage lost? how to find that out without whipping out the old airspade and blowing yet more soil away from graded area to see how many more roots were cut? Any exploratory work diminishes stability so if tree fails in future what's to keep C from liability?"

Yes that is a very real concern and a logical limiting factor on investigation. The concern is not just for C's liability but for Man's and also that Man may want to retain the tree as safely as possible.

That is why various hazard or risk of failure indeces, while being incomplete, offer some guidance in the form of rules of thumb, allometric ratios, etc. What if expert E working for Builder walks into court and says "this tree falls well outside the danger range set forth in both the Peanut Butter and Jelly Index (Prof Marvel) and the Ham & Cheese Ratio (Drs Golly and Gee Whiz), C's opinion is only intuitive." Now C's intuition might be right and the indecs wrong! But who is the court going to believe? Would C better serve his client and the public interest to be aware of the indeces and respond "both PPJ and HC are inapplicable here because this tree has a very high Mustard to Mayonaise Ratio?"

"Can only guess at original grade so can only guess at soil volume lost." And E responds "my client that wonderful Builder Q who donated heavily to Judge Brilliant's election campaign has provided detailed topographic maps showing that this area was seriously eroded in the great flood 35 years ago and in my opinion this tree reached it's current size with any potential rooting area on Q's land already unavailable... the roots developed parallell to the boundary but C did not dig test pits to confirm that."

"C said if steps taken tree may regain in 5 yrs. sufficient stability to withstand a moderate weather event, but no guarantee ever against a severe weather event." So once again would that make it a total loss? And how is the 5 year restoration time established if C does not know what the original anchorage was. what was lost or what absolute anchorage is required for "stability?"


"Don't see risk index in body language book and never heard of Wossolly."

Fig 111 p. 187 BLOT. Also in journal articles "Failure Criteria for Trees" and "Visual Tree Assessment."

Dr. Lothar Wessolly was introduced to me and I guess many of us by Mark Hartley here in a Knothole thread 2-3 years ago. I think some of the references are in my Wind Bibliography JoA Jan '02 which is online at ISA web site. Or do a search on Wessolly... his articles are on line at Erk Brudi's web site... you want the one about "tipping" of trees. Erk will describe a lot of the Wessolly work in the Proceedings of the Savannah Tree Biomechanics Conference which is due out from ISA this Fall.

Mattheck's H/D ratio is in the new 2002 Tree Mechanics book (with Stupsi's pal Pauli the bear) available from IMLUSA at their web site. As an aside the h/d ratio is not new and found in lots of forestry literature.