Monday, June 29, 2015

Claim preclusion; subject matter jurisdiction. Gravel-extraction activities violated an Act 250 permit. Court had jurisdiction to enforce expired permit

Natural Resources Board Land Use Panel v. Dorr, 2015 VT 1(09-Jan-2015)

MORSE, J. (Ret.), Specially Assigned.  This is an appeal from a judgment of the Superior Court, Environmental Division affirming an administrative finding of the Natural Resources Board that respondents’ gravel-extraction activities violated an Act 250 residential-subdivision permit. Respondents contend the enforcement action and trial court judgment were based on an expired Act 250 permit, and therefore invalid. We affirm.

The claim that Act 250 permit had expired either by its terms or by operation of law—was one that could and should have been raised in earlier administrative and judicial proceedings between the parties. Accordingly, we conclude that the claim is barred.by principles of res judicata.

Respondents further assert that—res judicata notwithstanding—if the permit had expired then the courts were without subject matter jurisdiction over this Act 250 enforcement action, “Subject matter jurisdiction” refers to the fundamental “power of a court to hear and determine a general class or category of cases.” It is a concept easy to confuse with the simple authority to act, and we have, accordingly, been careful to limit the concept in Act 250 and other administrative contexts, where the agency generally exercises limited powers and “virtually any disagreement with its actions can be phrased in jurisdictional terms.” This is not a case where the parties fundamentally “failed to adjudicate the case in the proper statutorily designated administrative tribunal before proceeding to the superior court.” Brace v. Vergennes Auto, Inc., 2009 VT 49, ¶ 16, 186 Vt. 542, 978 A.2d 441 (mem.). Accordingly, we find no reason to exempt respondents’ claim from the general claim-preclusion rules, and affirm the judgment on this basis.


How cited. 

Land use permit upheld. Findings as to as to Criteria 1(D), “Floodways” and 8, “Aesthetics” were not clearly erroneous.

In re Zaremba Group Act 250 Permit, 2015 VT 88 (26-Jun-2015)

SKOGLUND, J.   Neighbors of a plot of land in Chester appeal the environmental division’s decision to grant an Act 250 permit amendment to build a Dollar General store (“the Project”) on that plot.  We affirm.

Neighbors challenge the “Aesthetics”conclusion, based on claimed violation of  “a clear, written community standard intended to preserve the aesthetics” of the area.  A criterion of the Chester Zoning Regulations states that. that all construction of new buildings should adhere harmoniously to the “over-all New England architectural appearance which gives the center of Chester its distinct regional character and appeal.”

The criterion refers to the “center of Chester”—a vague description that we will assume means the historic village center—but the Project is not located in the pedestrian-oriented village center; it is more than a half-mile away in a vehicle-oriented part of the town.  We need not decide whether the reference to “over-all New England architectural appearance” in this provision would provide clear guidance if this project were in the historic village center.  The Project’s immediate surroundings—including a flat-roofed structure containing a gas station, mini market, and liquor store—and the entirety of diverse architecture in the area cannot be said to conform to a discernible “New England architectural appearance.”  These conflicting architectural styles are evidence that the zoning criterion is not a clear community standard intended to preserve aesthetics, at least as applied to the area surrounding the Project.

Wednesday, June 24, 2015

Lost profits not proved by evidence of lost revenue. Blocking access was sufficiently unreasonable and substantial to be a nuisance. Threat to drive up litigation costs was sufficient “malice” to support punitive damages, even if there was no “ill will.”


ROBINSON, J.   This case involves a dispute concerning access to property over a subdivision roadway.  Defendant property owners’ association  appeals a judgment for compensatory and punitive damages and for attorney’s fees awarded for a nuisance affecting the Plaintiff P&B’s restaurant.  We affirm the judgment for P&B on its nuisance claim; uphold the award of punitive damages and attorney's fees; but reverse the award of compensatory damages because of the lack of evidence to support the award.
Nuisance. A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land. To prove a nuisance, plaintiffs must demonstrate an interference with the use and enjoyment of another's property that is both unreasonable and substantial. An intentional invasion of another's interest in the use and enjoyment of land is “unreasonable” if the gravity of the harm outweighs the utility of the actor's conduct. The standard for determining whether a particular type of interference is “substantial” is that of definite offensiveness, inconvenience or annoyance to the normal person in the community.
The Association installed a guardrail that prevented access to P&B's property from Sunne Village Lane. The Association also put up numerous "Private Lane—Residents Only" signs. Ample evidence supports the court's findings that the blockade caused difficulties for vehicles (especially those towing trailers with snowmobiles), leading to complaints by patrons and lost business and revenue. The erection of the guardrails occurred without warning and just prior to the ski season, which was the busiest time of year for the restaurants. Given these facts, we have no difficulty in upholding the trial court's determination that the level of the Association's interference with P&B's use and enjoyment of its land was sufficiently unreasonable and substantial to be a nuisance.
Punitive damages. The requisite degree of actual malice to support punitive damages may be shown by conduct manifesting personal ill will or carried out under circumstances evidencing insult or oppression, or even by conduct showing a reckless or wanton disregard of one's rights. The trial court concluded that the Association’s board engaged in intentional, unreasonable, bad-faith, and malicious behavior, supporting an award of punitive damages in the amount of $5000. This behavior included insinuating that the Association would drive up litigation costs if P&B did not agree to meet various demands  
The Association argues here that the findings of malice are not supported by the evidence and  that there was no "evidence of personal animus."   Even if the POA lacked any "personal animus" toward P&B, this would not preclude an award of punitive damages, because conduct that is not based upon personal hatred or dislike may nevertheless be malicious—it may be insulting or oppressive, or carried out with reckless or wanton disregard of another's rights.  The findings were sufficient to support the conclusion that the Association’s actions in this case evidenced insult or oppression or were carried out in reckless or wanton disregard of P&B's rights.


Attorney’s fees. The court made this award under 27A V.S.A. § 4-117(a), the fee-shifting provision of the VCIOA, which provides that "[a] declarant, association, unit owner, or any other person subject to this title may bring an action to enforce a right granted or obligation imposed by this title, the declaration, or the bylaws. The court may award reasonable attorney fees and costs."  The Association challenged the claimed attorney's fees, arguing that any legal fees incurred on common-law claims were distinct from the VCIOA claims to which the fee-shifting statute applies. On appeal the Association argues that P&B's VCIOA claims do not revolve around a common core of facts with the common-law claims. We acknowledge that this is a close case, but conclude that the trial court did not abuse its discretion in determining that most of the evidence presented was relevant to all claims.
Compensatory damages. We agree with the Association that the evidence of lost revenues relied upon by the trial court cannot support its finding concerning lost profits.  The trial court here compared P&B's patronage after the Association placed the guardrail across the entrance with P&B's patronage during a comparable period the prior year. But without evidence of the impact of the reduction in patronage on P&B's costs, the court could not reliably quantify the lost profits. We simply do not know what costs, if any, P&B was able to avoid as a result of the drop in covers. On this record, any leap from lost revenues to lost profits is necessarily speculative.  P&B's evidence need not have established its fixed and avoidable costs with "mathematical exactness," but P&B was required to present sufficient evidence to support a reasonable determination of its lost profits. In this case, P&B did not present even generalized evidence that its costs remained stable during the period in question.
Note: It is puzzling, probably because of a failure of advocacy, that the Court did not cite or apply the new punitive damage standards regarding reprehensibility and recklessness announced in Fly Fish Vermont v. Chapin Hill Estates, 2010 VT 33 (Burgess, J.)

Tuesday, June 23, 2015

Action on a judgment not barred by 8-year statute of limitations, because statute was tolled by acknowledgment and partial payment of the debt.

Flex-A-Seal, Inc. v. Safford, 2015 VT 40 (27-Feb-2015)


REIBER, C.J. Plaintiff appeals from the dismissal of its complaint to renew a judgment.. The trial court found the complaint barred by the statute of limitations, 12 V.S.A. § 506. On appeal, Plaintiff argues that:the statute of limitations was tolled by by Defendant’s acknowledgment and partial payment of her debt. We reverse the trial court’s decision.

The statute as amended in 2010, now provides that “[a]ctions on judgments and actions for the renewal or revival of judgments shall be brought by filing a new and independent action on the judgment within eight years after the rendition of the judgment, and not after.” 12 V.S.A. § 506.

In October 2002, the court issued a stipulated judgment order pursuant to the parties’ agreement, granting judgment to Plaintiff against Defendant in the amount of $230,000. After plaintiff later filed a motion for trustee process against earnings, the court in November 2004 issued a stipulated order stating the original judgment amount, the judgment amount with interest as of October 28, 2004, and providing for the suspension of post-judgment interest.

In April 2012, Plainiff filed this action to renew its judgment..The court sua sponte questioned if the action was timely filed. The court ultimately rejected Plaintiff's argument that the relevant final judgment for purposes of 12 V.S.A. § 506 was the 2004 stipulated order rather than the 2002 judgment. The court cited Ayer v. Hemingway, 2013 VT 37, 193 Vt. 610, 73 A.3d 673, where we held a stipulated payment plan was not a new “final judgment” from which a new eight-year statute-of-limitations period began to run. Id. ¶ 18

In light of Ayer v. Hemingway, and Nelson v. Russo, 2008 VT 66, 184 Vt. 550, 956 A.2d 1117 (mem.), the trial court concluded that the common law rule that an acknowledgment of the existence of a debt “has the effect of starting the statute of limitations running anew” no longer applies to judgments. In Nelson, this Court clarified that under 12 V.S.A. § 506, a plaintiff must file a new and independent action to renew a judgment and cannot do so by motion. 2008 VT 66, ¶ 9. The Court reiterated this principle in Ayer, 2013 VT 37, ¶ 15.

Our case law holds that the same tolling rule applicable to contract actions applies to actions on judgment debts,  Olcott v. Scales, 3 Vt. 173, 178 (1831), like the instant case, involved a plaintiff’s attempt to collect a judgment debt. The Olcott court expressly held that in such cases, the acknowledgement of a debt, in terms that admit it to be due, removes the effect of the statute of limitations. 3 Vt. at 178. In Gailer v. Grinnel, 2 Aik. 349, 1828 WL 1161 (1828), the Court similarly held that, in actions of debt on judgment, an acknowledgment of the debt within the statute-of-limitations period removed the statutory bar. Id. at 354 The Court held that:
The defendant’s liability was fixed by the judgment, and as the statute goes upon the presumption of payment after the lapse of eight years, the acknowledgment of the debt within eight years shows that it has not been paid, and thus, by removing the presumption, takes the case out of the statute. The acknowledgment . . . revives the debt ab initio, and the plaintiff recovers, not on the ground of having a new right of action, but that the statute, by reason of the acknowledgment, does not apply to bar the old one.
Id. at 353

Defendant has neither argued nor briefed the question of whether we should overrule Gailer and Olcott in light of the holdings and rationales of Ayer and Nelson. While we note some possible tension among those decisions, we leave to another day, following complete briefing, any consideration of that issue.

As our case law holds that the same tolling rule applicable to contract actions applies to actions on judgment debts, we reverse the court’s decision to dismiss and we remand for further proceedings.

Negligent misrepresentation, economic loss rule, consumer protection. Certifying engineer not liable for failed septic system.

Glassford v. Dufresne & Associates, P.C., 2015 VT 77 (12-Jun-2015)

DOOLEY, J. Plaintiffs appeal a decision denying summary judgment to plaintiffs and granting summary judgment to defendant Dufresne & Associates, P.C. on plaintiffs’ claims of negligent misrepresentation and violation of the Vermont Consumer Protection Act (CPA). The superior court held that plaintiffs’ negligent misrepresentation claim failed because plaintiffs did not see defendant’s certification until the proceedings in this case and therefore did not rely on the alleged misrepresentation. With respect to the CPA claim, the court held that the claim failed because the parties did not contract for a sale of goods or services as required under the CPA. Plaintiffs appealed. We affirm.

Plaintiffs claim only economic losses, which usually are precluded in a tort action. Plaintiffs argued below that their case fits into an exception to the economic loss rule where a special relationship exists between the parties, particularly in the context of professional malpractice. According to plaintiffs, that special relationship was created by defendant’s statutory duty to file a certificate with the Agency. The superior court found the proper framework for plaintiffs’ claim under the common law tort of negligent misrepresentation, as defined in Restatement (Second) of Torts § 552 (1977), which provides a cause of action for “information negligently supplied for the guidance of others.” We previously have adopted this section of the Restatement for claims of negligent misrepresentation, and do so here. We conclude Restatement § 552 governs the claims of negligent misrepresentation and that plaintiffs do not have a valid claim under § 552. The superior court properly granted summary judgment for defendant and properly denied summary judgment for plaintiffs.

Liability for negligent representation under § 552 (2) attaches “only to those persons for whose benefit and guidance it is supplied.” Restatement § 552 cmt. h. Plaintiffs are homeowners who purchased their home direct from the builder. The builder hired defendant to certify that the on-site mound sewage disposal system constructed for the home satisfied state permitting requirements. Plaintiffs were not the intended recipient of the certificate. The certificate was provided to the Agency for determining compliance with the permitted design and was not intended for use by homebuyers in deciding whether or not to affect a purchase. That homebuyers, like plaintiffs, may at some point obtain the information is merely incidental and does not create a cause of action under subsection (2).

Liability for negligent representation under § 552 (3) attaches to “one who is under a public duty to give the information” and extends to loss suffered by any of the class of persons for whose benefit the duty is created.” Plaintiffs’ claim fails under subsection (3), because plaintiffs demonstrated no actual, or direct, reliance on the certificate.

A negligent misrepresentation claim requires a plaintiff to rely directly on the defendant’s misrepresentations and not on a third party’s reliance on such information. Plaintiffs never saw the certificate until after the sewage disposal system failed. The broadened liability under the public duty exception does not eliminate this need for direct reliance.

It is true the plaintiffs’ attorney viewed the certificate and prepared the title report, and plaintiffs relied on the marketability of the title in their decision to close on the transfer of title to their home. But the closing attorney’s interest in defendant’s certificate was based entirely on his opinion that the existence of defendant’s certificate was a requirement of good title under Bianchi v. Lorenz. If the attorney’s reliance on the certificate could be imputed to plaintiffs, it would only be reliance that plaintiffs obtained good title, not reliance sufficient to satisfy § 552. Actual reliance, as required under § 552, is a subjective state of mind, focusing on what a plaintiff “considered to be important in deciding to enter into the transaction in which the misrepresentation occurred,”

Under the CPA a plaintiff may recover damages only from the “seller, solicitor, or other violator.” § 2461(b). Relying on State v. Stedman, 149 Vt. 594, 547 A.2d 1333 (1988), as well as decisions from other jurisdictions, we have held that a person cannot be liable as an “other violator” unless he or she directly was involved in the transaction that gave rise to liability. Knutsen v. Dion, 2013 VT 106, ¶¶ 19-20 195 Vt. 512, 90 A.3d 866,. In Knutsen, we rejected plaintiffs contention that the Vermont Association of Realtors was an “other violator” because it placed a form which contained unfair provisions on its website.

Here there is no allegation that defendant had any interaction with plaintiffs. Defendant did not supply the permit to plaintiffs or any other prospective purchaser. The law required that the certificate be sent only to the government agency that issued the permit. There is no allegation that the seller used the certificate as part of its sales pitch, and no allegation that defendant had any part in the sales. The certificate was unrelated to the sale. The Knutsen standard for CPA liability requires that a person be directly involved in the transaction that gives rise to the claimed liability. That standard is not met.

ROBINSON, J., dissenting. Because I believe that the majority draws an artificial distinction between the significance of the certifications for marketable title and their significance in verifying that the wastewater system has been inspected and was constructed as designed, and because I do not believe the majority has afforded plaintiffs the benefit of favorable inferences from this summary-judgment record, I respectfully dissent.

If the lawyer had known the statements were inaccurate, and for purposes of this summary-judgment motion we assume that they were, a factfinder could most certainly infer that the lawyer would not have advised the plaintiffs to proceed without taking further steps to ensure that the wastewater system was properly constructed. By inferring as a matter of law that the truth of the statements in the certificate was of no consequence to plaintiffs’ lawyer—who had a fiduciary duty to them in connection with this transaction—the majority has failed to draw reasonable inferences in favor of the nonmoving party.







A Note on recovery for economic loss based on fraudulent or negligent misrepresentation.

Section 552 of the Restatement permits recovery for “pecuniary loss” caused by justifiable reliance upon false information negligently supplied for the guidance of others in their business transactions by one acting in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest.

On its face the Restatement allows recovery against both professsionals and non-professionals for certain negligently caused economic loss. Fraud is another tort that permits recovery for economic loss, without physical injury.

Some have argued that the economic loss rule trumps both Section 552 and fraud cases generally. R.C. Anzivino, The Fraud in the Inducement Exception to the Economic Loss Doctrine, 90 Marq. L. Rev. 921, 931-34 (2007).

Without controlling Vermont precedent the local federal court has allowed fraud in the inducement and constructive fraud claims to proceed. Sherman v. Ben & Jerry's Franchising, Inc., No. 1: 08-CV-207 (D. Vt. Aug. 10, 2009); Mount Snow, Ltd. v. Alli, No. 2: 12-cv-022-wks (D. Vt. May 30, 2012).
The local federal court, in contrast, on three occasions has applied the economic loss doctrine to bar negligent misrepresentation claims involving only economic loss, Hunt Constr. Group, 2008 U.S. Dist. LEXIS 93754, at *15-16; Vt. Country Foods, Inc. v. So-Pak-Co, Inc., No.1 :02-CV-83 (D. Vt. Jul. 28, 2004) (unpublished order), aff’d, Vt. Country Foods, Inc. v. So-Pak-Co., No. 05-3429, 170 Fed. Appx. 756 (2d Cir. 2006) (summary order); City of Burlington v. Zurn Indus., 135 F. Supp. 2d 454,461-62 (D. Vt. 2001).

The Second Circuit certified this issue to the Vermont Supreme Court but the case settled without a ruling. Hunt Construction Group, Inc., v. Brennan Beer Gorman / Architects, P.C..  607 F.3d 10 (2d Cir 2010) ( certifying the question, "Does the economic loss doctrine apply to claims of negligent misrepresentation?")  

Today, the Glassford Court implicitly holds the economic loss rule does not preclude a negligent misrepresentation claim. 

The Court mentions the economic loss rule and its professional services exception, and then analyzes and strictly confines the potential liability of the defendant engineer to the bounds of the Restatement § 552. It refuses to examine the potentially broader tort liability for breach of professional duty (malpractice). 

This is a consistent pattern. The Court has never expressly applied the "professional services" exception to the economic loss rule to allow recovery in tort for economic loss. See Hunt Const. v. Brennan Beer Gorman/Architects, 607 F.3d 10 ( 2nd Cir 2010)(“we know of no case in which the Vermont Supreme Court has actually found the exception to apply”); see, e.g., Walsh v. Cluba, 2015 Vt 2, ¶ 30 (refusing to apply exception to allow owner to recover from occupant where no professional relationship such as as doctor-patient or attorney-client exists); EBWS, LLC v. Britly Corp., 2007 VT 37, ¶¶ 31–32, 181 Vt. 513, 524–25, 928 A.2d 497, 508 (design build contractor not liable for economic loss due to negligent design because it did not provide specialized professional services); Long Trail House Condo. Ass’n v. Engelberth Constr., Inc., 2012 VT 80, ¶ 22, 192 Vt. 322, 59 A.3d 752 (general contractor not liable in tort for economic loss because it was hired to perform the services of a contractor, not that of an engineer, architect or other professional); Wentworth v. Crawford & Co., 174 Vt. 118, 127 (2002) (provider of vocational rehabilitation services hired by employer not within exception because plaintiff failed to "identify any professional standards to which entities like [the defendant] must adhere"); Springfield Hydroelectric Co. v. Copp, 172 Vt. 311, 316, 779 A.2d 67, 71 (2001 ) (employees of the power exchange "did not hold themselves out as providers of any licensed professional servic.").

Probation condition did not prohibit chance sexual encounter.

State v. Galanes, 2015 VT 80 (12-Jun-2015)


DOOLEY, J. Defendant appeals an order concluding that he violated a condition of his probation requiring him to notify his probation officer if he is planning to begin a sexual relationship. We reverse.

Defendant was convicted of several felony and misdemeanor offenses and placed on probation. with conditions regarding sexual relationships. Included in the list of conditions was Condition 45, which states:
You must inform your [probation officer] of the name and contact information of any person with whom you are planning to have a date or with whom you are planning to begin a dating, sexual or romantic relationship, prior to the date or beginning of the relationship.
The trial court found defendant violated the condition when he had a sexual encounter with his housekeeper after he came out of the shower in a towel while the housekeeper was in the bedroom folding laundry. The trial court said, “[this is] the kind of thing that [defendant] should have anticipated happening, in light of the fact that they’ve had sex before.”

Viewed as a whole, the condition does not appear to apply to this chance sexual encounter. The term “sexual relationship” seemingly requires an association of greater duration and multiple sexual encounters. The concept of “planning” is inconsistent with the concept of a chance sexual encounter.

We therefore hold that Condition 45 did not give defendant fair notice that his conduct would violate the condition and be grounds for revocation of his probation. Accordingly, we must reverse the trial court’s decision to revoke defendant’s probation for violation of this condition.

BURGESS, J. (Ret.), Specially Assigned, dissenting. It has been well and truly said that the law “sharpens the mind by narrowing it. Nowhere is this more apparent than in legal disputes over language, where even terms like “sexual relations” have been famously parsed to the point of absurdity. Therein lies the conundrum. Fairness requires clarity—especially when a defendant’s liberty is at stake—but meaning is inherently subjective. The challenge for lawyers and judges, therefore, is to accommodate the limitations of language with the requirements of a common understanding.

The question here is not whether defendant should have informed his probation officer before engaging in the sexual “encounter” with his housekeeper but instead whether he should have informed his probation officer before engaging in a sexual “relationship” with his housekeeper. The housekeeper also testified that defendant had been for three years “one of the very best friends that I’ve ever had,” and that they had had sex before the incident that led to the violation. Under the majority’s own definition it is reasonable to conclude that defendant had a “sexual relationship” with his housekeeper during time period when the probation condition requiring notice to his probation officer was in place.

Accordingly, defendant was on fair notice, and the judgment should be affirmed on this basis, I am authorized to state that Chief Justice Reiber joins this dissent.

Monday, June 22, 2015

Public employment. Post-termination judicial remedy, alone, is not sufficient due process.

Hallsmith v. City of Montpelier, 2015 VT 83 (19-Jun-2015)

ROBINSON, J. This appeal calls upon us to determine whether a post-termination judicial remedy, in the form of a breach-of-contract action or a Vermont Rule of Civil Procedure 75 petition, is sufficient to satisfy the due-process rights of an employee whose employment is protected by a “for cause” requirement and who is terminated by a municipal employer following pre-termination proceedings that do not by themselves satisfy due process. Appellee petitioned for Rule 75 relief, arguing that the City of Montpelier failed to provide her sufficient due-process protections in terminating her employment. The trial court agreed and ordered the City to provide a new post-termination grievance hearing that fully satisfies her due-process rights. the City urges us to hold that recourse to the courts alone provides sufficient post-termination due-process protections in a case like this. We affirm.

We conclude that the availability of post-termination judicial remedies, as opposed to an administrative remedy, does not satisfy due process in a case in which a full administrative hearing does not occur pre-termination. We reach this conclusion for several reasons. First, post-termination judicial review would effectively shift the burden of proof from the City to the terminated employee. Second, post-termination judicial review often provides less timely relief than administrative proceedings. Post-termination judicial review would also risk transforming “our [trial] courts [into] hearing officers for municipalities.” In the context of a tenured municipal employee protected by a “justifiable cause” provision, We hold post-termination administrative proceedings are required to satisfy due process where pre-termination proceedings do not include a full hearing but instead meet only the minimum pre-termination requirements of Loudermill. In the absence of post-termination administrative proceedings, neither a Rule 75 appeal nor a breach-of-contract action filed in the trial court provide sufficient post-termination process to satisfy the Due Process Clause.

Property owner has absolute right to trim encroaching branches and roots from a neighbor’s tree.

Alvarez v. Katz, 2015 VT 86 (19-Jun-2015)

EATON, J. This is a case of protracted litigation, with extensive motion practice, regarding the proposed removal by defendants of the encroaching roots and branches of a maple tree owned by plaintiffs.. The superior court found it more likely than not that removal of 50% of the tree’s roots and branches as contemplated by defendants would result in the premature death of the tree.. The court enjoined trimming of more than 25% of the roots and branches of the tree. We vacate the injunction and reaffirm Vermont’s long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree.

Vermont has long recognized ownership of property to include the ownership of that which is below the ground and that which is attached overhead. The right of a property owner to trim non-boundary trees back to the property line has been clear for at least the last 100 years. Cobb v. W. Union Tel. Co., 90 Vt. 342, 344, 98 A. 758, 759 (1916) (“[I]t is a sound principle that where a tree stands wholly on the ground of one and so is his tree, any part of it which overhangs the land of an adjoining owner may be cut off by the latter at the division line.”). This rule applies despite the likely fatal effect the proposed root-and-branch cutting would have on the encroaching tree,

A tree standing on the division line between adjoining proprietors, such that “the line passes through the trunk or body of the tree above the surface of the soil, is the common property of both proprietors as tenants in common.” Skinner v. Wilder, 38 Vt. 115, 116-17 (1865). Neither may hew down his part of the tree to the property line and destroy the part belonging to the other. Id. at 117. The property line here does not pass through the trunk or body of the tree. The superior court was incorrect that this tree is “effectively” a line tree.