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First District: Cincinnati Neighbors’ Battle Over Bamboo and Buffett Ends in Draw

Image of bamboo stalks (THINKSTOCK)

Burgeoning bamboo along their property line was one seed of discord between Indian Hill neighbors.

Image of bamboo stalks (THINKSTOCK)

Burgeoning bamboo along their property line was one seed of discord between Indian Hill neighbors.

Two neighbors who successfully sued each other for trespassing in a dispute about bamboo, grass, and shrubs along their property line had their victories overturned by an Ohio appeals court last week.

Jeffrey Hayes of the affluent Cincinnati suburb of Indian Hill filed a lawsuit against his neighbor, Pamela Carrigan, because he believed she applied a toxic herbicide to bamboo, shrubs, and grass planted on his side of the border between their properties. Carrigan fed the feud in a countersuit, claiming Hayes’ bamboo was invasive, constituting a trespass and nuisance.

She also complained that Hayes mowed his lawn too early in the morning, blasted Jimmy Buffett music, and dumped branches and animal carcasses on her property, among other allegations.

Although the trial court awarded each of them $11,000 for trespass violations, the First District Court of Appeals determined that neither neighbor proved trespassing, and reversed the damage awards and the trial court’s judgment on the trespassing claims.

Indian Hill Becomes “Margaritaville”
At a trial before a judge, Hayes, his gardener, two Indian Hill police officers, and another Indian Hill official testimony that in May 2014 they saw areas along Hayes’ property line with Carrigan where his bamboo, shrubs, and grass had turned brown. One of the officers, referred to as “rangers” in Indian Hill, said Carrigan told him she had “put something down” because she wasn’t able to maneuver her lawnmower into that part of her 5.2-acre property and because bamboo had spread into her yard. When the ranger asked her what she had used, she said she didn’t want to “incriminate herself.”

Hayes, who lives on 4.7 acres, provided an estimate of $8,657.43 from a landscaping company for the cost to replace the destroyed plants. He asked the court for that amount in economic losses and $2,342.57 in noneconomic damages for trespassing.

Carrigan countered that she believed her property value had diminished because of the bamboo encroachment. She testified that she had applied “weed and feed” on her entire property. Representatives from two landscaping companies presented estimates for extracting bamboo roots in Carrigan’s yard and placing a chemical barrier on her property to stop the bamboo from spreading.

Carrigan also explained that she contacted the rangers 10 times in the summer of 2014 because Hayes was mowing his lawn before 7:30 a.m. She stated that she had to wear earplugs while gardening in her yard because Hayes would crank up Jimmy Buffett songs, including one day when she complained to police that the song “Margaritaville” played over and over on repeat. In addition, she said that Hayes’ dog barks a lot and “tr[ies] to infuriate” her dogs. These actions interfered with the use and enjoyment of her property, she argued.

In 2016, the trial court ruled that each party had committed trespassing, ordered each to pay $11,000, and dismissed their other claims. Hayes and Carrigan each appealed the decision.

Trespass Allegations Not Proven
In the First District’s July 19 ruling, Judge Dennis Deters wrote that a trespass occurs “when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another whereby damages directly ensue,” quoting a 2016 decision. He also noted that trespass must involve intentional conduct.

At trial, Carrigan described bamboo as an invasive and noxious weed. One of her landscapers testified that bamboo can overpower plants. However, the First District concluded that the evidence she offered didn’t establish that Hayes acted intentionally to cause the encroaching bamboo, concluding that the trial court mistakenly ruled Hayes had trespassed.  

The appeals court also found the trial court erred when deciding that Carrigan had trespassed. Judge Deters noted that the trial court lacked adequate foundation to admit Hayes’ landscaping estimate for $8,657 in economic damages because Hayes had no one from the company testify to the estimate’s validity. As for the $2,343 in noneconomic damages, Hayes argued at trial that Carrigan had indirectly trespassed onto his property by using the weed killer. Hayes needed to prove substantial loss for a noneconomic award, the appeals court explained, but he didn’t provide evidence to establish such damage.

Appeals Court Reviews Other Allegations
While Carrigan acknowledged that the periodic loud music, early morning mowing, and barking dogs didn’t amount to trespassing, she maintained they were a nuisance. The appeals court stated that a plaintiff must demonstrate the nuisance created a “physical discomfort” and caused “real, material, and substantial” damages. The First District ruled Carrigan’s annoyance and discomfort weren’t substantial.

The First District also rejected Hayes’ argument for damages based on R.C. 901.51, which states, “No person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another or upon public land.” The appeals court stated that whether bamboo falls into one of these categories is unclear.

In addition, a violator must have acted recklessly for a court to find the statute was violated. The trial court found the weed killer Carrigan applied near the property line crossed over to Hayes’ property damaging his landscaping, but not that she acted recklessly, the First District noted. The appeals court upheld the trial court’s dismissal of this and Hayes’ other claims, as well as the dismissal of Carrigan’s additional allegations.

Judge Penelope R. Cunningham joined Judge Deters’ opinion, while Judge Marilyn Zayas concurred in judgment only.

Hayes v. Carrigan, 2017-Ohio-5867.

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