Yard & Garden Line News Volume 8 Number 9                                                               July 1, 2006

Features this issue: Hazard Tree  Limbs on Private Property Tree-trimming and Utility Companies GarlicFest Coming in August! Emerald Ash Borer Found In Illinois Garden Calendar Editorial Notes

Hazard Trees and Limbs on Private Property
Lorrie Stromme, attorney and Hennepin Co. Master Gardener

Rotten silver maple. Photo credit: Beth Jarvis

What is a "hazard tree?
A hazard tree is a tree with a defect, plus a target. An example is a rotten tree a hazard) by a picnic table (the target).

How can I identify a hazard tree?
Examples of obvious defects include a dead tree limb, the unseasonable lack of leaves, visible decay, a hole or crack in the trunk, or a tree leaning dangerously to one side.¹ Trees with obvious defects can become problems, because they can fail and cause property damage or human injury.

Who is responsible for damage caused by a hazard tree?
A tree owner is generally responsible for damage caused by a hazard tree. A tree owner is not expected to be a tree expert, but s/he is expected to recognize obvious symptoms of a problem. The reason for concern is that pre-existing defects can predispose a tree to failure. However, some defects are not obvious to the non-expert. If the defect is not obvious, the tree owner probably will not be held responsible if the tree fails.

If your neighbor's tree falls and injures you or your property, your neighbor is responsible for the damage done IF the tree defect was obvious and the neighbor failed to correct the problem. However, if the tree defect was not evident, then your neighbor will likely not be responsible for the damage. The reason is that your neighbor cannot be held legally responsible for a problem of which he had no notice or opportunity to fix. If there is a question about the tree's condition, consult a tree-care expert. Look for a "certified arborist" in the Yellow Pages under "tree companies." Some communities hire tree inspectors who are trained to identify hazard trees and diseased trees in both public spaces and private yards.

What can I do if I disagree with a tree inspector about the condition of my tree?
If a tree inspector or housing inspector has condemned your tree as a hazard tree or diseased, you can ask the inspector to identify the defect and explain why it is a hazard. If you disagree, contact a certified arborist and get a second opinion. If the arborist agrees that the tree inspector made an error about your tree's condition, give the tree inspector a copy of your arborist's written opinion. In the case of diseased trees, a lab test can be done to confirm the presence of a disease.

What should I do if my neighbor doesn't deal with a hazard tree that threatens my property?
Talk to your neighbor! Ask her to view the situation as you see it from your side of the boundary line. Ask her to fix the problem. You're putting the neighbor on notice that a defect exists. Write letter to your neighbor, describing the problem (keep a copy). Document the problem with photos. Consult a tree-care expert, an arborist. Try mediation. As a last resort, you can sue. Small-claims court deals with claimed losses up to $7,500.

Can I go onto my neighbor's property to cut down a hazard tree or limb?
No! Cutting down a tree on another person's property without permission is trespass and carries a stiff penalty. In Minnesota, whoever intentionally cuts down a tree without the owner's permission can be assessed three times ("treble") the amount of monetary loss suffered by the tree owner.² Tip: Don't engage in stealth tree-cutting when your neighbor has gone on vacation. You're setting yourself up to pay three times your neighbor's loss.

Who is responsible for cleaning up fallen branches or a fallen tree?
If your neighbor's tree or branches have fallen into your yard, they have become a nuisance³, preventing you from the comfortable use and enjoyment of your property. Your neighbor has an obligation to "abate" or remove the nuisance, regardless of whether your neighbor knew that his/her tree had an obvious defect.

Split trunk Photo credit: Mn DNR and USDA Forest Service.

When can my neighbor claim that that the tree failed because of an act of God?
An act of God is a force of nature that is both the sole cause of damage and unexpected or unforeseeable. For example, a tree downed by lightning is an act of God, if lightning is the sole cause of the tree's falling and if the tree did not already have an obvious defect. Your neighbor is not responsible if the tree's failure is solely caused by act of God. However, if the tree had an obvious defect before the tree fell during a windstorm, then the "act of God" defense will not shield your neighbor from responsibility.

What role does insurance play?
Bear in mind that insurance is a contract between you and your insurance company. Your insurance company can issue you a check, but cannot give you legal advice about your liability with respect to your neighbor. If your neighbor sues you, YOU are the one in court, not your insurance company. Talk to a lawyer about your legal responsibilities, not your insurance agent.

There are two basic types of insurance: casualty-loss insurance and liability insurance. Casualty insurance covers the loss you have suffered from fire, theft, hail, vandalism, and other calamities. It is often subject to a cap, such as $500 for removal of tree debris. Liability insurance covers a loss suffered by someone else, for which you can be held legally responsible. For example, if someone slips on your icy steps and breaks his neck, your insurance policy provides coverage.

Where should I go to seek legal help, if needed or if the neighborly approach doesn't work?
Look in the Yellow Pages under "Attorneys/Real Estate or Real Property Law." Also, look in the Gray Pages of the phone directory for Lawyer Referral and Information Service. This service's attorneys often provide a half-hour free consultation to people referred to them.

¹For photographic examples of hazard trees, please see the U.S.D.A. Forest Service's Hazard Tree web page: http://www.na.fs.fed.us/spfo/hazard/index.htm. ² Minn. Stat. §561.04
³"Anything which is …an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance." Minnesota Statute §561.01

Tree-trimming and Utility Companies
Lorrie Stromme, attorney and Hennepin Co. Master Gardener

V-shaped pruning Photo credit: Beth Jarvis

What is a utility easement?
An easement is the right to use part of another's property for a particular reason. Utility companies have easements across strips of land in order to construct and maintain overhead or underground power lines. The property owner owns the land, but the utility company has a right to enter the strip of land designated as a utility easement. Tree limbs can break during storms and take down power lines. The utility easement allows utility companies to trim trees and branches near power lines to avoid power outages. Xcel Energy, for example, spends more than $20 million on its year-round tree-trimming program in the upper Midwest, trimming trees along more than 8,500 miles of power lines to assist in its efforts to provide reliable and safe electric service.¹

What rights does a utility company have to trim trees in my yard or next to my property?
Courts recognize the right of utility companies to trim or remove trees within their easement, as long as the work is reasonable and necessary to construct, use, operate, or maintain power lines in the easement area. The utility company tries to remove power-line obstructions in a way that minimizes damage to the property the power lines cross.

A common complaint is that utility-pruning can be unsightly. Tall trees are sometimes pruned to remove the inner branches that touch power lines, resulting in a deep v-shape in the tree's crown. The power line goes through the v-shaped area. Even if the result is not aesthetically pleasing, however, the pruning is balanced, and the tree can survive.

Can I object to the removal a tree in a utility easement?
In a recent court case,² the Minnesota Supreme Court confirmed that property owners have an interest in the trees on city land in front of their property and standing to sue the utility company that removed a boulevard tree. So, you can object to the tree's removal. However, the Court also said that your right to object is subordinate to a utility company's right to trim or remove trees to keep power lines clear. The utility company can remove a tree "if the removal was reasonable and necessary to construct, use, operate, or maintain its power lines." ³

What should I do if the tree on my property is touching a power line?
An electrical power company will respond to emergency requests to trim trees or limbs that interfere with power lines or pose a safety hazard. However, electrical power companies will generally not trim trees along power lines from utility poles to houses, unless there is a safety hazard. The power company will de-energize power lines if their customers hire professional tree-service contractors to trim the tree limbs. Call Xcel Energy's 24-hour customer service line at 1-800-895-4999 to schedule an appointment for de-energizing the line to your house.

Topped spruce. Photo credit: Beth Jarvis

Can I plant a tree near power lines?
Before planting a tree in your yard, look up. Are there utility lines overhead or close by? If so, select a variety of tree that will not grow so tall that it will touch utility lines, or the power company may insist on its removal. Or find a location in your yard without overhead utility lines. In either case, do a little research about the tree you want and find out how tall and wide the tree will be at its maturity. A good resource is "The Right Tree" brochure. Also, remember to call Gopher State One (1-800-252-1166 or 651-454-0002) at least three working days before you dig, to find out where buried utility lines are located in your yard.

My tree fell and took down a power line. Am I responsible for my neighbors' losses as a result of the power outage? When is the utility company liable? You are not responsible for your neighbors' losses unless you had a special relationship with them . In law, this relationship is called a "duty." A duty can be intentionally created, such as when you invite someone on to your property or agree to be the caretaker of another's property. A duty can also be created by circumstances, like a duty to eliminate a danger, such as a rotten tree on your property that could fall onto an abutting busy city sidewalk. However, if there is no duty, there is no liability for negligence.

An example that illustrates this duty is a court case involving a power outage that resulted in the death of a number of pigs on a hog farm. In that case, the limbs of a willow tree fell onto a power line and caused a power outage. The tree-owner's neighbor operated a hog farm. The power outage left the hog farmer's barn without ventilation, resulting in the death of many pigs. The hog farmer sued his neighbor and the power company. The court ruled that the tree-owner had no duty to protect the hog farmer, because there was no special relationship where the hog farmer had entrusted his safety to the tree-owner.

The court also ruled that the power company was not liable to the hog farmer. The power company had a Rate Tariff which provided that the company would not be responsible for any loss or damage caused by a power outage unless the company had committed gross negligence, which is defined as "very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected."

To avoid potential conflicts with neighbors or utility companies, manage your trees in a responsible way: plant the right tree in the right place, and hire an arborist to remove hazardous limbs before they cause liability issues.

¹ www.xcelenergy.com
² Miller-Lagro v. Northern States Power Company, 582 N.W.2d 550 (Minn. 1998)
³ Id. at 552.
⁴ The Right Tree is a free brochure available by calling Xcel Energy at 1-800-895-4999. It is also available online at www.mnpower.com/treebook/.
⁵ See, e.g., Donaldson v. Young Women's Christian Ass'n, 539 N.W.2d 789, 792 (Minn. 1995). Examples of special relationships include trains or buses and their passengers; innkeepers and their lodgers, etc.
⁶ Timmerman v.Manguson v. Northern States Power Company, an unpublished opinion of the Minnesota Court of Appeals, C6-95-2565, May 21,1996.
⁷ State.v. Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480, 485 (1946), quoting Altman v. Aronson, 121 N.E. 505, 506 (1919).


GarlicFest Coming in August!

Gilroy California, look out! Minnesota's having a garlic festival too! It's the first annual Minnesota Garlic Festival, a premiere event for lovers of garlic and good times, and will promote gourmet garlic farming in Minnesota. Family-friendly, fun-filled and fragrant, this festival features local foods, chefs, music, artisans, games, competitions, and lots of garlic - all in support of a healthy environment, family farms and vital rural communities in Minnesota.

Minnesota garlic growers will have their fresh 2006 gourmet garlic available, that will keep in your kitchen for up to a year. There are over 100 varieties of garlic grown here, all planted in October and harvested in July. Other than the great taste, it is well documented that garlic is one of the healthiest foods you can eat. Sponsored by the Sustainable Farming Association of Minnesota, Crow Wing chapter.

The date is: Saturday, August 12, from 11:00 a.m. to 9:00 p.m. The Wright County Fairgrounds, Howard Lake, will be rocking and reeking. Admission is $5 for adults, $3 for kids under 12. Free on-site parking.

For more info on the entertainment, etc. go to: http://sfa-mn.org/pages/garlicfest/
Contact: Jerry Ford, Chairman - Crow River Chapter, 320-543-3394

Emerald Ash Borer Found In Illinois
Jeffrey Hahn, Assist. Extension Entomologist

Emerald ash borer Photo credit: USDA Forest Service.

Emerald ash borer, Agrilus planipennis, is a destructive insect pest of ash trees. And it has been found a little closer to Minnesota when it was discovered recently in northern Illinois. It was found in a subdivision located east of the town of Lily Lake in Kane County, Illinois. Lily Lake is in the northwest suburbs of Chicago south of I-90.

The homeowner had a found a beetle which was suspected, and confirmed, to be an emerald ash borer. An inspection of the property discovered several infested trees. A search of the neighborhood detected six additional infested trees within a five block radius. It is not clear how this beetle arrived in Illinois but it is possible that it was inadvertently transported in firewood from an infested area in Michigan.

Emerald ash borer is not native to the U.S. having arrived here originally from Asia. First found in Detroit in 2002, the emerald ash borer has since spread and has been found in Ontario, Canada, Ohio, Maryland (they were contained and eradicated here), Indiana, and now Illinois. Experts have estimated that this insect has killed over 15 million ash. Essentially no ash is safe from this insect as it attacks all species of this tree, including green, white, and black, young trees as small as 2 inch diameter to mature trees, as well as both unhealthy and healthy trees.

You can identify an emerald ash borer from its slender, somewhat bullet shaped body and its 1/3 to 1/2 inch long size. What is most striking about this insect is its bright iridescent coppery green color. Emerald ash borer is a type of metallic wood boring beetle (family Buprestidae) and is closely related to native borer species, such as the bronze birch borer, Agrilus anxius, and the twolined chestnut borer, Agrilus bilineatus. However, the emerald ash borer is a little larger and more conspicuously colored than these species.

There is at least one native insect though that you can easily confuse for an emerald ash borer, the six-spotted tiger beetle. This beetle is a similar size and is a bright iridescent green color. And both are active at similar times of the year, i.e. May into July. Although at first they look alike, mostly because of their color, if you place specimens of both side by side, you would be able to clearly see that they are different insects.

Tiger beetle Photo credits: Jeff Hahn

Six-spotted tiger beetles are ferocious predators possessing conspicuous eyes and mandibles (jaws) which emerald ash borers lack. The area behind the head of a six-spotted tiger beetle is somewhat narrowed but then the wing covers get wider. They are commonly found on the ground where they move quickly and fly short distances if they feel threatened. When they land, they turn in the direction they just came from to see if anything is following them. Emerald ash borers do not exhibit this kind of behavior.

Despite the fact that a homeowner tipped off government officials of the infestation by finding the actual insect, you are more likely to notice damage to trees before finding an emerald ash borer. However, when trees are first attacked by emerald ash borer, the symptoms are inconspicuous and typically not noticed. Larvae generally attack the upper trunk the first year but later can be found throughout the trunk. The following year when adults emerge, they create small D-shaped exit holes which can be seen if you look closely.

By the end of the second year, thinning foliage and dieback in the crown becomes apparent. Epicormic sprouts may also form on the trunk and some major branches. You may also see vertical splits in the bark, due to callous tissue forming over old galleries. If you remove bark on the trunk, you may find larval galleries. By the third year, there is severe dieback and little foliage. Trees typically are killed in three years.

Illinois was able to discover their emerald ash borer infestation because of the education and awareness of the public to this problem. It will also be important for residents of Minnesota to be know this insect and report suspicious borers or damaged ash trees they encounter. We have a large population of ash trees in the state in both our urban landscapes and our forests. This borer would cause severe destruction to them if it became established here.

So what can we do? First, if you travel to emerald ash borer quarantine sites in Michigan or other infested areas, don't bring back any ash firewood or other wood products. Emerald ash borers can easily survive trips in wood which can allow them to be introduced into areas where they have not been previously found.

If you see an insect in Minnesota that you think may be an emerald ash borer or you find an ash tree that has suddenly started to decline and die, contact the Minnesota Department of Agriculture 651-201-MOTH (6684) or 1-888-545-MOTH (6684) to report it. Although the odds of you finding the insect or a damage tree may not be that good, eventually this insect will be found here and someone will be the first to discover it. The sooner we find it, the sooner we can take steps against it.

For more information see the following web site, http://www.emeraldashborer.info/ .

Get the low down on this month's insect pests at Insects
http://www.extension.umn.edu/projects/yardandgarden/EntWeb/Ent.htm

Contributors: Nancy Rose Patrick Weicherding Bob Mugaas

Astilbe and lilies Photo credit: Beth Jarvis

Fruit and flowers:
July is mostly just weeding and watering. The soil is warm enough that you can mulch your garden plants to not only reduce weeds but retain soil moisture. It is particularly critical that you keep tomatoes evenly watered to avoid blossom end rot. Blossom end rot is a physiological disorder exascerbated by uneven watering that causes dark, dry patches on the blossom (bottom) end of tomatoes in mid-summer.

Check containers daily and water as needed. Add liquid fertilizer half-strength if the potting mix was not fertilized at planting. Apply fertilzer water to dampened soil. Don't water droughty plants with fertilizer water.

Now's the time to spray apples for apple maggot. The wasp lays eggs on apples in early July. http://www.extension.umn.edu/distribution/horticulture/DG1007.html

Protect youself from West Nile virus by wearing protective clothings, using sprays or avoiding dusk and dawn outdoors. To reduce mosquito habitat, empty and refill bird baths reqularly and empty any containers that hold standing water for over a few days.

You can still seed green beans, cukes, short-season sweet corn, and zucchini. Lettuce might work in a shady spot.

Hand pick those tiny green cabbage looper caterpillars or start spraying w/Bacillus thuringiensis (BT) on your cabbage family crops. These include: broccoli cauliflower, cabbage, Brussels sprouts, etc. It's so gross to find cooked worms in the pot. Be sure to soak any home-grown broccoli or cauliflower in salted water for about 1/2 hour to kill off unwanted, extra protein. Momma looper's been out scouting gardens. She's white butterfly with a black spot on the top wing.

Rose that bloomed once can be deadheaded. If they have nice rose hips, leave them. Tea roses or grandifloras can be deadheaded to encourage recurrent bloom.

Deadheading annuals will encourage more flowers.

If you've been picking rhubarb and asparagus, it's time to stop. Let the plant grow for itself for the rest of the season.

June-bearing strawberry beds may need to be renovated. Here's how: http://www.extension.umn.edu/yardandgarden/YGLNews/YGLN-July0199.html#strawberries

Deadhead Siberian and German irises, peonies, gas plant and other perennials. You can divide and replant the bearded iris starting mid-July.

Be wary of Dictamnus albus (gas plant) as its foliage can give you a long lasting burn. Gas plant foliage that comes in contact with skin, particularly moist, in the prescence of light can cause phytophoto dermatitis.

Gas plant Photo credit: Beth Jarvis

Trees and shrubs:
Be sure to keep your trees and shrubs well watered if Mother Nature does not! Grass plants compete actively for water.

The dry weather has pretty much put end to this anthracnose infestation.

Forestry folks are seeing lots of maple decline, especially with sugar and red maples located in boulevards. Root mortality, from roots freezing in dry soils, is suspected. Snow insulates the soil and protects the roots.

Aphids are unusually common on woody ornamentals this summer. For more info, see: Aphids on Deciduous Trees and Shrubs at http://www.extension.umn.edu/projects/yardandgarden/ygbriefs/e448aphidstrees.html

There is a bumper crop of boxelder bugs out there. They're thick on mulches, gardens and building walls. Read about what to do at: http://www.extension.umn.edu/distribution/horticulture/DG0998.html Lawns:
Depending on where you live, your lawn could be burnt to a crisp or lush and mowed twice a week.

If you're getting ½" of water per week, that is sufficient to keep grass alive. The half inch is not sufficient on the sandiest sites. Green and actively growing lawns could use 1/4# nitrogen per 1,000 square feet now, especially in wet areas, or if you're watering frequently.

If fertilizing, user a mix with 40-50% slow release as it's less likely to burn.

The crabgrass is showing up all over. Post-emergent crabgrass products may be effective if the weed grasses are at less than the 3-4 leaf stage, Be sure regular lawn grasses aren't drought-stressed if you put a post-emergent herbicide down. Post-emergent crabgrass herbicides will cause as yellowing and dieback in drought-stressed lawns.

Cool-season broadleaf weeds can be spot treated, as long as air temperatures are under 85 degrees (or what ever is stated on the label.)

Prostrate spurge, oxalis, and other warm season annuals may now be flowering and can be treated with post-emergence herbicides.

If the weeds are over-running your lawn, you might ask yourself "Why do I have weeds in the first place?" Health lawns out-compete weeds so think about beefing up cultural practices. Mid-August to mid-September is prime time for lawn renovation. (Something to look foward to.)

Mow high. Be sure to sharpen your mower blade. Dryer grass is tighter grass and more likely to have frayed ends if the blade dull. Clean cuts on grass plants recover more quickly.

Editorial Notes

Bergamot/beebalm Photo credit: Beth Jarvis

I'll finish reporting on my conversation with David Bedford on July 15. There are a few more tree legalities articles as well. Dave Hanson, forester and the guiding light for the Shade Tree Advisor course, will be writing an article some time this summer on growing evergreens in shade. I've asked him to touch on the physiological drawbacks to shade vis a vis incidence of winter injury, among other things.

Please feel free to cut and paste any of the articles for use in your own newsletters. All we ask is that you give our authors credit.

Back issues Yard & Garden Line News are on the Yard & Garden Line home page at www.extension.umn.edu/yardandgarden/.

Deb Brown answers gardening questions on Minnesota Public Radio's (MPR) "Midmorning" program on the first Friday of every month at 10 a.m. The program is broadcast on KNOW 91.1 FM, and available state-wide on the MPR news radio stations. (Scroll down for map.)

For plant and insect questions, visit http://www.extension.umn.edu/askmg. Thousands of questions have been answered, so try the search option in the black bar at the top left of the board for the fastest answer.

If you would like to receive an e-mail reminder when the next issue of the Yard & Garden Line News is posted to the web, just send an e-mail to: listserv@lists.umn.edu (note: the second E in listserve is omitted), leave the subject line blank, then in the body of the message, type: sub yglnewslist or to unsubscribe, enter: unsub yglnewslist

Happy gardening!

Beth Jarvis
Yard & Garden Line Project Coordinator


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