Thursday, December 10, 2009

Of (Tiger) Woods and Trees and Land Use

Ben Barros points us from Property Prof Blog to an article by Christopher Beam in Slate's "Explainer" feature titled Stopping by Woods: Tiger Woods' car crash caused $200 worth of damage to a tree.  How do you measure that?

According to the article, it turns out that there is some methodology for valuation of trees as property.  It involves a number of factors that you may not find surprising: size, age, species, repair/replacement costs, aesthetics, neighborhood context, contribution to the (literally) underlying real estate value.  There is even a professional Council of Tree and Landscape Appriasers, which publishes the Guide for Plant Appraisal (9th ed.) that instructs one in the methodology of the Replacement Cost Method and the Trunk Formula Method.

This makes eminent sense to anyone involved with land use or real estate.  Trees are a significant contribution to both the hard value of real estate and the more subjective aspects of land ownership or use (beauty, sentimentality, shade).  Both builders and buyers today place a great deal of significance on the contribution of trees to the overall value of any particular piece of land.  It is also a matter of public interest, and tree ordinances have, um, sprouted up in many cities in the U.S. as an intergral component of land use planning.

But all of this is built on the anthropocentric presumption that a tree is in fact a thing that can be reduced to property and "owned" by humans.  Would it be possible to have . . . a tree that owned itself?  Most of you property law experts out there would say no.  But one U.S. city says--yes!  And UGA Prof. Jamie Roskie knows exactly where this is:

Athens, Georgia, of course.  You may have heard of Athens' famous Tree That Owns Itself.  It is a popular tourist attraction, dating from sometime between 1820 and 1832, when Colonel W.H. Jackson executed a deed purportedly conveying ownership of his favorite tree to . . . itself:

I, W. H. Jackson, of the county of Clarke, of the one part, and the oak tree . . . of the county of Clarke, of the other part: Witnesseth, That the said W. H. Jackson for and in consideration of the great affection which he bears said tree, and his great desire to see it protected has conveyed, and by these presents do convey unto the said oak tree entire possession of itself and of all land within eight feet of it on all sides.

Here we are (apparently the current tree is the "son" of the original):

Tree Owns Itself
I wouldn't recommend trying to use any of your fancy human-based property law theory, what with your common law and your learned treatises and whatnot, to mess with the Tree That Owns Itself.  The alleged deed may be lost, and there may be rules about capacity and so forth, but as a point of civic pride most Athenians will agree that the Tree does own itself.  It is accorded self-"ownership" rights through longstanding (if perhaps winking) local custom.  The real property records and plat book do not show the Tree as part of any adjacent property (it's in the public right of way).  Furthermore, Ol' Reliable (i.e., Wikipedia) cites a 2006 statement by county Landscape Administrator Roger Cauthen to the effect that it is the official position of the Athens-Clarke County government that the Tree does, in fact, own itself.  At any rate, it's legally protected as a historic landmark tree

Anyway, it's a good thing Tiger Woods wasn't living nearby in Athens, or else one of Prof. Roskie's former students might have had the chance to represent the Tree (or perhaps the Tree's recognized caretaker Athens Junior Ladies Garden Club as next friend) on contingency.

Matt Festa

http://lawprofessors.typepad.com/land_use/2009/12/of-tiger-woods-and-trees-and-land-use.html

Aesthetic Regulation, Georgia, Historic Preservation, Local Government, Property, Real Estate Transactions | Permalink

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Comments

Matt - The Tree That Owns Itself! How fabulous that you remember it. I've lived in Athens over 10 years and I've never really understood how it worked. But, indeed, everyone here believes the tree owns itself. Does that mean perception is 9/10th of the law?

Posted by: Jamie Baker Roskie | Dec 10, 2009 12:18:45 PM