This Old Tree with Doug Still
The Tree That Owns Itself - Transcript Season 2, Episode 6 April 28, 2024 Doug Still: [00:01] You're listening to This Old Tree, the show about heritage trees and the human stories behind them. I'm Doug Still. Tucked away on a charming residential street in Athens, Georgia, at the top of a hill, just a block or two away from the University of Georgia campus, stands a stately white oak tree. It's a street tree, but it's not in the usual place between the curb and the sidewalk. It has its own circular planting bed that juts out into the narrow street, surrounded by eight or nine granite posts connected with a chain. If you didn't know its history, you might just give it an extra glance as you drove by, as it's one of many old trees in a very leafy neighborhood, but scores of tourists visit it every year. The tree is literally a roadside attraction. On the “Visit Athens” website it's included as one of the 10 things to see upon your first visit to the city, listed right after the Georgia Museum of Art and before the iconic UGA Arch. Why? One of the tree's immediate neighbors, Pat McAlexander explains. Pat McAlexander: [01:12] Well, I suppose it's one of their sites that they put in all the publicity, along with the famous houses, old houses and government buildings. People seem to really like it. A lot of cities have old houses, but how many have a tree that owns itself? Doug Still: [01:29] That's right. This is The Tree That Owns Itself. What and how you might ask? Well, in this episode, we'll find out all about the tree and its legend from two people who know: Athens-Clarke County Community Forestry Coordinator, Mateo Fennell, as well as longtime neighbor, Pat McAlexander, who we've just met. I'll also interview James Komen, a consulting arborist and expert in tree law and related ownership issues. Because you have to wonder, can a tree own itself? Who owns a tree and what does that even mean? And ultimately, we'll get at what it is about this tree's independent ownership status that has captured the attention of so many people for more than a hundred years - and their hearts too. Coming up, the tree that owns itself. I'm Doug Still, and this is This Old Tree. [This Old Tree theme] Doug Still: [02:43] You may have heard about The Tree That Owns Itself before because it's one of those things that occasionally goes viral online, and it's been written about a lot, news sites, travel blogs, public radio. The tree needs a PR agent. It was even once featured on Ripley's Believe It or Not. It somehow titillates people. But I thought I'd blow past Wikipedia and the Google searches and go directly to the person who knows the most about the tree and is also the person who cares for it. Meet Mateo Fennell. Mateo Fennell: [03:15] I am the community Forestry Coordinator for Athens-Clarke County. I've been here a little less than a year, but my position is essentially a liaison for all departments in the government of Athens-Clarke County for all things tree related. So, I make a lot of decisions about trees, or at least county owned trees. Doug Still: [03:37] So, regarding The Tree That Owns Itself , you've only come to it recently, then, but you're in charge of it? Mateo Fennell: [03:43] Yeah. It's considered within the county right of way, so it is under my purview. We take care of it as if it is a county tree, but we do spend a considerable amount more on that tree than any other right of way tree. Doug Still: [04:04] Yeah. You've been doing a lot of original research on that tree and looking at primary documents. What is the famous legend? Mateo Fennell: [04:13] The legend, as it was recounted to me when I came to UGA my freshman year, was that - I actually lived about 2,000ft away from the tree my freshman year at Creswell. So, I was able to walk down to the tree from my dorm room. I did that in the first week of going to school there, because I had always heard about it and I said, “Well, I've got to pay my respects.” I'm a tree lover and went there really quickly. But the story, as it was given to me, as it's given to everyone, is that William Jackson loved the tree. He grew up with this tree. When he was getting older, he decided that he couldn't bear the thought of it being torn down or destroyed in the future. So, he deeded the tree to itself and all the land 8ft around it. And that's the story that we all go by. Doug Still: [05:06] A little pause here. Jackson created and granted a deed for the tree with the tree as the grantee! This took place in 1832, when he sold his house. In fact, there is a stone tablet under the tree that quotes from the supposed deed. It says, “For and in consideration of the great love I bear this tree and the great desire I have for its protection for all time, I convey entire possession of itself and all land within eight feet of the tree on all sides,” William H Jackson. According to Mateo, he came from an influential and well-known family at the time. Mateo Fennell: [05:46] Very well known. Yeah, the Jackson family, when I've gone back to look at deeds, the Jackson name is just all over Athens-Clarke County. But his father was a soldier, a patriot in the Revolutionary War. His father ended up becoming the Governor of Georgia, I believe. Jackson's uncle was faculty at UGA. He and his brother were in the first graduating class of the University of Georgia. That would have been in 1804. And then Jackson himself was on the Board of Trustees for the University of Georgia for almost 40 years. Doug Still: [06:30] I asked Mateo how we know about the story, about the tree's own ownership. When was the story first published? Mateo Fennell: [06:37] It would have been in 1890. Doug Still: [06:40] Much later. Mateo Fennell: [06:41] Yeah. Much, much later. So, 1890 is the first time we have a written record of it of someone describing it. There's a great line in it, actually. It says, “There are only a few in the city who know it, as it was done so long ago as to pass out of the recollection of nearly all.” Doug Still: [07:03] So, there was some oral tradition, according to that article. Mateo Fennell: [07:07] Yeah. Doug Still: [07:08] He read a bit from the piece printed on the front page of the Athens Weekly Banner on August 12th, 1890. Mateo Fennell: [07:15] “This majestic oak cannot be touched against its will, but the trouble is to ascertain what its will may be. The facts, as told us, are these. Way back in the first part of this century, the land containing the tree and that taking in good part of the vicinity, was owned by Col. William H. Jackson. Col. Jackson had watched the tree grow from his childhood and grew to love it almost as he would a human. Its luxuriant foliage and sturdy limbs had often protected him from the heavy rains, and out of its highest branches lie had many a time gotten the eggs of the feathered songsters. He watched its growth, and when, on reaching a ripe old age, he saw the tree standing in its magnificent proportions. He was pained to think that after his death, it would fall into the hands of those who might destroy it.” Doug Still: [08:10] Very artfully written. Mateo Fennell: [08:13] Yeah, it's beautiful. I'll read a little bit more. The original lines are great. So, “The tree in question is the magnificent oak in front of the residence of Major Stanley. It seems to stand straighter and hold its head more highly and proudly, as if it knew that it ranked above the common trees of the world, which are the slaves of humans and can be cut down and burned at the will of their owners.” Doug Still: [08:43] Wow. I'm not sure I like that quote. It's a little tough. Mateo Fennell: [08:47] It's a weird one. Doug Still: [08:48] The irony wasn't lost on us that, if true, the story took place during a time, obviously, when many people couldn't own themselves during the era of slavery. In my research, I found this painful reminder was brought up by a local historian quoted in his story on Georgia public broadcasting. But the more we got into it, Mateo described the cracks in the overall story. Did he grow up next to the tree? Mateo Fennell: [09:16] No. He would have been born in Savannah, and then he came to UGA or came to Athens probably 1800, and then was in school until 1804. And then after they graduated, he left. He did come back to Athens. Let's see-- So, yeah, Jackson joined the Board of Trustees in early 1820s, and he would have moved to Athens probably around 1828. Doug Still: [09:47] Got it. So, he was an adult when he was living or owned the tree. Mateo Fennell: [09:53] Correct. Yeah, he would have been in his 20s, 30s. Or, his home was sold to Malthus Ward in 1832. And at that point, Jackson moved to East Athens, where he wanted to be a planter, and he got somewhere over 600 acres in East Athens. Doug Still: [10:12] So, he was a farmer. Mateo Fennell: [10:14] Yeah, probably not that good of one. He ended up losing his land in the early 1840s. The bank repossessed it. And at that time, it's safe to assume that he would have moved to be with his son in Macon, Georgia. He wasn't found in any of the census data in Athens after that date. Doug Still: [10:39] Mateo mentioned the new owner of the property on Dearing Street in Athens, one Malthus Ward. So, William H. Jackson sold the property to Ward in 1832, right? Mateo Fennell: [10:52] Not technically. He sold the home. He and his father-in-law built the home that Malthus Ward lived in. So, 126 Dearing Street was the home that Jackson was living in with his wife, Mildred, and her father, Mr. Cobb. They built that home. There must have been some agreement with the University of Georgia, because the land was never purchased by Jackson. It was only the house, because when Ward buys the property, he buys it from the University of Georgia. In that deed, it said that he gives $1,200 to Jackson for the building. This whole area was part of what was called The Millage…oh, gosh, The Millage Endowment. It was a large tract of land that was given to the University of Georgia, and then they were able to sell land over the years to make money. So, these two lots that were sold to Malthus Ward were still owned by the University of Georgia. Just the home was owned by Jackson. Doug Still: [12:09] Yikes. Okay. So, Jackson didn't grow up next to the tree that owns itself, didn't own the land. Actually, he lived across the street. The tree is at 125 Dearing Street and he lived at 126 Dearing. Mateo Fennell: [12:23] Yeah, he didn't grow up near the tree. [laughter] He didn't even own the land that the tree was on. Doug Still: [12:28] Right. Has anyone ever seen this deed? Mateo Fennell: [12:31] No. No one's ever seen the deed, because usually deeds weren't kept in the city government. But at the same time, I can find the deed from 1832, when Malthus Ward buys it from UGA. No one's ever found a deed about the tree that owns itself. Doug Still: [12:48] Our attention swung back to that 1890 newspaper article, now with some doubtful eyes. Who wrote that article? Mateo Fennell: [12:57] It's unsigned, but the editor of the paper at the time would be Larry Gantt. That's G-A-N-T-T. He was the editor for quite some time of that paper. At that time, it was called the Athens Weekly Banner. Doug Still: [13:16] Gotcha. So, we don't really know who wrote it. It could be that the editor wrote it? Mateo Fennell: [13:21] It could be. Doug Still: [13:22] Mateo sent me a digital copy of the original newspaper that had this unusual tree story on the front page. Surrounding it were some straight news stories from Washington, D.C. and other places. It also had articles of local interest with breathless accounts of “startling news.” On the front page you can read about how a brave woman, Mrs. Bird, rescues her boy at Tallulah after he fell into a fountain; or, bound and gagged, Miss Nellie O'Brien’s story of an adventure with a burglar; or, an interesting meeting now in progress in Watkinsville, where deep interest was awakened due to two evangelists from California who had made numerous conversions. So, it's not a stretch to say that there may have been a healthy dose of sensationalism to help sell newspapers. Flash forward to 1962, when the story of the tree and its potential sources was thoughtfully investigated by a professor and chair of the history department at UGA, E. M. Coulter. He wrote about it in the Georgia Historical Quarterly, for which he was the editor for nearly 50 years. Mateo Fennell: [14:36] The seminal article, the seminal piece on The Tree That Owns Itself is by a gentleman named Coulter back in the 1960s. He goes through two possibilities. One, it's Jackson, and then the other is that it was Gantt or somebody putting that story in, somebody making that story up. Doug Still: [14:56] Gotcha. You got that from Coulter's article. Mateo Fennell: [14:58] I don't know if he's the earliest to suggest that, but he is probably the biggest name. He has the most bonafides. People believe him, because he was a historian at UGA. Doug Still: [15:11] Back again to Gantt’s 1890 piece. Why would that article have been written about the tree at that time? Any guesses? Mateo Fennell: [15:21] My guess would be that they had talked about opening up Finley Street and Dearing Street to create a road. Doug Still: [15:32] We're going to take a short break. When we return, we explore this other idea. Maybe the story of the grand old white oak owning itself came about, because someone wanted to protect it from that all too common threat to street trees - road construction. You're listening to This Old Tree. [music] Mateo Fennell: [16:14] Coulter believed that it was probably in response to the impending development. Yeah. He says that potentially, it was a story made up or to keep Finley Street from being developed. Doug Still: [16:33] You mentioned some roadmaps from the 1850s that you found. Mateo Fennell: [16:37] Yeah. The earliest map I found was in 1852. And in 1852, they drew the road lines in. All of those lines are straight lines. It's really simple for a surveyor to do those straight lines. There is no distinction or weird cutout to try and save a tree. They're all just straight lines. And that map would have been released when Malthus Ward was there on that property. Doug Still: [17:09] Malthus Ward. Can you tell me about Malthus Ward? Mateo Fennell: [17:12] Oh, wow. Malthus Ward, he's a good story. Malthus Ward grew up in the north. He was a frontier doctor and ended up becoming a professor of natural history for the University of Georgia. Actually, let me start somewhere else. Doug Still: [17:35] Okay. Mateo Fennell: [17:35] So, when I started my position as the community forester, the first few weeks of that, of my position, I decided to go pay my respects to the tree that owns itself, as one does. Doug Still: [17:48] Right. Mateo Fennell: [17:50] So, I was standing there looking at the tree and I turned around. When I turned around, I saw a ginkgo tree that absolutely-- it stupefied me. It was the biggest ginkgo tree I have ever seen, and immediately had to go talk to whoever owned that house. Went and talked to Miss Harris, who lives there in what was Jackson's home and Malthus Ward's home. She told me about Malthus Ward. It was the first time I had ever heard about him and sent me down the rabbit hole, the Ward rabbit hole. When I learned that he planted this ginkgo tree in the mid-1800s, it's actually the third oldest ginkgo tree in North America. Doug Still: [18:41] Wow. Must be impressive. Mateo Fennell: [18:43] Oh, it's gorgeous. Actually, it had a large top come out this last summer after a big windstorm, but it's still standing. Ginkgos do a very good job of retrenching, so we have high hopes for it. But that is what got me started on Ward or interested in Ward. Ward, when he came to UGA, they ended up buying him. Well, he bought eight acres, and four acres would have been north of Dearing Street, and four acres would have been south of Dearing Street. Right in between those two parcels is the tree that owns itself. Doug Still: [19:28] Mm-hmm. Mateo Fennell: [19:29] Later on, UGA bought or gave him a botanical gardens. There is some argument as to where that botanical gardens was. Doug Still: [19:41] Okay. So, was he a plantsman? Mateo Fennell: [19:44] He was a medical doctor. He was a botanist. He taught natural history. So, that would have been geology, chemistry, botany, all of that. So, he was kind of a renaissance man. Doug Still: [19:59] So, he planted that amazing ginkgo tree. Mateo Fennell: [20:02] He did. He also planted cuttings from an elm tree that was standing over George Washington when he took control over the army in 1773. Doug Still: [20:18] Sure. The Washington- Mateo Fennell: [20:20] The Washington Elm. Yeah. Doug Still: [20:21] -Elm. Was in Cambridge. Mateo Fennell: [20:24] Yeah, in Cambridge. Yup. He had cuttings of it. I think it was standing beside the house up until 2012. I can see it on Google Street view. Doug Still: [20:33] Wow. Mateo Fennell: [20:34] But Ward was definitely a purveyor of plants. Like, he had over 2,000 species of plants in the botanical gardens. Doug Still: [20:46] So he was a collector. He planted. He was the one probably that loved that tree. Mateo Fennell: [20:52] He definitely would have loved the tree, standing out in front of his house. It was a stately tree, even when he was alive. He would have, I think, really appreciated that tree just being a tree person himself. Now, UGA ended up selling the botanical gardens. They came on some hard times. Malthus Ward was actually released from his position at the university in 1842. So, he was no longer a professor. That would have been 10 years after he bought the property. Then in 1857, they sold the botanical gardens. In the botanical gardens, when they sold that, they used those proceeds to buy the famous University of Georgia Arches, which is the symbol of the university now. Doug Still: [21:47] So, was Malthus still in town after that, when they started building the roads? What are the latest dates you have for Malthus Ward? Mateo Fennell: [21:56] Malthus Ward died right at the end of the Civil War. So, 1866. So, he had lived there in front of the tree up until he died. And then a few years later, his daughter, Mary Ward, is the executrix of his will, and she sells the property. Doug Still: [22:20] How could we not offer some conjecture? What would Ward have thought of the road design crisscrossing his properties? Mateo Fennell: [22:28] I think he would have seen the road, the proposed road, go in and not have been happy knowing that, obviously, that road is slated to go directly through the tree. Doug Still: [22:41] When did the roads go in? Mateo Fennell: [22:43] That was something that-- Coulter, when he wrote about this in the 1960, he didn't really have a good understanding of. Let's go back. So, he wasn't sure of when it went in. Now we can see that even up until 1890, the road had not been cut in. At the time of the first article talking about The Tree That Owns Itself , we don't think that the road had been cut in at that point. We think that there would have been some contention about it at that time. Doug Still: [23:17] Could someone have influenced Gantt in 1890 to write the article about the tree in order to save it from the impending street construction? Who would it have been? Ward would have been a likely candidate, but he had been dead for 24 years. Mateo has a new theory. What's your hunch? Mateo Fennell: [23:35] When I started reading about it and I read about Dr. Ward, my initial thought stems from a question that was asked in an article a long time ago is, “Why Jackson? Why are people ascribing this to Jackson?” I don't think it was Jackson who grew up under this tree, then loved it and then tried to save it. I think it was Mary Ward. Doug Still: [24:00] Mary Ward? Mateo Fennell: [24:01] Mary Ward, she was born in 1830. She comes down to Athens, Georgia, in 1832. So, she's two years old. Her earliest memories were probably of this tree. Doug Still: [24:13] I see. Mateo Fennell: [24:15] UGA fires or releases Dr. Ward in early 1840s. I don't think he was especially liked. They're selling his botanical gardens in the 1850s. I think Ward may have been bitter. “Here, you've released me. You're not going to take me back. You're going to sell my botanical gardens, which I've put a lot of my effort into. Well, you can do that. You can take that, but you're not taking this tree. I'm going to figure it out.” Doug Still: [24:47] So, why do you think Mary had something to do with it? Mateo Fennell: [24:49] She was the one selling that property. She was the executrix of the will. She grew up with that tree. She knew that there was proposed development going through that tree. I think when she was selling that property would have been a really good time to drop a little myth, a little legend. Hey-- [crosstalk] Doug Still: [25:12] That's an interesting story. Mateo Fennell: [25:14] So, I think that's a perfect time for this story to start. “Well, hey, we're selling you this property, but there's no deed to it. But there was a deed. Jackson, he actually deeded that tree to itself.” Just drops it in there and maybe it marinates for 20 years. I think that Jackson was useful. He's the son of a revolutionary war hero. He is respected. If the dying wishes of Jackson aren't going to be respectable, then no one's are going to be respected. But it strikes me as him being useful, being someone that no one's going to question. He lives in Macon at this point. He's four days away. Doug Still: [26:01] So, if Mary Ward had said that her dad deeded the tree to itself, it would have seemed fake, but bringing Jackson in gave it some legitimacy. Mateo Fennell: [26:11] Definitely. Yeah. Invoking the name of Jackson would have been huge. Doug Still: [26:15] One question. I know this is conjecture, but why do you think then the story popped up in the newspaper in 1890? Mateo Fennell: [26:24] I think there was probably a renewed push for development there. The home that's directly across from the tree that owns itself would have been put in around 1893. So, I think there was mounting pressure to talk about it, because homes were going in and they were reaching this tipping point where some decision had to be made about the tree. Doug Still: [26:51] This supremely creative effort to preserve a tree got me thinking. Can a tree own itself? I found the answer to this question, pretty quickly, if you simply adhere to the principles of common law. So, the recipient of property, in this case, the property is the tree and the land around it, must have the legal capacity to receive it. A tree is not a legal person. It doesn't have personhood in the eyes of our legal system. So, the tree cannot accept the receipt of property. Okay, that may be true, but it's pretty boring. I'll swing back to some newer views on that later. There's a more interesting question to ask, in my opinion, relevant to property owners and tree lovers everywhere. If a tree can't own itself, then who owns a tree? The answer is not always as simple as it may seem, and the issue has been at the center of many intense, passionate disputes for as long as people have been owning property. To tackle this question, I had the pleasure of speaking with James Komen. James is a board-certified master arborist, a registered consulting arborist, and a licensed California attorney. His research is focused on tree law cases from around the United States, which he has written and spoken about extensively. James, welcome to the show. James Komen: [28:11] Hi. Thanks for having me. Doug Still: [28:13] You are in California. Had you heard about the tree that owned itself before I invited you onto the show? James Komen: [28:19] I had heard about it. We actually talked about it a little bit in law school. Doug Still: [28:24] Really? James Komen: [28:24] We were just talking about property rights, and that idea came up. Doug Still: [28:29] Well, my questions for you are much more general in nature. Broadly speaking, in the United States, are trees owned and how is that determined? James Komen: [28:38] Well, generally speaking, trees are fixtures on the land. They're part of the soil. And so, they're thought of as real property. When you buy and sell the land on which the trees are growing, then you're also buying and selling whatever is fixed to that land, which could include houses or driveways or trees. Doug Still: [29:00] Got it. As we both know, trees are natural beings and don't respect property lines. When branches and roots reach over and into the neighbor's property, conflicts can arise. Who is responsible for the tree's maintenance? James Komen: [29:15] Well, that actually depends. That's quite a big question. What I won't do is I won't answer that directly, but what I can do is I can give you some examples and some things that have been considered when answering that question under specific circumstances. Doug Still: [29:33] Okay. James Komen: [29:34] So, one line of question would be, was it planted or was it naturally growing? Some trees, in some cases were planted. And then the person that planted the tree, whether it's the owner of the property at the time or their prior owner that they bought from. They put in motion something that ultimately led to harm to the neighborhood. In those cases, the courts have said that it was the responsibility of the tree owner to take action. Doug Still: [30:05] Interesting. James Komen: [30:06] In contrast, you might have a tree that was naturally growing, one that just volunteered on its own out of natural causes. And in some jurisdictions, like in Virginia, there's no liability for natural conditions of the land. Doug Still: [30:20] Would it be hard to prove sometimes that the homeowner planted a tree or didn't plant a tree? James Komen: [30:26] In fact, that's one of the reasons why many jurisdictions don't like this distinction of natural versus unnatural conditions of the land for determining responsibility for the tree. So, other jurisdictions have looked to other questions to answer that issue of who's responsible for the tree. Another line of analysis would be whether the tree is a nuisance or a non-nuisance. A nuisance is a substantial and unreasonable interference with the use of someone else's land. So, it might be a bad smell or a bad vibration or bad noise. But it could also be undue risk posed by a tree, or it could be undue litter created by a tree. Doug Still: [31:11] Would falling leaves count as undue litter? James Komen: [31:14] Well, it depends. [Doug laughs] There are some jurisdictions, specifically Hawaii and the States, that have adopted the Hawaii rule, that say leaf drop is not a nuisance as a matter of law. However, there have been some cases where, for example, eucalyptus bark shedding from the trees has been considered a nuisance. But the question of whether leaf drop is a nuisance can't be answered in the abstract. It's always going to turn on the facts of a particular case. Because when we talk about nuisance, we're always talking about balancing the rights of two adjoining landowners, one person who has the interest in having a clean property and the other one having an interest in maintaining the tree. There's necessarily going to be a conflict which goes back to the beginning of that definition, which is, what is a substantial and unreasonable interference with that right. Perhaps, it's not unreasonable to allow trees to drop leaves. After all, there's lots of trees in the neighborhood, and they drop leaves all the time. And of course, we're all expected to rake them up. Doug Still: [32:18] I just say, welcome to New England. We rake our leaves. James Komen: [32:21] But on the other hand, there have also been cases where someone says, “No, this is actually above and beyond that which would be tolerable by an ordinary property owner in the neighborhood.” They've made persuasive cases, why the tree is a nuisance, whether it's leaf drop or undue risk or branch failure, all of those could be an impairment of the neighboring property owner's right to use his own property in peace. Doug Still: [32:48] I know things get more complicated from there. You've spoken and written about this. What if the trunk of the tree straddles the property line? Who owns it then, and how is that determined? James Komen: [33:00] Well, again, it depends. There's actually a number of different theories for how to deal with trees on boundary lines, and it varies by jurisdiction and also has varied based on the facts of the cases too. I'll just give you a couple of quick examples. In Illinois, there's this case, Ridge v. Blaha. And it said that if any portion of the trunk crosses the property line, even if it's just an inch, then the tree is co-owned. So, I've termed that in my writings, “absolute” co-ownership of the tree, saying that it's very favorable to co-ownership. Another one, which is the opposite, which is, I've termed “limited” co-ownership theory. That's demonstrated by the Colorado Supreme Court case of Love v. Klosky in 2018, so a fairly recent case. That is very unfavorable to co-ownership. And it basically says if the tree began one side, it belongs to that owner. It does not change ownership simply because it grew across the property line. Another theory, I've termed the “presumption” theory, where if the boundary line passes through the trunk of the tree, we presume that it's co-owned, but that presumption can be rebutted. In other words, more facts can be brought in that show that actually the tree began one side, and it's actually solely owned by the owner of the land where the tree began. That was illustrated in a Louisiana case, Jack v. Successions of Albert. And then the last one that I wanted to share with you is unique to Georgia, actually. They've termed it the “party wall” theory. It's similar to the proportionate co-ownership, where we say you own the portion of the tree that's over your side. But instead of the percentage of the whole tree that you own, say, a 50% interest in the tree, a 30% interest in the tree, rather you actually own the half that is on your side, and the neighbor owns his half of the tree that's on his side of the line. Doug Still: [35:03] Well, this doesn't make for good arboriculture, in my opinion, because if someone says, “Well, this half is my part of the tree, I can just shear the branches up, cause I don't like them.” James Komen: [35:14] Well, yes and no. There's some offset that helps protect the interests of the neighbor. Not only do you own your half and the other guy owns his half, but both property owners own something called an easement of support from the other. So, if you do something to harm the neighboring property owner's right to maintain his half of the tree, well, then you still harmed his property interests. Doug Still: [35:41] I've always told people in the past, when this comes up. Speak to your neighbor, or communicate with your neighbor or it's a courtesy before you do anything to talk it over. But I feel like we're getting away from that more and more these days. James Komen: [35:56] What topic does come up in pretty much every jurisdiction that I've read cases is something called the “right of self-help.” That's actually different than ownership of the tree. It's possible that a tree can be owned by the neighbor, but have branches that reach into your property. And then the question is, do you have the right to cut those branches back to the property line? In some jurisdictions, they say you have the absolute right. In some cases, it's a qualified right, you have the right to cut back so long as you don't hurt the tree or impair the interest of the actual tree owner. So, I won't opine on what is or is not the law in any given jurisdiction. But those theories are out there and it's definitely active discussion in these tree law cases. Doug Still: [36:41] Yeah. Definitely gets very complicated. Some of your research looked into the history of tree ownership. It's very interesting. Even back before the birth of our nation, what were a couple of those early sources, and what did they have to say about joint ownership of trees? James Komen: [36:58] Yeah, as long as people have owned property and had trees on it, people have been fighting over them. But there's two cases that stick out in my mind, and they're both old English cases. The first one was a 1620s case called Masters v. Pollie, and the other one was a 1697 case called Waterman v. Soper. So, in Masters, the court held that the tree belongs to the owner of the land where the tree was planted. So, whoever planted the tree, it doesn't matter whether it grows across the line, it stays owned by that property owner, which is very similar to that Love v. Klosky case in Colorado. They actually cited that case in the decision. The Waterman v. Soper is very different. What they held was that the tree is co-owned if the roots grow into the neighboring property. The theory is the tree is deriving some of its nourishment from both properties, so the tree ought to be co-owned by both property owners. Doug Still: [38:03] After a quick break, I asked James Komen about the reach cities and towns have into protecting old trees, even if they are on private property, as well as some proposed new ideas that stretch the notion of ownership. You're listening to This Old Tree. [music] A property owner may be responsible for their tree, but we've moved into an era when the property owner may be required to protect or preserve the tree by their local jurisdiction. This is usually found in zoning ordinances or perhaps, in the local tree ordinance. Could you describe what you're seeing in this regard in California? James Komen: [38:58] Well, I work in the Los Angeles area. There's quite a lot of cities within driving distance of my place of work. Many of these cities have their own flavor of a tree protection ordinance. Some tree protection ordinances just protect street trees, trees growing in the public right of way along the street. Some tree protection ordinances protect certain heritage trees. Some protect trees on private property. And of those, some will protect just a list, say, six or seven species of a certain size. And others will protect all trees of all species of a certain size, except a list of unprotected trees. So, there's many different flavors of tree protection ordinances that are out there that I've experienced in my work in the LA area. Doug Still: [39:50] Here in Providence, we have a “significant tree regulation,” that protects trees, even if they're on private property, that are 32 inches in diameter or greater, DBH. I was in charge of enforcing it. I think overall, while it had a few issues, it was effective in at least making the removal of very large trees a more thoughtful process. What is the reason for tree protection ordinances in general, do you think, and what is the main objection? James Komen: [40:26] Well, I can start with the main objection, and it's interfering with property rights. Some people say, it's my property. I should be able to do what I want with it. I don't want the government telling me what I can and can't do with my own property. That's the objection that comes up all the time. But the benefits provided by trees that are either stated or even unstated reasons for passing these ordinances can vary. It's very common. We'll see things like aesthetics. The trees make our town more beautiful or shade. It makes our town cooler in the summertime. But also, there's some element of historic preservation. The trees represent a piece of history that transcends the human lifespan. And so, much like we try to preserve old structures that represent a piece of our past, so too, we try to preserve trees. Even beyond that, I've seen ordinances that specifically say, we're protecting the trees to prevent the deleterious effects of erosion and dust or excessive tree removal can lead to diminished property values, saying that we're protecting everybody else's interests in their property by preserving the trees on one person's property. There's been a number of different reasons given for tree protection ordinances, and a lot of them have been favorably looked upon by the courts that have reviewed them for validity. Doug Still: [41:55] I always explained it to people, that people determined through our political process that it was for the greater good. We have all these shared backyards. There's a big tree in someone's backyard that has been green and held birds, wildlife created screens, all of the things that a large tree can do. And if someone removes it, it really has an effect on the lives of everyone living around it. James Komen: [42:23] Now, in the past, one of theories that has been said over and over again is that the neighboring property owners who don't have a property interest in the tree. They're just merely incidental beneficiaries. They have no enforceable rights in these trees. The true owner is the person who owns the land where the tree is growing, and they can do as they please with the tree. But I think that there's actually been a shift lately. I can think of one unpublished California case, where there was a tree protection ordinance, and the tree owner decided that he wanted to chop down his tree anyway, and the local government didn't do anything about it. So, the neighbor took things into his own hands, and sued the tree owner cutter and said, “You violated the tree protection ordinance and you cut down that tree, and that has hurt my own property values. There's a tree protection ordinance that's in place for my property values.” The tree owner says, “Oh, well, it's not your tree. You can't sue me. Go away.” And the court said, “Actually, maybe the guy does in fact have standing because of the tree protection ordinance.” So, I think that there's an unexplored avenue of possibilities where tree protection ordinances might be giving municipalities power, but also, they may be giving private property owners, the neighbors power to enforce those tree protection ordinances in their interests as well. Doug Still: [43:47] Very interesting. I hadn't thought of that. You wrote a fascinating article that I thought was really interesting when I read it. It was titled “Creating a Marketplace for Large Trees,” published in Western Arborist. But it wasn't about harvesting trees and selling wood products. You propose a way to preserve old and historic trees by creating a way for interested parties to purchase the rights to a tree from willing or indifferent property owners who might otherwise just remove the tree for whatever reason. Do I have that right, and what are you proposing? James Komen: [44:25] Well, I think you have the basic idea. But before I explain it, I want to emphasize that right now this is just theory. Doug Still: [44:33] Sure. James Komen: [44:33] I'm not aware of anyone that has actually implemented this. But I think it's worth exploring. The idea is based in the mechanics of something called a “covenant” or “servitude.” What it is, is a property owner agrees to be bound by some restriction on the use of his property. In other words, he promises to do or not do a thing. Here, we're proposing to not cut down a tree. You're giving the right to enforce that to somebody else saying, “You have the right to take a look at my tree, you have the right to climb my tree, prune my tree, whatever, and I don't have the right to chop it down.” Because there is some detriment involved, because there is some actual sacrifice on the part of the property owner, the buyer of this right, this servitude or covenant, would likely pay some amount of money. So, there'd be an exchange of money for this promise. And then when the promise is made, it wouldn't just be between those two parties like an ordinary contract, but rather it would actually get recorded onto the property itself and it would do something called run with the land, which is basically like, it's a promise that binds all future owners of the land. So, when the landowner ultimately sells his land to somebody else, that future owner, even if they don't like the tree and they want to cut down their tree, they can't because they're still bound by this remaining covenant that was put in place by the prior owner. Doug Still: [46:09] Like an easement would transfer to future property owners. James Komen: [46:13] Very similar idea. Like an easement or a view covenant where you say, I promise not to build higher than 30ft and then the uphill owner can enforce that to see over. It would be similar, except instead of saying, I won't build higher, you say, I won't chop down the tree. Doug Still: [46:28] I ended my talk with James with a question outside the law. Is there a tree that you know of and love that you would bequeath ownership unto itself, if you could? James Komen: [46:40] I really like my oak tree. My wife and I joke that we bought a tree and the house came with it. It's a 90-foot spread coast live oak. It must be 250 years old or more. Doug Still: [46:55] Wow. James Komen: [46:56] It's just got this massive spread. It covers our whole property. Our little itty-bitty house is just right underneath a portion of its canopy. So, if there were going to be one tree that I'd want to make sure withstood the test of time, I would say it would be that one. Doug Still: [47:12] Definitely. You could start a new legend. James, thanks so much for an engaging and thoughtful conversation. I thoroughly enjoyed it. James Komen: [47:20] Thank you, Doug. Doug Still: [47:22] The communal value of trees - ecological, aesthetic and health promoting value - has long been touted by researchers and urban foresters. The fruits of that labor are manifested in the appearance of real, enforceable legislation. It's impressive how far we've come, although laws are unevenly local, and sometimes complex to enforce and understand. But what if there was another way to go about conservation, where the issue doesn't center around the rights of people per se? Some argue that a tree or some other element of nature is capable of receiving recognized rights, and that natural things have value for their own sake, not just the value they bring to people. This is called the “Rights of Nature,” and I'd be remiss in not bringing it up. Rights of Nature argues that existing laws regulate but don't stop damage to our environment, and that environmental destruction is a moral wrong. It's a point of view beginning to gain legal traction around the world. Rights of nature laws have been passed in Bolivia, Colombia, Ecuador, New Zealand and India. In the United States, jurisdictions in Pennsylvania, Ohio, Florida, California and a few other places have introduced legislation, most of which has been challenged in the courts. A thorough look into the Rights of Nature movement is worthy of an entire episode, or even a university course. But here it is in a simplified nutshell. Rather than treating nature as property under the law, rights of nature posits that nature in all its forms has the right to exist and maintain its life cycles. It's about balance in nature. Rights of nature has adopted many of the arguments of the animal rights movement, but moves beyond rights that focus on an individual - a dog or cat or pig, say - and extends these principles to rivers, mountains, and entire ecosystems. To some, natural entities are living beings imbued with a sort of animism. They have a right to a healthy existence. For many people, the rights of nature viewpoint stems from a religious or spiritual perspective with a sizable representation from indigenous advocates and communities. Some feel that natural things could be given legal personhood. After all, corporations now have standing as legal persons. Others suggest that using the word “personhood” may lead into a legal trap, and wish to offer rights to natural entities without the use of that word. The first writer to forward this idea was Christopher Stone in the Southern California Law Review in 1972. He wrote a piece called “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” He states that all kinds of non-human matter has come to be recognized as possessors of rights, including trusts, corporations, joint ventures and other types of partnerships, municipalities and nation states, to name a few. So, why not a river or a lake or a tree? It may seem like a jarring, out-of-the-box concept, but there is real precedent and engaging philosophical thinking to back it up. I'm not sure if Stone knew that some passionate tree lovers in Athens, Georgia were already onto this 100 years earlier. The tree that owns itself was way ahead of its time. [music] Whether a deed was actually created for the old white oak on Dearing Street, or it was simply the story of such a deed that was created, the ruse worked because the neighborhood's street pattern was eventually implemented and the tree still stands. Or, does it? Here's Pat McAlexander. Pat McAlexander: [51:02] Well, we moved in 1996. So, it's 28 years. It was really interesting when we moved in, because all of a sudden, right after we moved in, they had a birthday party for the tree. Doug Still: [00:51:14] Really? Pat McAlexander: [51:15] It was 50 years old. Now, this is not the original tree. I guess you already know the story that the original tree fell in 1942. Doug Still: [51:24] Yes. That was right around World War II. And then right after the war, a new one was planted. Pat McAlexander: [51:31] Right. And that's the one that's next door to us. Yeah. Doug Still: [51:34] Yes. Pat McAlexander: [51:35] So, this is a-- it's the son or daughter of the original tree. Doug Still: [51:39] That's right. [laughs] Pat McAlexander: [51:39] Yeah. Doug Still: [51:41] Based on reports of the tree's slow decline over time, it is likely that its roots were damaged when the streets were finally created about 1908, according to Mateo. Mateo Fennell: [51:52] Some people say that it collapsed in on itself. Some people say that it just fell over. Regardless, it came down in a large windstorm. Doug Still: [52:02] When it fell in 1942, people collected the acorns from the famous tree and grew them in backyards. When things settled down after the war, one of these scions was chosen from the yard of captain and Mrs. Jack Watson, and the Junior Ladies Garden Club planted it in the same spot as its parent with the help of students from the Division of Horticulture from the University of Georgia. On December 4th, 1946, a rededication ceremony took place with many dignitaries in attendance, including the Mayor. Since then, its fame has only grown. Pat explained what it’s like to live next to it. She comes into contact with people who appreciate it nearly every day. When you moved in, were there any details to the story passed down to you by the previous owners or any of your neighbors that you could share? Pat McAlexander: [52:52] Well, it's interesting you asked that, because I started thinking, what stories did they tell? But of course, the main story we all knew about William Jackson and the will and leaving it to himself, because he so loved the tree. But people sent me a lot of clippings, not necessarily neighbors, but just Athenians. Clippings from old newspapers, picked old postcards proclaiming the only tree in the world that owns itself. So, those are the kind of things that they did though, they sent us a lot of stories. There are so many things that happen-- We have our own stories that we could, I could tell you. Doug Still: [53:32] Could you share some of them? Pat McAlexander: [53:33] Yeah. You mentioned earlier, asking about the tourists that come. There usually- Doug Still: [53:39] Yes. Pat McAlexander: [53:39] -are people out there much of the time. And they don't bother us. You might think, “Oh.” But it's not like hordes are out there. Doug Still: [53:48] You don't mind them? Pat McAlexander: [53:49] No. Not unless they block our driveway, which doesn't happen too often. But I think many of the schools assign the children to come and see the tree. So, you see parents coming with these little kids, and they have to take their picture of the little child with the tree. Doug Still: [54:05] Oh, that’s great. Pat McAlexander: [54:05] [crosstalk] they were really there. When we first moved in, a couple decided to get married under the tree. So, that was interesting. Doug Still: [54:14] How wonderful! Pat McAlexander: [54:15] Yeah. Doug Still: [54:15] Have they been back for their anniversary? Pat McAlexander: [54:18] Haven't seen them, but we had various parties at our house. My husband is a professor also, so he had a party for his graduate students. At it, a couple met each other for the first time, and fell in love and he proposed to her under the tree. So, they- Doug Still: [54:39] Wow. Pat McAlexander: [54:39] -come back for their anniversary to the tree. Doug Still: [54:42] That's great. Pat McAlexander: [54:43] Yeah. I'm trying to think of other tourists, people from, who have been to the university, who have come back or parents of students here visit the tree. Doug Still: [54:54] I bet people come from all over the country, because it's gone viral a couple times. Pat McAlexander: [54:59] Right. People have taken videos and newscasts about it. So, it's a pretty famous tree. It may own itself, but it doesn't clean up after itself. All the acorns in our driveway. Doug Still: [55:12] [laughs] I love that. Has the tree been honored in any way in the past? Pat McAlexander: [55:17] Perhaps, one of the first big things was that George Foster Peabody, who is the one who also founded the Peabody Awards, he's linked to the journalism school- Doug Still: [55:25] Really? Pat McAlexander: [55:26] -from the University of Georgia. Yeah. He saw potential in publicizing the tree. Wouldn't you know a journalist, right? So, he's the one-- Doug Still: [55:33] Makes sense. Pat McAlexander: [55:34] Yeah. He's the one that had the granite posts put around it and the chains linking the post. The stone that quotes from the will say people have also visited the tree. There was a couple, I wrote down their names, but they're from plantawish.org. It's an organization, and their goal is to plant a tree in every state. But of course, when they came to Georgia, they visited the tree and they set up a tent under it, and we're going to spend the night, except that night, a bad storm came and I noticed that they had left. They didn't quite make it through the night. Doug Still: [56:11] [laughs] I guess that might be put pushing it a little too far, if people start camping out in front of your house. Pat McAlexander: [56:17] You may have heard about a movie that was made that included a scene under the tree. The movie was, Not Since You is the name of it. Doug Still: [56:27] Not Since You. Pat McAlexander: [56:28] Not Since You. It was produced by someone here in Athens. But one of the scenes is under the tree, like the couple are sitting romantically under the tree. So, we provided the electricity for the lighting and we got to watch the scene filmed. So, that was fun. I want to share with you some quotes from-- Did I tell you the tree has its own Facebook page? Some of the quotes on that page are pretty interesting. People would say, “We're rooting for you. Happy birthday. Go out on a limb and celebrate.” [laughter] Pat McAlexander: [57:02] “We hope other trees will follow in your trunk steps.” [Doug laughs] And then some of them, they have the tree's voice like, I guess you know the Georgia team, the Bulldogs, their colors are red and black? So, they have the tree saying, “I'll put on some orange tomorrow, gold on Friday, and then on Saturday, the day of the games, and red on Saturday.” I mentioned already there are often people outside. And so, I see all these visitors come and park their cars. There's not much place to park. I see them looking around, [chuckles]- Doug Still: [57:40] Right. Is this okay? Pat McAlexander: [57:40] -pushing like its coming out driveway. Yeah. But they finally find a place. They stroll over to the tree with cameras. They read the new stone marker and pose in front of the tree while one member of their group, of course, takes the picture. But if I'm out there, guess who gets to take the picture? They ask me. Doug Still: [58:00] You. Pat McAlexander: [58:00] Yeah. So, I've taken pictures of sorority girls, and young couples, and church groups. Doug Still: [58:06] Why is the tree special to you? Pat McAlexander: [58:09] Well, partly, I guess just because it's been my neighbor for so long. Even if it doesn't clean up after itself, I like it. Doug Still: [58:19] I bet a lot of people feel that way about their street trees. Pat McAlexander: [58:22] They probably do, although this one is the only one that owns itself. Doug Still: [58:26] Right. [laughter] Pat McAlexander: [58:28] Actually, the city now takes care of it. They do a good job. They've had a lightning rod installed. Doug Still: [58:34] Well, Pat, thanks so much for joining me on This Old Tree and talking about the tree that owns itself. It's been a pleasure talking to you. Pat McAlexander: [58:41] Well, I enjoyed it too. Doug Still: [58:43] As Pat said, care responsibilities for the tree that owns itself fall to Athens-Clarke County. Any pressure caring for such a famous tree, or does it feel mainly like a privilege? Mateo Fennell: [58:56] There's definitely pressure. When you let someone prune a tree, you give them a lot. And as a municipal arborist, there have been many a time where I've had a company prune a tree and they do it badly. You can't have that on the tree that owns itself. Doug Still: [59:17] You cannot. Mateo Fennell: [59:19] It is a privilege to be able to make decisions about that tree though. I'm extremely honored to be the one that can make those decisions for it. Doug Still: [59:30] Why do you think this tree strikes a chord with people? Mateo Fennell: [59:34] I think it really strikes a chord, because we've given it personhood almost. We've given it agency. It's a rare thing to show respect to a tree. I think we really enjoy that. Athens, Georgia is a tree loving city. We have a long history of trees going back from Dr. Ward. And then even well past him, we've got citizen groups that are based around trees. Some of the first tree councils in the US were here in Athens-Clarke County. Doug Still: [01:00:19] These days, it's pretty much accepted that the tree owns itself, and people are happier to just love the tree. And let's not think about it too much. I like that. Any final thoughts about the tree? Mateo Fennellr: [01:00:32] So there was a writer in the early 20th century. What they said about the tree was this. “However defective this title may be in law, the public recognized it.” Doug Still: [01:00:46] That's perfect. Mateo Fennell: [01:00:48] I think that's the coolest part about the tree, is that it doesn't really matter if it owns itself or not, because it does. Doug Still: [01:00:55] That's great. Well, thanks for joining me today. I enjoyed our talk. I learned a lot. Mateo Fennell: [01:00:59] Yeah, thanks. Thank you for having me. Doug Still: [01:01:01] And good luck maintaining the legend. Mateo Fennellr: [01:01:04] Yeah. Well, hopefully we can increase the legend even more too. [music] Doug Still: [01:01:13] That was lots of fun. I'd like to thank my terrific guests for coming on the show, Mateo Fennell, James Komen, and Pat McAlexander. Thanks to them, I probably won't look at a tree the same way again. I'll be sharing pictures of the tree that owns itself on Facebook and Instagram. And our website is thisoldtree.show. Music was provided by D. Lee and also Ziv Grinberg. I'm Doug Still, and this is This Old Tree. Until next time. [Transcript provided by SpeechDocs Podcast Transcription]
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