Gardener thinking green after catching purple-tomato thief red-handed

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Dear John,

I plant a vegetable garden each year on the strip of land between the sidewalk and the street. This year, I planted a tomato plant that grows tomatoes with purple flesh. I thought it would be fun to serve a salad made from these tomatoes at my daughter’s birthday party, which will be around the time when they’re ripe.

The other day, I was looking out my living room window. I saw a passer-by stop and admire my garden. Then, he had the audacity to pick several of the purple tomatoes and walk away. I can’t buy these tomatoes in stores and can’t grow enough additional ones in time for the party. Can I sue him for theft or trespassing or something?

Sincerely,

Gardener Gertie

Dear Gertie,

I understand your love of gardening. I take pride in the dandelion greens I am able to serve each year on my table. My family is looking forward to the bumper crop we expect to harvest this year.

The strip of land you are referring to is generally known as an easement. An easement is land that is owned by a party with certain privileges granted to others. Typically, easements like the one you are referring to allow others to enter and walk through them without risking trespass claims.

The plants you grow on the strip may be an entirely different matter. When you plant something on your land you generally have a right to the expectation that it will stay there, free from interference from others. The same is true for nonliving things like fences, sprinklers and plastic flamingos. A homeowner should be free from worry that things they own will be stolen. Unfortunately, this is not always the case.

It is generally accepted that a person can take fruit from a plant when it grows across the property line. Many of the strawberries I ate each year were of this nature until my neighbor relocated her strawberries and put onions in their place. In this instance, I think you would have no claim if the plant were to have extended over the sidewalk when he took them.

The question then becomes one regarding the nature of the easement. Easements are granted for different purposes and grant different rights. For example, the electric company is allowed to come onto your property to inspect your equipment, but a passer-by is not able to do the same thing.

Also, the electric company is limited in what they are allowed to access. Just because they are able to enter your property to inspect their equipment does not grant them permission to swim in your pool.

Your claim is similar to a service technician taking a dip in your backyard pool. A passer-by is allowed to walk on the easement. He is not allowed to take your plants, including the fruits. Doing so is outside the scope of the easement and would be considered conversion, an unauthorized act that deprives an owner of personal property without his or her consent.

One problem you will face in your claim is determining damages. While they are interesting tomatoes, they are still just tomatoes. Because they are rare and not typically sold in stores, you might have a difficult time valuing them for more than what comparable tomatoes sell for.

Happy gardening,

John

John Hartzell is a practicing Walla Walla attorney. No attorney-client relationship is established via this column, which is for educational purposes only and is not intended as legal advice. Any information given is to illustrate basic legal concepts and does not state how any court would decide any matter. Have a question? Ask John at askjohn@wwub.com.

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