The Salina Journal from Salina, Kansas on January 2, 1986 · Page 3
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The Salina Journal from Salina, Kansas · Page 3

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Salina, Kansas
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Thursday, January 2, 1986
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Page 3
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Local/Kansas The Salina Journal Thursday, January 2,1986 Page 3 Court: Neighbors can force removal of trees, branches Craig Chandler Members of the Tri-Rivers Running Club pass the corner of Marc and Pentwood Drive Tuesday night as they run in the new year. Club members get running start on 1986 By CAROL LICHTI Staff Writer While some were raising their champagne glasses to toast in the new year Tuesday night, a group of about 24 Salinans was running through the streets of the city. When the clock reached the stroke of midnight, Kaye Thomann, 840 S. Ninth, and her two daughters were running with other members of the Tri- Rivers Running Club as part of an annual tradition. "It is a sober and healthy way to bring it in," Thomann said of the new year. "And to be with your kids means a lot to my husband and I." Thomann and her daughters Megan, 8, and Tiffany, 15, started the run with the rest of the group at about 11:45 p.m. Her husband, Robert, who had already run six miles Tuesday, and her 14-month old son, Kevin, did not participate in the run this year. The family has run on New Year's Eve in past years and plans to continue the tradition. J.R. Dumler, president of the Tri-Rivers Run- ning Club, said that about 24 people ran in the event which this year was a poker run. "We usually try to come up with something a little different," Dumler said. The run which began at Dumler's residence, 2063 Marc, featured five stops where runners would draw a card from a deck of playing cards. Stops were made at Grace Stewart Elementary School, South High School and South Junior High, the Kansas Wesleyan football stadium and Heusner Grade School. Prizes of sporting goods, such as running gloves, were awarded to those who ran down the best poker hands. This was the club's third New Year's Eve run, Dumler said. It covered four miles and took about 30 minutes. The runners and their families had a potluck dinner at Dumler's residence after the event. Members who were injured or family members who do not run also were able to participate by walking part of the distance. The winning hand was a full house with three threes and two jacks, Dumler said. He happened to be the lucky runner who drew that hand. Last year's run was a team event. Each team predicted its finishing time and the team that came closest to matching that time was named the winner. The club started the tradition three years ago because Dumler said they thought it was "a neat idea to be running or jogging when the old year goes out and the new year comes in." Each year participation has increased, he said, and the club plans to continue the event. There was a party at his home before the run where children played games like Monopoly and adults played trivia games. The club, which was formed in 1983 and is sanctioned by the Roadrunners of America, now has 56 members, Dumler said. Besides the New Year's Eve run, the club sponsors two major runs a year and has a weekly fun run on Sundays. The club also schedules runs for special occasions such as birthdays and had a Halloween run in which the participants ran in costumes. TOPEKA (AP) - In a precedent- setting decision, the Kansas Court of Appeals has ruled that landowners can force their neighbors to trim or remove a tree if its branches overhang their property and pose an imminent danger or is found to be a nuisance. The appeals bench decision came Tuesday in the case of James and Mary Jo Pierce of Erie who filed suit in Neosho County District Court for removal of a 75-foot tall pecan tree owned by their next-door neighbors, Paul and DeLena Casady. The pecan tree, which is about three-quarters of a century old, sits about one foot from the Pierce- Casady property line, but the bulk of the hardwood tree's canopy overhangs Pierce property. The Pierces sued and won a lower court ruling that the tree was a nuisance and must be removed or trimmed. The lawsuit was prompted after a large split developed in a fork of the tree which overhangs and leans toward the Pierce property. The Pierces testified that the fork supported a large number of branches and that if the limbs fell, they would land on their garage, home and driveway and posed a danger to their property and personal health. The Pierces were seeking the right to cut the overhanging branches back to their property line or a declaration that the tree was a nuisance, which would force its removal. The lower court ruled the Casadys had not acquired a "prescriptive right" to the airspace occupied by the tree and that it represented a nuisance and a danger to their neighbors, causing them to fear for their safety. The Casadys were ordered to remove the tree at its base or at the point where limbs cross the Pierce property line. The question of whether a tree constitutes a nuisance had never before been addressed by a Kansas appeals panel and the higher bench sided with the trial court in declaring it a nuisance. "A landowner has a right to trim branches that overhang the landowner's property, even though the trunk of the tree is on a neighbor's land," the appeals court said in its opinion. "The landowner may not, however, go on to the neighbor's land and remove the tree, or any part thereof, absent the neighbor's permission. "A landowner has a right to trim branches that overhang the landowner's property, even though the trunk of the tree is on a neighbor's land." — Kansas Court of Appeals "If the tree is a nuisance, the landowner may compel the neighbor to abate the nuisance or, if an injury occurs, look to the neighbor to pay any damages allowable by law." Although the Casadys were given the option of trimming or removing the tree, the court said it was clear "if the tree is trimmed at the property line it is, in essence, destroyed." However, the appeals panel said the law clearly defined the requirements for finding a tree a nuisance and the lower court clearly was within its jurisdiction. "We choose to follow the jurisdictions holding that trees constitute a nuisance if the overhanging branches do substantial harm or the overhanging branches create an imminent danger," the opinion said. "(The Casadys) argument that the tree could be made safe by cables and bolts is of no avail because the work would have to be done in (Pierce) airspace. " (The Casadys) have no right to go on (Pierce) property to do that work for the same reasons (the Pierces) have no right to go on (Casady) property to trim or cut down the tree. Likewise, they have no right to the use of (Pierce) airspace in order to support any part of the tree. "The result reached here will be distasteful to all who treasure trees. The philosophy of law is simply that whenever neighbors cannot agree, the law will protect each property owner's rights." Accused must understand right to free legal help, court rules TOPEKA (AP) — The Kansas Court of Appeals has agreed to allow a Wichita man to withdraw his plea of guilty to charges of welfare fraud after he claimed he was never told he could get a court-appointed lawyer to represent him without charge. In an opinion released Tuesday, the appeals panel reversed Sedgwick County District Judge David W. Kennedy's decision not to let Van E. Turner change his original plea of guilty. Turner asked Kennedy for permission to change his plea after learning of his right to a court- appointed attorney, since he couldn't afford to hire a private attorney to represent nun. Besides arguing that he didn't know a public defender would be provided free of charge, Turner alleges that his decision to waive his right to a public defender was invalid because he did not put his waiver of counsel in writing. The case stemmed from charges filed against Turner in 1981 for wel- fare fraud. During his first appearance on the charges in 1981, Turner was accompanied by a lawyer he apparently hired privately. He again was represented by a private attorney during his arraignment. However, in March 1982, Turner asked the presiding judge to dismiss his attorney and continue his case until he could hire new counsel. A week later, Turner appeared for trial without a lawyer and Kennedy conducted a "lengthy and detailed inquiry" concerning his lack of legal representation. At that point, Kennedy accepted Turner's plea of guilty and sentenced him to make restitution of $5,909 and serve three to five years in jail. The sentence later was modified to five years probation. However, in February 1985, Turner asked Kennedy for permission to withdraw his plea on the grounds he was never informed of his right to a court-appointed attorney if he was unable to afford one. The appeals court ruled there was not "substantial competent evidence" to support Kennedy's finding that Turner made a "knowing and intelligent waiver of his right to counsel." "Whether a waiver of counsel was made intelligently and knowingly depends upon whether the defendant has been made aware of the dangers and disadvantages which may result from appearing (without legal representation)," the opinion said. "In the (Turner) case, Judge Kennedy made a detailed inquiry of (Turner) concerning his desire to proceed without counsel. Despite the court's thoroughness, however, Judge Kennedy at no time informed (Turner) that if he could not afford counsel, the court would provide him with an attorney. "The court did inform (Turner) that on appeal, counsel would be provided if he could not afford an attorney. But the court at no time referenced this information to the time of (Turner's) entry of his plea." tt*» Whittaker backing out, paper reports WICHITA (AP) — Rep. Bob Whittaker, R-Kan., apparently has decided not to make a bid for the governorship of Kansas, according to a report by the Wichita Eagle-Beacon. A source close to the Whittaker campaign who asked not to be identified said the congressman had decided not to run for the Republican nomination for governor, the Eagle- Beacon reported in its Wednesday editions. Whittaker, contacted at his Augusta home, said he planned to invite reporters to a news conference Friday, the newspaper said, but refused to comment on the subject of the conference or questions concerning his candidacy. Larry Jones, a Wichita business executive, is the only declared candidate. Some take cabs home; others arrested for DUI Salinans who thought they had too much to drink New Year's Eve and did not want to risk being stopped by Salina Police took advantage of a free ride home through "Cab Care." Meanwhile police were answering disturbance calls and making arrests for, driving under the influence of alcohol or drugs. John Crook of the Radio Cab and Yellow Taxi service said the cab company received 36 calls New Year's Eve and New Year's Day for "Cab Care," sponsored by Southwestern Bell Telephone Company. The project provided free taxi rides for those who had too much to drink and needed a ride home. Crook said the calls were received between midnight Tuesday and 9 p.m. Wednesday. The free rides were, offered all day Wednesday as well as New Year's Eve. Crook said he hoped the project would be continued next year. According to police records, there were four driving under the influence arrests made Tuesday night. Police also were called to investigate five disturbances including a fight at a restaurant and another that dissolved when police arrived. Police also received a report of a loud party and were called to a disturbance in which hospital treatment for a subject's broken finger was needed. Several residents also reported hearing the sounds of gunshots shortly after midnight, but police were not able to discover the source of the noises. An aggravated burglary in the 1100 block of Greeley was also investigated by police. Records showed that at about 4:20 a.m. a suspect entered a residence in which two people were present. A woman in her early 20s fought with the intruder until he ran off, the report said. Brianna Rae Swafford, Salina's first baby of 1986, looks up at her parents, Brenda and Scot Swaff ord. Babies help parents ring in '86 By CAROL LICHTI Staff Writer Wednesday was not just an ordinary day for Brenda and Scot Swafford. Besides being the first day of 1986, it was also the birthday of their second child, Brianna Rae, who was the first baby born in Salina this year. Brianna was born at 10:30 a.m. at Asbury Hospital weighing 7 pounds and 3 ounces. Her parents, who live at 808 Cherokee with her brother, Jason, 2% years old, were proud of the new arrival who had a full head of black hair. "It's a nice New Year's present," her mother said. Brenda Swafford was taken to the hospital between 7 and 7:30 a.m. The day calculated as the baby's birth date was Tuesday. Steve and Janet Lachenmaier, 430 S. Connecticut, waited a bit longer to receive their New Year's present. "It's a nice New Year's present." — Brenda Swafford Their second child, Jeremy Kyle, was born at 2:21 p.m. Wednesday at Asbury. Jeremy, who has a 3-year-old brother, Brad, weighed 8 pounds and Bounces.

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