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“The 2Point Way”—Nuisance Trees, Trespass, and Liability

In the early development of the United States, disputes over individual trees were less common and generally were based on a more ‘agricultural’ viewpoint. As populations increased and ‘danger trees’ or ‘nuisance trees’ became a regular source of contention in residential and urban areas, courts struggled to keep up with current attitudes on the fundamental problem of trees in inconvenient or dangerous locations.

By necessity, boundaries generally are marked on or near the current ground surface. However, roots and branches extend both above and below, requiring application of legal principles relevant to the air above and the subsurface.


Title Above and Below the Surface


Early and current courts generally recognize that property titles are not limited to the habitable surface. As noted in the Kentucky decision Edwards v. Sims: 232 Ky. 791 (1929): “Cujus est solum, ejus est usque ad coelum ad infernos(to whomsoever the soil belongs, he owns also to the sky and to the depths), is an old maxim and rule. It is that the owner of realty, unless there has been a division of the estate, is entitled to the free and unfettered control of his own land above, upon and beneath the surface.”

Note that federal laws (beginning with, but not limited to the Air Commerce Act of 1926) place limits on the early common law as it applies to airspace. SIXTY-NINTH CONGRESS. Sess. I. Ch. 344. 1926: Sec. 10. Navigable Airspace—As used in this Act, the term “navigable airspace” means airspace above the minimum safe altitudes of flight prescribed by the Secretary of Commerce under section 3 and such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation in conformity with the requirements of this Act.

Despite this limitation of private titles in the upper atmosphere, private rights are conceded extend as high as the surface owner can exert control above the surface.


Trees and the (Limited) “Self-Help” Approach


The Pennsylvania court has recognized the recurring problem of tree growth in Jones v. Wagner: 624 A.2d 166 (1993): “Furthermore, given the rather unremarkable observation that trees will tend to grow, the trespass, even if remedied once, is bound to recur just as soon as the trees or shrubbery regenerate.”

This ruling also recognizes the widespread conclusion that landowners have the right to trim branches and roots that physically extend over the boundary—but only up to the boundary: “While there does exist some conflict regarding when a landowner may institute an action for injunctive or monetary relief against an adjoining landowner whose trees overhang the property line, one common thread connects all of these cases: the landowner whose land is encroached by the overhanging branches may trim the limbs to the extent of the encroachment.”

This decision cites typical rulings from other state courts for this premise, including specific examples from Virginia, Massachusetts, Hawai’i and Arizona.


When “Self-Help” is Insufficient


The Pennsylvania decision above is cited in turn by a recent Tennessee court ruling. In Lane v. WJ. Curry & Sons: 92 S.W.3d 355 (2002) the court considered a nuisance tree dispute where branches fell through the neighbors’ roof. Roots from the same trees blocked her septic system, rendering her house uninhabitable. The three Oak trees that were the focus of the dispute were admitted to be healthy and were described as ‘innoxious.’ Judge Drowota affirms the rights of landowners to utilize the airspace above their land and applies that concept to overhanging trees: “…from “ancient times” it has been the accepted rule that a landowner has the exclusive right to possess and use all of the landowner’s property, including the air space above the ground, and therefore the redressable harm caused by encroaching trees is that of the trespass onto the neighboring property, not physical damage done to the neighboring land.”


Rulings are Inconsistent Regarding Liability


While the right to cut intruding branches at the boundary line is widely recognized, courts are less unified when considering liability and claims for damages. Recent rulings are more nuanced because they may consider the threat posed to a public way caused by a tree on private land. The health (or lack) of the tree may be critical. However, landowners may (or may not) have inquiry or actual notice of circumstances that would make the tree dangerous.

In one early case, the District of Columbia appeals court considered the changing legal landscape in Sterling v. Weinstein: 75 A.2d 144 (1950). This case describes two trees of sufficient size to hang entirely across an alley and still threaten structures on the other side. One was described as leaning at a dangerous angle. The attempt by Judge Hood to define a straightforward rule regarding ‘noxious’ trees was doomed to failure; the judge found several separate standards already existing in various jurisdictions.

Two directly contradictory examples were quoted. In a prior Mississippi ruling, the roots of a Mulberry tree damaged the neighbors’ well. That court concluded that both intruding branches and roots should be considered noxious and the injured party had cause to claim damages.

On the other hand, a similar Massachusetts case concluded that Poplar roots that had damaged a septic line on the neighboring property should be addressed by the ‘self-help’ method. This “Massachusetts Rule” is discussed in more detail below.

Judge Hood notes that there is no meaningful difference between the Mississippi and Massachusetts examples—the precise species of tree was not considered a relevant aspect.


Many Standards—None Perfect


More recently, the Virginia ruling Fancher v. Fagella: 650 S.E.2d 519 (2007) considers liability issues in light of the recent development of many formerly rural landscapes. Two adjoining townhouses were separated by a masonry retaining wall that was being destroyed by the roots of a large Gum tree. According to an arborist called as an expert witness, this tree could attain a height of over 100 feet, yet it was located less than 5 feet from the boundary line. Any attempts to trim overhanging branches in this scenario would be ludicrous.

The court questions prior standards in Virginia law and describes an extensive list of approaches taken by various courts:

“(1) The “Massachusetts Rule,” holds that a landowner's right to protect his property from the encroaching boughs and roots of a neighbor’s tree is limited to self-help, i.e., cutting off the branches and roots at the point they invade his property. That rule was based on Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931), where the court observed that “the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another's right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”…

(2) The “Virginia Rule,” holds that the intrusion of roots and branches from a neighbor's plantings which were “not noxious in [their] nature” and had caused no “sensible injury” were not actionable at law, the plaintiff being limited to his right of self-help. That rule was based on our holding in Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939), where we also said, “when it appears that a sensible injury has been inflicted by the protrusion of roots from a noxious tree or plant onto the land of another, he has, after notice, a right of action at law for the trespass committed.” … We affirmed the trial court's order sustaining a demurrer in that case, holding that neither equitable relief nor damages were warranted because the invading roots came from a privet hedge that was not “noxious” in nature and had caused no “sensible injury.” …

(3) The “Restatement Rule,” based on Restatement (Second) of Torts §§ 839, 840 (1979), imposes an obligation on a landowner to control vegetation that encroaches upon adjoining land if the vegetation is “artificial,” i.e., planted or maintained by a person, but not if the encroaching vegetation is “natural.”

(4) The “Hawaii Rule,” holds that living trees and plants are ordinarily not nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. That rule is based upon Whitesell v. Houlton, 2 Haw.App. 365, 632 P.2d 1077 (1981), where the court said: “[W]hen overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, [substantial] harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the . . . neighbor may cause the cut-back to be done at the tree owner's expense.””


The Virginia court ultimately chose to partially overrule some of its own early precedent in this case and adopt a standard consistent with that of the Tennessee ruling quoted above: “Accordingly, we now overrule Smith v. Holt, insofar as it conditions a right of action upon the “noxious” nature of a plant that sends forth invading roots or branches into a neighbor's property. We find the reasoning of the Tennessee court in Lane persuasive, and adopt the Hawaii approach as expressed in that case:

Accordingly, we hold that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to [adjoining property], and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. We do not, however, alter existing … law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property. Thus, the law of self-help remains intact…”


Restatement Rule Still Applied in Some States


Each of the rules described in the previous case have their advantages—and disadvantages. For example, the “Restatement Rule” does not address the possibility that a landowner might prune a ‘natural’ tree, or landscape around it (possibly disturbing its root system). In other words, a tree that sprouted naturally might actually be a ‘hybrid’ of sorts. It may also be difficult to determine if a locally-occurring tree was planted by a landowner a century prior.

Despite the weaknesses of the “Restatement Rule” described above, several states—including North Carolina—continue to apply it. In the decision Rowe v. McGee: 5 N.C. App. 60 (1969), the court focused on the ‘natural’ state of the tract, including the trees located on it: “Where landowner knew that the tree on his property was decayed as a result of disease or other natural cause and was liable to fall and damage the property of the adjoining landowners, he was under a duty to eliminate the danger and could not with impunity place the burden to remove the tree on adjoining landowners.” Note that this standard includes provision for actual notice of the purported threat.

This standard was applied in 1993 when the court considered a tree—growing on private land—that fell on a public highway. InGibson v. Hunsberger: 109 N.C. App. 671 (1993),the court considered an accident where a car ran into a tree lying on a public highway:“A landowner has a duty to exercise reasonable care regarding natural conditions on his land which lies adjacent to a public highway in order to prevent harm to travelers using the highway, but a landowner is subject to liability only if he had actual or constructive notice of a dangerous natural condition…”This decision expands the notice element to include inquiry notice. North Carolina has affirmed this rule in other disputes as recently as 2005. Neither of these cases considers the possibility that a natural tree could be ‘maintained,’ and fall in the same category as an artificial planting.

The examples above are a representative sample of rulings and viewpoints from various parts of the United States, but be aware that individual state common law, ordinances and/or statutes may create additional complications in any dispute over dangerous or fallen trees.

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