Case of the Day – Thursday, May 4, 2017

ENCROACHMENT – MASSACHUSETTS STYLE

The tree crew we hired seemed sort of smallish, but they had really cool trucks ...

The tree crew our neighbor hired seemed sort of smallish, but they were always smiling and had these really cool trucks …

We’ve got some new neighbors, nice folks who bought a house that, while substantial, has been badly neglected. Since moving in a few months ago, they’ve been working like beavers to fix the place up.

Today, they had a tree service cut down a number of trees, large and small. We have a couple of big pine trees – which I love but my wife doesn’t – that have branches overhanging the new neighbors’ back yard.

Our neighbor came over to inquire whether we minded that he trim some of the long, spindly branches encroaching over the stockade fence into his yard. We were surprised to be asked.

“But surely you know the Massachusetts Rule,” we said. “You don’t need permission to trim the oak branch back to the property line. That’s well settled law!” Our neighbor was pleased if a little skeptical. He was sure he couldn’t touch the branch – even though it extended well into his property – without our OK.

To assuage our neighbors’ concern (and that of their tree service), we provided the foreman with the web address of the most comprehensive tree law site in the entire solar system it – this one. We confidently predicted that the site just happened to plan to cover encroachment issues the very next day.

Are we ever prescient! As it happens, today we are going to talk about encroachment… not the neutral-zone penalty that costs a defense five yards. That’s for football season, still three months away (depending whether your tastes run to high school, college or pro). The encroachment we care about is different.

Beginning140714Encroachment is what happens when your neighbor’s tree roots break into your sewer system, when leaves and nuts are dumped into your gutters, or when the branches rain down on your car or lawn. The law that governs rights and responsibilities when a neighbor’s tree encroaches on your property only developed in the last 80 years. Before that time, a simpler time perhaps, people didn’t resort to the courts quite so much.

In the beginning, there was the “Massachusetts Rule.” That Rule, something we talk about so much you’d think everyone would have heard of it by now, arose in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (Sup.Jud.Ct. Mass. 1931). This is the granddaddy of all encroachment cases, the Queen Mother. The Massachusetts Rule is the self-help mantra of neighbors everywhere.

In Michalson, roots from a poplar growing on the Nuttings’ land had penetrated and damaged sewer and drain pipes at Michalson’s place. As well, the roots had grown under Michalson’s concrete cellar, causing cracking and threatening serious injury to the foundation. Michalson wanted the Nuttings to cut down the tree and remove the roots. They said “Nutting doing.”

Encroaching tree roots can sometimes be unsightly

Encroaching tree roots can sometimes be unsightly…

Michalson sued, asking the court to permanently enjoin the Nuttings from allowing the roots to encroach on his land. Besides an order that the Nuttings essentially stop the tree from growing, Michalson wanted money, too, to ease the pain of leaf raking and root cutting. The trial judge found the Nuttings were not liable merely because their tree was growing. He threw Michalson’s lawsuit out, and Michalson appealed.

Held: In what has become known as the “Massachusetts Rule,” the Supreme Judicial Court of Massachusetts held that a property owner’s remedies are limited to “self help.” In other words, a suffering property owner may cut off boughs and roots of neighbor’s trees which intrude into another person’s land. But the law will not permit a plaintiff to recover damages for invasion of his property by roots of trees belonging to adjoining landowner. And a plaintiff cannot obtain equitable relief — that is, an injunction — to compel an adjoining landowner to remove roots of tree invading plaintiff’s property or to restrain such encroachment.

Our takeaway today, therefore, would be the two concepts embodied in the Massachusetts Rule. The first is that you, the neighbor, need no permission from the tree owner to trim away roots and branches that overhang your property. That rule survives to this day just about everywhere. The second – which has been questioned to a much greater extent – is that you can’t sue your neighbor for the effects of encroachment by one of his or her trees.

Hold those concepts close, because tomorrow, we’ll see how things work on the other end of the country – Hawaii – where the law developed somewhat differently. Some say that size matters. We’ll see how true that is when the tree is a little too much for the court to ignore.

– Tom Root

TNLBGray140407

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