IT’S YOUR PLACE – TAKE CARE OF IT
It’s fun these days to deride the Massachusetts Rule as a relic of a bygone era, when manly men hewed the logs for their cabins, wielded their own axes for firewood, and posted their own selfies as drove their oxen teams in the fields. Back in that rustic pre-war era (before the first Persian Gulf war) when the web was something you walked into down in the basement and “text” was not a verb.
The Massachusetts Rule, of course, embodies the libertarian view that each landowner is both entitled to and limited by the doctrine of “self help.” The Rule has two prongs. The first is universally accepted: a landowner has a right to cut encroaching branches, vines, and roots back to the property line, provided he or she does not enter the adjoining landowner’s property to chop down a tree or cut back growth without the neighbor’s consent.
The second prong of the Massachusetts Rule is less widely acknowledged. Rather, it has fallen out of favor to a great extent over the past 30 years.
But when Jon Melnick ran into problems, the second prong was still the law of the land. Back in the late 1970s, Jon bought a decrepit Baltimore warehouse next to the railroad tracks, which he then repaired for commercial use. After he fixed the place up, he discovered that a fair amount of the reason the property had become run down to begin with was that the Baltimore & Railroad (which after several mergers, consolidations and rebrandings, had become a component of CSX Transportation, a subsidiary of CSX Corporation) did little to maintain the trees alongside its railroad right of way. As a result, branches were overhanging the warehouse, dropping twigs and leaves and vines and other plant life onto the roof.
Jon complained to the railroad all the live-long day, but no one paid any heed to his lament. So he sued, alleging trespass, negligence, and nuisance.
Don’t bet against the home team. The Baltimore & Ohio prevailed in Baltimore. The Maryland court followed the Massachusetts Rule to the letter. In a paean to an era of rugged individualism lost since past, the Court held that the privileges of real estate ownership are accompanied by certain obligations. One of those is “proper maintenance.” Indeed, the Court lectured that “to grant a landowner a cause of action every time tree branches, leaves, vines, shrubs, etc., encroach upon or fall on his property from his neighbor’s property, might well spawn innumerable and vexatious lawsuits. We have gotten along very well in Maryland, for over 350 years, without authorizing legal actions of this type by neighbor against neighbor.”
Well, of course! We’ve always done it that way! We got along just fine for 275 years without paved roads. For that matter, candles served us well in the evening, and those newfangled electric lights just encourage people to remain awake past their bedtimes!
The justification that ‘we’ve always done it that way’ is usually a poor reason to resist change. While it got CSX off the hook, and picked Jon’s pocket to have his roof and gutters constantly cleaned, the Massachusetts Rule’s proscription on legal redress for encroachment was already on the exit ramp when this case was decided in 1988. The Hawaii Rule – which holds that when there is imminent danger of overhanging branches causing “sensible” harm to property other than plant life, the tree owner is liable for the cost of trimming the branches as well as for the damage caused – has gained traction in a number of states over the past 20 years. Tennessee, New Mexico, North Dakota, Arizona and New York follow it. Several other states follow the rule with variations: in Oregon, the owner of the offending tree must somehow be at fault or the tree must be “ultrahazardous.” In Missouri, the Hawaii Rule is followed if the offending tree is diseased or damaged, but the Massachusetts Rule is followed if it’s healthy.
Until 2007, Virginia had an unworkable rule that in order for a neighbor to be liable for damage caused by his or her tree, it had to be “noxious,” that is, one generally seen to be a pest. It abandoned that approach in favor of holding 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. But 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.
The Melnick court found it “undesirable to categorize living trees, plants, roots, or vines as a ‘nuisance’ to be abated, citing an Ohio case holding that “[t]o grow a tree is a natural act of the soil. It is not itself a dangerous instrumentality.” Were the issue to arise in Maryland courts now, 30 years later, we suspect the outcome would be much different.
Melnick v. CSX Corporation, 312 Md. 511, 540 A.2d 1133 (Ct.App.Md. 1988). Johnathan Melnick purchased a warehouse in Baltimore that shared a common boundary with a railroad right-of-way owned by the Baltimore and Ohio Railroad Company. He replaced the roof, which had been in poor condition.
Since the roof replacement, Melnick experienced constant clogged drains, standing water, roof deterioration and some water damage to stored merchandise. These problems result from leaves and limbs falling on his property from the railroad’s trees. Melnick tried to remedy this situation by cleaning the gutters on several occasions and cutting back the growth, but the problem continued. When his complaints to the railroad were ignored, he sued on theories of trespass, negligence, and nuisance.
The trial court granted judgment to the railroad, holding that Melnick was limited to a self-help remedy. Melnick appealed.
Held: Under the circumstances, Melnick had no cause of action against the railroad. The appellate court reasoned that the remedy of “self-help” was generally the most efficient way in which to prevent injury from occurring to property due to encroaching vegetation.
The Court followed the Massachusetts Rule, set out in Michalson v. Nutting. “We believe that it is undesirable to categorize living trees, plants, roots, or vines as a “nuisance” to be abated. Consequently, we decline to impose liability upon an adjoining landowner for the ‘natural processes and cycles’ of trees, plants, roots, and vines… ‘Indeed, such natural growth and shedding processes of trees are inherent… and to most people constitute a pleasurable reflection of seasonal changes’.”
The Court held that a landowner must assume responsibility for the care and preservation of his or her own property. “Along with the benefits derived from property ownership come certain obligations. Proper maintenance of one’s own property is one of these obligations.”
– Tom Root