A GAME OF INCHES
Life imitates art, I guess. Last weekend, I hauled away our 25-year old shed. I am replacing it with a newer, larger shed – complete with electricity, windows, and (if I have anything to do with it) a beer refrigerator. Behind the shed on or near our property line stands a line of arborvitae trees. They were tiny little shrubs when our next-door neighbor (two owners ago) planted them. Now, they’re monsters.
I need to trim back a few of the arborvitae before the concrete pad for the new shed gets poured. Having read some of what I have written about boundary trees over the past few weeks, I figured I had better be sure I was dealing with some good old-fashioned Massachusetts Rule trimming of branches overhanging my property, and not with some oversize arborvitae that had grown across the property line to become boundary trees.
I found the iron pin on one end of the property line and the post on the other, and ran a line through the trees. Sure enough, two of them have grown across the property line. Lucky for me, the ones I need to trim are still solidly anchored completely on my neighbor’s land. Those I can trim back, exercising both my Massachusetts Rule rights and my ratcheting loppers.
It seems strange that a matter of inches differentiates the trees I can trim with abandon and the trees that I cannot touch without my neighbor’s permission. (I have a great neighbor, by the way, so it is probably not a problem). Nevertheless, the perverseness of the interplay between boundary trees and encroaching trees that stand completely on land other than one’s own is puzzling and irritating to me in an academic and legalistic way.
My situation is similar to the one in today’s case, which pits a car wash against a restaurant over a row of pine trees that may or may not be on the boundary. Because of the vagaries of how the pine trees at the root of the lawsuit grew along the property line, no one really won: the restauranteur wanted the trees gone, and the car wash owner wanted the trees to remain.
In the end, some of the trees stayed, some did not. And it was all a game of inches…
Wolfinger v. Moates, 7 Pa. D. & C.4th 220 (Pa.Com.Pl. 1990). A line of pine trees separated the Wolfinger Car Wash property from the Moats Restaurant property. Bill Moats received complaints from his patrons about the pine trees, that encroached on his parking lot, scratched diners’ cars and dropped pine cones everywhere (even damaging his lawnmower).
Bill decided to cut down the trees. He told his neighbor, “Suds” Wolfinger, what he planned. Suds was shocked. He liked the trees, because they served as a barrier between his business and the restaurant. Plus, his customers liked parking under them, using the shade while they wiped down their cars. He asked Bill not to cut them down.
Bill did anyway, taking down four of the 13 trees on his first day wielding a chainsaw. Suds raced to his lawyer, and together they raced to the courthouse for a temporary injunction. After Bill was forced to stop, Suds tried to make the injunction permanent.
The court found that the two tracts of real estate shared a common boundary line, and 13 trees stood on or near the line. A survey showed that the first five trees, including the four Bill had cut down, were all on his property. Lucky Bill. The next three, however, straddled the boundary. The Court referred to them as “line trees.” Tree No. 9 was on Bill’s land, but some bark on the flare touched the boundary line. The last four trees were all on Bill’s land.
Pennsylvania law made it unlawful “for any owner or owners of any undivided interest in timber land within this Commonwealth to cut or to remove, or to cause to be cut or removed, from the said land, any timber trees, without first obtaining the written consent of all co-tenants in said premises.”
The Court held that the statute dictated its holding that the owners of adjacent tracts of real estate own all trees growing on their common boundary line as tenants in common. Tenants in common are prohibited from unilaterally cutting down or removing such commonly owned line trees.
Applying the general rules of law governing tenancy in common, the Court held, “we conclude neither adjoining real estate owner may remove a tree growing on a common boundary line. Consequently, in the case at bar, notwithstanding the fact that only inches of the trunks of trees 6, 7 and 8 are on the boundary line between the properties of the plaintiffs and defendants, those trees are jointly owned by plaintiffs and defendants. Therefore, defendants may not remove them.”
Suds was not satisfied. He argued that Tree No. 9 was commonly owned as well, because the bark of the tree’s trunk touched the boundary line. Citing the Illinois case Ridge v. Blaha, the Court held that the critical question was “whether any portion of the trunk of the elm tree grows on plaintiff’s property… The law… is determined by the exact location of the trunk of the tree at the point it emerges from the ground.” The fact that the bark of Tree No. 9 touched the line, the Court said, was insufficient to create a tenancy in common.
Trees 1 through 5 and 9 through 13, therefore, were Bill’s sole property. He could cut them down as he wished. But the injunction would become permanent on Trees No. 6 through 8, leaving them to provide both shade and pine cones.
– Tom Root