Case of the Day – Friday, October 5, 2018

I’M FROM MISSOURI

All right, I’m not from Missouri, but I have passed through the “Show Me State” a few times, and it’s a pretty nice place. But, given their reputation for being hard to convince, how would Missourians treat encroachments to their properties from trees not their own.

On one hand, there’s the state nickname. The most well-known and widespread story features Missouri’s United States Congressman, Willard Duncan Vandiver, who gave a speech in 1899 to some Philadelphians in which he said:


”I come from a state that raises corn and cotton and cockleburs and Democrats, and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You have got to show me.”


The underlying meaning of his statement may be interpreted as being a claim that Missourians are not naïve: If you want one to believe you, you better have convincing evidence . 

On the other hand, Missouri’s official motto is “salus populi suprema lex esto,” which my late sainted Latin teacher Emily Bernges would have told us translates to “the welfare of the people shall be the supreme law.” All right, let’s run with that. When Pete Hasapopoulos’s driveway started crumbling from neighbor Joyce Murphy’s Chinese elms, was his good the supreme law? Or, because Missourians are not naïve, should he have known that Joyce’s Chinese elms were going to grow?

After all, a natural tree largely does what it wants to do. It may sit on one owner’s property, but above ground, the branches may spread over the neighbor’s property, and leaves or fruit or even deadfall may make a mess of the neighbor’s house, outbuildings or yard. Underground, the root systems may spread until they meet retaining walls, basements, septic systems and underground utilities.
This phenomenon is called “encroachment.”

Traditionally, the rule has been that any property owner has the right to trim back branches and root systems to the property line, at his or her own expense. This “self-help” doctrine is known as the Massachusetts Rule, so called because it was first articulated in a Massachusetts case known as Michalson v. Nutting. The dark side of the Massachusetts Rule was that no matter how destructive the neighbor’s tree was to your property, you had no right to sue your neighbor to force him or her to trim the tree or roots, or to get any financial help from your neighbor for costs you incurred in doing it.

As American society became more urbanized, other courts took a more liberal view. When a neighbor’s banyan tree – a monstrosity of a tree – began overgrowing Mr. Whitesell’s property in Honolulu, he sued his neighbor to get a court order to force the neighbor to take care of the problem. Impressed by the sheer magnitude of the nuisance caused by the tree, the Hawaii court held that in Whitesell v. Houlton that while anyone had the right of self-help as described in the Massachusetts Rule, when a tree caused sensible harm to a neighbor, the owner of the offending tree could be ordered to trim the tree or roots at his or her own expense. This is called the Hawaii Rule.

The Hawaii Rule 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.

But not in Missouri. What’s that? “Show me,” you demand? All right, you’re from Missouri. We will.

Hasapopoulos v. Murphy, 689 S.W.2d 118 (Court of Appeals of Missouri, Eastern District, 1985). Pete Hasapopoulos experienced problems from overhanging branches and cracking of his driveway caused by the roots of two Chinese elm trees owned by the next-door neighbor, Joyce Murphy. The trial court held that Joyce was not liable, and Pete appealed.

Held: Joyce prevailed.

The Court of Appeals, agreeing with other jurisdictions “which find no cause of action for damages to neighboring property caused by encroachment of the roots or branches of healthy trees,” found that Joyce was not liable. At the same time, it held that Pete retained a right of self-protection by cutting off the offending roots or branches at the property line.”

The Court observed that Missouri is “squarely among those jurisdictions which find no cause of action for damages to neighboring property caused by encroachment of the roots or branches of healthy trees, but leaves the plaintiff to his right of self-protection by cutting off the offending roots or branches at the property line.” And here, Pete had no proof the chinese elms were defective.

Application of the Massachusetts Rule, the Court, results in no injustice in this case. “Neither plaintiffs nor defendant committed a wrongful act. We are not inclined to find defendant acted unreasonably in permitting perfectly healthy trees to grow, and certainly defendant intended no harm thereby. The trees and their proximity to plaintiffs’ land existed when plaintiffs purchased their residence. They must be charged with awareness of the potential effects of growing trees. Recourse to self-help to protect from damage and to eliminate annoyance from overhanging branches was available to plaintiffs for 15 years before they had the branches cut off at the property line. Imposition of liability upon the tree owner under such circumstances would create the potential for continuous controversy between neighbors and could promote harassment and vexatious litigation, disruptive of neighborhood serenity. Possible exposure to liability would warrant the uprooting of trees and shrubbery in proximity to boundary lines resulting in non-aesthetic barrenness.”

– Tom Root

TNLBGray

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