Case of the Day – Tuesday, August 31, 2021

BAMBOO-ZLED

In the Noxious Tree Hall of Infamy, you’ll find Osage Oranges that make a mess, Callary Pears that smell like an outhouse, the execrable and ill-named Tree of Heaven. But Number One may be running bamboo. It’s so bad, it’s in the Hall of Infamy and it’s not even a tree, strictly speaking.

Yet there are online tributes to the beauty of running bamboo, right along side Youtube videos on how to kill the stuff. Lest you wonder how to come down on this debate, be aware that laws banning the growing or even maintenance of existing stands of running bamboo are everywhere. That should give you a hint.

I’ve written about it before, and I don’t doubt that I will again. But today’s decision caught my eye, and – while long – it is a classic, both for the ingenuity of the defendants in suggesting that their bamboo invasion of the neighbors gave them a prescriptive easement to keep invading (because everyone knew the bamboo would invade), and for the court’s strenuous efforts to pound the defendants on every cause of action.

I mean, really, the defendants trespassed on the plaintiffs’ property because roots from bamboo they planted in the 1990s encroached on their neighbors in 2017? That’s fairly contrary to the rule that growth from natural things that invades the neighbors – even if a nuisance – is not a trespass.

Sultan v. King, 2021 N.Y. Misc. LEXIS 4575, 2021 NY Slip Op 21227 (County Ct. Suffolk Co., August 19, 2021). The Sultans and the Kings owned vacation homes on Shelter Island, New York. About 30 years ago, the Kings planted a grove of running bamboo on their property to serve as privacy screening between their place and the Sultans’.

When they planted the bamboo, it was still legal to do so. Although New York outlawed plant running bamboo in 2015, existing stands of bamboo were grandfathered in, so the Kings were able to keep and maintain their stand of the noxious stuff.

The Court noted that “[t]here is no dispute that running bamboo is an invasive species of plant that can be expected to spread in all directions. The invasive nature of running bamboo has spurred legislative action in many jurisdictions. As noted, in New York State it is unlawful to plant running bamboo due to its noxious nature. Many local jurisdictions on Long Island have adopted laws that either prohibit the maintenance of running bamboo or which impose regulations on properties where running bamboo is located so as to prevent the spread to neighboring properties… The regulations vary from outright prohibition of growing or maintaining running bamboo, requiring the removal of existing bamboo, to prohibiting the spread to neighboring properties or within a certain distance of property lines. Some also require remediation of encroachments of running bamboo onto neighboring properties.

But Shelter Island was not such a town.

The Kings kept a landscaper busy keeping their bamboo under control in their yard, but they did nothing to keep it out of other yards, including that of the Sultans. Mrs. Sultan testified that she and her husband have consistently employed a gardener who regularly mows the lawn and maintains the landscaping on their property, and paid him extra to clean bamboo leaves and debris that had fallen onto their property from overhanging bamboo.

By 2017, the running bamboo – an invasive species that tends to spread in all directions – was spreading into the Sultans’ yard.  The Sultans testified that they first became aware of the spread of the running bamboo onto their property in the spring of 2017. The Kings said the Sultans complained in 2017 about the spread, which was relevant to the Kings’ statute of limitations defense that the Sultans did not sue within the time permitted by law.

Even if that were not so, the Kings argued, everyone knows running bamboo runs, which means that the Kings acquired a prescriptive easement over the Sultans’ property to let their bamboo grow and grow and grow… Finally, they argued, the Sultans could control the bamboo by mowing down the young shoots, so it could not possibly be a nuisance.

Held, the Sultans could proceed with their suit, and recover damages for nuisance and trespass.

Initially, the court held, it was immaterial when the Sultans first learned about the spread of bamboo onto their property from defendants’ property, because the trespass was continuing. Every day was a new affront, and renewed any claim the Sultans had.

As for the negligence cause of action, it accrues at the time when the damages become apparent. The Sultans testified that the first time they became aware of the encroachment of bamboo growth spreading onto their property was in the spring of 2017. Since the underground spread of the bamboo system, according to the experts for both sides, preceded the sprouting of bamboo above the soil line, the encroachment of the bamboo must have occurred at an earlier time. However, the court found the Sultans’ testimony that they first became aware of the bamboo encroachment onto their property in 2017 to be credible, and started the statute of limitations running then.

The court made quick work of the Kings’ claim to a prescriptive easement. To establish a prescriptive easement, a party must prove by clear and convincing evidence that the use of another’s real property was open, notorious and continuous for a period of at least ten years. Here, the court ruled, “defendants have utterly failed to prove any of the elements of a prescriptive easement, much less by clear and convincing evidence. There is no evidence that any of the parties were aware of the encroachment of the defendants’ bamboo onto plaintiffs’ property, with particular reference to the side of the house abutting defendants’ property and the front yard, prior to 2017. Further, encroachment of bamboo roots underground not visible hardly amounts to a ‘use’ of real property or ‘open and notorious’.”

Even though the bamboo was legal, the Kings were still liable for private nuisance if their conduct was “a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities.  The invasion is intentional when the party at fault acts for the purpose of causing it, or knows that it is resulting or is substantially certain to result from his conduct.”

Here, the evidence showed that the Kings’ bamboo spread onto the Sultans’ property was a “substantial, intentional, unreasonable interference with plaintiffs’ right to use and enjoy their property and that it was caused by the failure of defendants to act to prevent the migration of the bamboo from their property onto plaintiffs’ property.” Although the Kings argued that running bamboo can be contained by regularly mowing and clipping of sprouts before they grow into stalks, that only controls the bamboo, but does not eradicate it. The Sultans’ expert admitted that the bamboo growth and roots that had spread underneath their deck would have to be excavated to stop the spread and growth of the bamboo. The Kings’ expert witness admitted he had used barriers dug into the ground to contain his own bamboo field decades ago. The court held that only effective means to eradicate and contain the bamboo is to excavate and remove the existing bamboo growth and to install a barrier.

The Court also observed that the Kings’ argument “that mowing and clipping is an effective means to prevent the spread of bamboo is belied by the determination in 2015 to make it unlawful to plant running bamboo in the State of New York. Also, the many local jurisdictions that have gone further to regular existing bamboo fields to require setbacks from neighbor’s property and to require the removal of bamboo that had spread to other properties is further evidence that the containment method offered by defendants is not in fact an effective means to stop the spread of running bamboo and to eradicate the underground root systems.”

The court concluded that the running bamboo was a private nuisance.

The elements of trespass are an intentional entry onto land of another without justification or permission.  The court said the Kings intentionally planted the bamboo on their property. “While not necessarily ‘immediate’,” the court said, “there is no question that the intrusion upon plaintiffs’ property was inevitable given the fact that defendants did nothing to prevent the spread of the bamboo. The nature of running bamboo is to spread in all directions unless action is taken to contain it, as testified by the experts for both sides. Accordingly, the court finds that the bamboo encroachment onto plaintiffs’ property constitutes a trespass, plaintiffs having proven the elements of trespass by a preponderance of the evidence.”

Finally, the court found that there was no question that the Kings failed to exercise reasonable care in the maintenance of their property by not taking action to prevent the spread of the bamboo, and thus were negligent.

The court held that the Kings owed the Sultans $57,149.38.

– Tom Root

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