Case of the Day – Wednesday, June 8, 2022


If there are two basic building blocks of tree law, they are the Massachusetts Rule – that New England rock of individualism and self-reliance – and the Hawaii Rule – that piece of creeping socialism that lets a property owner use the courts to force a neighbor to remove a tree that was a bother (we said that tongue-in-cheek).

After running out of gas and the funds needed to pay for it, I was homebound. For something to do, I went on a quest to identify the legal precedent in every state that addresses the issue of the encroachment of overhanging limbs and subsurface roots, so that we could present a state-by-state compendium of encroachment law. It was either that or cut the grass on my hands and knees with a pair of scissors (no gas for the mower). Wisely, I opted to go the encroachment route.

I had not even gotten out of the Northwest Territory – remember what that is? – when I found that the Massachusetts Rule did not start in Massachusetts. What’s more, as we see today, the Hawaii Rule was the law of the land in the Hoosier State back when Hawaii still had a queen, and the Americans had yet to diddle in the affairs of the Kingdom in order to engineer annexation.

Indiana’s rule can be summed up as this: a tree that encroaches on a neighbor’s property and creates a nuisance – producing such a condition that in the judgment of reasonable persons is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits” – has to be removed at the expense of the tree’s owners.

A tough place, Indiana… In today’s case, a tree that had once belonged to the plaintiff – who had sold the property to the defendant – had grown into the boundary fence, damaging it. The roots raised some sidewalk slabs on a walkway the plaintiff maintained near the boundary. The plaintiff, unwilling to fix the rather minor damage ($2,500 in 2010, not a princely sum), went to small claims court to make the other guys pay.

It seems to us that as a matter of equity, the plaintiff knew something like this would happen when he let the tree sprout years before, at a time when he owned the parcel on which the tree was growing. But equity appeared not to have any place in the courtroom that day.

But back to my basic point: the Hawaii Rule did not originate in Hawaii at all. What we thought we knew about that Rule turns out to be wrong. What next? Is the Massachusetts Rule equally mislabeled? Tune in tomorrow…

Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind.App. 2011). Steve Scheckel owned a piece of property separated by a chain-link fence from a plot belonging to NLI, Inc. Steve has a walkway paralleling the fence that runs about five feet from the boundary line. Steve had previously owned both his land and the NLI property, and – when he had – a tree grew on the NLI property near the fence. After he sold the land to NLI, the tree continued to grow, as trees are wont to do, until it grew into the fence and its roots grew under the walkway, leaving the gate in the fence unusable and the walkway badly cracked and buckled. Steve spent $2,500 fixing the mess.

Steve complained to NLI about the damage, but the corporation took no action. He then sued NLI for negligence and nuisance in small claims court. The court found for NLI on the grounds that while the size and placement of the tree damaged the fence and walkway, a landowner is not liable for harm caused beyond property boundaries by a natural condition of the land.

Steve appealed.

Held: The Court of Appeals reversed, and ordered that the trial court find NLI liable.

Steve contended that the trial court erred in applying the “natural condition” rule. The natural condition rule, as set out in which provides that a landowner was not liable for harms caused to others outside of his land caused by a natural condition of the land, arose “at a time when land was largely unsettled and the burden imposed on a landowner to inspect it for safety was held to exceed the societal benefit of preventing possible harm to passersby.”

Over the years, the rule has been subject to exceptions when landowners had actual knowledge of a dangerous natural condition, regardless of location, and – in an urban area – when he or she fails to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of the trees on the land near the highway. The rationale for imposing such a duty on urban landowners is that the risk of harm to highway users is greater and the burden of inspection on landowners is lighter in such populated areas.

Most recently, the Indiana Supreme Court observed that the natural condition rule as stated in the Restatement of Torts § 363(2) has little or no utility in an urban setting. A landowner in an urban or residential area “has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring land owners, arising from the condition of trees on his or her property.”

Here, the Court of Appeals said that

[s]trictly applying the Restatement rule in these settings would leave landowners powerless in the face of a neighbor who refuses to remove or secure an obviously decayed and dangerous tree simply because it is a natural condition of the land. As a result, Indiana, along with several of our sister states, has retreated from strictly applying the Restatement rule in urban or residential settings where the landowners have actual or constructive knowledge of the dangerous condition.

Here, the small claims court held that the condition of NLI’s tree did not pose an unreasonable risk of harm to neighboring landowners, but rather the placement and size of the tree that caused the damage. The Court of Appeals, however, disagreed, seeing “no meaningful difference between the two situations. Indeed, it may be difficult to determine whether a tree is decayed to such an extent that it poses an unreasonable risk of harm to an adjoining property owner, but a tree upon one’s property that is growing into a structure on an adjoining property is readily observable.”

The Court applied a three-part duty analysis it adopted from an Indiana Supreme Court ruling, concluding that a landowner in a residential or urban community owes a duty to prevent an unreasonable risk of harm to adjoining property owners or their property resulting from trees growing upon the landowner’s property. Those three factors – relationship, foreseeability and public policy – all support its conclusion that NLI owed Steve a duty:

The relationship is significant in that it is between the owners of adjoining property, and will often be that of next door neighbors. There is a high degree of foreseeability of harm where one’s tree is growing into a structure on an adjoining property. Finally, the landowner is best situated to prevent or minimize the harm by trimming the tree upon the landowner’s property. Accordingly, we conclude that the trial court erred in applying the natural condition rule to bar Scheckel’s negligence claim.

The Court also said the natural condition rule did not bar Steve’s private nuisance claim, either. A nuisance is defined as whatever is injurious to health, indecent, offensive to the senses, or an obstruction of the free use of property, such that it essentially interferes with the comfortable enjoyment of life or property. Ind.Code § 32-30-6-6. A public nuisance affects an entire neighborhood or community, while a private nuisance affects only one individual or a determinate number of people, arising when it has been demonstrated that one party has used his property to the detriment of the use and enjoyment of another’s property.

Nuisance actions may either be nuisances per se (at law) or nuisances per accidens (in fact). A nuisance per se occurs when the use itself is unlawful. A nuisance per accidens, a nuisance-in-fact, is not a nuisance in itself but becomes one by the manner in which it operates. In determining whether a private nuisance per accidens is actionable, the inquiry is whether the alleged nuisance produces such a condition that in the judgment of reasonable persons is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits.”

Ever since 1894, the Court said, Indiana has recognized the right of landowners to recover damages to their property caused by trees growing on an adjoining property as a private nuisance. In the 1894 Toledo, St. Louis & Kansas City Railroad Co. v. Loop decision, the Indiana Supreme Court held that in the event of trees growing so close to the boundary line between two properties that their branches encroach on the adjoining premises, the adjoining landowner may have an action for damages in nuisance if injury were shown.

The Court of Appeals concluded that the trial court erred by applying the Restatement’s natural condition rule to Steve’s cause of action.

– Tom Root


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