Case of the Day – Friday, February 10, 2023


The Massachusetts Rule is a topic I tend to flog ad nauseam. This is chiefly because it arises in so many states and in so many forms.

There are two components to the Massachusetts Rule. The first is easy and universally acclaimed. A landowner owns the portion of branches and roots of a neighbor’s tree that encroach on the landowner’s property and may trim those to his or her heart’s content.

The second is more controversial, and has been limited or abridged by a number of jurisdictions, that a landowner’s right to stop an encroaching tree from harming his or her property is limited to self-help – you can trim limbs and cut roots to the boundary line, but you cannot sue to force the tree’s owner to do it for you.

There are more exceptions than you can shake a fallen limb at. The Hawaii Rule holds that you can sue to have the tree’s owner “abate a nuisance,” that is, do whatever it takes to stop the tree from causing you “sensible harm.” Variations have been adopted in Virginia, North Dakota, New Mexico and Tennessee, to name a few places. In fact, some argue that the Massachusetts Rule is a frontier relic, and these days, urbanization and complexity make it prudent for tree’s owner to be responsible for nuisances it causes.

Curiously, however, everyone still refers to the original flinty self-help standard as the Massachusetts Rule. But it arose in Michigan before that, and – as we see today – in sunny California about seven years before Michigan.

I saw a column in the San Francisco Examiner the other day written by a California lawyer. He was explaining how California fixed liability for fallen trees. He cited a California Supreme Court case called Grandona v. Lovdal, which he described as a 1952 decision that applied the Massachusetts Rule in California (although he did not call the rule that).

I was puzzled, because I thought I knew the leading California cases for the last half of last century. I had never heard of Grandona or Lovdal. I looked it up and had a tough time finding it. It turned out it had been decided 63 years earlier, in 1889.

And it is a fascinating case, one in which the parties squabble of how much benefit or damage the trees caused, exhaustively referree’d by the trial court. The California Supreme Court simply cut the Gordian knot: it does not matter, the Court said, because the plaintiff has the power to stop encroachment at the property line, and with a saw instead of a lawsuit. While the Court did not say that a nuisance action would never lie (and California has leaned more toward Hawaii and away from Massachusetts in the ensuing 130 years), it seemed to pretty firmly foreclose any successful nuisance action as long as the landowner could be said to own anything straying over or under the damaged property.

So why don’t we call it the California Rule?

Grandona v. Lovdal, 21 P. 366, 78 Cal. 611 (Supreme Ct. Cal. 1889). Andrea Grandona owned about 15 acres of farmland next to that of Ole Olson Lovdal. Ole Olson (probably not the children’s chant) had a line of cottonwoods, planted about eight feet apart, running for 500 feet or so just on his side of the boundary, planted about 25 years before by a prior owner.

Andrea complained that the branches of the tree were overhanging part of her land, and the roots were encroaching about 30 feet into her property, making plowing impossible. She sued to abate a nuisance and for damages, wanting Ole Olson to pay her for the damage the trees caused, and to cut them down.

The trial court would have none of it. It found that the trees had not destroyed any portion of Andrea’s crops, and they had not prevented Andrea from plowing or cultivating the land. In fact, the trees had anchored the fence against floods, and Ole Olsen had kept the trees trimmed, using the limbs he removed for fuel and construction, but he had done nothing more to affect their growth other than to trim.

Andrea appealed, and the case ended up in the Supreme Court.

Held: The trees were no nuisance, and Ole Ole Olson is in free.

The Court was not impressed with Andrea’s complaint that the trees prevented full and fair use of the land, because he could not plant fruit trees on the shaded portion. The Court noted with a bit of exasperation that “we are unable to see how it can be said that land is injuriously affected, or that its owner’s personal enjoyment is lessened, because he cannot use it for a purpose which he has never attempted or wished to use it for.”

The heart of the Court’s decision, however, was that Andrea could hardly be inconvenienced by overhanging branches or encroaching roots because that which encroached on his property belonged to him. “The trees and the overhanging branches,” the Court said “insofar as they were on or over his land, belonged to the plaintiff, and he could have cut them off or trimmed them at his pleasure. This being so, we do not see how the fact that the trees had grown so that a small part of them was on plaintiff’s land could give him any cause of action.”

Andrea argued that Ole Olson “maintained the trees for the purpose of supplying himself with fuel and hop-poles, and thereby using plaintiff’s land for his own profit and advantage.” But how can this be so, the Court wondered. “The fuel and hop-poles growing over plaintiff’s land were his and could have been claimed by him as against the defendant. And the fact that the balance of the limbs and branches were useful to defendant in no way harmed the plaintiff or gave him cause for complaint.”

The trial court’s dismissal of Andrea’s complaint was upheld.

– Tom Root


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.