Case of the Day – Tuesday, February 21, 2023


Years ago, our neighbor Olwen – who, if she had not passed away (meaning, of course, that we cannot speak ill of her), we would have described as a battleaxe – surrounded two sides of her property with 2-3’ arborvitae. It didn’t really look that bad, but… well, they grew.

And grew, and grew and grew. Our neighbor never trimmed them before she departed this mortal coil. And the two families who lived there subsequently never trimmed the trees, either.

Consequently, the arborvitae are 25 feet tall and still growing. We finally had to move our vegetable garden about 20 yards to the west because of the shade they were throwing. Exercising our Massachusetts Rule rights last fall, we hacked about ten of them back to the property line in order to install a new shed. We then built a fence to try to keep the monsters in check.

My wife mutters about the arborvitae daily. I have no problem understanding Nancy – the protagonist in today’s case – who must have loved neighbor Pnita’s arborvitae as much as my wife loves Olwen’s. But while my wife just glowers at the arborvitae, Nancy – a woman of action – did something. She brought in a trimming crew and topped the neighbor’s trees.

She didn’t kill them, just sort of knee-capped them. Who knew that so much visceral pleasure could end up being so expensive?

So this post is for my wife, a cautionary tale lest she decides to take matters into her own hands on the next-door arborvitae. Take a deep breath, honey…

Joseph v. Nathanson, 87 Mass. App. Ct. 1102, 23 N.E.3d 151, 2015 Mass. App. Unpub. LEXIS 37 (Ct.App. Mass. Jan. 16, 2015). Pnina Joseph and Nancy Ellen Nathanson owned abutting properties and share a property line. Pnina planted thirty-five arborvitae trees on her property close to the property line to serve as a privacy screen. In October 2012, Nancy directed her landscaper to go onto Pnina’s property and “prune” the trees. The landscaper “topped” the trees by cutting about five to six feet from the tops.

Pnina sued under Massachusett’s tree-cutting statute, G. L. c. 242, § 7, and a jury returned a verdict in Pnina’s favor, awarding her $35,000. The award was trebled under the statute. Nancy appealed, arguing that her actions did not violate the tree statute because the trees were not “cut down” or “destroyed” as required by the statute.

Held: “Topping” the trees so that they would no longer grow any higher justified application of the Massachusetts wrongful-cutting statute.

General Law c. 242, § 7 provides for liability on the part of anyone who “without license willfully cuts down, carries away, girdles or otherwise destroys trees.” Nancy asserts that under the tree statute, Pnina’s trees had to be completely destroyed or cut down in order for the plaintiff to recover. She argues that the evidence showed that the trees were alive, growing, and healthy after the topping of the trees and therefore could not possibly have been “destroyed.”

The Court said it would interpret a statute to give effect “to all its provisions, so that no part will be inoperative or superfluous.” The statute here requires that the trees be “cut down, carried away, girdled or otherwise destroyed.” G. L. c. 242, § 7. “The phrase “otherwise destroyed” includes,” the Court said, “but is not limited to, the preceding phrases including ‘cut down’.” In other words, “cut down, carried away,” and “girdled” are examples of how a tree may be destroyed; they are not exclusive.

The judge instructed the jury that the word “destroy” has a commonly understood meaning, which includes “to ruin completely, to ruin the structure, organic existence or condition of a thing, to demolish, to injure or mutilate beyond possibility of use.” The Court held that this definition given to the jury correctly provided a broader meaning to the term destroy than the examples in the statute.

Pnina’s expert testified that the “topping” of the trees meant that they would never grow vertically again and were no longer functional as a privacy screen. The jury was entitled to credit that testimony, to agree with Pnina that the trees were “mutilated beyond possibility of use” as a privacy screen, and therefore to find in Pnina’s favor.

– Tom Root


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