VIRTUAL TRESPASS
More today from the annals of good neighboring. Out in Washington State, where some mighty big trees grow, the Herrings shared a boundary tree with their next-door neighbors, Jose and Blanca Pelayo.
What do we know about boundary trees, trees that grow with part of the base in each of two or more properties? First and most important, states generally hold that the trees are owned by all of the property owners as a tenancy in common. For the purpose of tree ownership, “tenancy in common” is a fancy way of saying that no one owner may do anything to the tree without the permission of all of the owners.
In 2011, the Herrings trimmed some of the branches from the boundary tree, branches that were overhanging their property. They did not ask permission of the Pelayos before they did so.
That, of course, was so wrong. But rather than suing the Herrings – the Pelayos may have considered their response restrained on this point – Jose and Blanca decided to go tit for tat. They called their own arborist to look at the tree. He told them the tree seemed unbalanced and dangerous with the branches on the Herring side removed. He suggested a few options, including cutting all of the remaining branches off. Amazingly, the Pelayos thought that sounded like a good idea.
Just as had the Herrings, the Pelayos did not discuss their plans with the neighbors. After the arborist left what was essentially a very dead telephone pole standing on the boundary line, the Herrings (with no sense of irony) sued the Pelayos for trespass to trees, asking for treble damages under state law for wrongful cutting. The trial court found the Pelayos liable, awarding $10,475 to the Herrings.
On appeal, the Pelayos argued that they could not have possibly trespassed in cutting the tree, because they had never stepped off their own property when they butchered the tree, and anyway, under the Massachusetts Rule, they had every right to trim branches that were overhanging the property. They also argued they could not be liable for treble damages, because the trial court had not made a finding that the cutting was willful.
The appeals court made short work of the Pelayos’ arguments. Yes, the court said, you can trespass on timber without necessarily trespassing on the underlying land (we guess that’s virtual trespassing). No, the Massachusetts Rule does not let you cut overhanging branches from a boundary tree in which you have an ownership interest. And no, the trial court does not have to make a willfulness finding unless you have argued that the cutting was casual and involuntary. No one contended the cutting had not been willful.
There is a certain irony that the Herrings had done exactly what the Pelayos had done, except for merely mauling the tree rather than killing it. But the Pelayos apparently figured they could get even simply by replicating the Herrings’ bad conduct. The law does not work that way.
Herring v. Pelayo, 198 Wn. App. 828, 397 P.3d 125 (Ct. App. Washington, May 2, 2017). The Herrings and Pelayos are neighbors who share a common property line. In early December 2011, the Herrings hired a tree trimmer to remove some branches from a tree located on the common property line. The Herrings did not discuss their plan to remove branches from the tree with the Pelayos. The Pelayos thought the trimming done by the Herrings unbalanced the tree, constituting a danger to their home. So four weeks later, the Pelayos’ own tree trimmer removed all of the remaining branches, without first discussing their plan with the Herrings. The tree obligingly died.
The Herrings sued the Pelayos, claiming timber trespass in violation of RCW 64.12.030 or RCW 4.24.630. At trial, Jose Pelayo admitted he knew the tree was on the common property line, he told his tree trimmer to remove all of the remaining branches from the tree, he did not discuss his plan with the Herrings, the tree was alive prior to the removal of the remaining branches, and he figured that removing the remaining branches would kill the tree.
The trial court found the Pelayos liable for timber trespass under RCW 64.12.030 and awarded treble damages.
The Pelayos appealed.
Held: The Pelayos committed timber trespass. Although the Pelayos argued the trial court never specifically found their conduct to be willful, the court noted that Jose’s testimony “was tantamount to a concession that his conduct in removing the branches was willful, and there was no other evidence presented at trial from which the trial court could infer that this conduct was casual or involuntary. Therefore, no specific finding as to willfulness was required to conclude that the Pelayos were liable under RCW 64.12.030.”
The Pelayos also argued they couldn’t be liable for trespass “because they were lawfully authorized to remove branches from the boundary tree that were overhanging their property.” The Court agreed a landowner has the authority to “engage in self-help and trim the branches and roots of a neighbor’s tree that encroach onto his or her property.” A landowner does not, however, have the right to cut down an encroaching tree.
The Court held that the right of self-help, derived from the Massachusetts Rule, does not apply where the landowner using self-help owns an interest in the tree, because the portions of the tree overhanging his or her property cannot be said to be “encroaching.” You simply cannot encroach upon yourself.
What’s more, the Court said, as tenants in common, the Pelayos and Herrings were each entitled to use, maintain, and possess the boundary tree, but not in a manner that “interfered with the coequal rights of the other cotenants.” Unlike a landowner engaging in self-help to trim branches overhanging his or her property from a tree situated entirely on the property of another, a cotenant to a boundary tree has a duty not to destroy the common property and thereby interfere with the rights of the other cotenants.
The Court said, “We discern no meaningful distinction between cutting down a tree and trimming a tree in a manner intended to kill the tree.”
The Pelayos argued that because they cut the tree branches while standing on their property, they had probable cause to believe that they owned the land where such conduct took place. Their argument was based on the mistaken belief that the trebling provisions of RCW 64.12.030 don’t apply when the defendant’s conduct resulting in the destruction of a tree occurs while the defendant is on his or her own property. The Court held that even if the conduct resulting in the tree’s death occurred solely on the Pelayos’ own property, the trial court would not be required to conclude that mitigating circumstances applied to reduce the damages award. Instead, when determining whether mitigating circumstances applied, the relevant inquiry for the trial court was whether the Pelayos proved that their trespass on the common property tree was casual or involuntary.
At trial, the Pelayos did not claim, let alone prove, that the trespass upon the tree was casual or involuntary. Thus, they were liable for treble damages.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 