Fencerows and Boundary Trees

BOUNDARY TREES

Questions sometimes arise about the ownership of and responsibility for boundary trees, trees that grow on or near the boundary line between adjacent properties. Who has the legal right and responsibility for the removal or care of such trees? As is the case with so much in the law, that depends …

Very generally – and we can’t stress enough the general, non state-specific nature of the following – the following principle apply:

• If the trunk of the tree is located entirely on one owner’s land (even if limbs overhang or root systems protrude into a neighbor’s land), the person on whose land the trunk is located owns the tree and has the absolute right to either keep it or completely remove it. This is true even where the tree may provide shade, enjoyment, or value to the folks next door.

• If the trunk is located entirely on one owner’s land, an adjoining owner has no right to remove or destroy the tree even if it causes personal inconvenience, discomfort, or damage. However, if the branches extend overhang or if the tree sheds debris onto the neighbor’s land, other rules apply. See the Massachusetts Rule, the Hawaii Rule or the Virginia Rule.

• If the tree is located such that its part of its trunk is on both properties (even if nearly all the trunk may be on one side), the law generally considers the tree the “common property” of both landowners. In this event neither owner has the right to remove or injure the tree without the other’s consent. Even minor trimming should not occur until communication occurs between the owners.

THE COLORADO APPROACH

Ah, but don’t start singing “We are the World” just yet. There are exceptions … there’re always exceptions.

Take Colorado, for example. In that state’s leading case on the subject, one neighbor mistakenly planted trees entirely on the property of his neighbor, at least by a few inches. You know what happens when trees grow. These grew so they stood astride the boundary line of the properties.

At least that’s where they stood until the neighbor cut them down. The Rhodigs claimed the trees that grew on both properties were owned as tenants in common. This was important, because the traditional rule was that trees straddling a boundary belonged to both parties as tenants in common. Neither party could cut down the trees without the consent of the other. The Supreme Court of Colorado held that whether the trees grew on the boundary wasn’t as important as what had been the agreement between the parties when the trees were planted. There has to be meeting of the minds as to the planting, the care, or even the purpose of the trees, the Court said, because without an agreement, one party cannot have an ownership interest in something affixed to someone else’s land.

A spirited dissent argued the tradition English rule — that held that trees straddling a boundary belonged to both parties as tenants in common — makes more sense. Certainly, it saves a lot of judicial hair-splitting as to agreements and courses of dealing between two neighbors who were now in court.

Rhodig v. Keck, 161 Colo. 337, 421 P.2d 729, 26 A.L.R.3d 1367 (Sup.Ct. Colo. 1966). The Rhodigs sued Roy Keck for malicious and wanton destruction of four trees which allegedly grew on the boundary line between the Rhodig and Keck properties. Keck admitted removing the trees but alleged that they were completely on his property and that he had the right to destroy them.

When the Rhodigs purchased their property, there were two trees standing near the lot line. In 1943 Rhodig planted two more trees in a line with the first two. Later one of the original trees died and the Rhodigs replaced it. In 1962 Keck, wishing to fence his property to the south of Rhodigs, had a survey made of the lot line. This showed that one tree was entirely inside Keck’s property by three inches; a second tree, 18 inches in diameter, extended four inches onto Rhodigs’ land and was 14 inches on Keck’s lot; a third tree, eight inches in diameter, extended two inches onto Rhodigs’ land and was six inches on Keck’s lot; the fourth tree, which was 16 inches in diameter, was growing five inches on Rhodigs’ land and 11 inches on Keck’s lot. As a result of the survey, Keck removed the trees. Incidentally, the Rhodigs had done their own survey 10 years earlier, and their findings matched those of Mr. Keck. In fact, they had tried to buy a strip of land with the trees from Mr. Keck without success.

The trial court granted Keck’s motion to dismiss at the close of plaintiffs’ case, finding that the Rhodigs had failed to establish that they were owners of the trees. The Rhodigs appealed.

Held:  The Court held that the Rhodigs’ contention that they and Keck were tenants in common of the trees did not hold. It said “the trees in question, when planted, must necessarily have been wholly upon Keck’s property and no agreement or consent was shown concerning ownership. The mere fact that the Rhodigs testified that they owned the trees and maintained them is not sufficient evidence to permit a recovery. This is so because they could not own something affixed to Keck’s land without some agreement, right, estoppel or waiver. Apparently a test in determining whether trees are boundary line subjects entitled to protection is whether they were planted jointly, or jointly cared for, or were treated as a partition between adjoining properties. In the instant case none of these attributes was proved by the plaintiffs.”

The Court held that one of the trees — being wholly on Keck’s land — was not involved in the dispute at all. As to the other three trees, the Court said, the Rhodigs had failed to prove a legal or equitable interest in them, meaning that the legal owner of the land — Mr. Keck — had the right to remove the encroachment.

The judgment was affirmed.

Two of the justices dissented, arguing that the majority of the Court had sanctioned conduct on the part of Mr. Keck which constituted a trespass and the destruction of co-owned property. Citing early English common law holding that (1) a tree which stood on a property line made the adjoining owners tenants in common of that tree, and (2) if one of the co-owners cut the whole he was liable for damages to the other, the dissenters argued that the Rhodig trees should come within that well-established rule. “To come within these rules a tree need not have been placed on the property line for the purpose of forming a border or boundary,” the dissenting justices said. “A tree which stands on a property line in a state of nature or one which has been planted by man is treated in the same way.”

THE ILLINOIS APPROACH: ALL YOUR TREE ARE BELONG TO US

If you didn’t following Internet culture (as oxymoronic as that phrase may be) back in 2001, you might not recognize the badly-mangled taunt “All your base are belong to us,” derived from the poorly-translated Japanese video game, Zero Wing.  But it became a cult classic in 2001, and the melodious strains of the techno dance hit Invasion of the Gabber Robots can be heard in some corners of the ‘Net to this day.

Illinois doesn’t get into that “touchy feely” intent inquiry evident in Rhodig. In the state’s case, an elm tree stood on the boundary line between the Ridges and the Blahas. One can almost imagine Mr. Blaha — who was tired of the mess the elm made every fall — announcing to the tree that “you are on the way to destruction!” But the problem was that, contrary to Mr. Blaha’s belief, all the tree’s base did not belong to him, at least not just to him. The base of the tree straddled the property line.

The Ridge Court’s analysis was simple: the tree grew in both yards, and thus, the Ridges had an interest in the tree, as did the Blahas. This made the landowners tenants in common, and prohibited either from damaging the tree without permission of the other.

The Illinois view, which is the more common approach that Colorado’s “husbandry” test, is the prevailing view in the United States. In this case, the Court issued an injunction against Mr. Blaha prohibiting him from cutting down the tree.   For great justice.

Ridge v. Blaha, 166 Ill.App.3d 662, 520 N.E.2d 980 (Ct.App. Ill. 1988). The Ridges sought an injunction against the Blahas to prevent them from damaging an elm tree growing on the boundary line between their respective properties. After living with the elm for many years, the Blahas tired of the tree’s unwanted effects and decided to remove it with the help of an arborist. The Ridges were not consulted, however, and when arborist Berquist came to remove the tree, plaintiffs objected that the tree belonged to them and that they did not want it destroyed.

The evidence showed that the base of the tree extended about 5 inches onto the Ridges’ property, but that the tree trunk narrows as it rises so that at a height of 1.25 feet, the trunk is entirely on Blahas’ side of the line. Photographs were also introduced which showed the tree interrupting the boundary line fence. The trial court found that no substantial portion of the elm’s trunk extended onto the Ridges’ property and that, as such, they did not have a protectable ownership interest in the tree. The Ridges appealed.

Held: The Ridges had a protectable interest. The Court held that the fact that a tree’s roots across the boundary line, acting alone, is insufficient to create common ownership, even though a tree thereby drives part of its nourishment from both parcels. However, where a portion of the trunk extends over the boundary line, a landowner into whose land the tree trunk extends had protectable interest even though greater portion of trunk lied on the adjoining landowners’ side of boundary. That interest makes the two landowners tenants in common, and is sufficient to permit the grant of an injunction against the adjoining landowner from removing the tree.

WHEN A TREE GROWS INTO A BOUNDARY – AND CAUSES A NUISANCE

Trees often don’t start out straddling property lines. Rather, they sprout as carefree saplings, but later grow above and below the ground without regard for metes and bounds.

Do you remember Flap Your Wings? It’s a great children’s book by P.D. Eastman, a story in which Mr. and Mrs. Bird suddenly find an oversize egg in their nest, placed there by a well-meaning stranger who found the orb on the ground and wrongly deduced it had fallen from the tree? They love and care for the egg, but it hatches into something that unexpectedly becomes a real nuisance in their nest.

When the Bergins planted a tree on their land in 1942, they had little idea that it would grow into a big problem. The tree thrived over 25 years, a great oak from a little acorn having grown, so to speak. (All right, it was an elm, but you take the point …) It expanded from its modest plot toward and across the boundary line with their neighbors, in the process knocking the neighbors’ chain link fence out of line, raising the sidewalk and causing drainage problems.

The Holmbergs argued that the tree was a nuisance, and demanded that the Bergins remove it. The Bergins argued that the tree was a boundary tree, and it thus belonged to both the neighbors and to them commonly. They thus could not be seen to be maintaining a nuisance.

The Court disagreed with the Bergins’ defense, ultimately adopting the rationale of the Colorado case of Rhodig v. Keck. It was the intent of the parties, the Court ruled, not the location of the tree, that governed whether the tree was a boundary tree.

Here, the Bergins planted and maintained the tree exclusively. They and the Holmbergs neither treated nor intended the elm to be a boundary tree. Instead, the tree ended up straddling the boundary only by an accident of growth. No matter where the tree had grown to encompass, it remained the Bergins’ tree, and the court found it to be a nuisance.

The damage wrought by the tree makes an interesting comparison to the 2007 Virginia decision in Fancher v. Fagella on encroachment and nuisances. The tree’s shallow root system made remedies short of removal infeasible, and the roots seemed to run just about everywhere. The case is an excellent illustration of how the facts of the particular growth at issue can drive a court’s decision.

Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (Sup.Ct. Minn. 1969). The Bergins and Holmbergs were adjoining landowners in Minneapolis. In 1942, the Bergins planted an elm tree on their property about 15 inches north of the boundary line, and they have maintained the tree and have exercised sole control over it since that time. The Holmbergs bought their place 10 years later, and constructed a chain-link fence on their property 4 inches south of the common boundary line. When the fence was completed, the tree was 6 inches away from it and 2 inches away from the boundary line, so the tree did not touch or interfere with the fence.

By 1968, the tree was 75 feet high, with a trunk diameter of 2 1/2 feet, and it was protruding about 8 inches onto the Holmberg’s property. Its roots extended onto Holmberg’s property and pushed the fence out of line, making the use of a gate in the fence impossible. The tree was close to both houses and the roots, being cramped for room, have pushed up a large hump in the ground around the base of the tree. The roots raised the ground level from the base of the tree to the Holmbergs’ sidewalk and caused it to tip toward their house, resulting in drainage into their basement.

To fix the problem, the Holmbergs were forced to construct a new sidewalk, which — because of the tree roots — promptly cracked as well. The Bergins’ property value property would depreciate by $5,000 if the tree were removed.

Over the Bergin’s complaint that the tree was a boundary tree, the trial court found that the tree was a nuisance and ordered it removed by the Bergins at their own expense. No damages were awarded to the Holmbergs due to their failure to take advantage of earlier opportunities to remove roots. The Bergins appealed.

Held:   The tree was a nuisance. The Supreme Court held that something more than the mere presence of a portion of a tree trunk on a boundary line is necessary to make the tree itself a ‘boundary line tree’ so as to bring it within the legal rule that it is owned by adjoining landowners as tenants in common.

Whether the tree marks the boundary depends upon the intention, acquiescence, or agreement of the adjoining owners or upon the fact that they jointly planted the hedge or tree or jointly constructed the fence.

Nothing in the record discloses any intention of the parties that the tree mark a boundary line between the properties. The law is clear that one cannot exercise his right to plant a tree in such a manner as to invade the rights of adjoining landowners. When one brings a foreign substance on his land, he must not permit it to injure his neighbor. And, the Court held, an injunction against the continuance of a nuisance — such as the one issued by the trial court — may be proper if it is necessary to a complete and effectual abatement of the nuisance.

DOING NOTHING IS USUALLY NOT AN OPTION

“A stitch in time saves nine” is an idiom that’s been around for three hundred years or so. It also is an everyday explanation of the equitable doctrine of “laches.”

It always seemed a little ironic that English common law needed an entire branch of jurisprudence known as “equity.” Oliver Wendell Holmes, Jr., famously lectured a litigant once that his courtroom was “a court of law, young man, not a court of justice.” It was precisely because there was so much law and so little justice that medieval England developed a parallel judicial system known as courts of equity, where litigants could get just results that were precluded in the courts of law by hidebound rules of pleading and damages.

The basis of equity is contained in the maxim “Equity will not suffer an injustice.” Other maxims present reasons for not granting equitable relief. Laches is one such defense.

Laches is based on the legal maxim “Equity aids the vigilant, not those who slumber on their rights.” In other words, “you snooze, you lose.” Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. If the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice.

Ms. Garcia suffered encroachment from a copse of boundary-tree elms for a long time, perhaps too long a time, without doing anything about it. She could have trimmed roots and branches that intruded into her alfalfa fields years before – New Mexico law let her do that – but she fretted and stewed in silence. When she finally wanted to take action, the elms were so big that the trunks themselves had crossed the property line. Her “self-help” would have killed the trees.

The lesson? As the old TV box announcer used to adjure, “You must act now.”

Garcia v. Sanchez, 108 N.M. 388, 772 P.2d 1311 (Ct.App. N.M. 1989). This dispute between neighboring landowners involves trees originally planted on defendant’s property which have overgrown and now encroach upon plaintiff’s property. By the time Garcia bought her land in 1974, ten elm trees planted some years before near the common property line were well established. Although originally planted inside defendant’s property line, over the years the trees had reached full size, and had grown so that nine of them were directly on the boundary, with the trunks encroaching onto plaintiff’s property from one to fourteen inches.

Garcia used her land for growing field crops. Sanchez’s side had a driveway and residence. Garcia didn’t complain about the trees until 8 years after buying her property. Two years after her first complaint, she sued.

The trial court found Garcia’s actions in providing water and nutrients to her crops had caused the trees to grow toward her property, but it concluded that Sanchez negligently maintained the elm trees, allowing the roots and branches to damage the crops on Garcia’s property. The court also found that she has not suffered enough damage to warrant the removal of the trees, and that cutting any substantial portion of the trunks of the trees would seriously harm them. The court found that yearly trenching of the roots and trimming of branches on Garcia’s side of the property line would essentially resolve any problems resulting from the encroachment of tree roots and overhanging branches on her property, so it ordered Sanchez to pay $420.80 for damage to Garcia’s alfalfa, to yearly trench the roots and trim the branches of the trees, and to provide water and nutrients to the trees in order to restrict their growth toward plaintiff’s property.

The parties appealed.

Held: The Court of Appeals reversed and remanded. It held that the trees originally planted inside a property line, which had grown to encroach onto adjoining property along boundary, were not jointly owned under the common boundary line test absent an oral or written agreement to have the trees form boundary line between the parties’ property. It agreed that the trial court’s refusal to order that Sanchez remove the encroaching trees was not an abuse of discretion, observing that the trial court had tried to balance equities by weighing the value of trees against the agricultural character of property involved and nature of harm suffered by Garcia.

But the Court of Appeals went further: it ruled that the harm caused to Garcia’s crops by the elms’ overhanging branches and tree roots is not actionable. Instead, following Abbinett v. Fox, the Court held that a plaintiff’s remedies are normally limited to self-help to protect against the encroaching branches and roots. But here, Garcia waited too long: her plan now, after years of suffering in silence, to remove a substantial portion of the root system or trunk of the encroaching trees (the Massachusetts Rule right) may endanger lives or injure Sanchez’s property, and that laches gives a court the right to limit the exercise of her self-help plan under its equitable authority.

The Court sent the case back to the trial court to determine whether Garcia’s failure to exercise self-help to control encroaching roots, branches and tree trunks over an extended period should preclude injunctive relief now.

SELF-HELP ON BOUNDARY TREES

Ah, Cleveland! Renown for the Rock and Roll Hall of Fame, world leader in the manufacture of duct tape, home to some really good beer and some really bad teams …

Add to that impressive string of achievements one more jewel: Cleveland gave the United States its first small claims court in 1913. The People’s Court was not far behind.

Small claims courts exist in every state of the country, informal courts of very limited jurisdiction (awards of a few hundreds or few thousands of dollars), places where lawyers and formality are rare indeed. It was to just such a place that Mr. Iny dragged Mr. Collom. It seems the roots of Mr. Collom’s tree were breaking up the walls of his neighbor’s garage. Now, any fan of the Massachusetts Rule would have told the neighbor to get out there with a shovel and ax, and cut the offending roots at the property line. Self-help is, after all, as American as … well, as the Massachusetts Rule.

Of course, self-help doesn’t mean you can go onto your neighbor’s property, and it seems the homes and garages in this Long Island town were packed together like sardines. Mr. Iny couldn’t dig up the attacking roots without going onto Mr. Collom’s place, and we’re suspecting from the decision that these two guys were not the best of friends. So Mr. Iny took him to court.

The small claims court awarded him $2,100 for damages. Being of limited jurisdiction, the court couldn’t order Mr. Collom to cut down the tree or dig up the roots, so money was all that was available. Mr. Collom appealed (something you never see happening on TV).

The Supreme Court (which in New York State is not the state’s high court, but rather in this case just a court of appeals) reversed. The remedy here, the court said, shouldn’t have been money. It should have been to cut down the tree. But the small claims court lacked jurisdiction to do that. The Supreme Court itself didn’t have such constraints, so it reversed the money damages and instead ordered Mr. Collom to get rid of the tree.

The most interesting part of the decision is the lengthy and well-written dissent arguing that Mr. Iny’s tree claim was in fact a nuisance claim, and that money damages should have been awarded as well. The dissenting judge argued that New York has adopted its own tree encroachment rule, a hybrid of the Massachusetts and Virginia Rules (which itself has since this case been abandoned by Virginia). In New York, the judge concluded, a complainant has to resort to self-help first. If that fails, the courts will intervene if the tree can be shown to be a nuisance — that is, if the tree “is causing substantial interference with the use and enjoyment of plaintiff’s land, that defendant’s conduct is intentional or negligent.”

Of course, the discussion is found in a dissent to a fairly low-level, unreported decision, but it’s a thoughtful analysis of the encroachment rule in a state where precedent on the subject is sparse. Good reading on cold winter night … unless, of course, another episode of Judge Judy is on.

Iny v. Collom, 827 N.Y.S.2d 416, 13 Misc.3d 75 (Sup.Ct. N.Y., 2006). The roots of a tree situated on defendant’s property damaged the wall of a garage on plaintiff’s property. Plaintiff lacked the room to cut the roots out himself without trespassing on his neighbor’s land. He sought to get his neighbor to remove the objectionable tree, which he felt would have been the best way to fix the problem, but the defendant refused. Plaintiff sued in small claims to recover $2,100. The trial court awarded him this sum. Defendant appealed.

Held:  The decision was reversed. The Supreme Court noted that a New York small claims court is a court of limited jurisdiction and lacks the authority to grant any equitable remedy, such as directing the removal of a tree. Under the circumstances presented, the Court ruled, “substantial justice would have been most completely rendered had the court awarded judgment in favor of defendant dismissing the action on condition that he remove the subject tree within a specified period of time”. But the trial court couldn’t do that. The Supreme Court could, however, and ordered the case dismissed, conditioned on defendant removing the tree within 60 days.

One justice dissented. He believed that the trial court’s judgment awarding plaintiff $2,100 in damages was based on a nuisance claim, and should have been affirmed. The dissent said the issue faced in the case was whether under New York law, a property owner whose property is being encroached upon and damaged by the roots of a neighboring property owner’s tree may successfully assert a cause of action sounding in private nuisance if the property owner’s resort to self-help is unworkable, and the property owner’s attempts at obtaining assistance from the neighboring property owner to abate the roots’ encroachment have been unsuccessful.

The dissent argued that to establish a cause of action for private nuisance, the plaintiff must show that the defendant’s conduct causes substantial interference with the use and enjoyment of plaintiff’s land and that defendant’s conduct is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the laws governing liability for abnormally dangerous conditions or activities. The interference can be caused by an individual’s actions or failure to act. Where a defendant has been put on notice that his activity is interfering with plaintiff’s use and enjoyment of his land and defendant fails to remedy the situation, the defendant ought to be found to have acted intentionally and unreasonably.

Furthermore, the dissent argued, “[u]nder New York law, a party is liable for failing to abate a nuisance [under a theory of negligence] upon learning of it and having a reasonable opportunity to abate it.” The question of whether there has been a substantial interference with plaintiff’s use and enjoyment of his/her property is one to be resolved by the trier of fact and involves a review of the totality of the circumstances based upon a balancing of the rights of the defendant to use his or her property against the rights of the plaintiff to enjoy his or her property. The balancing amounts to a risk-utility analysis weighing the social value of the conduct involved against the harm to private interests.

The dissent admitted that while the elements of a nuisance action appear straightforward, in New York there is a paucity of case law addressing nuisances arising from trees or other plant life. Nevertheless, the justice argued, there is substantial case law from jurisdictions outside New York, and he describes in detail the Massachusetts Rule, the Virginia Rule and the Hawaii Rule. The dissent concludes New York has “in large measure, adopted a hybrid approach somewhere between the Hawaii and Virginia Rules in determining the issue of nuisance liability. To sustain a cause of action for nuisance, a plaintiff must resort to self-help in the first instance, which does not appear to be a prerequisite under the Hawaii Rule. Once a plaintiff establishes that self-help failed or self-help was impracticable, he or she must (1) show sensible damage (this kind of “sensible” has nothing to do with common sense, but rather is an injury that can be perceived by the senses), (2) that defendant’s conduct is causing substantial interference with the use and enjoyment of plaintiff’s land, (3) that defendant’s conduct is intentional or negligent, and (4) that the continued interference with the use and enjoyment of plaintiff’s property is unreasonable.

Where a defendant has been notified that a tree was causing damage to plaintiff’s property and refuses to assist plaintiff in taking measures designed to abate the nuisance, the defendant should be found to have acted intentionally or negligently with regard to the nuisance. The unreasonableness of the interference will depend upon an overall balancing of the equities: the injuries to plaintiff and to defendant, the character of the neighborhood, the ongoing nature of the injury, and the nature of defendant’s actions.

Remember, the foregoing – while it may be eminently “sensible” in the meaning of the term – was the opinion of a lone judge, one who was outvoted. It makes for thoughtful reading. But don’t mistake it for the law.