encroachment

Case of the Day – Thursday, February 19, 2026

Posted on by tagged.

ACORNS KEEP FALLIN’ ON MY HEAD…

It started as a simple idea: establish a court without lawyers, a place where people with a beef could be heard, where small-scale justice could be dispensed, and where people could find common-sense answers to problems. And thus, small claims court was born, having its origin – ironically enough – as the “court of conscience” in medieval England.

The rules are simple, the docket is swift: usually, from the filing of the action to the hearing, not much more than a couple of weeks pass. There is no fancy-Dan pleading, no arcane procedures, no onerous discovery. Just two people with a problem and one judge to listen and decide.

Many years ago, long before law school interrupted my life, I sent roses by FTD to a girl in another state on Valentine’s Day. I thought it strange when she thanked me for the “flowers.” People would normally say, “Thanks for the roses.” After about the third time she said “flowers” instead of “roses,” I thought to ask her what she had received from me. It turned out that I paid for roses, and got a mixed-flower arrangement suitable for a funeral… but not a valentine.

When I complained to my local florist, he told me dismissively that if the receiving florist in the other state was out of roses, he or she could substitute “another arrangement of equal value.” Getting no satisfaction there, I filed a small claims complaint. On the day of the hearing, the flower shop owner stalked into the courtroom and gave me my money back.

Sweet justice!

So I love small claims court. But I recognize its principal drawback: lawyers can still show up and make a mess of things. That’s what happened in today’s case.

Daphne Kohavy, a savvy resident of Gotham, rented a parking space in a lot next to her co-op apartment building in the Bronx. The co-op had a management company, Veritas, running the lot. Daphne’s car was parked under an oak tree that rained acorns on her ride. This should not seem surprising to many of us who understand that those funny little acorns hanging on oak trees like to drop. But Daphne was a New Yorker and had only the most fleeting acquaintance with green things that grow from the earth. The acorn rain surprised her, and – according to her complaint – caused over $1,500 in damage to her wheels.

She sued in small claims court. Veritas brought its lawyers (in its defense, the law required it appear through lawyers because it was a limited liability company). Its lawyers started milking the case for fees, filing motions to dismiss for all sorts of reasons.

The court was not amused. Small claims court is supposed to be easy, where parties air their claims instead of tying each other up in “gotcha” motions. The court scolded the defendants, holding that because Daphne said the tree was defective, she should have a chance at trial to prove it.

We don’t think much of Daphne’s lament. Oak trees drop acorns. That’s no surprise. But on the other hand, Veritas tried to muck up the small claims process (forcing poor Daph to go out and hire her own lawyer). Perhaps distributive justice – where the right thing gets done for what nominally is the wrong reason – triumphed.

Kohavy v. Veritas Management, LLC, 2017 N.Y. Misc. LEXIS 1380 (Civil Ct. Bronx County, 2017): Daphne Kohavy leased a parking space next to her apartment building on a parking lot owned by defendant 511 W. 232nd Owners Corp. Veritas Management, LLC was the lot’s managing agent. While parked there, Daphne’s car was damaged by acorns falling from a tree overhanging her parking space. It sounds like classic encroachment and sensible harm. She sued in small claims court for $1,500.

Veritas, through its lawyers, moved to have Daphne’s claim dismissed because it was just the manager, not a party to the contract for her space between Daphne and the Co-op, and not the owner of the lot or the oak tree. What’s more, Veritas claimed, it did not maintain exclusive control of the premises, and even if it did, the law does not recognize a cause of action in negligence for damage due to falling acorns.

The motion to dismiss also claimed that the Co-op could not be held liable as the damage to Daphne’s car was caused by a healthy tree, and even it was not, the Co-op lacked notice of any such defect.

Held: The court began by scolding Veritas for gumming up the court’s processes with dispositive pretrial motions, noting that the “informality and convenience of small claims practice is necessarily frustrated by requiring pro se litigants to respond to formal motion practice…” But in the interest of moving things along, the Court addressed Veritas’ motion.

The Court found that there was a question of fact (because Daphne had said so) regarding the condition of the overhanging oak tree that had damaged her car. While the Court said there was no privity of contract between Daphne and Veritas, “questions of fact with regards to defendant Veritas’ control over the parking lot, as per the terms of the management agreement between defendant Veritas and defendant Cooperative, exist.” If Daphne could show that Veritas maintained exclusive control over the parking lot under the management agreement between it and the Co-op, and that Daphne’s damages were the result of Veritas’ negligence, she might be able to recover in negligence from Veritas.

The Court noted that Daphne “commenced this Small Claims action as a pro se litigant. It was not until the plaintiff was served with this instant motion that the plaintiff retained counsel to represent her. Accordingly, in this case, the filing of this instant motion prior to a hearing has indeed frustrated the purpose of New York City Civil Court Act § 1804 and its concern for protecting inexperienced pro se litigants and providing them with an expeditious and inexpensive forum to resolve small claims.”

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, January 27, 2026

Posted on by tagged.

LIFE IS A BOWL OF BERRIES

Who knows how neighbor feuds that simmer for years and years suddenly explode? Maybe Tom Schwendeman knows.

Tom lives next to the Roaches (who are people, not insects). About 14 years ago, the Roaches surrounded their property with a chain-link fence, which was clearly on their land. They even had a surveyor lay down pins before the fence went up. Since that time, the Roaches have engaged in such loathsome activities as building campfires in their backyard on as many as five, yes, FIVE occasions, and even spraying herbicide on poison ivy growing along the fence.

Oh, the humanity!

We get a sense of how things were going with the Roaches, given that grumpy neighbor Tom called the EPA to complain about the campfires (which occurred at a frequency of about one every two years – if our math skills remain sharp). Being busy creating environmental disasters of its own, the EPA apparently declined to intervene. Also, Tom liked to pick berries that grew along the fence. The herbicide on the poison ivy was the last straw for Tom. Convinced that his next blueberry smoothie would be his last, Tom tried to kick the fence down.

You, of course, have heard the Miranda warning on countless police shows. You know the schtick: “You have the right to remain silent….” Heed it well. Tom should have. As we like to tell clients, remaining silent is not just your right: usually, it’s a damn good idea, too.

Tom did not remain silent but instead vented his spleen in the presence of the deputies who responded to the call. He admitted the fence belonged to the Roaches and was on their land, but… well… the campfires! And the berries! How much is a man supposed to endure?

When it came time for Tom’s misdemeanor trial, his lawyer did not have much to work with, other than Tom’s frivolous argument that the fence was already in bad shape, and his tirade did not make it materially worse. For good measure, Tom threw in the woof story that he was only trying to get the fence off his land. The last defense might have worked… if Tom had kept his mouth shut when the cops had first shown up.

State v. Schwendeman, Case No. 17CA7 (Ct.App. Athens Co., Jan. 17, 2018) 2018 Ohio App. LEXIS 242. The state charged Tom Schwendeman with criminal damaging, a misdemeanor, because he damaged a chain-link fence between his property and that of his neighbors, Dawn and Gordon Roach.

The Roaches installed the fence about 13 years ago. One day last summer, Tom – apparently furious because the Roaches had sprayed herbicide along the fence to kill poison ivy – began yelling, kicking, and showing “a lot of anger towards the fence,” as a witness put it. Someone called the sheriff, and Tom admitted to a deputy that he knew it was not his fence, that the Roaches liked to have campfires in their backyard, which bothered him, and that they had sprayed herbicide for poison ivy along the fence line. Tom said he picked berries along the fence.

By the time he got to trial, Tom had an explanation that was a little more congruent. He complained about his problems with the five or six fires the Roaches had built in their backyard and argued that because the fence was 12 years old, the only damage he saw to it was “wear and tear that’s happened over the period of twelve years. More than twelve years it’s been there.” He claimed he witnessed tree branches falling onto the fence and the Roaches’ children climbing it, causing it to come apart. On  more than one occasion, Tom claimed, the kids made “the fence pull loose and collapse…. when they were climbing it.” He said he carefully disconnected the cyclone fence from the posts because it was on his property and he wanted to move it. Tom claimed the Roaches knew it was on his land, but they refused to move it unless Tom had the property surveyed and took them to court.

But on cross-examination, Tom admitted he was angry when he began dismantling the fence. “I had been poisoned,” Tom testified. “My berries had been poisoned… my food had been poisoned, and my next smoothie would make me very ill.” Tom admitted he did not “own” the fence, but he continued to press his claim that “it was on my property.”

Tom’s lawyer argued that children, dogs, and trees caused the damage to the Roaches’ fence. However, Tom’s defense counsel did not seek a jury instruction that Tom was exercising a privilege to remove an obstruction on his own land and did not object to the court’s jury instructions.

The jury found Tom guilty. He was ordered to pay restitution and a fine. Tom appealed.

Held: The conviction was upheld. Tom claimed on appeal that he had the right to remove obstructions from his land, but he never asked the court to instruct the jury on that defense.

When a party fails to object in the trial court, generally, he or she cannot make a claim on appeal that was not raised below unless he or she can show “plain error” that affects substantial rights. It’s a tough standard to meet.

Ohio law indeed holds that a landowner has the right to use self-help to remove encroachments on his property, provided he acts with reasonable care. That is what is called an “affirmative defense” to the criminal damaging charges that were brought against Tom. But a defendant is not entitled to have the court give the jury that instruction unless he has come forward with at least some evidence that, if believed, raises the affirmative defense. Otherwise, the court is not permitted to give a jury instruction on the affirmative defense.

Tom testified that the fence was on his land, but he didn’t offer any evidence that that was so. He could have shown a deed, a survey or even a plat map. But he had to show something. What’s more, not only did Tom offer nothing at trial, but his testimony that the fence was on his land directly contradicted his statements to two sheriff’s deputies. Without providing a rationale for the inconsistency with his prior admissions to the deputies, the Court said, Tom’s trial testimony was not credible. Because there was no credible evidence supporting his contention that he owned the land, the trial court – as a matter of law – could not properly give a jury instruction on the affirmative defense.

Tom also argued to the court of appeals that his defense attorney was a putz. The 6th Amendment to the Constitution guarantees all criminal defendants effective assistance of counsel. Here, Tom fumed, his attorney was ineffective because he failed to request the jury instruction on Tom’s privilege to remove an encroachment from his land. The appellate court said no dice: based on the lack of evidence supporting the claim, the court properly would have refused to give the instruction. Tom’s trial counsel cannot be deficient for failing to request an unwarranted jury instruction. Anyway, the Court of Appeals observed, Tom’s lawyer was pursuing a “wear and tear” defense at trial, making a decision not to argue that Tom also had the right to move it off his property fairly sound trial strategy.

Trial counsel cannot be found deficient, the Court of Appeals said, for failing to request an unwarranted jury instruction or for exercising sound trial strategy.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, January 7, 2026

Posted on by tagged.

TREES GONE WILD

Emily Dickinson had something to say about today’s case. The Belle of Amherst wrote,

The Wind does not require the Grass
To answer Wherefore when He pass
She cannot keep Her place.

Today’s problem was slow to develop, but like a winter storm undergoing bombogenesis, it just got bigger and bigger. Marie’s property was separated from her charming neighbor Ed’s by a 100-foot-long cinder block retaining wall. In about 2004, “a mulberry tree and some shrubs began growing” – note the passive voice, as though the growth was mere happenstance, not brought on by anyone’s actions – in Marie’s property near the retaining wall.

Everyone agreed that Marie had nothing to do with the mulberry tree. She didn’t plant it, mulch it, stake it, or fertilize it. It just grew. And grew. And grew. About eight years later, its roots began toppling Ed’s beautiful wall.

To be sure, Marie diligently trimmed the mulberry branches every year, but unsurprisingly, she did not excavate around it to trim the tree’s roots. Who does that? When the wall began showing damage in 2012, Ed wrote Marie a letter (evidence enough that their relationship must have been too frosty for him just to mosey on over and say something), expressing concern about the damage. Marie, ever the good neighbor, hired some guys to trim back the trees and bushes. That wasn’t good enough for Ed, who then sent Marie a certified letter complaining that her tree was tipping over his wall but warning that she better not let any of her workers step on his property in an attempt to fix it unless they were insured and had permits.

At this point, Marie’s interest in jumping through Ed’s hoops appeared to have waned. She did nothing more, and Ed sued.

He accused Marie of carelessness, negligence, and gross negligence, complaining that the “maintenance of her property” – which is to say, suffering the tree to grow – caused the damage to the retaining wall. Of course, he wanted money.

At trial, Marie said Ed’s wall had been installed by morons and thus was falling down of its own accord. Ed said that Marie should have taken care of the tree to ensure that it did not crumble his wall. The court, it turns out, did not care about either argument: instead, it held that a tree growing near the wall is a naturally occurring condition. As such, Marie is not liable for what the tree does.

We are constrained to note that this is not the law everywhere. The Hawaii Rule, as brought up to date by decisions such as Fancher v. Fagella, holds that when a naturally occurring tree becomes too much of a nuisance, the owner can be forced to do something, regardless of how the tree got there or how little the owner’s role in nurturing it. But not in New Jersey.

Like Emily’s grass, Marie’s mulberry could not keep its place. And the court, like Emily’s wind, did not require Marie to answer for the tree’s peripatetic roots. Oh, the poetry of it…

Scannavino v. Walsh, 445 N.J. Super. 162 (Superior Ct. N.J., 2016). Marie’s naturally growing mulberry tree got big enough that its roots started causing her neighbor’s retaining wall to tilt and collapse. Neighbor Ed sued her for damages the tree caused to the wall, but the trial court held she was not responsible for the naturally occurring growth of a tree she had not planted.

Ed appealed.

Held:  The Superior Court sided with Marie. It held that a cause of action for private nuisance derives from the defendant’s “unreasonable interference with the use and enjoyment of the plaintiff’s property.” Under the Restatement (Second) of Torts, “neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land,” which includes the natural growth of trees, weeds, and other vegetation “upon land not artificially made receptive to them.” Similarly, “a possessor of land is not liable to persons outside the land for a nuisance resulting solely from a natural condition of the land,” including “trees, weeds, and other vegetation on land that has not been made artificially receptive to it by act of man.”

New Jersey courts have held that injury to an adjoining property caused by the roots of a planted tree can be actionable as a nuisance. The rationale for the property owner’s liability in that case was not because of the natural process of the growth of the tree roots, but instead due to the affirmative act of the property owner in planting the tree that caused the damage. But here, Marie did not plant the tree, and while she trimmed it from time to time, she engaged in no positive acts like fertilizing or maintenance to encourage growth. Had she done so, that might have converted a naturally growing tree into one for which the landowner was liable. However, the Court said, “simply cut[ting] back the trees above the ground” was not a positive act to encourage growth.

The record contained no evidence that Marie’s trimming had improved the tree’s health or accelerated the growth of the roots. As well, the trial court found that Ed had failed “to demonstrate that any actions undertaken by [Marie] or her agent caused the damage to the wall.” Finally, even Ed himself told the Court he was not asking the judges to infer that cutting back the trees had increased root growth.

Instead, all that Ed argued was that by cutting back the trees, Marie became liable for the damage caused by the roots. That is contrary to the law, the Court said, and seeks unfairly to “impose liability upon a property owner for hazardous conditions of his land which he did nothing to bring about just because he happens to live there.” Because Marie’s cutting back of the tree did nothing to “bring about” the root growth, neither the trees nor the damage was “brought about” or “precipitated by the property owner’s affirmative act.”

The Court observed that Ed’s argument would lead “to the anomaly of imposing liability upon one who cuts back wild growth while precluding liability of an adjacent landowner who allows the natural condition of his property to ‘run wild’.” What’s more, some of Marie’s trimming was in response to Ed’s belly-aching, and the Court was not about to sandbag Marie because she tried to be a good neighbor.

Ed suggested that if Marie was not held to be liable, then landowners like Ed might have to use self-help and trespass on her land to cut down the tree himself. The Court dismissed the argument. Ed’s own letter suggested he could abate the nuisance from his side of the property line, which is consistent with the Massachusetts Rule (which fully applies in New Jersey). At any rate, the Restatement (Second) of Torts provides that “entry onto a neighboring property to abate a private nuisance is permissible under certain circumstances.”

Notably, the Restatement (Third) of Torts might have held Marie liable if she failed to exercise reasonable care by allowing the tree’s roots to damage the retaining wall. But the Supreme Court of New Jersey has directed that the Restatement (Second) of Torts is the law, and until that changes, Marie’s tree is on its own.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, December 4, 2025

Posted on by tagged.

A NICE DAY FOR A FROLIC

apple_tree140217Seems like not so long ago (but it was over 20 years now) that a class of sharp-witted grade school students at Western Reserve Elementary School asked us a question, one which seemed simple but is deceptively complex. Inquisitive kids that they are, they wanted to know whether it would be an act of theft for the owner of an apple tree to go onto neighboring property to retrieve apples that had fallen from the owner’s tree.

Turns out it’s a darn good question. Not much has been decided on this, requiring us to read an 1870 New York case for an answer. In that decision, a logger lost his logs in a flood. They came to rest on the riverbank, making a mess of the riverbank owner’s land. A fast talker convinced the log owner to let him negotiate with the landowner, pay the guy’s damages, and retrieve the logs. He made a deal with the landowner and hauled the logs away, but he never made the promised payment. The Court ordered the logger to pay the damages, holding that the owner of personal property that ends up on the lands of another has a choice: abandon the personal property and have no liability to the landowner, or retrieve the personal property and pay for any damages caused by the property’s coming to rest.

Of interest to our intrepid 6th graders (after whether someone is going to help pay for their lunches) was this: the Court noted in passing that it was settled law that one whose fruit falls or is blown upon his neighbor’s ground doesn’t lose ownership, but instead “may lawfully enter upon the premises to recapture his property.”

There you go, sixth graders! Who says adults don’t listen to you? And as for the rest of us, isn’t it curious how contrary the holding is to the Massachusetts Rule of self-help, which was handed down some 55 years later? At the same time, isn’t it interesting how consistent the New York court’s decision is with the North Dakota Supreme Court opinion in Herring v. Lisbon, that the portion of the tree overhanging a neighbor’s land still belongs to the tree’s owner, thus imposing on the owner a duty to ensure that the tree does not cause harm.

Sheldon v. Sherman, 3 Hand 484, 42 N.Y. 484, 1870 WL 7733 (Ct. App. N.Y. 1870), 1 Am.Rep. 569. Sherman’s logs were swept away in a spring flood on the Hudson River, coming to rest on Sheldon’s property where — Sheldon complained — they caused significant damage. A third party, Mayo Pond, told Sherman he’d pay Sheldon’s damages, have the logs cut into lumber and deliver the boards to Sherman for a set fee. But then the double-dealing Pond told Sheldon he was an agent for Sherman in settling the damages and that Sherman would pay the agreed-upon damages. This was news to Sherman, who refused to pay the damages because he already had a deal with Pond that Pond would pay. Landowner Sheldon sued log owner Sherman for the agreed-upon damages, and the trial court found for Sheldon. Sherman appealed.

upcreek140217Held: Sherman was up a creek without a paddle. The Court of Appeals — New York’s highest court — held that Sherman had a choice. One whose property ends up on the lands of another by an inevitable accident (such as a flood), without the owner’s fault or negligence, may elect either (1) to abandon the property, in which case he is not liable to the landowner for any injury caused by the property; or (2) to reclaim it, in which case he is obligated to make good to the landowner the damages caused by the property. Here, once Pond agreed with Sherman that he’d settle with the landowner and retrieve the logs. Pond’s authority from Sherman to remove the logs was clear, whatever his right to promise payment might have been. Thus, the law implied the existence of a promise by the log owner to pay damages.

The waters receded, but the logs were everywhere ...

The waters receded, but the logs were everywhere …

Of interest in the decision is the Court’s discussion of what it called “a large class of cases” in which injury is suffered by a party, but the law gives no redress. The Court said, “If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew. If one builds a dam of such strength that it will give protection against all ordinary floods, the occurrence of an extraordinary flood by which it is carried away, and its remains are lodged upon the premises of the owner below, or by means whereof the dam below is carried away, or the mill building is destroyed, gives no claim against the builder of the dam.” In this case, the Court said, the logs were carried down the river and deposited on Sheldon’s land without fault on the defendant’s part. Thus, Sherman was not responsible for damages, and any promise he might have made to Sheldon to make it good would be unenforceable.

If Sherman chose to abandon his property, he had the right to do so, and no one could call him to account. He was not compelled, however, to abandon it, but had the right to reclaim it. The Court said the case was “like one whose fruit falls or is blown upon his neighbor’s ground, the ownership is not thereby lost, but the owner may lawfully enter upon the premises to recapture his property. When he does so reclaim or recapture, his liability to make good the damage done by his property arises. He then becomes responsible. Before he can reclaim or recapture the property thus astray, justice and equity demand that he should make good the injury caused by its deposit and its continuance.”

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, December 2, 2025

Posted on by tagged.

IN THE VAST WORLD OF LAW…

… there’s plenty of half-vast lawyering going on.

I found myself thinking that in connection with a case I was reviewing yesterday, one that had nothing to do with trees (but a lot to do with plants, those being Cannabis sativa, and involving trucks and conspiracies and the pesky Controlled Substances Act).

Potheads or not, I thought, the defendants deserved better lawyering than they got. There’s a lot of that substandard, just-barely-enough-to-prevent-a-malpractice-suit representation, not only in the criminal courts but in civil practice as well.

Today’s case is an excellent example of phone-it-in representation on both sides of the courtroom. The plaintiff’s lawyer seems to simply have loaded a civil action blunderbuss and fired away. It was evident that the defendant’s tree roots were destroying the boundary wall by pushing against it from the defendant’s side of the edifice. Therefore, the roots were located on the defendant’s property. So why would the lawyer include a trespass count? Any first-year law student could tell you that the roots were not on his client’s land, and being on someone else’s land without permission is the sine qua non of trespass.

And before the defendant starts to feel smug about the plaintiff’s pleading miscue, she should look at her counsel’s performance. That lawyer spent the defendant’s money on a couple of experts, who may or may not have rendered solid, helpful opinions. We’ll never know – because the defendant’s lawyer did not bother to put the expert’s opinions in affidavit form – a pure rookie mistake.

The defendant might have walked away from this lawsuit relatively inexpensively by getting the plaintiff’s entire complaint dismissed. But she never had a chance to make her substantive argument because her lawyer overlooked something everyone knows – that statements by experts and witnesses must be in affidavit form.

Half-vast lawyering all around…

1212 Ocean Ave. Housing Development Corp. v. Brunatti, 50 A.D.3d 1110, 857 N.Y.S.2d 649 (Sup.Ct.N.Y. 2008). 1212 Ocean Avenue Housing Development Corp., a soulless, faceless corporation, if ever there was one, owned property next to Debbie Brunatti’s place. The two properties are separated by a 10-foot-high retaining wall built in 1924 when an apartment building was constructed on 1212’s premises. The heartless corporate suits alleged that an elm tree planted on Debbie’s property more than 40 years ago grew over time so that its trunk came to rest atop the retaining wall. The roots of this tree also damaged the retaining wall, causing it to crack and curve. In December 2004, the New York City Department of Buildings issued a summons to 1212, requiring it to fix the defective retaining wall. Shortly later, 1212 sued Debbie to recover damages for nuisance, trespass, and negligence.

Debbie had the tree removed about four months after being sued. She argued, among other things, that the defective condition of the retaining wall had not been caused by tree roots, and that 1212 could not maintain an action for damages because it had not engaged in self-help to remedy the situation. The trial court denied Debbie’s motion.

Debbie appealed.

Held: The trial court properly denied Debbie’s motion to dismiss for nuisance and negligence.

The unsworn reports from two engineers she submitted in support of her application were insufficient to establish, as a matter of law, that the tree roots did not damage 1212’s retaining wall. “Furthermore,” the court said, “while it has been recognized that a property owner may resort to self-help to remove tree roots encroaching upon his or her property and that this may constitute a sufficient remedy in some circumstances, the defendant failed to demonstrate that self-help would have been practicable here, where it is undisputed that the tree roots rested entirely on her property.”

However, the Court said, the trial judge should have granted that part of Debbie’s application for summary judgment on the trespass count. Since the tree roots rested entirely upon Debbie’s property, there was no intentional intrusion or entry onto the 1212’s property, which could constitute trespass.

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, October 7, 2025

Posted on by tagged.

TRADITION

Sometimes, state law leaves a landowner suffering from invading roots and branches from a neighbor’s tree with no remedy but a chainsaw. As we all know, the Massachusetts Rule – alive and well in a number of states – lets a property owner trim offending branches and roots up to the property line, but that’s it: no lawsuits, no damage awards, no injunctions, and no meddling lawyers.

It’s the traditional approach.

Other states follow variants of the Hawaii Rule and let a property owner sue when a neighboring tree becomes a nuisance, causing “sensible harm,” a weird expression apparently meaning something more than falling leaves and twigs.

Then there’s the approach adopted by a Florida court of appeals of few words.  In the Sunshine State, a ficus tree near a landowner’s property boundary line was wreaking havoc on the neighbor’s house. The ficus is a very old tree, maybe 60 million years old (and possibly as old as 80 million years). It features aerial roots and is pollinated by a single species of wasp known as a fig wasp.

The owner of the tree was General Engineering Enterprises, Inc., obviously a big, faceless corporation with oodles of money. So Mike sued, asking for money damages. Why not? Everyone knows big mega-corporations are nothing but ATM machines, and you activate the cash-dispensing feature by walking through the courthouse door.

The Court was unsympathetic. Mike, you have a saw? Use it, man. Concerned that to permit Mike to get free money because branches from the ficus were overhanging his property might work in derogation of the time-honored principle of self-help, the Court of Appeals followed the Massachusetts Rule, despite the fact that the opinion candidly admitted that most other courts seemed to be headed toward the Hawaii Rule.

Ah, tradition!

Richmond v. General Engineering Enterprises, Inc., 454 So. 2d 16 (Ct.App. Fla. 1984). Mike Richmond sued General Engineering Enterprises, Inc., for money damages based on the company’s “negligence” in permitting branches of a ficus tree growing on its property to extend over and onto Mike’s home lot. The trial court wasted no time in dismissing Mike’s complaint.

Mike, obviously no reader of this blog, appealed.

Held: The Massachusetts Rule prevailed.

While there is substantial authority to the contrary, the Court said, “which may indeed represent the majority rule… we agree with those decisions which hold that in view of the undoubted right of the landowner himself to cut off intruding roots or branches at the property line, no such action may be maintained.”

The Court said that letting Mike proceed with his lawsuit to redress a claimed wrong “which might otherwise be obviated by the time-honored remedy of self-help would represent a wasteful and needless use of the judicial system.”

– Tom Root

TNLBGray

Case of the Day – Tuesday, September 30, 2025

Posted on by tagged.

A RATHER SURPRISING HOLDING FROM A DELAWARE TRIAL COURT

In this tree law gig, I read a lot of cases. After a while, reading between the lines gets a lot easier.

Today’s case, which I decided was nothing special, was just about some neighbors who were over-the-top haters of the defendant. The defendant seems like a guy whose crime was that he apparently had the effrontery to move in next door and then fix up the place.

The trial court’s long opinion had flushed away most of the plaintiffs’ breathless and frantic complaint – and “flushed” is the correct verb for most of the claims the tin-foil-hatted neighbors made against the defendant– when I got to their claim that defendant Bill Collison had “damaged a maple tree near the property line by shaving the trees directly up from the property line.”

“Holy Massachusetts Rule!” I muttered to myself. Everyone knows that this claim should be summarily tossed, because the Massachusetts Rule is as universally accepted as is turkey at Thanksgiving. Assuming Bill did “shave” the tree at the property line, that’s perfectly within his rights.

Much to my shock, the Court disagreed. It held that the right of “self-help” trimming of encroaching branches is not established in Delaware, and if this court was going to do it, it would not do it on summary judgment. It became obvious to me that whatever else Judge Calvin Scott, Jr., of Newark, Delaware, reads with his morning coffee, it sure isn’t this blog.

It did not take long to find reason to question the Judge’s refusal to grant summary judgment on this issue. In the 1978 Delaware Chancery Court decision Etter v. Marone, the court ruled

At the same time, certain generally accepted principles obtain with regard to encroaching trees or hedges. Regardless of whether encroaching branches or roots constitute a nuisance, a landowner has an absolute right to remove them so long as he does not exceed or go beyond his boundary line in the process. 2 C.J.S. 51, Adjoining Landowners § 52; 1 Am.Jur.2d 775, Adjoining Landowners § 127. He may not go beyond the line and cut or destroy the whole or parts of the plant entirely on another’s land even though the growth may cause him personal inconvenience or discomfort. 2 C.J.S. 51, supra.

So the Judge seems to be wrong: Delaware is firmly in the Massachusetts Rule camp.

What with allegations of underground tanks, clogged drainpipes and extreme mental anguish contained in the messy and unsupported complaint, Judge Scott pretty clearly had his hands full. By and large, he acquitted himself masterfully in the opinion, carefully deconstructing the plaintiffs’ complaints. But I’m betting that in about nine weeks, the Judge will be sitting down to a turkey dinner with all the trimmings. When he does, he should reflect that as many of us accept the Massachusetts Rule as will be dining on the same meal that day.

Dayton v. Collison, C.A. No. N17C-08-100 CLS (Super. Ct. Del. Sept. 24, 2019), 2019 Del. Super. LEXIS 446. Margaret Dayton and Everett Jones clearly had it out for their neighbor, Bill Collison. They claimed that since 2014, Bill had removed a significant number of standing trees and about 5,000 square feet of naturally growing plants from the City of Newark’s natural buffer zone, removed a 30-year-old drainage pipe located on his property and filled the remaining pipe with rocks and debris, intentionally altered the natural grade of his property so as to interfere with the natural flow of water, and trimmed a maple tree located on Maggie and Ev’s property along the boundary line. Additionally, they claim that an underground storage tank Bill installed – apparently your garden-variety propane tank – violates Newark’s municipal ordinances.

Maggie and Ev allege Bill’s property is a public nuisance, and that they have suffered “extreme mental anguish and damages of at least a $50,000 loss in the value of their home” because of flooding caused by Bill’s alteration of the grade’ invasion of privacy due to the removal of the buffer zone, being forced to live next to a hazardous condition because of the propane tank, and “damage or potential damage” (guess they’re not sure which) to the structural integrity of their property’s foundation.

They also claim Bill trespassed on their property multiple times to “alter the natural drainage flow of water, construct a berm, cut Plaintiffs’ trees, and take pictures or otherwise spy on Plaintiffs. From this, Plaintiffs claim they have suffered and continue to suffer damages and mental anguish in a sum to be determined at trial.”

Bill moved for summary judgment, claiming that Ev and Maggie cannot bring claims based on the alleged violation of city ordinances, and showing that their claims were baseless.

Held: Summary judgment in Bill’s favor was granted on all claims except the tree-trimming claim.

The Court held that a public nuisance is one which affects the rights to which every citizen is entitled. The activity complained of must produce a tangible injury to neighboring property or persons and must be one that the court considers objectionable under the circumstances.

To have standing to sue on a public nuisance claim, an individual must be capable of recovering damages and (2) have standing to sue as a representative of the public, “as in a citizen’s action or class action.” Here, Maggie and Ev have no right to bring a claim against Bill for alleged violations of the Code and thus, no standing to sue as representatives of the public. The Newark Code creates no rights enforceable by members of the public, and thus, it presents no basis upon which the requested relief may be granted.

To determine whether an implied private right of action exists, Delaware courts ask, among other things, whether there is any indication of legislative intent to create or deny a private remedy for violation of the act. Under the Newark City Charter, the City possesses “all the powers granted to municipal corporations by the Constitution and laws of the State of Delaware, together with all the implied powers necessary to carry into execution all the powers granted..” The city manager is responsible for administering all city affairs authorized by or under the Charter and may appoint individuals to enforce specific ordinances of the Code. The Court held that these reservations showed that the City of Newark intended for it to be solely responsible for enforcing its ordinances and did not intend to create a private right of action based upon ordinance violations.

Claims that Bill’s tree cutting was creating a public nuisance on the floodplain, likewise alleged violation of City ordinances, and thus were claims that Ev and Maggie lacked any standing to bring. As well, their claim that Bill’s propane tank had been installed without a permit alleged a violation of the City Code, a claim only the City could make.

Finally, Ev and Maggie claimed Bill created a public nuisance because he allegedly removed a drainage pipe from his property and filled the remaining pipe with rocks and debris. Outside of the fact that they were able to cite no evidence that any drainpipe had ever existed on Bill’s property, only the City of Newark had jurisdiction and control over drainage.

But Ev and Maggie claimed that Bill created private nuisances, too. A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of their land. There are two types of private nuisance recognized in Delaware: nuisance per se and nuisance-in-fact. A claim for nuisance per se exists in three types of cases: 1) intentional, unreasonable interference with the property rights of another; 2) interference resulting from an abnormally hazardous activity conducted on the person’s property; and 3) interference in violation of a statute intended to protect public safety. A claim for nuisance-in-fact exists when the defendant, although acting lawfully on his own property, permits acts or conditions that “become nuisances due to circumstances or location or manner of operation or performance.” Plaintiffs allege claims under both the theory of nuisance per se and the theory of nuisance-in-fact.

But saying it doesn’t make it so. The Court granted Bill’s motion for summary judgment on the private nuisance claims because Ev and Maggie did not provide sufficient evidence supporting their nuisance per se claim, and did not submit expert reports to show the necessary elements of their claims.

Ev and Maggie also argued that Bill’s destruction of certain trees on their property and his failure to respect known boundary lines also constitute a continuing nuisance. They alleged that they suffered a diminution in the value of their home, in an amount of at least $50,000, as a result of the “nuisance created and maintained by” Bill. Ev and Maggie estimated the value of their home and the loss they had suffered. They argue that, as landowners, they may offer an opinion on the value of real estate. The Court disagreed: “Although Plaintiffs might know the fair market value of their property based on what they paid for it and based on a comparison of their property to other homes in the area, Plaintiffs do not know how each of Defendant’s alleged actions changed the value of their property. To establish how each of Defendant’s actions changed the value of Plaintiffs’ property, Plaintiffs would need to identify and submit an expert report from an expert witness; Plaintiffs have not done so.”

Those tin hats really work — it’s just that THEY want you to think there’s something wrong with wearing ’em …

Ev and Maggie allege that they have suffered “extreme mental anguish” as a result of Bill’s alleged nuisances. The Court ruled that Ev and Maggie “needed to show proof of the ‘extreme mental anguish’ they allegedly suffered through a medical expert. Without expert testimony, the Court is not able to find that Plaintiffs suffered this type of harm or that Defendant’s conduct caused such harm. Plaintiffs have neither identified an expert witness to testify to this matter nor submitted an expert report regarding this matter.”

Ev and Maggie’s only victory came on their claim that Bill damaged their maple tree. They alleged that he damaged a maple tree near the property line by shaving the trees directly up from the property line. Ev and Maggie have identified and submitted a report from an arborist, Russell Carlson, detailing the manner in which the maple tree was damaged by Bill’s alleged cutting back of the branches. The report shows the damage done to the maple tree and estimates the cost of that harm.

Bill responded to their report, arguing that he has a right to engage in “self-help” to the property line. The Court held that “it remains unclear in Delaware whether a defendant has a right to engage in ‘self-help’ by cutting tree limbs that extend onto his property. The Court declines to make a determination on this issue in a motion for summary judgment. Therefore, Defendant has not shown, in the face of Mr. Carlson’s report, that he is entitled to judgment as a matter of law. Accordingly, summary judgment on this allegation is not proper.”

Ev and Maggie argued they are entitled to treble damages pursuant to 25 Del. C. § 1401, Timber Trespass. The Court may award treble damages for timber trespass when the plaintiff establishes that a trespasser “fells or causes to be cut down or felled a tree or trees growing upon the land of another”; 2) that plaintiff’s property was established and marked by permanent and visible markers or that the trespasser was on notice that the rights of the plaintiff were in jeopardy; and 3) that the trespass was willful.

Because Ev and Maggie only alleged that Bill damaged the tree, and did not cut it down altogether, they are not entitled to treble damages.

Finally, Ev and Maggie alleged that Bill intentionally trespassed on their property. The elements of a claim for intentional trespass are that the plaintiff has lawful possession of the land, the defendant entered onto the plaintiff’s land without consent or privilege, and the plaintiff shows damages. The Court held that there was a factual dispute as to whether Bill ever entered Ev’s and Maggie’s land. Thus, Bill was denied summary judgment on the trespass count.

Still, the Court pretty much savaged Ev’s and Maggie’s rather shrill and frantic claim, leaving their all-encompassing nuisance broadside a rather puny trespass and trim of a single tree.

– Tom Root

TNLBGray