Case of the Day – Tuesday, March 24, 2026

Posted on March 24, 2026 by TLRoot tagged.

THE MASSACHUSETTS RULE GETS FLUSHED

Greed may be good … but it doesn’t get a lot of love from the court.

Gloria Lane was a down-on-her-luck middle-aged woman who managed to just eke out an existence with her disabled brother in an old house. Their place was next to a rental property, a house equally as old, but owned by a corporate slumlord, W.J. Curry & Sons.

Do you see where this one is going? Hard cases can make bad law. Even where the result isn’t necessarily wrong — and we’re not hard-hearted enough to criticize people who were too poor to afford to fix the bathroom — cases are fact-driven.

We can imagine the scenario: a faceless corporation rolling in dough, too chary to keep up its properties and too avaricious to pay damages inflicted on the impoverished neighbors. That, at least, is the innuendo.

The Curry property included three large, healthy oak trees near the boundary with the Lane homestead. The trees are much taller than either of the houses, and those towering oaks featured limbs that protruded over Gloria Lane’s house and caused manifold problems. First, the court said, she had to replace her roof 15 years before the lawsuit “because the overhanging branches did not allow the roof to ever dry, causing it to rot.” She complained that prior to replacing the roof, “[e]very roof and wall in [her] house had turned brown and the ceiling was just falling down. We would be in bed at nighttime, and the ceiling would just fall down and hit the floor.”

In 1997, one of the oaks shed a large limb, which fell through the Lanes’ roof, attic, and kitchen ceiling. Rain then ruined her ceilings, floor, and the stove in her kitchen. The Lanes were physically unable to cut back the limbs hanging over the house, and they couldn’t afford to hire it done. For that matter, Gloria couldn’t even afford to fix the hole in her roof.

If that weren’t enough, the oaks’ roots clogged the Lane’s sewer line, causing severe plumbing problems. Gloria tried to chop the encroaching roots away from the sewer over the years, but they kept growing back and causing more plumbing problems. At the time of the lawsuit, she hadn’t been able to use her toilet, bathtub, or sink in two years because of the clogs. Instead, she went to the neighbors’ house (presumably not the Curry rental) to use the toilet. Meanwhile, raw sewage was bubbling into her bathtub, and the bathroom floor had to be replaced due to toilet backups and water spills.

Gloria told the trial court that “everything is all messed up. I can’t bathe. I can’t cook. I don’t want people coming to my house because it has odors in it, fleas, flies, bugs. It’s just been awful for me.” Ms. Lane, already under a psychiatrist’s care, said she “just can’t take too much more.”

After the branch punched a hole in her roof, Gloria asked the owner of W.J. Curry – one Judith Harris, a corporate minion who was neither W.J. nor any of his sons – to do something. She had a tree service trim the lower branches, but not the ones that would have been more expensive to reach. This didn’t solve the problems. When Gloria complained again, Ms. Harris told Gloria that she was on her own.

Now, boys and girls, these are hard facts. We aren’t dealing with the Schwalbachs, who were perfectly fit and reasonably flush, complaining to an underfunded cemetery association about a few twigs and leaves. Here, we have a dramatis personae that includes – as protagonist – a pathos-inducing poor woman caring for an invalid sibling, and – as antagonist – a soulless corporation destroying her happy home, one dropped limb by one dropped limb by one rotten roof by one clogged sewer at a time. And we’ve got some real damage, too. You try knocking on the neighbor’s door eight times a day and night to use the ‘loo, and see how you feel. Did the Massachusetts Rule have any chance of survival in the face of this heart-wrenching tale?

Of course not. The evil slumlord defendant (and we don’t know that he was evil or even a slumlord, but the story has a life of its own) argued that Tennessee followed the Massachusetts Rule. After all, it pointed out, Gloria was free to fire up her Husqvarna and clamber out onto her roof to cut down the offending limbs herself. Tennessee law firmly established that her remedies were limited to Massachusetts-style “self-help.” That means Gloria should get nothing for the hole in her roof, nothing for her falling plaster, nothing for her waterlogged stove, and nothing for the sewage bubbling in her bathtub.

The trial court agreed with W.J. Curry. It held that while it was “certainly a serious situation that the plaintiff has not been able to use her bathroom for two years … these three trees are alive and living and they do what trees normally do. They produce branches and grow, and they produce a root system. And even though you trim the branches back or you trim the roots back, they are going to produce more branches and more roots.”

Spoken like a judge whose own toilet flushes just fine. The three-judge appellate panel – a trio of jurists who were also not worried about the efficacy of their respective commodes – agreed. They observed that, after all, the trees were not “noxious” (which was a quaint notion championed by Smith v. Holt but since abandoned in Fancher v. Fagella).

The Tennessee Supreme Court reversed, adopting the Hawaii Rule, holding that living trees and plants are ordinarily not nuisances, but can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. When that happens, the Court said, the owner of the tree had some responsibility to clean up the mess. No doubt swayed by the extensive record of travail propounded by Ms. Lane, the Court held that W.J. Curry’s trees clearly satisfied the definition of a “private nuisance.” It sent the case back to the trial court for a remedy to be crafted, one that no doubt included money damages and probably an order that the landlord cut down the oversized trees.

Sure, Gloria … get up there and trim those branches yourself.

Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002). The long-suffering Gloria Lane sued W.J. Curry and Sons, Inc. a landlord owning a rental property next to her house. Over the years, her roof was damaged by branches overhanging from oaks growing on the Curry property, a branch fell, smashing into the home and causing extensive damage, and the root system substantially damaged her sewer system, rendering her home almost uninhabitable.

Gloria sued, asserting that encroaching branches and roots from the Curry trees constituted a nuisance for which she was entitled to seek damages. W.J. Curry responded that Ms. Lane’s sole remedy was Massachusetts Rule-style self-help, and she could not recover for any harm caused by the trees.

The trial court and Court of Appeals agreed with W.J. Curry and Sons, holding that an adjoining landowner’s only remedy in a case like this one was self-help, and that a nuisance action could not be brought to recover for harm caused by encroaching tree branches and roots.

Ms. Lane appealed to the Tennessee Supreme Court.

Held: Self-help is not an adjoining landowner’s sole remedy when tree branches and roots encroach. A nuisance action may be brought when the encroaching branches and roots damage the neighboring landowner’s property.

The Supreme Court held that although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.

Thumbs down to the Massachusetts Rule.

The Court engaged in a lengthy discussion of the various theories of liability adopted in various states, including the Massachusetts Rule, the Hawaii Rule, and the old, pre-Fancher Virginia Rule. The Court decided that the Hawaii Rule should be followed, because it “voices a rational and fair solution, permitting a landowner to grow and nurture trees and other plants on his land, balanced against the correlative duty of a landowner to ensure that the use of his property does not materially harm his neighbor,” while being “stringent enough to discourage trivial suits, but not so restrictive that it precludes a recovery where one is warranted.” The Court criticized the Massachusetts Rule, agreeing with the notion that limiting a plaintiff’s remedy to self-help encourages a “law of the jungle” mentality by replacing the law of orderly judicial process with the doctrine of “self-help.” Yet, the Court said, the Hawaii Rule was consistent with the principle of self-help that Tennessee courts had previously enunciated.

The Court was careful to note that it was not altering existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line – whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property.

– Tom Root

Case of the Day – Friday, March 20, 2026

Posted on March 20, 2026 by TLRoot tagged.

JUST AN OLD-FASHIONED LOVE SONG …

The other day, I had a faithful reader ask whether he could use the Massachusetts Rule to trim a neighbor’s pesky oak tree back to the property line. “Of course,” I said, with some important caveats.

The question got me thinking last night about the Massachusetts Rule. It’s good sport these days to criticize the Massachusetts Rule — that landowners are limited to trimming tree roots and branches back to the property as the exclusive remedy for encroachment by a neighbor’s tree — as being a relic of a time gone by when everyone lived in a rural or semi-rural area and times were simpler. The more modern Hawaii Rule — that permits a landowner to sue for damages and injunctive relief when the encroachment causes “sensible harm” — makes more sense in urban environments and in our modern-day (and, dare we say, litigious) society.

The Virginia Supreme Court said as much in Fancher v. Fagella. And North Dakota weighed in with Herring v. Lisbon Partners Credit Fund. When it comes to the old Massachusetts Rule, it’s pretty much “you hold him down, and we’ll kick him.”

Call me an apostate, but I’m skeptical that the Massachusetts Rule’s demise is such a good thing. So today, we’ll sing a love song to the Massachusetts Rule. And a reprise of Kentucky’s leading encroachment case provides the perfect illustration. Schwalbach’s neighbor, Forest Lawn Memorial Park, had trees that were dropping leaves and twigs that were as dead as the cemetery’s patrons. When Schwalbach sued, the Court held that the only remedy when branches behave like normal trees – specifically, by dropping twigs and leaves – is Massachusetts-style self-help.

Tennessee criticized the approach 17 years later as old-fashioned in Lane v. W.J. Curry Sons, but the plain fact is that the Hawaii Rule would have had precisely the same outcome: under that rule, branches dropping a normal load of twigs and leaves were not causing actual, sensible harm. No court would have intervened to order any outcome other than the one found in the Schwalbach case.

The case is a perfect example of how the facts of the case — be they extreme (such as in Virginia’s Fancher case or North Dakota’s Herring case) or slight annoyance (such as in today’s case) — drive the decisions. It’s not just that hard cases make bad law, as I pointed out yesterday: the law is always driven by the facts of the case. A careful comparison of the decisions establishing the Massachusetts Rule to the decisions favoring the Hawaii Rule suggests that the rules may not be very far apart at all.

Schwalbach v. Forest Lawn Memorial Park, 687 S.W.2d 551 (Ct.App.Ky. 1985). The Schwalbachs owned an apartment building located next to the Forest Lawn Cemetery. They bought the property in 1969. By 1972, they were whining that overhanging limbs from some of Forest Lawn’s trees dropped twigs and leaves and other detritus. What a shocking indignity.

Forest Lawn trimmed some of the branches, but the problem persisted. The Schwalbachs were more into brickbats than chainsaws. They never trimmed any of the overhanging branches themselves but were content to let their mouthpiece do their work for them in court.

Forest Lawn will handle the dead people … but the Schwalbachs are responsible for the dead leaves.

The Schwalbachs replaced their flat roof with a pitched one at the cost of $14,300, the result of damage done by an accumulation of leaves and twigs. The trial court found that the damages resulted from normal deadfall of leaves and small debris from the trees. It applied the Massachusetts Rule set forth in Michalson v. Nutting, concluding that the Schwalbachs should have removed the offending limbs back to the boundary line.

The Schwalbachs appealed.

Held: Kentucky follows the Massachusetts Rule. The Court rejected the Schwalbachs’ argument that Kentucky should follow the rule that every owner should be held responsible for private nuisances on real estate, essentially an ordinary negligence rule. The Court observed that “[i]mposing liability upon a landowner for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees.”

The Court did suggest that were the tree in question dead and likely to fall and cause serious injury, “[a] claim for damages or removal of such a tree might be based on the theory of negligence for damages or nuisance for removal.”

This decision was criticized by the Tennessee Supreme Court in Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn., 2002) as among those antiquated cases that didn’t permit any remedy for encroaching branches and roots beyond self-help.

– Tom Root

Case of the Day – Monday, March 16, 2026

Posted on March 16, 2026 by TLRoot tagged.

THINK DIFFERENT

The late Steve Jobs — whose equipment we use in running treeandneighborlawblog.com — exhorted us all to “think different,” by which he meant “buy Apple products.” Since his death, Steve’s life became a best-seller and a major motion picture a decade ago… but like its competitors, Samsung, Google, and Microsoft, Apple’s brand has tarnished a bit as of late.

Notwithstanding Steve’s Einsteinian advice, my late mother – a retired English teacher – used to lecture me that Apple really meant “think differently.” No matter.

Today, we’re taking a fresh look at the Virginia Supreme Court’s decision in Fancher v. Fagella, the seminal 21st-century case on tree encroachment. In so doing, we re-read the old Smith v. Holt decision credited with first adopting the old Virginia Rule 85 years ago. And we’re “thinking different” about it. Sorry, Ma.

Initially, we confess, we joined with the Virginia Supreme Court and commentators in ridiculing Smith v. Holt’s focus on whether a tree was “noxious” or not. We liked the newer Fancher approach, which the Washington Post, after all, hailed as breaking new ground. But now, after revisiting Smith v. Holt and considering the 19th-century cases on which it was based, we’re wondering why Virginia ever thought the Fancher decision was necessary at all. Thinking different … can a set of Apple Vision Pro goggles be in our future?

Over the years, the law on what a neighbor may do with encroaching trees branched into three or four divisions. The flinty, self-reliant New Englanders have followed the Massachusetts Rule, a holding that landowners may resort to self-help to stop encroaching trees and roots by trimming them back to the property line, but courts are not available to hear encroachment disputes if self-help is not adequate. At the other end of the United States (and 50 years later), Hawaii adopted what is unimaginatively known as the Hawaii Rule, a holding that while Massachusetts Rule-style self-help was always available to a landowner, so were the courts: landowners could sue to collect damages and to force a neighbor to trim or remove a tree when that tree was causing actual harm or was an imminent danger to his or her property.

The disrespected Virginia case on the issue, Smith v. Holt, was in fact forward-looking and logical: in essence, Smith v. Holt adopted the Hawaii Rule years ahead of the Ahola State, and did so with law which — had the Virginia courts not acted so precipitously in Fancher v. Fagella — would still be the law in the Old Dominion.

Smith v. Holt was the 1939 decision — handed down only eight years after the Massachusetts Rule was adopted in the Bay State — that the Virginia Supreme Court repudiated in its 2007 Fancher opinion. In Smith v. Holt, the Virginia Supreme Court reviewed a dispute in which a neighbor’s private hedge had grown over the years to the point that it was growing on the complaining neighbor’s lawn and shading a large portion of it. The Court held that the Massachusetts Rule should apply unless the hedge in question was (1) causing actual harm or was an imminent danger to the neighbor; and (2) was “noxious.” Because Mrs. Smith had not shown that actual harm was being caused, the Supreme Court declined to order Mr. Holt to remove the hedge. The Smith v. Holt holding was seen at the time as a variation on the Massachusetts Rule — although we doubt that it was any real departure from the implied limits of that rule — and became known as the Virginia Rule.

In Fancher v. Fagella, the Supreme Court abandoned the Virginia Rule it adopted in Smith v. Holt. We think this abandonment was unnecessary, premised on a misunderstanding of its own holding 68 years earlier. The adoption of the Hawaii Rule is happening increasingly throughout the United States, and it is probably as inevitable as urban growth. However, the Virginia Supreme Court’s overturning of Smith v. Holt was an overreaction predicated on its own misunderstanding of what is meant by a “noxious” tree. Even in the Massachusetts Rule decision eight years before, the court had cited a 19th-century New York decision that held “[i]t would be intolerable to give an action in the case of an innoxious tree whenever its growing branches extend so far as to pass beyond the boundary line and overhang a neighbor’s soil.” The Massachusetts Rule was never intended to extend noxious trees. And what the Smith v. Holt court meant by “noxious” was clear in the context of that case. The court relied on an 1884 Mississippi case in which a mulberry tree was held to be “noxious” because its roots had penetrated and contaminated a neighbor’s well. There was nothing inherently poisonous about the tree: it was just growing in such a way as to cause real harm to the neighbor, beyond mere shade and encroachment. In fact, in the only Virginia case ever to rely on Smith v. Holt -— the case we’re reviewing today — a trial court found in 1990 that “under the circumstances of this case, the “mock” or “osage” orange trees are noxious.”

So it’s clear that whether a tree is “noxious” has nothing to do with the inherent characteristics of the tree or hedge, but has everything to do with where the tree or hedge is located and what it is doing to the neighbor. And that is the classic definition of a nuisance given by the U.S. Supreme Court in a 1926 case: “merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.” A noxious tree is a perfectly good tree, but one in the wrong place causing actual, substantial harm, or threatening the same.

But the Fancher Virginia Supreme Court ran off on a tangent, talking about kudzu and poison ivy when it is clear that the courts that first enunciated the “noxious” standard meant nothing more than a tree that was causing or threatening real harm. Ironically, under the Hawaii Rule adopted in Fancher, the plaintiff would have done no better than she did in Smith v. Holt. The hedge she complained about in 1939 wasn’t causing her any harm other than shade and encroachment on her property. That’s not actionable under the Hawaii Rule. If it had been destroying her foundation or choking her sewer, the Smith v. Holt court would have declared it “noxious” and thus a nuisance.

Likewise, Smith v. Holt was all Mr. and Ms. Fancher needed to carry the day. In fact, their arborist understood: he testified that the sweetgum “tree was ‘noxious’ because of its location …” (emphasis added). The arborist and the Fanchers both understood Smith v. Holt. Why the trial court could not, and why the Virginia Supreme Court found it necessary to overrule a perfectly serviceable decision — something courts are traditionally loathe to do — we don’t know. But contrary to the hand-wringing and the editorializing, no new day has dawned on Virginia encroachment law. Under Smith v. Holt, a tree causing actual or imminent sensible harm to a complaining neighbor was a “pig in a parlor.” Under Fancher v. Fagella, it still is.

Arrington v. Jenkins, Chancery 89-173, 1990 WL 751069 (Cir.Ct.Va. Feb. 20, 1990) (unreported). This decision, which relied on Smith v. Holt, a landmark Virginia case which was overruled in September 2007 by Fancher v. Fagella, appears to have concerned a suit by one urban neighbor against another because her Osage orange tree had limbs that were overhanging his yard. The Osage orange, of course, drops round fruit of about 5 inches in diameter, which are green and lumpy and inedible to humans. They are known as “hedge apples.”

Arrington sued for an injunction, asking the Court to order Jenkins to trim the branches that were overhanging the Arrington yard, apparently because of the 5” inedible “hedge apples” the tree dropped on his lawn every fall.

Held: The trial court held that “under the circumstances of this case, the ‘mock’ or ‘osage’ orange trees are ‘noxious’” within the meaning of Smith v. Holt. Because of that fact, the trial court said, the responsibility for the trimming of the trees to avoid the fruit from falling upon Arringtons’ property must rest with Jenkins. The court issued an injunction that restrained Jenkins from allowing the limbs of the Osage orange trees to grow over and above the Arringtons’ land.

– Tom Root

Case of the Day – Wednesday, January 7, 2026

Posted on January 7, 2026 by TLRoot 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

Case of the Day – Tuesday, October 7, 2025

Posted on October 7, 2025 by TLRoot 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

Case of the Day – Thursday, September 11, 2025

Posted on September 11, 2025 by TLRoot tagged.

HAWAII SINGS HAWAII

Regular readers know that I often write about the Hawaii Rule, easily the second most cited rule in arboriculture law. But for all of that, the great State of Hawaii has not expounded on the seminal holding in Whitesell v. Houlton, the decision that most famously rejected the second prong of the Massachusetts Rule by holding that when a landowner’s tree became a nuisance to his or her neighbor, the neighbor could compel the landowner to abate the nuisance – that’s legalese for remove the tree or at least the part of the tree that was bedeviling the adjoining property owner – at the landowner’s expense.

Whitesell, which adopted a rule from an old Virginia case, Smith v. Holt, held that a tree was a nuisance if it was “noxious” or if there was an imminent danger of it causing “sensible harm” to property (besides plant life) other than by “casting shade or dropping leaves, flowers, or fruit.” “Sensible harm” is a standard not causing much confusion: tree roots heaving basement walls, danger trees about to fall on nearby cars and structures – it has always been reasonably obvious what “sensible harm” might be. But what might Whitesell’s reference to “noxious” trees be all about?

About 35 years after Whitesell, a Hawaii court has finally tackled the question, interpreting Whitesell and providing a rare glimpse at a court admitting that its own precedent, if not wrong, at least was a bit too frisky. Not that I am surprised, it turns out that Whitesell’s reference to noxious trees” was meaningless surplusage, language borrowed without much consideration from a since-discredited Virginia decision.

No one ever expected a litigant to latch on to the “noxious” half of Whitesell’s disjunctive definition in order to make his case. When the plaintiff in today’s case did just that, the appellate court was compelled to admit that Whitesell’s inclusion of ‘noxious’ was “superfluous.” Translation: Whitesell said ‘noxious’, but it did not mean it.

The appellate court in today’s case did the only thing it could: it decided to “modify [the] holding in Whitesell for when a plant can be considered a nuisance. Plants whose overhanging branches cast shade or drop leaves, flowers, or fruit, or whose roots interfere only with other plant life, are not nuisances. Overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, material harm to a person or to property other than plant life.”

Good idea, even if it’s 35 years late. Get rid of the ‘noxious’ language. If the tree is noxious, it probably already poses an imminent danger to people or property. And that is exactly what a non-noxious tree does when it has become a nuisance.

For heaven’s sake, simply define the tree by the imminent threat it represents, not with some squishy term like ‘noxious’.

Spittler v. Charbonneau, 145 Haw. 204, 449 P.3d 1202 (Ct. App. 2019). Scott Spittler sued his neighbors, Paul and Janice Charbonneau, raising all sorts of trespass, nuisance and related claims. The claims relevant here is his claim that the Charbonneaus’ ironwood trees, planted in 1983 as windbreaks under a U.S. Dept. of Agriculture program, were dropping leaves and branches on his property, and had “an extensive root system, have created a poor growing environment, and continue to present danger to person, real property, and agricultural products of [Spittler].” For good measure, he also claimed that the trees were ‘noxious,’ based upon a “high risk” rating of “12” set out on the Hawaii Pacific Weed Risk Assessment website. He demanded that the Charbonneaus remove the trees at their expense.

The trial court held for the Charbonneaus, finding that “the intrusion by way of overhanging branches, leaves and roots into Scott’s property that results in damage to plant life is not a nuisance and not compensable.”

Scott appealed.

Held: The trees were neither noxious nor nuisances. What’s more, Whitesell’s reference to noxious trees being nuisances is surplusage that should be stricken from the decision.

The Court observed with some surprise that “in a state known for its lush foliage, there appears to be only one reported appellate decision, Whitesell v. Houlton, addressing when a plant that naturally encroaches upon a neighboring property can constitute a nuisance. Whitesell adopted a modified version of the Virginia rule set forth in Smith v. Holt, which was later overruled in part by Fancher v. Fagella. Borrowing from Smith v. Holt, Whitesell held that “non-noxious plants ordinarily are not nuisances… Overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

Thus, according to Whitesell, the Charbonneaus’ trees could be considered a nuisance if: (1) they were “noxious”; or (2) they caused, or there was an imminent danger of them causing, “sensible harm” to property other than plant life other than by “casting shade or dropping leaves, flowers, or fruit.”

“In Whitesell,” the Court said, “we did not define the word ‘noxious’ or formulate a test to determine when a plant could be considered ‘noxious.’ The difficulty inherent in characterizing a plant as ‘noxious’ is illustrated by this case. Scott argues that ironwood trees are “noxious” based upon a “high risk” rating of “12” on the Hawaii Pacific Weed Risk Assessment website. That website does not use the word “noxious” and states only that the “small-cone ironwood” is “[u]sed in [Hawai’i] for windbreaks at higher elevations. Wood used for fuel.” It does not indicate that the ironwood is “physically harmful or destructive to living beings,” which is the definition of “noxious” contained in the Merriam-Webster dictionary.” The Court noted that some Hawaii cases had characterized some other flora as being noxious, but ironwood trees weren’t on anyone’s list except for Scott’s.

The Court sheepishly admitted that “[o]ur use of the word “non-noxious” in Whitesell was superfluous. A noxious plant — i.e., one that is “physically harmful or destructive to living beings” — is one that actually causes, or that could pose an imminent danger of causing, material harm to persons or to property other than plant life; conversely, a plant that actually causes, or that poses an imminent danger of causing, material harm to persons or property other than plant life may be considered noxious. We note that certain plants, such as coconut palms, are capable of causing material injury to persons or to property other than plant life just by dropping fronds or nuts. We also note that tree roots can, under some circumstances, pose imminent trip[ping] hazards without damaging property other than plant life. We therefore modify our holding in Whitesell for when a plant can be considered a nuisance. Plants whose overhanging branches cast shade or drop leaves, flowers, or fruit, or whose roots interfere only with other plant life, are not nuisances. Overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, material harm to a person or to property other than plant life. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, harm to a person or to property other than plant life, the damaged or imminently endangered neighbor may require the tree’s owner to pay for the damage and cut back the endangering branches or roots and, if that is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

The only dispute before the court alleged the ironwoods dropped “overhanging branches which merely cast shade or drop leaves, flowers, or fruit,” and “roots which interfere only with other plant life.” Under those facts, the Charbonneaus’ trees were not a nuisance…

– Tom Root

Case of the Day – Monday, August 4, 2025

Posted on August 4, 2025 by TLRoot tagged.

LITIGATION IS A SINGLE-ELIMINATION PLAYOFF

We’re approaching that magical time when football and baseball seasons overlap. Two games, so different. Football is time management, while a baseball contest can continue while glaciers whiz by. And the playoffs – in baseball, a team can have an off night or two, but still take the Series. Football is “one and done.”

Maybe we’re simple people, but we like the football playoffs, where a single game determines who goes on and who goes home. Single elimination. Boom, and it’s over… just like that.

That’s how the judicial system works. If you’re sued and win, the loser does not get another bite of the apple. No do-overs. No mulligans. Of course, if you’re sued and lose, the same is true.

Mary Shiel and her neighbors, Keli Jo and John Rowell, enjoyed what the court called “an uncomplicated and pleasant relationship; throughout the years, there would be soirees, weddings, and the usual and customary events that form the bonds of comity in the community.”

All was not placid, however. There was a tree, you see…

Mary and the Rowells shared a property line on which a tree grew. And grew and grew. The tree seemed to favor Mary, because it did most of its growing in her direction. The limbs bothered Mary, and as the tree grew, so did her aggravation. The friendship frayed, and the police were called more than once. Finally, the Rowells had to get protective orders from their now-manic neighbor.

Any reader of this column knows the Massachusetts Rule. Like Dorothy, Mary had her own ruby slippers, or maybe a ruby-encrusted chainsaw. She had the power to remove those offending branches whenever she wanted. Except Mary didn’t want to. She wanted the Rowells to trim it for her.

Finally, she sued in Small Claims Court. Uncharacteristically for Small Claims Court, the magistrate conducted a full hearing, where Mary was remonstrated repeatedly not only by the magistrate but by her own lawyer. After testimony that consumed 68 pages of transcript, the Small Claims Court unsurprisingly found for the Rowells, holding that Massachusetts follows the Massachusetts Rule. If Mary didn’t like the branches, she could remove them herself.

Unsatisfied with the result, Mary hired another attorney and had him file a complaint in the Quincy District Court, alleging nuisance and trespass. That’s when Mary found out she was playing football, not baseball.

Shiel v. Rowell, 2017 Mass.App.Div. LEXIS 30 (Ct.App. Massachusetts, August 9, 2017). It is well established in Massachusetts that an individual whose property is damaged by an overhanging tree has no cause of action against a landowner of the property upon which the tree lies. The Massachusetts Rule empowers the aggrieved neighbor to engage in self-help and lop off the trespassing boughs.

Mary sued the Rowells in Small Claims Court. That Court ruled that the Rowells were not responsible for the branches overhanging Mary’s place. Mary did not much like the result, so she hired a new lawyer and sued the Rowells in Quincy District Court, alleging the same causes of action litigated in the small claims hearing.

The Rowells filed a motion to dismiss the case, claiming both res judicata – a legal doctrine that literally means “the thing has been adjudicated” – and that the Massachusetts Rule required dismissal. The District Court judge ruled that the Massachusetts Rule claim was directly on point, so it was not necessary to reach the res judicata question. The judge dismissed Mary’s lawsuit.

Mary appealed.

Held: Mary had no right to force the Rowells to trim the tree.

The appellate court made short work of Mary’s appeal, observing that she did not “ascribe fault to the trial court’s decision other than that the judge should have disregarded the settled law and applied a different standard.” Mary wanted the court to adopt the Hawaii Rule, which the court called “a deciduously dissimilar state, which rejected the Massachusetts Rule for one providing a homeowner with a cause of action against a neighbor’s tree encroachment. We decline to fell judicial precedent.”

Litigation is football. When the trial is over, it is over. Single elimination. Sudden death. Mary thought she was in the baseball postseason and had multiple games. She only needed one win, and in the end, reverted to football with a “Hail Mary,” asking a court in the home of the Massachusetts Rule to go Hawaiian.

Your season’s over, Mary. Now go trim those branches.

– Tom Root