Case of the Day – Thursday, February 6, 2025

Posted on February 6, 2025 by TLRoot tagged.

ENCROACHMENT, NUISANCE … AND THE MARCH OF TIME

Encroachment – not the football kind, the tree kind. Encroachment governs the rights of adjoining property owners when the trees on one of the properties encroach on the property of the other. Overhanging branches, invasive root systems, falling debris … those kinds of problems.

Monday, we explored one of the two different approaches to encroachment under American law, the “Massachusetts Rule” that landowners are limited to self-help – but not lawsuits – to stop encroaching trees and roots. Yesterday, we looked at the other end of these 50 United States, and the “Hawaii Rule,” a holding that a landowner could sue for damages and injunctive relief when a neighbor’s tree was causing actual harm or was an imminent danger to his or her property.

Between the two competing rules, Virginia found herself firmly straddling the line. The fair Commonwealth may be for lovers but it is also for equivocators. The landmark Old Dominion case on the issue, Smith v. Holt, hailed from the 1930s, holding that the Massachusetts Rule applied unless the tree in question was (1) causing actual harm or was an imminent danger; and (2) “noxious.” This holding brings to mind the maxim, “A camel looks like a horse designed by a committee.” Frankly, Smith v. Holt had “committee’ written all over it. It seemed to hold that the Massachusetts Rule applied except where it didn’t. And what did “noxious” have to do with anything?

The Virginia Supreme Court finally addressed the confusing situation in Fancher v. Fagella. There the Court found itself hoisted on its own “noxious” petard. Everyone could agree that poison ivy was noxious, and most people could agree kudzu was noxious. But how about a cute little shade tree? Shade trees are definitely not in the same league with poisonous or entangling pests, but yet, a cute little shade tree can come out of the ground harder and do more damage than poison ivy or kudzu ever could.

Take the tree in Fancher. It was a sweet gum, a favored landscaping tree as well as a valuable hardwood. But for poor Mr. Fancher, it was Hydra covered in bark. Only halfway grown, Fagella’s sweet gum’s roots were already knocking over a retaining wall, kicking up patio stones, breaking up a house foundation and growing into sewers and even the house’s electrical system. Fancher sued for an injunction, but the trial court felt obligated to follow Smith v. Holt. There was just no way that a sweet gum tree could be noxious, the local court held, and thus, it would not help the frustrated Mr. Fancher. But the Virginia Supreme Court, wisely seeing that the “noxious” standard was of no help in these cases, abandoned the hybrid rule of Smith v. Holt, an unwieldy compromise that had already become known as the “Virginia Rule.” The Court – noting that the “Massachusetts Rule” was a relic of a more rural, bucolic age – decided that the “Hawaii Rule” was the better fit for modern, crowded, helter-skelter suburban life. It sent the case back to the trial court, instructing the judge that the court should consider whether an injunction should issue.

This decision fits neatly into what we have been considering for the past week on negligence and nuisance. Here, the tree had become a nuisance, possibly because Fagella had not cared for the tree before it began damaging the neighbor’s property. All the tree had ever done is what trees do – it grew. And grew and grew. It was healthy, perhaps amazingly so, but Fagella was ordered to shoulder the cost of damages caused not because it was dangerous or dead or anything other than an inconvenience.

Like the decision or hate it, you could see this coming. From an age in which trees grew and lived and died, and effects of the life cycle were not chargeable against the landowner, we may be arriving at a point where trees aren’t much more than big, woody pets, with their owners responsible for whatever the tree may naturally do.

Fancher v. Fagella, 650 S.E.2d 519, 274 Va. 549 (2007). Fancher and Fagella were the owners of adjoining townhouses in Fairfax County, Virginia (a largely urban or suburban county west of Washington, D.C., and part of the Washington metropolitan area). Fagella’s property is higher in elevation than Fancher’s, and a masonry retaining wall runs along the property line to support the grade separation. Fancher has a sunken patio behind his home, covered by masonry pavers.

Fagella had a sweet gum tree located a few feet from the retaining wall, about 60 feet high with a 2-foot diameter trunk at its base. Sweet gums are native to the area and grow to 120 to 140 feet in height at maturity, with a trunk diameter of 4 to 6 feet. The tree was deciduous, dropping spiky gumballs and having a heavy pollen load. It also has an invasive root system and a high demand for water.

In the case of Fagella’s tree, the root system had displaced the retaining wall between the properties, displaced the pavers on Fancher’s patio, caused blockage of his sewer and water pipes and had begun to buckle the foundation of his house. The tree’s overhanging branches grew onto his roof, depositing leaves and other debris in his rain gutters. Fancher attempted self-help, trying to repair the damage to the retaining wall and the rear foundation himself, and cutting back the overhanging branches, but he was ineffective in the face of the continuing expansion of the root system and branches. Fancher’s arborist believed the sweet gum tree was only at mid-maturity, that it would continue to grow, and that “[n]o amount of concrete would hold the root system back.” The arborist labeled the tree “noxious” because of its location, and said that the only way to stop the continuing damage being done by the root system was to remove the tree entirely.

Fancher sued for an injunction compelling Fagella to remove the tree and its invading root system entirely and asked for damages to cover the cost of restoring the property to its former condition. Fagella moved to strike the prayer for injunctive relief. The trial court, relying on Virginia law set down in Smith v. Holt, denied injunctive relief. Fancher appealed.

Held: The Supreme Court abandoned the “Virginia Rule,” adopting instead the “Hawaii Rule” that while trees and plants are ordinarily not nuisances, they can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. Then, injunctive relief and damages will lie. The Court traced the history of the encroachment rule from the “Massachusetts Rule” — which holds that a landowner’s right to protect his property from the encroaching boughs and roots of a neighbor’s tree is limited to self-help, i.e., cutting off the branches and roots at the point they invade his property — through the modern “Hawaii Rule.” The Court noted that Virginia had tried to strike a compromise between the two positions with the “Virginia Rule” set out in Smith v. Holt, which held that the intrusion of roots and branches from a neighbor’s plantings which were “not noxious in [their] nature” and had caused no “sensible injury” was not actionable at law, the plaintiff being limited to his right of self-help.

The Court found the “Massachusetts Rule” rather unsuited to modern urban and suburban life, although it may still work well in many rural conditions. It admitted that the “Virginia Rule” was justly criticized because the classification of a plant as “noxious” depends upon the viewpoint of the beholder. Just about everyone would agree that poison ivy is noxious. Many would agree that kudzu is, too, because of its tendency toward rampant growth, smothering other vegetation. But few would declare healthy shade trees to be noxious, although they may cause more damage and be more expensive to remove, than poison ivy or kudzu. The Court decided that continued reliance on the distinction between plants that are noxious and those that are not imposed an unworkable and futile standard for determining the rights of neighboring landowners.

Therefore, the Court overruled Smith v. Holt, insofar as it conditions a right of action upon the “noxious” nature of a plant that sends forth invading roots or branches into a neighbor’s property. Instead, it adopted the Hawaii Rule, finding that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants 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 to adjoining property, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. The Court was careful to note that it wasn’t altering existing 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 possible harm to the adjoining property.

The Court warned that not every case of nuisance or continuing trespass may be enjoined, but it could be considered here. The decision whether to grant an injunction, the Court held, always rests in the sound discretion of the chancellor and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. In weighing the equities in a case of this kind, the chancellor must necessarily first consider whether the conditions existing on the adjoining lands are such that it is reasonable to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots. In the absence of such a duty, the traditional right of self-help is an adequate remedy. It would be clearly unreasonable to impose such a duty upon the owner of historically forested or agricultural land, but entirely appropriate to do so in the case of parties, like those in the present case, who dwell on adjoining residential lots.

– Tom Root

Case of the Day – Wednesday, February 5, 2025

Posted on February 5, 2025 by TLRoot tagged.

YESTERDAY CHOCOLATE, TODAY VANILLA

The law of encroaching trees runs a continuum from total self-help to the exclusion of any judicial remedy (the “Massachusetts Rule,” which we discussed yesterday) – to tree owner liability (the “Hawaii Rule”), with many variations in between. If the law of encroachment were administered by Baskin Robbins, the Massachusetts Rule would be chocolate ice cream, and the Hawaii Rule would be vanilla.

In Whitesell v. Houlton, a Hawaiian appellate court first adopted what is generally known as the “Hawaii Rule,” which held that when there is imminent danger of overhanging branches causing “sensible” harm to property other than plant life, the tree owner is liable for the cost of trimming the branches as well as for the damage caused.

Maybe the court’s holding that the Whitesell v. Houlton tree was a nuisance arose from the hard facts of that case: the tree was a massive banyan tree, with a 12-foot trunk and 90-foot height.

There is an old legal maxim that “hard cases make bad law,” and the banyan tree in this case was pretty clearly monster flora, sort of the kudzu of trees. Perhaps it is that the laid-back political and cultural nature of the Sandwich Islands is too far removed from the flintier New Englanders and the type of self-reliance embraced by the “Massachusetts Rule.”

For whatever reason, if a branch from a healthy tree in Massachusetts is in danger of falling into a neighbor’s yard, that neighbor may trim it at his or her own expense … but that’s it. In Hawaii, overhanging branches or protruding roots constitute a nuisance 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. Then, the damaged or imminently endangered neighbor may either use self-help to cut back on the encroaching tree or may require the owner of the offending tree to pay for damages and to cut back endangering branches or roots. If such is not done within a reasonable time, the neighbor may even have the trimming done at the tree owner’s expense.

As we said, nothing in this ruling prevents a landowner — at his or her own expense — from cutting any part of an adjoining owner’s trees or other plant life up to his property. It’s just that the Massachusetts Rule says that’s all a landowner may do. Hawaii thinks differently. Tomorrow, we’ll see that Hawaii may be on the right side of history in this debate.

Whitesell v. Houlton, 632 P.2d 1077 (App. Ct. Hawaii, 1981). The Whitesells and Mr. Houlton lived next to each other. Mr. Houlton owned a 90-foot-tall banyan tree with foliage extending 100 to 110 feet from the trunk. The tree overhung the Whitesells’ property. and the two-lane street fronting both properties. The Whitesells asked Mr. Houlton repeatedly over a two-year period to trim the tree, and they took it upon themselves to do so at various times. Their VW microbus – probably chartreuse – was damaged by low-hanging branches, their garage roof was damaged by some intruding branches from the tree, and they identified storm-damaged branches that were in danger of falling.

Despite their entreaties, Mr. Houlton did nothing. Finally, the Whitesells hired a professional tree trimmer who cut the banyan’s branches back to Houlton’s property line and then sued Mr. Houlton to get him to pay.

The trial court sided with the Whitesells and ruled that Mr. Houlton had to pay. He appealed.

Held: Mr. Houlton had to pay. The court surveyed different approaches taken by other states, identifying the “Massachusetts Rule” holding that Mr. Houlton had no duty to the Whitesells or the “Virginia Rule” that said Mr. Houlton had a duty to prevent his tree from causing sensible damage to his neighbor’s property.

The Court agreed with Mr. Houlton that “the Massachusetts Rule is ‘simple and certain’. However, we question whether it is realistic and fair. Because the owner of the tree’s trunk is the owner of the tree, we think he bears some responsibility for the rest of the tree. It has long been the rule in Hawaii that if the owner knows or should know that his tree constitutes a danger, he is liable if it causes personal injury or property damage on or off of his property… Such being the case, we think he is duty bound to take action to remove the danger before damage or further damage occurs.” This is especially so, the Court said, where the tree in question was a banyan tree in the tropics.

Thus, the Court adopted what it called “a modified Virginia rule.” It held that “overhanging branches which merely cast shade or drop leaves, flowers, or fruit are not nuisances; that roots which interfere only with other plant life are not nuisances; that 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; that 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.”

The Court pointed out that this rule did not strip a landowner of the right, at his or her expense, to trim a neighbor’s overhanging tree or subterranean tree roots up to the property line. It’s just where the Massachusetts Rule limits you to helping yourself, the Hawaii Rule lets you enlist the courts to do the heavy lifting.

– Tom Root

Case of the Day – Wednesday, January 29, 2025

Posted on January 29, 2025 by TLRoot tagged.

BELLYACHING

When I was a kid, we had a magnolia in the backyard that my father would fume about at least twice annually. He called it “the mess tree.”

When I finally owned a backyard with a magnolia of my own, I understood. The tree is a thing of beauty every spring… for about 24 hours. Then the petals fall in a slimy, stinky mess. In the fall, the magnolia’s leaves turn from green straight to a uniform, blah brown, and then fall in a thick blanket that is resistant to most leaf rakes and machines of any size.

At least I bellyache about my own trees. What happens when your neighbors start to complain about your trees, which – while remaining on your property – mess their yards with leaves, twigs and general mess?

We all know at least the first prong of the Massachusetts Rule. A property owner has the right to trim back overhanging branches and encroaching roots of a tree standing on his or her neighbors’ yards, at least back to the property line. The second prong of the Rule, of course, is where all the variations arise. In Massachusetts, the neighbor cannot sue. In other places, the neighbor can. And even where nuisance actions are contemplated – think Mr. Houlton’s banyan tree in the famous case that begat the Hawaii Rule – at what point does a tree’s general messiness (leaves, pine cones, fruit, twigs and the such) cross the line from unremedied annoyance to actionable nuisance?

The Massachusetts Rule’s self-help provisions do not do a neighbor much good if the tree stands wholly on the next-door property. There is no trimming or root-hogging that will keep wind-blown twigs, leaves, fruit and other debris from raining onto your property.

Is there nothing that can be done? How many times have we noted that hard cases make bad law? Today’s case provides yet another illustration of the truth of this old saw.

John Leech apparently took Dorothy’s mantra to heart, believing there was no place like home. So when he and his wife had the chance, they moved into John’s boyhood home. There they lived, happy and proud (especially of the majestic coastal redwood tree in the sideyard, already 80 years old or so).

John remembered the tree from when he was a boy. He nurtured it as an adult. But about 18 years after he and Brenda returned to reside in the house in which John had grown up, the Boyles moved in next door.

The Boyles never said a word to John or Brenda about the coastal redwood. But they were plenty agitated that the tree dropped pine cones and other debris on their yard, and in the process stained everything a sticky, unappealing brown. You would think that the neighbors might engage the tree’s owners in pleasant conversation, looking for a mutually acceptable solution to the problem. If so, you would be thinking wrong.

Terri and Kent Boyle might be great people, but their conduct as neighbors was as puzzling as those people who buy a house a quarter mile from the threshold of the primary runway at O’Hare and then complain about the noise. And puzzling not just to me, either. It is hard to read the Court’s opinion that John’s and Brenda’s tree was not a nuisance without concluding that the Court was a little put out that the Boyles never bothered to discuss the problem with their neighbors, but rather hired an expert and then ran for the courtroom.

Besides, there is something vaguely unjust that a couple of Johnnies-come-lately can move in, and within a couple years demand that a tree that had stood for 80 years on land inhabited by the same people for over 20 years (and more, when the lord of the manor was a mere stripling), be chopped down, all because they did not like it.

I have the sense that if the Boyles had sought a collegial solution, resorting to litigation as a last resort, their petition might have been greeted with less skepticism.

Ah well… hard cases make bad law.

Boyle v. Leech, 2019 Wash. App. LEXIS 224 (Ct.App. Washington, Jan. 28, 2019). John Leech lived at his current residence as a child in the 1950s. He and his wife, Brenda, moved back to the property in 1995 and have lived there for the past 24 years.

From the time John was a child, a large coastal redwood tree has grown on the property, about 70 feet from the boundary line the Leeches share with their neighbors Theresa and Kent Boyle. The branches of the stately tree do not come closer to the property line than about 50 feet.

The Boyles moved into their home in July 2013. Soon enough, Terri and Kent noticed that the wind was blowing debris from the Leeches’ tree onto their property. Sometimes, the debris, which contains tannic acid, causes staining. The staining does not remove easily, requiring power washing or strong cleaning products to remove.

The Boyles hired Brian Allen, a certified arborist, to inspect the coastal redwood. Brian determined that the tree “is dying slowly,” causing excessive sap and cone production. Despite this diagnosis, the tree is not currently considered high risk. On a one-to-ten health scale (one being the highest risk, with the potential for critical failure at any moment), Brian ranked the health of the tree as close to seven. Brian recommended that “due to client’s motivations, and the potential for continued and worsening damage to surrounding property, removal is recommended.”

Inexplicably, Terri and Kent never complained to the Leeches about the coastal redwood. Rather, they filed a nuisance action against the Leeches, asking for $5,000 in damages and for a court order that the Leeches abate the nuisance by cutting down the tree. When the Leeches recovered from their shock at being sued, they moved for summary judgment, arguing the Boyles failed to establish a prima facie case of nuisance. The trial court agreed, throwing out the Boyles’ lawsuit.

The Boyles appealed.

Held: The Leeches have acted reasonably by keeping the tree, which is entirely on their property, without complaint from anyone before the Boyles. The Boyles’ claim of nuisance thus fails as a matter of law.

RCW 7.48.010 defines “actionable nuisance” as including a number of specific events, such as obstructing a highway or clogging a stream with floating timber, and includes a “catch-all” provision that holds “whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance.”

In Washington, the Court said, “an unreasonable interference with another’s use and enjoyment of property” constitutes a nuisance. Thus, in nuisance cases, the trial court mainly considers whether a party reasonably uses his or her property, balancing the rights, interests, and convenience unique to the case and considering all the surrounding facts and circumstances.

Here, the Court observed, the tree was growing entirely on the Leeches’ property, without any branches overhanging roots encroaching on the Boyles’ yard. The tree is about 80 years old, or any underground Leech believes the tree has been on the property for 80 years. Aside from the Boyles, no neighbor has ever complained to John or Brenda about the tree.

The Boyles described the tree as “a dying tree shedding toxic debris,” but their expert evidence only opined that the tree was dying slowly but remained relatively healthy. The tree’s debris may have been “excessive,” but it was in no way toxic. Arborist Brian Allen only explained there was a “potential” for continued damage. He recommended the tree be cut down only because that was what his clients, the Boyles, wanted.

The Court of Appeals concluded that the Leeches did not act unreasonably with regard to the tree, especially given the redwood was located entirely on their property. Thus, there was no nuisance, and the Leeches would not be required to remove the tree to prevent staining from occurring on the Boyles’ property.

The Court admitted that no case it could find in Washington or any other state addressed a nuisance action regarding a tree situated wholly on someone else’s property. In Gostina v. Ryland, the Washington Supreme Court ruled that overhanging tree branches or encroaching roots onto a neighboring property constitute nuisances, and that the offended party was entitled to cut back any tree branches or roots that intrude onto his or her property. But in dictum, the Gostina court noted, “[t]he remainder of the trees will doubtless shed their leaves and needles upon the [plaintiff’s] premises; but this they must endure positively without remedy.” As well the Court of Appeals said, in Whitesell v. Houlton – the case that adopted the Hawaii Rule – that court was careful to exclude from the definition of nuisance a tree that only was “casting shade or dropping leaves, flowers, or fruit.”

Certainly, the Court of Appeals ruled, “If natural debris from an overhanging tree should not constitute a nuisance, neither should such debris from a tree that does not encroach onto neighboring property… Wind blowing natural debris from the Leeches’ tree causes staining on the Boyles’ property. We decide that this – debris from a tree wholly on another’s property – does not constitute a nuisance.”

– Tom Root

Case of the Day – Tuesday, December 31, 2024

Posted on December 31, 2024 by TLRoot tagged.

SAUCE FOR THE GANDER

I confess that I have always been a little uneasy at the cases that balance the Massachusetts Rule against harm – even inevitable harm – to a neighbor’s tree. If the Massachusetts Rule says that a landowner suffering harm from a neighbor’s tree has no recourse but to trim branches and roots back to the property line, it seemed like holding that the tree owner had no recourse if the trimming harmed the tree was just a practical application of the commonsense notion that what is sauce for the goose is as well sauce for the gander.

The property line limitation of the Massachusetts Rule is quite necessary. You cannot have the neighbor wandering into your yard, hacking the tree branch back to the trunk. But at the same time, standards of careful tree maintenance (think ANSI Standard A300) would suggest that cutting a limb halfway back to the trunk is negligence. Inasmuch as the afflicted neighbor cannot trim the tree beyond the property line to acceptable standards without the tree owner’s permission, the neighbor would be sandbagged if she were liable for not trimming it in a way that did not damage it.

Likewise, if a neighbor can save her foundation only by severing so many roots on her property that the tree’s health and safety is jeopardized, why should she be liable for what happens to the tree? It’s not as though she could have sued to have the tree removed: that’s the whole point of the Massachusetts Rule.

And yet, cases like Brewer v. Dick Lavy Farms, LLC, Fliegman v. Rubin, and Booska v. Patel lead the march toward limiting the Massachusetts Rule with the rule that a landowner had a duty to act reasonably when exercising self-help rights. Such a limitation on the Massachusetts Rule almost guarantees that the Rule will be further watered down by permitting suits against tree owners for encroachment. And when that happens, the Massachusetts Rule will be indistinguishable from the Hawaii Rule.

My worry that what some may be progress is just needless change is why was so cheered by a 2018 year-end decision from Florida that so succinctly expressed my own feeling that the Massachusetts Rule requires that the prohibition on bringing suit apply as much to the goose as it does to the gander.

Balzer v. Maxwell, 263 So. 3d 189 (Ct.App. 1st Dist., 2018). A large pine tree stood on Barbara Balzer’s property near her boundary with a parcel owned by Cindy Ryan. The tree’s roots encroached onto Cindy’s property, damaging the sewer line that ran under their driveway. To fix the sewer line, Cindy hired Hoyt Maxwell to remove her driveway and replace the line. While removing the driveway, Hoyt cut some of the encroaching tree roots. Although he did not kill the tree, Hoyt undermined the tree’s structural integrity and increased the risk that it might someday fall on Barbara’s house. To be prudent, Barbara paid to have the tree removed.

Afterward, she sued Cindy to recover the costs of removing the tree. After a nonjury trial, the court awarded Barbara only a portion of her costs to remove the tree. Barbara appealed, arguing that the county court erred by not awarding all of her costs. Cindy and Hoyt cross-appealed, arguing that the county court erred in finding them liable for damaging the tree because Cindy had the right to cut the encroaching tree roots. The circuit court reversed, reasoning that because Barbara could not be compelled to pay for Cindy’s damaged sewer line, she likewise had no cause of action against Cindy and Hoyt if the tree was damaged when Cindy exercised her privilege to cut the roots encroaching onto her property.

Barbara sought review of the circuit court appellate decision.

Held: Because the circuit court’s decision did not violate any clearly established principle of law, its decision holding that Cindy and Hoyt were not liable was upheld.

The holding in this decision, known as a second-tier certiorari proceeding, was limited to deciding whether the lower court’s decision departed from a “clearly established principle of law” resulting in a miscarriage of justice. If there is no controlling precedent, certiorari relief cannot be granted because without such precedent, the reviewing court “cannot conclude that a circuit court violated a clearly established principle of law.”

Under Florida law, the Court observed, it is well-established that an owner of a healthy tree is not liable to an adjoining property owner for damage caused by encroaching tree branches or roots, but the adjoining property owner “is privileged to trim back, at his own expense, any encroaching tree roots or branches… which has grown onto his property.”

The issue in this case, however, was slightly different, whether an adjoining property owner is liable to the tree owner when the self-help remedy damages the tree. The Court held that while there are conflicting decisions on the issue in other states, no Florida court has weighed in on the issue. For that reason, the Court said, “it follows that the circuit court did not violate clearly established law in ruling the way that it did.”

Barbara argued that McCain v. Florida Power Corp. established that negligence principles extended to suits against landowners in circumstances like this case. The Court disagreed because Barbara did not allege and the evidence did not show that Cindy damaged anything other than the tree whose encroaching roots Cindy “undisputedly had a right to cut.” The Court concluded that a “rule imposing liability for causing any damage to the tree in these circumstances would effectively eviscerate that right.”

– Tom Root

Case of the Day – Tuesday, December 10, 2024

Posted on December 10, 2024 by TLRoot tagged.

HALFWAY BETWEEN MASSACHUSETTS AND HAWAII

In the world of tree encroachment, regular readers of this site know that there is a continuum of liability extending from the Back Bay of Boston all the way to Mauna Kea on the Big Island of Hawaii.

We all know about the Massachusetts Rule, which holds that a landowner has no liability whatsoever for encroachments of the branches or roots of his or her tree over, on or under neighboring land. Your neighbor doesn’t like it? That’s why Poulan sells chainsaws.

On the other end is the Hawaii Rule, where with the privilege of tree ownership comes great responsibility. If you own a tree that causes sensible harm to your neighbor’s property and you know or should know that, you are liable for harm that it causes.

In today’s case, there is no doubt that Ken and Jeannine Carvalho suffered harm from roots belonging to Larry and Judy Wolfe’s trees. When the foundation damage was discovered, the Carvalhos reported it to the Wolfes, who then cut the trees down.

But that was not good enough. I suspect the Carvalhos hoped to nick the Wolfes’ homeowners’ insurance. It seems a shame that their lawyer’s pleading skills were not equal to the aggressiveness of the Carvalhos’ avarice. Or maybe they demanded that counsel bring the suit, and he or she was honest in not claiming the Wolfes knew or intended the roots grow into Carvalhos’ foundation when neither evidence nor common sense suggested they did.

Still, the case gave Oregon a chance to stake out a position on the continuum that certainly was not the Massachusetts Rule but wasn’t the Hawaii Rule, either. Instead, the Oregon Rule – such as it is – comes out something like halfway between.

Carvalho v. Wolfe, 207 Ore. App. 175, 140 P.3d 1161 (Ct.App. Oregon 2006). The former owners of Larry and Judy Wolfe’s property planted trees along the property line. Once the property became theirs, the Wolfes became responsible for the ongoing care, maintenance, and control of those trees.

In 2004, Ken and Jeannine Carvalho discovered that trees’ roots had grown all the way to the foundation of their home, causing structural damage that then amounted to over $61,000 and that was increasing. After the Carvalhos discovered the damage, the Wolfes cut down the trees but did nothing to be sure the roots had stopped growing.

The Carvalhos sued the Wolfes for trespass and nuisance. In their trespass claim, Ken and Jeannine alleged that they had legal possession of their property and that they did not authorize the entry “of any trees, roots, or vegetation of any kind onto their land from defendants’ land.” In their nuisance claim, the Carvalhos said the roots “have severely and unreasonably invaded plaintiffs’ land” and that the invasion had interfered with their “ability to use and enjoy their land” as a result of the damage to their house. The Carvalhos did not allege in either claim that the Wolfes acted with any specific level of culpability or that they were engaged in an ultrahazardous activity.

The Wolfes moved to dismiss both claims for failure to state a claim for relief. They asserted that the Carvalhos’ claim was fatally defective in several respects, including by failing to allege the Wolfes had been negligent or had engaged in an ultrahazardous activity by allowing the roots to encroach on the Carvalho property. The Wolfes also argued that the encroaching tree roots did not constitute a nuisance, because a landowner is limited by law to using self-help remedies for such encroachment and not to seeking relief from the courts. The trial court agreed, granted the Wolfes’ motion and entered a judgment dismissing the action.

The Carvalhos appealed the denial of the trespass and nuisance claims.

Held: The Carvalho claims were properly dismissed.

Each of the Carvalhos’ theories of liability – trespass and nuisance – involved a different kind of interference with their interest in their land. An actionable invasion of a possessor’s interest in the exclusive possession of land is a trespass; an actionable invasion of a possessor’s interest in the use and enjoyment of his land is a nuisance. Courts in some places have concluded that tree roots or branches that intrude into or over neighboring lands may be either a trespass or a nuisance; others have rejected liability under either theory.

The Court of Appeals reviewed the two cases of the extreme ends of the tree encroachment continuum. In Michalson v. Nutting, the Massachusetts court held that there was no distinction between an intrusion by overhanging branches and one by invading roots. In either case, an owner has the right to grow trees on its land, which naturally leads to branches and roots crossing the boundary line. When that happens, the owner of the other land is limited to cutting the branches and roots where they intrude, a holding now known as the Massachusetts Rule.

On the other end of the continuum was Whitesell v. Houlton, in which a banyan tree’s branches overhung the plaintiffs’ property, damaged their garage and threatened additional damage until the plaintiffs had them cut back. The Hawaii court held that the Massachusetts Rule was unfair. “Because the owner of the tree’s trunk is the owner of the tree, we think he bears some responsibility for the rest of the tree,” the Court ruled. Thus, Hawaii provides that, if the owner of a tree knows or should know that it constitutes a danger, the owner is liable for harm that it causes on or off the property. In that case, the damaged or imminently endangered neighbor may require the tree’s owner to pay for the damages and to cut back the endangering branches or roots.

Splitting the difference was Abbinett v. Fox, the New Mexico case in which roots from the defendants’ cottonwood tree damaged structures on the plaintiffs’ property. The New Mexico Court of Appeals discussed Michalson and Whitesell, ultimately holding that, although landowners may use their property in ways that maximize their own enjoyment, they may not unreasonably interfere with the rights of adjoining landowners or create a private nuisance.

Here, the Court noted that intrusions were different in each of the cases that we discussed. In Michalson, the defendants simply planted the tree and refused to remove the roots; there is no suggestion that they intentionally or negligently caused harm to the plaintiffs. In Whitesell, however, the defendants knew or should have known that their tree would cause damage to the plaintiffs’ property, which in Oregon would support a finding that they intended to cause that harm.

Unlike the Massachusetts and Hawaii Rules, the Court ruled that “the issue of culpability is decisive in this case. Thus, we do not need to decide whether we would agree with the Hawaii and New Mexico courts if defendants had acted with some level of culpability or if they had been engaged in an ultrahazardous activity.”

At common law, an unauthorized entry onto the soil of another was in itself a trespass. Oregon law appears to have applied that rule of strict liability, with one court holding that because “we hold that the intrusion in his case constituted a trespass it is immaterial whether the defendant’s conduct was careless, wanton and willful or entirely free from fault.” But an Oregon Supreme Court holding applied the rule that “there is liability for an unintentional intrusion only when it arises out of negligence or an ultrahazardous activity.” After these decisions, Oregon law applying to both nuisance and trespass claims required that a plaintiff allege that the “defendant’s actions were intentional, negligent, reckless or an abnormally dangerous activity.”

Here, the Carvalhos did not allege that the Wolfes acted with any level of fault or that they were engaged in an ultrahazardous activity. Rather, they simply sought to hold Larry and Judy strictly liable for the damage that the trees caused. However, the Court ruled, “neither trespass nor nuisance provides for strict liability except for an ultrahazardous activity. While the Wolfes might be liable for intentional trespass or nuisance if they knew or should have known that their caring for the trees would result in the tree roots damaging the Carvalhos’ house, the Carvalhos did not allege that the Wolfes had or should have had that knowledge. While they do allege that the Wolfes have not taken any action to ensure that the trees have been killed and the growth of their roots permanently stopped, Ken and Jeannine seemed to be careful to not allege either that the growth is continuing or that defendants knew or should have known that it is continuing.

By failing to allege that the Wolfes acted or failed to act with any form of culpability, and to allege that they engaged in conduct that could make them strictly liable for trespass or nuisance, the Carvalhos failed to state a claim for relief under either nuisance or trespass.

– Tom Root

Case of the Day – Friday, November 29, 2024

Posted on November 29, 2024 by TLRoot tagged.

BEHIND THE BAMBOO CURTAIN

I admit to being old enough to remember the Bamboo Curtain, the Cold War political demarcation between the Communist states of East Asia – particularly the People’s Republic of China – and the capitalist and non-Communist states of East, South and Southeast Asia.

It seemed for a while that the Iron Curtain, Cactus Curtain, Bamboo Curtain and others of that ilk were now relics of unpleasant history. But we still have nine-dash lines, 38th parallels, Crimea, the Donbas, and other examples of countries acting badly, so we’re hardly out of the woods yet. Let’s not get started on Russia and Ukraine…

But “bamboo curtains,” literally enough, are still with us. Every so often, I am reminded of that when I come across a case involving a stand of bamboo, encroachment that usually started when some well-meaning homeowner (who maybe anticipates an attack of hungry pandas) plants a little stand of bamboo in his backyard.

The problem is that the owner has a “little stand of bamboo” only for a minute or so. The stuff is pernicious and fecund. Bamboo, which is a giant grass and not a tree, has fairly been called one of the world’s most invasive plants. Once established, it is next to impossible to control. The sprouts that shoot up from the ground each spring can grow 12 inches a day. The underground roots of common running “fishpole” bamboo, which can easily reach 15 feet tall, can travel as far as 20 feet or more from the original clump. The experts suggest you control it by digging a two-foot deep trench and lining it with aluminum. Or lead. Or titanium. Or concrete. But whatever you use, leave a portion of it sticking up above ground, because bamboo roots can jump barriers like Superman leaps buildings.

Bamboo: the Asian carp of grasses. As one homeowner site puts it: When you need a concrete bunker to contain a plant, you know you’re in trouble.

Bamboo is not a very good idea. Unless, of course, you’re like Mike and Roberta Komaromi, who simply did not give a rip that their bamboo stand was galloping across neighbor Caryn Rickel’s lot. Usually, we complain about people foolish enough to represent themselves, but here, we grudgingly admit that pro se litigant Caryn was holding her own.

The Komaromis were smug, arguing that they had no duty to corral the bamboo. Well, as is usually the case when hard facts collide with justice, courts find a way to recompense the victim. So it did here, ruling (and right on the Bay State’s south border, too) that the Massachusetts Rule cut no ice in Connecticut.

Rickel v. Komaromi, 2011 Conn. Super. LEXIS 5254 (Superior Ct. Conn., July 13, 2011): Caryn Rickel, bringing her case without a lawyer, complained that her neighbors Mike and Roberta Komaromi planted bamboo in their yard without any plan for containment. As a result, her backyard has been overrun by invasive bamboo.

Mike and Bobbi, who did hire a lawyer, filed a motion to strike the complaint as legally insufficient. That is to say, they claimed that if everything Caryn said in the complaint was true, she still was entitled to no relief.

Mike and Bobbi complained that Caryn had not alleged they had any legal duty to her.

Held: Connecticut would follow the Hawaii Rule, and under that Rule, Caryn had adequately claimed her neighbors had a duty to her which they violated with the bamboo. “The essential elements of a cause of action in negligence are well established,” the Court said, “duty; breach of that duty; causation; and actual injury.” There can be no negligence without there first being a cognizable duty of care.

The test for the existence of a legal duty of care, the Court said, entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.

So, how did Caryn do? First, she alleged the Komaromis planted bamboo without any plan for containment and watched while the non-native plant fully invaded Caryn’s backyard. She also alleged the Komaromis failed to take action to alleviate the situation even though the bamboo growth was readily visible. This, the Court ruled, sufficiently alleged that the damage to Caryn’s property was reasonably foreseeable to the Komaromis.

Second, the Court held, the Komaromis’ responsibility for their negligent conduct should extend to Caryn on public policy grounds. The Court looked at (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions. Considering these four factors, the Court said, “supports the conclusion that the court should impose a duty on a property owner to refrain from planting bamboo without a containment plan in order to avoid harming an adjacent property.”

First, property owners are normally expected to refrain from engaging in conduct that would cause damage to an adjacent property. Although landowners may reasonably expect some level of discomfort from having adjacent property owners, it does not mean that property owners should reasonably expect bamboo belonging to an adjacent landowner to fully invade their property.

For the second factor, as a matter of public policy, it is desirable to promote property ownership, and the ability to live free of the concern of encroaching vegetation from adjacent properties directly impacts this goal. Allowing a landowner to cultivate his or her land “should be fairly balanced against the rights of adjacent landowners, and imposing a duty on the cultivating landowner whose vegetation harmfully invades another’s property would be in accord with public policy.”

Turning to the third factor, it is true that imposing a duty like this one could encourage other property owners suffering from the same problem to bring similar actions. On the other hand, however, establishing such an affirmative duty may deter potential defendants from engaging in this type of activity.

Finally, the Court rejected the Massachusetts Rule. That rule provides that a defendant has no duty to prevent his trees from causing damage to his or her neighbor’s property and that “a landowner’s right to protect his property from the encroaching boughs and roots of a neighbor’s tree is limited to self-help, i.e., cutting off the branches and roots at the point they invade his property.” The Hawaii Rule, by contrast, grants the landowner a remedy for damages caused by the encroaching vegetation of an adjacent property owner.

The Court adopted the Hawaii Rule, it said, for two main reasons. First, the Rule serves as a gatekeeping mechanism in that it imposes a requirement of actual harm to the property, discouraging trivial suits while simultaneously providing a cause of action for deserving plaintiffs. The Massachusetts Rule, by comparison, “deprives deserving plaintiffs of any meaningful redress when their property is damaged.” Second, the Massachusetts Rule is not “realistic and fair… Because the owner of the tree’s trunk is the owner of the tree,” the Court opined, “we think he bears some responsibility for the rest of the tree. It has long been the rule in Hawaii that if the owner knows or should know that his tree constitutes a danger, he is liable if it causes personal injury or property damage on or off of his property… Such being the case, we think he is duty bound to take action to remove the danger before damage or further damage occurs.”

In addition, the Court said, Caryn had linked the breach of the Komaromis’ duty, the damages she suffered and the causation between the breach and the damages suffered. She alleged that the Komaromis planted the bamboo and that their subsequent inaction as to the bamboo growth “directly caused the harmful condition and continual damage” to her property. Accordingly, the Court said, Caryn has successfully set forth a cause of action in negligence.

So does Caryn win an injunction to get the bamboo eradicated? Stay tuned Monday…

– Tom Root

Case of the Day – Tuesday, November 26, 2024

Posted on November 26, 2024 by TLRoot tagged.

WHEN LIFE GIVES YOU LEMONS …

Lemon and Curington were neighbors. Things were neighborly when Curington planted a pair of poplar trees — fairly fast-growing and tall things — near the property line.

Over the years, things became less so, as several legally significant events occurred. First, the trees got big. As they did, the trunks ended up crossing the boundary line so that the trees were growing on both Curington’s and Lemon’s land. Second, the root systems expanded and began putting the squeeze on Lemon’s foundation. Third, Lemon discovered that if he used self-help, trimming back the roots and topping off the trees, he would make them unstable, turning the poplars into topplers. So Lemon — who was completely soured on the trees by this point — sued Curington, asking that the trees be declared nuisances and that Curington be made to remove them.

Life had given Curington a Lemon, but he tried to make lemonade. He argued that the Massachusetts Rule gave Lemon no aid and that he was limited to self-help. However, the court relied on the Idaho nuisance statute (noting in passing that the Massachusetts Rule didn’t really apply to a tree growing in both properties at once, a fascinating observation we wish it had explained a bit better), ruling that the trees were nuisances for having damaged Lemon’s foundation. It also seemed important to the Court that Lemon couldn’t trim the tree and roots himself without making the poplar a “danger” tree that was likely to fall.

This case is a gallimaufry of issues — the interplay of nuisance statutes with common law and the interplay of boundary trees with encroachment — as well a rather poorly-thought out dismissal of the Massachusetts Rule for reasons that were unnecessary. After all, the Massachusetts Rule was specific in its limitation to non-nuisance encroachment, twigs and leaves and that sort of thing. The Lemon decision, remarkably similar to the Hawaii Rule (but decided 14 years before the Hawaii Rule was adopted), is also quite similar in its fact pattern to Fancher v. Fagella, a 2007 Virginia Supreme Court decision. In fact, a real argument can be made that this Idaho case was entirely unnecessary in its treatment of the venerable Massachusetts Rule. Michalson v. Nutting, in our view, is a “big tent” with enough room for all of the poplars, sweet gums and banyan trees that followed.

Lemon v. Curington, 78 Idaho 522, 306 P.2d 1091 (1957). Lemon and Curington owned adjoining land with a common boundary, on which two poplar trees had been planted over 50 years ago. The trees had grown to approximately four to five feet in diameter at the base, and the trunks and branches extended across the boundary line. The roots were surface feeders and, in one case, extended from the boundary line to and against the foundation of Lemon’s house, cracking the house’s foundation. pushing the wall of the plaintiffs’ house inward.

If Lemon topped the trees and cut the roots extending onto his land, the trees are likely to fall over. Lemon sued, alleging the trees to be a nuisance, and asked for the authority to remove the offending trees.

The trial court authorized the destruction of the tree damaging the foundation but held the other tree was healthy and mature, and thus not a nuisance. Curington appealed, arguing that the Massachusetts Rule limited Lemon’s remedies to self-help, that is, to Lemon’s trimming the tree and roots himself.

Held: The tree is a nuisance, and the Court may order Curington to remove it. The Supreme Court held that the Massachusetts Rule was not dispositive where a nuisance had been shown to exist.

The Court said, “[w]e think the condition here shown to exist constitutes a nuisance under the provisions of Idaho Code § 52-101.” That statute defined a nuisance to be “[a]nything which is injurious to health … or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” Here, not only had the tree made a mess of Lemon’s foundation, but the evidence showed that if Lemon cut the roots and topped the tree, the whole thing was likely to fall over. The Court said that the statute authorized an action by any person “whose property is injuriously affected or whose personal enjoyment is lessened by the maintaining of a nuisance to have it abated.”

Without explaining its reasoning very far, the Court also said that the fact the tree was a boundary tree, on the properties of both parties, made the Massachusetts Rule inapplicable. So while Lemon reserved the right of self-help, the courts were also available to him to abate the nuisance tree.

– Tom Root