Massachusetts Rule

Case of the Day – Wednesday, January 8, 2025

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DEEP POCKETS, ONE – MASSACHUSETTS RULE, NOTHING

Nothing can skew the impartial dispensation of justice like a rich defendant. After all, the Massachusetts Rule is pretty doggone clear: self-help trumps litigation. But even where that is true, sometimes rich defendants – like hard cases – make bad law.

Take the case of Mrs. Norwood. When the tree roots of a 25-year-old oak tree planted by the City of New York invaded her sewer line, Mrs. Norwood thought that the whole deal stank. After all, the City knew the sewer line was there 25 years before, and it knew the little oak sapling it planted at that time would become a mighty and sewer-invading oak.

Dorothy always had the power in her ruby slippers to return to Kansas. Likewise, Mrs. Norwood always had the power of her diamond-studded Massachusetts Rule rights: She could have dug those roots out of her yard, and the City could not raise so much as a little stink about it.

But Mrs. Norwood couldn’t see spending a dime to take care of her property when the City, with its weighty balance sheet and untold millions of dollars in the bank, could do it for her.

She sued. The Court agreed. Massachusetts Rule, solid though it usually is, be damned! Let the government pay.

Norwood v. New York, 95 Misc. 2d 55 (Civil Ct. Queens, June 21, 1978): Back in 1953, the City of New York planted an oak tree over a sewer line leading to Delema Norwood’s home. Over time, the oak tree roots entered the joints of a sewer line, causing the pipe to burst. Delema sued, claiming that the damage was the City’s responsibility.

At trial, Delema’s expert testified that the sewer was properly designed and constructed when it was installed in ‘53.

Held: Because the sewer line was properly constructed, and the City planted a tree that had the propensity to dig into sewer lines, The City of New York, rather than Delema, was responsible for the cost of repairing the sewer line.

The question, as framed by the Court, was whether a municipality that plants an oak tree over a residential sewer line, is liable to the landowner when the roots of the tree damage the sewer line? The Court found that 25 years before, City, without the request or permission of landowner Delema Norwood, planted an oak tree at the curb line of her property over the sewer line leading from her house to the sewer in the street. An oak tree has roots that go down deep and have a propensity for entering the joints of sewer pipelines. The roots of this oak did exactly that and caused the sewer pipe to burst.

The Court found a case where the landowner was liable because the sewer line was constructed incorrectly. But that was not the case here, where the sewer was properly constructed. Delena’s expert testified that the sewer was made of vitreous clay pipe and joined with cement. He testified that this was a proper method of construction at the time the sewer was built, over 25 years ago.

In another case, the plaintiff’s complaint was dismissed because sufficient facts to establish that defendant was responsible for this damage were not alleged. That court noted that “whether the defendant can ever be held liable for the natural growth of a tree, in possession of or belonging to the city, is uncertain.”

Finally, a plaintiff alleged that roots from a defendant’s poplar tree had grown onto the plaintiff’s property, disturbing and eroding her swimming pool and the patio around it. The court there held the complaint stated a cause of action.

In this case, the Court weighed the idea that urban trees are beneficial to city dwellers and enhance the surrounding area. On the other hand, owners of property are entitled to have their sewer lines protected; the destruction of sewer lines will cause obvious discomfort not only to the landowner but to others in the area.

In balancing these interests, the Court held, at least where the sewer line is properly constructed, the municipality, rather than the landowner, should bear the cost of repairing a damaged sewer line when it plants a tree. After all, the oak was well known for having the propensity to dig into sewer lines. In this situation, it was foreseeable that sometime in the future, damage might very well occur.

The Court admitted that “while a rule imposing liability upon the municipality may tend to deter the planting of certain kinds of trees, the municipality may still safely plant other trees. Moreover, with respect to newly constructed sewer lines, the municipality should be in a position to avoid liability since a properly constructed sewer line now should be impervious to the roots of trees.”

The Court acknowledged the Massachusetts Rule, observing that “a landowner may, on his own land, resort to self-help to remove roots adversely affecting his own property.” While some argue that this is sufficient protection for a landowner and he need not be given a cause of action for damages where tree roots damage his sewer line, other jurisdictions reject this argument. But this Court ruled that it would be unrealistic to limit a landowner to a right to dig for and cut roots. “While such a limitation upon the rights of a landowner may be proper with respect to overhanging branches of a tree, the Court wrote, “such a limitation would be manifestly unfair to a landowner whose property may be directly injured by the effect of spreading roots. Unlike branches that are readily visible and which may often be cut without great difficulty, roots are not generally visible and may require considerable digging in order to remove them. Indeed, the landowner will usually not know that he has reason to cut roots until damage has occurred.”

The Court found that the City owed for the cost to repair the sewer line.

– Tom Root

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Case of the Day – Tuesday, January 7, 2025

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MASSACHUSETTS RULE – THE OLD IS NEW AGAIN

Yeah, we talk about the Massachusetts Rule all the time, but really, how relevant is it to our modern, digitized, frenetic world?

Ask Pete Kirk and Bryan Johnson. These unhappy landowners did not think much of an affordable housing development going in next to their parcels. Their stated complaint was that drainage would be altered and eight Norway maples on or near the boundary lines might be harmed.

I have no reason to suspect that Pete and Bryan objected to the nature of the development, or what all of those people needing “affordable housing” might do to their property value. But they were mightily unhappy that regrading or excavation could to their trees, and they sought to get the zoning board’s approval withdrawn.

Sorry, the court said to Pete and Bryan. This being Massachusetts, the Massachusetts Rule reigns supreme. The developer had the right to do with his property as he wished, even if it cut or affected tree roots that had encroached on his land. Strangely, the Court seems to have engrafted a specific intent requirement on the developer. He could cut roots or change the grade (which would bury the roots too deep in the soil), even if he knew it would kill the trees. The only limitation is that he could not do so with the intent to kill the trees.

Come again? I have read Michalson v. Nutting repeatedly without being able to find scienter anywhere in the ruling. Is the Court saying that what you do as a landowner to exercise your self-help rights under the Massachusetts Rule is somehow regulated by the purity of your motives? Outside of the obvious difficulty in proving what the landowner intended to accomplish in any given act on his or her property, what does motive have to do with the reasonableness of an act?

Forgive me for thinking of the Tin Man in a yoga class.

Kirk v. Li, 2019 Mass. LCR LEXIS 2 (Mass. Land Ct., Jan. 7, 2019).  Developer 269 North Ave, LLC got a comprehensive permit from the Weston Zoning Board of Appeals (Board) for a 16-unit housing project on a one-and-a-half-acre parcel. The property, severely sloped in the rear, presented tough challenges to satisfying the requirement that the project not result in an increase in stormwater runoff, because all of the stormwater from 16 acres surrounding the site accumulates on the property. Because of the particularly porous soils on the property, all of this stormwater recharged into the ground, with none of it running off. Construction of the project would increase the impermeable surfaces on the property, such as buildings and parking lots, which meant a decrease in open land available to recharge stormwater.

To satisfy stormwater regulations, the developer designed a system to collect and discharge all stormwater into the ground. The Board was satisfied and issued the comprehensive permit.

Peter Kirk and Bryan Johnson owned land that abutted the developer’s property on the south and north respectively. They complained to the Board that the developer’s stormwater system would not handle the stormwater flow onto its property, resulting in flooding on their land. Additionally, Pete and Bryan argued that the housing development would harm or even kill trees that straddle the boundary or are on their properties. When the Board disagreed, they sued.

Held: The Court held that Board did not act unreasonably or arbitrarily or capriciously in accepting the developer’s stormwater management plan or its measures for protecting the trees.

This review focused only on Pete and Bryan’s complaints about their trees. Pete identified three trees on his property or on the common boundary line with the developer’s property, and Bryan cited five trees on his land or on the common boundary line they asserted would be adversely affected by the project. Their experts testified that the root systems of the eight trees, all Norway maples, would be harmed by the roots being cut or by adding more than one to three inches of soil above the existing surface grade. The cutting and grading would all take place on the developer’s property, but would – according to Pete and Bryan – harm or even kill the trees.

The Court admitted there was “no bright line delineating what unilateral actions regarding a shared tree are or are not permitted.” To be sure, a property owner cannot act to intentionally destroy a shared tree without the consent of the others who share an ownership interest therein. Yet, the growth of roots and branches into a neighbor’s land, the Court said, “no matter how essential to a tree’s survival, cannot vest in the tree’s owner some indomitable nonpossessory interest in the space the tree occupies.”

Here, the developer did not want to remove the trees. As a matter of law, the Court ruled, the developer would be entirely within his rights to pursue the project even if it has the effect of harming some of the trees’ roots. With respect to trees situated entirely on Pete’s or Bryan’s property, the Massachusetts Rule provides that the developer has an unfettered right to cut the roots and branches of such trees back to the property line. With respect to the trees situated on shared property lines, the Court held, the developer similarly has the right to cut roots and branches situated on the developer’s property. The only limitation is that the developer may not do so with the intent of killing those trees.

The Court found that the expert testimony made it clear that some level of activity within the area immediately surrounding the trunks of the trees could have the effect of killing them. “However,” the Court noted, “the testimony does not speak to where the roots of the… trees are actually located or what harms to the trees are certain or even reasonably certain… Here, where the applicable law makes it doubtful that [Pete and Bryan] have a claim to demand any protections for [their] trees, the level of speculation in the resulting harms renders these risks too remote to bear on whether the Board’s Decision was improper.

– Tom Root

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Case of the Day – Friday, January 3, 2025

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SELF-HELP WEEK

Quite unintentionally, 2024 (slogan “At Least It’s Not 2020”) – as it slunk out the door in well-deserved shame – is ending with an orgy of self-reliance versus resorting to the courts. On New Year’s Eve, we reviewed a Florida case, Balzer v. Maxwell, in which the court held that the fact that an aggrieved landowner has no remedy but self-help means that when he or she exercises that right, the tree owner has no claim for what might become of the tree. Yesterday, we read a Massachusetts court holding that, on the other hand, when a city takes over an abandoned property for taxes, it assumes liability for hazard trees on the property.

In today’s case, Pennsylvania applies the Massachusetts Rule principles of self-reliance to encroaching tree roots.

Keiper v. Yenser, 1967 Pa. Dist. & Cnty. Dec. LEXIS 171 (Common Pleas Ct, Carbon County, Pa., January 23, 1967). Bill and Becky Keiper complained that for more than five years, the roots of Yensers’ willow tree have been extending into their land and penetrating their sewer line, which has cost the Keipers $166.07. They seek reimbursement for the money they have spent and a court order for the permanent abatement of the root encroachment (that is, an order that the Yensers remove the roots at their expense).

The Yensers filed a demurrer; in the alternative, they argued that laches prevented the Keipers from winning, and contended that abatement should not be ordered because the Keipers had an adequate remedy at law.

Held: The Keipers claim had to be dismissed.

Pennsylvania has no statute that would permit the Keipers to claim that the Yensers’ tree was a nuisance. Nor was there any case precedent.

However, looking at other states, the Court noted that in Gostina v. Ryland, a Washington state case, the court held that “were it not for our statute of nuisances, the respondents herein would not be accorded any judicial relief”. And Michalson v. Nutting, the Court said, held in very similar circumstances that “the neighbor, though without right of appeal to the courts if harm results to him, is nevertheless, not without remedy. His right to cut off the intruding boughs and roots is well recognized. His remedy is in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

Thus, the Court held that while the Keipers could cut the offending roots themselves, they had no cause of action to compel the Yensers to do so. “It is a principle well settled by many adjudicated cases, that an action does not lie for a reasonable use of one’s right, though it be to the injury of another. For the lawful use of his own property, a party is not answerable in damages, unless on proof of negligence…”

– Tom Root

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Case of the Day – Tuesday, December 31, 2024

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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

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Case of the Day – Tuesday, December 10, 2024

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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

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Case of the Day – Tuesday, December 3, 2024

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BLAMING THE VICTIM

Just when I think I have seen all of the chutzpah that it is humanly possible to muster, someone impresses me with an Olympian performance.

Take Henry and Angela D’Andrea, for example. When the roots of their maple tree, after 14 years of impressive growth, began to eat a lightweight concrete-block fence – made with Waylite Superock® blocks, something new to me but apparently a material of note a generation or two ago – Hank and Angie did not offer to fix their neighbor’s wall. They did not even keep their mouths shut, which you might expect the tree’s owners to do under the circumstances.

Not these brawlers. The D’Andreas sued their neighbors, the Gugliettas, demanding that they remove the cracked and decayed fence because… well, because the D’Andreas’ tree had caused the fence to become cracked and decayed. It was a sort of “because I made the mess, you need to clean it up” argument.

Cosmic justice has a way of getting done. The neighbors did the only thing they could do (lawfully, that is), and counterclaimed against the D’Andreas. The trial court agreed that the fact that the Guglietta fence was unsightly was not enough to make it a nuisance. (Good thing, too… imagine the precedent that would be set for all of the unsightly people in this world if their unsightliness made them a per se nuisance). The court did, however, award damages to the Gugliettas for the damage that the D’Andrea maple roots had done to the fence.

The appellate court strained to justify the award, but justify it the court did. The Superior Court held that while the Massachusetts Rule addressed both branches and roots in dictating that self-help was the only remedy available to an afflicted neighbor, it could not possibly mean it. Really, the Court ruled, roots were quite different from branches. For instance, roots grow differently than branches, vertically, horizontally, every which way. Plus, the roots are underground: you can see branches and can trim them when needed, the Court opined. But you never see a root until it has caused damage.

Does any of this make sense? That hardly matters… cosmic justice requires that sometimes logic and precedent yield to its demands.

D’Andrea v. Guglietta, 208 N.J. Super. 31, 504 A.2d 1196 (Superior Ct. N.J. 1986). Henry and Angela D’Andrea’s maple tree had been planted about three feet from the boundary about 14 years before. As healthy trees are wont to do, it grew, extending both branches above ground and roots below, until it cracked a Waylite block boundary fence owned by John and Pat Guglietta. The D’Andreas sued the Gugliettas on the grounds that the fence was cracked and falling down – an unsightly mess – and a nuisance, asking that the trial court order that it be removed.

The Gugliettas counterclaimed, arguing that the fence was fine, but the D’Andreas’ maple tree was the true nuisance.

The trial court dismissed the D’Andreas’ action because their only proof was that the boundary fence was aesthetically displeasing to them. Mere homeliness, the Court ruled, is not enough to support a finding of a nuisance. As for the Gugliettas’ claim, however, the trial court held that the D’Andreas were liable for the unforeseen damage to their neighbors’ wall arising out of root growth from the maple tree.

The maple tree was planted around 1970, about the same time the Gugliettas installed a chain link boundary fence. Three years later, they removed the chain link fence, and replaced it with their Waylite block fence; the maple tree roots were nowhere near the wall when the Gugliettas dug down to put in foundation footings.

Eleven years later, things had changed. The Gugliettas noticed a crack in the wall. Or several cracks. They dug along the wall’s foundation and discovered “gigantic” maple roots up to 30 feet long coming through the wall. A masonry contractor estimated repair would cost about $ 3,000.

The D’Andreas never argued the obvious defense, that the Gugliettas could have avoided the injury to their masonry wall by self-help, that is, by digging down, severing and removing the maple tree roots on their side of the common boundary. The trial court awarded judgment for the Gugliettas on their counterclaim and gave them damages but no specific relief (like an order that the D’Andreas do something about their tree.

The D’Andreas appealed.

Held: The maple tree was a nuisance and had to go.

Under common law principles, the Gugliettas were entitled to cut off invading tree roots by exercising self-help, under the Massachusetts Rule. In fact, the trial court held that overhanging tree branches may constitute a nuisance for which an action for damages lies, and that a landowner may exercise the common law right of self-help to lop off overhanging branches to the property line but no further. “As a matter of logic,” the trial court ruled, “no distinction can be made between roots and branches.” It nevertheless awarded damages to the Gugliettas.

The Superior Court, needing to bolster the damage award it obviously agreed with, disagreed. The approach that roots and branches are the same “overlooks real distinctions between the two,” the Court held. “Unlike tree branches, tree roots are largely underground and evident only upon digging down; their extent and girth may be uncertain and unpredictable; they are not commonly pruned or otherwise tended; their severance may endanger the tree’s stability in high winds and rainstorms. A tree root system may extend vertically downward or may spread laterally close to the surface. The relatively uncomplicated law governing invasion of adjoining  property by tree branches may not be fairly applicable under all circumstances to tree roots.”

There is general agreement, the Superior Court said, that tree roots extending under a neighbor’s land are owned by the owner of the land on which the tree trunk stands; that the owner of a tree has no right to its sustenance from adjoining land; and that a neighbor may resort to self-help to remove invading tree roots. The Court acknowledged that the Massachusetts Rule is that damage caused by tree roots spreading from an adjoining property is damnum absque injuria and that the only redress is self-help.

Other reported decisions, however, have recognized a cause of action for damages for injury caused by tree roots from a tree or trees planted by the owner of the adjoining property or his predecessor. As well, they have barred recovery of damages for tree root injury by applying the defense of avoidable consequences. In fact, the Court observed that the Hasapopoulos court in Missouri viewed as decisive the evidence that the tree involved was “healthy and undecayed” and that the plaintiff had failed to resort to self-help.

The Superior Court noted that the Restatement of Torts draws a distinction between nuisances resulting from artificial and natural conditions of the land. The former set is actionable, while the latter set is not.

Here, the Superior Court ruled that the trial court was right to hold that injury to an adjoining property caused by the roots of a planted tree was actionable as a nuisance, irrespective of the absence of proof of prior notice of the nuisance to D’Andreas. Damages were recoverable, even in the absence of any proof that the damages were avoidable or that defendants had “come to the nuisance.”

When the Gugliettas dug down for foundation footings for their masonry wall in 1973, roots from the D’Andreas’ maple tree planted three years before were nowhere about. Nothing in the record, the Superior Court said, suggests that the maple tree’s roots heaved up or were in any way evident in the vicinity of the masonry wall between 1973 and 1984, when the wall cracked, or that the Gugliettas should have foreseen the direction and extent of the tree roots’ growth.

– Tom Root

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Case of the Day – Friday, November 29, 2024

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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

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