Case of the Day – Monday, July 7, 2025

Posted on July 7, 2025 by TLRoot tagged.

NOW LOOK WHAT YOU’VE DONE!

Rarely (as in “I don’t recall when I’ve ever said this before”) do I caution that the prevailing law in any particular state is wrong, and likely to be cruisin’ for a bruisin’ the next time an appellate court has to think about it. But I feel comfortable issuing that warning about today’s case.

From Ohio (home of rock ‘n roll, pro football, the first guy to walk on the moon, the brothers who turned a bicycle into the first airplane, and a ton of other cool things), comes a case that pretty much runs smack into Fancher, Herring, the Hawaii Rule, and a raft of other cases reflecting the modern view that a homeowner whose tree is wreaking havoc on the neighbor’s property may be ordered by a court to fix the damage at his expense.

To be fair, this case may be proof of the old legal aphorism that “hard cases make bad law.” Even the most cursory reading of the facts suggests that Dave Rababy may well have been a horse’s ass, hounding his neighbor because a tree dropped leaves and twigs on his property. Speaking as a guy who owns all of my five southern neighbors’ leaves every fall – and these things are the size of dinner plates – I understand how it can be irritating to have other peoples’ leave on your lawn. But I would never sue them over it. I don’t think I would…

Dave had no such compunction, and his emesis of woe delivered to the court made him the boy who cried wolf. He howled so loudly about leaves and twigs and the fact that his trimming crew was not allowed to trespass on Roy’s property and hack away at the offending tree, and minutiae of a similar nature, that his real complaint – his driveway was being heaved and foundations dislodged by the roots – got lost in the underbrush. In Fancher, Whitesell, and even Iny, such damage was enough to get the neighbor’s tree declared a nuisance. If Dave had exercised a little plaintiff self-control, he might have gotten there, too.

We are too urban and too suburban, and our properties are too developed for the Massachusetts Rule to be the exclusive remedy for genuine harm done by a neighbor’s tree. That is the way the law is trending throughout the civilized world, and it is bound to reach Ohio sooner or later.

Rababy v. Metter, 30 N.E.3d 1018 (Ct. App. Cuyahoga Co., 2015). David Rababy and Roy Metter were next-door neighbors. Dave’s driveway abutted Roy’s property in certain places and nearly abuts in others. A fence separated the properties, and a stand of mature trees ran along the fence on Roy’s side of the boundary line.

Dave sued Roy for negligence, nuisance, trespass, and interference with a business contract. Dave asserted that trees at the edge of Roy’s property extended over his own property, and dropped leaves, needles, sap, and branches onto his car and home. Some of the trees, Dave complained, were rotten. He whined that the trees cast shadows over his property and cause mold growth on his roof, as well as damaged his driveway and foundation.

Dave groused that he had hired a company to trim the overhanging branches, but Roy’s daughter prevented the unnamed landscape service company from properly performing this work. The complaint alleged the trees constituted an ongoing nuisance and trespass, and that Roy negligently maintained the trees. Dave asked for $52,500: $37,000 for future tree trimming services and $15,000 in compensatory damages.

Both parties filed motions for summary judgment. Dave argued that on “an ongoing basis, Roy’s trees encroach onto my property, specifically over my home and driveway. His trees deposit leaves, debris, and sap onto my property, causing damage.” Dave also repeated the claim about Roy’s daughter running off the tree trimmers.

Roy argued that he owed no duty to Dave to trim otherwise healthy trees on his property. He claimed the trees were mature and preexisted either party’s ownership of the property. He said that a year before, Dave hired Cartwright Tree Service to trim the row of pine trees that ran along the driveway. He said no one complained when Cartwright trimmed the overhanging branches from Dave’s property free, but when Cartwright began trimming branches and trees back further than the property line, Roy’s daughter objected. Roy said that he has no objection to Dave trimming the overhanging branches back to the property line.

Dave replied with new allegations that the trees in question were decaying or dead. Attached to the reply was a new affidavit that averred that the trees were decaying and dangerous and that one had fallen on his property. He included a picture of a tree that appears to have fallen across a driveway. However, the affidavit was neither signed nor notarized.

The trial court granted Roy’s motion for summary judgment and denied Dave’s. Dave appealed.

Gen. Robert E. Lee – a man recently consigned to the ash heap of history – knew something about duty … and even he couldn’t have found that Roy owed one to Dave.

Held: Roy owed Dave no duty, so the trial court’s dismissal of the case was upheld.

In order to succeed in a negligence action, the Court said, Dave must demonstrate that Roy owed him a duty, that Roy breached the duty, and that he suffered damages that proximately resulted from Roy’s breach. Here, Dave offered evidence that falling pine needles, leaves, sap, and sticks have damaged his car, driveway, and roof. He also alleges, without evidentiary support, that encroaching tree roots damaged his driveway and home.

While he showed damage, Dave was unable to show that Roy owed him any duty. A landowner is generally not responsible for the losses caused by the natural condition of the land. Instead, the Court observed, states generally allow one impacted by such growth the remedy of self-help. A privilege existed at common law, such that a landowner could cut off, sever, destroy, mutilate, or otherwise eliminate branches of an adjoining landowner’s tree that encroached on his land. But, the Court said, whether a separate remedy exists is an open question.

The Massachusetts Rule provides that in almost all circumstances, the sole remedy for damages resulting from the natural dropping of leaves and other ordinary debris from trees is the common law remedy of self-help. The rule does provide a limited exception for dead trees, just as Ohio has established a duty for urban landowners of reasonable care relative to the tree [hat overhangs a public street, including inspection to make sure that it is safe.” Where constructive or actual knowledge of an unreasonably dangerous condition exists on the land of an urban landowner, such as a dead tree, the duty prong of a negligence claim may be satisfied.

The reasoning set forth in support of the Massachusetts Rule, the Court said, is apt to the facts of this case: “[T]o grant a landowner a cause of action every time tree branches, leaves, vines, shrubs, etc., encroach upon or fall on his property from his neighbor’s property, might well spawn innumerable and vexatious lawsuits.” The Court thus adopted the Massachusetts Rule as the law of this jurisdiction.

But Dave also argued that in Ohio a “landowner in an urban area has a duty to exercise reasonable care to prevent an unreasonable risk of harm to others from decaying, defective or unsound trees of which such landowner has actual or constructive notice.” Dave contended Roy’s trees were in such a defective condition and thus constituted a nuisance. Dave also argued that Roy, an urban landowner, had a duty to inspect his trees and protect others from a dangerous condition created by any unsound trees. Even if such a duty existed, the Court said, it only is breached when the owner has actual or constructive notice of a dangerous condition.

Leaves – often a pain in the arse, but seldom a nuisance

The Court held that Dave put forth no evidence that any of the trees constituted a dangerous condition of which Roy was aware or should have been aware. He presented no evidence that the trees are dead, decaying, or unsound, and cited no case holding that “the normal yearly life-cycle of a tree and the natural shedding of leaves, twigs, and sap constituted a nuisance. Thus, he provided no compelling justification for a court to hold that Roy’s trees case constituted a nuisance or a dangerous condition. The problems Dave had experienced with the trees “are the natural consequence of living in an area beautified by trees. Dave’s remedy is to trim tree limbs that overhang his property back to the property line, to which Roy averred he has no objection.”

The trees at issue, in this case, do not constitute a nuisance, and Roy is not negligent in regard to them.

Dave also asserted that the trees on Roy’s property constituted a trespass. But the elements of a successful trespass claim include an unauthorized intentional act and entry upon land in the possession of another. Here, there is no intentional act. Dave claimed that Roy’s actions of not removing or trimming the trees constitute an intentional act. But, the Court said, as it explained, Dave’s remedy for intrusion by vegetation is to trim it back to the property line.

In sum, Dave’s claims that detritus falling from trees from the neighboring property constituted a trespass, a nuisance, and negligence were simply not actionable. The Court cited a Maryland case that “it is undesirable to categorize living trees, plants, roots, or vines as ‘nuisances’ to be abated. Consequently, we decline to impose liability upon an adjoining landowner for the ‘natural processes and cycles’ of trees, plants, roots, and vines.”

– Tom Root

Case of the Day – Friday, June 27, 2025

Posted on June 27, 2025 by TLRoot tagged.

HOW MUCH IS ENOUGH?

A eucalyptus tree, similar to the one that offended Ms. Cannon.

There was a time, back when people of grit populated the land, that a landowner only had one choice when his neighbor’s trees encroached – to cut ‘em back. The Massachusetts Rule was the coin of the realm: if you didn’t like your neighbor’s tree overhanging your eaves, or its roots wrapping around your sewer line, you only had one option. The courts didn’t want to hear about it. Self-reliance was what it was all about.

Then along came the Hawaii Rule, which suggested that a naturally growing tree could be or could become a nuisance, and that an aggrieved landowner could sue for an order requiring its removal. One rule does not necessarily negate the other. So when does one oil up the chainsaw, and when does one fire up the word processor?

The Massachusetts Rule is, generally speaking, a blunt instrument. It’s one thing to cut away branches that pose a threat (or even an inconvenience) to your property. But what if cutting a limb back to the property line leaves a 15-foot leafless stub extending from the branch to the boundary. That’s not necessarily according to ANSI Standard A-300, but on the other hand, you don’t have the right to trim it properly unless your neighbor consents to you coming onto his or her land to do so.

Or, more dangerously, what if you cut back roots to the extent that the tree loses too much subsurface support, and falls on your neighbor’s new Bugatti Chiron? Are you liable? After all, you did no more than what the Massachusetts Rule permitted you to do.

The Hawaii Rule, on the other hand, is Doug Lewellyn’s dream. What an All-American solution – let’s sue! When is harm sensible? When your foundation walls collapse? When a dead branch falls on your Bugatti? When leaves clog the filter on your swimming pool? How much harm is enough?

Joan Cannon lived next to Lamar Dunn. Joan was unhappy with the roots from the Dunns’ eucalyptus tree, which were encroaching underground onto her land, as roots are wont to do. After all, a tree will quite often send roots out 35 feet or more from the base of the trunk, and the root system has little regard for some lines drawn on a recorder’s map.

We’re not sure why Joan was so exercised. Maybe she was naturally crotchety. Perhaps she was unusually territorial. Maybe her neighbor had a nice Bugatti, while Joan drove a Yugo. What we can be sure of is that the eucalyptus roots weren’t really causing any harm.

Sometimes encroaching roots can be an inconvenience.

That didn’t stop Joan from suing the Dunns. The trial court denied an award of any damages and refused to order Lamar the appellee to remove the offending roots and tree. Joan appealed.

The Court of Appeals considered the classic Restatement of the Law trespass approach, which held simply that if a neighbor owns something that trespasses, he or she has to remove it if there is a duty to remove it, regardless of whether it causes harm or not. That’s the rub, the court said. When does such a duty arise?

The court found guidance in the Restatement on nuisance and held that a duty to remove offending branches or roots arose when some actual and sensible or substantial damage has been sustained. Joan’s general objection to the unseen eucalyptus roots did not equate to harm. Thus, the roots could remain.

Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (Ariz.App. Div. 2 1985). This case involves the liability of Lamar Dunn, an adjoining landowner, for roots from a eucalyptus tree that invaded the subsurface of land belonging to his neighbor, Joan Cannon. The trial court found that the roots had caused no actual damage, and denied an award ordering the Dunns to remove the offending roots and tree.

Joan appealed.

Held: Dunn did not have to remove the roots. The Court of Appeals rejected Cannon’s argument that it should apply the Restatement (Second) of Torts § 158 (1965), which stated that “one is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other if he intentionally… fails to remove from the land a thing which he is under a duty to remove.”

The Court said that it was “obvious that one must first determine whether there is a duty to remove the object and that in this case § 158(c) really begs the question.” More to the point, the Court observed, was the Restatement (Second) of Torts § 840 (on nuisances), which held that a possessor of land is not liable to his adjoining landowner for a nuisance resulting solely from a natural condition of the land.

Ms. Cannon could not prove any damages flowing from the alleged encroachment … unlike this guy.

The Court paid lip service to the Massachusetts Rule, noting that Arizona law permitted a “landowner who sustains an injury by the branches or roots of a tree or plant on adjoining land intruding into his domain, regardless of their non-poisonous character may, without notice, cut off the offending branches or roots at the property line.” At the injured landowner’s expense, of course.

But when some actual and sensible or substantial damage has been sustained, the Court said, the injured landowner may maintain a nuisance action for abatement of the nuisance, and compel the removal of the branches or roots at the tree owner’s expense. However, where no injury has been sustained, no lawsuit be brought for either an injunction or damages.

– Tom Root

Case of the Day – Tuesday, January 14, 2025

Posted on January 14, 2025 by TLRoot tagged.

MISSION CREEP

It pretty much stands to reason that landowners whose trees and shrubs overgrow signs along the road, thus endangering motorists, might have a duty to trim their trees.

That’s the law in Florida. But what happens when the vegetation merely creeps up over an extended period of time? That happened on a country road in Dade County, where pine tree roots over 50-70 years submarined a roadway and turned the pavement into corduroy. Of course, it did not help that, at some point, the County widened the road, so that trees that were once well away from the road ended up uncomfortably close to the shoulder.

I once had a dapper contracts law professor – an adjunct with an alternative life as a litigation partner in a downtown law firm – who explained to us well-scrubbed first-year students that the law was a seamless web. We would never, he explained, have a case that was exactly like a case that had already been decided. Instead, our fact patterns and legal issues would fall somewhere in between cases and legal principles that had been settled by courts and lawyers who had gone before. Our job as attorneys, he said, was to convince the judge that our clients’ cases fell closest to the legal principle that best served our client’s interest.

That’s what the lawyer for injured passenger Mary Sharon Sullivan tried to do when he sought to convince a Florida appellate court that if a landowner can be dinged because its trees overgrow a stop sign, it certainly ought to be liable when roots from the landowner’s trees grow beneath a public street, breaking up the pavement.

Silver Palm Properties, Inc. v. Sullivan, 541 So.2d 624 (Ct.App. Florida, 1988). Bob Stevens was driving with a passenger, Mary Sullivan, on a two-lane county paved road in an agricultural section of Dade County. Bob’s car hit a series of bumps submerged in rainwater, and he lost control, swerved to the left and crashed into a tree several hundred feet away. Both Bob and Mary were injured.

Mary sued Silver Palm, the owner of the property next to the accident site, complaining that the company had a duty to maintain the trees on its property so that “subterranean growth” would not cause dangerous bumps, cracks, and protrusions in the road. She argued Silver Palm was negligent in allowing the trees to grow in such a manner as to damage the road, and in failing to inspect, discover, or repair the area. She said Silver Palm knew or should have known of the condition of the road “and therefore had a duty to take action reasonably calculated to correct the dangerous conditions created by its actions or inactions.”

Since 1974, Silver Palm has owned the avocado grove adjacent to the road where the accident occurred. About 50 to 70 years earlier, a prior owner planted Australian pine trees alongside the grove as windbreaks to reduce wind damage to the avocados. Silver Palm had never trimmed or pruned the trees. The trees were not originally located right next to the road, but when the county widened the highway in 1974, they ended up much closer than they had been before.

Mary’s expert witness, a mechanical engineer, said that about three and one-half to four feet of pavement had been uprooted and broken up to a height of five or six inches because of the pine tree roots. Another expert witness corroborated the engineer’s testimony. The expert explained that four methods were generally employed to prevent the growth and spread of tree roots. Two of the methods would kill the tree outright. In a third method – topping – limbs are cut away to reduce the height of the pine tree from about 30 feet to six feet. In a fourth method, root trenching, a trench is dug parallel to the roadway, severing the roots.

The horticulturist admitted that locally, he never seen had any owner other than Dade County perform root trenching, and he had never known of any company, individual, or landowner who had done root work on pine trees within 15 feet of a roadway. No one testified as to when in the past the topping method would have had to have been performed in order to retard the root growth enough to prevent the pavement from buckling and cracking.

The horticulturist also testified that when the County widened the road in 1974, its workers merely scraped over the tops of the existing roots instead of root trenching, which would have been the proper means of controlling the root problem. Had the county root-trenched in 1974, he testified, the trenching would have retarded root growth for about ten years, well beyond the date of the accident.

Dade County admitted it had prior knowledge of the condition of the road, and it admitted it had had the responsibility to maintain and repair it. It settled for $50,000 just after the jury had retired for deliberation.

Silver Palm did not, and the jury found it 22.5% negligent; Dade County, 15% negligent; and Bob (the driver) 62.5% negligent. The trial court entered a final judgment against Silver Palm and its insurer for $200,000.

Silver Palm appealed.

Held: Silver Palm was not liable to Mary.

Florida law holds that users of a public right-of-way have a right to expect that the roadway will not be unreasonably obstructed. Thus, a landowner may incur liability for damages caused by something which grows on private property but which obstructs the public right-of-way.

The Court distinguished the situation from other cases where obvious conditions created hazards, such as vegetation obscuring traffic signs. In those cases, “common sense required that a duty be imposed upon the landowner to remove landscaping which obstructed critical traffic signage. Vegetation that overhangs and blocks out a traffic control device constitutes an obvious condition and presents an imminent danger of uncontrolled traffic. The offending branch, moreover, need only be clipped away, a straightforward remedy.”

In this case, however, “the offending vegetation was anything but obvious. The root growth was slow and subterranean; the defect in the right-of-way became noticeable only after a considerable passage of time; and the remedy was known only to horticulturists and practiced only by a governmental entity.” Everyone agreed that Dade County, not Silver Palm, owned and maintained the roadway shoulder and surface in the area of the accident. Silver Palm had no right, the Court observed, to repair or alter the surface of the roadway.

To hold a landowner liable for failing to clip back vegetation that has overgrown a traffic control device is reasonable. To impose upon a landowner a duty to undertake root trenching or tree topping purely in anticipation that subterranean growth may alter the surface of a public right-of-way at some indeterminate time in the future is both burdensome and unreasonable.

– Tom Root

Case of the Day – Tuesday, January 7, 2025

Posted on January 7, 2025 by TLRoot tagged.

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

Case of the Day – Tuesday, December 3, 2024

Posted on December 3, 2024 by TLRoot tagged.

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

Case of the Day – Wednesday, November 27, 2024

Posted on November 27, 2024 by TLRoot tagged.

TRIFLES

There is a wonderful doctrine in the law – and the law is a place where we do not really expect to find anything wonderful – that is known as the rule of de minimis.

Mentioning de minimis gives me an excuse for another shout-out to my sainted Latin teacher from days of yore, Emily Bernges (who instilled in me a love of, if not fluency in, that grand Mother of Languages). But more to the point, the de minimis rule is a necessity: if it didn’t exist, we would have to invent it. Simply put, the rule of de minimis holds that some wrongs we suffer are so slight to be unworthy of recompense.

De minimis is the shortened form of “de minimis non curat lex,” which Emily would have told us means that “the law does not concern itself with trifles.” Queen Christina of Sweden, who occupied the throne in the mid-17th century – and who may have studied under Emily, too, for all we know – favored the more colorful adage, “aquila non captat muscas,” that is, “the eagle does not catch flies.”

We sometimes think too many plaintiffs want to sue over trifles. The plaintiffs in today’s case, the Bandys, sure did. The neighbors’ trees dropped sap and leaves on their property, and their roots clogged a sewer line. The Bandys did not find that dandy, and so they sued.

The court was aghast. A tree dropping leaves and sap! Who had ever heard of such a thing?

Besides everyone, that is. Trees drip sap and drop leaves and grow roots all the time. It’s just what trees do. Once the law starts making tree owners pay for that, there will be no end to the litigation.

The neighbor’s leaves fell in your yard? Here’s a rake. Deal with it.

Bandy v. Bosie (1985), 132 Ill. App. 3d 832, 477 N.E.2d 840. Edith and Chuck Bandy sued their neighbors, Jim and Becky Bosie, complaining that the Bosies’ maple and elm trees dropped sap and leaves on the Bandy’s property, and roots from the trees had damaged the Bosies’ sewer line, causing water to back up in their basement.

The Bosies moved for dismissal, arguing that the Bandys had no cause of action. The court agreed and dismissed the complaint.

The Bandys appealed.

Held: The Bandy complaint failed to allege a nuisance. The court found the Bosies were entitled to grow trees on any or all of their land and their natural growth reasonably resulted in the extension of roots and branches into the adjoining property.

The Bandys argued first that the Bosies should be made to cut down the trees because there was no adequate remedy at law, and the trees were a nuisance. Bosies rejoined that the trees did not constitute a nuisance and that, in any event, the Bandys were not entitled to equitable relief.

Illinois courts have previously held in Merriam v. McConnell (1961), 31 Ill. App. 2d 241, 175 N.E.2d 293, that equity could not be used to control or abate natural forces as if they were a nuisance. Illinois follows the Massachusetts Rule, and holds that an owner is entitled to grow trees on any or all of the land, and their natural growth reasonably will result in the extension of roots and branches into adjoining property. The effects of nature such as the growth of tree roots cannot be held within boundaries; the risk of damage from roots on other lots is inherent in suburban living, and to allow such lawsuits as this one would create litigation over matters that should be worked out between the lot owners.

But in another Illinois decision, Mahurin v. Lockhart (1979), 71 Ill. App. 3d 691, 390 N.E.2d 523, the plaintiff sued an adjoining lot owner for damages resulting from a dead limb falling from the defendant’s tree onto the plaintiff’s property, injuring the plaintiff. The defendant contended she had no liability for damages occurring off of her land resulting from the existence of natural conditions on her land. The appellate court rejected that view, holding that defendant’s theory arose in an era when most land was heavily wooded and sparsely settled, and when the burden of inspecting those larger properties for natural defects would have been unreasonable. In a more modern urban setting, the court considered the burden of inspecting for unsound trees which might injure persons off of the owners’ property to be reasonable.

Here, the complaint is silent as to when and how the trees gained life. That is one reason, the Court said, why the complaint failed to allege a nuisance.

In addition, the Court said, even if counts I and II had stated that the defendant had planted the trees, the counts would still have failed to state a cause of action for injunctive relief. The Court said, “We do not consider trees that drop leaves on neighboring lands or trees that send out roots that migrate to neighboring lands and obstruct drainage to necessarily constitute a nuisance. We recognize that some decisions in other States are to the contrary. We agree with the Merriam court that, under the circumstances here, to permit the falling of leaves or the migration of the roots to give rise to injunctive relief would unduly promote litigation over relatively minor matters. Usually, the damage from the offending leaves would be minimal, and the accurate locating of the source of the offending roots would be difficult and expensive.”

– Tom Root

Case of the Day -Tuesday, July 2, 2024

Posted on July 2, 2024 by TLRoot tagged.

NOW LOOK WHAT YOU’VE DONE!

To be fair, this case may be proof of the old legal aphorism that “hard cases make bad law.” Even the most cursory reading of the facts suggests that Dave Rababy may well have been a horse’s ass, hounding his neighbor because a tree dropped leaves and twigs on his property. Speaking as a guy who owns all of my five southerly neighbors’ leaves every fall – and these things are the size of dinner plates – I understand how it can be irritating to have other peoples’ leave on your lawn. But I would never sue them over it. I don’t think I would…

Dave had no such compunction, and his emesis of woe delivered to the court made him the boy who cried wolf. He howled so loudly about leaves and twigs and that his trimming crew was not allowed to trespass on Roy’s property and hack away at the offending tree, and minutiae of a similar nature, that his real complaint – his driveway was being heaved and foundations dislodged by the roots – got lost in the underbrush. In Fancher, Whitesell and even Iny, such damage was enough to get the neighbor’s tree declared a nuisance. If Dave had exercised a little plaintiff self-control, he might have gotten there, too.

Rababy v. Metter, 30 N.E.3d 1018 (Ct.App. Cuyahoga Co., 2015). David Rababy and Roy Metter were next-door neighbors. Dave’s driveway abutted Roy’s property in certain places and nearly abuts in others. A fence separated the properties, and a stand of mature trees ran along the fence on Roy’s side of the boundary line.

Dave sued Roy for negligence, nuisance, trespass, and interference with a business contract. Dave asserted that trees at the edge of Roy’s property extended over his own property, and dropped leaves, needles, sap, and branches onto his car and home, and that some of the trees were rotten. He said the trees cast shadows over his property and cause mold growth on his roof, as well as damaged his driveway and foundation.

Dave complained he had a company to trim the overhanging branches, but Roy’s daughter prevented the unnamed landscape service company from properly performing this work. The complaint alleged the trees constituted an ongoing nuisance and trespass and that Roy negligently maintained the trees. Dave asked for $52,500: $37,000 for future tree trimming services and $15,000 in compensatory damages.

The trial court granted Roy’s motion for summary judgment and denied Dave’s. Dave appealed.

Gen. Robert E. Lee – a man rapidly being consigned to the ash head of history – knew something about duty … and even he couldn’t have found that Roy owed one to Dave.

Held: Roy owed Dave no duty, so the trial court’s dismissal of the case was upheld.

In order to succeed in a negligence action, the Court said, Dave must demonstrate that Roy owed him a duty, that Roy breached the duty, and that he suffered damages that proximately resulted from Roy’s breach. Here, Dave offered evidence that falling pine needles, leaves, sap, and sticks had damaged his car, driveway, and roof. He also alleges, without evidentiary support, that encroaching tree roots damaged his driveway and home.

Leaves – often a pain in the arse, but seldom a nuisance

The Court held that Dave put forth no evidence that any of the trees constituted a dangerous condition of which Roy was aware or should have been aware. He presented no any evidence that the trees are dead, decaying, or unsound, and cited no case holding that “the normal yearly life-cycle of a tree and the natural shedding of leaves, twigs, and sap constituted a nuisance. Thus, he provided no compelling justification for a court to hold that Roy’s trees case constituted a nuisance or a dangerous condition. The problems Dave had experienced with the trees “are the natural consequence of living in an area beautified by trees. Dave’s remedy is to trim tree limbs that overhang his property back to the property line, to which Roy averred he has no objection.”

The trees at issue in this case do not constitute a nuisance, and Roy is not negligent in regard to them.

Dave also asserted that the trees on Roy’s property constituted a trespass. But the elements of a successful trespass claim include an unauthorized intentional act, and entry upon land in the possession of another. Here, there is no intentional act. Dave claimed that Roy’s actions of not removing or trimming the trees constitute an intentional act. But, the Court said, as it explained, Dave’s remedy for intrusion by vegetation is to trim it back to the property line.

– Tom Root