whitesell

Case of the Day – Thursday, September 11, 2025

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HAWAII SINGS HAWAII

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

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

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

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

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

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

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

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

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

Scott appealed.

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

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

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

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

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

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

– Tom Root

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Case of the Day – Friday, July 19, 2024

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THE MASSACHUSETTS RULE LIVES!

We should all age this well. Right, Joe?

The Massachusetts Rule, which we have rightly or wrongly identified as the wellspring whence flows all tree law on encroachment, is a spry 93 years old this year. Older even than our current President. Over the years, other states have chipped, chipped, chipped away at its granite-solid underpinnings, the notion that your neighbor has no right to sue you if your healthy tree sends branches spanning over her property or roots snaking through her subsoil.

After being belted and flayed by decisions from a host of more encroachment-progressive states over the years, the Massachusetts Rule finally received some good news two days ago: Massachusetts’ highest court issued an opinion that was a full-throated defense of the venerable Rule.

Don’t like the mess your neighbor’s honey locust makes in your gutters? Or the way his sweet gum roots are displacing your basement wall? Tough noogies. The Massachusetts Rule holds that you are free (at your expense, so maybe we should not use the word “free”); that is, you are entitled to cut down the offending branches or dig up the offending roots up to your property line with his place.

What you are not free to do is to sue your neighbor because his tree is a nuisance. As the Bay Staters put it, your rights are limited to self-help.

To be sure, the Massachusetts Rule has gotten a raft of bad press in the last few decades. Hawaii is the most famous, with the Hawaii Rule (set out in Whitesell v. Houlton). That rule holds that your neighbor is liable to you if encroaching branches or roots from her tree cause “sensible harm” to your property. Complaints that the Massachusetts Rule was archaic, a relic of an era when population density was much less and life was simpler, have become common. Don’t believe it? Refer to the definitive decision assessing the various rules, Herring v. Lisbon Partners, for the modern view that the Massachusetts Rule is an arboreal dinosaur.

Well, it turns out the old dinosaur still has a bite. A Massachusetts litigant with more spare change for legal fees than she had common sense sued her neighbor because, she claimed, the neighbors’ stately oak caused algae to grow on her roof. She demanded her neighbors cut it down. They declined, pointing out to her that the Massachusetts Rule immunized the owner of a healthy tree from such an obligation, and, by happy coincidence, they were all in Massachusetts, so the Rule applied to them.

The neighbor was undeterred, and she hired a lawyer (who undoubtedly told her she was backing the wrong horse). But back it she did. She lost in the trial and appeals courts, both of whom took pains to explain the Massachusetts Rule to her.

“But,” we imagine she said, “the Massachusetts Rule is a doddering fossil, rejected by just about all modern thinking in our sister states’ courts! It should be consigned to the dustbin of history!”

But the Supreme Judicial Court of Massachusetts seized the opportunity not only to refuse to undo the plucky 87-year-old Rule but to explain how all the other states who had rejected it as irrelevant in the modern day and age are just plain wrong.

Famous Massachusetts patriot John Adams died on July 4, 1826. His last words were reputed to be a joyful acknowledgment that his old friend, Thomas Jefferson, survived him. As he expired, Adams breathed, “Jefferson lives!”

He could have said the same about the Massachusetts Rule. Despite all the grief that the Herring court, the Fancher court, the Lane court, and even the Whitesell court have given it, the Rule still lives.

Shiel v. Rowell, Case No. SIOC-1274 37, 480 Mass. 106, 101 N.E.3d 290 (Sup.Jud.Ct. Mass, 2018). Keli-Jo and John Rowell owned property next to Mary Shiel. The Rowells’ property included a 100-foot tall sugar oak tree with majestic branches that stretched over Mary’s property.

Alas, Mary was not a fan of the tree. She complained that the tree caused algae buildup on her roof. She demanded that the Rowells cut it down. They refused. So Mary sued, demanding money for damage to her roof and an injunction ordering the Rowells to cut back the branches overhanging Mary’s land.

A District Court judge dismissed Mary’s claims, on the ground that under Massachusetts law, a person whose property is injured by a neighbor’s healthy tree has no cause of action against the tree’s owner. The appellate court agreed.

Mary appealed to the Supreme Judicial Court, admitting that the Massachusetts Rule was against her but asking that the Rule be thrown out as antiquated.

Held: The Massachusetts Rule remains the law.

The law in Massachusetts has long been that a landowner may not hold a neighbor liable for damage caused by that neighbor’s healthy tree.

In Michalson v. Nutting, roots from Nutting’s poplar tree clogged the Michalsons’ sewer and drain pipes, and cracked his concrete cellar, risking serious damage to the house’s foundation. The Court concluded that Mr. Nutting could not be held liable for that damage because “an owner of land is at liberty to use his land, and all of it, to grow trees.” The Court recognized Mr. Michalson had the right to cut off intruding boughs and roots and reasoned 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.”

Mary urged the Court to adopt the Hawaii Rule, which grants neighbors the right to sue to resolve disputes in court over healthy trees. A neighbor may use the courts to require that the tree owner pay for damage and cut back branches and roots if the tree causes, or there is an imminent danger of it causing, “sensible harm” to the neighbor’s property. The Hawaii Rule, like the Massachusetts Rule, allows any landowner the right to cut back overhanging branches or intruding roots from a neighboring landowner’s tree. But unlike the Massachusetts Rule, the Hawaii Rule offers the aggrieved homeowner a right to sue to have branches and roots removed by the tree’s owner.

Mary argued the Massachusetts Rule is outdated because these days people are living in closer proximity to one another on smaller tracts of land than when the Massachusetts Rule was adopted. She contended that trees today are more likely to cause damage to neighbors’ property than in days past, and tree owners are better able to manage their trees. This, she maintained, justifies giving parties a right to sue to resolve disputes in court.

The Rowells argued in favor of stare decisis, the doctrine that courts should adhere to rules previously adopted in resolving similar cases. While adhering to stare decisis is not an inexorable command, the Court held, it is “our preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

Even more than that, the Rowells maintained, the Massachusetts Rule is more sensible than the Hawaii Rule. The Court agreed. “We would discern a need to change the Massachusetts Rule if it were outdated and no longer fit the circumstances of contemporary life,” the Court said. But, the Court ruled, the Rule is still very relevant.

It may be true that people today are living in closer proximity to one another on smaller tracts of land than they were when the Massachusetts Rule was adopted in the early Twentieth Century. But if changes in property ownership would lead us to believe that tree owners are now better able to monitor their trees,” the Court said, “the same would be true for their neighbors to monitor and trim encroaching trees. It may be easier to recognize impending or potential harm to one’s own property from overhanging branches and intruding roots than it would be for the tree owner to recognize what is happening next door. And even if it is also true that trees today are more likely to cause property damage to neighbors’ property, it would be “undesirable to categorize living trees, plants, roots, or vines as a ‘nuisance’ to be abated.”

The Court recognized that other states, such as North Dakota, Tennessee and Virginia, had declared the Massachusetts Rule to be an antique. The Court rejected the rationales in those cases, observing that while the cases all said the Massachusetts Rule was outdated, none ever explained satisfactorily why that would be. True, as those decisions noted, the Massachusetts Rule law arose at a time when land was so unsettled and uncultivated that the burden of inspecting it and putting it in a safe condition would have been unduly onerous and out of all proportion to any harm likely to result. But this rationale seemed to apply to danger trees only. If a tree is healthy, it does not need to be put “in a safe condition” to begin with, and Massachusetts Rule trees must be healthy trees to begin with in order to come within the Rule.

Mary did not identify any consequences of the Massachusetts Rule, the Court observed, that would not have been thoroughly appreciated by when the Rule was adopted. The growth of trees “naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others,” the Court declared in Michalson, and that has not changed.

Contrary to the criticisms of the Rule, the Court ruled, “multiple benefits to the Massachusetts Rule [are] still relevant to circumstances of contemporary life. The rule simplifies the assignment of responsibility, leaving no doubt as to the rights and obligations of the parties and minimizing legal costs. It reduces “unnecessary burdening of courts” and vexatious lawsuits: “The Massachusetts Rule today, just as it did when Michalson was decided,” the Court found, “may prevent unnecessary legal harassment from neighbors who merely have an axe to grind for reasons other than purported tree problems.”

Thus, the Court ruled, “We retain the law that an individual whose property is damaged by a neighbor’s healthy tree has no cause of action against a landowner of the property upon which the tree lies.”

The dinosaur still roars.

– Tom Root

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