If a tree falls in a forest and no one is around to hear it, does it make a sound? Although this question might be an interesting conversation starter at a party of intellectuals, a more practical question might be, If a tree in my yard falls onto my neighbor’s property, am I liable for damages? Or, May I eat fruit from my neighbor’s tree if the branches holding the fruit overhang my property? This article will address many of these questions commonly asked of real property practitioners. Naturally, a practitioner should consult the law in the state in which he practices before advising a client asking these or similar questions.
Who Owns a Tree?
Ownership of a tree is determined by the location of the tree trunk. If the main tree trunk is located entirely on a party’s real property, that party is the owner of the tree. A “boundary line tree” is a tree in which the property line between or among properties passes through the tree’s trunk. All owners with part of a tree’s trunk on their properties share ownership of that boundary line tree as tenants in common. Subsequent sections of this article will clarify that establishing the ownership of a tree is crucial to determine the rights, responsibilities, and potential liabilities of the owner of the tree and the neighboring landowner.
If a Neighbor’s Tree Might Damage or Already Has Damaged My Property, What Rights, Responsibilities, and Liabilities Do the Neighbor and I Have?
This question is addressed in the context of both encroachments and storm damage.
Encroachments
One common concern for a landowner arises when a neighbor’s tree branch hangs over the property line and above the landowner’s house or personal property, especially if it appears that the branch might fall. Another dispute among neighbors that can occur is the encroachment of tree roots onto a neighbor’s property. Encroaching roots can not only kill vegetation but also can destroy underground structures such as septic tanks. So what options does a landowner have when these situations arise? One remedy that courts have uniformly agreed on is self-help, which permits a landowner to cut back the “encroaching branches, roots, and other growth to the property line.” Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 360 (Tenn. 2002). Beyond self-help, the measures a landowner may take vary from state to state; however, most states have adopted one of the following approaches: Massachusetts rule, Restatement rule, Virginia rule, and Hawaii rule.
Under the Massachusetts rule, a landowner’s sole remedy is self-help. Michalson v. Nutting, 175 N.E. 490, 490–91 (Mass. 1931). Furthermore, a landowner has no liability to neighbors for damage caused by its encroachments onto another’s property. Herring v. Lisbon Partners Credit Fund, Ltd. P’ship, 823 N.W.2d 493, 496–97 (N.D. 2012). The burden is placed entirely on each landowner to make sure its property is not damaged by any encroachments from neighbors’ vegetation. Although this rule is praised for its simplicity and certainty, it has been criticized for its lack of fairness in depriving “deserving plaintiffs of any meaningful redress when their property is damaged.” Id. at 500. Jurisdictions such as Florida, Kentucky, Massachusetts, Maryland, and the District of Columbia have adopted the Massachusetts rule.
The Restatement rule, which has been adopted only in a few jurisdictions, imposes an obligation on a landowner to control its “artificial” vegetation, but not its “natural” vegetation. Lane, 92 S.W.3d at 361. Therefore, if the tree was planted or artificially maintained, the landowner might be liable for damages when the tree causes harm to an adjoining property; but, if the tree grew naturally, there would be no liability imposed on the landowner. See Restatement (Second) of Torts §§ 839–40. The “unworkable” distinction between natural and artificial vegetation has resulted in very few jurisdictions adopting the Restatement rule. Melnick v. C.S.X. Corp., 540 A.2d 1122, 1136 (Md. 1988).
The Virginia rule holds that an encroachment of vegetation from a neighbor’s plantings that are “not noxious in nature” and cause no “sensible injury” is not actionable at law, leaving the landowner limited to the remedy of self-help. Flancher v. Fagella, 650 S.E.2d 519, 521 (Va. 2007) (quoting Smith v. Holt, 5 S.E.2d 492 (Va. 1939)). But, “when it appears that a sensible injury has been inflicted by the protrusion of roots from a noxious tree or plant onto the land of another, he has, after notice, a right of action at law for the trespass committed.” Id. Courts have struggled with the distinction between vegetation that is noxious and that which is not. See Melnick, 540 A.2d at 1137 (stating that confusion exists over whether a tree or plant is noxious merely because it causes injury, or whether it must be inherently injurious or poisonous). As a result, most jurisdictions, including Virginia, have abandoned the Virginia rule. See Flancher, 650 S.E.2d at 521 (abandoning the Virginia rule and adopting the Hawaii rule).
Lastly, the Hawaii rule holds that while “living trees and plants are ordinarily not nuisances, [they] can become so when they cause actual harm or pose an imminent danger of actual harm to the adjoining property. Lane, 92 S.W.3d at 362. The Hawaii Court of Appeals held:
[W]hen overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life . . . 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.
Whitesell v. Houlton, 632 P.2d 1077, 1079 (Haw. Ct. App. 1981).
Several jurisdictions—including Hawaii, Illinois, Indiana, Kansas, Minnesota, New Mexico, New York, Ohio, Oklahoma, and others—have adopted the Hawaii rule because of its realistic application and the fair results it produces.
Storm Damage
Another common problem between neighbors arises when a storm knocks down a landowner’s tree, causing damage to a neighbor’s property. The party responsible for the cost of repair in these situations depends on whether a duty is imposed on the tree owner to prevent this type of damage from occurring. Two separate factors will likely determine whether the court imposes a duty on the tree owner: (1) whether the tree appeared to be unhealthy or otherwise likely to cause damage before the storm and (2) whether the accident happened in a rural or urban area.
The general rule adopted by most jurisdictions is that a tree owner will be held to a reasonable person standard in preventing damage to a neighbor’s property. See Klein v. Weaver, 593 S.E.2d 913, 914 (Ga. Ct. App. 2004). The court in Klein v. Weaver summarized this general rule when it stated“[t]he owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition.” Id. (quoting Willis v. Maloof, 361 S.E.2d 512, 513 (Ga. Ct. App. 1987)). The court further stated that “[a] landowner who knows that a tree on his property is decayed and may fall and damage the property of an adjoining landowner is under a duty to eliminate the danger.” Id. (quoting Cornett v. Agree, 237 S.E.2d 522, 523 (Ga. App. 1977)). Also, “a landowner does not have a duty to consistently and constantly check all trees on his property for nonvisible rot; ‘the manifestation of decay must be visible, apparent, and patent.’” Id.
Therefore, if a visibly decayed tree is knocked down during a storm, the owner of the tree will be liable for any damages created by the fall because the owner knew or should have known that the decayed tree would be dangerous if confronted with a storm. If, however, the tree is healthy and is knocked down solely because of the storm, no liability will be imposed on the tree owner. See Lewis v. Krussel, 2 P.3d 486, 492 (Wash. Ct. App. 2000). Tree owners are under no duty to remove healthy trees merely because the wind might knock them down in a storm. See id.
Some courts differ on the standard of care required of landowners in rural areas. Some courts have stated that to require a rural landowner to inspect all trees on its property would be unduly burdensome and impractical. Mahurin v. Lockhart, 390 N.E.2d 523, 524–25 (Ill. App. Ct. 1979). These courts typically do not impose a duty on a rural landowner to prevent harm to others outside its land caused by naturally growing trees. See Barker v. Brown, 340 A.2d 566, 569 (Pa. Super. Ct. 1975). Yet, because of increasing rural development and the blurring of the urban versus rural distinction, many courts such as those in California, Iowa, New Jersey, New York, and Ohio now impose a duty of reasonable care in both rural and urban areas.
Other variations of the law arise as different jurisdictions determine what constitutes reasonable care. The most common standard of care imposed on a landowner is a reasonable inspection for visible decay and, if a landowner has or should have reason to know of the dangerous tree, to eliminate the danger. Cornett v. Agee, 237 S.E.2d 522, 523 (Ga. Ct. App. 1977). But there has been some deviation from this standard, as a Washington, D.C., court imposed the higher duty of an expert inspection for a tree that had previously been subjected to surgery. Dudley v. Meadowbrook, Inc., 166 A.2d 743 (D.C. 1961). In addition, a Pennsylvania court has stated that, while “the reasonable care standard encompasses, at least, a duty to make a visual inspection[,] [u]nder some circumstances it may encompass more.” Barker, 340 A.2d at 569.