Abbinett v. Fox

• Decision Date: 12 February 1985
• Docket Number: No. 7806,7806
• Citation: 1985 NMCA 17,703 P.2d 177,103 N.M. 80
• Parties: , 65 A.L.R.4th 587 George ABBINETT, et ux., Plaintiffs-Appellees, v. Osborne W. FOX, et al., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 177

703 P.2d 177

103 N.M. 80, 65 A.L.R.4th 587

George ABBINETT, et ux., Plaintiffs-Appellees, v. Osborne W. FOX, et al., Defendant-Appellant.

No. 7806.

Court of Appeals of New Mexico.

Feb. 12, 1985.

Certiorari Quashed July 9, 1985.

[103 NM 82] Martin E. Threet, Threet & King, Albuquerque, for defendant-appellant.

Narciso Garcia, Toulouse, Toulouse & Garcia, Albuquerque, for plaintiffs-appellees.

OPINION

DONNELLY, Chief Judge.

Defendant, Osborne Fox, appeals from a judgment awarded in favor of plaintiffs George and Betty Abbinett, authorizing plaintiffs to destroy encroaching tree roots originating from the defendant's property onto the plaintiffs' property and awarding compensatory damages. Two issues are raised on appeal: (1) whether the trial court properly imposed liability for damages caused by encroaching tree roots; and (2) whether there was sufficient evidence to support the award of damages. We affirm.

FACTS

Plaintiffs and defendant formerly owned adjoining residences on Mossman Place in Albuquerque. Plaintiffs brought suit against the defendant alleging that during the time that defendant owned the property, roots from a large cottonwood tree on defendant's land encroached onto plaintiffs' land and damaged a patio slab, cracked the sides of a swimming pool, broke a block wall and a portion of the foundation of the plaintiffs' home, and clogged a sprinkler system on the plaintiffs' property. Plaintiffs sought a mandatory injunction against defendant requiring him to prevent future damages to the plaintiffs' property from the encroaching tree roots from trees on the defendant's land, and also sought compensation for damages to the plaintiffs' property.

After a bench trial, the trial court entered a judgment against the defendant in the amount of $2,500, denied injunctive relief, and entered an order authorizing the plaintiffs to utilize self-help to destroy or block the roots of the defendant's cottonwood trees from encroaching on their land in order to prevent further property damage.

I. LIABILITY FOR ENCROACHMENT

Defendant contends that the trial court erred in imposing damages against him resulting from the tree roots protruding onto plaintiffs' property. Defendant contends that the evidence was insufficient to establish a connection between the trees growing on his land and the root damage resulting to the plaintiffs' property. Defendant further argues that, even assuming that the evidence supports the trial court's finding that roots from trees growing on his property actually caused damages to the plaintiffs' property, the claim and resulting injury should not be actionable.

Appellate courts in New Mexico have not addressed the specific issue of whether or not an adjoining landowner has a cause of action against a neighboring landowner for damages or injunctive relief resulting from encroaching branches or roots of trees which protrude from the property of one party onto the land of another. The states which have considered the issue presented here, have articulated diverse results. See Annot., 83 A.L.R.2d 936, Sec. 3 at 939 (1962); Annot., 18 A.L.R. 655 (1922); 2 H. Tiffany, The Law of Real Property, Sec. 663 at 549 (1939).

Under the rule followed by Massachusetts, an adjoining landowner is denied recovery either in damages or in equity for damage resulting from encroaching tree limbs or roots, unless the trees or plants are categorized as poisonous or noxious. An affected neighboring landowner is restricted to a remedy of self-help; he has the right to cut off the intruding boughs or roots of non-poisonous or non-noxious trees. Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931); Annot., 76 A.L.R. 1109 (1932) (roots of tree on adjoining property repeatedly clogged sewer line on neighbor's land); Ponte v. Da Silva, 388 Mass. 1008, 446 N.E.2d 77 (1983) (plaintiff was injured after falling in her driveway due to sap, leaves and branches that had fallen from neighbor's tree); see also Sterling v. Weinstein, 75 A.2d 144 (D.C.1950) (protruding branches of tree dropped leaves and buds clogging neighbors gutters).

The Restatement (Second) of Torts states that a possessor of land is not liable for an invasion of another landowner's use and enjoyment of his land resulting from a natural condition on the land. Comment (a) to this section states that a natural condition "means a condition not in any way the result of human activity," and includes "trees, weeds and other vegetation on land that has not been made artificially receptive to it by act of man." Restatement (Second) of Torts, Sec. 840 at 166-68 (1979). Restatement (Second) of Torts, Sec. 839 (1979) pertains to planted trees and non-natural vegetation on one's property and problems which arise when the limbs or roots of the trees interfere with the use and enjoyment of another's property. This section provides that a possessor of land is liable for an invasion of an adjoining landowner's interest in the use and enjoyment of his land if it is abatable and he fails to take reasonable steps to prevent the invasion. See Sterling v. Weinstein; Sprecher v. Adamson Companies, 114 Cal.App.3d 414, 170 Cal.Rptr. 702, vacated, 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121 (1981); Franchi v. Boulger, 12 Mass.App. 376, 425 N.E.2d 372 (1981).

Further, Virginia has adopted the rule that equitable relief will be denied where the facts do not reveal the existence of "sensible injury" to an adjoining landowner. Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939); Annot., 128 A.L.R. 1217 (1940). In Smith the plaintiff sought injunctive relief against an adjoining property owner to prevent the roots and branches of a hedge from invading his property. The court denied injunctive relief but indicated it would apply a different result where 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, [the owner of land invaded by protruding roots or limbs from a neighbor's lands] has, after notice, a right of action at law for trespass." 174 Va. at 219, 5 S.E.2d at 495. This same rule was announced in Countryman v. Lighthill, 31 N.Y.Sup.Ct. 405 (1881) (protruding branches from a tree not poisonous or noxious are not a nuisance per se so as to allow a basis for damages; a landowner's remedy is self-help). Harndon v. Stultz, 124 Iowa 440, 100 N.W. 329 (1904) (plaintiff may not compel destruction of hedge; her remedy is to cut back protruding branches and roots to boundary line).

However, a number of states adhere to the rule that a landowner may be liable in damages to an adjoining property owner where he maintains a tree which causes "sensible" damage to a neighboring landowner, irrespective of whether the tree is noxious or poisonous in nature. Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (1921); Buckingham v. Elliott, 62 Miss. 296, 52 Am.Rep. 188 (1884); Stevens v. Moon, 54 Cal.App. 737, 202 P. 961 (1921); Shevlin v. Johnston, 56 Cal.App. 563, 205 P. 1087 (1922); Mead v. Vincent, 199 Okla. 508, 187 P.2d 994 (1947); Hickey v. Michigan Central Railroad Co., 96 Mich. 498, 55 N.W. 989 (1893). The decisions in each of these states appear to be influenced at least in part by specific statutory provisions pertaining to nuisances.

Moreover, in Grandona v. Lovdal, 70 Cal. 161, 11 P. 623, 624 (1886), the court held that to the extent that portions of the trees belonging to one landowner extend over the land of a neighboring property owner, the protruding branches constitute a nuisance and "the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance * * *." See also Stevens v. Moon; Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (1969); Mead v. Vincent. The court in Gostina v. Ryland reiterated the rule that injunctive relief to abate a nuisance will not be granted, except where there is satisfactory proof that substantial damage has resulted to the property. The rule set forth in Gostina v. Ryland generally follows the English common law. See also Smith v. Giddy, 2 K.B. 448 (1904).

The approach adopted by the Hawaii courts varies somewhat from the above rules. In Whitesell v. Houlton, 2 Haw.App. 365, 632 P.2d 1077 (1981), the court analyzed the divergent results reached by those states which have ruled upon this issue. The court noted:

[T]he Massachusetts rule is "simple and certain." However, we question whether it is realistic and fair. (Footnote omitted.) 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 * * *. [I]f 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. See Medeiros v. Honomu Sugar Co., 21 Haw. 155 (1912) * * *.

Consequently, we prefer a modified Virginia rule. We hold that non-noxious plants ordinarily are not nuisances; that overhanging branches which merely cast shade or drop leaves, flowers, or fruit are not nuisances; that roots which interfere only with other plant life are not nuisances; that overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit; that when overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots * * *.

* * * [W]e also hold that a landowner may always, at his own expense, cut away only to his property line above or below the surface of the ground any part of the...