Clinic v. Lisbon Partners Credit Fund, Ltd.

Decision Date23 October 2012
Docket NumberNo. 20120090.,20120090.
Citation2012 ND 226,823 N.W.2d 493
PartiesRichard HERRING of Herring Chiropractic Clinic, Plaintiff and Appellant v. LISBON PARTNERS CREDIT FUND, LTD. PARTNERSHIP and Five Star Services, Defendants and Appellees.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Charlotte L. Selland, Lisbon, N.D., for plaintiff and appellant.

Troy A. Wolf, Moorhead, MN, for defendants and appellees.

VANDE WALLE, Chief Justice.

[¶ 1] Richard Herring appealed from a district court summary judgment dismissing his action against Lisbon Partners Credit Fund, Ltd. Partnership (Lisbon Partners) and Five Star Services (Five Star) for nuisance, negligence, and civil trespass. We reverse and remand, concluding the district court erred in finding Lisbon Partners and Five Star owed no duty to Herring to prevent damage caused by encroachment of branches from their tree onto Herring's neighboring property.

I

[¶ 2] Herring owns a commercial building in Lisbon housing his chiropractic practice. The adjoining property, including an apartment building, is owned by Lisbon Partners and managed by Five Star.

[¶ 3] Branches from a large tree located on Lisbon Partners' property overhang onto Herring's property and brush against his building. For many years Herring trimmed back the branches and cleaned out the leaves, twigs, and debris that would fall from the encroaching branches and clog his downspouts and gutters. Herring claims that the encroaching branches caused water and ice dams to build up on his roof, and eventually caused water damage to the roof, walls, and fascia of his building. Herring contends that, after he had the damages repaired, he requested compensation from Lisbon Partners and Five Star but they denied responsibility for the damages.

[¶ 4] Herring sued Lisbon Partners and Five Star for the cost of the repairs to his building, alleging Lisbon Partners and Five Star had committed civil trespass and negligence and had maintained a nuisance by breaching their duty to maintain and trim the tree so that it did not cause damage to his property. The district court granted Lisbon Partners and Five Star's motion for summary judgment dismissing Herring's claims, concluding Lisbon Partners and Five Star had no duty to trim or maintain the tree and Herring's remedy was limited to self-help: He could trim the branches back to the property line at his own expense.

II

[¶ 5] Before we consider the merits of an appeal, we must determine whether we have jurisdiction. Holbach v. City of Minot, 2012 ND 117, ¶ 5, 817 N.W.2d 340;In re Estate of Hollingsworth, 2012 ND 16, ¶ 7, 809 N.W.2d 328. The right to appeal in this state is purely statutory, and if there is no statutory basis for an appeal we must take notice of the lack of jurisdiction and dismiss the appeal. Holbach, at ¶ 5;Estate of Hollingsworth, at ¶ 7;City of Grand Forks v. Riemers, 2008 ND 153, ¶ 5, 755 N.W.2d 99. Only judgments and decrees which constitute a final judgment of the rights of the parties and certain orders enumerated by statute are appealable. City of Mandan v. Strata Corp., 2012 ND 173, ¶ 5, 819 N.W.2d 557;Brummund v. Brummund, 2008 ND 224, ¶ 5, 758 N.W.2d 735.

[¶ 6] Herring has attempted to appeal from the order granting summary judgment. An order granting summary judgment is not appealable. E.g., Hale v. Ward Cnty., 2012 ND 144, ¶ 11, 818 N.W.2d 697. An attempted appeal from an order granting summary judgment will, however, be treated as an appeal from a subsequently entered consistent judgment, if one exists. Id. A consistent judgment was entered in this case, and we treat the appeal as an appeal from the judgment.

III

[¶ 7] We have outlined the standards governing our review of a summary judgment entered under N.D.R.Civ.P. 56:

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.

Lynch v. New Pub. Sch. Dist. No. 8, 2012 ND 88, ¶ 7, 816 N.W.2d 53 (quoting Richard v. Washburn Pub. Sch., 2011 ND 240, ¶ 9, 809 N.W.2d 288). Interpretation of a statute is a question of law, which is fully reviewable on appeal. Tibert v. Nodak Mut. Ins. Co., 2012 ND 81, ¶ 10, 816 N.W.2d 31.

IV

[¶ 8] This case presents a question of first impression in this state regarding a landowner's duty to maintain and trim trees on his land which encroach upon and cause damage upon adjoining property. Although this Court has not previously had an opportunity to address this issue, there is a well-developed body of law in other jurisdictions, with courts generally split among four different approaches to the problem.

[¶ 9] Under the “Massachusetts rule,” first announced in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931), a landowner has no liability to neighboring landowners for damages caused by encroachmentof branches or roots from his trees, and the neighboring landowner's sole remedy is self-help: The injured neighbor may cut the intruding branches or roots back to the property line at his own expense. See, e.g., id. at 490–91;Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 360–61 (Tenn.2002); Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519, 521 (2007). The basis for the Massachusetts rule was explained in Michalson, at 491:

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.

[¶ 10] Another approach is the “Hawaii rule,” formulated in Whitesell v. Houlton, 2 Haw.App. 365, 632 P.2d 1077 (1981). The court in Whitesell noted that the Massachusetts rule, though “simple and certain,” was not always “realistic and fair,” and therefore held that the owner of a tree may be held liable when encroaching branches or roots cause harm, or create imminent danger of causing harm, beyond merely casting shade or dropping leaves, flowers, or fruit:

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 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.

However, we 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 adjoining owner's trees or other plant life.

Id. at 1079.

[¶ 11] The “Restatement rule,” based upon the Restatement (Second) of Torts §§ 839–840 (1979), distinguishes between natural and artificial conditions on the land. Under the Restatement rule, if the tree was planted or artificially maintained it may be considered a nuisance and its owner may be liable for resulting damages, but there is no liability for a naturally growing tree that encroaches upon neighboring property. See Lane, 92 S.W.3d at 361–62;Fancher, 650 S.E.2d at 521.

[¶ 12] The “Virginia rule,” adopted in Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939), makes a distinction between noxious and non-noxious trees. Under the Virginia rule, a tree encroaching upon neighboring property will be considered a nuisance, and an action for damages available, if it is a “noxious” tree and has inflicted a “sensible injury.” Id. at 495;see also Fancher, 650 S.E.2d at 521. If the tree is “not noxious in its nature” and “no ‘sensible injury’ has been inflicted,” however, the neighboring landowner's remedy is limited to self-help. Smith, at 495;see also Fancher, at 521.

[¶ 13] Although the four rules create varying degrees of liability for the owner of an encroaching tree, they do have one common characteristic: Each of the four rules recognizes the right of the neighboring landowner to engage in self-help. See Lane, 92 S.W.3d at 360. Thus, no matter which rule is adopted, the neighboring landowner retains the right to cut back the intruding branches or roots to the property line at his own expense.

[¶ 14] The district court in this case considered application of the Massachusetts, Restatement, and Hawaii rules, and determined that the Massachusetts rule provided the most practical and...

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