Cornett v. Agee

• Decision Date: 12 July 1977
• Docket Number: No. 54135,No. 3,54135,3
• Citation: 237 S.E.2d 522,143 Ga.App. 55
• Parties: W. T. CORNETT v. W. G. AGEE
• Court: Georgia Court of Appeals

Page 522

237 S.E.2d 522

143 Ga.App. 55

W. T. CORNETT v. W. G. AGEE.

No. 54135.

Court of Appeals of Georgia, Division No. 3.

July 12, 1977.

Rehearing Denied July 27, 1977.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Albert C. Ruehmann, III, Atlanta, for appellant.

Kirby G. Bailey, Decatur, for appellee.

DEEN, Presiding Judge.

1. The sole question here is whether one may be liable for damage caused to a neighboring yard in an urban area by reason of the fall of a pine tree growing on one's own lot, where (a) the fall is apparently due to a combination of high winds and visible rot in the tree trunk from which it appears to be in a partially dead condition, (b) the tree is 75 to 100 feet tall, standing near the lot line, and leaning visibly toward the neighboring yard, and (c) the situation has been called to the owner's attention with advice to remove it.

There is evidence to support each of the above statements of fact, although some of it is contradicted. The defendant appellant resists the judgment entered against him after a bench trial on a well established principle of common law expressed in Prosser, Law of Torts, 4th Ed., p. 354: "The one important limitation upon the responsibility of the possessor of land to those outside of his premises has been the traditional rule of both the English and the American courts, that he is under no affirmative duty to remedy conditions of purely natural origin upon his land, although they may be highly dangerous or inconvenient to his neighbors." This rule was applied in Roberts v. Harrison, 101 Ga. 773, 28 S.E. 995, where an adjacent landowner was sued in nuisance for accumulations of water on his land emitting "noxious and deleterious gases injurious to the public health" and it was held that, if the owner had not by his own act contributed to that result he could not be held liable, since the evil arose from natural causes, regardless of the relative ease with which he could cure it in comparison with the harm done by its continuance. On the other hand, however, Prosser disapproves the application of the rule of nonliability for natural conditions (obviously a practical necessity in rural areas in early days) to urban situations where both the danger and its consequences are generally apparent. He states (id., p. 355): "This is well illustrated by the cases of dangerous trees. It is still the prevailing rule that the owner of rural land is not required to inspect it to make sure that every tree is safe, and will not fall over into the public highway and kill a man, although there is already some little dissent even as to this, and at least if the defendant knows that the tree is dangerous he will be required to take affirmative steps. But when the tree is in an urban area and falls into a city street, there is no dispute as to the landowner's duty of reasonable care, including inspection to make sure that the tree is safe. The cases of trees therefore suggest that the ordinary rules as to negligence should apply in the case of natural conditions, and that it becomes a question of the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented." The subject is discussed in Nuisances From Land in Its Natural Condition by Noel, 56 Harvard Law Review 772, 787, in which the author citing cases where recovery has been had from the falling of trees and branches on adjacent land, concludes that a "duty to take steps to protect an adjoining landowner is more definitely indicated in the few American decisions on the matter." It is stated in 2 C.J.S. Adjoining Landowners § 51: "A landowner who knows that a tree on his property is decayed and may fall and damage the...