Gostina v. Ryland

• Decision Date: 01 July 1921
• Docket Number: 16334.
• Court: Washington Supreme Court
• Parties: GOSTINA et ux. v. RYLAND et ux.

199 P. 298

116 Wash. 228

GOSTINA et ux. v. RYLAND et ux.

No. 16334.

Supreme Court of Washington

July 1, 1921

Department 1.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Leo G. Gostina and wife against A. L. Ryland and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

Mackintosh and Bridges, JJ., dissenting.

Walter B. Allen, of Seattle, for appellants.

Warren Hardy, of Seattle, for respondents.

HOLCOMB, J.

These adversaries own and reside upon adjoining lots in the city of Seattle. Appellants have owned and resided upon their lot for many years. Respondents bought their lot in August, 1918. There are growing upon appellants' lot a Lombardy poplar tree, situated about 2 feet from the division line fence separating the properties; also a fir tree in the rear of appellants' premises, situated within 2 feet of the division fence. It is alleged that some branches of the trees overhang the premises of respondents. Appellants also maintain a creeping vine, growing in a rustic box on top of a large stump, a few feet from the division fence, which is trained downward from the stump, and it is alleged that parts of the creeping plant go through and under the division fence, and onto the lawn on respondents' premises. There are also some raspberry bushes and a rosebush at the rear of appellants' premises growing near the line, which the respondents allege are permitted to hang over the division fence.

On July 28, 1919, respondents caused their attorney to give notice in writing to the appellants that the branches of the fir tree (then mentioned as a pine tree) standing upon appellants' premises extended over the lot of respondents, and that the needles therefrom fell upon the lawn of respondents, injuring the same, and that the ivy planted in the yard of appellants ran under the fence and onto the lawn of respondents. Demand was made that appellants, within 10 days, cut off the branches of the fir tree at the point where they crossed the boundary line, and remove the ivy from respondents' property, and to keep the tree and ivy from further encroaching upon their property.

This demand not having been complied with, about 15 days thereafter respondents began their action under the statute (Rem. Code, §§ 943, 944, and 945) for the abatement of a nuisance, and for such other and further relief as might seem equitable and just. Issue was joined as to the overhanging branches and encroaching ivy constituting a nuisance. Findings of fact and conclusions of law, and judgment ordering abatement of the nuisances by appellants within 60 days, and, in case of failure by them, ordering the sheriff to do so, were entered in favor of respondents by the trial court, and this appeal resulted.

Appellants desired to defend on the theory that the action by respondents was merely for spite and vexation, and first complain because the court excluded evidence offered by them to the effect that, when respondents purchased their property adjoining that of appellants, they knew of the existence and condition of the trees and shrubs, and expressed their admiration therefor, and had no objection to their maintenance, as they were upon the property of appellants until after they had had some sort of personal disagreement which caused their action in regard to the trees and shrubs. The court rejected all such evidence and offered proof, on the ground that it was immaterial, because, where branches of trees overlap adjoining property, the owner of the adjoining property has an absolute legal right to have the overhanging branches removed by a suit of this character.

Section 943, Rem. Code, provides:

'* * * Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance, and the subject of an action for damages and other and further relief.'

Section 944, supra, provides:

'Such action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance. * * *'

It cannot be said that acquiescence in the existence of the alleged nuisance for the period of a few months is such as to constitute estoppel or equitable laches. Whatever may have been respondents' sentiments regarding the situation and character of the trees and shrubs at one time, when they entered upon the enjoyment of their own possessions, after occupancy for a few months they gave notice on July 28, 1919 that their permissive acquiescence in the existence of the alleged nuisances, at least as to the fir tree and the ivy had ceased, and that they required the encroachment to be stopped.

In Lonsdale v. Nelson, 2 B. & C. 311, it is held by the English court, that:

'Nuisances by an act of commission are committed in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the party who committed them; but nuisances from omission may not be thus abated, except it be to cut the branches of trees which overhang the public road, or the private property of the person who cuts them. The permitting of the branches of those trees to extend so far beyond the soil of the owners of the trees is an unequivocal act of negligence. The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it; in such cases a person would be justified in abating the nuisance from omission without notice. In all other cases of such nuisance, persons should not take the law into their own hands, but follow the advice of Lord Hale, and apply to a court of justice.'

'Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are technical nuisances, and the person over whose land they extend may cut them off, or have his action for damages, if any have been sustained therefrom, and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.' Wood on Nuisances (3d Ed.) § 108.

'It may be understood that any erection upon one man's land, that projects over the land of another, as well as any tree whose branches thus project, doing actual damage, or anything that interferes with the rights of an adjoining owner, is an actionable nuisance.' Wood on Nuisances, § 106.

From ancient times it has been a principle of law that the landowner has the exclusive right to the space above the surface of his property. To whomsoever the soil belongs, he also owns to the sky and to the depths. The owner of a piece of land owns everything above it and below it to an indefinite extent. Coke, Litt. 4.

'On the same principle it is held that the branches of trees extending over adjoining land constitute a nuisance--at least in the sense that the owner of the land encroached upon may himself cut off the offending growth.' 20 R. C. L. 433, 434, 435, § 49, and cases cited.

'But whether a suit for injunction and damages may be maintained without proof of actual damage is a point upon which the authorities are not very clear or satisfactory. According to some of the decisions, sensible, appreciable damage must be shown in order to give the overhanging branches the character of nuisance; in other words, the fact that the branches extend over another's land does not constitute them a nuisance per se.' 20 R. C. L. pp. 433, 434, 435,§ 49.

Thus in Countryman v. Lighthill (N. Y.) 24 Hun, 405 (not an ancient case, as respondents state, but decided in 1881), it was held that:

'The overhanging branches of a tree, not poisonous or noxious in nature, are not

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