Holmberg v. Bergin

• Decision Date: 05 December 1969
• Docket Number: No. 41756,41756
• Citation: 285 Minn. 250,172 N.W.2d 739
• Parties: Melvin HOLMBERG, et al., Respondents, v. Raymond BERGIN, et al., Appellants.
• Court: Minnesota Supreme Court

Page 739

172 N.W.2d 739

285 Minn. 250

Melvin HOLMBERG, et al., Respondents, v. Raymond BERGIN, et al., Appellants.

No. 41756.

Supreme Court of Minnesota.

Dec. 5, 1969.

Syllabus by the Court

1. Something more than the mere presence of a portion of a tree trunk on a boundary line is necessary to make the tree itself a 'boundary line tree' so as to bring it within the legal rule that it is owned by adjoining landowners as tenants in common.

2. Whether a hedge, tree, or fence alleged to mark a boundary line is in fact a boundary-line hedge, tree, or fence depends upon the intention, acquiescence, or agreement of the adjoining owners or upon the fact that they jointly planted the hedge or tree or jointly constructed the fence.

3. An examination of the record fails to disclose any intention of the parties here, and certainly discloses no agreement by them, that the tree mark a boundary line between the properties.

4. The law is clear that one cannot exercise his right to plant a tree in such a manner as to invade the rights of adjoining landowners. When one brings a foreign substance on his land, he must not permit it to injure his neighbor.

5. An injunction against the continuance of a nuisance may be properly adjudged if necessary to a complete and effectual abatement. In nuisance cases, as in other cases involving injunctive relief, the extent of the relief to be granted lies largely within the discretion of the trial court, and the function of the supreme court on appeal is to determine whether such discretion has been abused.

6. While we have held that when a nuisance is established a plaintiff may be entitled to recover damages for property damage and physical suffering, discomfort, and inconvenience resulting from the nuisance, the findings on damages should not be disturbed since the equities were adequately balanced by the trial court and the Schwinn, Nelson & Courey, Minneapolis, for appellants.

extent of the relief to be granted lies largely in its discretion.

R. Gordon Nesvig, Minneapolis, for respondents.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS, and ROGOSHESKE, JJ.

OPINION

NELSON, Justice.

Defendants, Raymond Bergin and Vernice Bergin, appeal from a judgment of the district court entered August 27, 1968.

Plaintiffs and defendants are adjoining landowners residing respectively at 5441 and 5437 Woodlawn Boulevard in the city of Minneapolis. The north line of plaintiffs' property is the same as the south line of defendants' property.

Defendants purchased their lot in 1941 and in 1942 planted an elm tree on their property approximately 15 inches north of the boundary line which separates plaintiffs' lot from defendants' lot. Defendants have maintained the tree and have exercised sole control over it since it was planted. Plaintiffs purchased their lot in 1952 and in 1954 constructed a chain-link fence on their property 4 inches south of the common boundary line. When the fence was completed, the tree was 6 inches away from it and 2 inches away from the boundary line, so the tree did not touch or interfere with the fence in any way. There is no dispute as to the location of the boundary line.

At the time of the trial in July 1968, the tree in question had grown to a height of 75 feet, its trunk had a diameter of 2 1/2 feet, and it was protruding .64 feet, or about 8 inches, onto plaintiffs' property. At the time of trial, the tree was still growing. Its roots which have extended onto plaintiffs' property have pushed plaintiffs' fence out of line and have made the use of a gate in the fence impossible. The tree is located close to both houses and the roots, being cramped for room, have pushed up a large hump in the ground around the base of the tree. The roots have raised the ground level from the base of the tree to plaintiffs' sidewalk and have caused it to tip toward their house, resulting in drainage into their basement. In order to correct this situation, plaintiffs were forced to construct a new sidewalk at the stipulated cost of $150. Due to the fact that the tree and the roots have continued to grow, plaintiffs' new sidewalk is now also cracked. Drainage of plaintiffs' lot from back to front is also hampered by the hump containing the roots of this tree.

Both plaintiffs' and defendants' expert witnesses agree that this tree has a shallow root system and has no deep tap roots, and that most of the roots are contained near the surface of the ground. Both further testified that removal of a substantial portion of the roots from the south side of the tree would increase the hazard of the tree's blowing over in windstorms, thereby endangering the homes of plaintiffs, defendants, and their neighbors. Plaintiffs' expert witness testified that 16 inches of soil would have to be removed in order to restore plaintiffs' lot to its original grade level and that taking out 16 inches around half of the tree's base would be likely to kill the tree. He further testified that, although the trunk of the tree is presently straight, more branches have been cut from the south side of the tree than from the north side so that there is a greater weight on the north side.

Defendants' expert witness stated that the lot could be brought to grade by removing 12 inches of soil and roots, but that the removal of that amount of soil and roots would be disastrous and result in the death of the tree. He further testified that the lots in the block are 50 feet wide. The expert admitted that he was prejudiced in favor of the aesthetic quality of the tree. This is very likely true, as this witness donated the tree as a memento to defendants' son, and a class instructed by this witness selected the location where it is planted.

It appears from the record that removal of the tree would reasonably cost $235, plus an additional $60 expense if the stump were to be removed. Defendant Raymond Bergin testified that the value of defendants' property would be depreciated in the amount of $5,000 if the tree were removed. The trial court, however, found that the tree was a nuisance and ordered it removed by defendants at their own expense. Plaintiffs were ordered to temporarily remove the fence along the common boundary so as not to interfere with the removal of the tree. No damages were awarded to plaintiffs due to their failure to take advantage of earlier opportunities to remove roots.

The following issues are raised on this appeal: (1) Is a tree planted solely on one person's property, but soon through growth standing partly on the boundary line common to his property and an adjoining tract, a boundary-line tree? (2) Does the evidence sustain a finding that the tree constitutes a nuisance as defined by Minn.St. 561.01, justifying a mandatory injunction requiring its removal?

1--2. Defendants contend that, since the tree ultimately rested in part on the common boundary line, regardless of where it was originally planted, it has become a boundary-line tree and should be treated in accordance with the principles applicable thereto. Owners of boundaryline trees are considered tenants in common, neither tenant possessing the right to destroy the commonly held property without consent of the other. See, Meixner v. Buecksler, 216 Minn. 586, 13 N.W.2d 754; Cobb v. Western Union Telegraph Co., 90 Vt. 342, 98 A. 758; 1A Dunnell, Dig. (3 ed.) § 95d; 2 C.J.S., Adjoining Landowners, § 39; 1 Am.Jur.2d Adjoining Landowners, § 22.

There is a split of authority with regard to the question of whether a tree planted wholly on the property of one owner of land which subsequently grows into the common boundary of an adjoining owner becomes the common property of both owners. One view holds that trees standing on the boundary line of two adjoining owners are automatically their common property. The other view requires that in order for adjoining owners to become tenants in common of trees located on a common boundary such owners must treat the trees as their common property pursuant to an agreement or course of conduct. See cases cited in Annotation, 26 A.L.R. (3d) 1372.

The trial court in a memorandum attached to its findings of fact, conclusions of law, and order for judgment, and made a part thereof, stated:

'This Court is of the opinion that something more than the mere presence of a portion of a tree trunk on a boundary line is necessary to make the tree itself a 'boundary line tree' so as to bring it within the legal rule that it is owned by the adjoining landowners as tenants in common. The case of Meixner v. Buecksler (supra) cited by defendants in support of their contention does contain the statement:

"The trees cut on the boundary line were the common property of both parties which neither could destroy without the consent of the other. Harndon v. Stultz, 124 Ia. 440, 100 N.W. 329.'

'However, in the Meixner case it was agreed that the trees were in fact boundary line trees, as may be readily seen from a statement made on page 589 of the Minnesota citation (on page 756 of 13 N.W.2d):

"An old fence fastened to the trees along this line had been in existence since about 1915. It did not exactly coincide with the new fence established by the survey, but For the purposes of the trial it was agreed and the court so charged the jury, that it had been in existence sufficiently long to establish the north-south boundary line between the properties.' (Underlining supplied.)'

In Harndon v. Stultz, 124 Iowa 440, 100 N.W. 329, quoted by this court in Meixner, the parties both intended that the hedge in question be a boundary-line hedge and jointly planted it. The Iowa court in that case defined line trees in the following words (124 Iowa 442, 100 N.W. 330):

'* * * 'Line trees'--trees standing directly on the boundary between lands of adjoining owners--are usually considered common property, which neither may destroy without the consent of the other.'

The trial court referred to a definition of the term 'bounded...