Jones v. Wagner

• Decision Date: 29 April 1993
• Citation: 425 Pa.Super. 102,624 A.2d 166
• Parties: Robert L. JONES and Merry B. Jones, His Wife, Appellants, v. Christian T. WAGNER and Ines Olivares, His Wife, Appellees.
• Court: Pennsylvania Superior Court

Page 166

624 A.2d 166

425 Pa.Super. 102

Robert L. JONES and Merry B. Jones, His Wife, Appellants, v. Christian T. WAGNER and Ines Olivares, His Wife, Appellees.

Superior Court of Pennsylvania.

Argued Feb. 9, 1993.

Filed April 29, 1993.

Robert L. Jones, Media, for appellants.

Larry R. McDowell, Philadelphia, for appellees.

Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.

OLSZEWSKI, Judge:

This is an appeal from the order entered by the Honorable Samuel Salus, granting defendants'/appellees' demurrer to plaintiffs'/appellants' amended complaint. Appellants' trees were extending into appellees' property. After appellees' clipped the protruding branches, appellants initiated this action seeking monetary relief for the damage done to their trees. The trial judge held that no cause of action exists for the type of damages sought, and dismissed appellants' complaint with prejudice. We affirm.

When considering a ruling on preliminary objections in the form of a demurrer, our standard of review is well settled:

All material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be in favor of overruling it.

Muhammad v. Strassburger, et al., 526 Pa. 541, 548, 587 A.2d 1346, 1349 (1991), cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991) (quoting Vattimo v. Lower Bucks Hospital, 502 Pa. 241, 243-245, 465 A.2d 1231, 1232-1233 (1983) (citations omitted)).

The complaint alleges that appellants and appellees are adjoining landowners with a fence separating their properties. Appellants are the owners of a row of tall hemlock trees. While appellants were on vacation, appellees trimmed the branches of the trees to the extent that the branches hung over the boundary line separating the neighbors' property. Complaint p 5. Appellants seek the replacement value of each of the twenty-six trees which adorn the property line, a combined figure of approximately $31,000.

Appellants' theory for recovery is one that has not been addressed by an appellate court in this Commonwealth. Appellants claim that appellees are liable to them at law since appellees, having suffered no appreciable damage by the overhanging branches, are not entitled to exercise a self-help remedy by trimming the trees. Thus, appellants claim that appellees' action, pursuing a remedy without a right, renders appellees liable for damage to the trees. This theory mischaracterizes the common law of encroachments.

The issue of whether a landowner who suffers a trespass caused by overhanging tree limbs, branches, or roots is entitled to a self-help remedy has been considered at length by other jurisdictions. Michaelson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1935); Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939); Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (1921); Sterling v. Weinstein, 75 A.2d 144 (D.C.Ct.App.1950); Whitesell v. Houlton, 2 Haw.App. 365, 632 P.2d 1077 (1981); Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (1985). See generally, Annotation, Encroachment of Tree, Shrubbery, or Other Vegetation Across Boundary Line, 65 A.L.R.4th 603. While there does exist some conflict regarding when a landowner may institute an action for injunctive or monetary relief against an adjoining landowner whose trees overhang the property line, one common thread connects all of these cases: the landowner whose land is encroached by the overhanging branches may trim the limbs to the extent of the encroachment. As the District of Columbia Court of Appeals cogently stated in Sterling, supra: "[W]e think that the cases are in agreement that trees ordinarily aren't nuisances; that overhanging branches which merely cast shade or drop leaves on the land are not nuisances; that if under any circumstances overhanging branches or protruding roots do constitute a nuisance it is only when they do sensible or substantial harm; and that, whether nuisances or not, a landowner may always cut away to his property line branches and roots from trees of the adjoining owner." Id. at 147 (emphasis added).

Appellants' contention that appellees were required to suffer sensible harm before availing themselves of a remedy is only relevant if the appellees seek their remedy in a court of law or equity. Under the laws of the jurisdictions who have confronted the issue, and henceforth ours, a showing that encroaching tree limbs, branches, or roots have caused sensible damage is not a pre-condition to exercising a self-help remedy.

The genesis of the "appreciable, sensible harm" distinction is sagely described by the Washington Supreme Court in the aged, yet hardly antiquated, case of Gostina v. Ryland, supra. In Ryland, appellees' property was encroached by appellant's pine tree. They brought an action for damages under a state statute making any obstruction with a landowner's free use of his property a nuisance. The court explained that while a self-help remedy is always available for an aggrieved landowner at common law, it is not clear when the court will entertain the landowner's action for damages or injunctive relief:

Nuisances by 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 be it 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 whose property the mischief has arisen to remedy it; in such a case a person would be justified in abating the nuisance from omission without notice. In all other cases of such a 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 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 the 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.

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 landowner, is an actionable nuisance.

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 the sky to the depths. The owner of a piece of land owns everything above it and below it to an indefinite extent.

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 may himself cut off the offending growth.

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 decisions, sensible, appreciable damage must be shown in order to give 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.

Id. 116 Wash. at 232, 199 P. at 300.

Thus, there is no question that a branch overhanging a landowner's property line is a technical trespass which he may alleviate by exercising self-help, as did appellees here. They were entitled to trim the encroaching branches without regard to the degree of physical harm done to their property. The redressable harm caused by the trees is that of the trespass onto appellees' property, not physical damage done to their land.

Although self-help is always available to a landowner whose neighbors' trees protrude onto his property, it is also necessary to address the available judicial remedies. In some jurisdictions, damage caused by encroaching branches and roots are never actionable, self-help being the landowner's only remedy. This is referred to as the "Massachusetts Rule." Michaelson v. Nutting, supra; Richmond v. General Engineering Enterprises, 454 So.2d 16 (Fla.Dist.Ct.App., 1984). Others require proof of some "sensible or substantial" damage before an action for damages in trespass are available, Smith v. Holt, supra, while some jurisdictions allow both actions at law and at equity upon this showing. Cannon v. Dunn, supra (and cases cited therein). Hawaii allows an action upon a showing of actual damage or upon "imminent danger" of damage. Whitesell v. Houlton, supra; see also, Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (1985). Finally, some jurisdictions hold that proof of damage only determines the amount of damages recoverable, and not whether a cause of action exists. These jurisdictions, however, are ones in which statutes, not common law, recognize the existence of the cause of action. Rautsaw v. Clark, 22 Ohio App.3d 20, 488 N.E.2d 243 (1985). We must now decide how Pennsylvania should address the issue.

It is a fundamental maxim of law which states that an owner of realty has a cause of action in trespass against any person who has committed a trespass upon...