Lane v. W.J. Curry & Sons

• Decision Date: 19 December 2002
• Parties: Gloria B. LANE v. W.J. CURRY & SONS.
• Court: Tennessee Supreme Court

Page 355

92 S.W.3d 355

Gloria B. LANE v. W.J. CURRY & SONS.

Supreme Court of Tennessee, at Jackson.

December 19, 2002.

Elder Shearon, III, Memphis, Tennessee, for the plaintiff-appellant, Gloria B. Lane.

Robert A. Cox and James F. Horner, Jr., Memphis, Tennessee, for the defendant-appellee, W.J. Curry & Sons.

FRANK F. DROWOTA, III, C.J. delivered the opinion of the court, in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JR., JJ., joined.

OPINION

We granted review in this case to determine whether a landowner can bring a nuisance action against an adjoining landowner when tree branches and roots from the adjoining landowner's property encroach upon and damage the neighboring landowner's property. The plaintiff asserts that encroaching branches and roots from the defendant's trees constitute a nuisance for which she is entitled to seek damages. The defendant responds that the plaintiffs sole remedy is self-help and, therefore, the plaintiff may not recover for any harm caused by the defendant's trees. The trial court and Court of Appeals agreed with the defendant, and held that an adjoining landowner's only remedy is self-help and that a nuisance action cannot be brought to recover for harm caused by encroaching tree branches and roots.

We have determined that self-help is not the sole remedy of an adjoining landowner and that a nuisance action may be brought when tree branches and roots from the adjacent property encroach upon and damage the neighboring landowner's property. Although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. We do not, however, alter existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property. We further find that the record in this case is sufficient to establish liability for nuisance. Accordingly, the judgment of the Court of Appeals affirming the trial court's dismissal of the case is reversed. The case is remanded to the trial court for a determination of damages and other appropriate relief.

Factual and Procedural Background

This case involves a dispute between adjacent property owners over harm caused by encroaching tree branches and roots. The plaintiff, Gloria Lane, owns a house in Memphis located next door to a house owned by the defendant, W.J. Curry & Sons. The plaintiff, who is 47-years old and unemployed, has lived in the house all of her life. Her disabled brother lives with her. The defendant's house is used as rental property and is occupied. The houses in the parties' neighborhood are at least fifty-years old and are situated close together.

The defendant has three large, healthy oak trees located on its property near the common boundary line with the plaintiff. The trees are much taller than the parties' houses and have limbs, described as "extremely protruding," that hang over the plaintiff's house. The defendant's trees were described as "overshadowing the [plaintiff's] entire house." The plaintiff has had problems with the trees' limbs and roots encroaching upon her property for many years. Her roof, for example, had to be replaced in the late 1980s because the overhanging branches did not allow the roof to ever dry, causing it to rot. The plaintiff testified that prior to that time "[e]very roof and wall in [her] house had turned brown and the ceiling was just falling down. We would be in bed at nighttime and the ceiling would just fall down and hit the floor."

In 1997, a large limb from one of the defendant's trees located between the parties' houses broke off and fell through the plaintiffs roof, attic, and kitchen ceiling, causing rainwater to leak into the interior of her home.¹ The water ruined the plaintiffs ceilings, floor, and the stove in her kitchen. The plaintiff is not physically able to cut the limbs back that hang over her house, and she cannot afford to hire someone else to do it. Nor can she afford to repair the damage to the exterior and interior of her home, including the hole in her roof.

In addition to the harm caused by the overhanging branches, roots from the defendant's trees have infiltrated and clogged the plaintiff's sewer line, causing severe plumbing problems. The plaintiff has tried to chop the encroaching roots over the years, but they keep growing back and causing more plumbing problems. The plaintiff has not been able to use her toilet, bathtub, or sink in two years because of the clogged sewer pipes. She must go to a neighbor's house to use the restroom. Raw sewage bubbles up into her bathtub, and her bathroom floor has had to be replaced because her toilet continually backs up and water spills onto her floor. Neighbors have complained to the plaintiff about the smell of sewage coming from her property. The plaintiff testified regarding the condition of her home that "everything is all messed up. I can't bathe. I can't cook. I don't want people coming to my house because it has odors in it, fleas, flies, bugs. It's just been awful for me." The plaintiff is under the care of a psychiatrist and takes medication for emotional problems. She testified that she may have to move out of her house because she "just can't take too much more."

After the defendant's branch fell through her roof, the plaintiff contacted Judith Harris, the owner of defendant W.J. Curry & Sons, to complain about the encroaching trees and to inform Harris of the damage caused by the fallen limb. Harris sent a tree trimming company to the property to cut back the overhanging limbs, but this proved unsatisfactory because branches high up in the trees were not cut, and those that were cut grew back. Harris eventually told the plaintiff that she, the plaintiff, could trim the branches or roots, but that Harris no longer felt any responsibility to remedy the situation.

The plaintiff subsequently filed suit in General Sessions Court seeking damages to the exterior and interior of her house and plumbing system caused by the encroaching branches and roots. The General Sessions Court found in favor of the defendant. The plaintiff appealed the adverse judgment to Circuit Court. After conducting a bench trial, the Circuit Court found that the plaintiff was physically and financially unable to have the overhanging branches cut or the roots destroyed. Nonetheless, the trial court concluded that the plaintiffs sole remedy was self-help and that the defendant's trees could not constitute an actionable nuisance. The trial court explained that although it was "certainly a serious situation that the plaintiff has not been able to use her bathroom for two years ... these three trees are alive and living and they do what trees normally do. They produce branches and grow and they produce a root system. And even though you trim the branches back or you trim the roots back, they are going to produce more branches and more roots."

On appeal, the Court of Appeals agreed with the trial court's finding that the plaintiff was financially and physically unable to engage in self-help beyond what she had already tried without success. Nonetheless, after noting that "the three oaks at issue are viable, healthy, and innoxious trees whose natural growth is accompanied by the extension of their branches and roots over and into" the plaintiffs property, the intermediate court concluded that the plaintiffs only remedy was self-help and that her nuisance action could not be sustained. Accordingly, the Court of Appeals affirmed the trial court's dismissal of the case.

Analysis

I. Granberry v. Jones

In finding that the plaintiffs only remedy was self-help and that a nuisance claim cannot be brought for harm caused by encroaching tree branches and roots, both lower courts relied on this Court's decision in Granberry v. Jones, 188 Tenn. 51, 216 S.W.2d 721 (1949). In Granberry, the parties owned residences on adjacent lots. The defendant planted a hedge row on her property near the common boundary line, which eventually grew to a height of twenty feet. Branches and foliage from the defendant's hedge encroached upon the plaintiffs property and rested against his house. The plaintiff alleged that the hedge row was a nuisance because its branches and foliage blocked the view from his windows and created a sanctuary for insects. He also alleged that damp conditions associated with the hedge caused the decay of his window sills, a wall, and a fence. The plaintiff sought an order requiring the defendant to either remove or trim the hedge. He also sought an award of damages. Id. at 722.

This Court held in Granberry that the plaintiff "had the legal right to cut any branches or foliage which to any extent hung over his soil from the hedge growing upon the adjoining land." Id. at 722-23. In reaching this conclusion, we relied on the then prevailing rule that "no landowner has a cause of action from the mere fact that the branches of an innoxious tree, belonging to an adjoining landowner, overhang his premises, his right to cut off the overhanging branches being considered a sufficient remedy." Id. at 723. The rationale for the rule was that a landowner has the "liberty to use his land, and all of it, to grow trees [and] their growth naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining...