Melnick v. C.S.X. Corp.

• Decision Date: 01 September 1986
• Docket Number: No. 112,112
• Citation: 312 Md. 511,540 A.2d 1133
• Parties: Jonathan MELNICK v. C.S.X. CORPORATION et al. ,
• Court: Maryland Court of Appeals

Page 511

312 Md. 511

540 A.2d 1133

Jonathan MELNICK v. C.S.X. CORPORATION et al.

No. 112, Sept. Term, 1986.

Court of Appeals of Maryland.

May 6, 1988.

Richard W. Winelander, Lutherville (Barry T. Canaras, Melvin J. Kodenski and Kodenski & Canaras, on brief), Baltimore, for appellant.

Stephen B. Caplis (H. Russell Smouse and Melnicove Kaufman, Weiner, Smouse & Garbis, P.A. and Richard C. Keene, on brief), Baltimore, for appellee.

Argued before ELDRIDGE, COLE, RODOWSKY, COUCH ^* and McAULIFFE, JJ., and MARVIN H. SMITH and CHARLES E. ORTH, Jr., Associate Judges of the Court of Appeals of Maryland (Retired), Specially Assigned.

ELDRIDGE, Judge.

This case presents an issue never before decided by this Court: whether a landowner has a cause of action against an adjoining landowner when trees, vines, roots, and other plants or plant debris from the adjoining landowner's property encroach upon and cause damage to the landowner's property.

I.

The relevant facts are as follows. ¹ In 1978, the plaintiff Johnathan Melnick purchased a tract of land situated in the City of Baltimore, known as 900-920 East 25th Street. The Melnick property shares a common boundary with a railroad right-of-way owned by the defendant Baltimore and Ohio Railroad Company. ² On the Melnick property, near the common boundary, stands a large building used as a warehouse.

At the time Melnick purchased this property, the building's roof was in poor condition, and Melnick subsequently replaced the roof. Since the roof replacement, Melnick has experienced constant clogged drains, standing water, roof deterioration and some water damage to stored merchandise. These problems result from leaves and limbs falling on his property from the Railroad's trees, and from vines and other plant life encroaching on his property from the Railroad's right of way. Melnick attempted to remedy this situation by cleaning the gutters on several occasions and cutting back the growth. He complains, however, that these attempts at "self-help" have been unsuccessful since the trees and vines have grown back and require constant maintenance. Melnick informed the Baltimore and Ohio Railroad of the damage to his building caused by the plants on the Railroad property.

Melnick brought this action in the Circuit Court for Baltimore City, seeking damages for the injury done to his property as a result of the branches and leaves falling from the Railroad's trees and the encroaching vines, shrubs, and other plant life from the adjacent property. Melnick's action was based on theories of trespass, negligence, and nuisance.

Following discovery the defendants moved for summary judgment contending that, as a matter of law, the Baltimore and Ohio Railroad had no duty to prevent harm to another's property caused by the encroachment of vegetation. Consequently, the defendants argued, Melnick is limited to self-help. Melnick, in opposing the motion, urged the circuit court to adopt a rule imposing upon the Railroad a duty to prevent encroachment of vegetation. The circuit court granted the defendants' motion for summary judgment, holding that the plaintiff is limited to a self-help remedy.

Melnick appealed to the Court of Special Appeals, which affirmed. Melnick v. C.S.X. Corp., 68 Md.App. 107, 108, 510 A.2d 592, 592 (1986). The Court of Special Appeals held that, under the circumstances, Melnick had no cause of action against the adjoining landowner. The appellate court reasoned that the remedy of "self-help" is generally the most efficient way in which to prevent injury from occurring to property due to encroaching vegetation. 68 Md.App. at 116, 510 A.2d at 597. We granted the plaintiff's petition for a writ of certiorari, and we shall affirm.

II.

The matter of a landowner's remedy for conditions on his property due to encroaching vegetation or falling plant debris from adjoining property has been the focus of many cases throughout the country, and various rules have developed to govern the situation. Courts uniformly hold that a landowner has a self-help remedy. Thus, the landowner has a right to cut encroaching branches, vines, and roots back to the property line. See, e.g., Drummond v. Franck, 252 Ala. 474, 479, 41 So.2d 268, 273 (1949); Cannon v. Dunn, 145 Ariz. 115, 116, 700 P.2d 502, 503 (Ct. of App.1985); Bonde v. Bishop, 112 Cal.App.2d 1, 5, 245 P.2d 617, 620 (1952); Robinson v. Clapp, 65 Conn. 365, 377, 32 A. 939, 941 (1895); Sterling v. Weinstein, 75 A.2d 144, 148 (D.C.1950); Gallo v. Heller, 512 So.2d 215, 216 (Fla.App.1987)- ; Whitesell v. Houlton, 2 Hawaii.App. 365, 368, 632 P.2d 1077, 1079 (1981); Lemon v. Curington, 78 Idaho 522, 524, 306 P.2d 1091, 1092 (1957); Toledo, St. Louis and Kansas City Railroad Company et al. v. Loop, 139 Ind. 542, 544-545, 39 N.E. 306, 307 (1894); Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766, 767 (1985); Holmberg v. Bergin, 285 Minn. 250, 257, 172 N.W.2d 739, 744 (1969); Jurgens v. Wiese, 151 Neb. 549, 554, 38 N.W.2d 261, 263 (1949); Wegener v. Sugarman, 104 N.J.L. 26, 29, 138 A. 699, 700 (1927); Loggia v. Grobe, 128 Misc.2d 973, 974, 491 N.Y.S.2d 973, 974 (1985); Granberry v. Jones, 188 Tenn. 51, 55, 216 S.W.2d 721, 722-723 (1949); Cobb v. Western Union Telegraph Co., 90 Vt. 342, 344, 98 A. 758, 759 (1916). See also, 2 Tiffany, Real Property § 603 (3d ed. 1939); Wood, Law of Nuisances § 108 (2d ed. 1883). ³

With regard to self-help, the landowner is generally limited to cutting back growth to the property line; he may not enter the adjoining landowner's property to chop down a tree or cut back growth without his neighbor's consent. See, e.g., Bonde v. Bishop, supra, 112 Cal.App.2d at 5, 245 P.2d at 621; Sterling v. Weinstein, supra, 75 A.2d at 148; Toledo, St. Louis and Kansas City Railroad Company et al. v. Loop, supra, 139 Ind. at 545, 39 N.E. at 307; Luke v. Scott, 98 Ind.App. 15, 17-18, 187 N.E. 63, 63-64 (1933); Pierce v. Casady, supra, 11 Kan.App.2d 23, 711 P.2d at 767; Hasapopoulos v. Murphy, 689 S.W.2d 118, 120 (Mo.App.1985); Jurgens v. Wiese, supra, 151 Neb. at 554, 38 N.W.2d at 263; Wegener v. Sugarman, supra, 104 N.J.L. at 29, 138 A. at 700; Turner v. Coppola, 102 Misc.2d 1043 424 N.Y.S.2d 864, 867, aff'd, 78 A.D.2d 781, 434 N.Y.S.2d 563 (1980). See also Maryland Code (1974, 1983 Repl.Vol.), § 5-409 of the Natural Resources Article.

Although courts generally agree that there is a self-help remedy, they diverge with regard to the availability of any remedy beyond self-help.

In the present case, both the circuit court and the Court of Special Appeals applied what has become known as the "Massachusetts Rule," which limits the adjoining landowner's remedy to self-help under almost all circumstances. In Michalson v. Nutting, 75 Mass. 232, 175 N.E. 490 (1931), the plaintiffs brought suit seeking injunctive relief as well as damages for the harm caused by the roots of a poplar tree that had clogged plaintiffs' sewer and damaged the foundation of their house. The Supreme Judicial Court of Massachusetts reasoned that limiting the plaintiffs to self-help was the most efficient and most equitable way to resolve the problem. The court stated (275 Mass. at 234, 175 N.E. at 491):

"His remedy is in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another's right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious."

See also, Ponte v. DaSilva, 388 Mass. 1008, 446 N.E.2d 77 (1983).

Several other courts have limited a landowner to a self-help remedy. In Schwalbach v. Forest Lawn Memorial Park, 687 S.W.2d 551, 552 (Ky.App.1985), the court followed the "Massachusetts Rule," noting that to impose liability "for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees." See Richmond v. General Engineering Enterprises Co., 454 So.2d 16, 17 (Fla.App.1984); Bandy v. Bosie, 132 Ill.App.3d 832, 834, 87 Ill.Dec. 714, 716, 477 N.E.2d 840, 842 (1985); Hasapopoulos v. Murphy, supra, 689 S.W.2d 118; Cannon v. Neuberger, 1 Utah.2d 396, 399, 268 P.2d 425, 427 (1954). See also, Langer v. Goode, 21 N.D. 462, 131 N.W. 258 (1911); Gulf, C. & S.F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999, 1001 (1900).

The Restatement (Second) of Torts (1977) has adopted a rule which limits the landowner to self-help when the encroaching trees, plants, and vines are "natural." See § 840. The Restatement, however, imposes a duty under certain circumstances upon an adjoining landowner to abate the condition when the encroaching vegetation is "artificial," and subjects the adjoining landowner to liability for failure to abate the "artificial condition." See § 839. ⁴ Vegetation is deemed "natural" when it is "not in any way the result of human activity." Restatement (Second) of Torts, § 840, comment a. Illustration 4 under comment a provides an example:

"4. A purchases and takes possession of land on which have been planted a number of eucalyptus trees near the boundary line of B's land. The roots of the eucalyptus trees grow into B's land, with the result that walnut trees growing thereon are stunted and otherwise damaged. Although A knows of this, he does not cut down the eucalyptus trees. A is subject to the rule stated in § 839, since the eucalyptus trees are not a natural condition."

Although a few states follow the Restatement Rule, most do not. ⁵ In refusing to follow the Restatement Rule, a few courts have commented that the distinction between "artificial" and "natural" vegetation is unworkable, and should not control the question of a landowner's duty. For example, in Sterling v. Weinstein, 75 A.2d 144 (D.C.1950), the District of...