Pierce v. Casady, 57484
| Decision Date | 31 December 1985 |
| Docket Number | No. 57484,57484 |
| Citation | 711 P.2d 766,11 Kan.App.2d 23 |
| Parties | James B. PIERCE and Mary Jo Pierce, Appellees, v. Paul CASADY and DeLena Casady, Appellants. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. An easement by prescription cannot be acquired by overhanging tree branches.
2. A landowner has a right to trim branches that overhang the landowner's property even though the trunk of the tree is on a neighbor's land.
3. A landowner may not go on a neighbor's land and remove a tree or any part thereof absent the neighbor's permission.
4. If a tree is a nuisance, a landowner may compel a neighbor to abate the nuisance or, if an injury occurs, look to the neighbor to pay any damages allowable by law.
5. Trees constitute a nuisance if overhanging branches do substantial harm or the overhanging branches create an imminent danger.
6. In an action concerning an overhanging tree, it is held that the trial court did not err in holding that the landowner may remove branches from a tree overhanging the landowner's property, that the defendants did not have a prescriptive easement in the airspace, and that the overhanging portion of the tree is a nuisance because it presents an imminent danger to plaintiffs.
Edwin H. Bideau III, of Bideau Law Offices, Chanute, for appellants.
Richard G. Tucker, of Law Offices of Richard G. Tucker, Parsons, for appellees.
Before ABBOTT, C.J., and SWINEHART and MEYER, JJ.
Defendants, Paul and DeLena Casady, appeal from the trial court's judgment that a tree growing on their property with branches overhanging the property of plaintiffs, James and Mary Jo Pierce, is a nuisance.
Plaintiffs and defendants are adjoining landowners. The dispute between them concerns a 75-year-old pecan tree, the trunk of which is on defendants' property but one foot away from plaintiffs' property line. The tree, 75 feet in height, leans toward plaintiffs' property at an angle. Approximately 75 percent of the tree's canopy overhangs plaintiffs' property.
The tree has a split in the fork which is above plaintiffs' property. The length of the split on one limb is four feet and on the other, approximately two feet. If the tree fell due to the split, it would fall on plaintiffs' property, damaging their garage, home and any automobiles in the driveway. Trimming the tree at the property line is not practical because of its location and the angle at which it leans.
Plaintiffs petitioned the court for a declaratory judgment that they had the right to cut the overhanging branches back to their property line or, in the alternative, to declare the tree a nuisance to be abated by removal. The trial court ruled that defendants had not acquired a prescriptive right to the airspace the tree occupies, and that the tree constitutes a nuisance and is a danger to plaintiffs, causing them to fear for their safety. Defendants were ordered to abate the nuisance by removing the tree either at its base or at the point where it crosses plaintiffs' property line.
Defendants' first argument on appeal is that the trial court erred in finding no prescriptive easement to the airspace above plaintiffs' property. Defendants' argument is without merit. An easement through the airspace generally may not be obtained by prescription. Hinman v. Pacific Air Transport, 84 F.2d 755, 759 (9th Cir.1936). There is no case law that suggests an interest by prescription may be acquired by overhanging tree branches.
Defendants argue the tree is not a nuisance. Whether a tree constitutes a nuisance is a case of first impression in Kansas. Whether the tree is a nuisance has practical application to this case. A landowner has a right to trim branches that overhang the landowner's property even though the trunk of the tree is on a neighbor's land. The landowner may not, however, go on the neighbor's land and remove the tree or any part thereof absent the neighbor's permission. If the tree is a nuisance, the landowner may compel the neighbor to abate the nuisance or, if an injury occurs, look to the neighbor to pay any damages allowable by law. In this case it appears that if the tree is trimmed at the property line it is, in essence, destroyed. In any event, the trial court gave defendant the option of removing the entire tree or cutting it off at the property line.
Whether the tree is a nuisance is a question of fact. Our scope of review is limited as to questions of fact and is so well-defined that we need not...
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