124 A.3d 839
Vt.2015Background
- Berger and Katz own 54 Central Ave.; the Alvarezes own adjoining 52 Central Ave. A ~65-year-old maple trunk stands fully on the Alvarez lot about 2 feet north of the property line, but roughly half the tree’s roots and branches cross onto Berger/Katz’s property.
- Berger and Katz planned a two-story rear addition that would occupy the existing footprint and require cutting up to ~50% of the tree’s roots/branches that encroach onto their lot; they obtained building permits.
- The Alvarezes obtained a temporary, then permanent injunction preventing Berger and Katz from cutting more than 25% of the tree’s roots/branches, based on the superior court’s application of an “urban-tree rule” (concern that cutting ~50% would likely kill the tree within 5–10 years).
- Berger and Katz appealed the permanent injunction arguing (1) common law gives an absolute right to trim encroaching branches/roots regardless of effect on the tree, (2) irreparable harm was not shown to support an injunction, and (3) the injunction effects an uncompensated taking.
- The Vermont Supreme Court reversed the injunction, holding Vermont follows the traditional common-law self-help rule allowing a landowner to cut encroaching branches/roots up to the property line without regard to whether the cutting will harm or kill the tree; remanded for entry of judgment for Berger and Katz and for determination of declaratory relief as to removal or compensation.
Issues
| Issue | Plaintiff's Argument (Alvarezes) | Defendant's Argument (Berger & Katz) | Held |
|---|---|---|---|
| Whether a landowner may cut encroaching branches/roots even if cutting will likely kill the tree | Cutting that would destroy the tree should be restricted; superior court’s “urban-tree rule” limits self-help where trimming would destroy the tree | Common-law right permits cutting encroachments up to the property line regardless of impact on tree | Court held Vermont law affirms absolute self-help: owner may remove encroachments to the property line without regard to likely effect on the tree |
| Whether the superior court properly applied the “urban-tree rule” as law of the case | The rule was appropriate to prevent destruction of the tree | The rule conflicts with long-standing Vermont precedent (Cobb) and is not controlling | Court rejected the “urban-tree rule” and reversed the injunction |
| Whether the tree is a boundary (line) tree altering ownership rights | The superior court treated the tree as effectively on the boundary, implying shared property interest | Berger & Katz noted the trunk is entirely on Alvarez land; property line does not pass through trunk | Court found the trunk is not on the line; the tree belongs to Alvarezes (not a line tree), but that does not limit Berger & Katz’s right to cut encroachments |
| Whether statutory timber/trespass law (13 V.S.A. § 3606 / timber statute) bars cutting | Statute prohibits destroying timber; thus cutting should be restricted or compensated | Statute modifies damages for trespass but does not create a bar to common-law self-help where no trespass is alleged | Court held the timber statute does not prohibit Berger & Katz’s common-law remedy and does not create a bar here |
Key Cases Cited
- Cobb v. W. Union Tel. Co., 90 Vt. 342 (1916) (establishes right to cut parts of a tree that overhang another’s land at the division line)
- Stratton v. Lyons, 53 Vt. 641 (1881) (property ownership includes things attached above and below the surface)
- Skinner v. Wilder, 38 Vt. 115 (1865) (line tree doctrine: tree with trunk on the boundary is tenants in common)
- Michalson v. Nutting, 175 N.E. 490 (Mass. 1931) (historic common-law rationale favoring self-help for encroaching trees and roots)