371 P.3d 544
Wash. Ct. App.2016Background
- Mustoe owned two large Douglas firs entirely on her lot about 2.5 feet from the south property line; roots extended onto neighbors' property.
- Jordan (resident of the neighboring lot owned by Ma) excavated an 18–20 inch ditch along the property line on Ma's land and cut roots that encroached, removing about half the root mass on the trees' south side.
- The root cutting left the trees exposed to prevailing winds and at substantial risk of falling; landscape value and removal costs were estimated.
- Mustoe sued Ma and Jordan for negligence, trespass/timber trespass, and nuisance (emotional distress and property damage claimed).
- At summary judgment the trial court ruled Jordan had the right to cut encroaching roots on Ma’s land and owed no duty of due care to prevent damage to the trees; it dismissed Mustoe’s claims. Mustoe appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an adjoining landowner exercising self-help to remove encroaching roots owes a duty of due care to avoid damaging the remainder of the tree | Mustoe: Gostina and other authority imply a duty to act reasonably/good faith and not injure the non-encroaching tree portions | Jordan: Gostina permits cutting encroaching roots/branches at property line without a duty to preserve the remainder; no authority extends a due-care rule here | Court: No duty of due care; Gostina permits cutting encroaching roots and Washington law is not extended as plaintiff requests |
| Whether the nuisance claim survives summary judgment | Mustoe: Even lawful cutting can be a nuisance if it unreasonably interferes with use/enjoyment; reasonableness is a jury question | Jordan: No legally cognizable right was infringed by removal of encroaching roots; nuisance claim sounds in negligence and fails if negligence fails | Court: Nuisance claim fails because it is effectively a negligence claim; negligence fails so nuisance fails |
| Whether the common-enemy/due-care exception (as in surface water cases) applies to tree roots | Mustoe: Analogizes roots to surface water and urges a due-care limitation on self-help | Jordan: The surface-water rule is inapposite; roots are an encroachment, not a common enemy | Court: Analogy rejected; due-care exception for surface water does not apply to root/branch self-help |
| Whether timber-trespass statute (RCW 64.12.030) applies | Mustoe: Argues statute provides treble damages for injured trees | Jordan: Cutting encroaching roots on neighbor's land was lawful; statute only covers acts without lawful authority | Court: Statute inapplicable because Jordan acted with lawful authority to remove encroaching roots |
Key Cases Cited
- Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (1921) (adjoining owner may clip or cut off branches/roots at the property line)
- Sandberg v. Cavanaugh Timber Co., 95 Wash. 556, 164 P. 200 (1917) (duty to prevent spread of fire from one’s property; cited as inapposite here)
- Currens v. Sleek, 138 Wn.2d 858, 983 P.2d 626 (1999) (adopts due-care exception to common-enemy doctrine for surface water)
- Tiegs v. Watts, 135 Wn.2d 1, 954 P.2d 877 (1998) (nuisance may be actionable if it unreasonably interferes with use/enjoyment)
- Atherton Condominium Apartment-Owners Ass'n v. Blume Dev. Co., 115 Wn.2d 506, 799 P.2d 250 (1990) (negligence-sounding nuisances are governed by negligence rules)
- Alvarez v. Katz, 124 A.3d 839 (Vt. 2015) (rejects outlier decisions imposing a duty to avoid harming the remaining tree when cutting encroaching roots)