Buckingham v. Elliott

62 Miss. 296 | Miss. | 1884

Campbell, C. J.,

delivered the opinion of the court.

We are not able to draw a distinction between the roots of a tree which extend into a neighbor’s land and overhanging branches. Undoubtedly, if the branches of a noxious tree extend over the land of another and do injury, the owner of the tree may be held responsible for the damage done. To this effect are all the authorities. In Countryman v. Lighthill, 31 N. Y. S. C. Rep. (24 Hun.) 405, it is said: “ The overhanging branches of a tree not poisonous or noxious in its nature are not a nuisance per se in such a sense as to sustain an action for damages.” It was further said that the action was without precedent and upon principle not to be sustained, because, to constitute a cause of action for a nuisance, “ there must be not merely a nominal but such a sensible and real damage as a sensible person, if subjected to it, would find injurious,” etc. Said the court in that case: “ It would be intolerable to give an action in the case of an innoxious tree whenever its growing branches extend so far as to pass beyond the boundary line and overhang a neighbor’s soil. The neighbor has a remedy in such case by clipping the overhanging branches.” The action was denied in that case as groundless and vexatious, because it did not appear that any sensible injury had been done by the overhanging branches, but it was not denied that an action could be sustained where a sensible injury had resulted. In Hoffman v. Armstrong, 46 Barb. 337, it was said, “ If the branches of the tree which overhung the defendant’s land were a nuisance, his remedy was an action for the damages.” In Cooley on Torts 567, it is said: “ It is a nuisance if the branches of one’s tree extend over the premises of another, and the latter may abate it by sawing them off. The same rule applies here as in trespass: the insignificance of the injury goes to the extent of the recovery, and not to the right of action.”

It is laid down by Wood on Nuisances, § 112, that the person injured by overhanging branches may abate the nuisance by cutting them off or may have his action for damages. Wherever one’s rights are invaded he must have an action for redress, and “the insignificance of the injury goes to the extent of the recovery, and not to the right of action.” This is the view of this court, .announced in Henry v. Shepherd, 52 Miss. 125. Sections 2370 and 2376 of the code are designed to afford protection against malicious and trivial actions.

It seems to be settled law that overhanging branches are a nuisance, and it must follow that invading roots are. The person intruded on by branches may cut them off; it must be true that one may cut off invading roots; it must be true that he who is injured by encroaching roots from his neighbor’s tree can recover the damages sustained from them. The right of action seems clear.

In determining how much the person injured shall recover, it may be proper to consider the means of protection in his own hands against the injury complained of. It is an admitted fact in this case that the roots of the mulberry trees destroyed the well'. That proves the noxious character of the trees. The trees were planted by a former owner, but the appellee has no right’ to maintain and continue a nuisance after notice of its character and the injury done by it. True, he has as much right to shade and ornamental trees as his neighbor has to his well of unpolluted water ; but if in the enjoyment of his right he invades his neighbor’s, he is answerable for it. The trees and their roots are his , he must so restrain his roots as not. to work injury to his neighbor; he can enjoy the full advantage of his trees, as we suppose, without permitting them to damage his neighbor; he is not required to destroy them, but only to prevent them from encroaching injuriously upon others. This he is required to do upon the principle embodied in the fundamental maxim, “ So use your own as not to hurt another.”

Reversed and remanded.