Lead Opinion
Plaintiff — appellee—is the owner of a piece of land bordering on an unimproved public alley about ten feet wide. The building on his property extends to, -or very close to, the alley line. Defendant — appellant — owns land across the alley. On defendant’s land, very close to the alley line, are two rather large trees, the branches of which extend across the alley and overhang plaintiff’s property. Leaves and buds from these branches fall onto plaintiff’s building and on a number of occasions have stopped up the gutters and water from the gutters has overflowed the wall. Plaintiff has expended money in having the gutters cleaned and the'wall waterproofed. Plaintiff brought an action for damages and for abatement of a nuisance, and obtained judgment for $128.45 and an order requiring defendant to cut off and keep cut the overhanging, branches. : , :
Plaintiff alleged and contended-that--one ■of the trees leaned at such an angle there wa$ danger of it falling on .plaintiff’s property because of dirt being washed away from its roots. -Evidently the trial court-did not'-accept this contention as the order of abatement related only to the overhanging branches-and not to the tree itself. This appeal therefore raises the- question whether..the overhanging-branches, under the circumstances stated, constituted a nuisance entitling.,plaintiff to relief.
While there are many statements in the books that branches of trees which overhang ■ another’s property may under certain circumstances constitute a nuisance 'and entitle the owner of the-invaded land to an action for abatement or damages, or both,
In Buckingham v. Elliott,
In Michalson v. Nutting,
The above two cases are squarely contradictory, unless the “noxious” character of the mulberry roots differentiate them from the poplar roots.
In Stevens v. Moon,
In Smith v. Holt,
Restatement, Torts, § 840, says: “Where a natural condition of land causes an invasion of another’s interest in the use and ■enjoyment of other land, the possessor of the land containing the natural condition is not liable for such invasion.”
Comment (a) under that section says “natural condition” means a condition “not in any way the result of human activity” and includes “trees, weeds and other vegetation on land which has not been maae .artificially receptive thereto by act of man.” Illustration 4 under that section reads: “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 subect to the rule stated in § 839, since the eucalyptus trees are not a natural condition.”
Restatement would therefore make liability rest on whether or not the offending tree is a natural condition of the land. This rule was adopted. in Griefield v. Gibraltar Fire & Marine Insurance Co.,
“The test of the appellant’s liability vel non is whether the tree from which this limb overhung the land of the appellee’s assignors was of natural growth or had been planted by the appellant pr a former possessor o.f her land. If the latter is the case, liability appears, 4 Rest., Torts, § 839; Buckingham v. Elliott,
“The broad language of the opinion in Buckingham y. Elliott, supra, if given effect, would sustain the judgment of the Circuit Court, but when the authority of that opinion is limited,-as it should be, to the issue then before the court, it will be
It is thus seen that the early Mississippi case has been restricted in its scope.
The foregoing cases are not the subject of exact classification. There is some confusion in them as to whether a tree or plant is “noxious” merely because it does injury or whether it must be inherently injurious or poisonous and there seems to be a difference of opinion as to the extent of damages required to constitute sensible or substantial damages. However, we think the cases are in agreement that trees ordinarily are not nuisances; that overhanging branches which merely cast shade or drop leaves on the land are not nuisances; that if under any circumstances overhanging branches or protruding roots do constitute a nuisance it is only when they do sensible or substantial harm;
In our final analysis of the exact question here presented we think the California, Oklahoma and Washington cases may be eliminated from consideration because of the statutes in those states. The Tennessee and Virginia cases appear to approve the Massachusetts rule except in the case of noxious plants, that is, plants poisonous or inherently injurious. The Massachusetts case did not involve a noxious tree and neither does the case before us. Consequently, eliminating the case of a noxious plant, we have a choice of two rules. One is the Massachusetts rule denying liability of' the owner of land for damages caused by roots and branches of trees invading his neighbor’s premises. Second, is the Restatement rule, now adopted by Mississippi,
With due respect to the authority of the Restatement,
On the other hand, we are impressed by the rule laid down in the Massachusetts case of Michalson v. Nutting, supra, where-it was said: “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 subj ect 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.”
We conclude that one whose land is invaded by branches and roots of trees or plants not poisonous or inherently injurious has no cause of action against the owner of such trees or plants, but may protect himself therefrom-by cutting them off to the extent that they -invade his property.
In view of this conclusión it is unnecessary to consider either the question of the sufficiency of the proof of damages or the question of the' jurisdiction of the trial court to issue an order of abatement.
Reversed.
Notes
. Wood, Law of Nuisances (1875), §112; Countryman v. Lighthill, 24 Hun, N.Y., 405; Hoffman v. Armstrong, 46 Barb:, N.Y., 337, affirmed
. See also Shevlin v. Johnston,
. See also Forbus v. Knight,
.Sec. 839 states that, subject to the conditions there stated, “a possessor of land is liable for an invasion of another’s interest in the use and enjoyment of other land occurring while he is in possession, if the invasion results from an abatable physical condition on his land which he has failed to take reasonable steps to abate.”
. Apparently to the contrary is Ackerman v. Ellis,
. It may be that the California cases are basically in accord with Restatement. The facts in Restatement’s illustration 4 apparently were taken from Stevens v. Moon,
. See Bailey v. Zlotnick,
. See Prosser, Torts, § 76; p. 607; Chambers v. Whelen, 4 Cir.,
Dissenting Opinion
(dissenting).
Almost all property owners have had to contend with the usual and familiar type of inconvenience from blown or falling leaves. But the circumstances -of this case are far from usual.
As we can see from the photographs in the record, one of the trees on defendant’s property — the one causing the most damage — is quite large and very tall. Soil has been permitted to wash away from its roots, no support of any kind has been given the tree, and it now. leans at a sharp, precarious angle several feet across a public alley onto and over plaintiff’s property. Under these circumstances it seems highly -unrealistic to commend the injured property owner to the “self-help” remedy. I have no doubt that such is one of his remediés; but I do not agree that it is his only one. Shevlin v. Johnston,
I do not consider it of great importance whether this particular tree is “of natural growth” or otherwise; or whether it was “noxious” in character or not. The important fact is that the tree is in a state of bad neglect — defendant conceding that it has remained in its present condition for more than eight years.
Finally (speaking extrajudicially), I agree with my colleagues that problems like this can usually be solved without the aid of courts, and I think that reason and fairness should long ago have suggested to defendant that she remove the dangerous and offending tree.
. 1 Am.Jur., Adjoining Landowners, § 57.