Sterling v. Weinstein, 75 A.2d 144

Sterling v. Weinstein

75 A.2d 144

D.C.

1950

Check Treatment

*1 costs, or appeal payment accruing the of costs should that the notice of court but during action, upon satisfactory the did not evi- filed the court. She with lower of inability party pay dence the of the to to this court until the-clerk of write June appropriate such costs.” to 23, 1950, to file We requested she leave deem when power add that discretionary this broad appeal payment of fee. of without a notice waive fees upon costs informal court that also to this Petitioner states showing adopted deliberately was after filing notice time for within the allowed stringent consideration of more re- the “presented executed appeal she the of quirements for proceedings pau- in Municipal forma the officeof the 'Court forms” at in effect in peris the Federal courts and to take them she was advised clerk where now contained in 1915. 28 U.S.C.A. Our § Mu- judge of the office of the chief to the purpose was to appeal assure of the Court, direct- was in turn nicipal then litigants might who be without funds. According judge. to her the trial ed to hearing trial after her judge statement true, however, It pe remains request plaintiff her counsel for denied complied titioner even with our prepay- appeal notice of without tó file the simplified requirements. Instead fol of ment of costs. lowing rule, our was which she advised by clerk of this court well before peti that the have concluded We appeal expired, proceed time for she too late. court filed Our tion to this before, lay ed to the matter first clerk appeal provides that notice 27(a) rule Municipal of the Court and then before the clerk of civil cases shall in be filed judge, trial who her denied motion for days within from the trial court ten appeal filing pauperis. in re forma appealed judgment or order date of ap sults that she failed to file the notice of oc We have on numerous from. decided peal by within the set a rule of this time jurisdiction casions that time limit is court, which, as before, have said we we enlarged may extended not be ei al and authority are without to waive.2 trial this court.1 ther court Petition denied. statute, Supp. governing Code The 772(b), provides VII, court that this 11— * * * power general- “shall have the relating ap- all ly regulate matters in below or said

peals, whether the court Municipal Appeals for the Court In accordance with

District of Columbia.” statute, Municipal Court rule appeals this court shall be provides v. WEINSTEIN. STERLING as governed by of this court now the rules No. 922. hereafter modified. This court existing or Municipal Appeals for Court of provides for various fees and in its rule District of Columbia. payable in this court and costs fqe payable in prescribes, a also Argued May 8, $5 1950. filing appeal. for notice of court trial July Decided heading rule, next Costs”, provides of Fees “Waiver discretionary shall clerk have full “The prepayment waive power to fees Capital Co., Corporation Transit in Holland v. Syndicated Circuit Construction U.S.App.D.C. —, D.C.Mun.App., Ross, 184 F.2d A.2d petitioner, this same Columbia, another D.C.Mun. District of Beach case, was denied extensions of time and App., A.2d proceed pauperis leave for forma opinion of- -Court States United

2. See assignment of counsel. Appeals the- of Columbia District *2 gutters waterproofed. cleaned and the'wall brought Plaintiff action for and nuisance, for of a and obtained abatement requir- judgment for and an order $128.45 keep ing defendant to cut off and cut the ,: : overhanging, branches. alleged Plaintiff and contended-that--one n ofthe trees leaned at such an angle there falling .plaintiff’s danger on wa$ being because of dirt washed -Evidently from its roots. the trial not'-accept this as the contention court-did only order of related the over- abatement hanging itself. branches-and not to the tree This the- therefore raises under overhanging-branches, whether..the stated, the circumstances a nui- constituted entitling.,plaintiff sance to relief. many While there statements books that branches of trees which over- property may hang cer- another’s tain circumstances constitute a nuisance owner of land 'and the-invaded entitle damages, to an action abatement for both,1 comparatively there are few cases dealing squarely subject and C., Collins, Washington, D. Dennis are not in accord. appellant. Elliott, Miss. 296, In Buckingham v. C, ap- Conn, Washington, D. Milton Am.Rep. where roots from mul ' pellee. berry yard invaded trees in defendant’s plaintiff’s penetrated well, pol yard and CAYTON, Judge, Chief Before making water and if*unfit for luting the CLAGETT, Judges; Associate HOOD plaintiff use, it' was held that- domestic damages. an action for .court .The HOOD, Judge. Associate law over said: “It se.ems .settled appellee—is of a the owner Plaintiff — nuisance, and it hanging branches unimproved bordering on an piece land must, invading, are. follow that alley feet public ten wide. about * * * is an admitted fact..in to, very -or on extends building mulberry of. the case the roots to, appel- alley line. close Defendant — destroyed proves, nox That well. the. alley. land across the On de- lant —owns . character of the trees.” ious alley line, land, very close to the fendant’s Nutting, 275 Mass. Michalson v. In trees, large branches of rather are two of a 490, 76 A.L.R. roots alley over- which extend across the N..E. adjoining land and poplar invaded plaintiff’s property. Leaves and buds hang up pipes, necessitating tak sewer clogged branches fall onto from these pipes several occasions. ing up number occasions have building and on a sought land adjoining relief owner of the stopped up gutters water from the damages. The court abatement Plain- has overflowed the wall. gutters action, saying: no cause of held money expended having there tiff has N.Y., 48 N.Y. 8 Am. Wood, (1875), §112; Nuisances affirmed Law of 537; Toledo, Rep. L. K. R. N.Y., St. & C. Co. Countryman Hun, Lighthill, 24 Loop, 39 N.E. 306. Armstrong, Barb:, 139 Ind. Hoffman n “His reads: off the in- Illustration under that section to cut (plaintiff’s) right purchases possession of land recognized. and takes well “A truding boughs roots is planted on which have been a number remedy is in his own (Citations.) His boundary eucalyptus trees line near the hands.” *3 eucalyptus trees The roots the B’s land. of squarely con- above two cases grow land with that into B’s the result tradictory, character unless the “noxious” growing trees are stunted walnut thereon mulberry them the roots differentiate of damaged. Although A and otherwise poplar the roots. from the knows of he does not cut down 737, Cal.App. Moon, In 54 Stevens v. eucalyptus trees. A is the rule subect to Vincent, 508, 961,2 202 199 Okl. P. v.Mead 839, in eucalyptus stated since the § Ryland, 994, 116 v. 187 P.2d and Gostina a are not natural condition.”4 300, 228, 298, 18 A.L.R. Wash. 199 P. Restatement would make li- therefore 650,3 by relief from roots abate- intruding ability offending on rest whether or not the However, proper. ment was held each of a tree is natural land. condition of the on a part those cases in based statute. was adopted. was This rule v. in Griefield Ryland, distinctly In Gostina v. it Co., Gibraltar Fire & Marine Insurance 199 n statedthat “were it our statute of not for 175, 356, 357, 24 So.2d a limb where Miss. nuisances, respondents not the herein would overhung of a tree on defendant’s land any judicial he accorded relief.” plaintiff’s and in house a windstorm broke 213, Holt, 5 In Smith v. 174 Va. S.E.2d plaintiff’s damaged Previously roof. 492, 495, 1217, Granberry 128 A.L.R. requested defendant had been cut the Jones, Tenn., 721, injunctive v. 216 S.W.2d had not limb but done was held so. of invading was denied relief in cases plaintiff was not entitled to .recover planted hedges near Both the lot lines. damaged roof, saying: his the court apparent approval the cases Mas- cited case; Virginia appellant’s “The test of the liability but the case did sachusetts vel say the non is whether the it would be in accord with Missis- tree from which this sippi overhung appellee’s if similar: limb the of case the facts were “when land appears assignors was of a has natural growth sensible been or had n inflicted the planted by protrusion appellant of been roots from a a former pr possessor plant o.f noxious onto land an- her If land. the latter is the of case, liability other, has, appears, Torts, 839; notice, Rest., 4 he after a of action § Elliott, trespass Buckingham 296, law 62 52 committed.” Miss. Am.Rep. but if the former is case Restatement, 840, says: Torts, “Where § appellant liable, Rest., is Torts, not natural of land condition causes an in- 840, (a). Comment The former is the § in the vasion of another’s interest use and here, case for there is nothing in the n enjoyment land, possessor other agreed statement of facts to indicate that land containing natural condition the oak tree was not of natural growth. not liable for such invasion.” is language “The broad opinion in says section (a) under that Comment y. Buckingham Elliott, supra, given if means a condition “natural condition” “not effect, would sustain the judgment of the any way activity” the result human Court, authority Circuit but when the “trees, includes and other vege- weeds limited,-as opinion be, is it should land which not been tation on maae then court, the issue before the it will be .artificially receptive by act thereto of man.” subject that, Johnston, Cal.App. 4.Sec. 839 states con- See also Shevlin v. stated, possessor there “a ditions 563, of land Lov 205 P. 1087. Cf. Grandona v. for an is liable invasion of dal, another’s in- 70 Cal. 11 P. Grandona enjoyment terest the use and Lovdal, other 21 P. Am. Cal. occurring possession, he is in St.Rep. land while invasion if the results from an abatable Knight, 24 3. See also Forbus Wash.2d physical condition on his land P.2d steps has failed to take reasonable abate.” is roots rendered judgment invading branches of trees seen that there neighbor’s premises. Second, with the announced is the Re- conflict there, rule, Rest., Torts, Mississippi,6 statement adopted by for the trees now § except denying liability the roots of which caused dam- where the trees not a age, growth were not of natural natural condition but from result planted human activity. been the defendant’s' land.” Mississippi early It is that the thus seen respect With authority due scope. case has been restricted in its Restatement,7 its rule does not to us. practical From viewpoint it is difficult subject foregoing are not cases place liability plants on one who a desir- is some of exact There classification. *4 land, able and attractive on his and a tree confusion in them as whether or to deny liability against per- another who plant merely it does is “noxious” because scrubby mits a and unattractive tree of inherently it must be or whether growth natural Again, to exist on his land. to injurious poisonous and there seems or pictures evidence, from the here in we opinion a as to the extent be difference suspect case, others, many that in this and required constitute sensible damages to impos- it would be perhaps difficult and However, or we think damages. substantial sible to determine if the of natur- ordin- agreement the cases are in that trees growth. al again, And we think it would nuisances; arily overhanging are not that often be difficult a to ascertain whether drop merely cast shade or branches which tree of growth might natural not be in nuisances; not that leaves on land are part activity, the result of human such as. any overhanging if circumstances cultivating, fertilizing, trimming, etc. The constitute protruding roots do branches or purely distinction between natural con- only it is when do sensible a nuisance ditions and conditions which in some de- harm;5 that, whether or and substantial gree activity may are the result of man’s always not, may a landowner nuisances or practicable necessary be and even rural his line branches cut to ' areas, opinion but in our such distinction adjoining roots from trees of owner. reasonably cannot juris- made in be our analysis the exact final In our entirely diction which is almost urban.8 California, presented we think the here may Washington cases be Oklahoma hand, impressed by other On the we are from consideration because eliminated rule down in laid the Massachusetts The in those states. Tennessee the statutes Nutting, supra, case of Michalson v. where- appear approve cases Virginia was said: “The sense of -the common except the case of recognized Massachusetts common law has that it is wiser plants, is, plants poisonous that noxious protect himself, leave the individual to injurious. inherently Massachusetts harm if results to him from this exercise not involve noxious tree and case did right of another’s his use does the case before us. Conse- neither way, subj a reasonable than to that ect other quently, eliminating the case of a noxious annoyance, public to the bur- to the of two plant, we have choice rules. One den, law, of actions would be like- liability Massachusetts rule denying is the and, ly many to be innumerable in- of land for caused of' the owner stances, purely vexatious.” contrary Apparently is to the Ackerman apparently 5. taken from were Stevens v. Ellis, 1, 883, holding A. Moon, N.J.L. 79 Cal.App. 81 v. 54 202 P. 961. And insignificance injury goes Hems, Cal.App.2d see v. Crance 17 recovery and not extent of to the the right 62 P.2d Brownsey But cf. of action. Bailey Zlotnick, U.S.App.D.C. 7. See Printing Corporation, Ink General 505, 162 149 F.2d A.L.R. 1108. 505, 193 N.J.L. A. Prosser, Torts, p. 607; 76;§ 8. See Cham may It be that the California cases Cir., Whelen, bers v. F.2d 72: basically in accord with Restatement. A.L.R. 611. facts in Restatement’s illustration certainty The simplicity highly of Mas- Under these it seems circumstances appeals prop injured sachusetts rule It -unrealistic to to usl leaves commend the rights erty remedy. no obligations “self-help” doubt as to the owner to I parties.- places his While it the burden have no doubt that is one remediés; protect agree on the owner himself it is of land do not that I cutting only Johnston, invading branches and Shevlin 56 Cal. one. generally great. App. is cases in is not P. and other burden many majority opinion significance support of some I that in-this and this view. agree jurisdictions other there have been re- do not that he must climb onto his no ported question. involving (or engage cases This scaffolding roof and construct him) would generally dangerous indicate these others to do the work to us questions may adjoining between owners and saw off the limbs of- defendant’s trees. adjusted I without the aid of courts and think demand that de self-help is pay -rule sufficient. fendant abate the nuisance or damage thereby, just caused as he would We conclude that one is in- whose land have the right adjoin to demand that an vaded branches and roots of trees or ing property owner remove an unsafe plants poisonous inherently injurious *5 structure which a threat constituted of dan against has no cause of action owner ger. property owner, said, “A it is has no plants, may protect trees or him- keep premises more un self therefrom-by cutting them off sound tree near the house of his .neighbor, they extent property. -invade his fall, on which it is liable to than would In view of this conclusión it is unneces- keep dilapidated have to and unsafe sary question to consider either the of the position. building in the same It is his sufficiency proof or the duty premises to maintain his in such a jurisdiction of the' of the trial condition that should not become a to issue court an order of abatement. neighbor’s cause of property to his Reversed. way in a prudence that common should foresee.” CAYTON, Judge (dissenting). Chief I do importance great not consider Almost all owners have had to particular whether this tree is “of natural contend with the usual type and familiar growth” otherwise; or whether it was of inconvenience from blown or falling “noxious” in character or not. im- But leaves. -of circumstances this case portant fact is that is in a state far from usual. neglect conceding bad that it —defendant present has remained in its condition for As canwe see from the photographs in eight years. more than record, one of the trees on defendant’s causing one Finally most dam- (speaking extrajudicially), I —the age quite large very my tall. agree Soil has colleagues problems like —is permitted been to wash usually from its this can be solved without the aid of support any no courts, kind has been and I think that reason and fairness tree, given the and it leans sharp, ago long suggested should have now. to defend- precarious angle several feet pub- across a dangerous ant she remove the alley lic onto and over property. offending tree. Am.Jur., Adjoining Landowners, § 57.