It is certainly not unusual to hear about tree cutting cases where a landowner wants to trim the branches of a neighbor's tree that overhang the common boundary line-which is lawful, to a point-or even those cases where a person trespasses onto the land of another to trim or cut down trees entirely situated on that lot-which is unlawful. Whatever the underlying motivation for such trimming and cutting, Massachusetts law is fairly clear about whether liability and damages will ensue under those circumstances.
But what about when a tree equally straddles two lots? Not just the branches, but the main trunk itself? Who owns the tree, and, more importantly, can all or a portion of it be lawfully removed? These considerations become important when a landowner wants to make improvements on or under the boundary line which require removal of the tree.
Interestingly enough, Massachusetts case law is largely unclear about precisely what rights exist when a tree trunk grows across a boundary line. In one case, Levine v. Black, 312 Mass. 242 (1942), the court had the opportunity to address the issue, but ultimately punted. At best, the Levine court noted that among other jurisdictions the tree was considered to be owned as tenants in common between the two neighboring properties, or that each landowner owned the portion of the tree on his respective lot, but did not expressly decide which rights apply in Massachusetts.
Citing Levine, a fairly recent tree cutting decision (under Rule 1:28) issued by the Appeals Court ordered that full value damages be paid for cutting a tree that straddled the boundary line. The decision failed to state the nature of property rights that supports the awarded damages, and only vaguely alluded to the existence of rights in the tree that prevent another's unilateral action that harms or destroys the tree. See Lasell College v. Fox, 53 Mass. App. Ct. 1103 (Nov. 2, 2001) ("Each of the parties held a legal interest in that part of the tree on his own property but also had the right to prevent the other party from dealing with part of the tree so as to injure or destroy the whole tree.").
In other jurisdictions, the courts have more or less supported the notion that a tree growing on two lots is owned as tenants in common or jointly, and that such trees cannot be destroyed without consent, nor may they be trimmed so as to cause material damage. See, e.g., Garcia v. Sanchez, 108 N.M. 388 (1989) (citing Annotation, Rights and Liabilities of Adjoining Landowners As to Trees, Shrubbery, or Similar Plants Growing on Boundary Line, 26 A.L.R.3d 1372, 1374-1375 (1969)); Young v. Ledford, 37 So.3d 832 (Ala.Civ.App. 2009), writ of mandamus denied Young v. Ledford, 79 So.3d 656 (Ala. Civ. App., 2011), (reversing lower court order that authorized removal of entire boundary line tree because, under Alabama law, "[i]n the special case of a boundary-line tree, ... each adjacent landowner has ownership rights that cannot be trumped by the other's desires in the manner suggested by the trial court's judgment").
So what's a landowner to do? At minimum, when a tree is found to be growing on two lots, the prudent landowner should seek the consent of his neighbor when it becomes necessary to remove or significantly trim the tree. Depending on the circumstances prompting the tree removal, permission may be granted if the neighbor is agreeable. But, in those instances where the neighbor is unwilling to have the tree cut down, viable alternatives include revising plans so it does not require any tree removal or significant trimming to the point of harm or bringing a declaratory judgment action in court to have the court determine the parties' respective rights.
Unilateral action to remove a tree that straddles a boundary line, could expose the tree cutter to a claim for damages, that could include the full value of the tree in question or even alternative measures of damages such as diminution in market value to the property caused by the loss of the tree or even replacement or restoration costs.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.