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Case Law Update: Killing boundary tree subjects neighbor to lawsuit for damages

Posted Wednesday, June 28, 2017 by Christopher L. Thayer

Dead TreeIn a recent case before Division II of the Washington Court of Appeals, Herring v. Pelayo (No. 48786-1-II), the court revisited the “boundary tree” doctrine established by the Happy Bunch, LLC v. Grandview case, 142 Wn. App. 81 (2007), and harmonize it with the general proposition that a land owner has the right to trim branches or roots from a tree on a neighbor’s property – to the extent the branches or roots extend onto their property.

It has been long established in Washington that a landowner has the legal right to “engage in self-help and trim the branches and roots of a neighbor’s tree that encroach on his or her property.” Mustoe v. Ma, 193 Wn. App. 161 (2016). The court in Mustoe rejected arguments by appellant that when trimming encroaching branches or roots the landowner has a duty of care to avoid damaging the neighbor’s tree.

The Court in Happy Bunch dealt with a tree directly on the boundary line between two properties and found:

[A] tree, standing directly on the line between adjoining owners, so that the line passes through it, is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other.

Herring v. Pelayo arises out of a classic neighbor dispute. The Herrings and Pelayos are neighbors who share a common property line. On or about December 2, 2011, the Herrings hired a tree trimmer to remove some branches from a tree that was located on the common property line. The Herrings did not discuss their plan to remove branches from the tree with the Pelayos. The Pelayos believed that the manner in which the tree branches were removed caused the tree to become unbalanced and that the unbalanced tree constituted a danger to their home and their safety. On December 31, 2011, the Pelayos hired a tree trimmer to remove all the remaining branches from the boundary tree without first discussing their plan with the Herrings. The removal of all the remaining branches caused the boundary tree to die.

The Herrings sued the Pelayo under Washington’s “timber trespass” statute (RCW 64.12.030) and for general trespass under RCW 4.24.630. The matter proceeded to trial. Pelayo testified: (1) he knew the tree at issue was on the Pelayos’ and Herrings’ common property line, (2) he directed his tree trimmer to remove all of the remaining branches from the tree, (3) he did not discuss his plan to remove the remaining branches with the Herrings, (4) the tree was alive prior to the removal of the remaining branches, and (5) he believed that removing the remaining branches would kill the tree.

Moreover, as tenants in common, the Pelayos and Herrings were each entitled to use, maintain, and possess the boundary tree, but not in a manner that “interfere[d] with the coequal rights of the other cotenants.” Butler v. Craft Engineering. Therefore, unlike a landowner engaging in self-help to trim branches overhanging his or her property from a tree situated entirely on the property of another, a cotenant to a boundary tree has a duty not to destroy the common property and thereby interfere with the rights of the other cotenants. Thus, the Court of Appeals held: “where a tree stands on a common property line, the common owners of the tree may lawfully trim vegetation overhanding their property, but not in a manner that the common owner knows will kill the tree.”

With this holding, the Court of Appeals has created an interesting situation. If you have a tree on your neighbor’s property and the branches and roots extend onto your property, you have the right to trim those branches and roots on your side of the property line – even if it causes damage or kills the tree. However, if it is a “boundary tree” straddling the boundary line, the property owners co-own the tree. If in this scenario one party cuts branches and/or roots (that are wholly on their side of the property line), which causes the tree to die – you would be liable to your neighbor under these circumstances for damages.

It is unclear whether the Court of Appeals decision will stand, or whether further appeal (to the Washington Supreme Court) may be had. Certainly, the court’s decision creates some confusion and potentially inequitable results.

We recommend for all property owners to work with their neighbors before any significant cutting of branches or roots from an adjoining tree. Do your best to work out an understanding and maintain good “neighborly” relations. If you have questions or problems with a tree encroaching onto your property, please feel free to contact Chris Thayer to discuss your situation. Mr. Thayer can be reached at (206) 804-1494 or CThayer@PivotalLawGroup.com.

Photo credit: Dead Tree, used under the Creative Commons license.