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In General

It is illegal for a person, in the absence of an easement or specific agreement, to erect buildings or other structures on his/her own land so that any part, however small, will extend beyond his/ her boundaries, and thus encroach on the adjoining premises.  In such cases, mandatory injunction to compel the removal of the encroachment is a proper remedy.[i]

Encroachment can take the form of anything like overhanging walls or something beneath or above the land.  For instance, projecting stones into the adjoining land without a right or license from the owner is a wrongful act and keeping the stones in the position in which they were so placed constituted a continuing trespass or nuisance.[ii]

Encroachment of trees to the property of adjoining landowners is sometimes considered as nuisance.  There are two divergent lines of thinking in cases pertaining to encroachment of trees.  One line of cases state that an owner is not liable to an adjoining owner for damages from an overhanging limb of a tree unless the owner or a former possessor planted the tree.[iii] In other words, an owner is not liable if the tree was of natural growth and is only liable if planted and nurtured “artificially”.  On the other hand, some courts are of the view that proof of a landowner’s planting or nurturing a tree is not an element of a plaintiff’s cause of action for damages and casts liability on the owner even if the tree was of “natural growth”.[iv]

However, this “natural/artificial” dichotomy as a test of liability in encroaching tree cases has been discarded by many jurisdictions for various reasons such as the impossibility of obtaining evidence concerning the origin of trees in many instances, the unfairness in imposing liability upon one who plants or nurtures a tree while excusing one who neglectfully permits the growth of unsightly scrubs.[v]

Hence, courts have adopted a balanced view that the overhanging branches of a tree, not poisonous or noxious in nature, are not a nuisance per se, in such a sense as to sustain an action for damages.[vi] Liability is imposed upon proof of some real, sensible damage resulting from the overhanging branches.  Further, encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground.[vii] Thus, alleged damage caused by falling pine needles and pine cones from an overhanging tree does not impose liability on a landowner.[viii]

Encroaching trees and plants are regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property and the owner may be held liable for damages, and may also be required to cut back the encroaching branches or roots.[ix]

At common law, a continuing encroachment by an adjoining landowner upon the land of another by erecting and maintaining a building thereon without right is a trespass as well as a nuisance.  No matter whether such encroachment is upon the surface of the soil, above or below it, the adjoining owner whose property is encroached upon has a right to seek ejectment.  “In no event should a landowner be obliged to submit to invasion or compelled to part with his property, or any portion thereof, upon the mere payment of damages by a trespasser.”[x] However, under some specific circumstances, law does not consider an owner whose structure encroaches upon the adjoining land to be a trespasser in going upon the land to remove the encroachment.[xi]

[i] McKee v. Fields, 187 Ore. 323, 326 (Or. 1949)

[ii] Smith v. Smith, 110 Mass. 302 (Mass. 1872), Milton v. Puffer, 207 Mass. 416, 418 (Mass. 1911).

[iii] Griefield v. Gibraltar Fire & Marine Ins. Co., 199 Miss. 175 (Miss. 1946)

[iv] Hasapopoulos v. Murphy, 689 S.W.2d 118, 119 (Mo. Ct. App. 1985).

[v] Id.

[vi] Gostina v. Ryland, 116 Wash. 228 (Wash. 1921)

[vii] Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002)

[viii] Marino v. Lorch, 2 Misc. 3d 56 (N.Y. App. Term 2003)

[ix] Lane, 92 S.W.3d 355

[x] Wachstein v. Christopher, 128 Ga. 229, 232 (Ga. 1907)

[xi] Szilagy v. Taylor, 63 Ohio App. 105 (Ohio Ct. App., Summit County 1939).


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