But Only God Can Make a Tree (Joyce Kilmer, 1914)

Tree on neighboring property line

Ironically, despite their divine origin, disputes between neighbors over trees often arise and, as a recent case illustrates, become the subject of hard-fought litigation.

Shafi Ahmed and Nusrat Ahmed filed a Small Claims proceeding against their Middletown, New York neighbor,. Allen H. Zoghby. Both Parties appeared without attorneys.

The Ahmeds alleged that roots from a tree, purportedly on the property next door owned by  Zoghby (73 Beattie Avenue), damaged the pavement and driveway located at the front of the house on their property (75 Beattie Avenue).  The Ahmeds also alleged that the tree’s roots were slowly moving under the foundation of their house and that branches from the tree on Zoghby’s property had to be cut and trimmed by them at their cost. The Ahmeds initially sued Zoghby for $3,800.00.

At the trial, both Ahmed and Zoghby testified under oath, and the Court found that they both testified credibly.

The evidence at the trial showed the following:

A very large tree straddled the properties. Ahmed testified that roots from the tree extended under and pushed up a portion of his driveway. He also testified that branches from the tree hung over his property and deposited leaves and other debris on the roof of his house.

Ahmed produced documentation showing he borrowed money from the City of Middletown Community Development Office in 2013 for various home improvements, including $1,000.00 paid in August 2013 to a contractor to cut the tree’s branches overhanging their house. Ahmed also produced a letter dated August 14, 2018, from his insurance company after a representative inspected their property. The letter contained the following recommendation (which, according to the letter, had “a direct influence upon [the company’s] decision to continue coverage”): “Driveway apron: Repair the uneven pavement of the driveway apron along Beattie Avenue where there are uneven areas of asphalt near the road. Ensure that this area is returned to a smooth and level surface to prevent trip and fall hazards.” Ahmed presented pictures of both the roof of the house and the driveway showing leaves on the roof (but no apparent damage) and cracks in the driveway which appeared to be the result of roots coming from the tree. The pictures were taken at various times of the year. The pictures also showed that the tree appeared to straddle the property line between the two properties.

The Ahmeds obtained estimates from two companies to repave the driveway, including cutting off the roots of the tree.  They eventually hired a third contractor, Max Landscape LLC, at a cost of $2,950, to do the work. The work included removing the tree’s roots, demolishing and disposing of the existing driveway, grading and compacting, and installing a new, paved driveway. The Ahmeds paid Max Landscape $2,950 and produced a paid receipt for the work.

Zoghby testified that he caused the entire tree (including branches hanging over both his and his neighbor’s property) to be trimmed approximately eight to ten years ago. He did not know if the tree was on his property or the Ahmeds’ property but believed it straddled the property line between the two parcels. He further testified that roots from the tree not only were growing under the Ahmeds’ driveway but under his as well, causing cracks in both driveways. Zoghby produced pictures showing the tree and the driveways to both properties. The pictures, like the pictures offered by Ahmed, showed the tree on a grassy strip between both driveways and the cracks in the driveways.

The Ahmeds purchased their property (75 Beattie Avenue) in December 2004; Zoghby purchased his property (73 Beattie Avenue) in October 2002 and sold it to Alvaro Gonzalez in August 2018. Ahmed produced a copy of a survey by Ernest Johnson, P.L.S. The survey was undated but showed the line between the two properties going through what appeared to be a symbol for a bush or tree at the front (Beattie Avenue side) of both properties. The survey did not identify what that symbol meant. The survey also showed more of the symbol appeared to be on Zoghby’s property, but there was nothing indicating whether the symbol (if it, indeed, represented the tree) was of the trunk of the tree or the branches of the tree. Ahmed, in his testimony, indicated he believed there was a survey mark or pole on the property line indicating approximately ten percent of the tree was on the Ahmeds property and agreed the tree was on both properties. But neither party offered anything in evidence showing precisely where the tree was located with respect to each property.

The Court concluded that the testimony and evidence at the trial ultimately showed the tree straddling the common line separating the two properties.

The rule in New York is that a “tree is wholly the property of him upon whose land the trunk stands.” If a tree, however, straddles the line between two properties, the owners of both properties own the tree as tenants in common. Even if a tree was originally planted on one property and, over the years, grew over the property line so that it stood on the land of both parties, that fact would render the parties tenants in common in the tree.

The testimony of both Ahmed and Zoghby and the evidence at trial showed that the tree (and not just the roots and branches but the trunk as well) was on both properties and straddled the line between both properties. There was no testimony or evidence from either party establishing precisely where the tree was located with respect to each property. And Ahmed and Zoghby admitted the tree appeared to be on both properties. As a result, the Court found that the Ahmeds and Zoghby were owners of the tree as tenants in common during the time Zoghby owned his property. Because Zoghby sold his property to Alvaro Gonzalez in August 2018,  the Ahmeds and Gonzalez (who was not a party to the action) now owned the tree as tenants in common.

In August 2013, the Ahmeds paid $1,000 to a contractor to cut the tree’s branches overhanging their house. They argued that Zoghby owed them $1,000 for the cost of cutting the tree’s branches to prevent leaves from falling and accumulating on their roof. And sought the $1,000 under a private nuisance theory.

There were three reasons the claim for reimbursement of the $1,000 failed. First,  the Ahmeds’ assertion (based on nuisance) was time-barred. Actions to recover damages for injury to property must be commenced within three years of the property damage. Since the Ahmeds paid a contractor to remove the offending branches in 2013, more than three years elapsed after the purported damage to the roof from the falling and accumulating leaves and before the action was started in 2018.

Second, overhanging branches, accumulated fallen leaves, branches, and or buds, or cosmetic damage to a garage, or branches and leaves blocking the sun, without proof of actual injury to a person or that person’s property (which injury is known as “sensible damage”), was not enough to sustain a claim of private nuisance. Recovery for damages from overhanging branches depends upon the presence of actual injury to plaintiff or plaintiff’s property. The remedy in such case is self-help: “Summary abatement by self-help under these circumstances is a sufficient remedy. A property owner may resort to self-help in the first instance to remove tree roots adversely affecting his land, so it has been held with the removal of overhanging tree branches.”  The Ahmeds, in effect, resorted to self-help in 2013 by hiring a contractor to remove the branches and leaves, and that self-help was appropriate in this case because of the lack of “sensible damage.”

And third, even if the branches and leaves caused “sensible damage,” the Ahmeds did not have a right to require Zoghby to reimburse them $1,000 because they owned the tree as tenants in common with Zoghby. Their remedy, as a co-owner of the tree as tenants in common with Zoghby, was self-help by trimming the branches, so long as that action did not “injure the main trunk of the tree. “Each party in such a case [where the parties own the tree as tenants in common] was entitled to conduct ordinary clipping or pruning, so long as this did not injure the main trunk of the tree.” The actions by the Ahmeds in hiring a contractor at a cost of $1,000 to trim the tree’s branches overhanging their property was self-help actions as co-owners of the tree and were not subject to reimbursement by Zoghby.

After considering the established facts in this action,  the Court applied logical and common sense rule: if damage is caused by roots growing from a tree straddling a common property line between two properties, the tree is owned as tenants in common by both property owners. In such a case, each property owner may not recover from the other property owner but is limited to self-help remedies to cure any such damage on that owner’s property caused by the tree’s roots (so long as that action did not “injure the main trunk of the tree).”

The Court, in a small claims action, must “do substantial justice between the parties”. Under the circumstances,, and in view of the fact that the parties owned the tree as tenants in common,  the Court found that it would defy substantial justice to hold  Zoghby liable. Thus, Zoghby owed nothing to the Ahmeds.

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