Protecting Your Property from Encroaching Trees

Tree branches or roots extending over a property boundary may be a nuisance, especially in a damp climate like Humboldt County.  Remedies for such nuisance are available to neighboring landowners, including the right to cut off branches or roots at the boundary line, the right to recover damages, and the right to compel removal by the owner or occupant of the land on which the tree grows.  However, neighbors are required to act reasonably toward each other, which includes not causing foreseeable injury to a neighboring property (for example, cutting so much of the root system back that the tree dies.) See Fick v. Nilsen, 98 Cal.App.2d 683, and Booska v. Patel (Cal. Ct. App. 1994) 24 Cal.App.4th 1786, 1789-90.  Property owners whose trees have been wrongfully damaged by their neighbors may sue for up to five years from the date of cutting.

In light of recent case law, property owners that employ self-help remedies could be taking great risk by simply removing trees (or portions thereof) encroaching on their property.  In general (setting aside Civil Code §3346, allowing doubling or tripling of compensation in tree damage cases) the measure of damages for tortious injury to property is “the amount which will compensate for all the detriment proximately caused thereby.”  Civil Code §3333.  “Such damages are generally determined as the difference between the value of the property before and after the injury.”  Rony v. Costa, 210 Cal.App.4th 746, 754.  In spite of this general principle, recently courts have been willing to allow recovery of intangible damages for harm to aesthetic value in tree removal cases without requiring the aesthetic value be tied to any previously understood measure of market value or replacement cost.

In Kallis v. Sones (2012) 208 Cal.App.4th 1274 the appellate court affirmed a damages award for more than $100,000 where neighbors had cut down a tree straddling their property line.  The market value of the plaintiff’s property before the trees were cut was never established, but the value of the tree was accepted as $42,678.31, and $11,080 more would be required for installation and care of the tree following its planting.  Doubling of this award in compliance with statute, the damages came to over $100,000.  Despite the majority of the tree stump being on defendants’ property, the trial court did not reduce damages to account for this fact.  The appellate court affirmed, justifying the award as incorporating the unique characteristics of the tree (it was 70 feet tall) and its great “personal value” to the plaintiffs.

In another recent decision, a neighbor hired a laborer to remove portions (30%) of plaintiff’s cypress tree and the trial court held the neighbor had “drastically reduced the tree's aesthetics and compromised its ability to provide shade.”  Rony, supra, at 755.  The appellate court affirmed a trial court award of $7,530 in compensatory damages (the figure submitted by defendants) plus $15,000 in additional actual damages for "loss of aesthetics."  The award was then doubled pursuant to statute, resulting in a damages award of $45,060.

If you have questions regarding your property rights with respect to neighboring trees in Humboldt, Trinity, or Del Norte counties, attorneys at Janssen Malloy LLP are available for consultation.

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