TNCR Brain Trust Question

[89th]

A bit of a ramble, but…

IT, as a neighbor and with the time that has passed, it might be worth one last personal conversation that states that it’s easiest if they take their own arborist quote and trim the tree. Otherwise you’ll regretfully be forced to get a judicial order of clarity with the law clearly on your side.

Also, trees grow. This problem will only get worse, and even after remedy, it’ll begin to return over the following decade or two.

Oh also, whether you or they trim the tree, I’d imagine it would take a long while for permanent damage to be done. Further, trees are really resilient so I doubt anything would happen for a while anyway.

Plus if they end up trimming, and don’t go all the way to the property line, you could finish the job and if down the road there is damage to the tree, it would be hard to prove direct responsibility.

In short. Talk to the neighbor, otherwise get a judge/lawyer to provide official clarity, then trim baby trim.

[Larry]

@ivorythumper said in TNCR Brain Trust Question:

@george-k said in TNCR Brain Trust Question:

@ivorythumper said in TNCR Brain Trust Question:

@jolly said in TNCR Brain Trust Question:

Is there anything growing underneath the tree and is the neighbor's backyard camera'd.

I'm not about to poison it, if that's what you're thinking.

Yeah, that would have some serious legal
exposure. Destroying neighbor's property?

Don't go there.

The law basically requires me to get a judgment compelling them to remedy.

I read of a case where the neighbor trimmed to the property line, but the tree then leaned back away from the property line, and the neighbor was sued for over trimming and trespass damage.

I don't know how that was settled but I don't need any exposure to risk.

So the plea to the court would be to compel the neighbor to remedy at their own expense and liability. If the tree dies, that's on them. If any damage happens, that's on them. If the tree cannot be pruned back to property line without risk or damage, and has to be removed, that's on them. The tree is just in the wrong place and has been for decades as soon as it started to trespass. The trespass is negligence which is continuous and always tortious.

So get the judge to say to them "you must remedy the trespass as you see fit, but you must remedy the trespass".

That's how I'm reading the law as the only safe way to proceed without further legal entanglement.

Let me give an example of the folly of interpreting the law yourself: you tell us the law regarding encroachment onto your property - but you also point out that this encroachment is decades old. In quite a few states, if you do not make a formal complaint within a set period of time, the law assumes that you accept said encroachment and you forfeit any claim of redress. In my state for instance, I think it's 7 years.

[jon-nyc]

I would absolutely get a lawyer involved right away.

[George K]

@larry said in TNCR Brain Trust Question:

if you do not make a formal complaint within a set period of time, the law assumes that you accept said encroachment and you forfeit any claim of redress

Fascinating.

[Improviso]

@larry said in TNCR Brain Trust Question:

the law assumes that you accept said encroachment and you forfeit any claim of redress. In my state for instance, I think it's 7 years.

I've heard of this before. There's a name for it but can't think of it right now.

It's the same premise if a neighbor builds something that crosses your property line, you realize it and do nothing about it. I think the time limit starts at the point you realize the trespass, not when the actual trespass occurred.

[Mik]

Adverse posession. It usually applies more to land than trees, and I doubt it would apply here since IT has only lived there a few years. But as Jon said, at least consult with an attorney.

[Jolly]

What happens if you wish to put a water faucet at the back of the yard for watering purposes? If the trench is dug close to the property line, roots will be cut (oak roots are fairly shallow).

[Ivorythumper]

@larry said in TNCR Brain Trust Question:

@ivorythumper said in TNCR Brain Trust Question:

@george-k said in TNCR Brain Trust Question:

@ivorythumper said in TNCR Brain Trust Question:

@jolly said in TNCR Brain Trust Question:

Is there anything growing underneath the tree and is the neighbor's backyard camera'd.

I'm not about to poison it, if that's what you're thinking.

Yeah, that would have some serious legal
exposure. Destroying neighbor's property?

Don't go there.

The law basically requires me to get a judgment compelling them to remedy.

I read of a case where the neighbor trimmed to the property line, but the tree then leaned back away from the property line, and the neighbor was sued for over trimming and trespass damage.

I don't know how that was settled but I don't need any exposure to risk.

So the plea to the court would be to compel the neighbor to remedy at their own expense and liability. If the tree dies, that's on them. If any damage happens, that's on them. If the tree cannot be pruned back to property line without risk or damage, and has to be removed, that's on them. The tree is just in the wrong place and has been for decades as soon as it started to trespass. The trespass is negligence which is continuous and always tortious.

So get the judge to say to them "you must remedy the trespass as you see fit, but you must remedy the trespass".

That's how I'm reading the law as the only safe way to proceed without further legal entanglement.

Let me give an example of the folly of interpreting the law yourself: you tell us the law regarding encroachment onto your property - but you also point out that this encroachment is decades old. In quite a few states, if you do not make a formal complaint within a set period of time, the law assumes that you accept said encroachment and you forfeit any claim of redress. In my state for instance, I think it's 7 years.

The case law, as determined by Pennsylvania Superior Court holds that trees are simple trespass and always manifest negligence, and that a trespassing tree has no settled claim to adverse possession or right of easement. This question is actually open, see the note below, but the finding seems to hold its anomalous and presents other difficulties. The trespass is continuing, and the landowner is always entitled to pursue a remedy against encroachment.

While states clearly have the right to set their own laws, the case law on these matters often seems to apply the solution of other jurisdictions, and is grounded in English common law of encroachment. Some states don't rely on common law tradition, but on statutes. I'd think if you're in one of the original colonies the common law would serve as the basis, but that's just a guess. It's interesting that self remedy is always available, but in some jurisdictions that tree trespass is not actionable, and self help is the only remedy -- the "Massachusetts Rule" -- while other jurisdictions require sensible or substantial damage to be actionable.

Fortunately, in PA I appear to be on very firm ground with Wagner V Jones, if other jurisdictions see it differently. I won't take this on myself, but will use an attorney because I just don't need the agita.

[Ivorythumper]

@larry said in TNCR Brain Trust Question:

@axtremus said in TNCR Brain Trust Question:

@Ivorythumper , retain a lawyer to get you a the court order that compels your neighbor to remedy the trespass. Go straight to the court rather than responding to the neighbor's lawyer. Good luck.

You can't "go straight to the court" unless you opt to be your own attorney. And as the saying goes, "a man who is his own attorney has a fool for a client". And if you do retain a lawyer, he is obligated to discuss the case with the opposing attorney and try to settle the matter out of court.

PA has a Court of Common Pleas for this sort of action without necessitating lawyers. I would rather the lawyers just agreed to have the tree trimmed to compliance with the property line -- that is the only settlement worth getting as the tree is certain to grow back over time. If the neighbors don't agree, then it proceeds to court. Otherwise I'm trying to negotiate for something that is in no way in my interest to negotiate. Now if they want to give me $50,000 to let their tree grow over my property for the next 10 years, I'm happy to lease them the air rights... since they value it so much.

[Ivorythumper]

@89th said in TNCR Brain Trust Question:

A bit of a ramble, but…

IT, as a neighbor and with the time that has passed, it might be worth one last personal conversation that states that it’s easiest if they take their own arborist quote and trim the tree. Otherwise you’ll regretfully be forced to get a judicial order of clarity with the law clearly on your side.

Also, trees grow. This problem will only get worse, and even after remedy, it’ll begin to return over the following decade or two.

Oh also, whether you or they trim the tree, I’d imagine it would take a long while for permanent damage to be done. Further, trees are really resilient so I doubt anything would happen for a while anyway.

Plus if they end up trimming, and don’t go all the way to the property line, you could finish the job and if down the road there is damage to the tree, it would be hard to prove direct responsibility.

In short. Talk to the neighbor, otherwise get a judge/lawyer to provide official clarity, then trim baby trim.

That's my generally irenic approach. I'd rather talk them, but they brought in a lawyer to talk for them. So I don't want to put anything in writing, or even say anything that they might use to contest or to negotiate. They and their lawyer) have already made threats of liability, which I can and will use if necessary, but it seems better to just argue on the points of law and keep the personal acrimony out of it.

Look at the image above -- 40% of the canopy will be removed to remedy the trespass. I would not go to court asking for a partial remedy to trespass, that would be ridiculous and open the door to protracted negotiation over something I don't want at all.

The removal will kill the tree over time, or make it unstable and hazardous. So it has to come down. But I will not get them to agree to just remove the tree -- they have too much emotionally invested in this already.

I don't see the neighborly approach as anything but messier and more aggro.

[Ivorythumper]

@improviso said in TNCR Brain Trust Question:

@larry said in TNCR Brain Trust Question:

the law assumes that you accept said encroachment and you forfeit any claim of redress. In my state for instance, I think it's 7 years.

I've heard of this before. There's a name for it but can't think of it right now.

It's the same premise if a neighbor builds something that crosses your property line, you realize it and do nothing about it. I think the time limit starts at the point you realize the trespass, not when the actual trespass occurred.

As Mik noted, adverse possession. Adverse possession, or claim of prescriptive easement by statute of limitations (21 years in PA), has not been determined for trees, but the PA case cites a case in Kansas where prescriptive rights don't apply to air space, hence presumably not tree limbs. But the case law finds it ambiguous and unsettled. If they contest it on those grounds, then it might well find its way up through the courts...

"Id.;[3]see, Sustrik v. Jones and Laughlin Steel Corp., 413 Pa. 324, 197 A.2d 44 (1964). We are convinced that Pennsylvania law, as embodied in the Restatement, entitles a landowner to protect his property interest by maintaining an action to compel a person who has caused a trespass to remove it. It is not suggested anywhere that a showing of harm is a prerequisite to recovering in trespass. A landowner in this Commonwealth *112 may avail himself of every available remedial avenue in an effort to protect the incidents of land ownership. Anything less, in our view, is a travesty."

the [3] note refers to the following, which presents the ambiguity:

"This comment contains a qualification. The Restatement notes that a continuing trespass is not a trespass at all if the actor causing the trespass has obtained an easement by adverse possession. Restatement (Second) of Torts § 161, comment d. We cannot help but wonder whether the continued presence of encroaching tree branches, held openly, notoriously, hostilely, and continually for 21 years would create a prescriptive easement in the airspace which they hang. If this would be the case, and we can find no Pennsylvania law which would indicate that a prescriptive easement is not available in this situation, a landowner who suffers actual harm for the first time during the tree owner's twenty-second year of hostile ownership, might very well be precluded from seeking a judicial, or even self-help, remedy. This result, while not entirely unforeseeable, is anomalous. However, if an action is available without a showing of damage, the landowner has no reason to complain if a neighbor's tree causes damage after the prescriptive period has run. See, contra, Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (1985) (holding that airspace is generally not subject to prescriptive rights)."

[Ivorythumper]

This post is deleted!

[Ivorythumper]

@jolly said in TNCR Brain Trust Question:

What happens if you wish to put a water faucet at the back of the yard for watering purposes? If the trench is dug close to the property line, roots will be cut (oak roots are fairly shallow).

There are a lot of lawsuits evidently for root damage, or for harming neighboring trees while doing work on one's own property. Me$$$$y business even if you win.

[89th]

@ivorythumper said in TNCR Brain Trust Question:

I don't see the neighborly approach as anything but messier and more aggro.

Yeah I think you're right, although I do chuckle at the thought of you bringing in a lawyer... at this point, I think you'd be educating them about what your rights are, ha.

[Larry]

3 career types I try to never give help to - doctors, lawyers, and architects. Particularly lawyers. But as a rule, all 3 groups tend to be made up of people who think they're the smartest guy in the room. If they ask you advice, which rarely happens.... they end up "proving" that they're already more informed than anyone else and don't need any advice. And most of them end up shitting and falling back in it.

My advice is to get a lawyer. Or just go trim the damned tree. I don't give a shit one way or the other.

[Klaus]

@larry said in TNCR Brain Trust Question:

If they ask you advice, which rarely happens.... they end up "proving" that they're already more informed than anyone else and don't need any advice.

There are some notable exceptions, such as KathyK and JF from WTF. I don't know if you ever got in touch with them; they are quite nice.

[Larry]

@klaus said in TNCR Brain Trust Question:

@larry said in TNCR Brain Trust Question:

If they ask you advice, which rarely happens.... they end up "proving" that they're already more informed than anyone else and don't need any advice.

There are some notable exceptions, such as KathyK and JF from WTF. I don't know if you ever got in touch with them; they are quite nice.

I dont have a problem with IT at all. I was not commenting on him personally, but on this discussion. So there was no need to throw those 2 useless sacks of meat into the fray.

[jon-nyc]

Lol Klaus

[Klaus]

@larry said in TNCR Brain Trust Question:

@klaus said in TNCR Brain Trust Question:

@larry said in TNCR Brain Trust Question:

If they ask you advice, which rarely happens.... they end up "proving" that they're already more informed than anyone else and don't need any advice.

There are some notable exceptions, such as KathyK and JF from WTF. I don't know if you ever got in touch with them; they are quite nice.

I dont have a problem with IT at all. I was not commenting on him personally, but on this discussion. So there was no need to throw those 2 useless sacks of meat into the fray.

I know; I merely wanted to point out by means of two examples that not all lawyers are like that. So you do know them?

[Ivorythumper]

@mik said in TNCR Brain Trust Question:

Adverse posession. It usually applies more to land than trees, and I doubt it would apply here since IT has only lived there a few years. But as Jon said, at least consult with an attorney.

Based on these concerns, I googled "tree trespass" "adverse possession" "prescriptive easement" "Pennsylvania.

A Pennsylvania court case in 2004 (Koresko v Farley) expressly adopt that a tree trespass creates no claim to adverse possession or easement rights. It is exactly what I had hoped would be resolved, which was left open in Jones v Wagner.

"Encroaching tree parts, by themselves, do not establish “open and notorious” use of the land.   Neither roots below ground nor branches above ground fairly notify an owner of a claim for use at the surface.   In the absence of additional circumstances, such as use of the ground for maintenance or collection of leaves or fruit, roots and branches alone do not alert an owner that his exclusive dominion of the ground is challenged.   This conclusion is analogous to our Supreme Court's decision that the known presence of windows near a lot line does not create a prescriptive easement for light and air.   Maioriello v. Arlotta, 364 Pa. 557, 73 A.2d 374 (1950).   Indeed, such an easement cannot be created by prescription.  Id.

Jones, upon which Neighbors rely, does not hold otherwise.   The Court in Jones actually held that encroaching tree limbs are a trespass which a property owner may remove.   Dictum in a footnote does not recognize an encroaching tree part prescriptive easement.   Rather, the court concedes that no prior Pennsylvania case addresses the issue.   In any event, the dictum is not precedential.

In Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (1985) the Court of Appeals of Kansas held an easement by prescription cannot be acquired by overhanging tree branches.   Writing for the Court, Chief Judge Abbott noted that defendants could not make the tree safe because the work would have to be done in the plaintiffs airspace.  Id. at 768.   Defendants have no right to go on plaintiffs property to do that work for the same reasons plaintiffs have no right to go on defendants property to trim or cut down the tree.  Id. The Court concluded with a statement so clear, simple and true as to convince us of its wisdom:

The result reached here will be distasteful to all who treasure trees.   The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each owners rights insofar as that is possible.   Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.

Id. We agree with the reasoning and holding in Pierce, and we expressly adopt it in Pennsylvania."

FYI, the original case is Jones v Wagner (1993) which you might appreciate. I enjoyed reading it, as it is a sort of crash course in legal reasoning for us lay people who are not professionally involved. The complexities, technical precision, and amount of research involved show why a lawyer is worth their wages.

This is all being bundled into my letter to our attorney, and we'll let him handle their attorney who can handle the neighbors.

Thanks to all in the TNCR-BT who responded with some very good insights, concerns, and advice!