Relating to Real Estate

We are often asked: What happens if a tree falls in Maryland? Or, what can you do when branches or roots of a tree growing on your neighbor’s property encroach onto your property and cause you damage?

A Victim of Encroaching Vegetation May Cut it Back, But That is the Only Remedy

In Melnick v. C.S.X. Corp., et al., 312 Md. 511, 540 A.2d 1133 (1988), the Maryland Court of Appeals held that a landowner does not have a cause of action against an adjoining landowner when trees, vines, roots and other plants or plant debris from the adjoiner’s property encroach upon and cause damage to the landowner’s property. Instead, the landowner is limited to the self-help remedy of cutting encroaching branches, vines and roots back to the property line without the right to reimbursement from the adjoining landowner for any damages and without the right to compel removal of the offending tree or plant.

Jonathan Melnick owned the property at 900-920 E. 25th Street in Baltimore City, which is adjacent to a Baltimore and Ohio Railroad right of way. Melnick’s property suffered clogged drains, standing water, roof deterioration and water damage because leaves and limbs from trees on the railroad property fell onto the Melnick property and other vegetation rooted on the railroad property grew on the Melnick property. Melnick sued the railroad in the Circuit Court for Baltimore City under theories of trespass, negligence and nuisance.

The railroad moved for summary judgment, arguing that it had no duty to prevent harm to the Melnick property. The circuit court granted the railroad’s motion for summary judgment and held that Melnick’s sole remedy was self-help. That decision was affirmed on appeal by the Court of Special Appeals and also by the Court of Appeals.

In reaching its decision, the Court of Appeals found that courts across the country uniformly provide that landowners may cut tree branches, vines and roots growing from their neighbors’ properties back to the property lines. Landowners, however, may not enter onto the property of the adjoining landowners to do this without consent.

From the several theories that have been developed on this subject, the three Maryland courts involved in the Melnick decision adopted the “Massachusetts Rule,” which limits the remedy of the landowner who is harmed to self-help in almost all circumstances.

The Massachusetts Rule has not been universally accepted. In contrast, § 840 of the Restatement (Second) of Torts (1977) imposes a duty on a landowner to abate the condition when the encroaching vegetation is “artificial” — that is, when it is a result of human activity — but not when it is “natural.” The Maryland Court of Appeals noted that only a minority of other courts have applied the Restatement rule because of the difficulty in determining whether a tree or its growth may be as a result of human activity. Under the “Virginia Rule” liability would exist if a tree or plant is “noxious,” but liability would be limited to self-help if the tree or plant is not noxious. The “Hawaiian Rule,” for which Melnick argued, would impose liability for damages caused “other than by casting shade or dropping leaves, flowers or fruit.” In Melnick, the Maryland Court of Appeals rejected these other rules.

The Court of Appeals in Melnick held that the Massachusetts Rule should be followed because any other rule “might spawn innumerable and vexatious lawsuits.” Judge John Eldridge wrote for the Court, “We have gotten along very well in Maryland, for over 350 years, without authorizing legal actions of this type by neighbor against neighbor.” Furthermore, the Court declined to categorize living trees, plants, roots, or vines as a nuisance, which must be abated.

In the final footnote of the Melnick case, the Court of Appeals acknowledged that there may be a limit to the Massachusetts Rule for dangerous dead trees and that under certain circumstances a landowner on whose property a dead tree stands may need to take reasonable steps to prevent injury to others.

Whether the Owner of a Tree that Falls is Liable May Depend on Where the Tree Was Located

Melnick primarily dealt with branches and roots of living, growing trees and vegetation. Two cases in Maryland in the last 40 years have discussed liability for falling limbs or branches from dead or dying trees.

Hensley v. Montgomery County, 25 Md. App. 361, 334 A.2d 542 (1975), cert. denied Hensley v. Mazza, 275 Md. 750 (1975) and cert. denied Hensley v. Montgomery County, 275 Md. 750 (1975), involved a man who was hurt while driving to work when a limb of a large dead tree fell onto his car. At the conclusion of the presentation of the plaintiff’s case, the circuit court directed a verdict against him. On appeal, the Court of Special Appeals affirmed.

The Court of Special Appeals noted that “[t]o impose a liability upon the landowner, [Hensley] must have shown not only that the tree constituted a danger to the lawful users of the abutting public road, but that the owner of the land upon which it stood was cognizant of the deteriorated condition of the tree or should have been cognizant of its condition.” The evidence showed that neither the landowner nor Montgomery County had actual notice before the accident that the tree that fell constituted a danger to anyone.

In the absence of actual knowledge by the defendants, the court considered whether the landowner had the duty to periodically inspect the trees that border roadways. The basic rule is the “rural rule”: landowners in rural areas do not have such a duty because of the practical difficulty of constantly inspecting trees in forests that abut roads. An exception is the “urban rule,” which is that in an urban setting, a landowner does have the obligation to know about the condition of the (few) trees on the landowner’s own property.

Hensley argued that the scene of the accident was more developed than a rural area and that the tree fell from a “suburban forest,” which would have imposed a higher duty on the landowner than under the rural rule. However, the Court of Special Appeals found that the accident in Hensley did not occur in a “suburban” setting, based on the size and type of the road on which Hensley rode and the amount of traffic on it. Because the road where the accident in Hensley occurred was gravel and there was only modest usage of the road, the Court of Special Appeals held that it was appropriate to apply the rural rule to the facts in that case. It, therefore, affirmed that the landowner had no obligation to inspect and that she had no liability from the tree that fell from her property.

In Bookhultz v. Maryland Midland Railway, Inc., 688 F.Supp. 1061 (D. Md. 1988), U.S. District Court Judge Frederic Smalkin considered the damage claim of John Bookhultz, who was struck by part of a dead tree while riding in an open gondola car of a train owned and operated by Maryland Midland Railway, Inc. Bookhultz sued the railway, which then filed a third-party complaint for indemnity and contribution against the Horners, who owned the property that abutted the track. The Horners moved for summary judgment on the third party complaint, and the published opinion addressed that motion.

Judge Smalkin cited Hensley for the proposition that “an owner of rural or suburban forest land is not liable for damage done by dead tree limbs falling onto the property or persons of others unless the tree constitutes a danger to lawful users of abutting public roads and the owner is aware or should be aware of the tree’s deteriorated condition. Essentially, even for decaying or dead trees, a landowner is not liable if [a] he has no notice of his tree’s propensity for harm and [b] his tree is rural or suburban/rural [in contrast to an urban tree].” Judge Smalkin noted that urban tree owners are deemed to have constructive notice of dead or decayed trees, but that the duty on urban dwellers is an exception to the general rule that a rural landowner does not have the duty to inspect for dangerous trees.

In light of the rural nature of their property (the Horners’ property comprised approximately 10 acres, eight of which were in a wooded, natural state), Judge Smalkin held that the Horners did not have a duty to inspect for dead or dying trees adjacent to the railroad track, and that it would be unreasonable to impose such a duty on them. Therefore, he issued an order granting the Horners’ motion for summary judgment against the railway on the third party complaint.

Maryland and Virginia Cases Differ

The Supreme Court of Virginia has recently reached results that are different from what the Maryland cases would suggest. In Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519 (2007), the Supreme Court of Virginia overruled the 1939 case that established the “Virginia Rule,” which imposed liability if, but only if, a tree or plant was “noxious.” In Fancher, that court found that roots and branches of a sweet gum tree growing from the property of an adjoiner are a nuisance where they cause actual harm or the imminent danger of actual harm, and that forced removal of the tree was a possible remedy.

In Cline v. Dunlora South, LLC, 284 Va. 102, 726 S.E.2d 14 (2012), the Supreme Court of Virginia held that the owner of property within the City of Charlottesville from which a tree fell and crushed a passing car, causing permanent injuries to the driver, had no liability to the driver. This was so even though, according to the complaint, the setting was an urban environment, the tree had exhibited visible and open signs of decay for years, and the landowner should have known of the hazard created.

Conclusion

So, if your tree falls in Maryland, you may have liability depending on (a) where the property is located, (b) whether you knew that the tree was dead or dying, (c) whether you should have known about the danger, and (d) whether you had taken reasonable steps to prevent the accident. If vegetation grows from your property to your neighbor’s and causes harm to the neighbor’s property, the neighbor may cut back all growth to the property line, but the neighbor may not enter your property without your consent, may not require you to remove the offending plant, and may not recover monetary damages.

And who should pay for the cost of the removal of a fallen tree? From a reading of the cases cited above, the default answer would seem to be that each of the property owners should bear the cost of removal of the portion of the tree that ends up on that owner’s property. However, the city-dwelling neighbor of the tree owner might argue (i) that the owner of the tree knew or should have known that the tree was dead or dying and likely to fall, (ii) that under the “urban rule” the owner of land in a developed area is liable for damages caused by falling trees, (iii) that the tree owner should have had the tree removed or at least attended to before it fell (at the expense of the tree owner), and (iv) that the owner of the tree should, therefore, pay all costs of removal after it fell.

We still do not know whether it matters if anyone heard the tree fall.

For more information, contact Edward J. Levin.

Ed Levin
410-576-1900 • elevin@gfrlaw.com

An earlier version of this article was published in The Daily Record on July 24, 2014.