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The Roots of Dispute in Washington

Man cutting treeWhat are the most common sources of disputes between neighbors?  Children?  Noise?  Fences? Dogs?  Trees?  That’s the top five according to that important American sociological barometer, TV’s “Family Feud”.  Topic number five recently made it to the docket of Division I of the Washington State Court of Appeals.

In Mustoe v. Ma, No. 74166-7-1, Washington Court of Appeals, Div. I. (April 4, 2016), the Court addressed the issue of whether a landowner owes a neighbor a duty of care when digging up roots from the neighbor’s tree on the landowner’s own land.  Ms. Mustoe had two Douglas fir trees on her land that were damaged by a trench dug on the neighbors’ property, cutting encroaching roots from the Mustoe fir trees.  At no time did the neighbors dig beyond the boundaries of their own lot.  Ms. Mustoe brought an action for nuisance and damages against her neighbors, due to the damage to the trees.  The Court of Appeals declined to expand the obligations traditionally expected of one neighbor to another in this context, and affirmed the trial court’s dismissal of Ms. Mustoe’s claim.

In reviewing the rights and obligations of neighbors and their foliage, it is well recognized that a landowner has the right to cut tree limbs from neighbors’ plants that encroach on to a landowner’s property. Gostina v. Ryland, 116 Wash. 228, 232 (1921)  On the other hand, a neighbor may not enter on to the neighbor’s property without permission to cut or prune a tree, and may not reach over the fence to cut portions of a plant which are above the other party’s land.  Id.  Traditionally, each landowner is entitled to cut, prune and plant on one’s own property (with certain exceptions such as for “spite trees” blocking views).   The same rule has been applied below ground as above.

Ms. Mustoe asked for an expansion of the law, placing on a landowner the obligation to consider the effect of removal of some of the tree’s roots on the neighbor’s trees.  She cited a case where a neighbor failed to use due care to prevent fire from spreading from that party’s property to a neighbor.  Sandberg v. Cavanaugh Timber Co., 95 Wash. 556 (1917)  She also analogized to the “common enemy” doctrine with respect to surface water diversion.  A neighbor can “dispose of unwanted surface water in any way they see fit, without liability for resulting damage to one’s neighbor.”  But there is an exception in Washington that a neighbor is shielded only when she changes water flow, “in good faith and in such a way as not to cause unnecessary damage.” Currens v. Sleek, 138 Wn.2d, 858, 868 (1999).

However the forest fire and surface water are both more of a “force of nature” which can indiscriminately affect any landowner, as opposed to tree cultivation, which a landowner can control.  Trees can be planted close to a boundary or farther away.  In this case, the Douglas Firs were less than three feet from the boundary line.

Apparently Ms. Mustoe did not ask the Court to consider the law which prevents one party from digging on one’s own property in such a way which undermines a neighboring building.  In this case, digging up the roots weakened the tree’s support system.  That analogy fails, however, because buildings are not allowed to have their support systems encroach on their neighbors’ land without permission.  Trees are not so disciplined.

In any event, the Court’s decision is sound as a matter of public policy.  It is much easier to determine if you’re digging on your own property versus your neighbors, than the effect of a trench on your land on a neighbor’s tree.  Clear rules of behavior limit legal battles, which is a goal we should support.

Because the Court found that the trench-digging neighbor had no legal duty to consider the effect on the neighbor’s trees, there is no basis for a claim of negligence.  As the dates of the legal precedents indicate, neighbors battling about trees, plants and boundaries have persisted for a long time.  Hopefully this sensible decision can help trim the roots of further disagreements.

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