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Shiel v. Rowell

Supreme Judicial Court of Massachusetts, Norfolk

July 16, 2018

MARY SHIEL
v.
JOHN ROWELL & another.[1]

          Heard: March 8, 2018.

         Civil action commenced in the Quincy Division of the District Court Department on July 24, 2015. A motion to dismiss was heard by Mark S. Coven, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          William F. Spallina for the plaintiff.

          Daniel S. Mclnnis for the defendants.

          Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          CYPHER, J.

         At the root of this case lies a distinctively neighborly type of dispute about who should have the responsibility for monitoring and cutting back an intruding tree. The defendants, Keli-Jo and John Rowell, [2] own the property adjacent to the plaintiff, Mary Shiel. On the Rowells' property sits a one hundred foot tall sugar oak tree with branches reaching over Shiel's property. Shiel filed a complaint with claims of private nuisance and trespass against the Rowells after the tree allegedly caused algae buildup on the roof of Shiel's home and the Rowells refused to cut it down. Shiel sought money damages for the damage to her roof and an injunction demanding that the overhanging branches be cut back.

         A District Court judge dismissed Shiel's claims as precluded by Ponte v. DaSilva, 388 Mass. 1008, 1008 (1983) (individual whose property is injured by neighbor's healthy tree has no cause of action against landowner of property upon which tree lies). The Appellate Division of the District Court affirmed, Shiel appealed, and we granted her application for direct appellate review. Shiel concedes that Ponte is controlling but asks that we overrule it and related cases. The Rowells urge us to ground our decision in stare decisis and not to disturb existing law. We affirm.

         Discussion.

         1. Massachusetts rule.

         The law in Massachusetts has long been that a landowner may not hold a neighbor liable for damage caused by that neighbor's healthy trees. See Ponte, 388 Mass. at 1008; Michalson v. Nutting, 275 Mass. 232, 232-233 (1931). See also Kurtigian v. Worcester, 348 Mass. 284, 290 (1965) (rule does not apply to unhealthy trees). In Michalson, supra at 232-233, roots from the defendants' poplar tree clogged the plaintiffs' sewer and drain pipes and cracked the plaintiffs' cement cellar, risking serious damage to the house's foundation. We concluded that the defendants could not be held liable for that damage because "an owner of land is at liberty to use his land, and all of it, to grow trees." Id. at 233, citing Bliss v. Ball, 99 Mass. 597, 598 (1868). We recognized that the plaintiffs had the right to cut off intruding boughs and roots and reasoned that "it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another's right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious." Michalson, supra at 234.

         We reaffirmed this rule in Ponte, where the plaintiff sought damages for personal injuries after slipping in her driveway, which was covered by debris from her neighbor's tree. Ponte, 388 Mass. at 1008 ("The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor's property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance"). Landowners who are disturbed by their neighbor's trees are not without recourse. A property owner retains "the right to remove so much of the tree as overhangs his property." Id., citing Michalson, ...


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