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113
The Definitive Guide to Tree Disputes in California
Ellis Raskin*
I. INTRODUCTION
II. B
OUNDARY DISPUTES AND ENCROACHMENTS
A. Determining Tree Ownership
B. Overhanging Branches
C. Encroaching Roots
III. O
BSTRUCTIONS OF LIGHT AND AIR
IV. C
ALCULATING DAMAGES FOR TORTIOUS HARM TO TREES
V. M
UNICIPAL ORDINANCES REGULATING TREE GROWTH
A. Challenges to Municipal Tree Ordinances
B. Duties and Obligations when Caring for Trees Planted by a
Municipality
VI. P
OLICY RECOMMENDATIONS
VII. C
ONCLUSIONS
I. Introduction
Every naturalist knows that trees are a critical part of the fabric of
many American urban and suburban ecosystems. The American ethos has
been shaped by a love for trees and forests and our forests have played an
essential role in the growth and success of America.
1
The true cost of tree disputes is best measured by the fact that at least
four people have been killed over the last two years in tree-related property
disputes. In March 2012, a neighbor shot and killed Dennis E. Liller of
Given our communal
affinity for trees, it is no surprise that property disputes involving trees are
common. All across this country, neighbors fight to let trees grow, to cut
trees down, or simply to decide who owns the trees in the first place. These
disputes are messy, costly, annoying, and can even turn deadly.
* J.D. Candidate, University of California, Hastings College of the Law, 2015; B.A.,
Occidental College, 2010. I would like to thank Professor Nathan Scheg for his
invaluable guidance, the staff of West-Northwest for their hard work, and my friends
and family for their love and support.
1. E
RIC RUTKOW, AMERICAN CANOPY: TREES, FORESTS, AND THE MAKING OF A NATION 5–
9 (2012).
West Northwest, Vol. 21, No. 1, Winter 2015
114
Maryland in a dispute over who owned three trees.
2
One year later, in March
2013, Emmy Award-winning film director John Upton was shot during a
dispute when his neighbor attempted to cut down trees that provided shade
to Upton’s property.
3
One month later, Gary Stocks and Daniel Kirchner of
North Carolina were killed in an alleged tree dispute between neighbors.
4
Even though most tree disputes do not end with bloodshed, tree
battles can be extraordinarily costly. DreamWorks co-founder David Geffen
won a landmark $1.2 million Superior Court verdict in 1995 when a neighbor
cut down eight pines and four eucalyptus trees that were on Geffen’s
property.
5
In another extreme case, software magnate Larry Ellison offered
$15 million to buy the property of his downhill neighbors so that he could
cut down trees that blocked his views of the San Francisco Bay.
6
Ellison and
his neighbors ultimately signed an undisclosed settlement, and the downhill
neighbors agreed to remove the trees.
7
These stories are not unique—Californians have been fighting about
trees since the dawn of statehood.
8
2. Peter Hermann, Neighbor Kills Neighbor in Dispute Over Trees, THE BALTIMORE SUN,
Mar. 29, 2012, http://articles.baltimoresun.com/2012-03-29/news/bal-neighbor-kills-
neighbor-in-dispute-over-trees-20120329_1_trees-dispute-neighbor.
However, tree law in California has
3. Tony Perry, Director John Upton Killed by Neighbor During Dispute, Police Say, L.A.
TIMES, Mar. 30, 2013, http://articles.latimes.com/2013/mar/30/local/la-me-ln-director-
john-upton-shot-by-neighbor-during-dispute-police-say-20130330; see also Frank
Elaridi et al., Family, Friends Search for Answers in Neighborly Dispute that Ended in Death,
ABC
NEWS, Sept. 19, 2013, http://abcnews.go.com/US/family-friends-search-answers-
neighborly-dispute-ended-death/story?id=20306848.
4. Man Reportedly Kills Neighbors After Dispute Over Trees In Yard, CBS
CHARLOTTE,
Apr. 2, 2013, http://charlotte.cbslocal.com/2013/04/02/man-reportedly-kills-eighbors-
after-dispute-over-trees-in-yard/.
5. Bob Pool, City Smart/How to Thrive in the Urban Environment of Southern California,
L.A.
TIMES, Nov. 24, 1995, http://articles.latimes.com/1995-11-24/local/me-
6652_1_tree-law.
6. Jim Carlton, Lots of Green Is at Stake in This San Francisco Spat: Oracle’s Larry
Ellison Views Less of the Bay, So He Hires a Tree Attorney, W
ALL ST. J., May 28, 2011,
http://online.wsj.com/articles/SB10001424052702303654804576343763766328484.
7. Matt Hickman, Billionaire Magnate Larry Ellison Settles With Neighbors in Bizarre
Tree Lawsuit, F
ORBES, June 2, 2011, http://www.forbes.com/sites/
economics/ 2011/06/02/billionaire-magnate-larry-ellison-settles-with-neighbors-in-
bizarre-tree-lawsuit/.
8. See, e.g., Buckelew v. Estell, 5 Cal. 108, 108 (1855) (upholding an injunction
to stop a neighbor from cutting down trees involved in a boundary dispute); see also
Chipman v. Emeric, 3 Cal. 273, 275 (1853) (involving a claim that the defendant cut
down five hundred oak trees that belonged to the plaintiff).
West Northwest, Vol. 21, No. 1, Winter 2015
115
undergone a radical transformation in the last decade.
9
Property owners
used to have broad ranging rights to remove encroaching trees or trees that
obstructed views, but California law now requires property owners to take
extreme precautions before relying on self-help to resolve tree disputes.
10
Additionally, municipalities now have broad ranging power to dictate how
property owners should care for and maintain trees located on private
property.
11
The primary goals of this note are to provide a summary of current
trends in tree law in California and serve as a resource for practitioners who
are currently engaged in tree disputes. This note will provide a summary of
California laws on tree encroachments, obstructions, and municipal
ordinances that regulate tree growth. Although every tree dispute is unique,
this note will provide general guidelines for how tree disputes can be
resolved successfully in California.
Another goal of this note is to provide policy recommendations for the
future development of tree law in California. Ninety-five percent of
Californians live in urban areas
12
and municipalities are committed to
developing vibrant urban forests.
13
9. Compare Bonde v. Bishop, 245 P.2d 617, 621 (Cal. Ct. App. 1952), with Booska
v. Patel, 30 Cal. Rptr. 2d 241, 244–45 (Cal. Ct. App. 1994). See also Rony v. Costa, 148
Cal. Rptr. 3d 642, 647
–48 (Cal. Ct. App. 2012).
Consequently, courts and lawmakers
should encourage property owners to be responsible stewards of trees they
care for to prevent potential injuries to neighbors and to their communities.
Additionally, courts and lawmakers should encourage municipalities to take
a proactive role in regulating the growth and development of privately
owned trees in urban environments. The best way to achieve these goals is
for local communities and municipalities to utilize adaptive co-management
strategies when balancing public and private interests to ensure sustainable
growth for urban forests. Our laws should encourage respect for trees and
10. Booska, 30 Cal. Rptr. 2d at 244–45 (internal citations omitted); see also
Sprecher v. Adamson Cos., 636 P.2d 1121, 1128 (Cal. 1981) (holding individuals have
a duty to act reasonably when managing property if injury to others is foreseeable).
11. See, e.g., Echevarrieta v. City of Rancho Palos Verdes, 103 Cal. Rptr. 2d 165,
174 (Cal. Ct. App. 2001) (affirming a “view protection ordinance” that forced property
owners to cut back the height of trees located on private property).
12. Growth in Urban Population Outpaces Rest of Nation, Census Bureau Reports, U.S.
CENSUS BUREAU (Mar. 26, 2012), https://www.census.gov/newsroom/
releases/archives/2010_census/cb12-50.html (“Of the 50 states, California [is] the
most urban, with nearly 95 percent of its population residing within urban areas.”).
13. See, e.g., San Francisco Urban Forest Plan: Phase One, Street Trees (Jan. 2014), S
AN
FRANCISCO PLANNING DEP’T, http://www.sf-planning.org/ftp/files/plans-and-programs/
planning-for-the-city/urban-forest-plan/Urban_Forest_Plan_Draft-01-15-14.pdf.
West Northwest, Vol. 21, No. 1, Winter 2015
116
should provide incentives for private citizens to support the health of urban
forests.
II. Boundary Disputes and Encroachments
The stereotypical tree dispute is a case of nuisance, where branches or
roots from one neighbor’s tree extend into another neighbor’s property.
While researching this note, dozens of friends and colleagues shared stories
of problems they have had with neighbors and how they wished they could
cut off offending branches. They all asked the same question: could they cut
off the branches without incurring liability? The short answer is no.
Although California courts once recognized an absolute right to cut off
encroaching branches, property owners can now be held liable for harming
their neighbor’s tree, even if they only cut the part of the tree that extends
onto their own property.
14
A. Determining Tree Ownership
But before property owners can take action to
resolve disputes, they must first determine who actually owns the offending
tree.
In California, trees belong exclusively to the owner of land where the
trunk of the tree is located, even if the tree’s roots or branches extend into
another person’s property.
15
However, to the extent that they grow into or
above a neighbor’s property, encroaching branches and roots belong to the
individual upon whose land they encroach.
16
If a tree’s trunk is located on a
boundary line, where the trunk is located partly on the land of two or more
coterminous owners, the tree belongs to all of them in common.
17
If a tree
splits into two trunks, with one trunk growing on one side of the property
line and another trunk growing on the other side of the property line, the
entire tree belongs to both neighbors in common as long as the point at
which the tree grows out of the ground lies on both sides of a property line.
18
Even if the neighbors construct a fence or boundary over the middle of the
tree, the entire tree still belongs to both neighbors in common.
19
When awarding damages for harm to trees that are co-owned by
neighbors, courts may prorate damages according to a co-owner’s
14. Booska, 30 Cal. Rptr. 2d at 244–45.
15. C
AL. CIV. CODE § 833 (2013).
16. See infra Part II.B (discussing overhanging branches).
17. C
AL. CIV. CODE § 834 (2013); see also Scarborough v. Woodill, 93 P. 383, 384
(Cal. Ct. App. 1907) (referring to such trees as “line trees”).
18. Kallis v. Sones, 146 Cal. Rptr. 3d 419, 420–22 (Cal. Ct. App. 2012).
19. Id. at 420
–22.
West Northwest, Vol. 21, No. 1, Winter 2015
117
proportional interest in a tree.
20
Additionally, co-owners of trees that grow
on boundary lines can obtain injunctive relief to prevent other co-owners
from harming the tree.
21
In fact, courts have granted injunctions to protect
trees growing on boundary lines when the trees serve as a shelter or
windbreak for one owner, even though the presence of the trees damages
the land of other co-owners.
22
In addition to trees that are physically located within the boundaries of
the land they own, property owners maintain a “qualified” or “limited”
interest in trees that grow in a public right of way in front of privately owned
land.
Generally, if there is any dispute over the
ownership of a tree, property owners should contact a surveyor to determine
where the tree is located in relation to property boundaries.
23
However, this interest is subordinate to the rights of municipalities
to “trim or remove them whenever the public interests require such action.”
24
These rights are also subordinate to other private easements in or along the
public right of way, such as sidewalks and driveways.
25
Nevertheless,
property owners do have the right to sue for harm caused to trees situated in
front of their property.
26
B. Overhanging Branches
When the trunk of a tree grows entirely on one side of a property line,
but the branches cross over the boundary line and into the property of
another, the portion of the branches that cross over the boundary line
belong to the individual who owns the property upon which the branches
encroach.
27
20. See infra Section IV.
In the past, property owners had an “absolute right” to utilize
21. Anderson v. Weiland, 55 P.2d 1242, 1242–43 (Cal. Ct. App. 1936).
22. Scarborough, 93 P. at 383
–84.
23. Altpeter v. Postal Telegraph-Cable Co., 164 P. 35, 36–37 (Cal. Ct. App.
1917); see CAL. CIV. CODE § 831 (2013) (“An owner of land bounded by a road or street
is presumed to own to the center of the way, but the contrary may be shown.”); see
also infra Section V.B (regarding care for publically owned trees).
24. Altpeter, 164 P. at 36
–37.
25. Id. at 36.
26. Id. (“[I]f a person injures such trees without lawful right or authority, such
owner may maintain an action for damages for the injury so inflicted and recover
such damages as he may be able to show that he has suffered by reason of any
depreciation in the value of his property which has been occasioned by such
injury . . . .”).
27. Grandona v. Lovdal, 21 P. 366, 368
–69 (Cal. 1889); see also CAL. CIV. CODE
§ 829 (2013) (“The owner of land in fee has the right to the surface and to everything
permanently situated beneath or above it.”).
West Northwest, Vol. 21, No. 1, Winter 2015
118
self-help to cut off encroaching branches.
28
A property owner could “take the
law into [their] own hands” and cut off encroaching branches on their own,
as long as they did not trespass across their neighbor’s boundary line or cut
off any part of the tree that was located on their neighbor’s property.
29
The
antecedents of these rules are derived from English Common Law
30
and “as
a matter of historic tradition, courts have simply treated trees growing on or
near borders as unique conditions and provided adjoining landowners with
absolute protection from damage that arises from their natural
encroachment.”
31
However, this “absolute right” is no longer recognized in California.
32
Instead, the right to cut encroaching branches is constrained by a duty to act
reasonably.
33
Individuals who cut encroaching branches may now be liable
for causing foreseeable injuries to the health, aesthetics, or functionality of
the tree they cut.
34
If the branches are a nuisance, then property owners can
go to court to ask for an injunction,
35
28. Bonde, 245 P.2d at 621 (Cal. Ct. App. 1952); see also Grandona, 21 P. at 368–69
(holding that a property owner may cut off encroaching branches “at his pleasure”).
but property owners cannot
unilaterally cut off encroaching branches without assessing whether the
29. Bonde, 245 P.2d at 620; Grandona, 11 P. at 624 (“[H]e may not cut down the
tree, neither can he cut the branches thereof beyond the extent to which they
overhang his soil.” (citations omitted)).
30. Glenn A. McLeary, The Possessor’s Responsibilities as to Trees, 29 MO. L. REV. 159,
162
–66 (1964).
31. Lussier v. San Lorenzo Valley Water Dist., 253 Cal. Rptr. 470, 474 n.5 (Cal.
Ct. App. 1988).
32. Booska v. Patel, 30 Cal. Rptr. 2d 241, 244
–45 (Cal. Ct. App. 1994).
33. Id. at 245 (citing Sprecher v. Adamson Cos., 636 P.2d 1121, 1128 (Cal.
1981)); see also WILLIAM LLOYD PROSSER & W. PAGE KEETON, TORTS § 57 (5th ed. 1984)
(explaining that property owners must not cause “unreasonable risks of harm to
others in the vicinity”); see also 2 C.J.S. A
DJOINING LANDOWNERS § 23 (2013) (“Each owner
of adjoining land may trim on his or her own side trees and plants standing on the
boundary line provided he or she does so without unreasonable injury to the interest
of his or her neighbor . . . . However, the rule is qualified by the right of an abutting
owner to use its realty in a reasonable way.”).
34. Booska, 30 Cal. Rptr. 2d at 244
–45 (citing Parks v. Atwood Crop Dusters,
Inc., 257 P.2d 653, 655–56 (Cal. Ct. App. 1953)); Rony v. Costa, 148 Cal. Rptr. 3d 642,
647
–48 (Cal. Ct. App. 2012) (citing Heninger v. Dunn, 162 Cal. Rptr. 104, 108–09 (Cal.
Ct. App. 1980)); see also CAL. CIV. CODE § 3502 (2013) (“A person injured by a private
nuisance may abate it by removing, or, if necessary, destroying the thing which
constitutes the nuisance, without committing a breach of the peace, or doing unnecessary
injury.” (emphasis added)).
35. See Bonde, 245 P.2d at 621.
West Northwest, Vol. 21, No. 1, Winter 2015
119
cutting will harm the rest of the tree on the other side of the fence.
Consequently, property owners should exercise extreme caution before
cutting off any encroaching branches to make sure they are not liable for any
harm to their neighbors’ trees.
In some circumstances, property owners may be able to also pursue
civil action to force neighbors to cut off encroaching branches.
36
If
encroaching branches constitute a nuisance, injunctive relief may be
available to abate the nuisance.
37
In fact, in cases where encroaching
branches do constitute a nuisance, courts recommend that injunctive relief is
a preferable and “more orderly” remedy than self-help.
38
However, in
situations where encroaching branches do not constitute a nuisance,
injunctive relief is not available to abate the encroachment.
39
In general, anything that “interfere[s] with the comfortable enjoyment
of life or property” is a nuisance.
40
California courts have interpreted this
provision narrowly when examining whether tree branches constitute a
nuisance. Consequently, encroaching branches only constitute a nuisance
when they injuriously affect the health, safety, or property of another—the
mere encroachment of branches into a neighbor’s airspace is not, ipso facto, a
nuisance.
41
Furthermore, the branches will only constitute a nuisance if the
encroachment interferes with economic interests that exist at the time of the
encroachment.
42
In most circumstances, falling leaves and branches will constitute a
nuisance.
Encroaching branches that interfere with future or
prospective interests are not likely to constitute a nuisance.
43
Courts have found that leaves and branches that fall off
encroaching trees can constitute a nuisance when this debris clogs storm
drains and litters a neighbor’s property.
44
36. Booska, 30 Cal. Rptr. 2d at 244–45 (internal citations omitted); CAL. CIV.
CODE § 3501 (2013).
For example, in Bonde v. Bishop, the
California Court of Appeal held that a “continual dropping of branches”
37. Grandona, 21 P. at 368; accord Bonde, 245 P.2d at 621 (holding that an
individual can obtain an injunction after proving a nuisance).
38. Bonde, 245 P.2d at 621.
39. Grandona, 21 P. at 368
–69.
40. CAL. CIV. CODE § 3479 (2013).
41. Grandona, 21 P. at 368
–69.
42. Id.
43. Parsons v. Luhr, 270 P. 443, 444 (Cal. 1928) (holding that falling branches
and leaves constituted a nuisance because they littered gutters and caused the
aggrieved party to fear for their safety and granting an injunction to abate such
nuisance); accord Bonde, 245 P.2d at 618–19, 621.
44. Parsons, 270 P. at 444; accord Bonde, 245 P.2d at 618–19, 621.
West Northwest, Vol. 21, No. 1, Winter 2015
120
constituted a nuisance.
45
It is not clear if fear or apprehension of falling
branches alone can constitute a nuisance, but the facts of Bonde suggest that
well-founded fear of harm can constitute a nuisance.
46
The court in Bonde
noted that the plaintiffs were “afraid of the overhanging limbs and because
of them [were] afraid to leave their baby out in the patio.”
47
There, the
plaintiffs’ fear of falling branches interfered with their free use and
enjoyment of their property, and this was one contributing factor for why the
overhanging branches constituted a nuisance.
48
Nuisances may also exist when trees interfere with utility easements.
California courts recognize the right of utility companies to cut off branches
of privately owned trees that interfere with electrical wires owned by the
utility companies.
49
However, utility companies cannot cut more than is
necessary—utility companies can only cut branches that interfere with the
“proper and efficient use” of the wires.
50
If a utility company does cut more
than is necessary, or “wantonly and unnecessarily cuts or mutilates the
trees,” the utility company will be liable for damages caused to the owner of
the property in front of which the trees are located.
51
As long as the cutting
is necessary, property owners cannot bring a cause of action, even if the
cutting of the trees depreciates the value of the property in front of which
the trees are located.
52
Property owners who control encroaching trees need not be the actual
or proximate cause of the nuisance to be held liable.
53
For example, in
Mattos v. Mattos, the California Court of Appeal held that a property owner
was liable for abating a nuisance even though the nuisance was not caused
by any intentional or negligent act or omission on the part of the property
owner.
54
45. Bonde, 245 P.2d at 618 (“It is almost a daily chore to clean the debris from
the tree.”).
In Mattos, a storm blew down eucalyptus trees growing on the
46. Id.
47. Id.
48. Id.
49. Altpeter v. Postal Telegraph-Cable Co., 164 P. 35, 36
–37 (Cal. Ct. App.
1917); see also S. Bell Tele. & Tele. Co. v. Constantine, 61 F. 61 (5th Cir. 1894) (holding
that a telegraph company was not liable for trespass when it cut trees that interfered
with the company’s poles and wires).
50. Altpeter, 164 P. at 37
–38 (noting that utility companies owe a duty of
“efficient performance” to the public).
51. Id.
52. Id. at 38.
53. Mattos v. Mattos, 328 P.2d 269, 270 (Cal. Ct. App. 1958).
54. Id. at 269
–70.
West Northwest, Vol. 21, No. 1, Winter 2015
121
defendant’s property.
55
The trees covered a substantial area of the plaintiff’s
land and restricted the plaintiff’s ability to use the land for grazing purposes,
“to which [the land was] normally devoted.”
56
Even though the defendant
did not cause the nuisance through any affirmative act or omission, the
defendant was still liable for the nuisance.
57
Although some jurisdictions recognize an “act of God” defense when
unusually strong weather or unanticipated events cause trees to fall,
58
California courts have been hesitant to endorse this defense.
59
Rather,
California courts have held that unusually strong storms do not constitute
acts of God
60
and property owners have an affirmative duty to guard against
potential damage that could be caused by falling trees.
61
Property owners
should be aware that they might be liable for damage caused by falling trees
in extreme weather events and tree owners should consult arborists to
minimize potential liability.
55. Mattos, 328 P.2d at 270.
56. Id. at 269
–70.
57. Id.
58. See, e.g., Brown v. Sandals Resorts Int’l, 284 F.3d 949, 954 (8th Cir. 2002)
(upholding an act of God defense when a palm tree fell on a hotel guest on an
“extremely windy” night); Rector v. Hartford Accident & Indemnity Co., 120 So.2d 511,
512, 522 (La. 1960) (holding that a strong windstorm that blew down a decayed tree
was an act of God).
59. Mattos, 328 P.2d at 270 (“[A]t most this storm was of somewhat more than
average intensity, warrants the implied finding that the falling of the trees was not
within the category of an act of God.”); Mitchell v. City of Santa Barbara, 120 P.2d
131, 133
–34 (Cal. Ct. App. 1941) (citing S. Pac. Co. v. City of Los Angeles, 55 P.2d 847,
849 (Cal. 1936)) (“[A] rainstorm which is merely of unusual intensity is not . . . [an]
act of God.”); Smith v. San Joaquin Light & Power Corp., 211 P. 843, 844 (Cal. Ct. App.
1922) (stating that a wind that blew down a tree onto a power line was not an act of
God).
60. Mitchell, 120 P.2d at 133
–34.
61. Irelan-Yuba Gold Quartz Mining Co. v. Pac. Gas & Elec. Co., 116 P.2d 611,
615 (Cal. 1941) (“If a tree is in such close proximity to a pole line that wind may cause
it to fall across the wires, the failure to provide against such eventuality is negligence
. . . .”); Smith, 211 P. at 844 (“[I]f the palm tree stood in such a position as to endanger
the defendant’s wire, the defendant should have properly protected its wire
therefrom, and in failing to do so the omission was an act of neglect on the part of
the defendant . . . .”).
West Northwest, Vol. 21, No. 1, Winter 2015
122
C. Encroaching Roots
If the trunk of a tree is situated on one side of a property line, but roots
encroach across the boundary, property owners can seek injunctive relief to
abate encroaching roots when the roots constitute a nuisance.
62
However,
property owners may not enter their neighbor’s property to cut down trees
that are the source of encroaching roots.
63
Just like encroaching branches,
encroaching roots only constitute a nuisance when they injuriously affect
the property of another.
64
Compensatory damages may also be available if
the encroachment damages the plaintiff’s property.
65
California courts used to allow property owners to utilize self-help to
abate encroaching roots.
66
In Stevens v. Moon, the California Court of Appeal
wrote that when encroaching roots constitute a nuisance, property owners
may “[dig] into the ground, intercept and destroy the roots.”
67
However,
property owners are no longer permitted to utilize self-help to cut off
encroaching roots when harm to the tree is a foreseeable result of the
cutting.
68
In the landmark tree law case Booska v. Patel, the California Court of
Appeal rejected the notion that property owners have an absolute right to
cut encroaching roots when damage to the tree is a foreseeable result.
69
In
Booska, the defendant hired a contractor to excavate and sever encroaching
roots at a depth of three feet.
70
62. Stevens v. Moon, 202 P. 961, 963–64 (Cal. Ct. App. 1921).
This caused the tree to become unsafe,
“unable to support life,” and had to be removed at the expense of the tree’s
63. Fick v. Nilson, 220 P.2d 752, 753
–54 (Cal. Ct. App. 1950).
64. Crance v. Hems, 62 P.2d 395, 367–97 (Cal. Ct. App. 1936) (holding that
encroaching roots from athel trees “killed, strangled, and completely destroyed”
pecan trees on the property onto which the roots encroached); see also Grandona v.
Lovdal, 21 P. 366, 368
–69 (Cal. 1889) (holding that encroaching roots did not
constitute a nuisance because they did not prevent the plaintiff from cultivating his
land).
65. Stevens, 202 P. at 963
–64.
66. Id. at 962–63; see also Grandona, 21 P. at 369 (holding that encroaching trees
“in so far as they were on or over [the plaintiff’s] land, belonged to the plaintiff, and
he could have cut them off, or trimmed them, at his pleasure”).
67. Stevens, 202 P. at 962–63.
68. Booska v. Patel, 30 Cal. Rptr. 2d 241, 243 (Cal. Ct. App. 1994) (“[The
plaintiff] constructs an absolute right to do whatever he likes on his property, without
regard to its impact on his neighbors. This is not the law.”); see also CAL. CIV. CODE §
3514 (2013) (“[A property owner] must so use his own rights as not to infringe upon
the rights of another.”).
69. Booska, 30 Cal. Rptr. 2d at 243.
70. Id. at 242
–43.
West Northwest, Vol. 21, No. 1, Winter 2015
123
owner.
71
The court held the defendant was liable for damaging the tree and
that property owners have a duty to act reasonably to avoid foreseeable
harm to their neighbors’ property.
72
Tree roots that encroach underneath sidewalks and other publicly
accessible walkways are a common source of liability. If property owners
maintain control or care over a tree, then they may be liable for injuries
proximately caused by the negligent care of that tree,
Since healthy roots are essential to the
continued strength and vitality of trees, property owners should consult
professional arborists before touching encroaching roots.
73
including slip-and-
fall accidents caused by encroaching roots.
74
Absent a local ordinance to
the contrary,
75
a municipality assumes liability for damages caused by trees
which it maintains on publically controlled land.
76
71. Booska, 30 Cal. Rptr. 2d at 242–43.
72. Id. at 244
–45.
73. Moeller v. Fleming, 186 Cal. Rptr. 24, 25
–26 (Cal. Ct. App. 1982); see also
Alpert v. Villa Romano Homeowners Assn., 96 Cal. Rptr. 2d 364, 375–76 (Cal. Ct. App.
2000).
74. Alpert, 96 Cal. Rptr. 2d at 773
–74 (internal citations omitted); see also CAL.
STS. & HIGH. CODE § 5610 (2013).
75. See e.g., S.F., CAL., PUB. WORKS CODE art. 16 § 805 (2010) (creating a cause of
action for injuries caused by improper maintenance of trees and establishing the
process by which the city may relinquish maintenance responsibilities to private
property owners); Tree Maintenance Transfer Plan,
SAN FRANCISCO PUBLIC WORKS (2014),
http://sfdpw.org/index.aspx?page=1478 (last visited Oct. 30, 2014) (outlining the
city’s current plan to transfer responsibility and liability for maintenance to private
property owners); see also infra Part V (discussing municipal ordinances regulating tree
growth).
76. Alpert, 81 Cal. App. 4th at 374
–75 (citing Williams v. Foster, 265 Cal. Rptr.
15, 22 (Cal. Ct. App. 1989)) (“Where a particular abutter does not possess or own the
street easement, and does not undertake maintenance of it, we see no legal basis for
imposing liability for failure to properly maintain the sidewalk or planting strip in the
absence of statute or ordinance.”); Jones v. Deeter, 199 Cal. Rptr. 825, 829 (Cal. Ct.
App. 1984) (“[I]n localities where the city has habitually maintained the surface of the
parkway, it is solely the city’s duty to keep this surface area safe for pedestrians;
hazards on such areas are not attributable to abutting owners.”).
West Northwest, Vol. 21, No. 1, Winter 2015
124
III. Obstructions of Light and Air
Unlike falling debris, the obstruction of light shining into a neighbor’s
property is not an actionable nuisance and injunctive relief is not available
when trees obstruct light and air.
77
Absent any municipal ordinances that
guarantee otherwise, property owners do not have the right to light and air
unobstructed by trees.
78
The only exceptions are when the blockage of
sunlight is malicious
79
or if the trees obstruct a solar easement granted
under the Solar Shade Control Act.
80
In the landmark case Sher v. Leiderman, the California Court of Appeal
reaffirmed that the obstruction of sunlight is not an actionable nuisance.
81
There, the plaintiff sued when trees located on the defendant’s property
grew over a period of ten years and ultimately obstructed sunlight to the
plaintiff’s house.
82
Shadows cast by these trees made the plaintiff’s home
“dark and dismal” and adversely affected the home’s thermal performance.
83
Following the precedent established in Haehlen v. Wilson,
84
the court held that
this obstruction was not an actionable nuisance.
85
Furthermore, the court
noted that the defendant did not act maliciously because the defendant did
not intend to deprive the plaintiff of sunlight at the time at which the trees
were originally planted.
86
Consequently, the court declined to grant a
private nuisance for the obstruction of the sunlight.
87
The court in Sher also limited the scope of the Solar Shade Control Act
to “active solar collectors” designed for the purposes of “(1) water heating,
(2) space heating or cooling, and (3) power generation.”
88
77. Haehlen v. Wilson, 54 P.2d 62, 64 (Cal. Ct. App. 1936); accord Taliaferro v.
Salyer, 328 P.2d 799, 802–03 (Cal. Ct. App. 1958) (holding that a neighbor’s
obstruction of light and air is not an actionable nuisance).
The court
specifically rejected the plaintiff’s assertion that the Act provided a solar
78. See Venuto v. Owens-Corning Fiberglass Corp., 99 Cal. Rptr. 350, 357
–58
(Cal. Ct. App. 1971) (holding that obstructions of light and air are not, per se, a
nuisance); Haehlen, 54 P.2d at 64 (holding that the doctrine of “ancient lights” does
not apply in California).
79. Haehlen, 54 P.2d at 64.
80. CAL. PUB. RES. CODE §§ 25980, 25981 (2013).
81. Sher v. Leiderman, 226 Cal. Rptr. 698, 704–05 (Cal. Ct. App. 1986).
82. Id. at 700
–01.
83. Id.
84. Haehlen, 54 P.2d at 64 (Cal. Ct. App. 1936).
85. Sher, 226 Cal. Rptr. at 703, 704
–05.
86. Id. at 700
–01, 704–05.
87. Id. at 703–04.
88. Id. at 705, 706
–07 (citing CAL. PUB. RES. CODE § 25981).
West Northwest, Vol. 21, No. 1, Winter 2015
125
easement for “passive solar collectors” like south-facing windows that warm
buildings by letting in more sunlight.
89
When a group of trees is planted in a row and the row of trees
obstructs the view of a neighbor, the individual whose view is obstructed
may be able to obtain injunctive relief to remove the obstruction under
California’s “spite fence” statute.
The mere fact that windows and
skylights “take in” light does make these windows “active solar collectors”
under the terms of the act. Therefore, property owners cannot rely on the
Solar Shade Control Act to remove trees that obstruct sunlight to windows
and skylights.
90
The “spite fence” statute protects
adjoining landowners from fences and other structures “unnecessarily
exceeding 10 feet in height maliciously erected or maintained for the
purpose of annoying the owner or occupant of adjoining property.”
91
These
spite fences constitute a private nuisance.
92
In Wilson v. Handley, the
California Court of Appeal held that a row of trees planted to “annoy” a
neighboring landowner could in fact constitute a “spite fence.”
93
The court
noted that a row of trees could violate the spite fence statute if they only
block light and air, as long as the obstruction satisfies all other statutory
requirements.
94
However, if the trees had been planted to maintain
aesthetic qualities or to protect the defendants’ privacy, the row of trees
would not fit the definition of “spite fence” under the statute.
95
In Vanderpol v.
Starr, the court affirmed that a row of trees could fit the definition of a “spite
fence,” but the court clarified that relief is only available under the statute
when an obstruction injures “comfort or enjoyment” of property.
96
89. Sher, 226 Cal. Rptr. at 882 (noting the plaintiff’s interpretation of the Act
would extend “the scope of the Act to absurd proportions”); see also CAL. PUB. RES.
C
ODE § 25986 (2013) (allowing limited exemptions for passive solar collectors);
Zipperer v. County of Santa Clara, 35 Cal. Rptr. 3d 487, 493
–94 (Cal. Ct. App. 2005)
(citing C
AL. PUB. RES. CODE § 25985 (2013)) (upholding the validity of a provision in
the Solar Shade Control Act that allows municipalities to “opt out” of the Act’s
requirements by majority vote).
Subsequently, the California Court of Appeal held that courts can look to
90. Vanderpol v. Starr, 123 Cal. Rptr. 3d 506, 512 (Cal. Ct. App. 2011) (“[A] row
of trees, as opposed to a single tree, could constitute a ‘structure’ within the
meaning of [the statute].”); Wilson v. Handley, 119 Cal. Rptr. 2d 263, 269 (Cal. Ct.
App. 2002) (citing C
AL. CIV. CODE § 841.4 (2013)).
91. CAL. CIV. CODE § 841.4 (2013).
92. Id.
93. Wilson, 119 Cal. Rptr. 2d at 269
–70.
94. Id. at 370
–71 (internal citations omitted).
95. Id. at 269–70.
96. Vanderpol, 123 Cal. Rptr. 3d at 512.
West Northwest, Vol. 21, No. 1, Winter 2015
126
either the subjective intent of the individual who built the fence or to
objective or circumstantial evidence of intent when determining whether the
“dominant purpose” of the fence was malicious.
97
Neither the spite fence statute nor case law specify the number of
trees required for a row of trees to constitute a fence. In Vanderpol, the
defendants planted a row of at least twenty pine trees and at least sixty-five
Italian Cypresses.
98
In Wilson, the fence contained at least seventeen Leland
cypress trees
99
and the court found it relevant that the row of trees had
“fence-like” qualities.
100
Therefore, if even a small group of trees planted
along a property line obstruct light or air, property owners may be able to
utilize the spite fence statute to remove the obstruction. Alternatively,
property owners who use rows of trees to demarcate property boundaries
should be aware that the row of trees might be vulnerable under the spite
fence statute.
101
IV. Calculating Damages for Tortious Harm to Trees
The standard measure for damages caused by tortious injury t
o
pr
operty is “the amount which will compensate for all the detriment
proximately caused thereby.”
102
There is no fixed rule for how courts should
calculate damage to trees.
103
Courts generally consider diminution in value
of the tree as well as restoration costs.
104
However, plaintiffs may only
recover “reasonable costs of replacing destroyed trees with identical or
substantially similar trees.”
105
97. Vanderpol v. Starr, D062350, 2014 WL 1624069, at *10–12 (Cal. Ct. App.
Apr. 24, 2014) (unpublished opinion).
Some courts recommend awarding costs for
98. Id. at 3.
99. Wilson, 119 Cal. Rptr. 2d at 265.
100. Id.; see Lakes at Mercer Island Homeowners Ass’n v. Witrak, 810 P.2d 27,
30–31 (Wash. Ct. App. 1991) (holding that a row of trees planted along a property line
can be considered a fence).
101. Wilson, 119 Cal. Rptr. 2d at 269 (explaining that a fence-like structure
designed to demarcate a property boundary “does not need to be more than 10 feet
high to serve that purpose”).
102. C
AL. CIV. CODE § 3333 (2013).
103. Kallis v. Sones, 146 Cal. Rptr. 3d 419, 422–23 (Cal. Ct. App. 2012).
104. Id.; see also Hammond v. United States, 246 F. 40, 49 (9th Cir. 1917)
(holding that courts should assess the value of timber at the place it was cut, and
should not discount for the cost of manufacturing the wood into lumber).
105. Heninger v. Dunn, 162 Cal. Rptr. 104, 108–09 (Cal. Ct. App. 1980).
West Northwest, Vol. 21, No. 1, Winter 2015
127
the planting of saplings and immature trees, rather than mature trees of
similar condition to the ones that were damaged or destroyed.
106
When assessing the value of trees, some courts have looked at the
diminution of value to the entire property on which the trees grew, rather
than the intrinsic value of the trees themselves.
107
In Kolberg v. Sherwin-
Williams Co., the plaintiff applied a defective anti-scale spray made by the
defendant to his trees, destroying his orchard.
108
The California Court of
Appeal held that damages should be assessed according to the diminution
of value of the entire orchard, rather than to individual trees.
109
This
principle was affirmed in Rony v. Costa, when the court held that damages
should be determined by “the difference between the value of the property
before and after the injury.”
110
However, diminution of the market value of trees is not “an absolute
limitation” when assessing damages.
111
Courts have also considered the
“personal” value of trees.
112
106. Heninger, 162 Cal. Rptr. at 108–10 (holding that a $241,257 cost of
replanting mature trees was unreasonable when saplings could be planted for
$19,610).
For example, in Kallis v. Sones, the California
Court of Appeal for the Second District noted that an Aleppo pine provided
“personal value” because it shaded a playhouse that was constructed for the
107. Roche v. Casissa, 316 P.2d 776, 778 (Cal. Ct. App. 1957) (evaluating “the
true measure of damages to be the damage to the freehold, rather than the value of
the trees themselves . . . and not with respect to any intrinsic value of the trees as so
much wood”).
108. Kolberg v. Sherwin-Williams Co., 269 P. 975, 976 (Cal. Ct. App. 1928).
109. Id. at 977 (“[T]he damages awarded were intended to cover the damage to
the land, and not that suffered by the separate trees.”); see also Santa Barbara
Pistachio Ranch v. Chowchilla Water Dist., 105 Cal. Rptr. 2d 856, 861–62 (Cal. Ct. App.
2001) (holding that courts may look at lost profits when analyzing the value of trees
on a pistachio farm).
110. Rony v. Costa, 148 Cal. Rptr. 3d 642, 647 (Cal. Ct. App. 2012); see also
R
ESTATEMENT (SECOND) OF TORTS: HARM TO LAND FROM PAST INVASIONS § 929 cmt. f (1979)
(“For the destruction of or damage to . . . mature timber trees that have a market
value or a value distinguishable from the value of the land, the owner can, at his
election, recover for the loss or diminution of the value of the thing injured or
destroyed, in substitution for the diminution in value of the land as a whole.”).
111. Rony, 148 Cal. Rptr. 3d at 647 (citing Heninger, 162 Cal. Rptr. at 106–07).
112. Kallis v. Sones, 146 Cal. Rptr. 3d 419, 423
–23 (Cal. Ct. App. 2012); see also
Heninger, 162 Cal. Rptr. at 107–08 (citing R
ESTATEMENT (SECOND) OF TORTS: HARM TO
LAND FROM PAST INVASIONS § 929 cmt. b (1979)) (stating that restoration costs that
exceed the diminution in fair market value may be awarded when the plaintiff has
personal reasons for restoring the property to its original condition).
West Northwest, Vol. 21, No. 1, Winter 2015
128
plaintiff’s children and grandchildren.
113
California courts have also
considered the aesthetic value of trees when assessing damages.
114
In Rony
v.
C
osta, the court provided the plaintiff for his “loss in aesthetic pleasure.”
115
S
imilarly, in Baker v. Pierce, the court considered “ornamental and shade
value” when calculating damages for trees that were negligently removed by
construction workers.
116
Calculating lost aesthetic value is necessarily a
subjective inquiry, but property owners can take proactive steps t
o
doc
ument the aesthetic value of their trees by taking pictures or videos of
the trees. Tree owners can also take proactive steps to appraise the value of
their trees; some tree appraisal services are even available online.
117
California courts have recognized that trees can be injured in many
different ways and courts have held that damages are available for a wide
range of potential injuries. Property owners may collect damages when their
trees are cut, uprooted, or trampled and may even collect damages for trees
where the injury is proximately caused by a fire.
118
Damages are also
available when trees are poisoned by a third party. In Santa Barbara Pistachio
Ranch v. Chowchilla Water District, the court awarded damages when the
plaintiff damaged his trees after irrigating them with contaminated water
provided by the defendant.
119
Likewise, in Kolberg v. Sherwin-Williams Co., the
court held that damages were available when the plaintiff’s trees were
poisoned by a defective insecticide.
120
When assessing damages to trees that grow on a boundary line, courts
may prorate damages according to the injured party’s proportional interest
113. Kallis, 146 Cal. Rptr. 3d at 422–23.
114. Rony, 148 Cal. Rptr. 3d at 647–48 (quoting Heninger v. Dunn, 162 Cal.
Rptr. at 108
–09 (“[T]he landowner may recover the value of the trees or shrubbery,
either as timber or for their aesthetic qualities . . . .”).
115. Id. at 647–48.
116. Baker v. Pierce, 223 P.2d 286, 287–288 (Cal. Ct. App. 1950).
117. Tree Protection Toolkit: Appraisal Calculators, A
MERICAN
FORESTS, http://www.americanforests.org/bigtrees/tree-protection-toolkit/calculate-
the-value-of-your-tree (last visited Oct. 30, 2014).
118. See, e.g., Kelly v. CB & I Constructors, Inc., 102 Cal. Rptr. 3d 32, 48–49 (Cal.
Ct. App. 2009); Kennedy v. Minarets & W. Ry. Co., 266 P. 353, 360 (Cal. Ct. App. 1928)
(“[D]anger from fires in a dry country like California is so great as to justify the police
power of the state in imposing treble damages . . . .”).
119. Santa Barbara Pistachio Ranch v. Chowchilla Water Dist., 105 Cal. Rptr. 2d
856, 858–59 (Cal. Ct. App. 2001).
120. Kolberg v. Sherwin-Williams Co., 269 P. 975, 976 (Cal. Ct. App. 1928).
West Northwest, Vol. 21, No. 1, Winter 2015
129
in the tree.
121
However, courts can compensate co-owners for the value of
the entire tree if one of the owners benefits from the use of the entire tree.
122
For example, if the canopy of the entire tree provides shade for one co-
owner, that co-owner can recover for damage to the entire tree, even if part
of the tree that provides shade is located on their neighbor’s property.
123
When damage to trees is willful or intentional, plaintiffs may collect
damages equivalent to three times the value of the actual detriment, but
courts must award damages equal to twice the sum of the actual
detriment.
124
If the trespass is casual, involuntary, or if the trespasser was
mistaken about the ownership of the tree, courts must award damages
equivalent to twice the value of the actual detriment.
125
Subsequent case
law has upheld the validity of the double and treble damage provisions in
the Civil Code,
126
121. Kallis v. Sones, 146 Cal. Rptr. 3d 419, 421–22 (Cal. Ct. App. 2012) (citing
Happy Bunch, LLC v. Grandview North, LLC, 173 P.2d 959, 965–66 (Wash. Ct. App.
2007)).
but courts have held that double and treble damages for
122. Kallis, 146 Cal. Rptr. 3d at 421–22.
123. Id.
124. C
AL. CIV. CODE § 3346 (2013); CAL CODE CIV. PROC. § 733 (2013) (providing
treble damages for trespasses that cause damage to trees); Baker v. Ramirez, 235 Cal.
Rptr. 857, 866 (Cal. Ct. App. 1987) (citing Drewry v. Welch, 46 Cal. Rptr. 65, 78 (Cal. Ct.
App. 1965)) (“Under this section, if the trespass is found to be willful and malicious,
the court may impose treble damages but must impose double damages.”); see also
Heninger v. Dunn, 162 Cal. Rptr. 104, 110
–11 (Cal. Ct. App. 1980) (“Statutes providing
for recovery of double or treble damages for injuries to trees are intended to make
timber appropriation unprofitable.”); cf. A.B. 2071, Cal. State. Assembly, 2011–2012
Reg. Sess. (Cal. 2012) (unpassed bill that would have amended section 3346 of the
Civil Code to provide double damages for individuals who were harmed by
trespassers who intended to make commercial use of the wood).
125. C
AL. CIV. CODE § 3346(a) (2013); Baker, 235 Cal. Rptr. at 866 (citing Drewry,
46 Cal. Rptr. at 78) (“[I]f the trespass is found to be casual and involuntary or under a
mistake of fact, the court must impose double damages.”); cf. Heninger, 162 Cal. Rptr.
at 111 (stating that courts should “exercise broad discretion in determining what
amount will achieve just and reasonable compensation” when calculating damages).
126. See, e.g., Ostling v. Loring, 33 Cal .Rptr.2d 391, 401–02 (Cal. Ct. App. 1994)
(holding that defendant’s due process rights were not violated when property
owner’s complaint did specify that doubling of damages was possible under the
statute); Ghera v. Sugar Pine Lumber Co., 36 Cal. Rptr. 305, 307 (Cal. Ct. App. 1964)
(holding that the statute should be strictly construed).
West Northwest, Vol. 21, No. 1, Winter 2015
130
injuries to trees are penal and punitive rather than remedial.
127
Consequently, when courts award double or treble damages, they are not
permitted to grant exemplary damages under section 3294 of the California
Civil Code.
128
An additional award of exemplary damages would, in effect,
punish the defendant twice, and would not achieve the policy goals
underlying section 3294 of “educating blunderers . . . and discouraging
rogues.”
129
V. Municipal Ordinances Regulating Tree Growth
In any case, citizens should be aware that there is a high price to
pay for causing willful damage to trees.
Many municipalities in California have adopted complex regulatory
frameworks for the growth, care, and removal of trees. San Francisco’s Public
Works Code provides strict guidelines for the growth and care of trees.
130
One notable aspect of San Francisco’s ordinance is that it is unlawful to
injure or destroy a “significant tree” or a landmark tree.”
131
Some tree
ordinances restrict the extent to which trees can obstruct views. For
example, Berkeley’s Solar Access and Views Ordinance has the stated goal of
“[restoring] access to light and views from the surrounding locale.”
132
Other
ordinances require property owners to conserve energy by using trees to
create shade. In Los Angeles, applications for landscape approval must
contain “a proposal for shading of walls of structures.”
133
Municipalities may also unilaterally compel the removal of
unwelcomed trees.
134
127. Baker, 235 Cal. Rptr. at 866 (citing Helm v. Bollman, 1 Cal. Rptr. 723, 725–
26 (Cal. Ct. App. 1959)); Drewry, 46 Cal. Rptr at 72–73 (citing Caldwell v. Walker, 27
Cal. Rptr. 675, 678 (Cal. Ct. App. 1963)).
If trees obstruct “sidewalks, parkings, or streets,”
municipalities can require the removal of these trees and “make the cost of
128. Baker, 235 Cal. Rptr. at 866.
129. Id.; see also Kelly, 102 Cal. Rptr. 3d at 45, 48–49 (holding that mandatory
double damages under section 3346 of the Cal. Civil Code are not precluded by
section 13007 of the Cal. Health and Safety Code, which provides damages for
property destroyed in a fire).
130. S.F.,
CAL., PUB. WORKS CODE, art. 16 (1995).
131. Id. § 808.
132. B
ERKELEY, CAL., HEALTH & SAFETY CODE, ch. 12.44 et. seq. (2012), available at
http://codepublishing.com/ca/berkeley/html/pdfs/Berkeley12.pdf.
133. LOS ANGELES, CAL., MUNI. CODE, § 12.42(A)(2) (1996), available at
http://www.amlegal.com/library/ca/losangeles.shtml.
134. CAL. GOV’T CODE § 39501 (2013) (permitting the removal of “weeds” and
“rank growths”); see also CAL. HEALTH & SAFETY CODE § 14876 (2013) (“Weeds may be
declared a public nuisance and may be abated.”).
West Northwest, Vol. 21, No. 1, Winter 2015
131
removal a lien upon the abutting property.”
135
Similarly, municipalities may
also require the removal of trees that are “dangerous or injurious to
neighboring property.”
136
Municipalities can also regulate the growth of
weeds when offending plants constitute a public nuisance.
137
States may
legitimately exercise police powers to advance aesthetic values,
138
A. Challenges to Municipal Tree Ordinances
so
municipalities could potentially force the removal of trees that offend public
aesthetics. Property owners should be mindful of the fact that
municipalities have broad ranging police powers to regulate tree growth.
Property owners should also do their part to ensure that trees do not cause
harm to others, such that a municipality would feel compelled to take action
and remove the tree.
As a general principle, a land use ordinance is only unconstitutional
when “[its] provisions are clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or general
welfare.”
139
In some jurisdictions, exhaustion of administrative remedies is a
pre-requisite to judicial action challenging planning decisions.
140
Courts
have held that land use regulations on landscaping are a valid police
power
141
135. CAL. GOV’T CODE § 39502(a) (2013); see also Altpeter v. Postal Telegraph-
Cable Co., 164 P. 35, 36–37 (Cal. Ct. App. 1917) (“[W]here trees so grown are cut,
trimmed, or removed by the city or town for the purpose of facilitating the use of the
street in a legal manner by the public, then the damage resulting from such cutting
or removal to the owner of the property in front of which such trees are standing is
damnum absque injuria . . . .”).
and consequently, facial challenges to municipal tree ordinances
must overcome significant hurdles.
136. CAL. GOV’T CODE § 39502(b) (2013).
137. See, e.g., Thain v. City of Palo Alto, 24 Cal. Rptr. 515, 523–34 (Cal. Ct. App.
1962).
138. City Council v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984); see
Metromedia Inc., v. City of San Diego, 610 P.2d 407, 414 (Cal. 1980) (holding that
aesthetics alone justify the use of municipal police power), rev’d on other grounds, 453
U.S. 490 (1981).
139. Associated Home Builders etc., Inc. v. City of Livermore, 557 P.2d 473, 486
(Cal. 1976).
140. San Franciscans Upholding the Downtown Plan v. City & Cnty. of San
Francisco, 125 Cal. Rptr. 2d 745, 766 (Cal. Ct. App. 2002).
141. Echevarrieta v. City of Rancho Palos Verdes, 103 Cal. Rptr. 2d 165, 169–70
(Cal. Ct. App. 2001) (citing Ehrlich v. City of Culver City, 911 P.2d 429, 450 (Cal.
1996)); see also Kucera v. Lizza, 69 Cal. Rptr. 2d 582, 589 (Cal. Ct. App. 1997) (“It is not
West Northwest, Vol. 21, No. 1, Winter 2015
132
For example, in Kucera v. Lizza, a property owner challenged a Tiburon,
California ordinance that regulated tree growth after he was ordered to cut
down trees that obstructed a neighbor’s view of San Francisco Bay.
142
The
California Court of Appeal ruled that the ordinance was a valid exercise of
the municipality’s police power because it advanced the city’s aesthetic
values.
143
The court held that the preservation of sunlight was a valid “police
power purpose” and that the ordinance was analogous to restrictions on the
height of buildings or fences.
144
Additionally, the court noted that
ordinances that regulate views and sunlight do not have to comply with
formal easement law.
145
Do municipal restrictions on tree growth constitute a taking under the
terms of the Fifth Amendment? The Court of Appeal did not discuss the
takings issue directly in Kucera v. Lizza, but the court did note in dicta that “it
is hard to imagine on this record how compliance with the ordinance and
resultant tree trimming might result in an unconstitutional taking.”
146
Four
years later, in Echevarrieta v. City of Rancho Palos Verdes, the Court of Appeal
held that limitations on the height of pre-existing foliage “[are] a legitimate
exercise of police power which does not rise to the level of a taking.”
147
The
court noted that the plaintiff could not demonstrate that they had a vested
right to own foliage of a certain height and that these kinds of restrictions on
tree height were a legitimate exercise of the city’s police power.
148
In Echevarrieta, the Court of Appeal distinguished the facts of that case
from Lucas v. South Carolina Coastal Council and rejected the notion that the
plaintiff had “reasonable investment backed expectations” to maintain trees
of a certain height.
149
irrational for a community to plan its physical surroundings in such a way that
unsightliness is minimized . . . .”).
The court noted that restrictions on tree height did
142. Kucera, 69 Cal. Rptr. 2d at 588; cf. TIBURON, CAL., MUNICIPAL CODE ch. 15, §
15-3 (1968) (granting persons “the right to preserve and seek restoration of views or
sunlight which existed at any time since they purchased or occupied a property,
when such views or sunlight are from the primary living area or active use area, and
have subsequently been unreasonably obstructed by the growth of trees”).
143. Kucera, 69 Cal. Rptr. 2d at 588 (citing Metromedia Inc., 610 P.2d at 414).
144. Id. at 588
–89, 591 (citing Pacifica Homeowners Ass’n v. Wesley Palms
Retirement Cmty., 224 Cal. Rptr. 380, 382 (Cal. Ct. App. 1986)).
145. Id. at 1152.
146. Kucera, 69 Cal. Rptr. 2d at 592.
147. Echevarrieta v. City of Rancho Palos Verdes, 103 Cal. Rptr. 2d 165, 171–72
(Cal. Ct. App. 2001).
148. Id.
149. Id. at 170–71 (distinguishing Lucas v. S.C. Coastal Council, 505 U.S. 1003,
1007–09 (1998)).
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not deprive the plaintiff of “of any significant economically beneficial use of
his land.”
150
Like restrictions on building heights, restrictions on tree
heights “do not amount to a taking merely because they might incidentally
restrict a use, diminish the value, or impose a cost in connection with the
property.”
151
B. Duties and Obligations when Caring for Trees Planted by
a Municipality
Following the Court of Appeal’s precedent in Echevarrieta, it is
unlikely that courts will find restrictions on tree height to be an
unconstitutional taking.
Many property owners take responsibility for watering, trimming,
pruning, and caring for publically owned trees.
152
In these situations,
citizens assume certain duties when they provide care for publically owned
trees. Regular trimming or sweeping of leaves from a publicly owned
planting strip does not establish a duty to warn bystanders about potential
dangers that exist on that planting strip.
153
However, a duty to warn will
arise when property owners exert a “notorious and open display of control”
over publicly owned trees where members of the public “might reasonably
rely on the apparent owner to warn or protect them from known hazards
thereon.”
154
Citizens who care for publicly owned trees should also be aware
that constructing a fence around a strip of publicly owned land can function
as adverse possession, thereby conveying the land for the “exclusive use and
enjoyment” of the adverse possessor.
155
150. Echevarrieta, 103 Cal. Rptr. 2d at 171
Although private citizens may have
the best interests of their neighborhood at heart when they care for
publically owned trees, these citizens should be aware that they assume a
large degree of liability by providing care for these trees.
151. Id. (citing Elrich v. City of Culver City, 911 P.2d 429, 450 (Cal. 1996)).
152. Some municipalities do not permit private citizens to trim publically
owned trees without first obtaining a permit. See, e.g., Culver City Tree
Maintenance Frequently Asked Questions, C
ULVER CITY, http://www.culvercity.org/
Government/PublicWorks/MaintenanceOperations/TreeMaintenance.aspx.
153. Contreras v. Anderson, 69 Cal. Rptr. 2d 69, 76 (Cal. Ct. App. 1997) (citing
Alcaraz v. Vece, 929 P.2d 1239, 1249–50, 1253 (Cal. 1997)); cf. RESTATEMENT (SECOND) OF
TORTS: NATURAL CONDITIONS § 363 cmt. e (requiring property owners who control trees
next to public highways to take reasonable steps to prevent harm when they are
aware of the dangerous condition of the tree).
154. Contreras, 69 Cal. Rptr. 2d at 76 (citing Husovsky v. United States, 590 F.2d
944, 953 (D.C. Cir. 1978)).
155. Lofstad v. Murasky, 91 P. 1008, 1010 (Cal. 1907).
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VI. Policy Recommendations
When formulating tree law and policy, lawmakers must balance public,
social, and environmental interests against private property rights.
156
Effective tree laws must therefore respond to the normative conflicts
inherent within these divergent interests. The development of urban forests
requires the full participation of citizens and local governments, where
control of urban forests is focused at the local level.
157
The best framework for resolving these normative conflicts is to utilize
adaptive co-management strategies. Under this framework, policies for tree
management are formulated by local communities (rather than state
agencies), where policy makers continually reevaluate strategies according
to the latest scientific knowledge and the needs of communities.
Lawmakers should
favor policies that facilitate the development of sustainable urban forests
and laws should encourage private citizens to participate in the active
management of both public and privately owned trees.
158
Local
communities should have flexibility to develop tree laws that respond to the
unique needs of their community, as well as unique ecological challenges
that may not exist on a statewide level. In some respects, the many varied
local tree ordinances in California represent an adaptive co-management
system that is already in place.
159
156. See, e.g., Keith H. Hirokawa, Sustainability and the Urban Forest, 51 NAT. RES. J.
233, 236 (2011) (“Urban forestry requires an investigation into the ties between the
community’s environmental, economic, and social needs.”).
San Francisco and Los Angeles, for
example, have responded to the individual needs of their communities in
unique ways by instituting urban forest management plans that respond to
157. Janet A. Choi, Note, Cultivating Urban Forests Policies in Developing Countries, 11
S
USTAINABLE DEV. L. & POL’Y, 39, 39–40 (2010); cf. Edward J. Sullivan & Alexia Solomou,
“Preserving Forest Land for Forest Uses” – Land Use Policies for Oregon Forest Lands, 26 J. E
NVTL.
L. & LITIG. 179, 246–47 (2011) (arguing that the best way to manage forest resources is
through state agencies, rather than local land use regulation).
158. Jonathan Liljeblad, Adaptive Co-Management Thresholds: Understanding Protected
Areas Policy as Normative Conflict, 19 H
ASTINGS W.-NW. J. ENVTL. L. & POL’Y 231, 236 (2013)
(noting that vesting decision-making power in local communities “will alleviate
conflicts between the natural ecosystem and human interests”); see also Fikret Berkes,
Devolution of Environment and Resources Governance: Trends and Future, 37 E
NVTL.
CONSERVATION 489, 489–90 (2010); Lisen Schultz, et al., Participation, Adaptive Co-
Management, and Management Performance in the World Network of Biosphere Reserves, 39
W
ORLD DEV. 662, 662–63 (2010); cf. Kai Chan et al., When Agendas Collide: Human Welfare
and Biological Conservation, 21 C
ONSERVATION BIOLOGY 59, 60 (2007) (criticizing the
strategy of vesting decision-making power in local communities).
159. See supra Parts II.C, IV.
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135
the different social, ecological, and economic circumstances in each city.
160
Lawmakers should also provide incentives to private citizens to care
for publically owned trees. Under the current state of the law, when private
citizens provide care for publically owned trees, those citizens might assume
liability for foreseeable harm proximately caused by those trees.
Consequently, state agencies and the legislature should be careful to not
divest decision-making authority from local communities.
161
Instead,
liability should remain with the municipality or agency that originally
planted the trees.
162
A successful tree policy should prioritize preserving the life of trees
above expedient resolutions to tree disputes. Consequently, courts should
continue to discourage the use of self-help when resolving encroachment
disputes between neighbors.
Private citizens should not be penalized for openly
watering and pruning trees—these good Samaritans should instead receive
government subsidies for taking care of their local environment and
improving their neighborhoods.
163
The value of trees extends to society as a
whole
164
and courts must weigh the value of a tree to an entire community
against the nuisance caused by the encroaching tree.
165
Trees provide ecological, aesthetic, and social benefits to all members
of the community in which the trees grow.
If property owners
took the law into their own hands to resolve tree disputes, this could
undermine the goals of adaptive co-management strategies that attempt to
satisfy the needs of all citizens in a community.
166
Even privately owned trees
provide benefits to the community at large. Therefore, courts should
provide standing to citizens to sue for harms to any tree that provides an
ecological, social, or aesthetic benefit to their community.
167
160. See supra note 75 and accompanying text.
Building
161. See supra Part V.B.
162. Of course, liability should remain with private citizens when the care of
trees is negligent and falls below reasonable standards of care.
163. See Booska v. Patel, 30 Cal. Rptr. 2d 241, 242–43 (Cal. Ct. App. 1994)
(holding that property owners do not have an absolute right to cut off encroaching
branches and roots).
164. See Choi, supra note 158, at 39.
165. In rare circumstances where trees or tree branches pose an imminent
danger of falling and damaging a neighbor’s property, the neighbor should be able to
utilize self-help to protect themselves from the immediate danger.
166. See Choi, supra note 158.
167. In Sierra Club v. Morton, Justice Douglas’ dissenting opinion argued that
trees should have standing. 405 U.S. 727, 741–42 (1972) (Douglas, J., dissenting)
(“[C]oncern for protecting nature’s ecological equilibrium should lead to the
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136
successful urban forests is a collaborative effort that requires the
participation of all members of a community. Thus, lawmakers should
provide remedies for harm to shared resources, including publicly owned
trees that are utilized and enjoyed by all people.
Although it is important to protect shared resources, it is also
important for lawmakers to strike an appropriate balance between public
and private interests. Trees are simultaneously vital ecological resources
and economic commodities—these definitions are not necessarily mutually
exclusive.
168
Timber,
169
fruit,
170
and nuts
171
are essential components of our
state and national economy and it is important to protect reasonable
economic uses of trees. Consequently, publically owned trees on state and
federal land should be held in public trust,
172
but trees situated on private
property should still be considered private property.
173
conferral of standing upon environmental objects to sue for their own
preservation.”).
This way, private
citizens can bring a tort claim if they are directly harmed by the misuse or
168. Urban forestry contributes billions of dollars in sales to the California
economy. See Scott R. Templeton & George E. Goldman, Urban Forestry Adds $3.8
Billion in Sales to California Economy, 50 C
AL. AGRIC. 6 (1996), http://ucanr.edu/
repositoryfiles/ca5001p6-69747.pdf.
169. In 2011, California’s timber industry was valued at $51.8 billion.
C
ALIFORNIA AGRICULTURAL STATISTICS REVIEW: 2012–2013, CAL. DEP’T OF FOOD & AGRIC. 19
(2013), www.cdfa.ca.gov/statistics/pdfs/2013/FinalDraft2012-2013.pdf.
170. In California, the production of fruits and nuts is an $18.7 billion industry,
and California accounts for forty-two percent of national citrus production. USDA,
CALIFORNIA AGRICULTURAL STATISTICS: 2012 CROP YEAR, 38 (2013) http://www.nass.usda.
gov/Statistics_by_State/California/Publications/California_Ag_Statistics/Reports/2012
cas-all.pdf.
171. California produces eighty percent of the world’s almonds and around
forty percent of the world’s pistachios, while ninety percent of the United States’ tree
nuts come from California. Id.
172. Cf. J
AMES L. HUFFMAN, PRIVATE PROPERTY AND THE CONSTITUTION: STATE POWER,
PUBLIC RIGHTS, AND ECONOMIC LIBERTIES 100–01 (2013) (“Governments’ legal interest [in
public lands] is no different from that of any other proprietor . . . . The public right
with respect to public property is only the political right . . . to demand different
policies of their elected representatives or to replace those representatives with
different people.”).
173. Some scholars advocate for a broad application of the public trust
doctrine to all privately held resources, and that “certain resources never actually
were subject to private usurpation, or never should have been.” David Takacs, The
Public Trust Doctrine, Environmental Human Rights, and The Future of Private Property, 16
N.Y.U. E
NVTL. L. J. 711, 761 (2008).
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137
mismanagement of privately owned trees, but private citizens still retain
primary decision-making authority to manage the use of privately owned
trees.
174
Most importantly, tree law should attempt to foster an ethos of respect
and mindfulness for the gifts of nature with which we have been blessed.
Every tree is a miracle of life and our laws should encourage citizens to treat
trees with dignity. Lawmakers must strike a careful balance between private
property rights on one hand and public interests in ecology, social utility,
and aesthetics on the other hand. This balance will not be easy to achieve,
but the best outcomes will blend idealism with pragmatism.
VII. Conclusions
Tree disputes can be costly and annoying, but many can be avoided
with proper precautions. Property owners should never cut encroaching
trees if injury to the tree is a foreseeable result. If encroaching trees pose a
danger or constitute a nuisance, property owners can apply for injunctive
relief to remedy the offending branches or roots. However, injunctive relief
is not available to remove trees that obstruct light or air. Property owners
should also be aware of applicable municipal ordinances, as these often
present a unique array of requirements for individuals who own, manage,
and care for trees.
Trees are valuable shared resources that provide benefits to all
members of a community. As tree law develops over the next few decades,
lawmakers should create laws that provide incentives to individuals to care
for the health and welfare of trees. Additionally, lawmakers should utilize
adaptive co-management strategies to empower local communities to create
polices for tree management that change according to the evolving social,
economic, and ecological needs of the community. In doing so, lawmakers
should carefully balance public and private interests in the ownership and
management of trees. Finally, the concept of trees as private property
should not be eliminated entirely.
174. It is important to consider that “Citizen A” can retain a property interest
in a tree that grows on “Citizen B’s” land, and the concept of ownership does not
necessarily follow land ownership.
