Thursday, December 7, 2006
In teaching property, I try to emphasize the boundaries between, and overlaps with, other basic subjects. That helps to justify my spending substantial time on nuisance and trespass. Years ago, one of my exam questions featured a cross-boundary invasion of Kudzu (which I described and illustrated with a photo for the benefit of the non-Southerners in my class; see http://en.wikipedia.org/wiki/Kudzu). I was reminded of that question by a recent case, which I've summarized for a bimonthly column that I write for the ABA magazine, Probate & Property:
- TREES: Tree owner has no obligation to trim encroaching branches or eliminate encroaching roots. Roots from neighbors' trees, growing along the property line, caused $61,000 in damage to the foundation of a house. After discovery of the damage, the neighbors cut the trees down, but the homeowners brought an action for damages based on trespass and nuisance. In a case of first impression for Oregon, the court held for defendants. The court recognized a split of authority with respect to nuisance liability. In some states, a landowner who negligently allows roots or branches to damage a neighbor's property is liable. In other states, a landowner is absolutely immune; the injured owner's only recourse is self-help (cutting the branches or roots himself). The court failed to resolve this issue for Oregon because the homeowners had not alleged culpability or negligence. The court explained that the lack of fault also meant the tree owners had not committed a trespass. Carvalho v. Wolfe, 140 P.3d 1161 (Or. Ct. App. 2006).