[WSBARP] WSBARP Tree Root Issue
Carmen Rowe
carmen at gryphonlawgroup.com
Thu Jan 19 18:29:21 PST 2023
Bryce's comments (omitted thread as complicated in digest):
>I think it is clear under the Washington case that the one has the right
to cut tree roots on their property up to the property line regardless of
the damage to the tree however, the case law does not directly answer the
question, which is if the tree roots are removed and as a result, the tree
falls down and damages property damage or causes personal injury and you
can establish that the person removing the roots knew or should?ve known of
this result is that person liable for the resulting damage.
Bryce H. Dille
I have done a tremendous amount of tree work and find it very interesting,
but have not yet run into this specific scenario ... would be fascinated to
hear if others have analyzed the caselaw from this view.
Absent any express caselaw (which I couldn't say one way or the other) - my
thoughts are these.
On the one hand, there is the preliminary obvious argument that (1) the
neighbor exercised his/her absolute right (assuming none of trunk is on
boundary line) and (2) the owner, however much it sucks, now has the
obligation to deal with the rest of the tree as they know it is now a
hazard tree and will be liable for damage.
I wonder if it could be like work done under the "common enemy doctrine"
(re: water) or other work that you have the "right" to do on your property,
even if it has an inevitable impact on the neighbors' property - but a
negligence standard / duty of due care has come in (too nuanced to try &
paraphrase off the top of my head, but have worked with it before).
However, the key problem I see is that unlike there, in these cases there
is an absolute express right to, specifically, cut the roots (or limbs) of
a tree, also expressly *notwithstanding *any risk that poses to the tree's
health.
I think one can assume that courts are aware that compromising a tree's
health has potential implications in things like safety of the tree, and a
tree's owner always has liability for that, and there was no carve-out in
the "there is no liability" rule. Which I think pretty persuasively means
that it does come back to the owner of the tree. The courts could have
carved out gray areas anywhere along the way, but have held a hard line on
the absolute right / immunity from liability. I think the only *possible*
argument would be if the neighbor cut without notice and in such a way the
owner couldn't have possibly known/taken appropriate course to deal with
what they were left with in time to avoid a problem. Perhaps there is some
narrow arguably duty. But short of that ...
Perhaps there is a question of a possible prescriptive easement, and seems
surely a case somewhere has asked that question - but I don't recall seeing
it and never had occasion to look at it. But even if possible, would be an
uphill battle.
Sadly it's so tough, but I do understand the hard line for some people.
Those roots can have tremendous impact on any underground (and some
at-ground) structures. It sounds like the neighbor may be planning work in
the yard and doesn't want to deal with running into roots and/or avoiding
future damage to the new work.
In such cases I always suggest as best you can to explore non-judicial
options, thinking out of the box, such as offering money for an easement
for key roots (consider the cost of having to remove the tree if it really
now will be a hazard tree) or such. f
And of course there is always asking the questions to see if this really is
about the tree at all, or is there perhaps some underlying simmering
dispute that the neighbor is acting on out of spite/frustration/anger, and
address that.
Carmen Rowe
Phone: (360) 669-3576 (direct cell)
Email: Carmen at GryphonLawGroup.com
*Olympia/Lacey and primary mailing office:*
1415 College Street SE, Lacey, WA 98503
*Seattle office:* 2611 NE 113th St. Suite 300, Seattle, WA 98125
*NOTICE REGARDING OPERATIONS AND COVID-19:* We see our community as working
together to address COVID and its impact on our lives, health, and
business. The nature of our practice lends itself well to virtual operation
and we offer a range of flexible solutions to best work with your needs and
preferences. We are here to support you.
*Privileged and confidential: *This message is confidential. If you receive
this message in error, please let us know, and please delete and disregard
any information it contains. We thank you for your respect in not sharing
this email with anyone.
On Tue, Jan 17, 2023 at 4:19 PM <wsbarp-request at lists.wsbarppt.com> wrote:
> Send WSBARP mailing list submissions to
> wsbarp at lists.wsbarppt.com
>
> To subscribe or unsubscribe via the World Wide Web, visit
> http://mailman.fsr.com/mailman/listinfo/wsbarp
> or, via email, send a message with subject or body 'help' to
> wsbarp-request at lists.wsbarppt.com
>
> You can reach the person managing the list at
> wsbarp-owner at lists.wsbarppt.com
>
> When replying, please edit your Subject line so it is more specific
> than "Re: Contents of WSBARP digest..."
>
>
> Today's Topics:
>
> 1. Re: Tree Root Issue (Roger Hawkes)
> 2. Re: Tree Root Issue (Roger Hawkes)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Tue, 17 Jan 2023 23:01:06 +0000
> From: Roger Hawkes <roger at skyvalleylawyers.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Tree Root Issue
> Message-ID:
> <
> CO6PR20MB366888CD4D9E5EE945A5293DD5C69 at CO6PR20MB3668.namprd20.prod.outlook.com
> >
>
> Content-Type: text/plain; charset="utf-8"
>
> My understanding is that big trees have long roots; they go everywhere.
> Most of them have no important structural function; but there should be a
> distinction between the stabilizing roots and the smaller ones that cross
> many yards.
>
> From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
> On Behalf Of Melody Tucker Law
> Sent: Monday, January 16, 2023 4:28 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Tree Root Issue
>
> Thank you, Bryce. There seems to definitely be possible conflicting
> outcomes. Some of the tree's roots are on the neighbor's property but
> cutting those roots will definitely destabilize the tree itself.
>
> Melody
>
>
>
> Melody Claire Tucker
> Attorney at Law
> WSBA #42096
> Melody Tucker Law
> P.O. Box 2029
> Lynnwood, WA 98036
> 206-228-4980 Fax: 425-743-5921
> website: MelodyTuckerLaw.com
>
>
>
> CONFIDENTIALITY: The information contained in this transmission may
> contain privileged and confidential information. It is intended only for
> the use of the person(s) named above. If you are not the intended
> recipient, you are hereby notified that any review, dissemination,
> distribution or duplication of this communication, and the information
> contained in it, is strictly prohibited. If you are not the intended
> recipient, please contact the sender and immediately destroy all copies of
> the original message.
>
> ________________________________
> From: wsbarp-bounces at lists.wsbarppt.com<mailto:
> wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com
> <mailto:wsbarp-bounces at lists.wsbarppt.com>> on behalf of Bryce Dille <
> Bryce at dillelaw.com<mailto:Bryce at dillelaw.com>>
> Sent: Monday, January 16, 2023 3:13 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:
> wsbarp at lists.wsbarppt.com>>
> Subject: Re: [WSBARP] Tree Root Issue
>
> I think it is clear under the Washington case that the one has the right
> to cut tree roots on their property up to the property line regardless of
> the damage to the tree however, the case law does not directly answer the
> question, which is if the tree roots are removed and as a result, the tree
> falls down and damages property damage or causes personal injury and you
> can establish that the person removing the roots knew or should?ve known of
> this result is that person liable for the resulting damage.
> Bryce H. Dille
> Dille Law, PLLC
> Office: 360-350-0270
> Cell: 253-579-5561
>
> ** Please note that I use the dictation feature of my iPhone and that
> sometimes everything I say does not get properly translated**
>
>
> On Jan 16, 2023, at 1:55 PM, Melody Tucker Law <
> melodytuckerlaw at hotmail.com<mailto:melodytuckerlaw at hotmail.com>> wrote:
> ?
>
> Listmates, I have a question for the knowledgeable among you in tree law.
>
>
>
> I received a call from a potential client who has property containing
> numerous large trees. The tree in question in this matter is fully on his
> own property but some roots do extend onto the neighbor's property, of
> course. The roots have done no damage, but the neighbor has decided to cut
> the roots at the property line because he doesn't want them on his side of
> the fence. The PC is concerned that if those very large roots are cut, it
> could kill the tree eventually. Even of greater concern is that those are
> anchoring roots and that tree will no longer be secure and could easily
> fall onto his house.
>
>
>
> The neighbor is determined to cut the roots. PC would like to know what
> his legal standing is to 1- prohibit the neighbor from cutting the roots,
> or 2- what his recourse is should the roots be cut and the tree dies or
> falls onto his home.
>
>
>
> All input, information, and citations if available, would be greatly
> appreciated. Thank you so much.
>
>
>
> Melody
>
>
>
>
> Melody Claire Tucker
> Attorney at Law
> WSBA #42096
> Melody Tucker Law
> P.O. Box 2029
> Lynnwood, WA 98036
> 206-228-4980 Fax: 425-743-5921
> website: MelodyTuckerLaw.com
>
>
>
> CONFIDENTIALITY: The information contained in this transmission may
> contain privileged and confidential information. It is intended only for
> the use of the person(s) named above. If you are not the intended
> recipient, you are hereby notified that any review, dissemination,
> distribution or duplication of this communication, and the information
> contained in it, is strictly prohibited. If you are not the intended
> recipient, please contact the sender and immediately destroy all copies of
> the original message.
> ***Disclaimer: Please note that RPPT listserv participation is not
> restricted to practicing attorneys and may include non-practicing
> attorneys, law students, professionals working in related fields, and
> others.***
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
> http://mailman.fsr.com/mailman/listinfo/wsbarp
> -------------- next part --------------
> An HTML attachment was scrubbed...
> URL: <
> http://mailman.fsr.com/pipermail/wsbarp/attachments/20230117/a1684b68/attachment-0001.html
> >
>
> ------------------------------
>
> Message: 2
> Date: Wed, 18 Jan 2023 00:18:45 +0000
> From: Roger Hawkes <roger at skyvalleylawyers.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Tree Root Issue
> Message-ID:
> <
> CO6PR20MB366848FCEDC73462EA043794D5C79 at CO6PR20MB3668.namprd20.prod.outlook.com
> >
>
> Content-Type: text/plain; charset="utf-8"
>
> ?thought? , not ?though?
>
> From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
> On Behalf Of Roger Hawkes
> Sent: Tuesday, January 17, 2023 2:28 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Tree Root Issue
>
> Thanks, Bryce; that is what I have though was ?the law? for a long time.
>
> From: wsbarp-bounces at lists.wsbarppt.com<mailto:
> wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com
> <mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Bryce Dille
> Sent: Tuesday, January 17, 2023 1:54 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:
> wsbarp at lists.wsbarppt.com>>
> Subject: Re: [WSBARP] Tree Root Issue
>
> Herring v. Pelayo It holds that if tree is standing on the property line
> it is owned in common and that it seems to hold that you can trim the
> branches on your side if it does not affect the health of the tree but you
> are liable if it does kill or damage the tree which different then other
> case cited where the tree was not on the line.
>
> Bryce H. Dille
> Dille Law, PLLC
> 2010 Caton Way SW Ste. 101
> Olympia, WA 98502
> Office: 360-350-0270
> Cell: 253-579-5561
>
> [R_Alan_Swanson-WH-200]
> ** Please note that I use the dictation feature of my iPhone and that
> sometimes everything I say does not get properly translated**
>
> This transmission contains confidential attorney-client communications and
> may not be disclosed to any person but the intended recipient(s). If this
> matter is transmitted to you in error, please notify the sender immediately.
>
> Business Entity Creation and Management, Business, Government and Tax Law,
> Real Estate and Land Use, Residential, Commercial and Condominium
> Development Real Estate and Commercial Transactions & Closings, Including
> Performing Services as IRS Section 1031 Exchange Facilitator Estate
> Planning, including Wills and Trusts, and Probate Administration
> Representation Homeowners/Condominium Association Real Estate Developments
> Real Property Foreclosures and Forfeitures.
>
> From: wsbarp-bounces at lists.wsbarppt.com<mailto:
> wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com
> <mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Roger Hawkes
> Sent: Tuesday, January 17, 2023 1:10 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:
> wsbarp at lists.wsbarppt.com>>
> Subject: Re: [WSBARP] Tree Root Issue
>
> Thanks, Bryce; my search won?t find that number; what is the case name?
>
> From: wsbarp-bounces at lists.wsbarppt.com<mailto:
> wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com
> <mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Bryce Dille
> Sent: Monday, January 16, 2023 4:01 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:
> wsbarp at lists.wsbarppt.com>>
> Subject: Re: [WSBARP] Tree Root Issue
>
> However we have a different result if the tree that dies is right on the
> property line and is on both of the neighboring properties see 198 Wn.App.
> 828 the court held the neighbors hold the tree as tenants in common
>
> Bryce H. Dille
> Dille Law, PLLC
> 2010 Caton Way SW Ste. 101
> Olympia, WA 98502
> Office: 360-350-0270
> Cell: 253-579-5561
>
> [R_Alan_Swanson-WH-200]
> ** Please note that I use the dictation feature of my iPhone and that
> sometimes everything I say does not get properly translated**
>
> This transmission contains confidential attorney-client communications and
> may not be disclosed to any person but the intended recipient(s). If this
> matter is transmitted to you in error, please notify the sender immediately.
>
> Business Entity Creation and Management, Business, Government and Tax Law,
> Real Estate and Land Use, Residential, Commercial and Condominium
> Development Real Estate and Commercial Transactions & Closings, Including
> Performing Services as IRS Section 1031 Exchange Facilitator Estate
> Planning, including Wills and Trusts, and Probate Administration
> Representation Homeowners/Condominium Association Real Estate Developments
> Real Property Foreclosures and Forfeitures.
>
> From: wsbarp-bounces at lists.wsbarppt.com<mailto:
> wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com
> <mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Jennifer L White
> Sent: Monday, January 16, 2023 3:26 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:
> wsbarp at lists.wsbarppt.com>>
> Subject: Re: [WSBARP] Tree Root Issue
>
> The case did talk about nuisance/negligence. It said that nuisance cloaked
> in negligence gets a negligence review ? and that, the claim fails because
> it can?t pass the first element of negligence, breach of duty.
>
> Jennifer L. White, Esq.
> [cid:image002.jpg at 01D92A8F.5ABB6220]
>
> jen at appletreelaw.com<mailto:jen at appletreelaw.com>
> 2200 S 76th Ave
> Yakima, WA 98903
> 509.225.9813
>
> From: wsbarp-bounces at lists.wsbarppt.com<mailto:
> wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com
> <mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Bryce Dille
> Sent: Monday, January 16, 2023 3:13 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:
> wsbarp at lists.wsbarppt.com>>
> Subject: Re: [WSBARP] Tree Root Issue
>
> I think it is clear under the Washington case that the one has the right
> to cut tree roots on their property up to the property line regardless of
> the damage to the tree however, the case law does not directly answer the
> question, which is if the tree roots are removed and as a result, the tree
> falls down and damages property damage or causes personal injury and you
> can establish that the person removing the roots knew or should?ve known of
> this result is that person liable for the resulting damage.
> Bryce H. Dille
> Dille Law, PLLC
> Office: 360-350-0270
> Cell: 253-579-5561
>
> ** Please note that I use the dictation feature of my iPhone and that
> sometimes everything I say does not get properly translated**
>
> On Jan 16, 2023, at 1:55 PM, Melody Tucker Law <
> melodytuckerlaw at hotmail.com<mailto:melodytuckerlaw at hotmail.com>> wrote:
> ?
> Listmates, I have a question for the knowledgeable among you in tree law.
>
> I received a call from a potential client who has property containing
> numerous large trees. The tree in question in this matter is fully on his
> own property but some roots do extend onto the neighbor's property, of
> course. The roots have done no damage, but the neighbor has decided to cut
> the roots at the property line because he doesn't want them on his side of
> the fence. The PC is concerned that if those very large roots are cut, it
> could kill the tree eventually. Even of greater concern is that those are
> anchoring roots and that tree will no longer be secure and could easily
> fall onto his house.
>
> The neighbor is determined to cut the roots. PC would like to know what
> his legal standing is to 1- prohibit the neighbor from cutting the roots,
> or 2- what his recourse is should the roots be cut and the tree dies or
> falls onto his home.
>
> All input, information, and citations if available, would be greatly
> appreciated. Thank you so much.
>
> Melody
>
>
>
>
> Melody Claire Tucker
> Attorney at Law
> WSBA #42096
> Melody Tucker Law
> P.O. Box 2029
> Lynnwood, WA 98036
> 206-228-4980 Fax: 425-743-5921
> website: MelodyTuckerLaw.com
>
>
>
> CONFIDENTIALITY: The information contained in this transmission may
> contain privileged and confidential information. It is intended only for
> the use of the person(s) named above. If you are not the intended
> recipient, you are hereby notified that any review, dissemination,
> distribution or duplication of this communication, and the information
> contained in it, is strictly prohibited. If you are not the intended
> recipient, please contact the sender and immediately destroy all copies of
> the original message.
> ***Disclaimer: Please note that RPPT listserv participation is not
> restricted to practicing attorneys and may include non-practicing
> attorneys, law students, professionals working in related fields, and
> others.***
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
> http://mailman.fsr.com/mailman/listinfo/wsbarp
> -------------- next part --------------
> An HTML attachment was scrubbed...
> URL: <
> http://mailman.fsr.com/pipermail/wsbarp/attachments/20230118/b091116b/attachment.html
> >
> -------------- next part --------------
> A non-text attachment was scrubbed...
> Name: image001.png
> Type: image/png
> Size: 8651 bytes
> Desc: image001.png
> URL: <
> http://mailman.fsr.com/pipermail/wsbarp/attachments/20230118/b091116b/image001.png
> >
> -------------- next part --------------
> A non-text attachment was scrubbed...
> Name: image002.jpg
> Type: image/jpeg
> Size: 987192 bytes
> Desc: image002.jpg
> URL: <
> http://mailman.fsr.com/pipermail/wsbarp/attachments/20230118/b091116b/image002.jpg
> >
>
> ------------------------------
>
> ***Disclaimer: Please note that RPPT listserv participation is not
> restricted to practicing attorneys and may include non-practicing
> attorneys, law students, professionals working in related fields, and
> others.***
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
> End of WSBARP Digest, Vol 100, Issue 23
> ***************************************
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20230119/6bf0ac97/attachment.html>
More information about the WSBARP
mailing list