[WSBARP] WSBARP Tree Root Issue

Roger Hawkes roger at skyvalleylawyers.com
Fri Jan 20 11:40:52 PST 2023 

I have done very few tree cases; nevertheless I have great difficulty hearing there is an ‘absolute’ right to do anything at all.  Seems to me that anyone who creates a hazard tree is likely to be held responsible at least some of the damage it causes.

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Carmen Rowe
Sent: Thursday, January 19, 2023 6:29 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] WSBARP Tree Root Issue

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

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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<mailto:roger at skyvalleylawyers.com>>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Tree Root Issue
Message-ID:
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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<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto: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<mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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.
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Message: 2
Date: Wed, 18 Jan 2023 00:18:45 +0000
From: Roger Hawkes <roger at skyvalleylawyers.com<mailto:roger at skyvalleylawyers.com>>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Tree Root Issue
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?thought? , not ?though?

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 2:28 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; 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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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><mailto: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.***

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