Melnick v. C.S.X. Corp.

ALPERT, Judge. The case before us is one of first impression in Maryland. It presents one simple question for our resolution: Whether a landowner in a developed or urban area has a cause of action against the adjoining property owner when tree limbs, vines and leaves, which originate from the latter’s property, cause injury to the former’s property- We hold that under the circumstances of the instant case, there is no cause of action and that the only available remedy is the Massachusetts Rule of Self-Help. Thus, the trial court was correct in granting the defendant’s motion for summary judgment.

THE FACTS As the instant case comes before this court on an expedited appeal, we shall simply restate the Agreed Statement of the Facts. 1. Sometime during the year of 1978, Your Appellant, Jonathan Melnick, purchased the real property located in Baltimore City, known as 900-920 E. 25th Street (hereinafter referred to as the “Melnick Property”). Sharing the common boundary with this property is the Railroad Right-of-Way passing through the City, North of 25th Street. (This property is hereinafter referred to as the “Railroad Property”). ¹⁰⁹ 2.

At the time of the purchase of the Melnick Property, there was a 35,000 square foot building (hereinafter referred to as “the building”) situated at or near the common boundary with the Railroad Property. Prior to Melnick’s purchase of the property he knew the roof of this building was in poor condition and had plans for its replacement which occurred immediately after the purchase. Since the roof replacement, Melnick has experienced constant clogged drains, standing water, roof deterioration and some water damage to the interior of the building. Moreover, there have been several instances of water damage to stored merchandise. 3.

The damage to the building and roof was caused by overhanging limbs, vines, leaves and/or other natural growth extending from the adjacent Railroad Property. Neither Melnick nor anyone else to Melnick’s knowledge, knows if the trees and vines in question were natural growth or planted by the Defendant and/or its agents. While Melnick claims no expertise in landscaping, he did notice from airplane flights over the property, that it appeared to him the foliage was planted in an effort to diminish erosion. 4. Neither the Defendant nor any of its agents planted any of the trees and vines at issue.

In fact, the defendant has a strict policy against planting trees, bushes or foliage on B & O Railroad Property per se. 5. Melnick, on numerous occasions, advised the defendant of the imminent danger of harm as well as the actual danger and harm that was being done by the branches, trees, and vines and leaves. 6. On at least one occasion, Melnick attempted to remedy the situation by himself. At cost to him of $1,000.00, he cut down several trees, however, the relief was only temporary since the trees and foliage would rapidly grow back.

Melnick filed suit in the Circuit Court for Baltimore City seeking damages for Private Nuisance, Negligence and Trespass. C.S.X. responded by filing a Motion for Summa ¹¹⁰ ry Judgment alleging that, as a matter of law, the adjoining landowner is not responsible for the results of natural growth on his land that damages the land or property of his neighbor. The trial judge agreed and ruled in C.S.X.’s favor. THE LAW In order to understand the common law principles that are at the root of the issue in this appeal, we must first understand two generative rules: (1) the Massachusetts Self-Help Rule and (2) the Restatement Rule. 1 1.

The Massachusetts Rule: Self-Help In Michalson v. Nutting, 275 Mass. 232 , 175 N.E. 490 (1931), the Supreme Judicial Court of Massachusetts announced that a property owner, whose house had been damaged by encroaching roots from his neighbor’s land, had no cause of action against him, but had a welbrecognized right to resort to self-help and cut off the intruding growth. The policy behind this rule of self-help was that [a]n owner of land is at liberty to use his land, and all of it, to grow trees. Their growth naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others. The neighbor, though without right of appeal to the courts if harm results to him, is, nevertheless, not without remedy: ...

His remedy is in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of ¹¹¹ actions at law, which would be likely to be innumerable and, in many instances, purely vexatious. Id. 175 N.E. at 490-91 . 2. The Restatement Rule: Natural/Artificial Distinction The Restatement Rule 2 adopts the rule of non-liability espoused in the Massachusetts Rule, but limits it to situations where the damage is caused by a “natural condition” of the land.

As explained in Comment b to Section 363, “Natural condition of the land” is used to indicate that the condition of land has not been changed by any act of a human being, whether the possessor or any of his predecessors in possession, or a third person dealing with the land either with or without the consent of the then possessor. It is also used to include the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them. On the other hand, a structure erected upon land is a non-natural or artificial condition, as are trees or plants planted or preserved, and changes in the surface by excavation or filling, irrespective of whether they are harmful in themselves or become so only because of the subsequent operation of natural forces. In sum, the rule of non-liability applies only where there is a natural condition.

In other cases, however, where damage results from a non-natural or artificial condition, the rule is one of liability. This is reflected in the Restatement (Sec ¹¹² ond) of Torts § 364, which was approved recently in Tadjer v. Montgomery County, 61 Md.App. 492 , 487 A.2d 658 (1985). We held in Tadjer that: If the defendants knew or should have known that the artificial condition created by them involved an unreasonable risk of physical harm to others, then they have a duty to make safe or warn of the dangerous condition. Id. at 502 , 487 A.2d 658 (emphasis in original). 3.

Application and Modification of the Two Rules The case most often cited for its examination of the policies behind the two rules is Sterling v. Weinstein, 75 A.2d 144 (D.C.1950). Very much like the facts in the case sub judice, leaves and buds from the defendant’s overhanging branches had fallen onto the plaintiff’s building, clogged rain gutters thereon, and resulted in water damage to the building. After reviewing the applicable case law, the District of Columbia court concluded: [W]e think the cases are in agreement that trees ordinarily are not nuisances; that overhanging branches which merely cast shade or drop leaves on the land are not nuisances; that if under any circumstances overhanging branches or protruding roots do constitute a nuisance it is only when they do sensible or substantial harm; and that, whether nuisances or not, a landowner may always cut away to his property line branches and roots from trees of the adjoining owner. Id. at 147 (footnote omitted).

Looking next to the Restatement and Massachusetts Rules, it rejected the Restatement’s natural/artificial distinction as one which “cannot reasonably be made in our jurisdiction which is almost entirely urban.” Id. See Prosser and Keeton on Law of Torts § 57 p. 391 (5th ed. 1984). Instead, it chose the Massachusetts Rule and explained, at page 148: The simplicity and certainty of the Massachusetts rule appeals to us. It leaves no doubt as to the rights and obligations of the parties.

While it places the burden on the owner of land to protect himself by cutting the ¹¹³ invading branches and roots, generally that burden is not great. It is of some significance that in this and many other jurisdictions there have been no reported cases involving this question. This would indicate to us that generally these questions between adjoining owners may be adjusted without the aid of courts and that the self-help rule is sufficient. There was, however, a dissenting opinion in Sterling , wherein Chief Judge Clayton said: I have no doubt that [“self-help”] is one of his remedies; but I do not agree that it is his only one .... and other cases in the majority opinion support this view.

I do not agree that he must climb onto his roof and construct scaffolding (or engage others to do the dangerous work for him) and saw off the limbs of defendant’s trees. I think he has the right to demand that defendant abate the nuisance or pay for the damage caused thereby, just as he would have the right to demand that an adjoining property owner remove an unsafe structure which constituted a threat of danger. Id. at 148 (citation omitted). Since Sterling there have been several cases that ostensibly would appear to be consistent with the dissenting opinion.

These cases, which we note are factually distinguishable, provide an in-depth examination of the purposes and policies of those rules. In Rowe v. McGee, 5 N.C.App. 60 , 168 S.E.2d 77 (1969), the North Carolina court addressed the issue of who has the responsibility for a tree which has become dangerous due to a rotten condition resulting from disease or other natural causes. Much of the discussion in that case focused on the fact that the tree was one of natural condition. The Rowe court noted that the natural/artificial distinction, as imposed by the Restatement, had received only lip-service in recent years; therefore, whether the dangerous condition was natural or otherwise was of no significance.

Most enlightening, however, was its discussion of a recent Massa ¹¹⁴ chusetts case, Kurtigian v. City of Worcester, 348 Mass. 284 , 203 N.E.2d 692 (1965), where it was stated: Public policy in a civilized community requires that there be someone to be held responsible for a private nuisance on each piece of real estate, and, particularly in an urban area, that there be no cases of nonliability where a private nuisance may be maintained with impunity. 348 Mass. at 291 , 203 N.E.2d at 696 . 168 S.E.2d at 80 (emphasis added). Bolstered with this statement of policy, the Rowe court held, in part relevant to our discussion, that: Where the defendants knew that the tree on their property was decayed and liable to fall and to damage the property of [his neighbors], we think and hold that the defendants were under a duty to eliminate the danger and could not with impunity place such burden to remove the tree on [the plaintiffs]. Id. at 81 (emphasis added). 3 In view of the earlier discussion in Rowe , rejecting the Restatement Rule, this holding is applicable to both natural and artificial conditions. The Kurtigian policy statement was relied on again in Barker v. Brown, 236 Pa.Super. 75 , 340 A.2d 566 (Pa.1975), where the Superior Court of Pennsylvania reversed a lower court’s order of summary judgment for the defendant and held a landowner liable for damage when a large and decaying tree on his property fell upon the adjoining landowner’s property.

As in Rowe , the Pennsylvania court rejected the natural/artificial distinction, noting 340 A.2d at page 568 : Though