When we talk amongst ourselves, we dirt lawyers discuss things like larger parcels, regulatory moratoria, servitudes "running with the land," and other such fascinations. But we understand that what the average guys and gals want to know about when they chat us up at cocktail parties is their neighbor's trees.
Like who gets the fruit from her trees that are on my side of the fence (as our colleague Mark Murakami wrote about his bananas)? Or, as in this recent opinion from the New Jersey Appellate Division, who pays when my tree's roots bust up my neighbor's wall.
Turns out the analysis hinges on whether the tree's roots are a "natural condition" of the land. [Barista's note: unless the tree is artificial, like those ubiquitous fake tree cell towers, we're not sure how a tree really can be considered not "natural," a question we've posed before in relation to "artificial vegetation" at the shoreline, which leads to the inevitable lawyer joke.]
Well, it turns out that tort law has a technical definition of "natural condition of the land" which means something not changed by human acts, an easier definition to say than it is to apply. Thus, a property owner isn't liable for trees and other vegetation that were on land or grew there, but may be liable if she planted the same things. And in Scannavino, the defendant-owner testified believably that the trees whose roots damaged her neighbor's wall had not been planted by her.
The plaintiff-owner, however, asserted the defendant had intervened and altered the natural condition of the trees by pruning and maintaining them. But there was no evidence that the defendant "took affirmative action to preserve the trees," nor had she fertilized them. She only cut them back (like a good neighbor should do, we presume).
The court wisely stayed well clear of any discussion of the truly metaphysical question of when "evidence of trimming or pruning that improves the health or growth of a tree would be sufficient to convert a 'natural' tree into an 'artificial condition,'" noting that "[s]ome courts have criticized the rule of the Restatement (Second) of Torts because 'it would often be difficult to ascertain whether a tree of natural growth might not be in part the result of human activity, such as cultivating, fertilizing, trimming, etc.'" Slip op. at 9 & n.5 (citations omitted).
There wasn't any evidence of that, and the court saved that issue for another day.
Scannavino v. Walsh, No. A-0033-14T1 (N.J. App. Div. Apr. 14, 2016)
