Property issues often boil down to neighbor relations. Where is the property line, can I pick fruit from my neighbor's apple tree from my side? Her dogs take a dump on my lawn. And the like.
Those of you who practice in this area know that retail dirt law can be about the big issues, but often the things that come up at cocktail parties when someone finds out you are a property lawyer are not takings, the latest Supreme Court decision, Lockean theory, or Williamson County ripeness. No, people want to know if they can trim those parts of their darn neighbor's tree that hang on my side of the fence?
That was just the issue resolved by the Maine Supreme Court in Atkins v. Adams, No. 22-394 (Aug. 29, 203). The court held that "under the common law, property owners have the right to cut any part of a non-boundary tree that encroaches onto their property, regardless of how their actions affect the tree." Slip op. at 1. Put that in your cocktail party arsenal.
Duty of reasonable care? Pshaw! Cut that miscreant tree back, even if it the tree is harmed (newsflash: Joyce Kilmer most affected).
We post the decision here not so much for the interesting historical stuff (and yes, it is interesting and worth your read, starting on page 8, with citations to Lord Coke, and the old maxim cujus est solum ejus est usque ad coelum et ad infernos), but for these paragraphs, where the court concludes to not adhere to the common law rule would allow a physical invasion of private property. And you know what that means - a taking:
[¶20] Perhaps most importantly, many of the rights embodied in the Bill of Rights and our Declaration of Rights evolved from the common law. See Smith v. Alabama, 124 U.S. 465, 478 (1888) (“The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”); Marshall J. Tinkle, The Maine State Constitution 61 (2d ed. 2013) (noting that the just compensation requirement in article 1, section 21 of the Maine Constitution finds its roots in the Magna Carta); Cordova v. City of Albuquerque, 816 F.3d 645, 665 (10th Cir. 2016) (Gorsuch, J., concurring) (“Neither can it come as a surprise that existing state common law courts will usually supply a sound and sufficient remedy when claims (possibly) of constitutional dimension are at stake: the whole point of the common law as it evolved in England and this country through the centuries was to vindicate the rights thought fundamental to the enjoyment of life, liberty, and property.”).
[¶21] A primary touchstone of property rights, whether under article 1, section 21 of the Maine Constitution or the Fifth Amendment of the U.S. Constitution, remains the protection against physical invasion onto private property. See Causby, 328 U.S. at 262; Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2074 (2021); Wellman v. Dep’t of Hum. Servs., 574 A.2d 879, 885 (Me. 1990); Tinkle, The Maine State Constitution at 61 (“Any permanent physical occupation of private property, or any interference with the right to exclude trespassers, constitutes a taking.” (citing Bell v. Town of Wells, 557 A.2d 168, 177-79 (Me. 1989))).
[¶22] Encroaching vegetation is a physical invasion onto private property. The longstanding constitutional protection of private property from uncompensated physical invasions reinforces the conclusion that the common law allows a property owner to remove such physical invasions. We would essentially be forcing the Adamses to suffer a continuing physical occupation were we to limit their right to engage in self-help.
Slip op. at 12-14.
This is how it's done. Check it out.
Atkins v. Adams, No. 22-394 (Maine Aug. 29, 2023)
