BOUNDARY TREES IN INDIANA: OWNERSHIP, RESPONSIBILITY AND OTHER RELATED TOPICS

Trees can be assets or a nuisance, depending on one’s perspective and situation. A tree that provides shade, privacy or other value to one person may interfere with the enjoyment and safe use of a neighbor’s property.

Questions often arise about the ownership of trees growing on or near the boundary between adjoining properties. Which landowner is responsible for their care or removal? If there is disagreement over what is needed, whose interests take priority?

Answers to these questions often depend on the circumstances and equities of the situation. They can also depend on the jurisdiction, since state laws and local ordinances tend to differ. But the analysis normally begins with a determination of the ownership of the tree.

In Indiana, the rights and responsibility for a tree’s care is vested in its owner, and ownership is determined solely by the location of its trunk. The author presumes this determination is made at ground level, but that point is often not be clear in the case law. If the trunk of the tree is entirely on Brown’s land — even if most of its limbs and branches extend across the boundary line or its roots encroach onto Smith’s land – the law typically considers the tree to be the property of Brown. Absent a contract or easement that grants property rights in the tree to another person, Brown has the exclusive right to decide whether to preserve the tree or cut it down. And that is generally true regardless of Brown’s motivation or reasonableness or the impact the tree’s removal may have on neighboring property. See Luke v. Scott, 187 N.E. 63 (Ind. Ct. App. 1933).

Once a tree’s ownership has been determined, courts have recognized and applied the following principles in resolving disputes:

  • So long as they do not interfere with the safety and enjoyment of neighboring property, private landowners are generally afforded the free use of their own property. Laws of nuisance are intended to protect those adversely impacted by the actions or omissions of a neighbor to seek civil recourse in court against offending landowners who unreasonably interfere with that use.
  • Even if a tree located on Brown’s land is dead, has an unpleasant appearance, or poses a threat to Smith’s land, Smith is generally prohibited from using self-help by coming onto Brown’s land to trim the tree or cut it down. Without A’s consent, such entry would be considered a trespass.
  • If the trimming is justified because limbs or roots from Brown’s tree extend over the boundary into Smith’s ground or air space, it can be accomplished entirely from Smith’s property, and can be performed in accordance with sound pruning practices, Smith is generally allowed to do so. See, g., Luke v. Scott, 187 N.E. 63 (Ind. Ct. App. 1933) (encroaching tree limbs); Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind. Ct. App. 2011) (encroaching roots).
  • What options might Brown have if Smith’s trimming of encroaching limbs is justified but it causes Brown’s tree to die? Here the law becomes murky. The answer may depend on whether Smith had a legitimate reason for his actions; for example, to allow for construction of a lawfully positioned fence, swimming pool or room addition or to eliminate the recurring mess from falling limbs. But if the reason is less justified, such as merely out of spite, a court may view the equities differently. While Luke v. Scott, 187 N.E. 63 (Ind. Ct. App. 1933), recognizes the right of the neighbor to trim or remove offending limbs, that court commented that should the tree die from the trimming the neighbor could have liability. The author is of the opinion such a result is inconsistent with a neighbor’s right to the free and exclusive use of his own property and airspace. The author thinks the better rule is recognized in the states of Washington and Vermont. In Mustoe v. Xiaoye Ma, 193 Wn. App. 161, 371 P.3d 544 (Wn.App.  2016), the Washington Court of Appeals held that when damage is done to one’s tree by a neighbor’s lawful exercise of self-help in cutting or removing roots that are encroaching onto the neighbor’s property, the owner has no basis for a lawsuit because the neighbor does not have a duty to prevent injury to the owner’s tree. Similarly, in Alvarez v. Katz, 199 Vt. 510, 124 A.3d 839, 842 (Vt. 2015), the Vermont Supreme Court reaffirmed property owners’ long-standing right to trim branches and roots from an encroaching tree without regard to the impact such trimming may have on the tree’s health.)
  • Alternatively, instead of the exercise of the sometimes risky self-help, the neighbor who faces a clear and imminent threat of harm from a falling tree or limb could seek a court order allowing removal of a tree that poses an obvious and imminent risk of harm or could sue for recovery of actual damages that could be proven to result from the overhanging limbs or encroaching roots. Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind. Ct. App. 2011). But the cost of a lawsuit or the difficulty of proving imminent danger or actual economic harm may make that course impractical.
  • If it can be proven that a tree is a “danger tree” – one that is dead or weak and leaning and poses a clear and imminent risk of harm should it fall naturally or be blown over in a storm – a court may find it is a nuisance and order it to be abated. Obtain that extraordinary relief will likely require the opinion of a professional arborist and advance written notice to the tree owner in seeking a voluntary resolution. That notice will also demonstrate the owner’s awareness of the condition should it later cause harm. But even healthy trees are sometimes hit by lightning or blown over in a storm, so the theoretical possibility of harm from a healthy but leaning tree may not be enough to warrant preemptive relief in court. Again, the facts, circumstances, and equities of each situation will control. See International Society of Arboriculture, A Photographic Guide to the Evaluation and Hazard Trees in Urban Areas (2nd 1994)
  • Where the trunk of a tree actually straddles the boundary line between adjoining parcels, the law considers the tree to be the joint property of both landowners. In that situation, Indiana courts have ruled that neither owner has the sole right to remove or harm the tree without the other’s consent. Luke v. Scott, 187 N.E. 63 (Ind. Ct. App. 1933). With respect to jointly owned trees, even minor trimming that could harm the tree should not be undertaken without advance communication with the co-owner.
  • Mere personal inconvenience from tree limbs or even actual harm to gutters, drains or landscaping from with falling or blowing leaves, fruit, nuts, or other debris from a neighbor’s tree is not likely to give rise to a successful claim against the owner. Those impacts will likely be considered a normal incidence and inconvenience of property ownership.
  • If Brown’s tree or its large limbs would fall onto Smith’s house or into Smith’s yard, the responsibility for resulting damage or clean-up costs will normally depend on whether Brown A was “at fault” or negligent in connection with the incident. Even if Brown’s fault for the loss can be proven, Smith may have to clean-up the mess or repair the damage himself and then sue Brown for reimbursement, either by Brown directly or by Brown’s insurance company.  But if the tree was healthy and fell unexpectedly from a storm or other act of God, Brown would not normally be at fault. If so, the loss must be borne by Smith as a normal incidence of property ownership. Smith’s own homeowner’s insurance may provide coverage for clean-up costs or damage repair, likely subject to a deductible.
  • Indiana law obligates landowners in urban areas to reasonably inspect their property for dead or weakened trees that pose a risk to others. One who fails to do so or to take needed action such an inspection would reveal may be at fault and held responsible for resulting harm. Marshall v. Erie Ins. Exchange, 930 N.E.2d 628 (Ind. Ct. App. 2010), citing Valinet, 574 N.E.2d 283, 285 (Ind. 1991).
  • Indiana law regarding the measure of damages for the wrongful harm to or removal of another person’s tree is not at all clear. In general, the extent of one’s liability for damages to another’s property will depend on whether the harm is temporary or permanent. If temporary, the measure of damages is normally the reasonable cost of repair. If the harm is permanent, meaning it cannot be economically repaired, the measure of damages is normally the diminution in value of the damaged property. Application of these general principles to trees is difficult. That is because growing trees are considered part of the land, and their loss may not have a material impact on the land’s value. Also, trees normally don’t depreciate over time as does a building or motor vehicle. And it may not be feasible to replace a lost tree with one of like kind, size and quality; the cost of replacement can exceed the value of the parcel on which it was located. See, in general, Council of Tree & Landscape Appraisers, Guide for Plant Appraisal (10th 2018).  One rule appears clear — where the cost of repair or replacement exceeds the market value of the land itself, the owner cannot recover more than the actual diminution in value of the land. Sheek v. Mark A. Morin Logging, Inc., 993 N.E.2d 280 (Ind. Ct. App. 2013). That is consistent with the principal that a victim of tortious conduct cannot generally recover from the wrongdoer more than his actual damages, i.e., end up better off than he was before the misconduct. Attorneys working with professional arborists can present evidence and argument in pursuing or defending against tree damage claims. Because judges and juries have considerable leeway in fashioning a just remedy, the outcome is often influenced by their view as to which party is the most reasonable.
  • The care required of the owner of a tree located close to a public roadway or walkway varies depending on a variety of circumstances. Factors include the tree’s age, species, condition, size and height, and proximity to neighboring structures or passing motorists and pedestrians and the nature of the activity on adjacent land or ways. Whether the land is residential, urban, or rural is also important in determining the care required of the owner. Generally speaking, the more urbanized or populated the area or amount of traffic, the greater the risk of harm from a falling tree and the greater the care expected of the property owner. Indiana has had many cases involving trees that have fallen onto roadways with tragic results. e.g., Marshall v. Erie Ins., 923 N.E.2d 18, clarified on rehearing 930 N.E.2d 628 (Ind. Ct. App. 2010); May v. George, 910 N.E.2d 818 (Ind. Ct. App. 2009); Patterson v. Seavoy, 822 N.E.2d 206 (Ind. Ct. App. 2005); Miles v. Christenson, 724 N.E.2d 643 (Ind. Ct. App. 2000); Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991). The outcomes of the cases differ based on their procedural posture and unique facts and circumstances.
  • As between private landowners and the government having jurisdiction of a nearby public roadway, the responsibility for tree maintenance will depend on whether the tree is on private- or government-owned land. The existence of a right-of-way for public road purposes doesn’t control ownership of the land itself.
  • Speaking of roadways, Indiana law allows utilities to locate and maintain their overhead and underground facilities in the public road rights-of-way. Code § 8-1-2-101 and § 8-1-20-28. This includes the right to trim trees where necessary to avoid interference with their lines and facilities. But that statute prohibits trees from being removed or cut down without the landowner’s permission. Private utility easements for the same purpose are commonly located along the boundaries of both rural properties and urban lots. Utilities are required by law to keep trees and vegetation away from their lines. Section 218 of the National Electrical Safety Code, adopted as law in all states, requires electric utilities to clear trees and vegetation away from their lines to provide more reliable and safe service. Because vegetation management is usually performed in multi-year cycles, the utility is allowed to clear far enough back to allow for normal tree growth during the anticipated inspection cycle. Absent emergency situations, utilities are expected to provide advance of intended work and to follow recommended pruning practices. And utilities can be found liable to harmed customers and property owners when they fail to attempt such notice. Information regarding some of the standards and practices to be followed by Indiana regulated electric utilities in maintaining clearance can be found in 170 IAC 4-9 (http://iac.iga.in.gov/iac//T01700/A00040.PDF?) and orders of the Indiana Utility Regulatory Commission in cause number 43663 dated November 30, 2010 and July 7, 2011 (https://iurc.portal.in.gov/docketed-case-details/?id=50f98986-e181-e611-8107-1458d04eabe0).
  • Trees and vegetation growing on private land along a roadway often obstructs a motorist’s view of approaching traffic, especially near an intersection. As of this update, the common law in Indiana is that a private landowner owes no legal duty to the motoring public to remove or reduce natural obstructions on his own property. Reece v. Tyson Fresh Meats, Inc., 173 N.E.3d 1031 (Ind. 2021) (tall grass); Shelley v. Cross, 680 N.E.2d 10 (Ind. Ct. App. 1997) (tall grass and weeds).
  • Utilities need easements to allow them access to private land provide as needed to perform work on their lines and equipment located outside of the public rights of way. The extent of a utility’s right of access will depend on the terms of the easement or license. A license is a grant of permission from a private landowner that normally is revocable at the option of the landowner. Written utility easements are most commonly part of the deed or recorded plat of land, and their terms will dictate the utility’s rights to trim or remove trees and vegetation. Easements can also be prescriptive based on a long period (in Indiana, ten years) of a utility’s open and continuous presence in the same location.
  • Indiana law does not recognize a landowner’s right to air, light, or a scenic view from his property. Wolf v. Forcum, 161 N.E.2d 175 (Ind. App. 1959). So long as the property owner is in compliance with applicable building codes, covenants, and zoning ordinances, typically he may build or maintain an otherwise legal, non-encroaching structure on his land despite the possibility of some adverse impact on his neighbor’s view or personal enjoyment of his own property. Giller v. West, 69 N.E.548 (Ind. 1904); Justice v. CSX Trans., 908 F.2d 119 (7th Cir. 1990). It seems to the author that, based on this principle, courts should treat a tree, wooded land, hedge row, and other vegetation on neighboring property similarly.

 

Remember that rules and principles established by statute, ordinance or the common law are always subject to change if circumstances and equities justify a change.

Also remember that it is risky to make assumptions about the true location of a boundary line. Aa professional land surveyor may be needed to establish or confirm the line. But even licensed surveyors sometimes disagree about a boundary’s location; that is especially the case where the deed record or a past survey is an old one. Also keep in mind that longstanding maintenance practices or the presence of fences or natural objects which have long been treated as the boundary can affect the determination of the legal boundary.

Judges and juries who may end up deciding these disputes in court expect neighboring landowners to communicate with each other in search of a reasonable solution before taking the law into their own hands or filing suit. Communication with the other party may result in a reasonable solution avoiding an expensive, time-consuming and unpredictable lawsuit. Private efforts to communicate also place a positive light on the party who appears to be the reasonable one. For a website with articles addressing other practicalities of resolving disputes over trees and vegetation, see http://www.treelaw.com/articles.html.

 

Kent M. Frandsen (kfrandsen@parrlaw.com)

Parr Richey Frandsen Patterson Kruse LLP

Lebanon and Indianapolis, Indiana

 

The author is an Indiana attorney whose practice focuses on civil litigation. This article is for general informational guidance only. It is not to be considered legal advice and does not form an attorney-client relationship with the reader. Because the law tends to change over time and the facts and equities of each situation differ, consult with an attorney to discuss your circumstances. 327216v9 (Last revised 9/12/22)

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